Category: Intellectual Property

31

Crescat Sententia’s Exploited Domain Name

crescat2.jpg

Recently, the blog Crescat Sententia’s domain was taken over by a company that snatches up any expired domain names of popular websites the minute the original owner fails to renew. The company then tries to exploit the Google Page Rank of the domain or tries to sell back the hijacked domain to the original owner for a hefty price.

Originally, the blog was at the URL http://www.crescatsententia.org/. If you visit that URL, you can see that the blog’s full contents remain. The new URL is http://www.crescatsententia.net/. At the new site, Will Baude writes:

In September, without my knowledge or consent, our old domain was purchased by a Search Engine Optimization firm that intends to make money by either reselling the domain for a pretty penny to somebody greedy for its pagerank, or by using that pagerank to sell links to sites eager to trick Google. The webpage up there now is not this blog (it’s an old cache that he will have to take down soon), and this blog is the current and future home of crescat.

Because of the switcheroo, I can’t post a notice over there telling everybody where we’ve gone, so we’re reliant on people updating their blogrolls, and on word of mouth. With your help, hopefully we can minimize the disruption this has already caused.

This practice just seems wrong, and I think that there’s at least a case for copyright infringement. What potential legal recourse could the folks at Crescat take? I’ll leave it to the cyberlaw and intellectual property experts to opine on the viability of any legal redress.

UPDATE: When Will Baude emailed the owner of the company that bought up his domain name, here’s the response he got in return:

Hi William,

Thanks for your email. The content on crescatsententia is not copyrighted nor is it revenue generating so there would be no issue with the domain in its current state. Obviously the site will not remain on the domain when we sell. We left the domain on the site while you backed up your files. We were not obliged in any way shape or form to contact you so that you could save your content.

Now you reply with this stupidity. Domain names have set registration periods. If you fail to register your domain out of stupidity or ignorance then it is made available to the general public. If the domain had not been purchased it would have been deleted and all work lost.

The sale of the domain will go ahead. The new owner will have the great privelege of utilising a pr7 established domain which registers thousands of visitors a day. As is customary for such idiots; the domain will most likely be converted into a gambling site, an adsense site or a site for the adult industry which will be a great waste. However, I am no longer in control of such things and the domain needs to show a return on our considerable investment.

Again; the content will stay up for now. It was requested to remain live by yourself and im sure taking it down would affect your readers. Perhaps you will be able to contact some of them before the sale goes through and give them the new address. You never know some reader may even buy it back for you.

Happy Blogging!

7

Whole Latte Trademark Trouble

Greetings from sunny Northwest DC! I’m a bit slow out of the gate as it’s taken me a couple of days to recover from Halloween. Here’s what I look like today; obviously slowly getting back to my old self.

Witch.JPG

I thought I’d make my first post about a story that combines two topics about which I am obsessed: trademarks & coffee. It seems there’s a controversy brewing between Starbucks & the gov’t of Ethiopia over the designations of certain Ethiopian coffee beans. The short version: apparently Starbucks, through the a trade association it dominates, is opposing Ethiopia’s US trademark applications for SIDAMO & HARAR. (Ethiopia’s earlier trademark for YIRGHACHEFFE must have escaped notice.) The story was brought to light by Oxfam who is bitter over the action, which it says blocks Ethiopia and it’s poor farmers from annual revenues of $88 million. The thinking here is that control of the intellectual property connected with these famous coffee beans translates into increased revenues. Presumably, Starbucks’ Sidamo beans, which now sell for $10.45 a pound, would cost a little more due to trademark license fees, which would be passed on to Ethiopian farmers by their government.

The piece that doesn’t make sense to me is why Ethiopia is seeking trademarks rather than certification marks. Although this may seem a technical point, it relates to a global battle over the protection of geographical indications (GIs). The European view is that GIs are an important form of IP that protects things like champagne & feta. The US stance is that basic trademark law is more than enough protection. The US has been promoting certification marks, a type of mark protected under federal law, amongst developing countries (mostly through Free Trade Agreements) as a counter to the European model. HARAR would work as either a GI or a certification mark since the distinctive beans are associated with the Harar region. But as a trademark it has trouble because it may be understood less as a brand than as a type of bean. Whether a trademark or a certification mark, Starbucks would still have to license the use the word. I note that in an earlier proceeding in which Ethiopia challenged a Starbucks’ mark including Sidamo, Ethiopia similarly claimed previous use as a mark (since 1929). (Starbucks voluntarily abandoned that mark.) The certification mark strategy might save Ethiopia from a challenge that the term is generic since even Starbucks admits that Sidamo is the “birthplace of coffee.”

Sidamo.jpg

I’ve put in a call to Ron Layton, founder of Light Years IP, who is advising Ethiopia on their strategy. I’ll report back any intelligence.

UPDATE 11/6/06

Today Starbucks has taken out a full-page ad in the New York Times defending itself from Oxfam’s attack. Last week Oxfam took out full-page ads in a few major west coast papers decrying Starbuck’s position on Ethiopia’s trademark strategy.

