August 2004 Archives

German look at Jibjab

INDICARE: Knock out by copyright expiration: The JibJab Media Inc. v Ludlow Music Inc. copyright affair watched from a distance.

Bagged

In Louis Vuitton Malletier v. Dooney & Bourke, Inc. (S.D.N.Y., Aug. 27, 2004), Louis Vuitton, which produces expensive handbags with a distinctive LV logo, brought a suit against Dooney & Bourke which produces expensive handbags with a DB logo under the Lanham Act (for trademark infringement and dilution) as well as NY state trademark infringement and unfair compeition law.

The court denied Louis Vuitton's requeset for a preliminary injunction, finding that federal and NY state trademark law offer no protection for the style of a bag:

Distilling the voluminous submissions to their essence, it is quite clear that Louis Vuitton cannot prevail on its plea for injunctive relief. To hold otherwise would not only contravene settled law, it would grant Louis Vuitton monopoly rights over a “look” – a multicolored monogram against a white or black background. In connection with this motion, the parties have collectively submitted close to 20,000 pages of material. But no amount of expert opinion, legal analysis, or demonstrative evidence can overcome the clarity that comes from direct observation.

Reuters reports: Vuitton Loses Dooney-Bourke Trademark Bid

Not in the law?

In an interview with Engadget's JD Lasica, Jack Valenti offers up the following proposition: "fair use is not in the law."

So, what is 17 U.S.C. § 107, chopped liver?

More from Ernie The Attorney: Jack Valenti says 'fair use is not in the law'

NYT on Grokster

NY Times: EDITORIAL: Grokster and the Information Exchange

But the broader issue is the distribution of information. Software like Grokster creates a network of independent Internet users who can access one another's computer files without going through a central server. (Napster maintained a central server, which made it legally liable in very different ways.) Grokster can certainly be used to swap music illegally. But it can also be used to exchange electronic copies of books already in the public domain, transcripts of Congressional hearings or any number of other legitimate types of information. Much like a VCR that does not distinguish between a pirated tape and one legally acquired, the technology does not care what is shared. It is impossible to strike down software like Grokster for its use in illegal file-sharing without also destroying its capacity for legal and socially beneficial activities.

Paper Trail Chase

One way to increase the accuracy and transparency of direct recording electronic voting machines may be to require a voter verifiable paper trail.

Wired News reports on a new survey which finds that voters want their electronic voting machines to serve paper trails, while earlier surveys found that most voters were unconcerned about the reliability of e-voting: Poll: Voters Want Paper Trail

Perhaps voters have become more informed about the risks of direct ecording e-voting machines. Perhaps this merely reflects the fact that this latest survey was commissioned by Accupoll, a company that sells electronic voting machines which happen to produce a paper trail. It seems like most voters may remain unconcerned about the accuracy or security and reliability, but all things equal, would prefer machines which produce a paper trail.

Voting rights activists are less sanguine about the accuracy and reliability of "black box" e-voting machines which lack paper trail or any kind of external audit mechanism. In Maryland, the Campaign for Verifiable Voting is seeking a court order which will require the state's e-voting machines, of Diebold manufacture, to print a paper audit trail. The Washington Post reports: Md. Machines Seek Vote of Confidence:

Plaintiffs, led by Linda Schade, a Takoma Park activist who helped found a group called TrueVoteMD.org, promise to produce testimony from computer experts and election officials about security vulnerabilities and other shortcomings in machines the state has paid more than $55 million to purchase.

The Maryland lawsuit seeks "to insure the integrity of the November 2004 elections." The Campaign for Verifiable Voting has the complaint and other filings available on its web site.

A federal district judge dismissed the anti-trust portion of Verisign's complaint against ICANN: Verisign v. ICANN.

