IP Notions

The Necessaries

2008-01-06T13:58:00.000-05:00

Tell you what. Imagine the most contrite and sincere apology for my long absence and failure to maintain the blog.

Read that in here.

--Ben D. Manevitz

Hmmm... Technical Difficulties

2007-06-08T17:28:00.001-05:00

For those wondering where all the new content is... so am I.

There are two posts that are supposed to be up here that for some reason... aren't. They looked like they were up to me, but there seems to be something a little goofy with the various permissions, etc. on my webspace - that is, I can see the posts, but no one else can.

A draft version of the second one was up for a little while, but I figured out how to take it down, and now I have to just figure out where the real posts went.

I'll play on Sunday. Things should be fixed then.

For those of you who did so, thanks for checking back, and your patience.

--Ben D. Manevitz

Yay! More Pr0n!

2007-05-16T12:31:00.000-05:00

First of all, for those of you who don't know, the misspelling above is intentional. I want this site to show up in a results list when the search is "brilliant IP insights" or the like; I'd prefer it lower down when the search is "Disney Pr0n" (Y'know, not misspelled.)

Anyway. The news...

Reuters reports that the Ninth Circuit today lifted the lower court's injunction in the Google v. Perfect-10 case.

Links and analysis (or more likely, links to analysis) to follow. But I wanted in on the news cycle.

--Ben D. Manevitz

The Fashion Cycle - on Speed.

2007-05-11T13:28:00.000-05:00

Diane von Furstenberg's suit against Forever 21 was covered in the press and on Counterfeit Chic back in March. There were a few interesting ~~admissions~~ statements in the article about Forever 21 in the NY Times today.

As a litigator, I'm going to give everyone involved in any litigation the secret! the best piece of advice ever! Ready? Here: Shut Up!

In this case, we've got a statement from the defendant('s representative) to the effect that there are no designers employed by Forever 21, “just very savvy designer merchants.” That's not a case-killer, but it's certainly the kind of statement that's going to help the plaintiffs.

Similarly, "Ms. Boisset of Forever 21 said that the company works with many suppliers and does not always know where their ideas originate." First of all, copyright infringement is a strict liability offense. Second, to the extent that a plaintiff will be able to show that in a particular instance Forever 21 was aware of/in contact with/in control of a particular supplier, protestations of ignorance will hurt in front of a jury. (Of course, the odds are that this case won't get to a jury, but still.)

I'm sure Ms. Boissett didn't mean anything bad. But in two quotes - and more than likely in other things she said that weren't reported but were likely recorded by the reporter - she did some damage to Forever 21's case.

--Ben D. Manevitz

PS: As an ancillary matter, I noted an odd shift in tone as the article progressed. The article starts out as almost a puff piece... Hey, look at this cool, generation-bridging, up-and-coming new store! Happy music; major chords; blue skies and puffy white clouds. La-la-la! But by the end of the article you've got gray skies, minor chords, and the looming lawsuit.

You CAN Copyright a Number. But Not As Such.

2007-05-01T21:55:00.000-05:00

Back in February, a hacker named Arnezami made public (on the Doom9 forums) the HD-DVD Processing Key. And the Industry-with-an-evil-capital-I is very upset over that.

Basically, the HD-DVD Processing Key is a special number, necessary (but not sufficient) for the decryption and watching of HD-DVD's on your home Linux box. Which seems fairly innocuous - after all, once I buy a disk, by rights I should be able to watch it on any screen in my house. I use the phrase "by rights" on purpose; the question is clearly covered by the first sale doctrine.

But note, however, that once it's been decrypted, it can not only be watched but pulled apart, copied, redistributed, uploaded, downloaded, sideloaded, whatever. So you can understand why the publication of the information might upset players in an industry with a business model built on, you know, not allowing that to happen so much. Even if the information in question is just a very big number.

Now, per Slashdot, which points to Rudd-O, which used to point to Strange Action at a Distance, but that blog's been squashed... the Evil Industry is attempting to stomp out the information. Apparently, (quoting Rudd-O) "the movie industry is threatening Spooky Action at a Distance for publishing that number, specifically with copyright infringement." According to the quote that Rudd-O pulled off of Spooky Action, the threats are premised on the DMCA.

Slashdot, Rudd-O, Spooky Action, and possibly others are all speaking in terms of the DMCA copyright provisions; There is already some hue and cry to the effect that you can't copyright a number! (Even a number with letters in it, as when converted to hex.)

Now, first and foremost, it's very likely that the threat was not based on the copyright provisions in the DMCA but rather on the anti-circumvention provisions. And that should be the end of this discussion.

But it's worth taking a step back for a minute, and addressing the question of copyrighting a number. Because you actually CAN copyright a number. Just not if you're trying to protect it qua number.

That is, if I figure out some awesome new method for figuring out the next huge Mersenne prime, and then write that up in an article, then under copyright law: I can NOT protect the method I describe; I can protect the article in its particular expression, unless the method is only describable in a limited number of ways, in which case I can't; and I can NOT protect the number itself. Anyone else can come along and point out that the Nth Mersenne prime is 12457...whatever, and I can't stop them. And if they want to represent that number in Hex, it becomes a string of numbers and letters, and I still can't stop them.

HOWEVER. I can protect a number when it's not a number. I remember years ago someone wrote a poem that was made up of fictional personalized license plates. Which would look just like a long hex number, except it's not a number qua number. Or the line from Shakespeare: "2B, R not 2B" On its own, probably too short for copyright protection, but not by dint of its being essentially a string of letters.

I would even claim that if someone wrote an abstract poem, consisting of nothing but a string of numbers and letters that would sound "right" when read aloud in sequence, that would be protected under copyright.

