Monday, August 30, 2004

Why You Would Ever Bring a Trade Dress Suit in the Second Circuit is Beyond Me. As a plaintiff, the only jurisdiction I can think of that I'd rather be in less than the Second Circuit is the Seventh. And this is why. From the article, entitled "Vuitton Loses Dooney-Bourke Trademark Bid": "Louis Vuitton created a new look and now seeks to preclude others from following its lead," Scheindlin said. "If Louis Vuitton succeeds, then it will have used the law to achieve an unwarranted anticompetitive result ... the objective of trademark law is not to harm competition."

Sunday, August 29, 2004

So, is This More Like a VCR, or More Like DeCSS? Reuters reports in Homegrown Satellite Radio Software Draws XM Fire." From the article: "A spokesman for the Recording Industry Association of America said his organization had not reviewed the software, but said that in principle it was disturbed by the idea. 'We remain concerned about any devices or software that permit listeners to transform a broadcast into a music library,' RIAA spokesman Jonathan Lamy said."

Friday, August 27, 2004

They're Baaack. From The New York Times, "Prepare to See More of a Certain Cat and Bunny." Via The Trademark Blog.
One More. To go with Marty's list of Source Material on Regulation of Political Speech, let's add "Statement by President Bush Wednesday after signing campaign finance legislation, as provided by the White House": "I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment." A little partisan commentary here and here. For good measure, let's get a conservative's take.
Unhand that Domain. Reuters reports that "Spike Lee wins case against porn site."

Thursday, August 26, 2004

If it's in the Public Domain, Ludlow isn't "Allowing" Them to do Anything... The AP reports that "Guthrie publisher lets cartoon use song." From the article:
With nary a jab thrown, Ludlow Music, the song's publisher, agreed in a settlement Tuesday to allow the cartoon -- one of the biggest Internet draws of the summer -- to keep using the song.
In return, JibJab dropped a lawsuit against Ludlow that sought an order saying its use of the song was protected because it was a parody and "This Land" was in the public domain.
The creators also agreed to provide a link on their Web site to the song's original lyrics and to donate 20 percent of any profits to the Woody Guthrie Foundation.

More On Yesterday's Raids. The Washington Post reports in "Suspected File-Sharing 'Hubs' Raided." From the article: "Agents also went to the Dallas offices of the Planet Internet Services Inc., an Internet service provider that also hosts Web pages for businesses."
Tired of Hearing About the INDUCE Act Yet? Wired reports in "Induce Act Draws Support, Venom." The AP reports here.
Political Cybersquatting. The AP reports in "Utah Man Buys Up Domain Names in Bush Push." From the article: "Jed Merrill, 28, of Park City, Utah, has registered the Web addresses of,, and, and linked them to the GOP site." I must say, I think the Vermont Democratic Party's reliance on Google to sort it all out is misplaced, and ignores the fact that there are measures the Democrats can take to stop Mr. Merrill.

Wednesday, August 25, 2004

File Traders the New Mafia? Reuters reports in "U.S. Raids Net Song Swappers in Copyright Crackdown." From the article:"'They are clearly directing and operating an enterprise which countenances illegal activity and makes as a condition of membership the willingness to make available material to be stolen,' [Ashcroft] said." has this report. Meanwhile, Reuters reports that "Music Industry Sues 744 for File Sharing." reports in "RIAA Steps Up P2P Legal Campaign."
France Fighting For Your Right to Copy? The AP reports in "Lawsuit Challenges Anti-Piracy Technology." From the article:
The lawsuit accuses EMI and Fnac of "deception over the material qualities of a product."

