Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.
I'll continue to post here, of course, especially my longer pieces.
The Trademark Blog posts a interesting disturbing image of Miss Piggy with a breast baring pose obviously reminiscent of Miss Janet at the Super Bowl (Warning: the image may upset the sensitive) (Parody - Discuss Amongst Yourselves). Marty asks whether the image is a non-infringing parody (which comments on Miss Piggy) or an infringing satire (which merely uses Miss Piggy to comment on Miss Jackson). The case is point is the famous Dr. Seuss case which held that a satire of OJ Simpson in the style of Dr. Seuss was infringement.
Tech Law Advisor is quick to take up the discussion and quickly concludes that (Not Parody):
Miss Piggy baring her breast does not comment on Janet Jackson's exposed breast. The work shown here is quite simply infringement.
The problem here as in the Dr. Seuss case that Marty cites is that the supposed parodist merely use the work [Miss Piggy] as a vehicle to satirize something completely different [Miss Nasty]. [comments/links in original]
I disagree. To me this is a fairly clear case of parody of a parody.
Miss Piggy, afterall, is a sanitized, child-friendly parody of celebrity divadom, of which Miss Janet Jackson is an example. Miss Piggy was originally called "Miss Piggy Lee" after diva singer Peggy Lee. Since then, Miss Piggy has vamped in parodic versions of Calvin Klein, Guess? Jeans, Pulp Fiction, Sports Illustrated Swimsuit Edition, and Pretty Woman, not to mention so many, many others, including a Pigtoria's Secret shoot.
Miss Piggy clearly is meant to parody the sexuality of modern female celebrity-dom. Nevertheless, like all the Muppets, Miss Piggy's parody is sanitized for family consumption. Clearly, such sanitized family entertainment is itself ripe for parody, see, for example, directorial genius Peter Jackson's Muppet parody Meet the Feebles, in which Muppet-like creatures do drugs, porn and engage in other degenerate acts.
How better to parody Miss Piggy then to push her parody of female celebrity-dom into the realm of the absurd? The humor of this parody lies not simply in its reference to Janet Jackson's breast episode, but to our recognition of Miss Piggy as following in Janet's footsteps (as Miss Piggy has followed in the footsteps of so many other divas). The image is funny because it pushes our expectations of the sanitized parody of Miss Piggy beyond what her creators would have chosen. In the words of the Dr. Seuss decision, this image of Miss Piggy "mimics an author's characteristic style and holds it up to ridicule."
The Court of Appeals for the Ninth Circuit has overruled the district court which granted summary judgement to Netscape, which was accused of violating trademark law by selling keywords to advertisers in association with Netscape's search engine. The plaintiff is Playboy which has become to internet trademark law what Scientology is to copyright law.
The decision is an unfortunate extension of Brookfield's initial confusion doctrine beyond URLs and meta-tags to search engine keywords. However, this relatively limited decision merely gets Playboy over the hurdle of summary judgement and does not necessarily mean they will win the case. Read the decision: Playboy v. Netscape [PDF], 00-56648 (Jan 14 2004).
In particular, there is a very nice concurring opinion that attacks the foundations of Brookfield itself, and I highly recommend reading it.
Of course, the decision itself has some amusing lines. For example, in analyzing the eight Sleekcraft factors, the court determines that pornography is easily substitutable, particlarly graphic pornography:
We presume that the average searcher seeking adult-oriented materials on the Internet is easily diverted from a specific product he or she is seeking if other options, particularly graphic ones, appear more quickly. Thus, the adult-oriented and graphic nature of the materials weighs in PEI’s favor as well.
There is no citation for this admitted "assertion," so one wonders whether this assumption is based on the court's personal experiences. And what do they mean by "graphic" here? If one were searching for graphic pornography, one would be unlikely to be interested in Playboy.
WIRED reports that "contextual marketing" firm WhenU.com (a purveyor of pop-up and pop-under ads keyed to URLs and keywords) has won a decision against Wells Fargo, which was seeking a preliminary injunction against WhenU.com (Pop-Up Firm Wins Again in Court). Read the 66-page decision: Wells Fargo v. WhenU.com: Memorandum Opinion and Order Denying Plaintiffs' Motion for Preliminary Injunction [PDF]. The decision is an important victory for the end-to-end principle against attempted incursions by trademark and copyright law. Of course, there are a lot of facts to wade through, including this nugget for which Ben Edelman is cited as the authority:
Since 1996, millions of computer users have become regular users of the Internet and the World Wide Web.