On a more technical level, every document saved on your computer is, in a very real sense, nothing more than a number. It's stored as a series of bits and bytes which the computer generally translates as words or images; but there's nothing that obligates computers to do so. Just for fun, take a small image (it has to be small so as not to overwhelm your computer) and open it in a text editor (Notepad or the not-Windows equivalent). It's a bunch of gobbledygook, but it's something.

(Just a brief nostalgia moment: I remember the heady days of Usenet, when big files were broken up and posted as long, apparently meaningless text files full of hex codes that you'd concatenate and then rename to have your image or music or document or whatever.)

The point is, you can protect a number, in some circumstances. In the instant case, the number is probably being used qua number - it's the answer to a math problem and so is probably not protected under copyright. But then, I reiterate, copyright probably isn't the issue here; the threats are probably being made under the DMCA anti-circumvention provisions.

As importantly, though, what you also can't do to a nubmer is to make it go away by wishing it so. Back in the Summer of 1995, when I worked for the EFF, I helped out (in a one-L summer intern kind of way) with the Bernstein crypto export case.

In that case, I recall, the algorithm in question could, with some rejiggering, be represented as a string of numbers a few lines long. A few times - most often in the spirit of sincere legal analysis and only sometimes in the spirit of stick-it-to-the-man humor - the question would come up as to what the law would (and should) be if, instead of seeking to "export" the source code and an academic paper about the algorithm in question someone had just put it on a t-shirt and flown out of the country wearing it.

Of course, those conversations took place back in the day when if you wanted something a little more professional than using a Sharpie on your Hanes, there were some fixed costs involved. Now we have cafepress. Plus ca change, plus c'est le meme chose. Some young clever has even registered the number as a domain name, and has a nascent blog there.

So, as a copyright question - not protected. And as a practical matter - not protectable any more. I didn't go into the trade secret question, but that's also not going to work to keep the number out of the public's grubby mitts.; Arnezami apparently figured out the code by looking at disks, not by gaining improper access to guarded information.

My first instinct under the anticircumvention provisions is that release and propagation of the number is problematic, but as I write these words, I'm less and less convinced. I'll have to think about it some more... maybe even post a follow-up. It'll come down to the question of whether or not the Processing Key is an "access control" as used by the statute.

And looking at the broader question of copyrighting numbers...

You can copyright a number. Just not this one.

--Ben D. Manevitz

Update: Lots of good coverage out there. Only one link to me, but them's the wages of sin. Or in this case the wages of toiling in obscurity. In any event, I found particularly heartening the coverage at EFF Deep Links, that makes clear that it is, in fact, an anti-circumvention claim, and not a copyright one.

Also - tagging is a very cool and excellent innovation in the blog world. For those of you who don't check the tags on posts you read, it might be worthwhile to check the tags on this one at least. I got it from Slashdot, and I'm guessing I'm not the only one.

Double-plus Un-infringe-ful

2007-04-20T16:27:00.000-05:00

In your intrepid adventurer's last missive, I made the overproud claim that Bill Patry, in looking at the small controversy about the Apple-1984-Obama-Clinton ad "just plain misses the point." On reread of Professor Patry's post, I want to back off of that claim for a bit - he mentions what I think is the critical issue, but doesn't give it much emphasis.

(Note, the YouTube link above points to a copy of the mash-up ad; I couldn't find the original, apparently posted by Phil de Vellis, a/k/a ParkRidge47. YouTube also has the original Apple superbowl ad.)

Briefly, the owner of the rights in George Orwell's 1984 (Rosenblum Productions, Inc.) is "monitoring closely" what it claims is the infringement of its copyright by the ad linked above. Analysis on the web - including the weight of Professor Patry's post - tends to look at fair use and political speech questions.

But what's being missed is the more important question: WHAT INFRINGEMENT? Or more to the point, where is the substantial similarity to protected elements of the IP in question?

I was in high school in 1984, so you can imagine that it was a big deal to read the book and write all sorts of insipid essays. But I hadn't read the book since then so I hit the local public library and took it out and read it. Okay, skimmed it. But still.

There's nothing in the ad - either ad - that copies protectible elements from the book. There's no scene of trudging, bemasked drones, no ubiquitous gasmasks, no tube-sidewalks (which actually remind me more of Paris' Charles de Gaulle airport than anything. The book has the ubiquitous screens that the commercial(s) ha(s/ve), and the talking head, and you could make an argument for the whole unitard thing... but not really.

Clearly, whoever owns the rights in the original ad would have some sort of claim against the mash-up. And you could do a fair use analysis in that context.

(Frustrating side-note: there's already the annoying buzz of "Parody!" defense. If this ever comes to a head, I'm publicly begging the lawyers for Mr de Vellis to eschew that claim. It's not a parody. Remember, parody is where an author thinks, "hey, wouldn't it be a funny commentary on Barney if the apparently friendly giant purple dinosaur was actually - or also - a minion of Hell." Satire is if that author thinks, "hey, wouldn't it be a funny commentary on the state of the world if the selfsame dinosaur was being consulted by George W. Bush.")

In all fairness, Rosenblum apparently has rights in a Richard Burton film (warning: obnoxious rollover ad), which I haven't seen. And an opera, and videos, etc. (Per the press release.) I haven't seen those either. But assuming those materials hew sufficiently close to the line set by the book, the copying - or rather the lack thereof - will be the same.

This, folks, is a very good example of the idea-expression dichotomy at work. Orwell's book is a dystopian vision of the near future including an oppressive government, invasive surveillance, and ubiquitous propaganda. That's the idea.

There are a lot of elements within the book that are protected by copyright. Winston Smith, the image of and slogans of Big Brother, that amazing bit after Winston and Julia have made love for the first time, where the thrush sings. That's the expression.

The expression is protected by copyright. The idea is not.

Even though the ad does, at the end, explicitly point to the book to describe the atmosphere it's trying to evoke... there's still nothing in the ad that copies protectable elements of the book.