For background, let me refer you to this article by Jonathan Weinberg in the University of Ottawa Journal of Law and Tech: Site Finder and Internet Governance

On September 15, 2003, VeriSign, Inc., the company that operates the databases that allow Internet users to reach any Internet resource ending in .com or .net, introduced a new service it called Site Finder. Less than three weeks later, after widespread protest from the technical community, at least three lawsuits, and a stern demand from ICANN (the Internet Corporation of Assigned Names and Numbers, which has undertaken responsibility for managing the Internet domain name space), VeriSign agreed to shut Site Finder down.

Verisign then sued ICANN for violating federal anti-trust law and for breach of contract.

Steven Forrest has covered the ruling well: Core Issue Remains As VeriSign vs. ICANN Moves to State Court, Lawsuit Coverage, and ICANN Spin

CircleID: VeriSign's Anti-Trust Claim Against ICANN Dismissed

News.com: VeriSign's antitrust suit against ICANN dismissed

Internet domain name registry VeriSign just can't seem to convince anyone that redirecting misspelled Web addresses to its own site is a good thing.

A federal district court judge on Thursday threw out VeriSign's legal arguments that ICANN's ban on this tactic amounted to a violation of U.S. antitrust law.

ICANN's 85 page report on Sitefinder: Redirection in the Com and Net Domains

In 95 pages, Verisign responds. See also some excerpts and analysis from Steven Forrest: VeriSign Responds to SSAC on SiteFinder Report.

Salty

News.com: Justice Dept. takes P2P with 'grain of salt'

Hewitt Pate, assistant attorney general for antitrust, expressed skepticism toward a bill called the Pirate Act that the Senate overwhelmingly approved in June. It's designed to curb peer-to-peer piracy by threatening individual infringers with civil lawsuits brought by the government.

Dance for hire

Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. (2d Cir., Aug. 18, 2004).

Dances choreographed by Martha Graham after she founded the Martha Graham School and Martha Graham Center are considered works-for-hire and owned by the School and Center. When Graham was employed by the Center to be its artistic director and to create new dances, those works are considered works-for-hire.

The decision includes a handy chart at the end which clarifies the ownership and copyright status of each of the 70 disputed dances.

NY Law Journal: Dances by Graham Held 'Work for Hire' in Ownership Case

Jibjab Settles

EFF: Music Publisher Settles Copyright Skirmish Over Guthrie Classic

Music publisher Ludlow Music, Inc., has officially backed down on its threats against web animation studio JibJab Media Inc. over the widely circulated "This Land" animated parody lampooning President Bush and Senator Kerry. JibJab had responded to Ludlow's threats by engaging the Electronic Frontier Foundation (EFF) to file suit on its behalf in San Francisco on July 29, 2004, seeking judicial confirmation that JibJab's work was a protected "fair use" and did not infringe Ludlow's copyrights.

(via The Importance Of)

Turner misses media regulation

Ted Turner: My Beef With Big Media

If nothing else, the 1990s dot-com boom showed that the spirit of entrepreneurship is alive and well in America, with plenty of investors willing to put real money into new media ventures. The difference is that Washington has changed the rules of the game. When I was getting into the television business, lawmakers and the Federal Communications Commission (FCC) took seriously the commission's mandate to promote diversity, localism, and competition in the media marketplace. They wanted to make sure that the big, established networks--CBS, ABC, NBC--wouldn't forever dominate what the American public could watch on TV. They wanted independent producers to thrive. They wanted more people to be able to own TV stations. They believed in the value of competition.

Required Reading

Judge Richard Posner blogs, sitting in at Lawrence Lessig's.

While he can't talk about pending cases, Judge Posner can revisit Eldred address intelligence reorganization and discuss fair use:

Licensing and Fair Use

the problem for people like Eldred who want to publish old works (works that would have entered the public domain by now were it not for the Act) is transaction costs, not license fees: the costs of locating and negotiating with the current copyright owner. Those costs may well exceed the modest commercial returns from publishing a public domain work (which anyone can copy). The beauty of the old (pre-1976) copyright system, with its requirement of renewal beyond a shortish initial term (like 28 years), was that most copyrights, lacking commercial value by the end of their initial term, were not renewed, and so fell into the public domain, and so licensing costs fell to zero.

