Author: Jacqueline Lipton

2

Google Earth and Caste Discrimination in Japan

With gratitude to Funmi Arewa for sending me this link, here’s an interesting story from the Times Online about an unexpected area in which Google has found itself in hot water.  In adding information to some modern day maps of Japan on Google Earth, Google engineers overlaid some old maps of Japan on the modern sattelite images.  This effectively shows how some of the old Japanese ghettos relate to modern 21st centry streets.  Unfortunately, it also provides a proxy that effectively allows prospective employers to guess on the ancestry of people who may be applying for jobs and to identify them as likely members of a caste considered as “untouchables” and condemned to the worst positions in the social and cultural hierarchy.  Google did not realize how offensive and problematic this data-driven action could be within Japan.  It’s a great example of how modern technology can clash with deeply ingrained cultural mores.

On another note, this is my last post for Concurring Opinions as I’m heading off tomorrow for my first long weekend vacation in (too) many years!  Thanks so much to Dan and the whole Concurring Opinions crowd for having me.  I hope to visit again sometime.  Happy summer vacation everyone…

0

Search Engine Trivia

Again, I’m writing about trivia while there are important things going on in the world (eg Supreme Court nominations as Gerard previously noted).  However, while reading “Google Speaks“, I’ve picked up some search engine trivia that people might like to test their knowledge on.  How many of the following questions can you answer?

1.  Where did Google’s “PageRank” algorithm get its name?

2. Where did Google get its name from?

3. Where did Yahoo get its name from?

[answers below the fold]

Read More

12

Outliers ….

Like everyone else I know, I’m reading Malcolm Gladwell’s  Outliers, at the moment – the intriguing story about why some people become outliers in the sense of being extraordinarily successful while others with similar-seeming innate gifts don’t do as well.

One thing that Gladwell does in the book is give examples of questions from some IQ tests, and he never answers the questions.  The one that has been bugging me as well as a number of other people is the question:  “Teeth is to hen, as nest is to _____”.

Anyone know the answer?  [see under the fold]

Read More

0

IP Law and the Presidential Sneakers…

President Obama is likely the first true “celebrity president”, at least the first in our time, in the sense that people see opportunities for making money from his persona and likeness.  Early on in the presidency, his office made some remarks to the extent that they were working on a policy asking people to be respectful of the president and his family in restraining some of these commercial impulses.  Of course, all of this raises the fine line between free speech and personality rights – a topic much debated on the cyberprof listserve in the early days of this presidency.

In this vein, I couldn’t resist posting an ad I came across last night that squarely raises these legal issues.  A company that appears to be in Michigan (although they do not give their postal address, but do require Michigan residents to pay sales tax on purchases from their website) has set up an “Obama shoes” website.  On this website, you can purchase Obama sneakers, backpacks, and basketballs.

The website uses video clips from one of Obama’s speeches and refers to itself as selling merchandise that is inspirational to young folks and that is intended to commemorate Obama’s inauguration. Thus, it obviously intends to juxtapose free speech interests in the inauguration against the commercial use of Obama’s name and likeness.

There are some other interesting little sidenotes about this business venture that suggest the people who set it up sought at least some legal advice before doing so.

1. They used the domain name “obamashoes.tv” presumably either because they couldn’t get a “better” domain name or because they wanted to avoid claims under the Uniform Domain Name Dispute Resolution Policy. They could argue that even if Obama’s name operates as a TM, they have not used his actual name in the domain name, but have added “shoes” to the end of it so no one will think it’s an authorized Obama website.

2. They include a disclaimer on their webpage to the effect that: “Obamashoes.tv is a private entity and makes no claim of affiliation or endorsement by President Barack Obama or his campaign for office.”

3. Interestingly, there is also a disclaimer on their FAQ page about the design of the sneakers themselves. “Q. Why does [sic] the shoes look like Nike Air Force Ones (AF1) and the Jordan Brand?
A. These design is [sic] been proven to be commonly preferred by most Adults & Children (black or white).” Now, I personally don’t know anything about sneaker designs, but I assume this is intended as a preemptive strike to ward of claims in trademark, trade dress, and/or design patent with respect to the actual design of the shoes.

