January 31, 2005


A potentially rhetorically useful observation:

Lessig has been talking lately about how “fair use is the right to hire a lawyer”, meaning that the application of the Fair Use Doctrine is so unpredictable and uneven that prospective fair users without lawyers can seldom be certain that they’re applying the doctrine properly. Further, even if the user applies the doctrine properly, the analysis is sufficiently fact-intensive and subjective that a copyright holder will generally have a legally cognizable claim against even a legitimate fair user. The fair user will sometimes have to hire a lawyer to defend an infringement suit even if they’ve done everything right. Knowing this, even legitimate fair use is likely to be chilled by the risks involved.

Is it not fitting, then, that the Fair Use Doctrine fits the acronym FUD?

Bellsouth C&D’s Bellster

Since I follow both VoIP and trademark law, this development is of particular interest. The Bellsouth Intellectual Property Management Corporation has told Bellster, a new VoIP network, that its name infringes Bellsouth’s “BELL” mark. Bellster is a coordination service which will allow VoIP enthusiasts who run their own home telephone switches to barter calling minutes — so, for instance, if I live in Minneapolis and you live in Cairo and we’re both signed up on Bellster, my calls to Cairo will be routed through your phone line when you’re not using it, and your calls to Minneapolis will be routed through mine.

The likelihood of confusion between the marks is low; though both include the letters “BELL” and both are phone services, the VoIP enthusiasts using Bellster are particularly likely to be sophisticated consumers of telecommunications services and will know very well that Bellster is not affiliated with any of the Baby Bells.

Any action by Bellsouth might be affected by the rather weird history of the BELL mark; its power as an indicator of the source of goods and services has been weakened significantly by its application to more than one company providing the same services. It was originally owned, of course, by pre-breakup AT&T. During the reorganization, AT&T proposed that all of the new independent phone companies be allowed to use the “Bell” mark along with a geographical designator — “Wisconsin Bell”, “Southern Bell”, “Pacific Bell”, and so on. AT&T would market its services under the name “American Bell”. AT&T wouldn’t be allowed to use the mark except with the word “American” next to it, and the regional Bells wouln’t be allowed to use the mark except with their regional designation next to it.

In United States v. Southwestern Bell, 569 F. Supp. 1057, 1074 (D.D.C. 1983), the court ruled (rightly, I think) that if AT&T used the “American Bell” mark, consumers would think that all of the regional Bells were still part of some larger “American Bell” system. The court decided that while AT&T couldn’t use any “Bell” mark at all, the regional Bells could still call themselves “$geographicalLocation Bell” as long as they didn’t ever use the word “Bell” by itself (which would make consumers think they were all affiliated).

Interestingly, all of the regional Bell trademark applications were filed by none other than Cary H. Sherman, now president of the RIAA.

UPDATE: Bellster is now known as fwdOUT.

January 29, 2005

CASPIAN Vindicated?

Privacy groups like CASPIAN have been complaining about the injustices and privacy invasions that supermarket loyalty cards could make possible for many years. They’ve largely been ignored, by everyday consumers and legislators because they trust the supermarkets, and by techno-libertarians because the schemes are so trivially circumvented. (For example, every time I bought groceries at Safeway this past summer, I departed to the sound of the clerk’s cheerful “You have a good evening too, Mr. Schmidtlat.”)

But this story is just the sort of thing CASPIAN has been telling us about for years. A Seattle firefighter was wrongly charged with arson after an investigation of his Safeway buying habits revealed that he’d purchased materials of the same type used to set fire to his own home. Charges were dropped after the true arsonist confessed.

Of course, in the RFID-tagged future (also opposed by CASPIAN), the firefighter might have been exonerated immediately when the unique code in the materials used to burn down the house wasn’t the same as the unique code on the fire-starters purchased using the firefighter’s loyalty card. One doubts, though, that anyone’s likely to argue for more durable RFIDs on this sort of theory.

January 28, 2005

Adding Value to Random Crap Proof that by knowing your audience, you can get people to buy a bag of random surplus junk and pay for shipping.

Tired of clicking all over the web looking for the lowest price on the finest merchandise with the best features from the most reliable retailers? Give your inner Consumers’ Reporter a break by indulging in a purchase that no one would mistake for a good deal: another one of Woot’s famous Bags o’ Crap.

Hey, when this crap arrives at your house, grouse ye not that ye’ve been had. We’re admonishing you in all caps that what we’ve got here is crap. Look:





“How,” you ask yourself, “am I supposed to derive happiness from crap?” Well, allow us to suggest some guidelines—think of them as Chicken Soup for the Crap-Encumbered Soul :

01. Disappointment is the result of unmet expectations. You can’t control what kind of crap you get in this bag, but you can certainly decline to expect GOOD crap. Hope is the enemy of satisfaction. Suppress it.