Fair Use and Licensing

if someone copies my copyrighted book, that doesn’t interfere with anyone else’s use of the book, or prevent my publisher from continuing to sell copies, though it may reduce his and my income. That’s why “theft” of intellectual property, and such synonyms as “piracy,” are merely analogies, and often misleading ones. It’s hard to see how I could benefit from someone taking a joyride in my car without my permission, but easy to see how I could benefit if a reviewer of one of my books quoted a paragraph of the book in his review without having to get my permission (which would undermine the credibility of the review).

Fair Use Elaborated

The fair use doctrine originated as a judicial doctrine, and like many judicial doctrines was general in terms, setting forth a standard rather than a set of precise rules. Congress put a clumsy thumb in the pudding in 1976, when it “codified” the doctrine. It wasn’t really codification, because Congress did not set down a legislative rule to supplant the judicial one; it just listed four factors for courts to consider, and it made clear, as is sometimes overlooked but as I tried to make clear in my opinion in one of my court’s countless (and fascinating) “Beanie Baby” copyright cases, Ty, Inc. v. Publications Int’l Ltd., that the four factors are neither exclusive nor mandatory.

DRM Blog

The DRM Blog. Should be self-explanatory.

Yahoo and the crepes of wrath

In Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, the Ninth Circuit held that US courts have no personal jurisdiction over two French groups which obtained a judgment in France prohibiting Yahoo from holding auctions of Nazi memorabilia under French law.

Law.com: On Appeal, Anti-Nazi Groups Topple Yahoo

Susan Crawford: Ninth Circuit Gets It Wrong in Yahoo!

Although the Grokster opinion was clearly right, yesterday's Yahoo! decision [pdf] is weak as a matter of both law and policy.

We have declaratory judgment proceedings to avoid the situation where someone who is acting like they want to enforce their rights can constrain the activities of someone else.The court can issue a declaration saying "yes, these rights should be enforced," or "no, these rights shouldn't be enforced," without waiting for the threatening actor to actually ask for their rights to be enforced.

US is source of spam

BBC News: US tops league of e-mail spammers

Almost 43% of all unwanted e-mails originated from the US in the last month, said anti-virus firm Sophos.

The report suggests that anti-spam laws passed in the US nine months ago have had little impact.

Counterfeit Auctions

Law.com: Tiffany and eBay Clash Over Sales of Fake Goods

Tiffany and Co. is complaining, but not to the FTC. The luxury goods manufacturer has sued eBay in the Southern District of New York in Tiffany (NJ) Inc. v. eBay Inc., accusing it of trademark infringement by facilitating and promoting the sale of tens of thousands of pieces of counterfeit Tiffany jewelry. The fakery has eroded the reputation of the 150-year-old Tiffany brand, the company says.

In my country, there is treaty

IPKat reports that Kazakhstan has ratified the WIPO Copyight Treaty and the WIPO Performances and Phonograms Treaty. Both teaties come into foce on November 12, 2004. Kazakhstan Comes in out of the Cold

In addition to the home of Borat, Kazakhstan is a modern country with thousands of years of history and a rich and diverse culture.

Are Gambling Ads Protected Speech?

NY Times: Lawsuit Claims Free Speech for Online Casino Ads

The lawsuit, filed on Aug. 9 by Casino City Inc., which operates CasinoCity.com, an online casino directory, charges that the Justice Department violated the Constitution by threatening American publishers with criminal penalties if they broadcast, print or display advertisements for gambling Web sites. The company is asking the court to issue a declaratory judgment that advertisements for online casinos are constitutionally protected speech.

Tapping VoIP Isn't Cheap

NY Times: The Call Is Cheap. The Wiretap Is Extra.

At first glance, it might seem like the simple extension of a standard tool in the fight against the bad guys.

But in fact, wiretapping Internet phones to monitor criminals and terrorists is costly and complex, and potentially a big burden on new businesses trying to sell the phone service.


