Category: Intellectual Property

And a Fashionista Shall Lead Them

fashionattitude.jpgIn honor of Chloe’s triumph on Project Runway (design at right), I thought I’d blog about Chris Sprigman’s and Kal Raustiala’s brilliant paper, The Piracy Paradox: Innovation and IP in Fashion Design.

“Soft IP” rights (as copyright and trademark are often called) have grown enormously. In many industries, copyrightholders are insisting on the right to control even fragments of works. Trademark holders can protect not only their marks, but also aspects of the packaging and design of their products. Promoters of this trend claim that without strong rights, no one would invest in music, books, marks, or other easily copiable expression.

But IP protection apparently isn’t that necessary in the fashion industry. In couture, “copying is rampant . . . [y]et innovation and investment remain vibrant.” The authors attempt to solve this “piracy paradox” by describing how the “snob value” of high fashion is preserved via “induced obsolescence.” As a design gets copied, its value falls precipitously–driving early adopters to buy newer designs.

The article hits some sublime points, such as Jean Cocteau’s observation that “art produces ugly things which frequently become more beautiful with time. Fashion . . . produces beautiful things which always become ugly with time.” But it sidesteps some normative questions about induced obsolescence that might point to new directions for IP scholarship…

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More re-edited movie trailers

A while back, we discussed issues arising from the re-edited Shining trailer. Now making the rounds: A new (and pretty funny) re-edited trailer, Brokeback to the Future. Given the proliferation of editing software (making re-editing easier and better), and the popular reception that the funnier trailers receive, I suspect that re-edited movie trailers are not going away any time soon.

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Epstein on Google

Richard Epstein criticizes Google’s book library feature, at Financial Times:

If Google can unilaterally put this burden on copyright owners, then so can all of its rivals, forcing both publishers and authors to expend valuable resources just to preserve the status quo ante. This “negative option” approach has been roundly rejected in traditional contexts, as with audacious publishers who send notices telling hapless addressees that they’re now subscribers for a year unless they return some opt out notice.

I’ll leave it to the IP experts around here to say whether he’s right or wrong on the details. If he’s right, it doesn’t bode too well for Google books.

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Privacy of Internet Search Records

subpoena1.jpgHere are some recent interesting links about the privacy of Internet search records:

Check out Patriot Search for a laugh. It’s a new search engine where your results are reported directly to the government: “Our mission is to provide the best possible search engine to you while at the same time, making sure the government is informed should you search for something obscure, illegal, or unpatriotic.” [Thanks to Scott Forbes for the link.]

CNET has interviews with Internet search companies about the kind of data they retain about their users. Of the many questions asked, the answers to these two questions are particularly interesting:

1. “Given a list of search terms, can you produce a list of people who searched for that term, identified by IP address and/or cookie value?”

AOL: “No. Our systems are not configured to track individuals or groups of users who may have searched for a specific term or terms, and we would not comply with such a request.”

Google: “Yes. We can associate search terms with IP addresses and cookies, but not with users’ names unless they are registered with Google.”

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Baseball Statistics as Intellectual Property?

baseball1a.jpgFrom the AP:

A company that runs sports fantasy leagues is asking a federal court to decide whether major leaguers’ batting averages and home run counts are historical facts that can be used freely or property that can be sold.

In a lawsuit that could affect the pastime of an estimated 16 million people, CBC Distribution and Marketing wants the judge to stop Major League Baseball from requiring a license to use the statistics.

The company says baseball statistics become historical facts as soon as the game is over, so it shouldn’t have to pay for the right to use them. . . .

Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to “commercially exploit the identities and statistical profiles” of big league players.

The LA Times has a more detailed article. The complaint is here.

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DRM, Copyright, and Contract

Cory Doctorow at BoingBoing discusses a post from a blogger about an insert in the new Coldplay CD from Virgin Records. The insert states that the CD contains extensive Digital Rights Management (DRM) restrictions:

coldplay2.jpg

According to some of the restrictions, the CD cannot be copied onto a computer hard drive; songs cannot be converted into MP3 files; and it might not play in some CD players, such as portable CD players, car CD players, and others. I love the special rhetorical touches, such as that by purchasing the CD, you’re helping the anti-piracy cause and that the DRM is “special technology” added “for you to enjoy high quality music.” It reads as if the purchaser should be giddy with excitement that the CD contains this really cool technology that makes the CD less functional. Doctorow writes:

Coldplay’s new CD comes with an insert that discloses all the rules enforced by the DRM they included on the disc. Of course, these rules are only visible after you’ve paid for the CD and brought it home, and as the disc’s rules say, “Except for manufacturing problems, we do not accept product exchange, return or refund,” so if you don’t like the rules, that’s tough.

I’m not a contracts or commercial law expert, but since most CDs do not have such restrictions, it is reasonable for a purchaser to assume that the CD will have a similar level of functionality as other CDs. To the extent that a person is sold a CD with much less functionality, it would strike me that the purchaser would not be out of luck, but would have some potential legal remedies. Since the issue is beyond my range of expertise, I pose the question to readers more well-versed in this area of law: To what extent would a purchaser of the Coldplay CD have any right to return the CD notwithstanding the clause that prohibits returns absent a manufacturing defect?

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What If Copyright Law Were Strongly Enforced in the Blogosphere?

copyright3a.jpgSuppose the mainstream media, fed up with the buzz bloggers keep getting and with bloggers criticizing their stories, decided to exact revenge. They initiate a vigorous copyright enforcement strategy, launching a barrage of lawsuits against bloggers as the Recording Industry Association of America (RIAA) has done to music file sharers. What would happen?

