Goodbye, Blogger

We stopped posting on Blogger in June, 2005. Please go directly to www.likelihoodofconfusion.com for our Word Press version.

Likelihood of Revelation

The last week or so has been light on blogging, largely because of technological issues but also because of a slow week in topical news plus the occasional need to practice law around here.

It doesn't get better too fast because we will be out of the reality-based loop due to our office's observance of the Jewish festival of Shavuoth, the celebration of the Revelation that made the Jews the chosen nation. (Nice! Right?)

See you after shul.

Taking the IP Train

The New York Times reported (yes, reg. req.) last week that New York's Metropolitan Transit Authority is scrambling to enforce trademark rights in its wide array of iconography, including the famous alphanumeric train symbols known to all New Yorkers.

Evidently powered by the MTA's burgeoning licensing program, it's not a bad idea. No question but that these and the many other powerful symbols used by the transit system are excellent communicators of source, quality and all those other trademarky things. The New York transit system, especially the subway, is an entire subculture unto itself. In other words, don't be surprised if there's some pushback on this new, and somewhat belated, attempt to kind of privatize, or revenue-ize, a world that generations of people think of as "everybody's" property. Of course, the libertarians remind us constantly, and accurately, that when something is everyone's property, it is ultimately treated like no one's property at all -- which "everyone" ends up paying for. Still and all, there is an interesting trademark policy issue in here somewhere. It's one thing to say that services aren't free and that even when, as in the case of the MTA, they succesfully address significant externalities, their costs should not be unduly disconnected from users. But it's another thing to say that, however revenue-starved, a public institution (in the broad sense of the word) such as the MTA should restrict the public, much less the bloggy, enjoyment of a public iconography such as the train number symbols and the image of the classic subway token.

In other words, if you get a C&D letter from the MTA, give me call, won't you?

Google and the Privacy Obsession

Google is the new horseman of the ever-approaching privacy apocalpyse, according to an article in Reuters. Why? Because Google lets you keep your email (on its Gmail service) "forever," though the article doesn't explain what exactly the privacy risk is there. And, being fundamentally in the business of aggregating, analyzing and mining data, it keeps search, IP and other logging data for a long time, too. What's the problem with that? Lauren Weinstein, of People for Internet Responsibility -- an organization whose slick, professional website suggests it has not done or even said all that much lately (though Weinstein's blog look somewhat active) -- tells Reuters, "There's really no good reason to hold onto that information for more than a few months. . . . [Google] seem[s] to think that because their motives are pure that everything is OK and they can operate on a trust basis. History tells us that is not the case."

Huh? Google doesn't have to justify its motives -- which it never claimed were pure; see their stock price, thank you -- and you don't have to trust Google at all. Just don't use it.

How long until some representative demagogues this one on Capital Hill?

Should the Reds Enforce Trademark on "Gulag"?

I try mightily to avoid purely political postings here, which would be off topic. But I have always been very bothered by the debasement of language and meaning in politics which, not incidentally, does find its way into my line of work. Likelihood of confusion and all that.

So forgive me this one -- pace Amnesty International, the question is, is any unpleasant experience a "gulag"? Via Instapundit, here's a suggested answer.

UPDATE: Dean Esmay collects gulagiana here.

Enviro-Fascism in New Jersey: The New McCain Doctrine?

Drudge links to this AP story about a guy who bought a billboard, and may buy more, slamming New Jersey environmental regulators for preventing him from completing a development project. The billboard says, "Welcome to New Jersey. A horrible place to do business." "Money quote": "'At some point, we'll have to consider action against him,' [Environmental Protection chief Bradley] Campbell said, implying a potential legal fight."

WHAT? Has the FEC chipped off some of its expression-regulation power to the New Jersey Department of Environmental Protection now? It's not an entirely irrelevant question, because the news stories indicate that the businessman in question is feeling out governor-in-waiting Senator John Corzine about the issue. And it's not like it's Internet speech, so let the prior restraining begin!

I didn't call Mr. Campbell and ask for a clarification or explanation, which is what I would do if I were acting as a journalist here. I am not; I am only commenting on what appears to be an outrageous statement by an agency head. I'm confident someone from the intrepid New Jersey press corps will hunt this one down and scream bloody murder -- or get a clarification from DEP.

New Penumbra: "Internet Free Speech"

Glenn Reynolds links to an editorial in the Washington Times that urges "Free speech for bloggers," to which Glenn adds, "and everyone else." But while that caveat in his headline is appreciated, it does tend to get lost in the sauce. The key language pulled from the editorial by Instapundit is, "Unfortunately, no matter what the FEC decides, there's a chance that the days of unbridled political discourse on the Internet are nearing their end. . . . We encourage lawmakers to support the bills so that Internet free speech can advance unimpeded."

Why "unbridled political discourse on the Internet"? Why "Internet free speech can advance unimpeded"?

As I have said before, I think this is a terrible formulation, both rhetorically and legislatively. It allows Congress to buy off the for-the-moment influential blog medium while continuing to savage the Constitution for other media -- including, conceivably, as-yet undeveloped or unrealized media -- via the notorious McCain-Feingold anti-sedition legislation. The best thing the "Blogosphere" -- right, left and center -- can do in connection with this issue is refuse to be bought by a dubious, and prospectively temporary, carve-out for "Internet free speech" only.

Get Dumped

Your tax dollars, down the drain.

"Broadcast Flag" Flagged; First Down

Via Tech Law Advisor, Art Brodsky of Public Knowledge crows, and rightfully, that the DC Circuit has ruled that the FCC exceeded its jurisdiction with its the "broadcast flag" regulations.

Sewage Treatment

The issue of companies that technologically filter the sludge that oozes out of Hollywood in order to preserve a semblance of entertainment or enlightenment in that product line, while perserving other sensibilities, is bubbling up. We addressed it earlier; naturally, it's now being litigated. This is a fascinating topic and one that is addressed very thoroughly in an article in the New York Law Journal (registration required) by Stephen M. Kramarsky of Dewey Pegno & Kramarsky, a modest little shop in New York.

Here's the heart of the matter, put very well by Kramarsky:

Making copies of a movie and offering them for sale or rent, of course, is a plain violation of copyright law. To avoid this problem, editing companies buy multiple legal copies of each movie they offer so that they always retain a one-to-one ratio of 'cleaned-up' copies to originals. Some editing companies package the original DVD along with the edited copy -- sometimes in disabled form --so it is clear that each sanitized copy is backed up by a legitimately purchased original. Under this scheme, the editing companies argue that they cannot be doing harm to content owners. In fact, they assert that, by establishing a new audience for these movies, they are actually increasing revenues to the content owners. This argument ignores the fact that a copyright owner has the exclusive right to create and sell derivative works from its content. If a market exists for cleaned-up movies sold at a premium, the studios argue that it belongs to them, not the editors.

The other solution is the use of a hardware filter. Here, again, is a powerful excerpt on what's at stake:

In a now infamous display of the power of that technology a few years ago, one company showed a revised version of the "nude sketch" scene in "Titanic," in which Kate Winslet magically appeared, not naked as in the original, but demurely clad in a virtual corset. Hollywood, it appears, was not amused and some commentators have suggested that this demo was one of the sparks for the current litigation. But because masking and filtering occur inside the DVD player and do not result in any actual copying of anything, ClearPlay would seem to be in a better position to avoid an infringement claim than a company that sells edited copies. . . . the Family Entertainment and Copyright Act makes that intuition explicitly a part of copyright law.

