January 2005 Archives

P2P, go to your room

Charles Cooper, News.com: Why punish the technology?: "In its zeal to put the likes of Grokster and StreamCast Networks out of business, the entertainment industry's challenge might lead to a change in the law that renders potentially important technologies stillborn."

DOJ's hidden library

Robert AmbrogiDOJ's hidden library of legal research: "The U.S. Department of Justice has developed an extensive and extremely useful library of Internet legal research materials, including a research blog, according to Michael Ravnitzky, a lawyer and former colleague of mine at American Lawyer Media. But while DOJ created the library at taxpayer expense, it keeps it closed to public view."

Spy Act Revisted

A new version of the Spy Act, H.R. 29, is in committee. Details later.

Susan Crawford: What's next: Spyware: "Last year spyware legislation overwhelmingly passed the House (399 to 1). The Senate didn't act on it. We're going to see a lot of activity on this front again this year. But I'm not so sure legislation is such a great idea."

Grokster, briefly

Courtesy of Joseph Hall and his RSS mercenary, a RSS feed for MGM v. Grokster from the EFF case archive:

The briefs filed so far include:

Briefs of Petitioners (entertainment companies)

Amicus Briefs Supporting Petitioners

Amicus Briefs Neutral as to Result

Ed Felten looks at briefs submitted by the Solicitor General and a group of "anti-porn and police organizations," Grokster Briefs: Toward a More Regulable Net : "These briefs are caught between nostalgia for a past that never existed, and false hope for future technologies that won't do the job."

Previously: Ninth Circuit Affirms Grokster Ruling (including actual analysis), P2P in the 9th Circuit, Again, NYT on Grokster, Seeking Cert in Grokster, Grokster briefs, Supremes grant cert in Grokster, Grokster, Brand X and the 'Net, Supreme Geekery

In two decisions, the FCC rejected 36 indecency complaints filed by the Parents Television Council:

Isolated uses of the word "dick" or variations thereof as epithets "intended to denigrate or criticize their subjects." Such a use is not sufficiently explicit or graphic to be patently offensive. Similar uses of words "penis," "testicle," "vaginal," "ass," "bastard," and "bitch" are not patently offensive when used in similar capacity. 04-279 at ¶8.

Depictions of partial nudity where sexual and/or excretory organs are "covered by bedclothes, household objects, or pixilation" do not rise to the level of patent offensiveness. 04-279 at ¶9. When partial nudity is a fleeting and rudimentary depiction of "a cartoon boy's buttocks," that material is not sufficiently "graphic or explicit, or sustained, to rise to the level of being patently offensive." 04-280 at ¶9.

Vague references or innuendo to sexual organs or activities are insufficiently graphic or explicit to be considered patently offensive. 04-279 at ¶10, 04-280 at ¶11. Additionally, material that only alludes to sexual activity or depicts men and women engaging in physical activity that implies sexual activity is not sufficiently graphic or explicit. 04-280 at ¶10.

Jeff Jarvis: The Parents Television Council loses one 36: "I have a theory that the people in the FCC -- including even lame prude Michael Powell -- are secretly embarrassed that they have turned themselves into the nation's chief prigs and mouth-washers, that they have kneecapped the First Amendment, and that their tenure will be marked in history for the stupidity of following along with what they thought was a political movement but turned out to be only a few religious nutjobs with no lives. But that's just a theory. If it were true, it would explain how the FCC decided to reject these 36 PTC complaints just as Michael Powell ducks out of office."

Previously: Pixellating a cartoon character's ass

Endangered Gizmos

The EFF released a list of gadgets that have disappeared or may disappear from the market because of lawsuits, the threat of lawsuits, legislation or regulations: EFF: Endangered Gizmos!.

James Fallows examines the Bush Adminstration's approach towards public access to data and supports the position that inexpensive and open access drives to information drives innovation, while a crony capitalist approach, with government sponsored monopoly may stifle innovation. Bush Didn't Invent the Internet, but Is He Good for Tech?

Slate's Explainer explorers whether Doubleday is violating Osama bin Laden's copyrights by publishing a compilation of translated writings by Bin Laden. Osama, Call Your Agent!

Doubleday, an American publishing house owned by German media conglomerate Bertelsmann AG, is planning to release The Al Qaeda Reader in 2006. The book will consist primarily of translated writings by Osama Bin Laden and Egyptian Jihad founder Ayman al-Zawahiri, along with a smattering of other jihadist statements. Is Doubleday violating Bin Laden's copyright?

