Tuesday, December 21, 2004

Whereas the City of Heroes dispute involves a company making a product that consumers can use to emulate trademarked characters, iPod My Photo seems a lot more straightforward from the trademark perspective: the company transforms a consumer's picture into something that looks like an iPod ad. See larger samples here. The company is, for profit, emulating the distinctive iPod ads, including the image of the iPod (though a consumer can say "no," the default is "draw the subject(s) wearing an iPod"). Seems like something that might cause post-sale confusion about whether Apple authorized the images -- and it seems like something Apple might want to monetize itself, if it's so darn popular that people will pay to advertise not just the iPod, but the ad style itself.

It's almost incidental that the site uses "iPod" as a verb, which is supposedly a trademark no-no. In the past, using a trademark as a verb might have helped slide it into genericity, but in these IP-savvy days I doubt it makes any difference. We all know that "Xerox" and "Google" are trademarks, even as we instruct others to xerox and google in appropriate contexts. (The verbs "iPod," "xerox," and "google" are examples of zero derivation, in which a word is made to play a different part of speech without any suffix or other marker such as "-ize." English, that most flexible of languages, never ceases to amaze me with its adaptability.)

That being said, the site's pretty cool; I wouldn't turn down an iPodized picture of myself, or maybe my cat -- the cat sample picture looks good.

Wednesday, December 08, 2004

I can sympathize with this Onion article: Son, We Need To Talk About This Supreme Court Obsession Of Yours.

I got myself in some hot water last year when I referred students to an Onion article about a successful trademark suit filed by a tanning salon against Tanzania, which ended with a preliminary injunction against the nation's use of its name. Several of my foreign students -- rationally enough, really, given how wacky US law can be -- thought it might be true because I didn't explain that the Onion is parody. The story is now pay-only on the Onion's site, but a blog report -- including some comments that took the "news" seriously -- can be found here.

Monday, December 06, 2004

Not what you want as a response to your threat letter: FairTest, an organization that often challenges reliance on SAT scores in education, received a threat letter from the College Board, which runs the SATs, claiming that the scores posted on FairTest's site infringed the College Board's copyright. FairTest responded. Making claims on behalf of rival ACT might be one of the most interesting instances of overreaching I've seen in a while.

What's sad is that the claim that a score -- a single number, or even a series of them -- is protected by copyright is not generally ludicrous, though in this case I think it is. But some cases have held that prices are "compilations" and thus protected by copyright. If a number is produced by the exercise of skill and judgment -- determining, for example, how to aggregate cars to determine an average price for a certain make and model in a certain geographic area -- then a claim of copyrightability passes the laugh test, even though copyright isn't supposed to exist for words and short phrases. I suspect the College Board is prepared to argue that, like prices, its categories (scores by race, gender, family income) are produced not mechanically but by making decisions -- about, for example, how to define "race" ("multiracial" is an option, as is "other," as is "prefer not to respond," as is no "response") and where to break income levels ($18,000 or $20,000?) -- and therefore the resulting numbers are the product of the College Board's creative judgment.

I'd be inclined to call these numbers unprotectable "facts." Though the fact/expression line is a tricky one, these are not particularly creative decisions even though they could have been made in other ways, and in any event, given the public policy interests at stake, there's not much point in finding the scores copyrightable when I can hardly imagine an unauthorized use that I wouldn't find to be fair.

Saturday, November 20, 2004

Jonathan Zittrain presented at GU on Free Software and the Future of the Internet, an extension of his earlier work on Normative Principles for Evaluating Free and Proprietary Software. Brief summary from my notes:

Two historical oddities of note: (1) The computer, an item that wasn’t very useful as it came off the production line, but was fairly easy to write programs for. Creators of .exe files came from all places, including college dropouts. Consumers bought computers based on their current functionality, but that potential openness vaulted PCs past dedicated/more vertically integrated technologies such as word processors. Zittrain calls this “generative” technology, technology that encourages new uses and applications. (2) The Internet with its hourglass architecture. At the bottom, electrons can flow through any medium – copper, fiber, radio. Internet Protocol is in the middle, TCP/UDP above that, SMTP/HTTP/RTP etc. above that, and on top email, www, phone, etc. Thus, the system is neutral with respect to applications users might run. And those applications are easy to adopt, like blogging software. Indeed, blogging software was what finally got me to learn whatever html I know, which isn’t much but is enough to play.