Kramarsky suggests that while the copyright issues are a "close question" -- especially considering the new legislation -- the trademark dilution claims by the studios against the companies that sell repackaged, edited films aren't. I would tend to agree.

But the cultural issues being played out here are at least as interesting as the IP issues. There are people out there who want to see Titanic and who are even comfortable with a pretty young woman in a corset on the screen, just not a buck naked one. This is considered heresy, fundamentalism, in Hollywood. Hollywood's art demands nudity at this juncture (I guess; I didn't see the movie). Here the market is screaming, put a shmatteh on the young lady and we'll rent your video -- and this, Hollywood finds offensive. Because the scene, the art, just would not work with clothes on, you know? No sense telling a story about an ocean liner that hits an iceberg without a cute naked chick, is there?

Yes, Hollywood. That's the ticket: Move some chairs around on that deck...

Life Imitates the National Debate

Outgoing New York Times ombudsman Daniel Okrent writes about 13 Things I Meant to Write About but Never Did. A favorite, via Best of the Web Today:

Op-Ed columnist Paul Krugman has the disturbing habit of shaping, slicing and selectively citing numbers in a fashion that pleases his acolytes but leaves him open to substantive assaults. ... I didn't give Krugman ... the chance to respond before writing the last two paragraphs. I decided to impersonate an opinion columnist.

Don't ask the obvious question -- "Why didn't you write about it, Dan?", because, ho, ultimately he has, hasn't he? Believe me, for the Times, that's not a long delay before acknowledging the truth. Heck, I had to hit "refresh" a couple of times to make sure this wasn't a parody.

Yes, well, you'll forgive me for that. Hard not to think that our friend Bob Cox of the blog The National Debate ultimately had an effect on his sometime lunch companion. The two met shortly after the Times and Bob locked horns over the latter's posting of a Times "corrections page we'd like to see" that made the point -- a bit too realistically for the Old Grey Lady -- that for no good reason, misstatements of fact and other errors in Op-Ed columns are not corrected in the paper unless the columnist himself decides to make such a correction. (Not that the Times loses a lot of sleep over corrections.)

The Times screamed copyright infringement (they would have done better to claim trade dress infringement, but the DMCA works better for copyright bullies than trademark ones). Bob found himself a smart lawyer and, suitably hit on the nose with a rolled up New York Post, the angry doggie backed off. Cucumber sandwiches, and the founding of the Media Bloggers Association by Bob, followed.

While, not suprisingly, the Okrent column is tantalizing for what could have been, there were a couple of other nice nuggets. This one hit my particular vein:

I still cherish the First [Amendment]; I still think it's the cornerstone of democracy. But I would love to see journalists justify their work not by wrapping themselves in the cloak of the law, but by invoking more persuasive defenses: accuracy, for instance, and fairness.

Say it, Dan. Too little, not entirely too late; better than nothing, for sure.

It's Not the 20th Century Any More for Email Retention

Reuters "news service" "reports," astutely: "Where judges once were more likely to accept that incompetence or computer problems might be to blame, they are now apt to rule that noncompliance is an indication a company has something to hide." Especially if you're Morgan Stanley.

Chocolate Ice Cream with Chocolate Syrup

How else to describe a post (this one) that combines two of our favorite obsessions -- Google and fair use?

Business Week online reports that Google's announced plan to to scan millions of the world's books and make them searchable online is, not surprisingly, a little scary to some people. No, not the people who are afraid of free access to books and information. Rather, the people who are "all about" that very thing -- but who are a little worried about "free" in the economic, not the freedom, sense of the word.

According to Business Week, "In a May 20 letter, the Association of American University Presses (AAUP) blasts Google's so-called Print for Libraries program for posing a risk of "systematic infringement of copyright on a massive scale." Evidently, according to the report, a number of publishers have also expressed some concern. "We don't see how a for-profit company compiling this would be considered fair use," a spokesman for the Association of American Publishers -- the principal trade organization of the book publishing industry -- told Business Week.

Well. But it would depend in no small part on how much of a work is being made available on line (as the article notes), as well as on the development of third-party liability for hacking that leads to unauthorized access of infringing material beyond what Google anticipates making searchable, or accessible from search results.

It's getting to the point where we're taking the Googlization of the known world for granted. We shouldn't. It's an incredible phenomenon.

Fairness, Confusion Inversely Proportional

The Appellate Law & Practice blog wantonly beckons me via a gratuitous link to here (thanks!), in its discussion of a new Ninth Circuit opinion in the KP Permanent Makeup case -- the decision, having bounced back from the Supreme Court, now being reversed by the Circuit. The Anonymous Appealler focuses, in part, on the Circuit's suggestion that "likelihood of confusion is inversely proportional to fair use". That's certainly an interesting way to look at it, though as a "soft IP" man ("soft" modifying "IP," not "man") any time I hear terms like "inversely proportional" I reach for my revolver. Here are the marks, by the way, courtesy of the Ninth Circuit:

Now, I said "interesting," but I'm not so sure how much I love that formulation. (See how soft?)

Grateful Defendant

The New York Law Journal reports online (registration required) that the Southern District of New York has, thankfully, put a rare brake on the copyright rent grab.

Credit: Extraordinary collection of Dead posters at Berkeley's D.I. King Gallery.

The defendant, Dorling Kindersley Limited is known to parents of young children for its incredible illustrated books on the kinds of things kids wonder about -- how ships work, what went on in medieval castles, and the like. Evidently the company has another side: Deadheads. It published an illustrated book about psychedelic icons the Grateful Dead and in it reproduced, in reduced size, seven classic Grateful Dead concert posters. So, of course, the original copyright holder, Bill Graham Archives, LLC, sued.

(Just take a moment to enjoy the irony of these 1960's countercultural .... er,

Credit: EROWID

"figures" ... or their namesakes, slugging it out over who gets to profit from all that peace, love and understanding... no, that's not quite right -- was it three days of peace and music? ... Wonder who gets the last laugh?)

Defendants argued that their use of the posters in the book was fair use under the Copyright Act. The court agreed. According to the Law Journal:

It found the images' chronological placement on a timeline transformative and . . . noted that the posters were isolated examples across the Grateful Dead's career path. Despite observing that the posters' prior publication favored plaintiff's position, the court determined that defendants' reproductions did not capture the essence of the original, full-size posters. The court found no substantial effect on the market for the original work since the transformative nature of defendants' use of the posters was outside the ambit of lost licensing opportunities.

This is a significant decision which we will hear more about, as is any decision that preserves a semblance of fair use. Could this affect other IP holdups that prevent journalists and others from reporting on bona fide historical events, even if they somehow implicate copyright? One can dream...

First Amendment Special

Jim Romenesko reports, to no one's surprise, that the public thinks there should be a link between freedom of the press and the quality of news reporting. (Hat tip to Michael Silence via Instapundit.) This becomes relevant again in the context of the Newseek debacle of late.

I can't say I agree. Newspapers, magazines, broadcasters and bloggers should be free from the risk of prior restraint to report wrong stuff. It would be a nightmare if some agency, whether it were government or otherwise, had to pass on the veracity of reporting before it went to press.

