joegratz.net

May 30, 2006

“[I]f Respondent is a cat from outer space, then it may have something to hide, and this is indicative of bad faith behavior.”

Via The Trademark Blog comes a link to this decision in a UDRP dispute over the domain name mymorganstanleyplatinum.com. The domain name was evidently used by one Mr. Woods as an example of how large companies fail to register obvious domain names. To leaven his presentation, Woods points out that the registration is actually in the name of his cat, Meow.

The opinion is, accordingly, captioned Morgan Stanley v. Meow. Seriously.

The panel holds that the element of bad faith is present, and that Morgan Stanley prevails:

Respondent maintains that it is a cat, that is, a well-known carnivorous quadruped which has long been domesticated. However, it is equally well-known that the common cat, whose scientific name is Felis domesticus, cannot speak or read or write. Thus, a common cat could not have submitted the Response (or even have registered the disputed domain name). Therefore, either Respondent is a different species of cat, such as the one that stars in the motion picture “Cat From Outer Space,” or Respondent’s assertion regarding its being a cat is incorrect.

If Respondent is in fact a cat from outer space, then it should have so indicated in its reply, in order to avoid unnecessary perplexity by the Panel. Further, it should have explained why a cat from outer space would allow Mr. Woods to use the disputed domain name. In the absence of such an explanation, the Panel must conclude that, if Respondent is a cat from outer space, then it may have something to hide, and this is indicative of bad faith behavior.

On the other hand, if Respondent’s assertion regarding its being a cat is incorrect, then Respondent has undoubtedly attempted to mislead this Panel and has provided incorrect WHOIS information. . . .

The rub is that Morgan Stanley had to pay $1,300 to resolve this exceedingly silly matter.

May 26, 2006

Apple v. Does Court Cites Wikipedia

As Denise noted, the Apple v. Does opinion cites Wikipedia extensively — eleven times, by my count. In 2003, I opined that citation to Wikipedia in the course of a legal argument was asking for trouble, since anyone — even opposing counsel — could pull the factual rug out from under one’s argument.

The California Court of Appeal, though, dodges the problems I foresaw. It cites Wikipedia almost exclusively for the definitions of internet argot and geek pop culture references:

  1. Firewire (Slip Op. at 3 n.3)
  2. Breakout Box (Id.)
  3. GarageBand (Slip Op. at 3 n.4)
  4. Breakout (Slip Op. at 6 n.5)
  5. Asteroids (Id.)
  6. Arkanoid (Id.)
  7. Forum Moderator (Slip Op. at 26 n.16)
  8. BBS (Slip Op. at 27 n.16)
  9. Blog (Slip Op. at 45 n.21)
  10. Webzine (Id.)
  11. Electronic Paper (Slip Op. at 46 n.22)

These articles are particularly likely to have reached an accurate and complete equilibrium, since the core Wikipedia constituency is deeply familiar with their subject matter, and that subject matter is not hotly contested. While one can imagine a flame war emerging over precisely what is or isn’t a BBS or a blog, the opinion cites Wikipedia in the same situations I do — when the reader’s general knowledge of the subject matter will assist understanding of the argument, but the underlying details aren’t dispositive of the argument’s merit.

I think it’s also worth noting that the Breakout, Asteroids, and Arkanoid articles were cited in the court’s discussion of a purportedly revealing pun — the project was called “Asteroid,” and it was a “Breakout” box. The opinion rightly notes that this correlation is illusory, since it was Arkanoid, not Asteroids, that was a clone of Breakout. It just makes me proud. California: Our Appellate Clerks Are Even Geekier Than Our Tech-Rumor Bloggers.

EFF Wins Apple v. Does

Denise Howell has the scoop on today’s California state court decision upholding bloggers’ anonymity in Apple v. Does.

I previously posted coverage of a discussion of the case at the Blog Law and Blogging for Lawyers conference. 