Shhh. It's a secret!

AP: E-Vote Machines: Secret Testing

The three companies that certify the nation's voting technologies operate in secrecy and refuse to discuss flaws in the ATM-like machines to be used by nearly one in three voters in November.

Geographic location dot com

E-Commerce News: Domain Name Geography: Mexico Loses Fight over Mexico.com

In a recent decision, a World Intellectual Property Organization (WIPO domain name arbitration panel dismissed a complaint filed by the Mexican Tourist Board (MTB) against Latin America Telecom (LAT) concerning the domain name "mexico.com." The panel went so far as to find that the complaint was brought in "bad faith" and made a finding of attempted "Reverse Domain Name Hijacking" against the MTB.

(via The Trademark Blog)

Interesting Intersecting

Erik J. Heels has some interesting News and Commentary about Law, Technology, and their Intersection which ties together a number of the threads in current law and technology issues. An interesting read.

Ninth Circuit Affirms Grokster Ruling

The Ninth Circuit Court of Appeals affirmed that P2P has substantial noninfringing uses and that Grokster and Morpheus are not contributorily or vicariously liable for copyright violations ocurring by users of their software. Metro-Goldwyn-Mayer v. Grokster (Aug. 19, 2004).

P2P is capable of non-infringing use:

One striking example provided by the Software Distributors is the popular band Wilco, whose record company had declined to release one of its albums on the basis that it had no commercial potential. Wilco repurchased the work from the record company and made the album available for free downloading, both from its own website and through the software user networks. The result sparked widespread interest and, as a result, Wilco received another recording contract. Other recording artists have debuted their works through the user networks. Indeed, the record indicates that thousands of other musical groups have authorized free distribution of their music through the internet. In addition to music, the software has been used to share thousands of public domain literary works made available through Project Gutenberg as well as historic public domain films released by the Prelinger Archive. In short, from the evidence presented, the district court quite correctly concluded that the software was capable of substantial noninfringing uses and, therefore, that the Sony-Betamax doctrine applied.

the Copyright Owners argue that the evidence establishes that the vast majority of the software use is for copyright infringement. This argument misapprehends the Sony standard as construed in Napster I, which emphasized that in order for limitations imposed by Sony to apply, a product need only be capable of substantial noninfringing uses...In this case, the Software Distributors have not only shown that their products are capable of substantial noninfringing uses, 10 but that the uses have commercial viability. Thus, applying Napster I, Napster II, and Sony-Betamax to the record, the district court correctly concluded that the Software Distributors had established that their products were capable of substantial or commercially significant noninfringing uses. Therefore, the district correctly reasoned, the Software Distributors could not be held liable for constructive knowledge of infringement, and the Copyright Owners were required to show that the Software Distributors had reasonable knowledge of specific infringement to satisfy the threshold knowledge requirement.

The court relies on the difference in software design to contrast Grokster and Streamcast with Napster. P2P applications may use one of three possible approaches for indexing files: a centralized index server; a completely decentralized system, where each node provides an index of its own files; and finally a supernode system, which uses certain nodes in the network to create an index of the files served by computers in a part of the network. Napster maintained a centralized indexing server of files available on the network and required a username and password to log onto that central server. Grokster (which uses the FastTrack network) uses a supernode system. Streamcast (based on the Gnutella network) uses a completely decentralized system. Neither Streamcast nor Grokster maintain control over the indexing files.

In the context of this case, the software design is of great import. As we have discussed, the software at issue in Napster I and Napster II employed a centralized set of servers that maintained an index of available files. In contrast, under both StreamCast’s decentralized, Gnutella-type network and Grokster’s quasi-decentralized, supernode, KaZaa-type network, no central index is maintained. Indeed, at present, neither StreamCast nor Grokster maintains control over index files. As the district court observed, even if the Software Distributors “closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.” Grokster I, 259 F. Supp. 2d at 1041. [7] Therefore, we agree with the district court that the Software Distributors were entitled to partial summary judgment on the element of knowledge.