Which, I guess, is why Rosenblum is only "monitoring closely" and not "filing an action." Because some lawyer, somewhere, has probably done the analysis for them. The analysis that goes, "Sorry, guys. You got a pizza with nothin."

--Ben D. Manevitz

PS: Back in 1984 Rosenblum sent a C&D letter to Apple about the ad and "The commercial never aired on television again." (Per the Rosenblum press release.) Assuming the commercial really was pulled from broadcast, I deeply and sincerely hope that the C&D was not considered in that decision. I'm a little worried, this time, that Rosenblum might simply go with a DMCA take-down notice, a la the NFL.

Long Hiatus. (m'I woN - wards)

2007-04-20T05:08:00.000-05:00

So the hiatus went a little long; I've got no real excuse, just that things got a little hectic.

There's some balance in the fact that these posts are relatively long; I'm not trying to for three or five posts a day, more like one or maybe two a week, hopefully with some insight.

So my overlong hiatus really only amounts to one (or maybe two) missed posts. Which, I know, is one or two too many, but still.

The bigger problem is that I end up with a backlog of things to write about, and I'm going to have to just skip some of them.

Also, I want to give a shout-out to Fran, who gave me a little poke in the bum on this.

--Ben

PS: "Now I'm" backwards, less 'wards' = "Now I'm back"

Pass/hiatus

2007-04-08T17:52:00.000-05:00

When I was in fifth grade, I was introduced to these clever puzzles - I don't know their name - where words and letters were manipulated to become common phrases.

So {theabirdhand} would be "a bird in the hand", and a box with the word BLACK on the outside of it... "blackout."

Which all goes to explaining the title of this post.

I have a few actual recurring visitors by this point. (Welcome, by the way. Except for the guy - I'm guessing it's a guy - who keeps finding me by way of the Google search for "disney porn." You, sir, can feel free to move right along. Nothing to see here. No, really. Nothing to see.)

Those visitors - even you, gentle reader - may be wondering where all the fresh content might be. And I would love to share some with you.

But, I'm on Passover hiatus. Better bloggers than I have managed to post with some frequency during the holiday, but I have not. And did not actually think I would.

BUT! Be here next week, when I do post. Words I would have not guessed I would ever type: I think Bill Patry just plain misses the point.

Now that's a teaser!

Have a good one.

--Ben D. Manevitz

My Very Clever April Fool's Post...

2007-04-01T20:33:00.000-05:00

...Will have to wait 'till next year. By which time it probably won't be so funny, depending as it did on the whole Viacom-Google issue.

Until then, though: [hearty chuckle].

The best bit for me? Dark Porcelain. For reasons having to do with some projects I worked on lo these many years ago, but the stories are too lengthy to go into right now.

--Ben D. Manevitz

Ad-Hoc Networks - Got Your Ears On, Good Buddy?

2007-03-29T23:39:00.000-05:00

When I was getting my J.D. (1994-1997), laptops in the classroom were not unheard of, but not by any means commonplace. By the time I went back for my LL.M. at Cardozo, laptops were pretty much de rigeur, and my initial insistence on taking notes by hand (I eventually gave in to the dark side, for various reasons) flagged me clearly as old-school, emphasis on "old."

That plethora of laptops exists outside of school, as well. I doubt I need to belabor the point to anyone reading this in a Starbucks, or most libraries, or any number of public spaces in your standard issue metropolitan area; just look around. And it goes pretty much without saying that the overwhelming majority of these laptops are equipped with WiFi connectivity.

Now, if you want to see the future of things, stop calling them laptops. Call them nodes.

There's lots of coolness tucked away in the internets, but at the core, one of the truly big ideas of the internet was the shift from a one-to-one model to the many-to-many model. This is true both on the technical, file transfer level - a single file going from point A to point Z will pass, in whole or in part, through many systems and connections besides the ones leading directly out of A or into Z - and on the level of content - in that theoretical Starbucks you're sitting in, you (and hopefully some others) are reading a blog, and the tattooed hipster sipping his latte next to you is writing a blog, and the barrista is wondering if her YouTube video's gotten any views, and that little girl who just came in with her father is planning her next MySpace post, etc.

In simple terms, any computer (technical level) or site (content) on the net is (or could be) having a lot of simultaneous conversations with a lot of other computers/users/sites/whatever.

That's all well and good. But the many-to-many model is only accurate a few steps away from the edge of that famous internet cloud we all know and love. (Much cooler image.) At the very edge, it's still a very limited conversation: your computer talks to your router, and your router talks to your ISP.

The idea of tweaking that model to fix (read: interconnect) the endpoints - mesh computing - isn't, strictly speaking, a new one. (In fact, one of the best features of the $100 Laptop is it's out-of-the-box mesh capability.) (click the little computers to prick up their ears, drag 'em to move them around.)

But I'm blogging it now because I just stumbled upon WiPeer. (There's a hat-tip that belongs here, but I don't remember who gets it.) I dropped it on my laptop, did a quick install, and within a few minutes I had my ears on. This was the first application that I've encountered that moves the mesh idea forward with such a low transaction cost on entry.

That is, I'm fairly tech-savvy, but even I'm a little chary of messing with my networking and wireless settings. Moreover, if I'm going to be a part of this experiment, I don't really want to sacrifice anything for it; I don't want it to interfere with my computing experience, my regular networking, etc. And I'm not installing anything with adware, spyware, annoying-ware, intrusive-ware, or really anything-ware. And I kind of don't want to think too hard about the installation process or settings, either.

WiPeer - with whom I am not affiliated in any way - seems to fit the bill. And while it's not open source, I can't imagine that the protocol is so abstruse as to prevent clever third parties from developing clever manipulations of the system. One of the first I can imagine is sharing an internet connection among meshed computers. (Go back and look at the one laptop per child demo, but keep the laptop on the far right (near the globe) "deaf" until the end)

But why am I noting this here? What's the IP import of the evolution of a true mesh?