BUT. What the public perceives here is the commonsensical principle that with rights come responsibilities. Call 'em penumbras and emanations, if you don't know exactly where to find those responsibilities in the First Amendment. And besides the recognition of responsibility, the institutional press would probably do well to stop carping on its insistence of entitlement to special privileges not available to other members of the commonwealth, such as "press shield" laws. Any thought that the media are entitled to such special privileges because they are members of a special caste should be quite dead and rather deeply buried by now.

Blawg Review #6

David Swanner of the South Carolina Trial Law Blog does a terrific job with this week's Blawg Review. Just try it and see.

Good Job, Steve

As predicted in this space, Wired News reports that the publicity generated by Apple's ham-fisted exile of a new book about Steve Jobs from its own stores has resulted in such strong demand for the book that the publisher, John Wiley & Sons, has "doubled the print run and moved publication forward a month to May 16."

PBS Now Part of Right-Wing Conspiracy

Drudge reports that two of Congress's loopiest members, Rep. David Obey, D-Wis., and Rep. John D. Dingell, D-Mich., have asked the Inspector General of the Corporation for Public Broadcasting (of which they have legislative oversight responsibility) to "investigate" what is described as an expansion of conservative programming on "public television." Here is the CPB's official version of their responsibilities to "balance" coverage and viewpoints on public television; here is a link to their ombudsmen's page. (But watch out for that ombudsman if you like blogs!)

Presumably the duo was tipped off by this New York Times story last week alleging GOP pressure to make changes at the the longtime liberal reservation known as public broadcasting.

It's bad enough that the entire broadcast regulation regime is a troubling farce based on a ridiculous fiction. (I'll be sure and let you know when I have a strong opinion on the subject!) But the idea of taxpayer-subsidized public broadcasting, inevitably doomed to become a political tug of war -- albeit only decades after the right should have realized what was going on -- is at least as silly. You can understand why the goofy Europeans, given their statist leanings and relatively weak speech protections, would tolerate such nonsense. But why do we?

UPDATE: Great coverage at The American Spectator.

"Identity" is "Not Authored, Not Fixed"; God Mulls Appeal

Dennis Crouch reports on a Seventh Circuit opinion ruling that the Copyright Act does not preempt a claim under Illinois' right of publicity. It arose in connection with a lawsuit by a model whose likeness was used by Ultra Sheen, and subsequently by L'Oreal, which acquired the former, beyond the contractual term. Here's the heart of the opinion -- I have bolded the words that define what is required for a claim to exist under copyright law:

[W]e find that [plaintiff's] identity is not fixed in a tangible medium of expression. There is no "work of authorship" at issue in [her] right of publicity claim. A person's likeness -- her persona -- is not authored and it is not fixed. The fact that an image might be fixed in a copyrightable photograph does not change this. . . . Identity, as we have described it, is an amorphous concept that is not protected by copyright law; thus, the state law protecting it is not preempted.

Reuters "Reports" Possibly Newsworthy WIPO Decision

Remember "Who, What, When and Where"? The New York Times headline says, "Actor Morgan Freeman wins cybersquatting case." Now read the Reuters story (covered untouched, unedited and un-thought-about by the Times) and let me know if you can figure out what the trademark or the domain name was.

I say this as someone who has been working in English for over 40 years now.

Imagine how much worse it would be if this story had been rushed into print by, like, a blogger!

UPDATE: Not surprisingly, Evan Brown has the details at Internetcases.com. The domain name? "MorganFreeman.com."

Absolutely Non-Boring Patent Story!

Bill Heinze writes about Patent Terrorism and whether it fits into the model, oft discussed here, of improper use of the intellectual property system as a sort of arbitrage.

Summer in the City

Hope there's still time to change your summer plans to fit in another IP seminar presentation -- my last, I think, for a while. I'm PowerPointed out. Here's the blurb:

The American Conference Institute seminar, at the Princeton Club in New York, is called Copyright / Trademark Protection & Litigation: Legal Trends and Developments -- Maximizing Use While Minimizing Risk; Litigation Strategies From Claim Analysis Through Trial. In other words, if one person registers for each word in the title, someone will make some money here. I will be part of a panel entitled, "Analyzing Your Options Against an Infringer: What to Do, Where to Do It and When?" along with Robert Hanlon from Alston & Bird and Michelena Hallie, VIP for intellectual property at Viacom. Here's the brochure.

More Than Boring...

Patents are deadly. A truly sad story. (UPDATE: Link corrected.)

Out-Googled

By the way, don't get me wrong. I'm trying to cover the Google IP territory, if not comprehensively at least on the high points. But within the blogging world, I see now that there are places where the Google-obsessed can get a permanent Google-high: Of course, Google -- which, after all, brings us Blogger and, hence, this blog -- has its own official blog. (Which, not surprisingly, isn't on the Blogger platform.) Then there's The Unofficial Google Weblog. (Just not too unofficial.) Another is the awkwardly-named Google Blogoscoped. That's about all I turned up... on Google.

Best of the Worst

A sideways thank-you to the boys at Blogads for naming an old, fuzzy ad of ours, which actually linked to the law firm website and not the blog (there was no blog then), one of the best miscellaneous ads on Blogads for purposes of demonstrating how you can use Blogads. Well, they're right about that much. We're masters of the medium here. Can you do better than this -- a reference on the Meisterblog itself to a Blogad by the Perfesser hisself? This ad swung the election to Bush; I'm still waiting for the flowers from Mr. Rove.

Blogads is in for some competition, as you may have picked up and, of course, expected. They have a lot going for them, though. Their service is easy to use, although I am looking forward to what I hope will be a new release, soon, of their somewhat clunky interface. You can still get Blogads on some decently well-tread blogs for cheap. (Instapundit zoomed out of my range a while ago, even if he has given a little back price-wise since then.) I believe I was among the first bloggers to advertise a blog in a Blogad, though Henry Copeland might be able to correct me on that (and maybe when he does we'll talk about his trademark!) . But if you do have something to say once your great ad gets 'em there (sorry, ZuDfunck)-- and if you know how to write good copy, which not everyone does, to get clicks in the first place -- it can really help with traffic and with establishing a "presence" in the Blogosphere. For us relatively late movers, hoping to find an uninhabited microniche, it's not a shabby idea.

Patently Questionable

We studiously attempt to avoid patents at Likelihood of Confusion. I'm not a patent lawyer, there are great patent blogs, and, well, PATENTS* are mostly -- dare I say? -- boring. Let the patent lawyers do the patent blogging. But this morning, I couldn't resist, since after all we feature all Google IP news, all the time. Reuters "news" service reports that Google trying to patent news ranking by quality. According to the story:

The technology Google is attempting to patent may help the company choose the most reliable information sources, although some Web commentators have said it will create a bias toward mainstream news sources. Google filed its U.S. patent application in September 2003 and it is in line for review by patent examiners. It covers "systems and methods for improving the ranking of news articles" based on the "quality" of the news source.

This is particularly interesting in light of this Daily Pundit item (via Instapundit) questioning whether Google's editorial control over advertising submission tacks leftward. A number of commenters over there maintain that this political bias has very much creeped into Google News coverage, and so do some people quoted in this CNet story. So this gives one patent-disliking, soft-IP, four-shares-of-Google-owning lawyer to asking of his patent brethren:

If the technology Google is seeking to protect for ranking news by "quality" can be shown to have a political bias, how might that affect its patent claims?