Levity and Danger

gootube.jpgAndrew Sullivan has been doing a very funny series on “Worst 80s videos;” I think “We Built This City” by Jefferson Starship (nee Airplane) wins, with a close second from Journey. Of course, everything’s coming from YouTube, whose potential copyright liability is a hot topic in the IP blawgosphere. But perhaps even more striking here is the potential liability of sites that link to infringing content on YouTube sites. The legal landscape is complex, and as Stacy Dogan has noted, there’s a wide range of ways courts may characterize the links when assessing secondary liability:

In the narrowest view, a link is no more than a citation, the relationship between linking and linked-to site no more significant than that between a scholar and the material that she cites. In the broadest view, the link achieves the “functional equivalent of transferring” the linked content, with the linker acting as a provider of the linked-to material. The choice between these competing views has obvious import in evaluating the legal responsibility of those who link. (from Infringement Once Removed: The Perils of Hyperlinking to Infringing Content, 87 Iowa Law Review 829 (2002))

It’s a pretty complicated area, and the hacker magazine 2600 learned the hard way that a link to material that helped people circumvent technological protections of copyright was itself a DMCA violation. [I had earlier, mistakenly, called this a criminal offense; see comments below.] The question after Grokster may well be whether a hyperlink to infringing content is a way of “inducing” infringement.

In any event, Google (which recently took over YouTube) doesn’t appear to want to take any chances. It’s a lot more willing to take on publishers than the big audiovisual content owners. Which raises one more interesting question: will the movie industry exert as much control over Google/YouTube as the music industry exercises over iTunes? And might it be a form of copyright misuse for big content owners to leverage control over copyrighted works into control over all sites that categorize or comment on (fragments of) their works?

4

Copyright pirates, they’re certainly no Boy Scouts

And if they were … well, I guess they wouldn’t be able to get this new activity badge, would they? The MSNBC story notes:

Boy Scouts in the Los Angeles area will now be able to earn a merit patch for learning about the evils of downloading pirated movies and music. . . .

The movie industry has developed the curriculum. “Working with the Boy Scouts of Los Angeles, we have a real opportunity to educate a new generation about how movies are made, why they are valuable, and hopefully change attitudes about intellectual property theft,” Dan Glickman, chairman of the Motion Picture Association of America, said in a statement Friday. Scouts will be instructed in the basics of copyright law and learn how to identify five types of copyrighted works and three ways copyrighted materials may be stolen.

An interesting way to try to rein in the Young and the Lawless, no? There are obvious issues here — in particular, whether the Boy Scouts should be turning over instruction on a somewhat controversial issue to an advocacy group. On the other hand, if executed well, this could be a good idea. Given the widespread use of file sharing programs, and misunderstandings about law, I suspect that many Scout-age youth could use a sobering reminder that they can’t just copy anything and everything.

2

For the True IP Geek: Podcasts of IP Conferences

The Berkeley Center for Law & Technology has now made podcasts of its fabulous August IP conference available online here.

And the UC Davis Law Review has made our March “Intellectual Property and Social Justice” conference available as free podcasts on iTunes.

Putting audio of academic conferences online is a tremendous advance. It makes the leading scholarship available worldwide to those with access to the Internet. At the same time, it enables scholars who cannot attend multiple sessions occurring simultaneously to listen to what they missed–or to review sessions they found especially valuable.

Law Reviews should make this a standard practice.

The obvious next step: YouTube.

Net Neutrality: Law, Money, and Culture

dailyshow01.jpg

Bill Moyers enters the fray in the raging legal debate over net neutrality tonight, with a documentary on PBS. The Wu/Yoo debate on the topic gets the central issues on the table: should we permit dominant ISP’s (like Verizon and Comcast) to discriminate among the “bits” on their networks, giving more rapid service to preferred sites? I’ve offered some tentative thoughts on the matter, and these continue in that vein.

The net neutrality battle may offer us a classic efficiency-equity tradeoff. Imagine a world where everything on the internet came to you four times faster, but dominant ISP’s could cut deals with certain sites that made their content come 10 times faster. On many classic economic accounts, that would be Pareto-optimal–everyone’s better off. As some very smart people (like Philip Weiser) have claimed, that differential pricing could finally lead to revenue levels that would remedy the US’s unacceptably slow pace of getting people connected to broadband (and faster) networks.

But on the other hand, what about the competitive disadvantage of those unable to cut the deals? Compare this article reprinted in the Boston Pilot (the Boston Roman Catholic Archdiocese’s official paper) touting net neutrality and this piece from Brookings-AEI disparaging it as a form of “price control.” The economists just tend to miss the cultural importance of media consolidation. That’s what convinced me that the stakes are ultimately a “battle for mindshare” (to use Hannibal Travis’s evocative metaphor), and can’t be cast in simple economic terms.

Read More

2

This Is My Domain, Well Everyone’s Really: Google and Full Text Public Domain Books

library 2.JPG

I remember watching Tarzan as a kid and hearing the declaration “The jungle…this is my domain…and I protect those who come here. For I am Tarzan, lord of the jungle” at the beginning of every episode. Well Google has taken up the public domain cry and in effect has said “This is public domain and we share it with all. For we are Google, lord of information.” Google’s latest cool offering is in Google books. As Google puts it “Starting today, you can go to Google Book Search and download full copies of out-of-copyright books to read at your own pace. You’re free to choose from a diverse collection of public domain titles — from well-known classics to obscure gems.”