As indicated by the record, the Software Distributors do not provide the “site and facilities” for infringement, and do not otherwise materially contribute to direct infringement. Infringing messages or file indices do not reside on defendants’ computers, nor do defendants have the ability to suspend user accounts.

Finally, the court notes that the institutional competence to regulate new technologies which impact the copyright regime falls in Congress, not in the courts:

Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through wellestablished distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.

Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, “The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.” 464 U.S. at 456 (quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972)).

Proponents of the IICA may see this as a call to action for why new legislation is necessary as soon as possible. Opponents of the IICA may see a reason for a slow and deliberate process to determine whether new legislation is necessary and what form of that legislation will provide the most equitable balancing of interests between copyright owners and technological innovators.

Update (Aug. 20):
Links, we've got links:

Ernest Miller has the definitive comprehensive roundup as well as some typically sharp analysis: Grokster Wins Big in 9th Circuit

Fred von Lohmann (who argued the case before the Ninth Circuit) has More on MGM v. Grokster Ruling

Howard Bashman links to the press coverage: "File-Sharing Sites Found Not Liable for Infringement"

Scrivener's Error: [Expletive Deleted] Headline Writers!: "where does this leave us? It does not, contrary to headlines that I have already seen, mean that "file-sharing software is legal." It means that the plaintiff record companies didn't (not necessarily couldn't—just didn't) establish intent in the same way as was done in Napster."

Tim Wu: Grokster Wins and Cert?

Derek Slater: Grokster Leftovers

IP News Blog: The EFF wins Grokster; A good day with possible consequences?: "In the grand scheme of things, doesn't this just promote further efforts by Orrin Hatch and others to ban P2P through federal legislation?"

I posted a very similar entry at the Induce Act blog which goes on to discuss some potential effects on the IICA legislation.

News.com: Judges rule file-sharing software legal

Law.com: In Victory for Grokster, Peer-to-Peer Wins at 9th Circuit

NY Times: File-Sharing Sites Found Not Liable for Infringement

Update (8/22): Kevin Heller posted the MGM v. Grokster opinion as hypertext

Jim Griffin: Why Big Media Should Raise a Toast to the Grokster Decision

Spectrum as a public good

Clay Shirky: The Possibility of Spectrum As A Public Good

This matters, a lot, because with the spread of unlicensed wireless, the FCC could live up to its mandate of managing spectrum on behalf of the public, by allowing for and even encouraging engineering practices that treat spectrum itself as a public good. A public good, in economic terms, is something that is best provisioned for everyone (an economic characteristic called non-excludability) and which anyone can use without depleting the resource (a characteristic called non-rival use -- individual users aren't rivals for the resource.)

Caller ID for E-Mail Patented?

InternetNews.com: Microsoft Faces Patent Lawsuit Over Caller ID for E-Mail

F. Scott Deaver, owner of Failsafe Designs, says Microsoft is guilty of the "outright theft" of his product name and intellectual property (IP), and will seek legal and financial redress from the Redmond, Wash., software giant and anyone else that uses his technology that verifies e-mail is coming from the domain it claims.

Spynet Tap

Newsweek looks at possible effects of the Councilman decision and the FCC ruling that VoIP services must comply with CALEA: Wiretapping the Web

As if hacking worries weren't enough, two recent legal developments have raised further fears among Web privacy advocates in the United States. In one case, the Federal Communications Commission voted 5-0 last week to prohibit businesses from offering broadband or Internet phone service unless they provide Uncle Sam with backdoors for wiretapping access. And in a separate decision last month, a federal appeals court decided that e-mail and other electronic communications are not protected under a strict reading of wiretap laws. Taken together, these decisions may make it both legally and technologically easier to wiretap Internet communications, some legal experts told NEWSWEEK. "All the trends are toward easier to tap," says Kevin Bankston, an attorney at the nonprofit Electronic Frontier Foundation.