* Clarification! The patent blogs are NOT BORING!

UPDATE: Blogger Rhetorica questions the premise of evaluating the bias of Google news coverage.

The Trademark Crackup

Marty Schwimmer comes through again with this pickup: A great article by Uli Widmaier about how courts have forgotten the "use" part of the Lanham Act in their rush to find trademark infringement all over the place, even where the trademark is commercially invisible.

This is the thinking that could save Google, and should. Too bad the Europeans utterly don't, and won't, get it. But at least American trademark lawyers, and judges, should.

Apple not the Apple of TigerDirect's Eye

Colin Samuels of the Infamy or Praise blog writes about the odd trademark lawsuit by Internet computer discounter TigerDirect.com, which is where the Coleman Law Firm PC gets almost all of its computing and electronics equipment. Colin's treatment is terrific, but check out this excerpt from the AppleInsider.com article linked to above:

At the root of the issue appears to internet search results. Tiger Direct contends that Apple's use of the name has adversely affected its ranking amongst the Internet's largest search engines, Google and Yahoo, bumping the company from its usual spot in the first three results.

Now, what in tarnation have we unleashed here?! Is a search result for a trademark -- even for essentially unrelated services or products (TigerDirect makes neither software nor computers under its own name) now actionable harm under the Lanham Act?

Grrrrrr!

UPDATE: TigerDirect loses at the preliminary injunction stage.

Good Deed for the Day: Helping Old Producers Cross Agents

In far-off Hong Kong, the Motion Picture Association has created a Boy Scout merit badge on copyright: "Boy Scouts in Hong Kong now can earn merit badges for learning about the wonders of copyright law--at least the version described by the Motion Picture Association," reports Declan McCullagh. (Hat tip to A Mensch -- no, not A. Mensch.) So much for the LLM.

Keep it Underneath Their Robes, Please

I recommended the Underneath Their Robes blog a little while ago. It is clever and well written, and the concept is brilliant. But I have to say I am having second thought about the whole, albeit inevitable thing -- it's bad (clever, yes, but bad) enough treating the Demigods of Article III like rock stars, but extending that treatment to judicial clerks is really a bit unseemly, isn't it?

It's not as if they're not all going to be federal judges themselves down the line, anyway!

And Let Google the Dogs of Law

It had to happen -- another piece of territory now being rented out in the Lanham-Act-as-competition-buster industry: A new service has announced that it will scoop up the Google infringements for ya for a few kopeks. Their proud slogan: "Online trademark infringement is the act of using search keywords that specifically target another company's brand to generate online traffic. " The name of their company, "Gooroo," is obviously meant to "free ride" on the trademark equity of "Google," but if they're goring that ox anyway, may as well take an extra chunk, eh?

Myth becomes law becomes commercial reality -- all based on the spurious judical-activism-made concept of "diversion" and its handmaid, "initial interest confusion." But I repeat myself.

Still, watch this space: Some folks at INTA just may have something helpful to say about this....

Exactly Wrong on Free Speech for New Media

Via the permalink-less Kausfiles, a link to excerpts from (and suckup commentary about) remarks by CNN suit Jonathan Klein espousing the self-parodic, anti-democratic, anti-free-speech, and, yes, darn it, bad-for-the-children "MSM" concept that, well, alright, maybe we will let new kids play in our sandbox, as long as we can still decide who gets the secret decoder rings:

When the Jeff Gannon bomb exploded in the White House press room, where was the White House Correspondents' Association? ... I have a modest proposal for the White House Correspondents Association, whose annual black-tie gala I eagerly await next week: cancel the gala, and instead spend that time and energy creating standards--and enforcing them--for those who would call themselves White House correspondents.

Sheesh. The "Jeff Gannon bomb exploded"? How about the Helen Thomas bomb? Or is that okay 'cuz she's a freedom fighter?

Lotsa Matzah

Passover has kept blogging very "light" (as they say) this week, and I am sure I will be digging out and catching up all next week. But it would not be kosher if I didn't leaven things with a little seasonal trademark blogging. So here's a link to the Orthodox Union, the organization that advertises its "O-U" trademark, and rightfully, as the "world's best known kosher trademark," which it quite certainly is. See here for information on the application of the "O-U" to kosher for Passover foods. Not that the O.U. owns the right to the "O-U" combination -- hardly. Rather, it's the "circle-U" or "U in the O" device which is where the action is and which, like any other good and valuable trademark, requires aggressive enforcement.

The O.U. isn't the only kosher certification, of course, though it is the biggest and is very well respected. Some products bear the hechsherim or certification marks (trademarks that serve as an identification of source, not of a good itself, but of a certification about that good as to quality, such as being kosher or being safe) of various other agencies -- all of which, with all due respect to the federal judiciary, answer to a higher authority. Because the True Judge adjudicates beyond lifetime tenure!

Enjoy the rest of the holiday, or what should be a beautiful weekend if it's not your festival.

Next, Legalization of Blindfolds

Hmm, how will the politically correct spin this one? The President has signed into law the Family Entertainment and Copyright Act, a bill that legalizes a device that can be set to filter not-nice content from DVD's. It works on the hardware side. (See this earlier post.)

Naturally, Hollywood is horrified at its inability -- rare -- to get a piece of the action:

The legislation came about because Hollywood studios and directors had sued to stop the manufacture and distribution of such electronic devices for DVDp layers. The movies' creators had argued that changing the content — even when it is considered offensive — would violate their copyrights.

Yell "protect creators" and Hollywood usually gets its way. Here, however, it was up against the cultural (or "religious") right and "the family" (I'm one of them, by the way. I like the idea that I might be able to make these works kid-friendly, though I'm skeptical it will meet my family's own standards). Evidently this legislation managed to get painted the colors of apple pie, Mother and baseball and was beyond Tinseltown's clutches.

Kind of a conundrum for the reactionary left here. On the one hand, this is a blow against the Machine, a content-wants-to-be-free, I-bought-the-damned-DVD-I-didn't-license-it sort of thing. It's also ridiculously logical and, really, the height of chutzpah to oppose. Do I need Michael Eisner's permission to adjust the bass when I watch "Finding Nemo"?

On the other hand, ewww, who's behind it? The censors, the believers, the witch-hunters! (The hypocrites!) It will be interesting to see how this falls out.

UPDATE: My bad! Erstwhile (for now) lawyer and Tigernet buddy Matthew David Brozik sent me his scholarly article (evidently not available for free on line) in volume 31 of the Rutgers Computer and Technology Journal on this topic, written while the legislation was pending, which he sent to me a few weeks ago. He seems to more or less agree with my headline, writing, "[T]he proposed legislation is unnecessary, as it would only make affirmatively lawful what is now not unlawful."

iDiots

The AP reports that Apple has responded to a new book about Steve Jobs entitled iCon Steve Jobs: The Greatest Second Act in the History of Business by yanking all the books by the publisher, John Wiley & Sons, off the shelves of its Apple stores. MacWorld confirms the story and adds good detail:

"I was told late last week that Wiley had been talking to Apple for a while," [author Jeffrey] Young told MacCentral. John Wiley & Sons Inc. provided Apple with a copy of the manuscript to verify facts.

"Apple didn’t have any factual issues, but they just didn’t want the book to be published, apparently," said Young. Not publishing the book isn’t an option, however.