Joe Gratz takes a look at the practical implications: UBL’s Copyright Infringed?: "But Doubleday could say just about anything they wanted to about their legal justifications for publishing bin Laden and al-Zawahiri’s works, since they’ll never be sued for copyright infringement. It’s obvious that the authors themselves wouldn’t appear in court to sue Doubleday, since they’re all subjects of an international manhunt."

Supreme Geekery

Internet law has a big day on Tuesday, Mar. 29 when the Supreme Court will hold oral arguments for both Grokster and Brand X.

Why Hasn't TiVo Improved?

Are aggressive copyright owners stifling innovation in media technology?

Ed Felten argues that TiVo has eschewed innovation in an effort to placate media companies. Why Hasn't TiVo Improved? "TiVo made a decision, early on, to cozy up to the TV networks, to stay within their comfort zone. But the networks' comfort zone is awfully confining. ReplayTV took a different path, seizing the technological lead with new features that angered the networks; and the networks brought a lawsuit that ReplayTV couldn't afford to defend. At the time, TiVo execs probably chuckled and congratulated themselves for their caution."

In response, PVRblog's Matt Haughey suggests that TiVo
has been chilled from developing innovative new technologies, because anything that helps customers enjoy TV, movies, or music is a target for lawsuits.: "The content company dinosaurs are so wed to their antiquated business models that they'll send off their legal department to attack at the slightest provocation (this includes imagined potential profit losses)."

News.com reports: Google loses trademark dispute in France: "On Dec. 16, a Nanterre court in France ruled that Google infringed on the trademarks of Le Meridien by allowing the hotel chain's rivals to bid on keywords of its name and appear prominently in related search results. Le Meridien had sued Google's French subsidiary on Oct. 25 after failing to reach an amicable agreement, according to court documents."

The decision: Tribunal de grande instance de Nanterre Ordonnance de référé 16 décembre 2004, Hotels Meridien / Google France (in French.) A rought translation is available using Altavista Babel fish.

(via The Trademark Blog.)

Fair Use and Digital Environmentalism

Robert S. Boynton, Righting Copyright: Fair Use and "Digital Environmentalism", Book Forum, Feb/Mar 2005:

 Who owns the words you're reading right now? if you're holding a copy of Bookforum in your hands, the law permits you to lend or sell it to whomever you like. If you're reading this article on the Internet, you are allowed to link to it, but are prohibited from duplicating it on your web site or chat room without permission. You are free to make copies of it for teaching purposes, but aren't allowed to sell those copies to your students without permission. A critic who misrepresents my ideas or uses some of my words to attack me in an article of his own is well within his rights to do so. But were I to fashion these pages into a work of collage art and sell it, my customer would be breaking the law if he altered it. Furthermore, were I to set these words to music, I'd receive royalties when it was played on the radio; the band performing it, however, would get nothing.

(Via Copyfight.)

Culture war at Sony?

The AP reports: Sony Video Chief Admits Strategic Mistakes

Sony missed out on potential sales from MP3 players and other gadgets because it was overly proprietary about music and entertainment content, the head of Sony Corp's video-game unit acknowledged Thursday.

Ken Kutaragi, president of Sony Computer Entertainment Inc., said he and other Sony employees have been frustrated for years with management's reluctance to introduce products like Apple Computer Inc.'s iPod, mainly because the Tokyo company had music and movie units that were worried about content rights.

While the content divisions hoped to lock down content in proprietary formats or in DRM, the electronics developers were prevented from developing the kind of products the market demanded. It sounds like the consumer electronics division is unhappy about ceding the first round in the digital music hardware to Apple.

Copyright and Digital Media Post-Napster

Berkman Center for Internet & Society at Harvard Law School Digital Media Project: Copyright and Digital Media in a Post-Napster World: 2005 Update: "The objective of this White Paper, initially released in August 2003 and updated in January 2005, is to provide a foundation for evaluating key questions facing the different stakeholders in the contentious debate over the future of digital media."

Copyright criminal convictions

Reuters reports: First Convictions in U.S. Peer-To-Peer Piracy Fight: "William Trowbridge, 50, of Johnson City, New York, and Michael Chicoine, 47, of San Antonio, face up to five years in prison and a fine of $250,000 in the criminal convictions stemming from an August raid, the department said late on Tuesday."