Basically this is just a peek inside the can of worms. Think about how my laptop becoming a server changes the way the law looks at me. Am I an ISP? A (protected) internet router? an end-user? Do I deserve DMCA safe-harbor? If you're in that Starbucks right now, and paid the $10 for the day pass to use the T-Mobile wireless there, and then you mesh with a few other laptops there and they piggyback on your bandwidth... what if the aforementioned tattooed, latte-sipping, blogging hipster is (a) downloading music illegally, (b) uploading porn, (c) uploading kiddie-porn, (d) posting a crypto algorithm to an internationally available message board, (e) hacking into military systems?

What about file sharing within the local mesh? Take "Jack My IPod" to the next level. Or what about mesh-casting (I made that word up), where I can have music come through your computer instead of the radio on my shelf? What counts as "publishing" something now?

So that's the can of worms. And it's starting to open. It's going to be a mess, but it looks to be pretty cool, too.

--Ben D. Manevitz

[PostScript: It turns out that "meshcasting" isn't completely my neologism, but I don't think the results of the linked Google search (on 3/30/2007) demonstrates usage with the meaning I've given it.]

Pointing Out

2007-03-26T09:38:00.000-05:00

Just a little Monday morning pointing out.

I wanted to point to two items of note from Counterfeit Chic. It started out as one item, but then when I went to get the permalink I saw another one.

I'm finding the Coke Zero marketing campaign really funny. Maybe it's just me.

This blog entry about "real" dolls and girly experiences upset me a little qua IP lawyer and a lot qua father of a little girl.

--Ben D. Manevitz

Ear-Tugging Actually Means "Call The Lawyers."

2007-03-19T18:04:00.000-05:00

So it seems Carol Burnett is suing the necessary parties behind Family Guy because they appropriated her cartoon "charwoman" character and for disparaging her personally, etc. (Hat tip to Ron Coleman, here.)

It takes little imagination to anticipate that the studio will claim parody as a defense, at least in part. But it's clear that the studio still has its PR people doing the talking, instead of its lawyers, because the reported statement by the studio does a nice job of making the lawyers' jobs much harder: "'Family Guy,' like the 'Carol Burnett Show,' is famous for its pop culture parodies and satirical jabs at celebrities."

You can just hear the lawyers groaning. If it's a pop culture parody, then there's an arguable defense; if it's a satirical jab at a celebrity, then you've got a problem.

That distinction, made by courts and practitioners alike and premised on the Campbell v. Acuff-Rose decision, is actually a pretty fair one, to a point. The reasoning starts with the eminently reasonable assertion that if I'm going to make fun of (comment on, disparage, analyze, play on, whatever) Work X, I need to be able to "conjure up" Work X sufficiently. The point of a joke is that it builds on and then subverts expectations; in the case of parody the expectations in question is the original work.

Once I move away from commenting on the work itself, though, that rationale breaks down. If I want to make fun of {anything NOT Work X}, I should be able to do so without calling on someone else's copyright-protected work; I certainly can't say that I need Work X.

It's not uncommon (and there's an example of litotes right there) to see accused infringers raise the parody defense - more often than not inappropriately - and it drives me up the wall. Yiddish mit Dick and Jane and the JibJab video are two examples that spring to mind, but there are myriad others. (And quite honestly, I think the Supremes decision concerning Big Hairy Woman was a stretch, as well.)

The way to think of it is to ask if there's another work besides the allegedly infringED work that could serve the purposes of the allegedly infringING work just as well. So if I wanted to point out some inherent flaw or hypocrisy in the Dick and Jane books I would have to use the Dick and Jane characters, scenarios, cadence -- I would have to evoke Dick and Jane. But if I want to make a point about teaching Yiddish in little-kid-book terms, then my ends would be served as well by evoking Dick and Jane as by evoking Thomas the Tank Engine or Poky Little Puppy.

Similarly, This Land is Your Land speaks to a certain unity of Americans across social or cultural divides, and set the JibJab animation up nicely since it addressed a certain animosity and divisiveness across social/cultural divides, while at the same time making a more subtle point about citizens being united in their disdain for the politicians in question. The song was a great choice, but certainly not the only choice possible to serve that purpose.

So too, in the instant case. You have to ask, "what's the joke?" If the point is that Carol Burnett presents herself to the world as particularly moral or upright, and the gag is directed to undermining that, then you've got a parody. Family Guy couldn't make that point about Carol Burnett unless they evoked Carol Burnett. (A little back-story: according to The Smoking Gun the Family Guy had asked to use Carol Burnett's theme song in an episode, and she refused.)

On the other hand, if Family Guy was just making a point about... well, it's hard to think of it out of context. If Family Guy was making a point about how celebrities of the past had fallen, under this analysis then that's satire and that's not protected. Sort of.

"Sort of" because of footnote 14 in Campbell v. Acuff-Rose, which is so exquisite as to merit quotation in full:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

At one level, the footnote is nicely in line with the rest of the analysis and contemporary thinking on Fair Use, in which the fourth statutory factor is considered first among equals. The Court here saying, essentially, that where there's less market substitution the requirements are more relaxed, and when there's more risk of market substitution it is "more incumbent on one claiming fair use to establish . . . the parody's critical relationship to the original."

(Sidebar: Some argue that the Campbell decision steps back from seeing factor four as first-among-equals. I don't read the opinion -- especially footnote 14 -- that way, and in any case at least one Circuit has held that factor four is still primary, and that's the way Professor Hughes teaches it.)

Read closely, however, footnote 14 opens the door to satire being fair use. "[W]hen there is little or no risk of market substitution . . . looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required." (emphasis mine).