Confusing Fried Consumers

NY Times: Chicken Little

Kennedy Fried Chicken is a New York-born outfit that is owned and operated largely by Afghan immigrants, and its shops are typically found far from the well-traveled canyons of Manhattan - on Webster Avenue in the Bronx; in Flatbush; near the Queens Plaza subway station. Devotees say Kennedy serves a good bird, not too oily, not too dry. But its true notoriety comes from being a kind of second-rate imitation of the popular Kentucky Fried Chicken chain, right down to the same red and white colors and those familiar initials.

Such similarities could naturally lead Kennedy Fried Chicken to be confused with the other KFC. But not if the original KFC can help it; that company filed a lawsuit in New York federal court in 1990 for trademark infringement, and continues to pursue legal action today. Responding to a recent query, Kentucky Fried Chicken said in a statement that it was "aggressively pursuing the cessation of all confusingly similar use of the famous KFC trademarks and trade dress by Kennedy Fried Chicken."

Elvis has left the building

Index on Censorship: Isn't 50 years of copyright enough?

Twenty-seven years after his death, Elvis Presley is still climbing the charts. The track that is credited with giving birth to rock and roll, That's All Right, reached number three last month, fifty years after it was first recorded in Memphis ' Sun Studios.


For most record buyers the track was just a nostalgic trip. But to record industry officials it is a "call to arms"?. For on 1 January 2005, this seminal recording will drop out of copyright and into the public domain.

Crusade

Wired News: Copyright Crusaders Hit Schools

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.

Brand overcontrol

Olympian struggle

Strict regulations published by Athens 2004 last week dictate that spectators may be refused admission to events if they are carrying food or drinks made by companies that did not see fit to sponsor the games. ...

An official familiar with the restrictions said: "We have to protect official sponsors who have paid millions to make the Olympics happen. There will be cases of individual spectators being allowed in wearing a T-shirt bearing the logo of a rival sports brand but anyone who tries to practise ambush marketing will be removed."

CBO on Digital Copyright

Congressional Budget Office: Copyright Issues in Digital Media

Rapid technological progress in information technologies poses new issues for copyright law. Today, a digital file can be copied and instantaneously distributed worldwide through the Internet, thus potentially depriving the copyright holder of revenue from licensed sales. As a result, holders of copyright on creative works in digital format are contesting the right of consumers to make personal copies of copyrighted materials. At the same time, consumers are beginning to chafe at copyright owners' use of digital technologies to prevent or deter copying and other unauthorized uses of copyrighted works.
(via Dan Fingerman)

One Million iTunes

Apple: iTunes Music Store Catalog Tops One Million Songs

The iTunes Music Store now has over one million songs available for download in the US, becoming the first and only online digital music service to offer consumers a million song catalog. The iTunes Music Store features music from all five major record labels and over 600 leading independent labels from around the world. With more than 100 million songs downloaded and more than 70 percent market share of legal downloads for singles and albums, the iTunes Music Store is the world’s number one online music service.

Canada: Take Notice

Michael Geist discusses the potential implications of a notice and takedown regime in Canadian copyright law: A blueprint for better copyright law

While the U.S. [notice and takedown] system is bad, CRIA has recommended that Canada adopt a framework that is even worse. Richard Pfohl, CRIA's general counsel, recently lauded the U.S. system but urged Canada to go further by recommending the adoption of what is best described as a "notice and termination" approach. According to Pfohl, if an ISP permits a subscriber to use a peer-to-peer service and they receive a notification that the subscriber is offering copyrighted works for download, then "the ISP ought to kick that subscriber off the system."

Hybrid Disc Holdup

Reuters: Record Industry Faces Duel Over New 'DualDiscs'

Plans to sell new hybrid CD/DVDs have hit legal and licensing snags that threaten to scuttle a mass rollout that the hard-hit music industry had been counting on to aid its recovery, people familiar with the matter said this week.