Especially now that it's become a cause célèbre, and a guaranteed bestseller, thanks to their heavy-handed tactics. When will they learn that corporate censorship, while perfectly legal, almost always backfires -- especially when the target is a publisher, and the topic is one of great interest on the Net? As long as companies are in the thrall of the cult of the corporate personality, apparently never.

(If, on the other hand, you are a member or friend of the cult and don't want to offend the Great Man, why, try this title by my old college friend Alan Deutschman. Blurb- and review-wise, it sounds like the same book, which of course is a totally unfair assumption to make. But why shouldn't Alan get a plug just because no one tossed his opus into the bonfires?)

Pitch for Blawg Review #3

Read all about it: Appellate Law & Practice: Blawg Review #3. You just might learn something!

Don't Say I Didn't Warn You

Google shares are up only seven-plus percent this morning. Am I sitting pretty? Let's put it this way: My haircut this morning? Paid for.

Google Takes Offense, Takes Offensive (for a change)

According to Search Engine Journal, perennial trademark infringement defendant Google has filed suit against Froogles.com, an online shopping site. The New York federal complaint is here. Google ahs already lost against Froogles at the ICANN level, the site reports. Don't confuse with Froogles.com with Froogle.com, which is a Google site. Does that figure into the claim now? Take a look and let me know!

Blawg Review #2

Welcome to the sophomore edition of the Blawg Review. We assume you have brought your sharpened, #2 lead pencils, your registration card, and a valise full of small, unmarked bills. So let's begin with a some light stretching, shall we?

First, let's talk about what we're not going to do -- that is, crash the system by showing how, like, iconoclastic we can be with our "carnival." No, counselor. No antipopes here; we have enough trouble with the Ninth Circuit! We're blawgers, dammit. And to paraphrase St. Kingsfield, if you come in here with a head full of mush, I promise, you will leave linking like a blawger!

Now, down to cases, as they say. And do I have to keep saying "blawg"? I don't think they can make me.

LAW BLOG BY THE BAY
The mysterious "SF Attorney" of the Legal Commentary blog (don't worry, his blah-blog name balances out his exotic real last name -- good move!) sends in this link in which the California Supreme Court diddles with the ancient and venerable doctrines of contract and -- suprise -- decides they aren't exactly really contracts so much, after all. SFA describes his blog as a "Discussion of all things legal and not-so-legal." Yes, he's leaving his options open -- but his mastery of the niceties of the California Practice is not for nothing. And hell, give him credit: His blog description didn't use the words "rant" or "random." If your wandering briefcase ever points you towards the Pacific, you must take a look at how this gent dices and slices West Coast exotica such as the California SLAPP law. As far as I know, SF Lawyer wants to remain anonymous, but you can email him from the blog.

JUST ANOTHER JUSTICE
Moving from the city where the ground shakes to Notes from the Legal Underground, Evan Schaeffer sends in this item, a pre-publication review, based on a press kit, of the new magazine Justice that will debut on June 21. Evan's kind of shy about expressing his opinion about this magazine, so you may have to read his review really closely to figure out his subtle take. The post is called "Justice is for Morons." Frankly, Evan may be onto something. The home page at Justice does make Steve Brill sound like Learned Hand. Incidentally, if you like this "carnival" atmosphere -- and Evan does -- check out his roundup of law school hijinx on the web. They're not just dunking those judicial wigs into inkwells any more, believe you me! No wonder they're so tired. And so uptight -- maybe not -- about rankings!

DON'T CONFUSE ME WITH DELAY
Did we say hijinx? Well, reading the editorial pages, you'd think nothing could be higher or jinxier than Tom Delay and his friends, so lucky for us JMoore of JurisPundit gets political this week. He's challenging the conventional wisdom that Texas has been horribly gerrymandered by the GOP. JMoore finds that not only is the alleged gerrymandering no worse than California is gerrymandered for the Democrats, but that actually the Texas congressional caucus isn't hardly any different from the state's Republican / Democratic split at large. Take a look -- this is good, thoughtful law blogging for a guy with two consecutive capital letters in one name.

RAP TALK JUMPS SHARK; JAG BLOG AWAG
On the other hand, blogs with three consecutive capital letters can be quite fine, if somewhat suggestive, too. The JAG Central blog -- "The world's first weblog devoted to military justice and military law issues" -- this week demonstrates that it is, indeed, all that, and links to a story
in which U.S. Senator Bill "Major" Nelson publicly uses the word "dissing" as a way of describing how he believes the Bush Administration is treating the United Nations. "Dissing" is evidently a word found in a charming urban subcultural patois of some kind -- found in Florida, perhaps? -- which term, we have learned, is meant as a (much needed!) shorthand for "failing to show a requisite amount of respect." It's the sort of nuanced, articulate style of argumentation you'd expect from a member of the world's most exclusive club.

STAMP OF STUPIDITY
Back Cali-way, SoCalLawBlog tells us about how the D.C. Circuit has affirmed that the failure to put a postage stamp on a routine mailing to the U.S. Copyright Office should indeed cost the "once mighty" MGM studio $10 million. The good news is, they've got a plan to make it back.

THE LAW BLOG ANSCHLUSS
Moving from fiction to documentaries, Professor Larry Ribstein's Idioblog asks the obvious question: What with all these law blogs and stuff, wither the law reviews? Even a better qeustion when you consider that some law schools are actually giving the competition enough rope to hang them with! This is definitely the topic of the moment.

Okay, then, fine, Ribstein's not the first one to ask it, but frankly he's the first one who looks quite this natty in a suit and has an endowed chair in a law school to ask it: "What, then, is the future of student edited law reviews? In a prior post I defended them along Hayekian lines -- they 'let a million flowers bloom.' [Uh oh -- that makes one Lenin and one Mao allusion in a post about a libertarian! -- Sorry! ed.] But now blogs can do that, much faster, and without the perversities of the law review selection and editing process we all love to hate."

CHICKS IN THE STACKS
Okay, he's also the first one to defend law reviews as against blogs along Hayekian lines. Not, as Jeremy Richey reminds us, that there's anything wrong with that. But it does make you -- or at least it, or something vaguely like it, makes Gordon Smith and Christine Hurt think ... as they do so well on their Conglomerate blog ... about what an all-female law school might look like, and why.

NO FEE LUNCH
But how free-marketish, really, should the legal profession be? It is, after all -- as demonstrated by brainy, bloggy practioners like David Swanner -- a learned profession, not a furshlugginer business. That's why David Giacalone of the f/k/a/ blog reminds us not to jump so fast to the world of "alternative billing" arrangements, "value pricing" and the like, whose evangelists glibly "offer the easily-tempted lawyer a paradise of premium clients and fees, with increased profits, while never probing the ethical and fiduciary duties of the lawyer to insure that the client is fully informed, treated fairly (and without manipulation) and, in the end, charged a fee that is reasonable for competent and diligent services." As Giacalone, whose blog has a haiku motif, might put it:

Fiduciary

Lawyer, client, counselor

D & B.

Okay, I'm not sure that's exactly what he meant. But I do think he would take some heart from this posting on an anonymous blog called Opinionistas about the humanity of corporate practice, vel non.