Filed on behalf of several individual consumers, it alleges that the copy protection system used on certain EMI discs makes it impossible to play them on many car stereos, hi-fi's and personal computers.
Clash of the Casual Wear Titans. The AP reports that "Adidas Files Trademark Lawsuit Against Ralph Lauren." From the article: "Adidas, the No. 2 athletic shoe company in the world after Beaverton-based Nike Inc., claims that a Polo jacket with two stripes on its sleeves bears too close a resemblance to an Adidas jacket with three stripes." Via The Trademark Blog.
PM ACPA Ruling. The Trademark Blog reports that "Philip Morris Seizes Domain Name of Infringer."
Posner on Fair Use. Regardless of which side of the issue you're on, you should really be reading Judge Posner's posts on fair use over at Larry's blog. From a recent post:
"With regard to the Patry-Posner proposal for creating a new fair-use defense for unauthorized copying of old copyrighted workers if the copier was unable with reasonable effort to discover the name and address of the current holder of the copyright, several commenters point out that one of the objections to the pre-1976 system, where failure to renewal forfeited copyright, was that people often just forgot to renew or botched the renewal application. No doubt there were unfortunate such incidents. But in general forgetting to renew or botching the application is pretty good evidence that the copyright had little remaining value. People are careful with property that they think valuable. Failure to renew even if inadvertent is pretty good evidence of lack of value."
Get Your JibJab On. Wired reports in "JibJab Is Free for You and Me." From the article: "Ludlow, meanwhile, registered the song under copyright in 1956 as an original copyright registration, not the renewal. The company was apparently unaware that because Guthrie had already published the song, the terms of copyright began in 1945, not 1956, Schultz said." BoingBoing has this commentary, while Copyfight weighs in here.
INDUCE Act on the Operating Table. Wired reports that "Copyright Bill Needs Big Changes." From the article: "In response to a request from a Senate committee, consumer electronics companies and public-interest groups on Tuesday submitted changes to a controversial copyright bill that would hold technology companies liable for encouraging people to infringe copyright."
Free Mickey? Reuters reports in "Disney Asks Court to Spring Mickey Mouse." From the article: "The U.S. entertainment giant went to a South African court Tuesday seeking to set aside an order which holds some 240 of its most famous trademarks -- including Mickey Mouse and Donald Duck -- hostage to the outcome of a multimillion-dollar lawsuit over the copyright to the song 'The Lion Sleeps Tonight.'"
New Round in the DVD Wars. Reuters reports that "Movie Industry Sues More DVD Chip Makers on Piracy." From the article: "The MPAA said the suits against Sigma Designs Inc. and MediaTek Inc. followed testing that it said proved the two were selling microchips to companies, whose DVD players lack what the MPAA called 'appropriate security features.'"

Tuesday, August 24, 2004

IP Concerns Come to the Fore at Standards Group. C-Net reports in "Microsoft quits U.N. standards group."
First Amendment Doesn't Preemptively Protect Companies Beyond U.S. Borders. reports in "On Appeal, Anti-Nazi Groups Topple Yahoo." From the article:
"Yahoo obtains commercial advantage from the fact that users located in France are able to access its Web site … Yahoo cannot expect both to benefit from the fact that its content may be viewed around the world and to be shielded from the resulting costs," Ferguson wrote for the majority. "If Yahoo violates the speech laws of another nation, it must wait for the foreign litigants to come to the United States to enforce the judgment before its First Amendment claim may be heard by a U.S. court."
The AP has this report, and Reuters has this report.

Monday, August 23, 2004

Posner on Fair Use. Richard Posner has taken up residence at Larry's Blog this week, and has an interesting proposal regarding fair use and copyright terms. Worth a read...
More on Graham Copyright Case. reports in "Dances by Graham Held 'Work for Hire' in Ownership Case."
More on Real Backlash. Wired reports in "Is Real a Real Hypocrite?." From the article: "Mac users also took offense to Real's claims of music choice, because its Rhapsody digital music-subscription service is not available for the Mac."

Saturday, August 21, 2004

Schwarzenegger Wins Another One. The AP is reporting in "Car Dealer Apologizes to Schwarzenegger." From the article: "Schwarzenegger sued the auto dealer in 2002, before he became governor, for allegedly violating his right of publicity. A federal appeals court dismissed the case in June, saying California courts had no jurisdiction to hear it because the ads never were shown in California."

Friday, August 20, 2004

Lest You Think the RIAA is Losing... The AP reports that "Music Piracy Lawsuits Wend Through Courts." From the article: "So far, however, record companies are largely winning their cases, according to a review by The Associated Press of hundreds of lawsuits. They did lose a major ruling this week when a U.S. appeals court in California said manufacturers of software that can be used to download music illegally aren't liable, leaving record labels to pursue lawsuits against Internet users."
Grokster Press Round-up. How Appealing has a pretty complete listing of mainstream press coverage here.