But there are countertrends. First, entrepreneurial: SCO’s claims against Linux, where SCO is trying to market “new and innovative licensing programs” rather than non-legal products. Second, regulatory: all those lawsuits over file-sharing etc. Third, technical: from an owner’s point of view, you don’t want your mode of communication to be your mode of control – e.g., you don’t want phone customers to be able to get free calls by picking up the phone and playing the right tone on a whistle. The Internet, similarly, is vulnerable in that the very routers that send packets are instructable by the right kind of packets. Thus the virus/malware problem, especially since the technology is so widespread now that plenty of people (like me) use technology they don’t understand.

Implications: more dedicated devices, with the premise that you can trust such devices more, such as Diebold’s voting machine (an ironic example). Even if you can hack your Blackberry or your TiVo, how many people want to? Zittrain suggests TiVo is a very powerful example of using tech to separate the sheep from the geeks. “Warranty void if screw removed” is a greater deterrent to tinkering for most consumers than threats of lawsuit by the RIAA if you use Kazaa. Some people will still hack, but they won’t share what they’ve done with the rest of us when we’ve got all these dedicated boxes.

Zittrain is worried by this end of openness. He wants it to be reasonably easy to make something cool and different based on the same platform that everybody else is using. My take is that he’s not really worried about the end of hacking – people who tinker are always a small subset of people who use a mature technology, and the relative and even absolute decline in “smart” Internet users is neither odd nor even sad in my opinion. He’s more worried that innovations created by hackers will not be able to spread, commercially or noncommercially, because of regulatory and technological barriers.

This is a great project. I’d like to see more clarification of the types of creativity Zittrain wants to protect, though, since he says he’s most interested in letting people collaborate on the creation of meaning. Celebrating Blogger is not the same as celebrating tinkering with your DVR; one is about the immediate generation of content, albeit often highly derivative content like my post here, and the other is more mechanical, though it may result in communicative activity if you manage to put your recording of Desperate Housewives up on Bittorrent.

Is hacking your DVR really collaborating on the creation of meaning? If it is, then tinkering with your car is doing so too, though in a different way – and this is especially true if you then write into a tinkerer’s magazine sharing your insights, or if you take your hot-rodded car out and drag race with other buffs. (I find it unlikely that there were ever more software programmers working in their garages than amateur auto mechanics working in their garages, even if Bill Gates did hit the big time.)

Zittrain suggests that tinkering with motorcycles and chemistry sets is more dangerous than hacking, though he admits that malware problems might equalize some of those risks. Maybe there’s something to be said for danger – Oliver Sacks’ Uncle Tungsten: Memoirs of a Chemical Boyhood is eloquent on the wonders of the chemistry set for teaching a young mind to think. More generally, Zittrain’s project is in a way part of the history of technology, and therefore we might learn something from comparing the trajectory of the Internet from enthusiast’s hobby to modern necessity with the trajectory of other universalized technologies like cars and radio.
In response to the MPAA etc. copyright education initiatives I mentioned the other day, someone has started a wiki to create an alternative copyright curriculum from a less protectionist perspective: Collaborative Copyright and Technology Curriculum. It's not as slick (or as well-edited) as the sites on the other side, and several pages remain completely unwritten, such as "How does copyright affect me?" and "What rights do I have as a member of the public?" So it's an opportunity for anyone interested to contribute to the debate, and maybe in a while it will be an interesting contrast to places like Respect Copyrights.org.
The useful TTABlog posted a bit about the rejection of an opposition by Archie Comics here. The opposition (to ARCHÉ for various cosmetics) seemed properly rejected; what I noted was the commentary: "Now I know next to nothing about this subject, but I am surprised at the suggestion that, in this electronic day and age, there are still girls out there who subscribe to comic books."

I don't know about subscriptions as opposed to store purchases, and I have no idea how well Archie is doing in the battle with manga for girlish readers, but I do know a lot of women who've read comics for a long time. (By the way, Friends of Lulu is an organization devoted to promoting greater female comics readership.)

The TTAB said, "Opposer has put nothing into the record to establish what percentage of girls 6-14 who subscribe to comic books also are potential purchasers of cosmetics." Now, this could be standard after-the-fact pile-on reasoning to support a conclusion the Board already reached, but I wonder if there's a bit of comics discrimination going on here as well, as if we geeky girls weren't likely to wear makeup too. In the context of Archie Comics, most of my exposure to which came in the Christian bookstore back in Madison, Wisconsin when I was a kid, I find that supposition particularly amusing. Archie isn't exactly at the forefront of separatist feminism. Betty and Veronica wear plenty of makeup -- but I'm guessing they won't be wearing ARCHÉ.