I call this exquisite because there's a huge problem with the parody/satire distinction and how parodic fair use doctrine has evolved. At first blush, the parody/satire distinction makes sense, and seems to leave plenty of room for the free speech that is the raison d'etre of Fair Use in the first place.

But on closer analysis it becomes clear that parody is far too narrow a defense. Looking at each case individually, the parody/satire distinction works. That is to say, the 'real' Dick and Jane people claim (rightly) that the Yiddish with Dick and Jane book isn't a parody of Dick and Jane, but a satire or social commentary (or just a joke or other expression) that leverages Dick and Jane to make a broader point, and they can point to Poky Little Puppy and Thomas the Tank Engine to make their case, claiming that those would serve just as well.

Similarly, the Guthrie estate could make the same claims about the JibJab video, pointing to some other song that approximates the underlying message of This Land is Your Land. And Carol Burnett could make the same argument, as well. If the message is that celebrities of the past have been brought low. . . I'm sure somewhere there's a relevant animation of Gallagher out there somewhere.

The problem arises when the situation is looked at globally. Because Dick and Jane points to Poky Little Puppy, but Poky Little Puppy is protected by copyright, too. And so is Thomas, and so are most songs that would serve instead of This Land, and so is that Gallagher animation, and so on.

We live in an incredibly referential world, where a huge chunk of our lexicon points to and leverages the expression of others, the vast majority of which is legally protected (by copyright and/or trademark). There's an ongoing conversation threading its way through our culture, and it's becoming more and more difficult to participate meaningfully in that conversation without stepping a little bit over the lines that have apparently been drawn.

How many times, for instance, have you heard or read a poem that takes a mostly octameter acatalectic trochaic poem -- which describes adequately for these purposes The Raven by Poe -- and applies it to some light subject such as cats or hardware malfunctions (or even a not-so-light subject like bombs in Italy)?

Now, okay. The Raven is in the public domain, but pretend for a minute that it was still protected. The linked poems could at least arguably infringe, or at least come close to infringing, and a more comprehensive search could probably turn up so-called parodies that hew more to the line set by The Raven than these do. As well, those poems are emphatically NOT parodies of Poe's poem. They say nothing about, and are not intended to say anything about Poe's poems or Poe himself.

What they do, though, is use the cultural currency that inheres in Poe's poem - the fact that it's so well known, the fact that it's so dark and so effective at communicating that darkness. The poems use that currency as a launching point for their own contributions to the hum of creativity, taking something light and treating it with too much seriousness, or (in the case of that last one) taking something serious and recasting it in terms more readily available to a reader.

It's those contributions that are being stifled under the current proprietarization (there's probably a better word for that) of culture and expression. When we think of the phrase "fair use" without out lawyers' hats on, we think that kind of use should be allowed, because it's fair. Fair to the creator, because it's only taking that which they already sent out into the world, and fair to the world because it allows us to have richer, more subtle, more complex interactions within it. When we put our lawyers' hats back on, though, that expression is disallowed.

Fair use is supposed to be the safety valve for exactly that sort of problem, but the way fair use has been limited -- particularly by the current understanding in practice of parody/satire -- is limiting the doctrine's ability to serve that purpose. Footnote 14 begins to address that issue, by opening the door for "satire," for which I want to read {NOT parody}, where the economic harm to the original creator is minimal.

I don't think the Caroll Burnett - Family Guy case will take us there, but you never know. In any event it will be interesting to see where and how the doctrine develops, and if Footnote 14 is ever given its due.

--Ben D. Manevitz

Viacom YouTube Brouhaha.

2007-03-15T13:46:00.000-05:00

Everyone else is talking about the whole Viacom-YouTube brouhaha, so I thought I'd pipe up as well. There's been a lot of good analysis done, pretty much, but I want to chime in with some small tweaks to the analysis that I think have been missed.

Also, any excuse to use the word brouhaha.

Note/HatTip: A very fine summary of the complaint is available from GoogleWatch.

I've heard and read people out there arguing about the question of YouTube as a service provider under the DMCA, but I don't think a lot of time should be spent on that question. Whatever you want to say about the mechanics of how it goes about its business, YouTube isn't any different from Compuserve or AOL or Joe ISP, and it's exactly the sort of actor that the DMCA was designed to protect. Viacom may try to make the argument, but it seems spurious.

And so, Tweak the first:

Let's assume away an argument that YouTube isn't a service provider as imagined by the DMCA. Instead, Viacom's going to have to try to get Google/YouTube out of the safe harbor by other means. Most likely under 512(c)(1)(B), under which Viacom's going to claim that Google makes money from the infringing material and has the ability to control the activity.

I don't know if Google's ever taken an official position here, but I've heard it argued that Google keeps ads off the pages where the videos are actually displayed specifically to try to stay on the right side of this clause. And in this, it seems it's Google's turn to be silly; It's hard to countenance an argument that Google's not making money from content on a certain page just because there aren't any ads on that specific page when there's clear monetization of the property as a whole. Google's business is ads and eyeballs, and the videos - infringing or not - drive the eyeballs.

Instead, the question is going to turn on Google's ability to control, which will probably devolve onto an analysis of the state of technology. If Google has that ability, which is to say, if it's technically feasible for Google to control the uploading of infringing works, then it's possible that the statute means that Google has to do so. The judicial interpretation of "ability" should certainly include a feasibility/practicality aspect, but who knows how that's going to go. Google has started using a filtering technology, but - presumably - Viacom's not happy with that.

It's possible that Viacom's also trying to work on 512(c)(1)(A)(ii), claiming that Google is "aware of facts or circumstances from which infringing activity is apparent," but I think that the analysis comes down to the same inquiry; Taking Viacom's allegations as true for a minute - Google is aware that there are a lot of infringing works on YouTube - but even so, identifying infringing clips among the bajillions of clips on YouTube is a technical question.