Gee, didn't know that. Additionally, we learn:
The computer screen is composed of a series of picture elements (called "pixels") .... Pixels are arranged in a single layer of horizontal and vertical rows that form a grid on the computer screen. The particular color of each individual pixel which, taken together, make up the image displayed on the 2-dimensional computer screen, is determined by instructions received from the underlying computer program. [citations omitted]
The decision goes on to delineate the following facts:
36. A series of events must transpire in order for a user to view a web page via an Internet browser on his or her computer screen. Tr. IV (Edelman) 119-20.37. First, the remote server on which the computer code for a particular website is maintained sends the code to the user's web browser. Tr. IV (Edelman) 120. 3 8 . Second, the PC's browser then reads the code to determine how each pixel that makes up the computer screen should illuminate in order to create the specific on-screen display for that particular website. Tr. IV (Edelman) 120.
39. Third, the PC's browser then conveys specific instructions to the Windows operating system, which, in turn, will send these instructions to the PC's video card. Tr. IV (Edelman) 120. These instructions are stored in the video memory frame buffer portion of the PC's video card. Tr. IV (Edelman) 121-22.
40. Finally, the video card, thereupon, causes each pixel on the computer screen to illuminate so as to create the specific 2-dimensional on-screen display of the website. Tr. IV (Edelman) 120.
Well, you might think all these facts unnecessary (they certainly are boring to read), but in fact they were an important aspect of the case, as Wells Fargo was arguing that the pop-up windows were a modification of video RAM and thus modifications of the plaintiff's webpages. Video RAM! Suddenly, this extensive discussion of how images are displayed makes sense, although I have to question what planet the plaintiffs lawyers were living on. Apparently you can get paid big time lawyer-bucks for the sort of reasoning that results in claims that changes to video RAM are actionable under copyright law.
Still, not all of the plaintiffs arguments were this risible, and the decision is worth reading, particularly for those interested in trademark on the net.
Finally, Martin Schwimmer notes a major foul-up by the plaintiffs (Look Before You Litigate). Apparently, a subsidiary of Wells Fargo used the services of WhenU.com. Ooops.
Two of the presenters at The State of Play conference, demonstrating their wide-ranging interests, are finding trouble regarding ICANN.
Michael Froomkin is writing about the negotiations regarding the Free Trade Area of the Americas (FTAA) treaty, in particular, the issue of domain names on the internet (Domain Names and the FTAA: A Bad Mix). Some of the problems with the FTAA as regards intellectual property have been noted here previously (IP Justice on IP in the Free Trade Area of the Americas Treaty). Froomkin is rightly critical of the mandate that countries adopt the Uniform Domain-Name Dispute-Resolution Policy (UDRP) already used by ICANN for ".com" (among others) for use with regard to each countries' top level domain name, such as .ca for Canada. If you are interested in this issue, Froomkin's post is quite informative.
Susan Crawford post is bluntly entitled, Things are getting worse at ICANN. Crawford is rightly disparaging of ICANN's report that justifies a decision to amend contracts between ICANN and the registries: Staff Manager's Issue Report on the Need for a Predictable Procedure for Changes in the Operation of TLD Registries.
The San Diego Union-Tribune runs a Reuters wirestory on the difficulties some have taking time off from their TiVo (PluggedIn: TV viewers find TiVo addictive). A long list of recorded shows on TiVo apparently makes some feel guilty not watching them. While in the past, if you missed a show, you simply missed it. Now the show sits on TiVo's hard drive waiting for you to watch it. I can imagine this can be a problem for some, but most people have experienced similar feelings at one time or another. Have you ever felt guilty about not keeping up with a newspaper subscription, for example? Do you have a stack of magazines waiting to be read, eventually?
Though I don't think this phenomena particularly compelling, I do think that the social ramifications of TiVo are going to be quite interesting, as we increasingly switch from traditional broadcast to new hybrid models.
Side note ... who else thinks that the TiVo trademark is in danger of becoming genericized?
via Techdirt, see also BoingBoing
I found this C|Net News story a little disturbing (Search engines face drug test). Apparently, the National Association of Boards of Pharmacy (NABP) is meeting with search engine providers in order to encourage the search engines to "clean up" ads for prescription drugs - by running only ads from those certified by, surprise, the NABP. This seems to be yet another move by major companies to control search engine results to favor their interests, following in the wake of eBay (Google ads a threat to eBay trademark?) and Netflix (Trademarks cast shadow on paid search), not to mention countries like France setting some unfortunate trademark precedent (Google France fined for trademark violation).
Of course, this issue is a little more complicated, since there are safety issues involved. However, isn't that why we have an FDA? Well, yes we do, but the FTC sounds a warning note about private lawsuits:
"I'm not convinced that they [search engines] won't (face private lawsuits) if some minor purchases a controlled substance through facilities based on ads they've allowed to run," Cleland [the FTC's assistant director for the division of advertising practices] said."