Thursday, August 19, 2004

PTO Browser Patent Smackdown. C-Net reports that "Microsoft wins again in Eolas patent dispute." From the article: "In the second of what are projected to be three opinions, or 'office actions,' on the case, the Patent Office rejected all 10 patent claims under review, according to a source familiar with the document. The agency's first office action on the matter came in February." Amazing that mere issuance of a second office action can be considered newsworthy.
Yeah, But Who Received Royalties for Use of the "Thriller" Dance in 13 Going on 30? How Appealing takes note of this recent Second Circuit decision which relates to "several copyright and contract issues relating primarily to dances choreographed by the late Martha Graham."
First There Was Tarnishment, Now There's Trashing... Marty has some interesting observations on the new website here. C-Net reports on the negative reaction that had greeted the campaign in "Real gets flamed over iPod campaign." Guess they didn't realize that people are more protective of Apple and their iPods than my former partners were of their Blackberries...
Expect More Calls for the INDUCE Act Now. The Ninth Circuit today affirmed the lower court's ruling in Grokster. You can read the opinion here. The Berkman Center has a post about the decision here. The AP reports here. C-Net has this report. As always, Copyfight is all over it. Slightly OT theory regarding the push for the INDUCE Act here, a roundup of some posts regarding the Act here, and a New York Times critique here.
Tussle Over 'Rings' Revenue. Reuters reports that "'Rings' Rights-Holder Sues for $20 Million Royalties." From the article: "Movie and music mogul Saul Zaentz has sued the studio behind the hit "Lord of the Rings" movie trilogy for more than $20 million in unpaid royalties, Hollywood trade paper Daily Variety reported on Thursday."
More on Counterfeit Tiffany Goods on EBay. reports in "Tiffany and eBay Clash Over Sales of Fake Goods." From the article: "Tiffany has taken a different tack and says it has a considerably bigger problem. It monitors eBay regularly, using a system its officials declined to describe. In one five-month period it notified eBay of 19,000 efforts to sell suspected fake Tiffany goods, it said in its court complaint, about 125 a day. All were removed by eBay."

Wednesday, August 18, 2004

What's in Your Employment Contract? Salon takes a look at a legal fight over who owns employees' ideas in "We own what you think." (Subscription or day pass required.) From the article:
"What I found most remarkable about Evan Brown's case was that this was the first time an intellectual-property agreement was enforced on something that didn't yet exist," says Lai, who criticized the decision in the Spring 2003 issue of the John Marshall Journal of Computer & Information Law. "I do think it is a big deal because this sets a precedent. It's going to be binding precedent in Texas, and it certainly is something state courts might look at, especially if they have never faced this kind of case."

Tuesday, August 17, 2004

Hands Off Hopkins. The New York Times reports on the latest round of Acacia shakedows in "Internet Patent Claims Stir Concern." (Hopkins is my alma mater.)
Looks Like a Useful Service. From, "Sue a Spoofer Today." I question whether it's really necessary to have a separate trademark registration specifically for your domain name. As long as your company's trademark is incorporated into the domain name, I think you could prove confusing similarity. The cost doesn't seem to be that far out of line (although I question what could possibly be in the "Build My Case" kit for $125). But the website really could stand to be toned down a bit - they're trying a bit too hard, which makes it sound like they're trying to sell you snake oil.

Monday, August 16, 2004

I Guess I Spoke Too Soon. Apparently Warner's dalliance with the MP3 blogs wasn't received all that favorably. Read more in "Warner's tryst with bloggers hits sour note."
No Contributory Copyright Infringement for Credit Card Companies. reports in "Federal Judge Finds Internet Porn Suit Is No Perfect 10." From the article:
"The ability to process credit cards does not directly assist the allegedly infringing Web sites in copying plaintiff's works," according to the decision, which was released Aug. 6. "Defendants do not provide the means for distributing those works to others, nor do they provide bandwidth or storage space with which to transfer or store the works."