There's another argument of Viacom's that I haven't seen getting a lot of attention. It's a bit technical, but might turn out to be the stealth claim that landsharks Google. Since I haven't seen any analysis on the claim... Tweak the second:

As nicely summarized in the aforementioned GoogleWatch post, Viacom claims that "YouTube is also deliberately interfering with copyright owners' ability to find copyrighted works" by limiting search returns to 1,000 hits. 512(i)(1)(B) limits the safe harbor to service providers that "accommodate[] and do[] not interfere with standard technical measures." Said technical measures are defined in 512(i)(2). It's not untenable for Viacom to argue that by limiting search results in the manner claimed, Google is interfering with such technical measures.

Google would counterargue that the limitation is necessary to avoid the imposition of "substantial costs on [Google] or substantial burdens on their systems or networks," as allowed in 512(i)(2)(C), but I don't know... seems a bit tetchy to me.

Finally, I just want to poke at the DMCA for a minute. A lot of the people with whom I find myself sharing coffee don't like the DMCA. But I actually think that it's not so bad; particularly in that it has two qualities admirable in a statute: (1) it actually comes close to doing what it set out to do and (2) it's at least pointed in the right direction, which is to say that what it sets out to do is what I think should be done with regard to an otherwise thorny problem.

{Edit} In response to the comment below, I clarify that I'm addressing here very specifically the mechanism for dealing with online copyright infringement. Other aspects of the DMCA, including the anticircumvention provisions, are subject to a separate analysis. {/Edit}

That tepid defense of the statute aside, there are some important weaknesses in it, and I think the Viacom/YouTube situation makes some of those weaknesses clear. And so, Tweak the third, which is not so much a tweak as a whinge.

Without going into the whole story, I should disclose that I have taken advantage of the DMCA notice and takedown provisions, in order to successfully (and quickly) stop a splogger from using (whole cloth) a post from my other (pseudonymous) blog. So I have first-hand experience of the DMCA working the way it's supposed to work.

On the other hand, the first phase of the dust-up between Viacom and YouTube demonstrates what I think is a significant weakness in the scheme as it stands now. Of the 100,000 take-down notices lodged with Google by Viacom, many (if not most) were probably overbroad. Say it ain't so, Viacom, but it seems that that they just did keyword searches and sent the notices. (Note: the link points to Just an Online Minute; the third response down is ostensibly from a Viacom rep denying the claim.)

Under 512(c)(3)(A)(v), the notification of claimed infringement must include a "statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." Under 512(c)(3)(A)(vi), that statement is made under penalty of perjury.

But the "penalty of perjury" isn't really where the statute has any teeth. The real insurance against abuse (on this side of the equation) lives in 512(f)(1), which imposes liability for damages including attorney's fees on anyone who knowingly misrepresents that the material is infringing.

But those remedies don't extend to the knowing misrepresentation of other elements of the infringement notice - and I would argue that the remedies should so extend. Moreover, I think the DMCA should make clear that the "knowing" standard in question is an objective standard, which is to say that it includes "should-have-known."

It's a small change, but one that would, I think make the DMCA even better at getting to where it seems to be pointing.

--Ben D. Manevitz

Disney, Porn, and Annoying Things

2007-03-06T22:41:00.000-05:00

In reverse order:

Annoying thing:

I realize it's a thing that many people do. Even smart people. But it still bothers me no end when people conflate the terms "copyright" and "trademark," particularly when the offending party is someone who should know better. In the article I'm going to point to in a moment, it's even worse, because the author keeps switching back and forth.

Disney, and Porn:

A UK mobile phone porn producer has successfully pushed back at Disney. Turns out that the very-small-screen blue film producer ~~trademarked~~ registered the trademark A PLACE WHERE DREAMS COME TRUE. Disney uses the phrase in promoting its theme parks. According to the article, "Preparations for a court case had been made, but Disney lawyers have now backed down."

What that means exactly isn't clear, though it seems that backing down involves little more than not suing, and instead pretty much just infringing and waiting (daring) the little guy to sue. Disney is using THE PLACE WHERE DREAMS COME TRUE.

Yeah, you read that right. Disney has "backed down" by using the phrase exactly as used and registered by someone else but for changing the indefinite article to the definite article.

Okay, so you're not likely to think that the porn guy is behind the theme park. But if it was the other way around, you know that Disney would be All. Over. That.

Back to the Annoying Thing, for a minute:

Look at that article again... Is it a copyright dispute? A trademark dispute? Grrrr....

--Ben D. Manevitz

When Copyright is like Trademark is like Moral Rights

2007-03-05T16:02:00.000-05:00

Last week I spent a nice evening at the Arts and Entertainment Law Journal's 25th Anniversary party. My invitation was by dint of my having had an article published therein.

At some point during the festivities the current editors of the journal approached me with a waiver allowing them to put the article (full text) online. (No link, because I don't think the site's up yet.) I had already granted the necessary permissions by email, but they - wisely in my opinion - wanted a signed document to the effect.

I signed off with only a cursory glance at the (admittedly short) document to make sure nothing was being made exclusive. And I joked to my neighbor that as an IP lawyer, signing something so blithely should have sent up some red flags.

But further discussion brought out an interesting point. With regard to "regular" writings, the value the Constitution and the copyright laws protect is essentially a sort of traditional sales value made intangible. That is, I have something, you want it, and I want to get paid for it; in a situation where you're unwilling to pay, I'd be fine with you not being able to get it.

With regard to legal scholarship (and a few other contexts), however, I thought it interesting that the model is flipped. I have something, and I'd love it if you'd read it. Really, please. And if you think it's smart or interesting or worthwhile, pass it on!

