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?