Ex-Parrot, er, X-Patent

NYT: Lawyers Unearth Early Patents

The Patent and Trademark Office has issued nearly seven million patents; the first 10,000 are known as the X-patents. They were issued from July 1790, when the United States patent system was created under an order signed by George Washington, to July 1836, when every one of them burned in a fire. Virtually every patent is available to the public on paper, microfiche, CD-ROM and the Internet - except the X-patents.

Caution: Merge Ahead

In Pivot Point Int'l, Inc. v. Charlene Products, Inc., the Seventh Circuit examines the merger doctrine and conceptual separability as manifested in mannequins:

Conceptual separability exists, therefore, when the artistic aspects of an article can be “conceptualized as existing independently of their utilitarian function.” Carol Barnhart, 773 F.2d at 418. This independence is necessarily informed by “whether the design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences.” Brandir, 834 F.3d at 1145. If the elements do reflect the independent, artistic judgment of the designer, conceptual separability exists. Conversely, when the design of a useful article is “as much the result of utilitarian pressures as aesthetic choices,” id. at 1147, the useful and aesthetic elements are not conceptually separable.
The court ultimately holds that the mannequins are sufficiently creative and divorced from mere functionality to deserve copyright protection.

Does the conceptual separability doctrine conflict with innovative design? Doesn't the copyright lawyer's requirement for conceptual separability inhibit the designer's work to achieve the simple elegance of form following function?

(via Guiding Rights)

Flamewar Lawsuit

Retuers: Calif. Lawyer Sues Yahoo Over Message-Board Posts

A California lawyer who has waged an ongoing battle with Yahoo Inc. over personal attacks made against him on Yahoo message boards has filed a proposed class-action lawsuit against the company.

The suit, filed in Los Angeles Superior Court on Wednesday by associates of corporate attorney Stephen Galton, claims Yahoo has unfairly protected people who post negative messages on its bulletin boards and falsely advertised that it prevents such abusive messages.

A class action suit?

While this action is governed by California law, note that under Federal law, the ISP safe harbor in 47 U.S.C. §230 would probably protect Yahoo! from liability for defamation. The safe harbor provision essentially exempts internet service providers from liability for content posted by third parties, even if the ISP acts with some level of control. See Zeran v. America Online and Blumenthal v. Drudge.

Three From the FCC

The Commission allows TiVo to deploy the TiVo to Go service, which was found to comply with the broadcast flag provisions, along with 12 other technologies: FCC Approves Digital Output Protection Technologies and Recording Method Certifications. Ernest Miller is less than thrilled: FCC Bestows Its Blessing on Technological Innovation.

The FCC announced a do-not-spam registry for mobile phone e-mail domains:FCC Takes Action to Protect Wireless Subscribers From Spam. This may protect mobile phone subscribers from receiving spam emails to their mobile phones, but will not prevent SMS spam.

Finally, the FCC initiated a set of rule-making procedures to require broadband and VoIP telephony to comply with CALEA: FCC Adopts Notice of Proposed Rulemaking and Declaratory Ruling Regarding Communications Assistance for Law Enforcement Act.

Popping Fresh

In Findlaw's Modern Practice, Jason Allen Cody discusses Pop-Up Ad Litigation Strategy: Forums, Claims and Defenses

Summary of Pop-Up Advertising Cases
Washington Post v. Gator U-Haul v. WhenU.com Wells Fargo v. WhenU.com 1-800 Contacts v. WhenU.com
Date 7/02 9/03 11/03 12/03
Court E.D. Va. E.D. Va. E.D. Mich. S.D.N.Y.
Disposition granted π's motion for a preliminary injunction granted Δ's motion for summary judgment denied π's motion for a preliminary injunction granted π's motion for a preliminary injunction
Copyright Infringement yes no no no
Trademark Infringement yes no no yes
Trademark Dilution yes no no n/a
Initial Interest Confusion Doctrine no no no. refused to apply yes. pop ups diverted & distracted website consumers
Use in Commerce yes (implied) no no yes
Fair Use no n/a yes. comparative advertising no
Survey Used

yes. indicated 66% consumer confusion, but no analysis as to weight given n/ayes, but unreliable yes. suggested initial interest confusion, but ultimately unreliable

The key difference between the 2003 case where the website owner obtained a preliminary injunction (1-800 Contacts) and the other 2003 cases may not be the result of the choice of forum as the legal theories relied upon and the facts presented to the court in each case.