USE ME

Along similar, if somewhat less prosaic lines -- okay, a lot less prosaic lines -- David Jacobson's External Insights blog just wants to "help[] businesses make good decisions." Including lawyers. In this post he talks about the "usability" of firm systems. In law firms, David would like us to be really clear on where to plug these darned things in. He might want to start with George's Employment Blog, which talks about the whole making-it-work thing as applied to blogs, blogging, business and bald-faced alliteration. It's a pretty handy employer's guide to understanding how this New Thing is going to affect your business and your relationship with your busy, thoughtful and bloggy employees.

BLOGGING FOR THE RECORD

Evan Brown blogs regularly about cases involving the Internet. And that's why his blog is called Internet Cases. If you've read this far, you should be putting Evan's feed into your RSS reader. Last week he wrote about a case from North Carolina that gives a good example of what not to say on one's weblog. Stuff like, you know, "I'm going to drop a boulder onto the highway." That is, if you're going to go ahead and do it.

Well, it's been a long night, and I have more Passover cleaning to do plus a motion in Queens tomorrow. Hope you enjoyed the "carnival," but please finish the hot dogs outside until after the holiday. (The buns, the buns!) Blawg Review has information about next week's host, and instructions for how to get your law blog posts reviewed in upcoming issues. And readers: Your stubs are good at next week's show, being held at the Appellate Law and Practice blog, followed the week after by the Law & Entrepreneurship blog by the same Gordon Smith referred to above and a cast of law students. They blog, you decide!

Have a happy and kosher Passover!

Call for Papers

This is our last call (tonight) for submissions for consideration for inclusion in next Monday's Blawg Review, to be hosted here. (Any submission containing a longer string of conjunctions than the previous sentence is guaranteed inclusion.) The boys at Blawg Review do all the work -- just click here and you're halfway home, homey.

"But Mr. Coleman, how does it work, this Blawg Review? Please explain -- we're not the kind of people who were exactly threatened with journal editorships while in law school, you know." Yes, yes. I know. I know very well. But that is the past. Blogs -- blogs, my dear ones, are the future. Come, take a look at the virtual blawg journal with me!...

We'll collate the submissions 'round midnight on Saturday, distribute the articles to our nationwide network of albino-toned 2L's spread out throughout the law libraries of the 20 top 10 law schools to do all the cite checking, get the galleys to our faculty advisor, Professor Reynolds, by 9 AM Sunday and then deliver them -- reviewed, revised and remarkable -- to everyone's advisor, Professor Leiter, to correct all the punctuation and spelling and return it by courier pigeon to my New Jersey redoubt by 3 PM that day.

Through Sunday evening the pace only quickens, along with the excitement and my heart rate, unless I remember my pills. We then remove all the footnotes, arbitrarily transpose paragraphs from one entry to the next, give the text to an expert analyst to tighten up the HTML, stop for supper, spend an hour and a half looking for the floppy, put the kids to bed and just copy last week's Blawg Review. I mean, seriously, whom are we kidding here?

Remember: When it comes to journal work, it's an honor just to be nominated! Now send in those links!

Online "Freedom of Speech Carveout" Bill and the Blog Privilege

Instapundit points to RedState.org, which reports on the "Online Freedom of Speech Act" that was introduced in the House:

Today in the House of Representatives, Congressman Jeb Hensarling (R-TX) introduced a companion piece of legislation to Senate Minority Leader Harry Reid's bill (S.678) to exclude the Internet from the definition of 'public communication' in the Bipartisan Campaign Finance Reform Act of 2002.

Glenn Reynolds thinks we should all "get behind" it. It's hard to disagree, at least in the narrow sense that it would exempt the Internet from Federal Election Commission Rulemaking under under McCain-Feingold.

But. In a way, I can't think of anything worse.

I am in an alumni discussion group where a friend was just arguing, somewhat pedantically, that "it's not unconstitutional until a court says it is." Well, McCain-Feingold is unconstitutional, and I say it is. (I'm hardly the only one.) Right now blogs and other Internet media are the most dynamic and, arguably, influential voices of democratic commentary and exercises of real free speech. That may not always be so, as hard as it is for bloggers and the like to recognize that.

For example, consider that websites on the Internet are broadcasts. You build it and -- maybe -- they will come. The Internet is increasingly becoming, however, a conduit for "narrowcasting" -- the delivery of individually customized content. Will the "Internet exception" apply then? Well, under the proposed new language -- "Paragraph (22) of section 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431(22)) is amended by adding at the end of the following new sentence: 'Such term shall not include communications over the Internet'" -- maybe it would. Maybe. But we neither know what form tomorrow's free speech will take, nor how yesterday's free speech may or may not yet be adapted to become a "communication over the Internet."

In fact, there is no principled reason to exempt the Internet from these provisions. If Harry Reid weren't so highly principled, I would think he's merely trying to curry favor with the Blogosphere. But in fact, he's doing something slightly different, and worse: He's offering a separate peace so that the repressive McCain-Feingold laws, bought and paid for by partisan groups with a partisan agenda, can live on.

I am not so sure we should "get behind" this law and thereby take the pressure off the Net and the bloggers, who are the ones who should be fighting the good fight to rid all media of the special treatment given to "the press" for its commercial speech (called "news" and "editorial" content).

That doesn't mean I'm not in favor of bloggers getting the same benefits -- and responsibilities -- as "journalists,"as I have argued before , and today, too, in commentary on Corante to a posting by Alex Wexelblat. I am. I just think everyone should get them -- or get them back. Everyone. And I am afraid that if the pressure is off bloggers, we're more, not less, likely to continue down the path to free-speech hell.

The Matrix Downloaded

Data security and privacy are not big topical interests of mine. Anything Europeans are obsessive about can't be all that important. Throw in the ACLU, that predictable bizarro-world weathervane of right and wrong, and I'm usually pretty sure "what to think." But part of this story about the announcement that LexisNexis databases were compromised far more than had been previously believed caught my eye. It was this:

Data-collection services provided by Seisint, based in Boca Raton, Florida, allow police and financial firms to sift through vast amounts of personal information -- from the color of someone's eyes to the type of car they drive.

One Seisint database called the Matrix, which allows state law enforcers to quickly zero in on criminal suspects, has come under criticism from civil-liberties groups.

Lexis bought Seisint last summer for three-quarters of a billion dollars. The ACLU was screaming about this "Matrix" database for a while now, and while most of their complaints did not move me, it appears that they were right on the nose about the security vulnerability of the data.

Unlike most bloggers (it seems), I am not a libertarian, nor the biggest "civil libertarian." I am skeptical of conspiracy theories and the like. And most private data, the stuff that the privacy fetishists obsess about, is, as one great man said (about something completely else), "dull, boring and omnipresent" and pretty much worthless -- a point I make to the typical would-be Internet defamation or privacy plaintiff in that weekly phone call we get around here.

But I will say this: If government agencies are going to use their presumptive police power to collect data, however legitimately, they are -- regardless of whether they outsource the task or not -- obligated to insure that this information is retained securely. Even a law-and-order, Burkean conservative can recognize that duty, a duty of competence which is after all a premise of civil government ... right after ordered liberty and somewhere above free ham hocks.

It looks like the State of Florida (the increasingly incompetent-looking State of Florida), which has taken a lead role in the Matrix database project, along with LexisNexis, has a lot of explaining to do. Sorry, Mr. Olson, but I suspect that some of them there trial lawyers will have some hand in making them do it.