02. The crap that some other people get in their bags will almost certainly be less crappy than the crap you get in yours. That’s just the way it goes. Before you get too kvetchy about it, evaluate the grievance: It’s not like you’re being detained without trial in Guantanamo; you’re just unhappy with a discretionary purchase that was clearly labeled “crap.” In the hierarchy of injustices, this is not a biggie.

05. Finally: don’t obsess about the crap so much that you forget the bag. “That’s a sweet bag!” you should say to yourself. “That’s totally worth the price all by itself.” Then, when you open your new bag, you can regard its contents with the disdain they deserve. Who put this crap in your sweet new bag? You don’t want this crap. Why would you? It’s crappy.

Sold out, by the way.

January 27, 2005


Patrick Ross wrote this rather unusual op-ed published today on CNET He’s VP of the Progress and Freedom Foundation (PFF), a relatively new think tank in Washington that views technology and intellectual property issues from a libertarian-conservative viewpoint. They’ve got some very, very smart people working with them (Richard Epstein and Solveig Singleton stand out) — people whose conclusions I don’t often agree with, but with whom I generally disagree about facts, not values.

The organization’s acronym — PFF — aligns it none-too-subtly as the rightie counterpart to the leftie EFF. Of course, the EFF usually takes libertarian positions on technology issues, too; they just disagree, in this case, on who should budge when the efficient operation of the information technology market requires some inefficiency in some other market.

Then there’s Ross, and this column of his. It’s a frontal attack on Public Knowledge — more specifically its Executive Director, Gigi Sohn. Ross seems upset that Sohn calls herself a “consumer advocate” while failing to represent the views of consumers who enjoy paying monopoly rents.

“Wait!,” Ross seems to be saying, “I’m a consumer, and I think the big content companies who pay my salary should have complete control over the media they release and the technologies used to enjoy those media. She’s not representing my view, ergo she is a sham consumer advocate.”

Ross further faults Sohn for refusing to compromise in the INDUCE Act fracas this past summer. Sohn took a principled position that won the battle (if not yet the war); telling her after her victory that she really should have compromised strikes me as odd.

I suppose it’s a very good sign that people like Gigi are being attacked rather than ignored. It’s just one more step toward acceptance.

Blackside Objects To Eyes on the Screen Campaign

Katie Dean of Wired News has been on top of the Eyes on the Prize licensing story from the beginning, and today she filed this excellent report on Downhill Battle’s campaign to distribute the series via P2P. (For more on this story, see my post here.)

I did a little digging yesterday to see whether Blackside, the production company that made Eyes in the 80s and early 90s, even still exists. It does, but in substantially diminshed form. Henry Hampton, its founder and leader, died in 1998, leaving his last series, This Far By Faith, unfinished. The company has not, as far as I can tell, produced any substantial programs since finishing Faith. It passed in Hampton’s will to his sisters, Veva Zimmerman and Judy Hampton, carrying with it substantial debts, but substantial goodwill among documentary and minority filmmakers. This article describes some of the anger surrounding the decline of Blackside, during which reports indicate much of Blackside’s goodwill was squandered.

The Wired News article quotes a lawyer representing Blackside in its attempt to relicense the footage in Eyes:

But Sandy Forman, a lawyer for Blackside and director of the project to re-license the lapsed footage, said Downhill Battle has “no fair-use claim to do this whatsoever.”

“We are going to pursue any and all legal remedies available to stop this as soon as possible,” Forman said. “Clearly we agree that it’s very important to have (Eyes on the Prize) out there but certainly the way these people are going about it is completely unacceptable and illegal.”

She said Blackside does not endorse what Downhill Battle is doing, and the late Henry Hampton — the filmmaker who founded Blackside and produced Eyes on the Prize — “would absolutely not support this.”

This puts Blackside in a tough spot, but so far they’re making the wrong move. From what I can gather, Blackside is trying to gather enough money to pay off its debts by getting Eyes on the Prize back on PBS and in video distribution. The real money is going to come from PBS and PBS Video. PBS Video is going to be selling primarily to schools and libraries. P2P distribution and exhibition of Eyes is not going to make it less likely for PBS to broadcast the series, and won’t keep schools and libraries from buying copies. What this will do is raise the profile of the effort to relicense all of the footage in the series and get it on PBS faster.

A kneejerk “quit infringing” reaction is understandable, but probably not the smartest long-term strategy.

UPDATE: So it turns out Henry Hampton’s nephew is a blogger who’s well-informed about both the copyfight and the internals of what remains of Blackside. His take is here and here.

January 26, 2005

Copyright Office To Work On “Orphan Work” Problem

The Copyright Office recently published this Notice of Inquiry in the Federal Register. They seek comments on harm to prospective users of “orphan works” and suggestions for possible legislative or regulatory solutions. Orphan works are those works for which it is difficult to identify the current copyright holder, but which remain protected by copyright. Because prospective users are unable to contact the copyright holder to obtain a license, the works are lost to the culture needlessly. The orphan work problem is one subject of Kahle v. Ashcroft, an ongoing lawsuit against the Attorney General and the Register of Copyrights. (Indeed, one wonders whether the defendants will ask the court to postpone the appeal in Kahle pending the outcome of this regulatory proceeding.)