Note that Wells Fargo relied on the survey evidence prepared for 1-800 Contacts. Even though that survey evidence was not reliable, at least it was prepared for the 1-800 Contacts litigation.

Additionally, 1-800 Contacts sued not only WhenU, but also VisionDirect, who advertised on WhenU. VisionDirect's cybersquatting on the www1800contacts.com domain name provided an indication that VisionDirect hoped to profit off of consumer confusion with 1-800 Contacts and likely purchased advertising on WhenU in order to place ads over the 1-800 Contacts web site.

Website owners who seek to stop pop-ups should look for examples of behavior by advertisers seeking to profit off of the website and trademark owner's goodwill.

(via The Trademark Blog)

Copyright at the online grocery story

The Second Circuit discusses whether online grocery store listings are copyrightable in MyWebGrocer v. Hometown Info.

Keying Trademark

PublicCitizen.org filed an amicus brief supporting the principle that keyword advertising does not infringe on trademark rights.

News.com reported on the lawsuit back in May: Geico sues Google, Overture over trademarks

Flying the Broadcast Flag

Washington Post: TiVo vs. the Broadcast Flag Wavers

TiVo, the company that makes the digital-video-recorder boxes that inspire such strange idolatry among their users, is in a weird spot. It's asking the Federal Communications Commission for permission to add a new feature -- the option for a TiVo user to send recorded digital TV programs via the Internet to nine other people.

Previously: MPAA, NFL flag TiVo (with links to FCC filings)

Spam Conference

LawMeme's Rebecca Bolin visited the Institute for Spam and Internet Public Policy (ISIPP) conference on spam: International Spam Law and Policies: The Global Case

Don't call us 'adware'

News.com reports: Symantec sued for labeling product 'adware': "A small San Diego software company is suing Symantec, claiming that the computer security giant is driving away business by unfairly lumping it in with spyware distributors."

Dentists Drilled for Royalties

In Canada, music played throughout a dentist's office may be considered a public performance for royalty collection purposes. Wired News reports: Canada Music Biz Bites Dentists

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. The Society of Composers, Authors and Music Publishers of Canada, or SOCAN, recently started enforcing the rule. Dean, who is also president of the Canadian Dental Association, first heard about the fee in September, as members of the professional group were notified by SOCAN.

Real Useless

Besides the potential legal threat from Apple, Real may have a bigger problem with Harmony, its DRM transcoding software: the software may not work as advertised. Julio Ojeda-Zapata unsucessfully attempted to use Harmony

It detected both of my loaner iPods (a mini and the just-released full-size model with a mini-like scroll wheel) just fine, but a song purchased on the RealPlayer Music Store wouldn't sync over to either player. I kept getting a "(clip) not supported by device" error message.
(via Engadget)

Previously: Hey! You! Get off of my Pod!

JibJab Goes to Court

EFF (who represents JibJab) reveals: JibJab Files Suit in order to obtain a ruling that its "This Land is Your Land" animation is parody (and a fair use) rather than copyright infringement.

Wired News: JibJab Asks for Court's Help

n the complaint filed Thursday, JibJab asked a district judge to issue a judgment to clarify the copyright issues between JibJab and Ludlow Music -- essentially asking the judge to tell Ludlow to leave JibJab alone.

Ernest Miller: JibJab Files Lawsuit for Right to Distribute Parody?

Previously: This Use is Fair Use, Link Roundup, and Post Hoc Parody

Spyware Blog

Spyware Warrior discusses spyware-related news and tips on how to deal with spyware.