The value to the author inheres in the connection of the author's name to the article and the ideas in it. An author doesn't expect you to get paid for the right to read the article, or even to riff on the article. But he or she would like to get paid for being the person who thought those thoughts and expressed them, presumably because it indicates an ability to think other, similar thoughts and express them similarly well.

As long as properly cited and not otherwise passed off as another's, an author generally won't be husbanding the six exclusive rights so exclusively.

What is important to an author, though, is the source-identification aspect of the article and its use. That is, I really want the article connected to me and my name/identity.

And in that sense, it's neat how copyright concerns fold into trademark concerns; particularly the traditional (non-dilution) sorts of trademark concerns.

Taking that a step further, though, I thought it was cool how that sort of copyright/trademark overlap led directly to a set of concerns that look very much like moral rights.

An author's interest in having his or her name identified as the source of an article, and no one else's incorrectly identified tracks nicely to Attribution/Paternity; the author's interest in having that work represented in such a way as to accurately reflect its original meaning tracks similarly to Integrity. (See, Berne article 6bis.)

I thought it was interesting to see the flow as copyright implicated trademark implicated moral rights.

--Ben D. Manevitz

Fair Use and Fee Shifting

2007-02-22T22:14:00.000-05:00

Well, it's been a pretty busy week for Mr. IPNotions. Not so much online, but I've been scampering around IRL, and now I'm gonna talk about (some) of it.

On Wednesday, I went to the Modest Proposals 3.0 conference at Cardozo. There were five really interesting proposals made, but I want to focus on Mike Carroll's "Fixing Fair Use" proposal.

Unfairly distilling a significant paper, a four-page proposed statute, and an hour's worth of speech and question-and-answer to a three-line summary, the Professor Carroll's proposal comes down to setting up a three-judge panel to adjudicate fair use questions ex-ante the putative use, resulting in narrowly binding but published decisions. The decision is formally reviewable by Circuit courts, and de facto reviewable by District courts.

The proposal was evocative of a presentation Professor Nimmer made last year (when I was still in flagrante LL.M.) that he called FUDGSICLE. I don't remember how the acronym unpacked, but his idea (again, unfairly distilled) was to set up voluntary, non-binding arbitration on the question of fair use ex-ante the putative use, resulting in decisions probative to any later inquiry into good-faith or willfulness. As I recall, in fact, Nimmer's proposal was that (for instance) if the arbitration panel deemed a particular use fair, then the copyright holder would be barred in later litigation from claiming bad faith or willfulness.

Carroll and Nimmer are both addressing a very real problem with fair use. Or rather two connected problems: the lack of certainty ex-ante the use (multiplied in any risk analysis by the potential for large statutory damages), and the high cost of defending against a charge of copyright infringement. And they both address the problem in a similar way, to wit, by introducing an element of certainty ex-ante (at a reduced cost) and relying on copyright holders to act in reasonable self-interest by only bringing suit in the very close cases, where the holder has a good chance of flipping the previous determination.

The issue I have involves the tendency of copyright holders - especially large IP-based businesses - to have an almost trademark-like protect-or-lose overzealousness when it comes to enforcing copyright. Neither of these ex-ante proposals prevents the copyright holder from holding the threat of an expensive suit in court over the heads of the risk-averse and/or cost-averse putative user. Disney or Viacom or someone will send a letter that comes just short of actually threatening suit (avoiding declaratory judgment actions) and that's usually more than enough to scare most users off. If you've already included the work in the new work, then go back and edit or just don't publish; if you haven't, then you find another way. In either case the fair use exception/limitation/defense/whatever is basically eliminated.

Setting up a cheap system for ex-ante determinations without making that system mandatory does little to eliminate the effectiveness of that kind of threat, particularly because the threat is leveraging not the possible loss attendant to a failure on the merits, but the certain loss attendant to defending the case - attorney's fees.

So what needs to be done is that these ex-ante determination processes need to be given teeth with regard to attorney's fees, so as to neutralize that part of the threat.

Right now, under Section 505, the court has discretion to award a prevailing party fees. In practice, it doesn't happen that often, and that's due in large part to the overwhelming reluctance to deviate from the US rule in US courts. That's fair, usually, but in the context of copyright cases - and the different ways they generally come to the court (or should come to the court) - it would be worthwhile to maybe skew that a little.

So, for instance, under Professor Carroll's proposal, the initiation of the fair-use adjudication process could trigger an automatic fee shifting provision in the event the matter goes to District Court, such that the party that initiates the inquiry in District Court (short-circuiting the Carroll adjudication process) would be liable for some or all of the attorney's fees of the other side in defending that case, to the extent that the defense had to do with fair use.

Under Professor Nimmer's idea, a party who acts in a manner to instigate suit after a a determination by the arbitration panel could be held for the attorney's fees of the other party if they prevail.

In either case, the ex-ante determination of fair use would then have the weight sufficient to defeat the threat posed by the cost of defense. Let's just put the metaphor in the blender: It would turn the Sword of Damocles into a shield. But not, you know, a shield hanging over your head...

--Ben D. Manevitz

Trademark Full of Stuffin!

2007-02-18T15:47:00.000-05:00

In the universe of blogs I frequent - many of which will, eventually, make it to my blogroll - I think this is a scoop, of sorts. Via the SND Blog, a surprising (to me at least) loss for Disney in the Very Serious Litigashun about Pooh. (Comprehensive repository of documents at LaughingPlace.)

What's the take-away?

Draft your documents VERY CAREFULLY, try your best to anticipate... everything. And then pray.

--Ben D. Manevitz

Me Am Rite Good! So Gimme Patent!

2007-02-16T13:40:00.000-05:00

I wanted to shamelessly promote my recent publication:

Manevitz, Ben D., What's the Story with Storyline Patents - An Argument Against the Allowance of Proposed Storyline Patents and for the Rejection of Currently Pending Storyline Patent Applications, 24 Cardozo Arts & Ent. L. J. 717 (2006).