Amici write to urge the court to adopt a test that will not impede journalist’s use of the Internet to report news, by limiting their constitutional protections when they publish there. They ask that this Court to find that people who publish in online news sources are subject to the same constitutional protections under the reporter’s shield as reporters who publish in traditional media, and urge this Court to adopt the functional test articulated in Shoen v. Shoen, 5 F. 3d 1289, 1293 (9th, 1993) which asks whether the reporter had “the intent to use materials—sought, gathered, or received—to disseminate information to the public and [whether] such intent existed at the inception of the newsgathering process.”

This is the heart of the friend of the court brief that was filed today by Lauren Gelman of the Stanford Law School Clinical Education Center for Internet & Society's Cyberlaw Clinic. Our client, the Media Bloggers Association, was among the parties joining in this brief and requesting permission to argue it before the Supreme Court.

Writing on to Blawg Review

I didn't "go out" for law review in law school -- don't get me started -- and my career has been a pretty sordid exercise since then because of it.

I'm not making that mistake again.

Next week this blog will be host of the second-ever edition of Blawg Review, the "carnival" (why a carnival? just because Glenn Reynolds calls these things carnivals? who made him chief pimp? (Meant in a good way.) Okay, who else besides half a million daily readers? And he didn't even use my "carnival of the cardinals" idea!) -- I mean the weekly festival of law blogs (blawgs, right?).

Information on the rules of the game, including submission guidelines (yes, you must submit) here. This week's Blawg Review here at Evan Schaeffer's Notes from the Legal Underground blog, "A weblog that asks the question--Why are lawyers so stuffy?"

Incidentally, I resent the premise, Evan. Stuffiness is not something just anyone can affect. I have worked long and hard to affect stuffiness.

UPDATE: The emeser mensch, Jeffrey Haemer, writes in to 'splain as follows (hyperlinks added):

FWIW, I think all these are spawn of Silflay Hraka's original "Carnival of the Vanities," which, in turn, is an allusion to the carnival in John Bunyan's Pilgrim's Progress (as is the title of Thackery's Vanity Fair).

Education is a wonderful thing! I will have to try one of these fiction books one of these days. I think we might want to slide Tom Wolfe's Bonfire of the Vanities in there... along with WizBangBlog's own back mutation of the whole thing.

Reporters without Borders Nominates MBA for Freedom of Expression Blog Award

Yesterday the Media Bloggers Association announced that it has been nominated for a "Freedom of Expression Blog Award." You can read about the award here. You can vote for the MBA, and -- entirely incidentally -- thereby make me (the MBA's lawyer) look a little good, here. Do!

Overreaching, Part XXVI -- Major League Bozos?

The Sports Law Blog reports on a story I first saw in the hard copy edition of IP Law and Business. A version of it (that magazine, like almost everything else, is owned by AmLaw Media) can be found here. Bottom line: Major League Baseball is asserting the "right" to the exploitation of baseball statistics, serving up such gopher balls as, "Player statistics are in the public domain. We've never disputed that. But if you're going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain." The angle? Perhaps, maybe, the stats themselves don't belong to the league, but, uh, the "methodology" for computing them does.

Utterly idiotic. Fabulously obnoxious. Rent your pinstripes, baseball owners! It's not as if you have bigger problems to deal with.

Greg at the Sports Law Blog put it well:

Thus, it seems to me that baseball will lose this claim. Statistics are facts, nothing more, and can be disseminated as freely as can news stories. It is unclear how extending copyright to statistics would not also impact newspapers, television stations and commercial websites that also report baseball statistics. Baseball's methods for "compiling" these statistics consists of the advanced mathematical functions of addition and averaging.

I'm not even sure it's true that MLB itself (which has also had domain name issues of interest to legal professionals) has in any innovated or created the statistics. Most of these seem to have been created by fans (lots of fans) and media outlets.

All of which should make MLB happy. These baseball stats take on a life of their own and just route consumers right back to the product. Why it is that every single damned subsidiary thing that emits from a "property" has to be snagged, bagged and tagged is just, I guess, the waters of capitalism seeking their own level. In this case, however, here's hoping the courts find that MLB is all wet.

UPDATE: David Marc Nieporent (of the famed Jumping to Conclusions blog, and) of our office reports as follows:

If you read the lawsuit for declaratory relief filed by CDC against MLB, attached as exhibits are the C&D letters sent by MLB. They make trademark and publicity claims, but no copyright. (Although the complaint for relief does ask for declaratory judgment on copyright, as well.) http://www.businessofbaseball.com/docs/CDC%20v%20MLBAM.pdf

Common Law Copyright Makes it On Broadway

The online New York Law Journal (registration with a credit card for at least a free trial required) reports as follows:

ALBANY — In an unprecedented expansion of common law copyright protections, the Court of Appeals [New York's highest state court] yesterday said recording artists are shielded in perpetuity under New York standards even when their foreign copyrights have long since expired. Attorneys predicted the 7-0 ruling in Capitol Records v. Naxos of America, [Inc.], would have a significant impact on the recording industry.

This almost sounds like an April Fool's joke, it appears (at first blush) so far-reaching. They link to the opinion here. Also interestingly, the decision was in response to three questions certified by the Second Circuit, to wit:

Southern District Judge Robert W. Sweet found that Capitol has no common law copyright protection in New York, leading to an appeal to the U.S. Court of Appeals for the Second Circuit and three questions certified to the New York court. The questions were:

• Does the expiration of copyrights in the United Kingdom extinguish any New York common law copyright? Answer: No.

• Does a successful claim under New York copyright common law require evidence of unfair competition? Answer: No.

• Is an infringement claim in New York defeated through evidence that the alleged infringer produced a "new" product as opposed to a facsimile of the plaintiff's existing product? Answer: No.

Does this change everything? No. It appears to have little application beyond odd cases such as this one, where the copyright in the performance recordings -- here, 1930's recordings of cellist Pablo Casals, pianist Edwin Fischer and violinist Yehudi Menuhin -- have expired. There is no federal copyright protection for pre-1972 recordings, and the UK's 50-year copyright had expired, so Capital proceeded on a common law theory.) Besides, as the article says, "Practically speaking, though, federal law will preempt New York common law on Feb. 15, 2067." That's a relief!

The Ninth Circuit Comes Through

It rejects the stupid , and unconstitutional, argument that "commercial use" under the Lanham Act's dilution provisions can be found where there is simply "diversion."

A Theory of Trademarks in the Blog Era

(Edited to reflect the march of time.) On April 5th, as you were previously warned, I presented in New York City as part of a seminar on Advanced Trademark Issues for the IP Practitioner at the Association of the Bar of the City of New York (the "City Bar"). My written materials distributed to participants, including those who subscribed to a Westlaw webcast of the panel. Here is the essence of my thesis, without the links and exhibits used in the course materials:

The IP implications of blogs beyond trademarks, especially regarding copyright but even recently involving the publication of trade secrets, are also wide-ranging. The line must be drawn somewhere, however, so here we will limit our brief survey to the tangent where trademarks touch blogging and blogs, the first “paradigm shift” with respect to the Internet in our century.

What trademark issues are implicated by blogs?