The CNET article about the service notes that Google seems to be taking a somewhat conservative approach to the definition of what is in the public domain including screening access based on different country’s laws. Indeed Google cautions users to “please confirm the legality of your actions. The rules of public domain differ from country to country, and we can’t offer guidance on whether any specific use is allowed. Please don’t assume that a book’s appearance in Google Book Search means it can be used in any manner anywhere in the world.”

My guess is that the disclaimer is a way to combat some publisher who argues Google is liable for contributory infringement. And to me the country access restriction is an interesting way to try and honor differing countries copyright laws without only using the most restrictive definitions, but I wonder whether Google will use that same technology to honor reduced access to this information for political demands. This point was at issue with China already.

Finally some of you may want to check out Paul Heald’s (Georgia) abstract and summary for his empirical study of public domain and copyrighted best sellers. The study examines the hypothesis that copyright extension is necessary to ensure that copyright holders would “restore older works and further disseminate them to the public.” I heard Paul present the piece at the IPSC conference a few weeks ago and his use of the data to reach his conclusion about whether works are under-exploited is worth a look. I won’t tell you the conclusion because that would be a spoiler.

7

Copyright and Bar Exam Questions

pmbr.gifA federal district court recently held that PMBR was liable for a copyright violation for using questions from the Multistate Bar Examination in its classes and materials. PMBR, the “Preliminary Multistate Bar Review,” is a bar exam preparation course. The opinion is available here.

The court concluded that many of the questions in PMBR’s materials are similar to those on the Multistate Bar Exam. In assessing damages, the court noted that “[s]ince plaintiff lost no hypothetical royalties, I cannot award actual damages in compensation. I can and will, however, factor the uniquely proprietary nature of the infringed questions

into apportionment of defendants’ profits.” Accordingly, the court awarded the plaintiffs nearly $12 million, one third of PMBR’s gross revenues during the time period of the violations. Moreover, the court held:

Defendants will be enjoined from copying, duplicating, distributing, selling, publishing, reproducing, renting, leasing, offering or otherwise transferring or communicating in any manner, orally or in written, printed, photographic or other form, including any communication in any class or other presentation, any questions obtained directly from any of NCBE’s copyrighted secure tests.

Hat tip: Lawschool.com

2

What Does It Mean to Be Interoperable?

PlugsInteroperability and content protection (a/k/a DRM) have been much in the news lately. As Deven blogged below, the French DADVSI law recently passed the French Parliament and then last week was modified by the Constitutional Council. Meanwhile, Apple is grappling with Norwegian regulators over the interoperability issue as well. And Randy Picker recently raised the issue of interoperability and video game servers over on the University of Chicago blog.

In the abstract, most people are in favor of interoperability, just like they are in favor of lower taxes, bigger houses, and better-tasting beer. But when it gets down to nuts and bolts, what’s the best way to provide for interoperability? More specifically, does an interoperable content-handling device need to protect the content in exactly the same way as the original device (which would arguably limit the amount of innovation)? Is there some sort of threshold of “good enough” protection that could be identified and mandated (and if so, by whom)? Or is it solely up to one party to decide?

Of course, there are many who hate content protection in all its forms; their answer is no doubt that the law should provide the broadest exception for interoperability possible, because that weakens content protection the most. This post is not really aimed at those people; debating the limits of an interoperability exception with diehard content protection opponents is a bit like discussing Carthaginian-Roman relations with Cato the Elder.

Read More

1

French Interoperability: Reversed, Pinned, and Twisted into a Pretzel?

combo lock 2.JPG

In what has been a whirlwind of changes, the French law to promote interoperability has apparently been eviscerated as unconstitutional. What began in around March as a strong stance mandating that owners of proprietary DRM systems share information to allow interoperability and prevent one company from dominating the online music market has become what appears to be an industry influenced law that, as the article notes, may generate the opposite results. The law is called the Dadvsi law (wikipedia entry here)

The law was seen by some as aimed against Apple because “iTunes files downloaded through Apple’s music service are protected by the company’s FairPlay DRM technology, designed to play exclusively on Apple devices such as the iPod.”

So how much influence did Apple and other industry players exert on this process? I ask this because not only did the interoperability mandate vanish but according to the article reverse engineering to gain interoperability (formerly allowed) is not only prohibited but may be fined; a new licensing system will be established so that those wishing to use the systems will pay a license; and the decriminalization of file sharing with “fine[s] of 150 euros ($191) or 38 euros ($48.50) for uploading or downloading music respectively” is now “a criminal offense and potentially face several years in prison or a fine of 500,000 euros ($638,200).”

Although the fines dor file sharing seem to have been almost written by the music and tech industry, perhaps most interesting change is the licensing system. What do patent, market defenders, and others think? It is unclear what rate the French government will impose through the licensing authority but nonetheless will a system that requires a company to license its technology help or hurt interoperability?