So, interesting business model…
Legitimate free speech? Or intellectual property law infringement as far as they eye can see?

2

Copyright Law and Deregulating Amateur Creativity

While reading Lessig’s recent book, Remix, I was struck by a comment in support of his argument that we should deregulate amateur creativity online.  One of Lessig’s suggestions is that if content owners have too much control of a copyrighted work, they potentially suffer more damage than if they have less control, particularly in terms of reputational issues.  In the context of describing Hollywood’s concern about reputation, he notes that:

“This problem comes not, paradoxically, from a lack of control. It comes from too much control.  Because the law allows the copyright owner to veto use, the copyright owner must worry about misuse.  The solution to that worry is less power.  If the owner can’t control the use, then the misuse is not the owner’s responsibility.” (p 257)

In other words, if everyone knows that anyone in the amateur playing field is free to remix copyrighted works in any way they like then no one will be confused into thinking that Warner Brothers supports a Nazi spin on Bugs Bunny.

I wonder if this oversimplifies some of the reputational issues, though.  In countries with moral rights, particularly those that don’t allow waiver of those rights, the concern is not just that audiences might be confused about the source of a remixed work.  Rather, it is that creators (as distinct from copyright owners of course)  should have some say in how their works are used both for purposes of attribution and integrity.  There is more to the equation than simple consumer confusion.

Additionally, given that courts are so prepared to find pretty much anything happening online as “commercial conduct”, I wonder if Lessig’s theory has a practical limitation in that he would exempt all non-commercial remixes of copyright work from a copyright infringement action.  However, this assumes that courts will not readily find an amateur remix to have commercial elements eg if distributed alongside click-through ads online and thus potentially encroaching on the copyright holder’s market to make money from click-through ads related to the placement of the work online.

In other words, I think there may be a problem here with the boundaries between trademark law and copyright law once one starts talking about exempting amateur remixes from the scope of copyright infringement, be it under fair use or otherwise.  If the concern is with reputation, isn’t there a significant possibility that the whole debate would move to trademark law and/or moral rights law (in countries where those rights are available and relevant)?  Wouldn’t copyright holders simply start asserting trademarks in specific aspects of the work that are used in the remix, and then claiming infringement (where there is a commercial purpose and perhaps a claim for “initial interest confusion”) or dilution (where there is no likelihood of consumer confusion any way you slice it)?

I’m not necessarily disagreeing with where Lessig is coming from, and I do think there should be clearer scope for amateur creativity online, but I wonder if the analysis in Remix isn’t a little overly simplistic.  In particular, I wonder if a better way to look at it is that raised by Jessica Litman in her recent article on Lawful Personal Use where she suggests that personal uses of copyright works may well be regarded as outside the scope of copyright law altogether.  This perhaps avoids the difficult distinctions between what is “commercial” and “noncommercial” use online.  However, even Litman isn’t talking about trademark law so that could still be a problem in the online context if coypright is pared back by the courts.

0

“The Play’s The Thing…”

Over at PrawfsBlawg, Jay Wexler made an intriguing post inviting people to compare movies to the books they were based on to see if there’s any truth to the generally accepted wisdom that “the book’s better than the movie”.  I was wondering if the same might ring true for movies based on plays or stage musicals?  The first thought that lept to mind was the academy award winning movie version of the musical “Chicago” which was definitely better than the stage version I saw – although I saw second string cast towards the end of a West End run in London, so can’t compare to the original Broadway version (or the more recent Broadway revival).  And I would have to say that the movie of “Grease” is better than the stage musical – will anyone ever forget Olivia Newton-John dressed up as a “bad girl” in tight black leather?  Any others?

(On a completely separate –  and less frivolous – note, I’d like to draw people’s attention to a post I made earlier today on Faculty Lounge inviting people to formally introduce incoming junior faculty at their schools and some of their recent scholarship.  Link is here.)

