Protest DRM?

Boing Boing: Protest DRM in NYC this Saturday!: “On Saturday, at 3pm Free Culture @ NYU in collaboration with will be protesting DRM and the iTunes Music Store at the Apple Store in Midtown Manhattan, which is at 59th St. and 5th Ave.”
If you’re going to spend time and energy protesting, is Apple DRM really the most protest-worthy issue in the world today? Does the fact that Congress is happy to give the President unchecked power to detain and torture? But compared to Congress giving the green light to totalitarianism, is a business decision is such an egregious problem?
New York Times: Antiterrorism Bill on Detainees, Geneva Conventions – Rushing Off a Cliff:

Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.

Law Professors’ Letter Against the Bush-McCain Torture Bill

Taken together, the bill’s provisions rewrite American law to evade the fundamental principles of separation of powers, due process, habeas corpus, fair trials, and the rule of law, principles that, together, prohibit state-sanctioned violence. If there is any fixed point in the historical understandings of constitutional freedom that help to define us as a people, it is that no one may be picked up and locked up by the American state in secret or at an unknown location, or without opportunity to petition an independent court for inspection of the lawfulness of the lockup and of the treatment handed out by the state to the person locked up, under legal standards from time to time defined by Congress. This core principle should apply with full force to all detentions by the American state, regardless of the citizenship of detainees.

Steve Vladeck, National Security Advisors, Is the Analogy to the Alien and Sedition Acts Too Generous?

The MCA, in its current form, would preclude federal jurisdiction over virtually any habeas petition filed by a non-citizen detainee in the war on terrorism. That is, Congress is, for lack of a better word, too scared that the courts might just take issue with such a blatant assault on long-held, well-established conceptions both of individual rights and limitations on governmental power. And so, in one fell swoop, Congress is showing its arrogance all while arrogating what may well be the most important check in our system of checks and balances — the countermajoritarian role of the courts in checking the excesses of the political branches.

Michael Froomkin, Dear Senator Reid, “History will judge you cruelly. The best outcome will be that this is a long bad blip, like the Alien and Sedition Acts, or the Japanese Internment; but the worst outcome is that this becomes emblematic of a turning point in which our Senate, like the Roman Senate before it, presided over a great society’s moral and then political decline.”
Bruce Ackerman, LA Times: The White House Warden – Los Angeles Times:

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops ‘during an armed conflict,’ it also allows him to seize anybody who has ‘purposefully and materially supported hostilities against the United States.’ This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

Dahlia Lithwick, Slate: The Blind Leading the Willing

Passage of the new detainee legislation will be a different sort of watershed. Now we are affirmatively asking to be left in the dark. Instead of torture we were unaware of, we are sanctioning torture we’ll never hear about. Instead of detainees we didn’t care about, we are authorizing detentions we’ll never know about. Instead of being misled by the president, we will be blind and powerless by our own choice. And that is a shame on us all.

Jack Balkin: What Hamdan Hath Wrought: “The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations.”
Aziz Huq, Findlaw Writ: How The Military Commissions Act of 2006 Threatens Judicial Independence

The MCA’s triple assault doesn’t just assail Hamdan, harm the courts, and undercut the abstract principle of judicial independence. It also inflicts collateral damage by degrading America’s reputation for decency and fairness among friends and foes at a time when we need all the allies we can muster. The MCA should not become law – and if it does become law, its patent due process violations should doom it to be struck down as unconstitutional.

Politically easy and correct are not always the same thing. Senate Vote.
The Show with Ze Frank: Obituary: “Habeas Corpus was found dead in his Washington apartment today having been stabbed 65 times in the back. Mr. Corpus leaves behind Mrs. Corpus and three hundred million children. Please send condolences and flowers to yourself.”

Unfortunately, the lawsuit is more entertaining than the band

A quick follow-up to last week’s post about the Supernova injunction. The junior user– the band made up of Tommy Lee, Jason Newsted, Gilby Clarke and winning Rock Star: Supernova contestant Lukas Rossi– will record and tour under the name “Rock Star Supernova.”
(Trademark litigation, reality TV and rock music together in a single story. How can I not blog this to the full extent possible?)