Comments are due March 25th; reply comments will be due May 9th.

This came as a big, happy surprise to me. We’re a long way from the implementation of any solution, but this is a critical first step. Nothing would please me more than to see the defendants in Kahle v. Ashcroft successfully move to dismiss on the grounds that they fixed the orphan work problem.

Eyes on the Screen

Copyright activist group Downhill Battle has a new campaign — “Eyes on the Screen”. The PBS documentary series Eyes on the Prize, the most important and thorough documentary about the civil rights movement in the United States, can no longer be sold or exhibited because the filmmakers’ licenses to underlying documentary film clips (e.g. film of MLK’s marches and even the “I Have a Dream” speech) have expired.

Downhill Battle has obtained a copy of the series and is digitizing it and offering downloads via BitTorrent. They urge downloaders to organize screenings on February 8th.

Michael Madison has this excellent post about the copyright status of works (like the footage in Eyes or the Zapruder film) that have such importance to our society and its history that they must be available for common use. He proposes a number of analogs from other areas of law that could be ported to copyright law to solve this problem — “cultural adverse possession,” “cultural prescriptive easements,” and “cultural essential facilities.” My favorite, proposed in jest, is the establishment of an equitable “ironic symbolism” defense, so parties sued for making a point about civil liberties by violating the copyrights on civil rights footage could have the suit tossed out because poetic justice demands it.

I think another concept from property law can solve this problem: eminent domain. The government should simply buy the copyrights to works this important and dedicate them to the public domain. We already use public funds to buy physical objects of great historical importance and place them in the National Archives, the Library of Congress, and the Smithsonian. We should do the same for expressive works so important to our history that they must not remain under private control.

Is Back That Azz Up Substantially Similar To Back That Ass Up?

This was the key question in Positive Black Talk v. Cash Money Records, decided recently by the Fifth Circuit Court of Appeals.

Two Louisiana rappers recorded songs with similar titles in 1997 — D.J. Jubilee’s “Back That Ass Up” and Juvenile’s much better-known “Back That Azz Up”, which readers may recall from its refrain:

Girl, you looks good, won’t you back that ass up.
You’se a fine motherfucka, won’t you back that ass up.
Call me Big Daddy when you back that ass up.
Hoe, who is you playin wit? Back that ass up.

The case went before a jury, which found that Jubilee’s copyright was not infringed by Juvenile’s song. The court found, rightly, that the similarity in titles is not in itself actionable infringement, since short phrases are not independently copyrightable and the phrase merges with the idea of the described dance move.

In terms of meaty questions of copyright law, this case isn’t all that significant. The most important holding is probably that in the Fifth Circuit, a plaintiff who files his complaint before his registration form is received by the Copyright Office may proceed as long as the Copyright Office receives the form before the deadline for amending the complaint and the registration issues before final judgment. This is only an issue because the Copyright Act requires registration in order to sue for infringement, but different jurisdictions have set different rules about precisely what that means.

But who couldn’t love a case with quotes like these?

PBT avers that this definition is misleading because, by including the phrase “when compared as a whole,” it suggests that the jury, when deciding whether factual copying occurred, must look to see whether Back That Ass Up, as a whole, is sufficiently similar to Back That Azz Up, as a whole.

January 25, 2005

Google Video

Today, Google launched the beta of Google Video, a service that allows users to search for keywords in a database of TV transcripts and see their keyword in context, along with a still from the portion of the program where the word appeared. The service also offers rudimentary TV schedule lookups, so users can see when a given program will next be broadcast on their local stations.

It’s not completely clear whether Google has secured permission from the relevant broadcasters to use the material in this way. The site indicates that C-SPAN has affirmatively signed on, but most of the searchable channels are those available over-the-air at Google’s headquarters in Mountain View, California.

I wouldn’t be surprised if Google is using some content without permission. What they’re doing fits snugly within the bounds of transformative fair use, in the Kelly v. Arriba Soft mold. They’re only showing snippets of the programs’ transcripts surrounding users’ search terms, and they’re only showing video stills (no live video), and then only the still corresponding to the user’s search term. If there’s any way to make transformative “search thumbnails” of TV programs, this is it. I suspect that they will offer video clips from programs whose creators opt in and the current text snippets and stills for those who don’t.

But even if the service offered to the public is a transformative use, might Google be on the hook for what goes on behind the scenes? For example, in order to offer this service, it’s pretty clear that Google has to record and retain video copies of TV programs after they’re broadcast. And they have to have complete transcripts on their servers someplace. Those copies and transcripts could be infringing. The Kelly court didn’t reach the question of whether verbatim copies necessary to make transformative fair use are privileged. I suspect that such use would be deemed fair, since it is physically necessary in order to make the overarching privileged use.

It seems that Google may subsidize an entire wave of socially-beneficial IP case law in the coming years, when they get sued over their various service offerings.

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.)

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