December 26, 2004

Jim Walsh on the iPod’s Cultural Import

Jim Walsh of the Minneapolis alt-weekly the City Pages has this rather beautiful column on the ways the iPod and iTunes foreground music in the lives of their users.

The “record player” is now the size of an Altoids box, and what that means is that come Saturday, four million free spirits who very likely don’t own a turntable will ignore the puritans who would dismiss the iPod as trendy or tinny. They will hit “shuffle,” wait for the universe to play mix-tape master, and allow their inner Greil Marcuses to suss out the secret link between Neko Case’s rave-up of the old spiritual “This Little Light of Mine (I’m Gonna Let It Shine),” Hilary Duff’s “Haters,” and the Midnight Evils’ “Go, Motherfucker, Go.”

In her 1984 book Software for People, electronic music pioneer Pauline Oliveros wrote about the way the then-new Walkman changed its users’ relationship with the sonic world around them. She argued that the ability to choose ambient sounds at all times meant losing the serendipitous beauty of the sound environment.

The end of Walsh’s column shows the flip-side of Oliveros’ concerns, borrowing (serendipitously? subconsciously?) her software metaphor:

It means that four million people will be giving, receiving, listening to, and talking about music on Saturday, and what that means is that four million minds and hearts will be reconfigured like so much upgraded software, and the truth is, what that means is we have no idea what that means. Yet.

The Onion on Privacy Watchdogs

Proof that privacy watchdog groups like EPIC have truly arrived? This week’s Onion makes fun of them in an article titled “Privacy Advocates Refuse To Release New Report.”

Fear of Realtors

I thought it was too trademark-geeky to mention, but this post on The Trademark Blog hit it right on the head:

If you saw the Lemony Snicket movie and you are a trademark lawyer that can’t leave work at the office, then you laughed at the Realtor gag and wondered if the NAR [National Association of Realtors, which has been getting into numerous situations like these] would write a nasty letter to the film’s producers because it used REALTOR as a generic term.

Incidentally, it’s a great movie (and, in my case, an unusual opportunity to explain genericide to my little brother).

December 24, 2004

Seasonal Brevity (And Levity)

This brief filed a few days ago by Michael Lynn of Lynn Tillotson & Pinker is an instant classic. Who knew Akin Gump was the Grinch?


This blog will be on hiatus until January 7th. I wish you a happy 2005. In the holiday spirit, you may wish to send lumps of coal (literally) to the RIAA and MPAA by donating to IPac, the EFF, or Public Knowledge.

I won’t be able to review my top ten albums of the year as I did last year. However, here are some of my favorite 2004 releases:

  • DJ Danger Mouse – The Grey Album
  • Magnetic Fields – i
  • A.C. Newman – The Slow Wonder
  • Sarah Harmer – All of Our Names
  • Rilo Kiley – Less Adventurous
  • Elliott Smith – From A Basement On the Hill

All but the Grey Album are available via the usual legal music services; the Grey Album is available here.

December 15, 2004

Google Wins Geico Trademark Case

According to this AP story, United States District Judge Leonie Brinkema has granted partial summary judgment in favor of Google. She ruled that while Geico could go forward with its trademark claims in those cases where Google ads actually contained the word Geico, Google is not liable when Geico’s competitors’ ads are merely triggered by the presence of the word Geico in search queries, search results, or web pages.

Since advertisers control the text of the ads, the remaining issue — liability for use of the word “Geico” in competitors’ ad copy — will come down to whether Google knew that Geico’s trademark rights were being violated (if advertisers’ use of the word “Geico” was indeed infringing).

Congratulations to Mike Page of Keker and Van Nest and the rest of the Google legal team for winning this early battle.

December 14, 2004

Aharonian: Software Copyrights Unconstitutional

Long-time intellectual property gadfly Greg Aharonian has filed Aharonian v. Ashcroft (N.D. Cal., Case No. 5:04-cv-05190), apparently seeking a declaration that software copyrights are unconstitutional or otherwise invalid. (I can’t say for sure, since the complaint isn’t up on PACER yet; I’m going on this Reuters report.)

He’s been making these arguments on various IP listservs for years, and has a lot of expertise for a non-lawyer. Whether he’ll be able to navigate the vagaries of constitutional litigation pro se is uncertain, though he did write this do-it-yourself guide to filing constitutional cases.

He appears to be arguing that copyright laws, as applied to software, are void for vaugeness and thus unconstitutional under the Due Process Clause. This is not a winning theory. Just because the Supreme Court hasn’t yet decided which infringement test (Whelan or Altai or something else) applies for computer software doesn’t mean we’re completely at sea. I’ll be interested to read the complaint when it’s available.

UPDATE: The complaint is available. It’s no better than expected. Unsurprisingly for a pro se constitutional litigant, his complaint is long on argument and short on factual allegations. And his theory — that software copyright is void for vagueness — is simply not going anywhere. Just because the applicable tests are confusing and often require expert testimony doesn’t mean they are unconstitutional. I like his idea of filtering patentable material, though constitutional litigation is not the forum in which to have such a rule implemented. (Also, note to future pro se constitutional litigants: don’t make up your own citation style. It just reminds us you’re not a lawyer every time you cite to authority.)

Google To Digitize World’s Libraries

This New York Times article by John Markoff and Edward Wyatt confirms what we’ve been strongly suspecting for some time: Google has plans to digitize large portions of the holdings of several of the world’s major research libraries in the coming years. Public domain materials will be available in their entirety, and the article hints that short excerpts from materials still under copyright will be available.

This is great news. Having this material available has the potential to place in the foreground the importance of the public domain. Further, Google may have the resources and incentive to figure out comprehensively which post-1923 books are already in the public domain for failure of formalities.

It will be interesting to see how Google and the libraries plan to justify digitizing entire copyrighted books without a license. Even if they’re not included in the public database, merely digitizing them involves making one or more unauthorized copies. I’m sure they have a plan; my plan might be to make deals with all the copyright holders you can find, then just digitize the whole thing and settle with any copyright holders you couldn’t find. But that might be expensive, even for Google.

December 10, 2004

Neil Turkewitz of the RIAA on Copyright Policy

Neil Turkewitz, Executive Vice President of the RIAA, wrote this essay titled “Copyright, Fair Use and the Public Interest”. In it, he explains why he thinks strong copyright is in the public interest and why he thinks copyfighters have it all wrong.

The thing is, apart from his extremely inaccurate characterizations of the positions of Lessig and the EFF, there’s not much to disagree with in the essay. Take those out and you’ve got a nice, noncontroversial copyright piece.

What this piece really showed me is that there are at least some smart copyright maximalists out there who fundamentally misunderstand the copyright minimalist position. To my knowledge, nobody’s arguing that all of the people uploading and downloading MP3s of major label content on P2P networks are engaging in fair use, or engaging in some expressive activity privileged by the First Amendment. Larry Lessig certainly isn’t. But Turkewitz seems to think he is, and it’s no surprise that Turkewitz is able to handily knock down the straw man he’s built.

Certiorari Granted in Grokster

The Supreme Court has decided to review the Ninth Circuit’s decision in Grokster. This is, on balance, marginally bad news; we might win bigger, but we might lose altogether. On the plus side, we get to see Fred von Lohmann go before the Justices, which should be fantastic.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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