April 28, 2006

Trademark Dilution Revision Confusion

The proposed revisions to the trademark dilution provisions found in section 43 of the Lanham Act have caused substantial confusion regarding whether they change the defenses applicable to section 43(a). The Trademark Blog cuts through the thicket.

April 27, 2006

Podcasting Legal Guide

Creative Commons has just released its Podcasting Legal Guide, prepared by Colette Vogele, Mia Garlick, and the Berkman Center Clinical Program in Cyberlaw.

Congratulations to Colette and Mia on the release of the Guide. I had the pleasure of helping with some revisions, and the guide should prove to be a valuable resource for podcasters.

Jane Jacobs: Maker

Susan Crawford posts an excerpt from a 2001 interview with Jane Jacobs:

I’ll tell you something that had been worrying me: I liked to visit museums that showed old time machines and tools and so forth. And I was very struck. There was one of these museums in Fredricksburg, Virginia, which was my father’s hometown. He was from a farm near Fredricksburg. I was very struck with the way these old machines were painted. They were painted in a way to show you how they worked. Evidently the makers of them and the users of them cared about how these things were put together and how what moved what so that other people would be interested in them. I used to like to go to the railroad station in Scranton and watch the locomotives. I got a big bang out of seeing the locomotives and those pistons that moved the wheels. And that interested me how they were moved by those things and then the connection of that with the steam inside and so on. In the meantime, along had come these locomotives that had skirts on them and you couldn’t see how the wheels moved and that disturbed me. And it was supposed to be for some aerodynamics reason, but that didn’t make sense. And I began to notice how everything was being covered up and I thought that was kinda sick.

Jane Jacobs died Tuesday. The weekend before her death, I attended an event emblematic of the curiosity about the world and its workings whose loss Jacobs lamented. Make Magazine‘s Maker Faire — bearing the motto, “If You Can’t Open It, You Don’t Own It” — drew a crowd of tens of thousands of intellectually curious tinkerers to the San Mateo County Fairgrounds to participate in workshops and meet with other tinkerers in what felt like a big, joyful adult science fair.

The “joyful” bit was what surprised me most. Attendees seemed genuinely, deeply happy that there were so many others who shared their curiosity and do-it-yourself spirit.

Many tinkering projects run afoul of intellectual property laws. Even leaving aside patent concerns, all tools that manipulate media are tools of copyright infringement, and tinkerers see no reason why laws initially intended to prevent unfair competition within the content industry should keep them from making and using cool new tools.

The publisher of Make Magazine, Dale Dougherty, gave a presentation to a very enthusiastic crowd at dorkbot a few months ago. After the presentation, I asked him whether the DIY attitude toward technology promoted by the magazine required hostility toward laws like the DMCA’s anti-circumvention provisions. His answer was telling. “It’s not a matter of ‘To do this, you must believe this,’” he said. “It’s more, ‘If you do this, you’ll come around to believing this.’”

Tens of thousands of people gathered last weekend because they didn’t like “how everything was being covered up,” and they wanted to celebrate the creativity and intellectual satisfaction of making things that work. What will happen when they all come around to believing that laws restricting what they do on their garage workbench represent misguided policy?

James Grimmelmann on Self-Appropriation

James Grimmelmann very amusingly and thoughtfully explores the issues raised by a French Connection ad that’s awfully similar to a Groovecutters music video.

April 25, 2006

DOJ Proposes Internet Sexual Content Regulations

The Department of Justice has submitted a legislative proposal to Congress (PDF courtesy CDT). It would:

  • Triple the monetary penalties electronic communication services providers would pay for willfully failing to report child pornography pursuant to 42 U.S.C. 13032;
  • Require commercial website operators to include, on each page containing sexually explicit material, all “marks and notices” prescribed by the Federal Trade Commission (which, the bill notes, will be “included in the code” of the websites if feasible); and
  • Prohibit commercial website operators from including any sexually explicit content “on the website that is initially viewable, absent any further actions by the viewer.”

The latter two provisions apply only to websites which are “primarily operated for commercial purposes.” “Sexually explicit material” is limited to “material that depicts sexually explicit conduct” — which might mean it’s limited to images, but it might not. There is an exemption for sites on which the sexually explicit material “constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters.” So a newspaper could probably report the testimony of a rape victim without fear of criminal sanction, but a sex education site would seem to be “primarily devoted to sexual matters,” and its operators could be thrown in federal prison for five years if they failed to mark their site in conformance with FTC regulations.