Friday, August 13, 2004

Who Knew Librarians Could Be So Uppity? Wired reports in "Copyright Crusaders Hit Schools." From the article: "For the third year in a row, software companies are supplying schools with materials that promote their antipiracy position on copyright law. But for the first time this year, the library association is presenting its own material, hoping to give kids a more balanced view of copyright law."
Right of Publicity Suit Against Outkast to Move Forward. E!Online reports in "Parks Gets Doctor's Note."

Wednesday, August 11, 2004

Sounds Like They Need A Collective or Certification Mark... C-Net reports on a LINUX trademark dustup in Australia in "Torvalds asked to step into Linux trademark fight."
Looks Like the Site has Already Been Taken Down. The AP reports that "Falwell wins Web site ruling." Reviewing the Google cache, I don't think you could seriously argue that consumers would be confused. Instead, I think you would have to rely on an initial interest confusion analysis.
From the World of Bad Puns. Howard reports on a recent Fed Circuit ruling in "Urine trouble."
Where Does Your Town Stand? reports in "Playing Politics With the Patriot Act." From the article: "The Toledo City Council passed Gerken's 'Resolution to Support a Free, Safe and Secure Toledo' on Dec. 9, 2003, by a vote of 10-2, joining a mounting number of towns, cities and states that have spoken out on the Patriot Act. According to the American Civil Liberties Union Web site, 342 localities to date have passed measures opposing the act, which bestowed new powers on federal law enforcement to aid in the fight against terrorism."
Just Like the Energizer Bunny. You can read the latest installment in the Nissan Motor Co. v. Nissan Computer Co. case here. Highlights: use of in connection with automobile-related uses held infringing, other uses held not infringing. Under the Dilution Act, the period from which fame must be measured is the first commercial use of a mark which includes the allegedly famous mark, regardless of whether such usage was confusing or could have been challenged on trademark infringement grounds. (Thus, the relevant usage was the first use of Nissan Computers, not the first use of Finally, an injunction prohibiting the website owner from including links to websites that are disparaging or contain negative commentary about the plaintiff constitutes and impermissible content-based restriction on non-commercial speech, in violation of the First Amendment.
Now For Something Completely Different. A music label encouraging use of its catalogue by an MP3 blog! Glad to say that I've bought a number of Warner Brothers CDs through the years (as the post notes, they're the label for R.E.M., one of my favorite bands). Go, Warner Brothers!

Tuesday, August 10, 2004

Lessig Takes On NBC. Larry has an op-ed in Wired entitled "Copyrighting the President" about NBC's refusal to license a one minute clip from President Bush's Meet the Press interview for use in the upcoming documentary Uncovered: The Whole Truth About the Iraq War.
Like Printing Money... Reuters reoports that "Google to Pay Yahoo to Settle Patent Dispute." From the article: "Google Inc. on Monday again boosted the number of shares it plans to sell in its initial public offering, saying it will issue 2.7 million shares to Yahoo Inc. to settle a lawsuit over technology used to display ads."
Now That's A Movie I'd Take Credit For... Certainly before White Chicks. Reuters reports that "Author ponders lawsuit over 'Village'."

Monday, August 09, 2004

And You Thought the DMCA Was Bad... BoingBoing reports that "Canadian RIAA calls for stronger copyright measures than in the US." From the linked article:
Canada has moved slowly on this issue, however, due in large measure to concerns arising from the U.S. experience. Under the U.S. system, computer-generated notices have become the standard, with errors becoming the norm. For example, notices have been sent to take down a child's Harry Potter book report, a sound recording by a university professor mistakenly identified as a song by a well-known recording artist, and an archive of public-domain films.

In fact, one study of the U.S. experience found that some ISPs receive tens of thousands of notices every month with only a handful actually relating to materials found on their networks.