No doubt some attorney will try to run with that ball, but we can only hope the lawsuit fails. After all, do we allow billboard owners to be sued when minors buy alcohol advertised on billboards?
Commercial speech, though subject to different levels of protection than other speech, is still important from a freedom of expression point of view. Advertising via search engines is going to be an important aspect of this speech on the internet. We should be concerned about how search engines restrict this form of speech.
I've spoken with Merriam-Webster's publicist and although he had no immediate comment as to why the term McJob was removed from the new word samples page (see, McWimps - Merriam-Webster Caving to McDonalds Threats), he did provide me the following statement:
SPRINGFIELD, MA., NOVEMBER 2003—Merriam -Webster Inc., publisher of Merriam-Webster’s Collegiate® Dictionary, Eleventh Edition, stands by the accuracy and appropriateness of its definition for McJob:
“a low-paying job that requires little skill and provides little opportunity for advancement”
Words qualify for inclusion in the dictionary because they are widely and commonly used in a broad range of carefully edited sources. For more than 17 years, “McJob” has been used as we are defining it in a broad range of publications, including The New York Times, U.S. News & World Report, Publishers Weekly, Rolling Stone, The Times (London), The Boston Globe, Ms., Harper’s, The New Republic, Utne Reader, The Vancouver Sun, Sunday Times of South Africa, and Queensland Australia’s Courier Mail.
In editing the Collegiate Dictionary, we bear in mind the guidance offered by Noah Webster that “the business of the lexicographer is to collect, arrange, and define, as far as possible, all the words that belong to a language, and leave the author to select from them at his pleasure and according to his judgment.” The English language is constantly changing and evolving, and it is the duty of Merriam-Webster editors to record and reflect these changes.
I'm glad to see this statement, but I still wonder about the removal of the word from the sample page.
In a related post, Dana Blankenhorn looks at the economics behind the phrase (McEconomics).
UPDATE 1310 PT
Merriam-Webster responds to the question of the removal of the word from the sampling page:
The "New Words Sampler" on the free site was not the Collegiate Dictionary--it was a marketing tool to promote the dictionary. "McJob" has not been removed from the Collegiate Dictionary, which can be found in print, CD-ROM, or online at www.merriam-webstercollegiate.com. Because people were confusing the content of the marketing piece with the full content of the Eleventh Edition of the Collegiate Dictionary, it is currently under revision; a new version will be restored soon online.
Hmmmm ...
UPDATED 1630 PT
Don't know why I misspelled Merriam "Mirriam", but I did. It is now corrected.
On Saturday, I took a look at McDonalds claim to be upset by the inclusion of the word McJob in the eleventh edition of the Merriam-Webster dictionary (McTrademark Follies). As I noted, the complaint seems quite specious since the word has been in common usage for nearly a decade and is found in many other dictionaries.
However, yesterday, Blind Höna | På Kornet noticed that the Merriam-Webster website has removed the term "McJob" from their page touting new words added in the 11th edition (McDonald's Newspeak: Unwanted words purged from dictionaries).
The evidence is clear: note this source HTML for the page with a list of some of the new words added to the 11th edition (http://www.merriam-webstercollegiate.com/info/new_words.htm):
<!-- pulled 11/10/03 <p>
<a name="McJob"></a><strong>McJob</strong> . . . . <em>noun</em> (1986) <strong>:</strong> a low-paying job that requires little skill and provides little opportunity for advancement
-->
UPDATED 1640 PT - Corrected misspelling.
MSNBC runs an AP wirestory reporting that hamburger purveyor McDonalds is upset by the inclusion of the word "McJob" in the latest version (11th Ed.) of the Mirriam-Webster dictionary (McDonald’s balks at ‘McJob’ entry):
In an open letter to Merriam-Webster, McDonald’s CEO Jim Cantalupo said the term is “an inaccurate description of restaurant employment” and “a slap in the face to the 12 million men and women” who work in the restaurant industry.....
“McJOBS is trademarked and we’ve notified them that legally that’s an issue for us as well,” Riker [a spokesman for McDonalds] said.
It has taken McDonalds this long to object to a term first coined by author Douglas Coupland in 1991? I wonder if McDonalds will make the effort to go after numerous other dictionaries that include the word:
The American Heritage Dictionary of the English Language first included the term in 2000: McJob
A reviewer of the American Heritage Dictionary of the English Language (4th ed.) would be surprised by the controversy (Reviews: AMERICAN HERITAGE DICTIONARY):
The list of words included for the first time is uncontroversial: terms like control freak, digerati, McJob, jewel box, microcredit, nanny state and wuss are now well established. [emphasis added]
UrbanDictionary.com - The "slang dictionary with definitions you write" - has five submitted definitions: McJob
A search on Google provides 5,520 hits (which will probably be increasing shortly).