I’m a bit troubled by the “initially viewable” provision, too, but my concerns are mostly practical; it’s tough to tell where someone’s going to land on a website, since, you know, deep linking exists. The provision is pretty clearly directed toward making sure that a site’s homepage doesn’t have sexually explicit material on it, and I don’t see why they couldn’t just say that. It’s unclear to me, though, whether such a regulation would be a violation of the First Amendment, since non-obscene sexually explicit material on commercial websites is protected as commercial speech, and there’s nothing inherently deceptive about putting particular speech on the front page of a site instead of behind a click-through wall.

Copyright’s Bad Name

Bill Patry has this great post on the Google / Joan Miro spat from a few days ago. His analysis is, as usual, spot on, but the most interesting part is his assertion that baseless copyright claims like that made by the Miro estate lower the status of copyright in general:

Last week the Estate of artist Joan Miro demonstrated why copyright has gotten a bad name; not just among those who don’t believe in protection at all, but among those, like myself, who have believed that the existence of protection is important and appropriate, and at a fair high level.

* * *

The tragedy is that such unseemly efforts give fodder to those who oppose any protection.

I think Patry points out an important turn, and one that could be dangerous for copyright holders in the long term. Copyright began as a regulatory regime, ordering relations among companies that made money from the creation, reproduction, and dissemination of creative works. As copyright extends into the personal sphere, and as rights holders like the Miro estate attempt to leverage copyright protection into a form of all-encompassing control of styles and concepts, copyright holders risk losing the support of the public. In a democracy, the loss of such support can be hazardous to owners of government-created exclusive rights.

April 24, 2006

Intellectual Property Protection Act of 2006: A First Look

Public Knowledge has made available a copy of this draft bill, currently titled the “Intellectual Property Protection Act of 2006.”

The bill strengthens several provisions of the Copyright Act, mostly related to criminal copyright infringement. It would increase penalties for various copyright crimes, provide additional funding for the investigation of copyright and computer crimes, and allow for broader forfeiture of property used to commit copyright crimes. It would also make it easier to prove “trafficking,” in all of the statutory provisions in which trafficking gives rise to liability.

In addition to these issues of investigation and punishment, the bill proposes three substantive changes to copyright law, one civil and two criminal.

First, the change to civil copyright infringement law. It is already copyright infringement to import, without the copyright holder’s permission, copies lawfully made outside the United States for the purpose of distribution within the United States. (Individuals are allowed to import copies for personal use, so I won’t be liable for ordering that Benjamin Biolay album from But this bill makes it an infringement to export infringing copies. A party that made and exported infringing copies would already be on the hook for the infringement itself, and a defendant who exported the copies without making them would probably already be on the hook for vicarious copyright infringement. This addition would just seem to make it easier to go after the exporters. It makes me a little uncomfortable that there’s civil liability for exporting copies “the making of which either constituted an infringement of copyright or would have constitued an infringement of copyright if this title had been applicable,” sec. 5(a)(4), since while the conditional applicability language is already in the statute, one could imagine an overzealous prosecutor thinking, erroneously, that various defenses to infringement like section 107 or section 1008 made Title 17 inapplicable instead of simply taking away liability. Other than that, though, this doesn’t seem to be a radical expansion of a copyright holder’s distribution right, since the new subsection only imposes liability for the distribution of copies that are already infringing. Does anyone else see more major problems here?

Second, the bill would criminalize attempted criminal copyright infringement and conspiracy to commit criminal copyright infringement. Most federal crimes include these ancillary crimes by default. It’s starting to get a little scary, though, when it’s a federal crime to attempt — but fail — to have a friend buy you a burrito for giving him a burned copy of Microsoft Office. (Wonks: That’s a violation of 506(a)(1), since a burrito is included in “anything of value” [at least if it's from Taqueria Can-Cun].)

Third, the bill would remove the registration requirement for criminal copyright infringement prosecutions. Right now, the copyrights to the works at issue must be registered at the time the action is filed, whether for civil infringement actions or criminal prosecutions. Criminal copyright infringement requires willful action, which probably implies actual knowledge that the material is copyrighted; for this reason, the elimination of the registration requirement probably doesn’t expand the range of proscribed conduct much, and probably doesn’t give rise to a vagueness challenge. It does, however, make it easier for prosecutors to go after infringers without the cooperation or involvement of the copyright holders, and eliminates one impediment to the initiation of criminal copyright infringement prosecutions.