“Eyes” Returns

Early last year, I wrote several times about the complications in brining Eyes on the Prize, an amazing documentary miniseries chronicling the civil rights struggle in the United States, back into distribution after the producers’ licenses to use underlying archival material ran out in the early 1990s. (See here, here, and here.)

It came as very good news that the producers have been successful in getting new licenses, and that the miniseries will be aired in October on PBS.

It took $915,000 to get back where the producers were in 1993. I hope that, this time, the producers bought much longer licenses.

May 23, 2006

Orphan Works Bill Introduced

Rep. Lamar Smith, chairman of the House IP subcommittee, has introduced H.R. 5439, the “Orphan Works Act of 2006″. It is intended to limit remedies when a copyright holder cannot be found through a reasonable search before the user begins infringing, but later appears and sues for infringement. This bill is structurally similar to the legislation recommended in the Copyright Office’s Orphan Works Report, but includes several important changes in the details.

In addition to its limitation on remedies section, the bill includes provisions for two studies, one regarding the implementation of the legislation, the other regarding remedies for small copyright claims. The second appears to have been inserted at the behest of the bill’s opponents, who argue that the copyright laws already effectively deny small copyright holders relief because litigation in federal district court is so expensive.

A subsection-by-subsection analysis of the new section 514:

Subsection (a). This subsection deals with the requirements for limitation of remedies. The infringer bears the burden of proving that she is entitled to such limitation. In order to establish her eligibility, the infringer must show that, before her infringement began:

  1. She performed a reasonable, good-faith search.
  2. She was unable to locate the owner or anyone else who could grant her a valid license.
  3. Provided reasonable attribution to the true owner on her infringing copies.

The search has to be more than just finding a copy of a work that doesn’t identify the author or copyright owner, then giving up the search. Sec. 514(a)(2)(B)(i)(II). Ordinarily, this search should include a review of the information that section 514(a)(2)(C) requires the Copyright Office to provide, including search practices and ownership records. The really good news is that the law requires the Copyright Office to make such information available on the Internet, so it probably won’t be necessary to fly to Washington, D.C. or to pay a search firm to do so in every single case, as it might have under the previous Copyright Office draft.

“Reasonableness” is the touchstone — and that’s something courts are experienced at determining. For example, reasonable attribution is likely to be no attribution at all when the infringer has absolutely no information about the authorship or provenance of the work. And a reasonable search performed by a large movie studio is likely to look a lot different than a reasonable search performed by a lone academic researcher, even if the two prospective infringers are searching for the copyright holder of the very same work.

Subsection (b). This subsection deals with the remedies to which copyright owners are entitled when they resurface and sue an infringer who meets the requirements of subsection (a). The copyright holder bears the burden of proving the amount of compensation due. Resurfacing copyright holders are entitled to:

  • An order requiring the infringer to pay reasonable compensation. Sec. 514(b)(1)(A). The infringer must pay “the amount on which a reasonable willing buyer and a reasonable willing seller in the positions of the owner and the infringer would have agreed with respect to the infringing use of the work immediately before the infringement began.” Sec. 514(b)(3).
  • An injunction against further infringement, taking into account the harm any injunction would cause the infringer due to her reliance on her search as well as the owner’s rights. Sec. 514(b)(2)(A). No injunction may issue against the continued use of derivative works prepared by the infringer, so long as the infringer pays reasonable compensation and provides attribution to the owner. Sec. 514(b)(2)(B). Parties not subject to suit for damages (such as state governments) are not eligible for these limitations on injunctive relief unless they made a good-faith offer of compensation that was rejected and remain willing to pay reasonable compensation as determined by the court. Sec. 514(b)(2)(C).

Subsection (c). This subsection makes clear that the new orphan works provisions do not affect any existing copyright limitations or defenses. Thus, fair use is unaffected, as are the existing provisions dealing with preservation of orphan films and library copying of orphan works and making new recordings of orphan songs.