1

The Heart of a Center

So here’s a question for people thinking about the nature of law schools and the nature of scholarship (and with thanks to Mike Madison for picking up on my invitation to blog more about his research deanship).

I’ve talked to a lot of folks at a lot of schools with different philosophies on law school centers.  Even folks within the same school often have widely divergent views about what law school centers can and should be doing for the overall law school enterprise.  And of course, it must be acknolwedged that centers can serve a variety of different functions within a law school – and different individual centers can have different individual roles.

So my question is whether there is any way to get to the heart of the center question.  Are there one or more key ideals that all centers in law schools should be able to live up to, or to contribute to the school?  And, if so, is it something other than:  “It’s a marketing device to attract faculty/students.”  (Not that there’s anything wrong with that – I’m asking the question out of legitimate interest.)

We’ve been talking about this recently at my school and the question is of particular interest here because we have a number of different centers that were set up under vastly different conditions for vastly different purposes.  Some are research focused and obtain grant funding.  At least one has a private endowment.  Some take advantage of collections of faculty who specialize in particular subject areas.  Presumably none of them are cost-neutral for the school, although none of them drain big bucks out of the budget either.

There are always political questions within faculty about centers and the role of faculty who happen to operate as center directors (I plead guilty to the charge of being a center director).  “Why does s/he get [a lighter teaching load/a director's stipend/a dedicated administrative support person/_______]?”  Pick one or fill in the blank.

But politics aside, what do centers ideally contribute/potentially detract from a school? Read More

0

Privacy Rights vs Architects of Our Own Doom

In recent months, I’ve noticed several comments in privacy literature that mention the importance of acknowledging the role individuals play in protecting their own privacy.  In other words, those (like me) who have advocated strengthening privacy-protections in the digital age need to face the question of the balance between legal privacy protections on the one hand, and the responsibility of individuals to keep some measure of control over their personal information on the other.  Of course, it’s harder to maintain as much control over personal information in the digital age than it is in the physical world.  Nevertheless, most of us would acknowledge that individuals should take whatever reasonable measures they can to maintain the privacy/secrecy of things they do not want the world to see online.   This balance between state imposed privacy protections and personal responsibility for private information raises a number interesting questions including:

Read More

1

Cyberliterature: The Next Generation…

In an attempt to catch up on some cyberlaw reading, one issue has caught my attention about a number of recent publications.  More and more authors are now focusing their work squarely on the new generation of “digital natives” and their experiences of the Internet and associated technology.  Examples of this are Lawrence Lessig’s “Remix“, Henry Jenkins’ “Convergence Culture“, and John Palfrey/Urs Gasser’s “Born Digital“.  As was pointed out last year in a number of sessions at the First Annual Privacy Law Scholars’ Conference, hosted by our blog-master, Dan Solove, this generation has very different experiences to past generations as they are the first generation to be born with – and to grow up surrounded by – all of this technology that we are now beginning to take for granted.  It is an interesting shift in the literature that some of the more prominent “digital immigrants” are now focusing their work on the “digital natives'” point of view.

6

Databases and Australian Copyright Law

I’ve just been reading last month’s decision of the High Court of Australia in IceTV v Nine Network. (The High Court is Australia’s equivalent of the U.S. Supreme Court.) Here’s where Australia apparently rejects the “sweat of the brow” test for copyright in Australia, and takes an approach more akin to the Supreme Court’s decision in Feist. The Supreme Court in Feist had famously rejected the sweat of the brow test for copyrightability of databases – in that case an alphabetical listing of names, addresses, and telephone numbers in a white pages telephone directory. The Court explained that to attract copyright protection there must be sufficient originality in the selection, organization or arrangement of database contents to satisfy copyright’s originality requirements – pure hard work or expenditure of resources would not be enough. Many European countries take the same view. Australia was one of the few countries that still subscribed to the idea that copyright was appropriately granted for such hard work. Australian courts as recently as 2002 had espoused this notion with respect to a white pages telephone directory.

Read More