Like two stars colliding… in a courtroom

US District Judge John A. Houston ruled yesterday in favor of Supernova from CyNot3 and granted a preliminary injunction against Mark Burnett and Rockstar Entertainment from “using the mark SUPERNOVA in conjunction with performing rock and roll music, or recording or selling rock and roll music recordings.” Supernova from CyNot3 LLC v. Mark Burnett Productions, Inc., 06-CV-1334, (S.D.Cal., Sep. 12, 2006) (Order Granting Plaintiff’s Preliminary Injunction Motion).
Plaintiff has a valid trademark in SUPERNOVA.
The mark SUPERNOVA is arbitrary with regards to rock music. It requires imagination by the consumer in order to associate with a rock and roll group. The plaintiff does not need to establish secondary meaning in an arbitrary mark to show the validity of the mark.
However, the senior mark user can only assert trademark use in which it has legally sufficient market penetration and a zone of natural expansion. The court found that the plaintiff established substantial evidence of nationwide use of their mark in commerce- nationwide and Canadiian tours in 94, 95, 96, 99 and availability of records on the internet.
The defendants argued that the plaintiffs abandoned the mark by failing to perform live or record new music between 1999 and 2006. The court found that argument unpersuasive, noting that the plaintiffs earned royalties as songwriters, made their records available for sale online and in retail outlets, and took a break to start families, finish educations and catch up on life.
The defendant licensed a Supernova mark from Nasar Abadey, owner of Trademark Reg No. 1,699,491 (the “491 Mark”). The 491 Mark is a work for the phrase “Supernova Multi-Directional Music Ensemble Nasar Abadey.” The court agrees with the Plaintiff’s argument that Defendants have not established any rights outside of the “multi-directional musical ensemble” field (generally known as avant-garde jazz.) The court cites a number of Ninth Circuit cases that found no likelihood of confusion where the music genres differ between the mark holders, including M2 Software, Inc. v. Madacy Entertainment, 421 F.3d 1073 (9th Cir. 2005) (no likelihood of confusion between sports music and interactive music distributors); M2 Software, Inc. v. M2 Communications, L.L.C., 149 Fed.Appx. 612 (9th Cir. 2005) (no likelihood of confusion between interactive music and Christian music distributors) and Echo Drain v. Newsted, 307 F.Supp.2d 1116 (C.D. Cal.2003) (no likelihood of confusion, in part, because of
difference between “funk and groove” and pop music genres. And yes, Jason Newsted was a defendant in that case, too.)
Because the 491 Mark only covers the rights to the Supernova name for the performance of avant-garde music, Abadey could license rights to the mark for the performance of rock and roll music, since those are outside the scope of the rights he holds in the 491 Mark.
Likelihood of Confusion
In order to establish the likelihood of success on the merits for a preliminary injunction, the plaintiffs must establish a likelihood of confusion using the 9th Circuit’s Sleekcraft multi-factor test.

Defendants assert that the marks are “distinctly different” because the band “Supernova from Cynot 3 uses the ‘Supernova’ name exclusively in connection with a band that is from outer space that performs dressed in silver space suits.” Doc. No. 37 at 19 (emphasis in original). In contrast, Defendants’ SUPERNOVA mark is used “exclusively in connection with the Rock Star: Supernova TV series and famous rock musicians Tommy Lee, Jason Newsted, and Gilby Clarke.”

Gilby Clarke is famous?
The court finds that the marks are identical in sight and sound. SUPERNOVA = SUPERNOVA.
The parties’ goods and services are identical or closely related. The defendants assert that space punk music is distinct from “old school rock and roll” and that performing in large arenas and stadiums is distinctly different from playing in small pubs and bars. The court does not buy the argument, finding that a reasonable music consumer treats “space punk” and “old school rock and roll” to be fungible and that both bands draw their customer base from the same pool of consumers. The court finds it reasonable that the defendants will market their SUPERNOVA band through “the internet, commercial venues, such as music stores, as well as through performances at live venues that will advertise its concerts.”
Because Supernova is an arbitrary mark when applied to rock music, the court finds that this factor weighs in favor of the plaintiffs, but it is not a particular significant factor in the Ninth’s Circuit’s likelihood of confusion analysis.
The plaintiff introduced evidence of nine instances of actual reverse confusion among consumers. Venues that booked the plaintiff’s band Supernova received calls and emails inquiring if the Supernova performing at those venues would include Tommy Lee, Jason Newsted and Gilby Clarke. The defendants argue that this indicates that consumers are aware that there are multiple Supernova rock bands and are exercising due care to make sure that they do in fact see (or avoid) the Supernova from TV. The court finds that this evidence of actual confusion weighs heavily in favor of the plaintiffs.
When evaluating the level of consumer care, the court attempts to balance the fact that compact discs are relatively inexpensive (which typically establishes low level of consumer care) against the fact that music consumers are “nonetheless highly knowledgeable about different bands.” This factor weighs slightly in favor of the plaintiffs.
The court finds a likelihood of confusion, and therefore a likelihood of the plaintiff’s success on the merits at trial. Once a senior user has demonstrated a likelihood of success on the merits on a trademark infringement claim, irreparable injury is presumed. A likelihood of success on the merits and irreparable injury? Sounds like the recipe for a preliminary injunction.

Plaintiff’s motion for preliminary injunction is GRANTED. Defendants are enjoined from using the mark SUPERNOVA in conjunction with performing rock and roll music, or recording or selling rock and roll music recordings under the same pending a trial of this action on its merits, or until otherwise ordered by the Court.

The finale of Rock Star: Supernova airs tonight. (The plaintiff and CBS stipulated that the preliminary injunction is not targeted against the production, broadcast or promotion of the Rock Star: Supernova TV series.) Not good timing for Mark Burnett and the members of the band fronted by the winner of the Rock Star: Supernova series.
Previously: Reality TV and the Law.
Elsewehere: Are we there yet?, Penultimate Performances.


In Sunday’s travel section, the NY Times visited Monemvasia, Greece:

MONEMVASIA means “single entrance” and as you cross the narrow bridge separating this fortified fist of land from the southeast tip of the Peloponnesus, you can see why.
Distanced from the ancient glories that unite much of Greece in a dream life of classical antiquity, the cyclamen-swept milelong rock at first looks wild. But follow the thin road edging along Monemvasia’s cliffs, past a sienna-tinged stone hotel and the small cemetery holding the bones of one of Greece’s most popular poets, Yannis Ritsos, born in the town in the early 20th century. Soon you will come to a spiked door of a fortress wall, behind which is a resilient town, rich with remnants of its reign as a main port during the Byzantine, Venetian and Ottoman empires.

Hey, I’ve been there! Last month, in fact. Monemvasia was as fascinating to visit as it is photogenic:
Sailing Away
Wind Star from the summit
More photos from Monemvasia