Doesn't Mickey Ds realize that such efforts will only popularize the term even more? If they had ignored it, it probably would have died out, like one of the words Mirriam-Webster dropped (Out with the snollygosters). After all, "McJob" is sooo 1990s.
This would be funny if McDonalds weren't threatening legal action (alright, it is still somewhat funny). LawMeme's James Grimmelmann goes after the fast food chain represented by a clown (Tales of Trademark Abuse: McDonald's Goes After the Dictionary?):
Catch that? McDonald's wants to censor the dictionary in order to protect their brand, and they'll use trademarks to do it. This is just another manifestation of the malginant theory that once you have a trademark, you ought to be able to stop people from using the word at stake if you don't like the way they're using it. Going after the dictionary is voodoo linguistics: if "McJob" isn't in there, maybe people won't use it.If McDonald's has its way here, it'll be another nail in the coffin of the eminently sensible idea that dictionaries ought to reflect the way people actually use language. Then again, modern trademark law is anything but sensible. [emphasis in original]
David Galbraith has an interesting post about Google's Trademark Complaint Procedure (Trademarking search terms). He wonders whether there is a "possibility of people trademarking terms and expressions specifically so that they can use them within Google ads?" In other words, whether people will trademark "Blog" candy, in order to control the use of the term "Blog" in Google ads - whether or not the ads had anything to do with candy. Given that Google has already been hit with court-imposed fines for trademarked keywords triggering ads, they certainly would be reticent to stop people from abusing the system this way (Google France fined for trademark violation). Thanks, France.
As noted here earlier (Yang Liwei © 2003 CNSA All Rights Reserved), Chinese businesses are very interested in using names associated with the successful Chinese space program. The Times of India has the latest, as well as an interesting quote about Chinese trademark law (Spaced-out Chinese cash in on spaceman's fame):
Shenzhou V, the spacecraft which took Yang on 14 orbits around the earth last week, is also the object of several trademark applications but these hopefuls are likely to be out of luck.
"Shenzhou V is a special name that has significant political meaning," said Xun Xianzong, a trademark official.
"So far, there is no precedent for the use of such names as trademarks."
Shenzhou means "Divine Vessel" in Chinese. I wonder what other "special names" have "significant political meaning."
The Straits Times reports that the China National Space Administration (China's NASA) has copyrighted (I think they mean trademarked) the name of Yang Liwei, who made history as China's first taikonaut when he was launched into orbit aboard the Shenzhou-5 on October 15, 2003 (It's a taikonaut, it's a pear, it's... copyright). Businesses will be unable to use the name without permission of CNSA, apparently in order to prevent the unscrupulous from capitalizing on Lieutenant Colonel Yang's fame. Among those interested in licensing the name is Yang's birthplace, which wants to name a white pear they produce after him.
In related news, the People's Daily quoted Yang Liwei as stating that he did not see the Great Wall of China from space ('I did not see Great Wall from space': Yang Liwei).
The Trademark Blog brings word that Malaco, makers of Original Swedish Fish and holders of the associated trademark/trade dress, has lost on summary judgement a trademark suit against Promotions in Motion, marketers of Famous Sqwish Candy Fish (not to mention Nuclear Sqworms) (The Aesthetically Functional Swedish Fish). The opinion, which can be read on Juris Notes (Malaco Leaf, AB v. Promotion in Motion, Inc.), is pretty devastating. This case is a real good example of how not to protect trade dress. For example, you might want to avoid cases where the judge can write lines like this:
Malaco's contention that its Marks are entitled to a finding of acquired distinctiveness is further belied by its own internal marketing reports, including one dated a day before it filed this complaint, reporting that "[m]ost respondents consider 'Swedish Fish' a generic term of fish-shaped gummi candy," and that its Marks enjoy "weak trademark protection."
Anyways, I just like cases that have lots of discussion concerning gummy. While there is not a thigh-slapper in the decision, I find that reading stuff like, "Notably, animal-shaped gummy candy is common in the candy industry" amuses me. Apparently, I amuse easily. Among other highlights, the case also features a discussion of the functionality of gummy designs and the following footnote:
Soft and chewy candy is generally categorized by the industry as either "gummy" if it has a primarily gelatin base, or "juju," if it has primarily a starch base. (Deposition of Frank Galatolie, dated March 20, 2002 ("Galatolie Dep.") at 130-31; Defendants' 56.1 Statement ("Def.'s 56.1 Stmt.") ¶ 3.) For purposes of uniformity, this Court refers to the parties' products as "gummy" candy.
Perhaps Malaco should look for other designs carved by gummy artisans who work exclusivly in the medium of gummy ... too bad that Gummy Mummy is already taken.