Sunday, August 08, 2004

We Need A Shepardizing System for UDRP Decisions. Forgive me if this already exists, but I haven't seen it. I just came across a WIPO decision from 2002, PWC Business Trust v. Ultimate Search. If I'm reading this correctly, the panel seems to indicate that the fairly common practice of "parking" a domain name with a search engine or other list of links qualifies as a "bona fide offering of goods or services," so as to demonstrate a legitimate interest in the domain name. If this decision is good "law," it seems like a lot of bad-faith registrants can get off scott free... Although this decision seems to limit it to cases where the domain name involves "descriptive" terms (which actually goes beyond the limitation provided for in one of the cases the arbitrator cites, which approves of this practice with regard to "generic" words).
Required Reading for Every Firm IT Manager. In retrospect, I'm really starting to appreciate some of my previous firm's attempts to deploy technology to increase efficiency and make client interaction easier. I'm not sure it was always implemented in the right way (too much doing something just to do it, without always having a reason; mucked up processes that cast too wide a net rather than a narrowly focused one), but I must say that it was far more flexible in the technological area than my current firm, which locks everything down to the point where you have to have IT intervention to install QuickTime so that you can view a file sent to you by your client... Sigh. Anyway, check out some interesting comments on technology and the practice of law in this week's "Five by Five."
They're Even Reporting on This Overseas. BBC Online reports on the recent Yahoo! lawsuit in "Yahoo sued over anonymous abuse."

Thursday, August 05, 2004

Wading into the Fray. C-Net reports that "State AGs warn file-sharing companies."
France's Antitrust Laws Must Be Less Stringent than the U.S.'s for this to Succeed... C-Net reports in "Virgin: Apple's not playing fair with iPod." From the article: "French online music store Virgin Mega has filed a complaint against Apple Computer, claiming that the company's refusal to license the copy protection technology used in its iPod is harming competition."
On the Patent Risk to Linux. C-Net reports in "Patent problems pester penguin ." From the article: "However, what is unique to free and open-source software is that users are more likely to be called upon to provide their own legal defense against patent claims. Proprietary software users can expect their vendor to provide such legal defense because such legal costs are built into the price of the proprietary license."
Should You Kill Off Your Brands? BrandChannel reports in "Forcing Brands into Early Retirement." One question though: How does one truly "retire" a brand while keeping "[l]egal rights to the discontinued brand . . .lest the dead brand later come back as a rival" without committing fraud on the PTO, or at the very least making it vulnerable to a cancellation proceeding?
This DJ Was Made for You and Me. Wired reports in "JibJabbing for Artists' Rights." From the article: "'This is an important case to set the tone for artists and authors who want to make use of famous works,' said Fred von Lohmann, an attorney with the Electronic Frontier Foundation, which is representing JibJab."
New IP Law Blawg. Mark Partridge of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson has a new-ish Blawg called "Guiding Rights Blog."
Everybody's Ganging Up on Google... reports that "Casino Come-Ons Return Bad Result for Search Sites." From the article:
The plaintiffs firm filed a class action against Yahoo Inc., Google Inc. and 10 other Internet search engines that claims they have been promoting illegal gambling on their Web sites and requests that they fork over the ad revenue.
The complaint, filed Tuesday in San Francisco Superior Court, requests that the search engines put revenue from advertising Internet gambling into a fund that would provide restitution to California Indian Tribes or other licensed gambling businesses in California. The complaint says money in the fund would also go to the spouses of gamblers who have had community property taken away as a result of illegal gambling and to the state treasury.

Not sure I see why the funds should go specifically to legal gambling facilities in California, unless the damages were limited to those revenues received from advertising to California residents.
Talk About High-Stakes Patent Litigation. reports that "Entire District Bench Recused in Murder-for-Hire Case." From the article:
Alsup presided over a patent case that Mohsen lost. After that litigation ended, Alsup found that Mohsen had doctored evidence, and a federal grand jury charged him with perjury. Alsup was also the judge in the criminal case.
Mohsen was in custody and awaiting trial in the criminal case when he allegedly approached another inmate about intimidating witnesses and killing Alsup, according to a federal indictment made public last week.