In Forbes, David Kusek proposes Music Like Water: "The industry ought to establish a "music utility" approach to the distribution and marketing of interactive digital music, modeled after the water, gas and electricity utility systems. It should be done voluntarily to work best for all parties, or it may eventually be legislated through a compulsory license provision."

via Joe Gratz, who writes: "The news here isn’t the proposal, which follows the Fisher/Netanel mold (collect five bucks from everybody, figure out what everybody’s listening to, divvy up the money among copyright holders). It’s that an ACS proposal was printed in Forbes – a new and potentially powerful type of media exposure."

Microsoft losing war on spam

Salon.com: How Microsoft is losing the war on spam: "Most junk e-mail today emanates from Windows computers that spammers have hijacked and turned into spam "zombies" using security holes in Microsoft's operating system. What's more, Microsoft is blamed for wrecking efforts this past summer to create e-mail authentication standards. The company also stands accused of trying to neuter state anti-spam laws. And Microsoft has yet to win a lawsuit against a major spammer."

McCarthy on Dilution

J. Thomas McCarthy, Dilution of a Trademark, European and United States Law Compared, The Trademark Reporter, International Trademark Association.

This article is a comparison of the laws that govern dilution in Europe and the United States.... While the anti-dilution provisions of Articles 4(4)(a) and 5(2) of the E.U. Directive are “optional,” in fact, every pre-2004 E.U. nation has adopted them in its domestic law. In the United States, since the enactment of the 1996 federal anti-dilution Act, in theory there is a uniform law consistent throughout the nation. The European Directive achieves simplicity by harmonizing statutory dilution law among the European nations. But in the United States, the International Trademark Association (INTA) has opposed the federal preemption of diverse state anti-dilution laws. In the United States there is a confused mélange of some 35 state anti-dilution laws with the federal law superimposed on top.

Is copyright killing culture?

Is copyright stifling creativity? The Globe and Mail: THow copyright could be killing culture

As Americans commemorate Martin Luther King Jr. and his legacy today, no television channel will be broadcasting the documentary series Eyes on the Prize. Produced in the 1980s and widely considered the most important encapsulation of the American civil-rights movement on video, the documentary series can no longer be broadcast or sold anywhere.

See also: Untold Stories


bio-peter.gif Fox pixellated a cartoon character's posterior on a recent broadcast of the Family Guy because of concerns about violating current indecency standards. This episode was a rerun of a cartoon that first aired five years ago without obscuring the cartoon ass. The AP reports: Fox says it pixillated a cartoon rear end because of FCC worries: "We have to be checking and second-guessing ourselves now, and that's really difficult," Fox entertainment president Gail Berman said Monday. "We have to protect our affiliates."

(via BuzzMachine)

>NY Times: Primer Spoof With Yiddish Faces Suit (in English): "Pearson Education, the publishing company that owns the copyright to the Dick and Jane reading primers, has filed a lawsuit against a division of Time Warner in Federal District Court in Los Angeles claiming that the book "Yiddish With Dick and Jane" violates Pearson's copyrights and trademarks for the familiar characters." 7RkYm3r.jpg

The copyright owner argues this is "an unprotected imitation" and not parody because it does not use the copyrighted characters "for the purpose of social criticism." But, in order to be a parody, which is allowed under fair use, the allegedly infringing work must comment on the original work itself, not society as a whole. See Campbell v. Acuff-Rose Music, Inc.. In trademark law, parody fair use is a defense if the parody (commenting on the original work) does not risk a likelihood of confusion. See, e.g. Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Corp., Mutual of Omaha Insurance Co. v. Novak.

Does the parody poke fun at the goyish world of Dick and Jane, or is this not a kosher parody?

Publisher's Weekly describes the book: "Dick and Jane are all grown up, and they're living in the real world-and it's full of tsuris (troubles). That's the premise of this hilarious little book, which functions both as a humorous tale and a genuine guide to a language with a sentiment and world view all its own. "

An excerpt:

See Jane schlep
Schlep Jane, schlep
shlep, schlep, schlep

The disclaimer: "This book is a parody and has not been prepared, approved, or authorized by the creators or producers of the 'Dick and Jane' reading primers."

From McSweeney's, another Dick and Jane parody, The Dick and Jane Reader for Advanced Students.

Here is a list of Common Yiddish Words


A museum guard in NC prohibited an elementary school student from sketching paintings by Picasso and Matisse based on the assertion that such sketching is prohibited by copyright law: Young Prospective Artist Finds Herself in a 'No Sketch' Zone.