The blogosphere would be in for some tough times I bet. Bloggers frequently copy large chunks of mainstream media articles and some of us copy pictures we find on the Web. Bloggers don’t have a team of photographers and artists, so they snag images from the Internet. As for mainstream media articles, bloggers often quote very liberally because the mainstream media is notorious for creating dead URLs — articles often just disappear after a week or two. In other instances, articles get archived and can only be retrieved for a fee. The result is that a post discussing a mainstream media article with just a link or a small quote can become hard to understand when the article being referred to becomes unavailable. That’s why bloggers often copy significant portions of articles — so their posts can still be understood when the URLs to the articles go dead.

We bloggers have, to put it mildly, a very robust concept of fair use. Fair use of copyrighted material is a fuzzy concept, and judges use four factors to determine if a use is fair:

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Blog Post Piracy

piracy1b.jpgSteve Rubel of Micro Persuasion writes:

Two weblogs are republishing my content without permission. One is called “Advertising, News & Information.” This site is profiting off my content by running Adsense. The other is called Podcast Rebroadcast.

This appears to be a common problem. Jason Calacanis wrote in June that we should call these people out. I am doing my part. Beyond going to partial text RSS feeds – which I am loathe to do – I have really no other course of action right now other to email the site operators, which I have done.

There is, of course, copyright law. The creative commons license for Rubel’s blog states that the work must be attributed to its author and it cannot be used for commercial purposes. The pirated post doesn’t contain his name on the post or the name of his blog, but it does at least have a link to the original post on Rubel’s blog. Is this sufficient enough attribution? As for commercial purposes, the blog copying Rubel’s posts is displaying Google Ads.

The Advertising News & Information blog appears to go by the name of Surferdiary.com Advertising Blog, and it appears to contain copied posts from a variety of different blogs. All say “Posted on [date] by Administrator” at the top, and all seem to have a link called “Source” that links back to the original post.

surferdiary2.bmp

One of the ironies is that the Surferdiary.com blog contains Rubel’s very post complaining about the piracy of his postings.

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Jennifer Aniston’s Cease and Desist Letter

confidential2.jpgEric Goldman has a very interesting post about the cease and desist (C&D) letter that Jennifer Aniston’s attorneys sent to the paparazzi who took her photograph. The letter is posted on The Smoking Gun website. The letter states several times that it is to remain confidential, and it has this language:

This letter is a confidential legal communication and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of the Copyright Act, and You are not authorized to publish this letter in whole or in part absent our express written authorization.

Goldman observes:

How can a lawyer claim that a cease-and-desist letter is a confidential communication? In general, sending the letter to a third party without any confidentiality assurances should blow any legal confidentiality protections. . . . . I don’t see how the confidentiality demands/instructions are anything more than hyperbolic and low-efficacy scare tactics.

The copyright issue is more complex. The letter should qualify as an original work of authorship, and posting the letter online should violate at least 2 of the 106 rights (reproduction and distribution).

But is there some legal defense that nevertheless permits the reposting of C&D letters? The most obvious one is fair use, but fair use analyses are always tricky. . . .

Senders of C&D letters should be accountable for their actions. They seek legal redress and the letters themselves are legally significant (i.e., they could create the basis for willfulness determinations; they may be the basis for the recipient seeking a declaratory judgment). To fully understand what is taking place in the field, information about these C&Ds has to enter the public discourse. And simply reporting the receipt of a C&D isn’t enough–to understand the letter and its potential impacts, external observers have to read the precise words used.

Therefore, I would strongly favor a statute that exculpates C&D letter recipients from republishing the letter. Because such a statute is unlikely, I am hoping the courts will create a defacto per se fair use exclusion for republishing C&D letters. Meanwhile, kudos to the Smoking Gun for not letting the repeated exhortations keep the letter off the Internet.

I wholeheartedly agree. There’s more at Eric’s post, which also discusses how Google goes about publicizing the C&D letters it receives.

Related Posts:

1. Solove, Jennifer Aniston Nude Photos and the Anti-Paparazzi Act

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File-sharing & Social Capital

In the intellectual property / cyberlaw niche of the legal academy, I think it is fair to say that the litigation over Napster and Grokster has resulted in so much spilled ink that it is hard to keep up with the commentary. Indeed, while these are cases in my bailiwick, I never finished reading through the panoply of Grokster amicus briefs, much less all the law review articles on file-sharing.

What becomes quickly apparent from a skim of the literature, though, is that the policy questions entertained by lawyers in relation to file-sharing aren’t as interesting as they might be. Copyright is a doctrinally complex regime of statutes and caselaw. However, at its core, it presents a fairly simple policy story, one of economic incentives for greater production and distribution. In other words, through our legal policy lens, the song becomes a widget and the accepted policy goal becomes the production and distribution of more and more widgets. Thus, to the extent a complex legal doctrine permits it to come to the surface, the relevant policy question for file-sharing is whether it will provide the public with more or fewer song-widgets. It’s a bit disheartening that our intellectual property policy equates songs like American Pie, Hey Ya, and Toxic with three fungible barrels of crude oil–but perhaps judges, as Justice Holmes once opined, shouldn’t really be in the business of making artistic policy judgments.

As a result, though, what often gets left out of the myriad legal ponderings on file-sharing is the social dimension of the activity. This isn’t true across the board by any means — Rosemary Coombe, Mike Madison, and recent guest-blogger Joe Liu, for example, have written law review articles with a clear interest in how popular content “consumption” is actually something much more interesting than the term suggests. But because the legal doctrine of copyright rests on that reductive incentives story (with a constitutional basis), it likely seems to many legal scholars that there is little reason to pay attention to the cultural dimensions of intellectual property law.

That’s all by way of background to why I found this paper, presented at the CHI conference in April of this year, so interesting.

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