In all, the bill as currently drafted strikes me as unnecessary as a matter of copyright policy, and continues the unfortunate erosion of the traditional formalities upon which copyright protection has always been conditioned in the United States. The expansion of criminal copyright infringement to include conspiracy and attempt and the expanded definition of trafficking could, in the hands of an overzealous prosecutor, lead to prison time for ordinary people engaging in ordinary (though willful) acts of infringement, or for ordinary tinkerers who make their useful (though circumventing) software available to others.

RIAA Lawsuit Dismissed on Guardian Ad Litem Issue

One of the RIAA filesharing lawsuits was dismissed late last month — but not on the merits. Internet Law & Regulation has posted this four-page order from the Eastern District of Michigan dismissing a filesharing lawsuit against Brittany Chan, a 15-year-old.

The copyright holders initially sued Brittany’s mother, but that suit was dismissed, because all of the alleged filesharing was done by Brittany. The copyright holders filed a new complaint against Brittany; since she’s a minor, she is entitled to an adult representative of her interests (a guardian ad litem). The court ordered the copyright holders to come up with “a functional proposal for the appointment of a guardian ad litem for Brittany Chan, as well as a manner of paying such guardian ad litem during the pendency of this action.” The copyright holders argued vociferously that they shouldn’t have to pay the guardian’s fees, but failed to make the required proposal.

The judge dismissed the action, finding that the copyright holders’ “failure to respond to the order inexplicable in light of the efforts of the Court to work with the Plaintiffs in advancing this case and the fact that Plaintiffs were ordered to provide a proposal.”

The outcome has very little to do with copyright law, but lurking beneath the surface seems to be a distaste for the copyright holders’ litigation tactics — and with the fact that the suit was on the court’s docket in the first place. Plaintiffs were, after all, suing a 15-year-old girl for thousands of dollars in damages. Dismissal of the action may seem an extreme sanction for failure to respond to the court’s request for a proposed solution to a procedural problem, but the copyright holders’ obstinacy in the face of a practical judicial request seems to have tipped the equitable balance even further in the 15-year-old’s favor.

Legislative Sausage-Maker Emeritus on Treaty Abuse

William Patry, who spent several years as deep as one gets in copyright policy work as copyright counsel to the House Judiciary Committee, has this post on how the process has gone wrong in the past ten years. He notes that Executive Branch control over treaty negotiation is allowing circumvention of the traditional domestic legislative process. Special interests with influence in the Executive Branch — during both the Clinton and Bush administrations — have been able to insert provisions into multilateral trade treaties that effectively force Congress to implement draconian copyright laws they would otherwise have rejected on policy grounds.

Since 1996, however, in the WTO copyright treaties, a dangerous route has been taken of having what will become domestic legislation negotiated in the context of a treaty. Congress is then presented with a fait accompli. Those involved in such international efforts are a very small group and in no way represent the public interest. The noegotating is done in private and may be over before one hears about the latest proposal. Those outside the group and objecting are left with the impossible task of attempting to get the same Administration that negotiated the deal not to ratify the treaty or to attempt to get Congress not to pass implementing legislation.

April 22, 2006

Blog Law & Blogging for Lawyers: Wrap-Up

I had a great time at the Blog Law & Blogging for Lawyers conference, presented by Law Seminars International and chaired by Cathy Kirkman and Dennis Crouch. I got to meet dozens of really interesting people engaging with blogging and social media from many different angles. (So few of us, for example, think about the securities law problems posed by executive blogging!)

I tried to capture the key points of each presentation, but I couldn’t catch everything. Luckily, the conference producer recorded all of the proceedings on video, and will be offering a DVD set of the entire conference for home-study CLE credit. (The set costs $1,005, though, so it’s probably not an option for everyone.)

You can find a complete set of my posts about the conference here.

In addition to my posts, the event was liveblogged by David Maizenberg of the Decisis Blog. If I’m the play-by-play man, he’s the color commentator.

Thanks again to Cathy, Dennis, LSI, and all of the attendees for making the event such a success.

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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