In Utah, Pop-up ads not spam

At Findlaw, Anity Ramastry discusses: Why A Utah Court Was Right to Hold That, Under Utah Law, Pop-up Ads Are Not "Spam"

Computer users are often bombarded with annoying pop-up advertisements. Separately, they also are often bombarded with annoying "spam"-- unsolicited commercial email. Can the pop-up ads be thought of, legally, as a form of spam?

According to a January 6 ruling by the Utah Court of Appeals, under Utah law, the answer is no. As a result, consumers cannot use the state's anti-spam statute as a basis for a suit against those responsible for pop-up ads. The decision is significant for, to my knowledge, it is the first of its kind.

Riddle v. Celebrity Cruises, 2004 UT App 487 (Dec. 30, 2004).

Remember to floss

In McNeil-PPC, Inc. v. Pfizer Inc., U.S. District Judge Denny Chin (S.D.N.Y.) granted a preliminary injunction, under §43(a) of the Lanham Act, enjoining Pfizer from advertising that Listerine is as effective as flossing.

The AP reports: Judge: Listerine not same as flossing

Interesting fact: 87% of consumers never floss, despite the advice of dentists.

Jurisdiction in Jersey

Glenn R. Reiser, New Jersey Attorney Law Review Blog: Internet Jurisdiction in New Jersey: "New Jersey recognizes that an interactive web site can establish a basis for jurisdiction over a company who does not have a physical presence in New Jersey."

Previously: Fun with jurisdiction online (includes the best comments exchange EVER.)

(Via TechLawAdvisor.)

Golf and IP

Jay Flemma: How Golf and Intellectual Property are One and the Same: "So how are golf and IP the same? Easy. Each is a microcosm of life in general 1) They are lifelong endeavors at which we will spend our lives becoming 'less dumb.' Look at Tiger and Vijay...they still revamp all aspects of their game knowing full well golf is the game of a lifetime (as they say at the PGA of America) We are forever changing and challenging ourselves which makes us grow as people."

Bloggers legal defense

Mediabloggers.org: Media Bloggers Association Lauches MBA Legal Defense Project and will "build a team of attorneys around the country to provide MBA members with first-line counsel on matters relating to the use of intellectual property, defamation and other issues arising from their weblogging."

Previously: I'll take chilling effects for $1000, Alex

A Lasting Impression

Findlaw's Julie Hilden: The Supreme Court's Recent Decision on Trademark and Fair Use: "In December, a unanimous Supreme Court issued an important trademark ruling. In K-P Permanent Make-Up Inc. v. Lasting Impression I, Inc., the Court, in effect, made it easier for certain parties who are sued for trademark infringement to win their case. In an eloquent opinion by Justice Souter, the Court made clear that the burden those parties must carry at trial is not as demanding as some trademark holders had argued it must be."

Previously: Trademark Fair Use, Trademark Fair Use Goes to the Supremes

The Future of the Internet

Pew Internet & American Life Project: The Future of the Internet: "In a survey, technology experts and scholars evaluate where the network is headed in the next ten years."

Center for Social Media

The Center for Social Media at American University and the Program on Intellectual Property and the Public Interest (PIPPI) at the Washington College of Law released Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers

The study [by Pat Aufderheide and Peter Jaszi] explores the implications of the current terms of rights acquisition on the creative process of documentary filmmaking in today's marketplace, and from them makes recommendations to lower costs and promote creativity. It focuses on the lived experience of independent documentary filmmakers who work primarily within a broadcast environment (sometimes with a theatrical “window”), in coping with the creative challenges created by acquiring and granting rights.

The BitTorrent Effect

Wired: The BitTorrent Effect: "BitTorrent lets users quickly upload and download enormous amounts of data, files that are hundreds or thousands of times bigger than a single MP3. Analysts at CacheLogic, an Internet-traffic analysis firm in Cambridge, England, report that BitTorrent traffic accounts for more than one-third of all data sent across the Internet."


Substantial, non-infringing use of peer-to-peer networks: "This page exists to document instances of substantial, non-infringing use (hereafter SNIU) in peer-to-peer (hereafter P2P) networks."

A monster trademark case

Snow Monsters Battle Monster Cable Over Trademark

Sirdar, the company that created the Snow Monsters skier/rider development program, is seeking a declaratory judgment action for non-infringement and non-dilution of a trademark in Denver Federal Court. Monster Cable, a manufacturer of speaker wire, audio, video and other electrical cables, is trying to claim trademark infringement against Snow Monsters.