Wednesday, August 04, 2004

Another Take on the ClearPlay Legislation. The Blawg Channel argues that "We need Moral Rights not morals rights." From the post: "Rather than adopting this act, maybe its time to take responsibility for ourselves and to pass a Moral Rights act (stronger than VARA) that protects the ability of authors to protect the fate of their works from censorship, destruction, modification and infringement. We already have fast forward and skip scene to censor the films ourselves and do not need federal legislation to tell us we can do that."
Go Big Blue. The New York Times reports that "In Competitive Move, I.B.M. Puts Code in Public Domain."
Interesting Questions. Wired reports in "Navigating a Patent Minefield" that "Edwin Stone and Val Sheffield, professors at the University of Iowa, have discovered links between 15 genes and certain eye diseases, which means genetic tests could be developed for the diseases. But often the scientists find the genes or parts of them have already been patented. Any diagnostic test involving a patented gene could infringe on someone's intellectual property."

Tuesday, August 03, 2004

Australia: A Nation of Outlaws (Literally). The Sydney Morning Herald reports in "Click at your own risk." From the article: "Anyone who has copied songs from a CD onto an iPod or computer hard drive has fallen foul of Australian copyright laws, which critics argue are failing to keep pace with technological change. Copying music for personal use is generally OK in the US and Europe. But not in Australia."
More on Apple/Real Dustup. The Boston Globe reports in "Apple's music operation hits a sour note."
So Long, 321. Reuters reports that "Court Bars Sale of 321 Studios Game-Copy Program." From the article: "321 has ceased operations, according to its Web site, and an independent online vendor is running a close-out sale on 321 products not subject to an injunction."
Guess They're Going to Be Collectors Items Now. E!Online reports that "Arnold KOs Bobblehead." Howard has a round-up of relevant posts here.
Why Didn't I Think of This? Reuters reports that "Web Addiction Gets Finnish Conscripts Out of Army." From the article: "Doctors have found the young men miss their computers too much to cope with their compulsory six months in the forces."
Dueling Buzzwords. reports in "Pitching the Patriot Act." From the article: "The Ashcroft Justice Department and the American Civil Liberties Union don't find themselves on the same side of many issues -- least of all the USA Patriot Act. Yet the DOJ and the ACLU Web sites devoted to the controversial law share an ironic symmetry./On the DOJ site, a banner reads 'Preserving Life and Liberty.' On the ACLU site, the motto is 'Keeping America Safe and Free.'"

Monday, August 02, 2004

I Liked the Macintosh. Certainly better that the Windows "blue screen of death"... The New York Times reports in "It's BlackBerry Season, but Maybe Not for Long." From the article: "Today, the BlackBerry faces formidable competition. A well-financed Silicon Valley start-up, Good Technology, has developed software that is arguably superior to BlackBerry's. It is the first to continuously and wirelessly synchronize every module of Outlook, needing no cradle to connect gadget to computer. The BlackBerry has yet to catch up....Danny Shader, Good's chief executive, compares his company with the BlackBerry this way: 'We're a Windows application - they're the Macintosh.'"
This Could Have Interesting Ramifications. C-Net reports that "Symantec sued for labeling product 'adware'."
Wait, it's Tax Free? BoingBoing reports that "Irish RIAA wants more copyright for tax-free artists."
JibJab DJ. Wired reports that "JibJab Asks for Court's Help." From the article: "JibJab Media, a small Web animation outfit, on Thursday asked a California district court to declare that it did not violate the copyrights of Ludlow Music, the owner of Woody Guthrie's song 'This Land is Your Land,' which is the basis of a satirical JibJab cartoon lampooning the presidential candidates." That's a quick turn around for a complaint... Copyfight has more here.
Time to Pay Up. Wired reports that "Canada Music Biz Bites Dentists." From the article: "But dentists like Dean -- who play their iPods, CDs or the radio and broadcast it through the office for patient enjoyment -- are now required to pay licensing fees on the copyright music they play."

Sunday, August 01, 2004

Not Quite What They Bargained For. The AP reports that "copies" of Clinton's autobiography, which in fact contain excerpts from Hillary's autobiography, are on sale in China in "Bogus Clinton Book on Sale in China." From the article: "'There's sort of a habit developed here that anything ... in the print media, is essentially in the public domain and allowed to be `borrowed,' if you will,' said Charles M. Martin, president of the American Chamber of Commerce in China."