Unlike virtually no other mass publication of trademarks that is likely to interest mark owners, the Internet raises few barriers to entry. Blogging presents even fewer – virtually none. Trademark enforcement practitioners who are used to the frustration of chasing after ethereal Internet-based trademark infringers are understandably aghast over the incredible ease, and functional anonymity, with which bloggers can instantaneously upload text, graphics and files, including HTML links. Blogger software platforms, including substantial hosting resources, are available for free from services such as Blogger and many others.

There is virtually no editorial, legal or other oversight over what content is to be found on blogs, as is the case on most privately-hosted websites, but while most recreational blogs are graphic nightmares, even the simplest blogs present a structure that features easy interactivity, a choice of practical and attractive graphic designs, and numerous add-on features that enable even lightly experienced amateurs – for no or very little cost – to easily monitor the volume, origin and trends of reader traffic, feature cooperative or trade advertising (and for higher-traffic blogs, even paid advertising), and take advantage of the burgeoning phenomenon of online blog networking.

The power of this last can hardly be overstated, because the Internet is ultimately about connection and networking, and HTML links form an electronic daisy chain of countless dimensions that spans the world along topical, interpersonal, professional and technological axes. The extraordinary simplicity and accessibility of blogging software on one end, and blog distribution on the other end (i.e., via any Internet connection utilizing a standard browser), makes blogs the self-publication phenomenon of our time.

One reason blogs succeed is because they wrap words in graphic appeal. Combined with the dynamic nature of the Internet, blogs deliver bite-sized portions of text which, at best, are so easy to publish and digest that some fear blogs threaten professional journals as well as the established news media, known in the “Blogosphere” as the “Mainstream Media” or “MSM.” Unlike journals and traditional media, there is little editorial oversight, an obvious negative as well as a positive – rather than institutional endorsement or pre-publication peer review, published materials fight immediately in the free market of ideas subject to the ability of the blogger to network well enough to get the attention of the desired “eyeballs.” These features are enhanced by the dynamism of hypertext linking, which replaces footnotes, bibliography and, in some cases, even exposition by allowing readers to “surf” directly and immediately to the actual cited sources. By this method, content on the Internet and in blogs in particular is particularly “rich” in a semantic sense.

Herein lies the opening to the trademark issue. In a media-soaked era, and after generations of advertising, marketing and brand management, both the visual vocabulary and lexicon of Internet users is also “rich” – in brand names, commercial icons, logos and favorite characters, products and mottos. Communication on the Internet, typified by blogs, is highly symbolic, and trademarks, if they are any good at all, pack a powerful semiotic punch.This attraction is intensified by the countercultural, or at least individualistic, tone affected – and frequently realized – widely throughout the blog subculture. There are various reasons this might be the case, including the vestigial “nerd” or “techie” culture of the Internet; the option (frequently chosen) of anonymity, either actual or practical; the generally subversive dynamic that arises from competition with the “MSM”; and the highly politicized atmosphere of the “Blogosphere,” in which the vast majority of bloggerss, regardless of nominal topic, are fairly well identifiable as either “conservative,” “liberal” or, far out of proportion to the voting population, “small-L libertarian.” This environment, coupled with the still novel capacity for perfect replication or alteration of trademarks and icons made possible by digital technology, makes “unauthorized” use of these politically and culturally loaded semantic designators on blogs and other Internet websites irresistable.

Blogs have a number of other interesting qualities that get the attention of in-house trademark counsel. Blogs have an almost magical charm when it comes to search engines – one of the most interesting areas of trademark litigation in the last year. See, e.g., Government Employees Ins. Co. v Google, Inc., 330 F.Supp.2d 700, 704-705 (E.D. Va. 2004). There are several reasons for this, including the prevalence of topical keywords and phrases in blog text, the usually straight-to-the-point nature of blog posting, each post's page structure, the coding utilized by blog softare, the concentrated “target” structure resulting from the fact that a good blog addresses only one subject per post, the blog site's information structure, and the linking phenomenon. See, Fredrik Wacka, “Why Blogs Rank High In Search Engines,” Web Pro News, found at http://www.webpronews.com/insiderreports/searchinsider/wpn-49-20050104WhyBlogsRankHighInSearchEngines.html.

Blogs also have a tendency, because of the reasons discussed above, to develop or cater to “cult”-type groupings. Sometimes these blog (or website) “cults” are themselves dedicated, in the nicest possible way, to beloved brands, trademarks or other intellectual property assets.Others merely utilize them easily broadcast a state of mind or associate the blogger or the blog with a certain well-known sensibility. And sometimes blogs, like other websites, just plain “abuse” valuable trademarks in constitutionally protected, but – for trademark counsel – nightmarish ways.Blogs are democratic, self-obsessed, essentially unaccountable, cheap, technologically powerful, judgment proof, ungoverned, interconnected, and very, very public – meaning that intellectual property lawyers, or those who play them on television, should proceed with care.

Death of an Icon

A story from the L.A. Times / Washington Post syndicate, evidently sent to press before the Pope's death, told of the increase in sales of John Paul II-related merchandise. This includes perfectly reasonable and understandable things such as the Pope's own book, Rise, Let Us Be On Our Way (forgive me, but it reminds me of a different book by a very different man) and rather silly things like the pineapple in red lemongrass soup the Pope had sampled in a San Francisco restaurant.

It will be interesting to see how this unsurprising phenomenon plays out in terms of the late Pope's status, according to this article from two years ago, as "the world's most desirable product endorser." The piece, from the Christian Sojourner magazine, notes the following:

Given the stature and aura that still surround the church and papacy for many people, it remains jarring to see examples like these:

• To finance the pope's 1998 visit to Mexico City, the Archdiocese of Mexico City received corporate sponsorship from more than two dozen firms. The single largest sponsor was the Pepsi-owned Sabritas chip company, which paid $1.8 million for the right to use the pope's image in its packaging. The Spanish-language play on words-"Las Papas del Papa" (-The Potatoes of the Pope") was lost on absolutely no one. Equally obvious was the seemingly inescapable TV and billboard ads connecting the pope's picture with Bimbo bread, a local cement company, and other joint promotions between the church and its corporate benefactors....
  
• In 1999, the Vatican approved a licensing deal with Miami-based Siesta Telecom to issue a Pope John Paul II pre-paid phone card. The card comes with a signed certificate and the pope's likeness on the card; the company already sells phone cards with the Virgin Mary's picture on them.

There may be issues of taste, I suppose, but in fact, non-profit organizations, including religious ones (and relatively wealthy ones), will raise funds almost any legal way they can. Think Bingo. Ideally money raised by a church in a poor country such as Mexico will be put to good use, so utilizing his ability to raise funds merely by being photographed may well have struck the Pope as a perfectly good way to leverage his own dignity for a better end.

How will that value be affected by the Pope's demise? In the short run, at least it will probably increase -- holding equal the question of the effect of his death on the nature of his legal right of publicity. It is not such an easy matter to assume that, however. It's one thing to fight over those rights in the case of an entertainer who leaves heirs. Even considering that the estate of a deceased famous person has, in many jurisdictions, certain exclusive rights to the exploitation of his personality (and other intellectual property), what is the earthly "estate" of a lifelong celibate and who are his legal heirs?

When Karol Joseph Wojtyla became Pope 26 years ago, such a question would have seen as crass. It still is crass, except of course in a scholarly and sensitive treatment such as this one, but in a brand- and merchandizing-crazed world, it won't be too crass for someone, somewhere, to litigate in the coming years.

UPDATE: The Pope's last will and testament.