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.