Subsection (d). This subsection allows creators of derivative works incorporating portions of orphan works to receive copyright protection on the derivative works. This subsection creates an exception to the general rule that infringing derivative works receive no copyright protection. However, such protection extends only to the new material contributed by the author of the derivative work, so creators of derivative works can’t prevent others from using the same orphan work they used.

The bill would have a two-year “sunrise” period, and would not apply to infringement commenced before June 1, 2008. This seems unnecessary to me, but it’s better than the 10-year “sunset” provision in the Copyright Office proposal.

This is a great bill, properly balancing the rights of copyright holders and users and properly leaving the tough, fact-specific inquiries for the courts. The bill is scheduled for mark-up tomorrow, so it appears to be on a relatively fast track. If I could, I’d make some small changes to the bill — subsections (a) and (b) have virtually identical names, for example, and, more substantively, I see no reason for a two-year sunrise period. But this bill represents the best sort of copyright legislation, respecting the proprietary rights of authors while recognizing that the licensing market sometimes fails due to inadequate information and high transaction costs. If this bill passes, I feel like I should throw a big party to celebrate the dawn of a new, user-focused, policy-driven era in copyright legislation.

EFF on the Front Page of the Chron

Today’s San Francisco Chronicle features two front-page, above-the-fold articles about the EFF and its lawsuit against AT&T. Bob Egelko’s profile of the organization is quite good, with quotes from staff members (Shari Steele, Fred von Lohmann), supporters (Jennifer Granick), and detractors (Patrick Ross).

I have to admit, it was a little surprising to see a life-size Shari peering over her laptop at me from the newsstand this morning.

May 15, 2006

Cheating

In law school, my friends and I were fond of making legal puns. The concept of escheat proved especially fertile ground; we made up various outlandish stories about having gambling proceeds confiscated by the state (escheating at cards) or spending so much time at one’s government job that one’s spouse has a claim for loss of consortium (escheating on your wife). There was even a joke about the reversion of unclaimed property to the government in the animal kingdom. (It involved an escheetah.)

Imagine my disappointment upon hearing, while listening to a podcast of the old NPR segment “On Words with John Ciardi,” that my friends and I were even less clever than we thought. It turns out that the verb “to cheat” is derived from “escheat.” As Ciardi tells it (and I urge you to listen, as he was a charming etymological storyteller), the escheator was the functionary responsible for tallying the property that had escheated after the owner was convicted of a felony or died intestate without heirs. It was easy for the escheator to skim some of the property for himself simply by failing to include it in the inventory reported to the superior feudal lord or to the Crown. Such a practice was so commonplace that anyone who took something not rightly his was referred to as an escheator, which became “cheater,” from which was formed the verb “to cheat”.

So our lame jokes were even lamer than we knew.

Future of Music Coalition Policy Summit — Québécois Style!

This year’s Future of Music Coalition Policy Summit will be held in Montreal. This is a substantial change from past years, when it was held in Washington, D.C. It’ll take place at McGill University, timed to coincide with the Pop Montreal festival. Quel amusement!

May 14, 2006

Kevin Kelly: With Copyrights Come Copyduties

The cover story in today’s New York Times magazine is “Scan This Book” by Kevin Kelly. It’s an important step forward in the debate over copyright in orphan works — those works whose copyright owner cannot be found. Kelly argues that availability for searching should be part of the copyright bargain:

Search opens up creations. It promotes the civic nature of publishing. Having searchable works is good for culture. It is so good, in fact, that we can now state a new covenant: Copyrights must be counterbalanced by copyduties. In exchange for public protection of a work’s copies (what we call copyright), a creator has an obligation to allow that work to be searched. No search, no copyright. As a song, movie, novel or poem is searched, the potential connections it radiates seep into society in a much deeper way than the simple publication of a duplicated copy ever could.

I don’t agree with nearly everything Kelly says; I think he overstates the utility and primacy of search and pays too little attention to books as a social practice rather than as an information technology. But I cannot disagree with his central thesis — that industries and laws founded on the scarcity of the copy will yield to those based on the connections between works.

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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