Thursday, November 18, 2004

So, in my forthcoming essay, there's a section asking whether I'm being Chicken Little when I say that current trends threaten the ability of ordinary people to copy even small parts of copyrighted works, such as quotes in yearbooks. I suggest that copyright owners may well threaten such uses when they find them, which is becoming a lot easier as the Internet connects us all.

What I didn't know about then and wish I could have put in is this: Copyright Kids!, a website touted by the MPAA and run by the Copyright Society of the USA, has a "copyright education" module designed to teach kids how to put together a multimedia yearbook. Sure enough, the "copyright cat" who instructs the yearbook kids tells them that quoting (copyrighted) poetry is probably a bad idea, using art/photos not in the public domain requires permission (no mention of fair use), quoting books may be fair use but they need to check with the teacher, and quoting their classmates requires permission. The site advises seeking permission in essentially every case, even for excerpts and for transformative uses like photocollages. It even suggests that using a photo of the Mona Lisa requires the permission of the photographer, which is contrary to the one case on point.

This isn't active enforcement, but it is a move towards changing norms, and not in a good way. School administrators/yearbook heads who learn from this site are learning to cripple themselves and their students, and if many schools modify their practices in similar ways, the remaining quoters/clippers will seem less fair. So, am I Chicken Little? Or is there a real danger here?

Wednesday, November 17, 2004

Wired News: Movie Studios Sue File Traders: What I really, really like about this story is the line, "The MPAA will also offer free software that people can use to rid themselves of copyright material on their computer." (1) Unless it wipes the computer, um, no it won't, because everything you write (draw, etc.) is copyrighted at the moment of fixation, not to mention the copyrighted works that are present either with the copyright owner's authorization or legitimately subject to an exception or fair use; (2) the use of "copyright" instead of "copyrighted" seems to me a subtly ideological move, along the lines of Republicans redefining the Democratic Party as the "Democrat Party." "Copyrighted works" are a subset of works, as opposed to uncopyrighted works; "copyright works" are all creative works, works like movies or books, as opposed to machines and the like. It's part of a move to convince people that copyright is the natural home of creative works and that uncopyrighted works are weird. Of course, internationally this move has already succeeded, so it is no surprise that the project is underway in the US; given that copyright now subsists at the moment of fixation, I admit that "copyrighted works" is something of a redundancy. But the new phrase still operates as code identifying where a person stands on the protectionist spectrum.

Tuesday, November 16, 2004

Marvel sues computer game company for allowing players to create Marvel-like characters. The complaint alleges direct, contributory and vicarious copyright and trademark infringement. My immediate reaction, without much exposure to the game: direct copyright (and perhaps trademark) infringement -- possible, depending entirely on the marketing materials; contributory and vicarious trademark infringement -- ludicrous, since the players are not using the characters to sell anything; and contributory and vicarious copyright infringement -- very interesting. It's not quite the same as suing Crayola for providing the tools for kids to draw Wolverine, but it's definitely on the spectrum.

Monday, November 15, 2004

In Something Borrowed, writer Malcolm Gladwell confronts what he first took to be a case of plagiarism of his work: reuse of phrases and concepts from an earlier New Yorker article he wrote in a Broadway play on the same topic. But as he explored the issue, he began to see reuse of his work in a different light, as part of the great chain of creativity. (Interestingly, while he ultimately seems to think the playwright was generally free to use his work and doesn't explicitly disagree with the playwright's distinction between fiction and "news," he still attributes quotes from other people and his transcription of someone else's television interview to himself -- not acknowledging that he wasn't the creator of those parts of the story.)

Tuesday, November 02, 2004

Update: Conflicting information on the Rubik's cube/Department of Homeland Security thing -- though the TM owner asserts rights in the design of the puzzle in the EU, it seems as if only the word mark "Rubik's Cube" is a registered TM in the US. I would think the design is functional, but maybe not. The deeper question, it seems to me, is not whether there is a potentially valid IP claim underlying the visit to a toy store, but why Homeland Security is visiting a toy store in the first place. Are they terrorist cubes?

Monday, November 01, 2004

Stupid homeland security tricks: Homeland Security goes after patent infringement ... or was that trademark infringement? ... so hard to tell. And the patent was expired, too. We can all sleep better at night knowing that our government is alert for terroristic puzzle toys.

You really do have to wonder what triggered that particular trip.

Tuesday, October 26, 2004