SSRN Link: http://ssrn.com/abstract=947647.

Consider this post (and the comments thereto) space for feedback on the paper and its subject.

I understand if you don't want to read the whole paper. (The last section is a lot of fun, though the most narrow legally.)

Essentially, this guy has come up with a Brand! New! Idea! where he wants to patent storylines. Yeah, you read that right. Just to be clear, the website is plotpatents.com. As in patenting plots. He builds his argument on the foundation of software and method patents, and what he claims is the demise of the printed matter doctrine. Knight's gone so far as to apply for a number of patents under the theory.

My paper proceeds in three parts. First, I argue that plots are not (and can not be) proper subject matter - a storyline is not a "useful art" as required by the Constitution and a storyline can not satisfy the constitutionally grounded utility requirement of the patent statute. Second, I argue that storyline patents should be disallowed as a matter of policy; allowing such patents would do violence to the patent/copyright bargain, and allowing such patents would place an enormous burden on the courts and the PTO in exchange for only the slimmest possible benefit. Finally, I argue against the particular storyline patents that Knight has filed, looking at specific novelty/obviousness issues.

I also spend a little time talking about the printed matter doctrine, and the reports of its death.

I do have some ideas that didn't make it into the paper, and I've got some other thoughts on the subject that I'd like to poke at some more, but I'll do that some other time.

For now I just wanted recommend the article to you. Read it, know it, love it, cite it often, laminate it and put it under your pillow at night or otherwise fetishize it... whatever.

Have a good weekend.

--Ben D. Manevitz

The Shifting Sands of Terroir

2007-02-14T11:23:00.000-05:00

Yesterday afternoon, I was discussing with a friend the differences between English and American chocolate (specifically Cadbury's), which devolved into jokes about the temperaments of cows in different countries and how that would affect the milk chocolate.

I know; I have odd friends. The point is, though, that it shouldn't have surprised me that I woke up this morning thinking about Geographical Indications (GI's).

The TRIPS definition of a GI is a good place to start, with slight editing. GI's are "indications which identify a good as originating in the [a certain geographical region], where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin."

Pay attention to that last bit, essentially attributable. The idea is that there's something ineffably particular in the combination of local factors -- including soil, microclimate, trace elements in the water, whatever -- that makes a product from a certain place unique and at some level not reproducable if grown in another place. The term for that is terroir, particularly with respect to wine; when I'm in my less charitable moods I think of it as the magically delicious principle.

(I'm eliding, for this discussion, the idea of GI as it applies to traditional handiwork and goods produced by labor; there is a line of thought that applies a quasi-terroir to crafts, such that the basket woven by an indigenous basket weaver in Region X is somehow different from the basket woven by the same basket weaver, even using materials imported from Region X, once that basket weaver moves to someplace that's not Region X. It's so dumb it makes my head hurt.)

GI protection can be accomplished either by a sui generis scheme of protection (the French model) or by looking at already existing protections and seeing how they can be made to cover GI's. In the US, trademark law is generally considered to adequately protect GI designations, particularly under the rubrics of Certification Marks and Collective Marks.

The "regular" level of GI protection (as reflected in TRIPS 22.2) doesn't really raise any hackles; it requires protection against the use of GI's in a manner that US practitioners would recognize. You can't mark a good as RegionX unless it's actually from Region X or if it's not from Region X but the public isn't going to be mislead into thinking it is.

It takes only a little imagination to understand how that level of protection fits nicely inside of Certification or Collective Marks. The US system pays no attention to terroir, and so far it doesn't really have to.

Problems arise, though, when it comes to TRIPS Section 23, which covers heightened protection for Wines and Spirits. A number of countries are looking to extend that heightened protection beyond Wines and Spirits, as well. The protection under Section 23 is much more dilution-ish. There's no inquiry as to whether or not the use of the term in question causes confusion or misleads the public. The protection afforded is more similar to ownership of term per se; even use of "kind," "type," "style," "imitation," or the like is banned at this level.

What I was thinking about this morning was as follows, though. If terroir is real, then you don't really need the second level of protection. That is to say, if it's really true that something in the dirt (or the water, or the slant of the sun, or the wind, or whatever the wind passed before it hit the vines) in the Champagne region of France makes the grapes there somehow different from grapes anywhere else, then it's really true that {sparkling wine made by the same process with grapes from California} is really different from Champagne. You could even make a good argument that the one from California isn't even Champagne-like, or -style, or -imitation.

On the other hand, if terroir is not real, then it's hard to think of a good justification for the heightened GI protection of Article 23. If Champagne that's not from Champagne can still be Champagne, then it can certainly be Champagne-style.

Moreover, even if terroir is real, what happens when the magically delicious principle begins to fail? As technology advances, perhaps that essentially attributable aspect of the land will become less ineffable. (See, for example, the advances in understanding red wine.) As that happens, the arguments underpinning the heightened GI protection will become less and less compelling, and it's not impossible to imagine the entire structure of GI protection trembling as its foundation is weakened.

It might be worthwhile for the bodies looking into GI protection to more explicitly address the question of terroir; particularly interesting would be to see some explicit recognition or (more likely) disavowal of terroir in the US Code.

--Ben D. Manevitz

Here we go.

2007-02-07T16:38:00.000-05:00

Well, here we go, then.

Welcome to my nascent blog. I've been a pretty regular visitor to the various legal blogs (I resent the word blawg as much as I embrace the word blog) for a while now, and have found myself thinking, once in a while, that I should get me one of those. And here we are.

Does the blog world need one more legal blog? Does the legal world need one more IP blog? Maybe. Here's hoping you what you encounter here is more signal than noise.

--Ben D. Manevitz