Wall Street Journal Adds Digital Privacy Series

The Wall Street Journal has added a investigative series to their blog titled What They Know. Sounds sufficiently scary.

I think this is noteworthy for two reasons. First, its a sign that the intersection of privacy and marketing is no longer an issue just for law geeks. Second, the blog seems to have done a fairly good job of visualizing how data is used by third parties.

It will probably surprise many to see that something as seemingly innocuous as online dictionaries can be used to collect so much information about people.


Digital Locks Loosening?

The Librarian of Congress has recommended new exemptions from the prohibition on circumventing digital copy protections including one exemption for “jailbreaking” phones so that you can install your own software.

Another sign that perhaps section 1201 might not be as broadly applied going forward is this recent decision from the Fifth Circuit. That case involved the use of software that controlled uninterruped power supply devices. GE and PMI were accused of copyright infringement and circumvention because they had accessed and used the software which had an already circumvented or compromised dongle. The Fifth Circuit held that GE/PMI’s activities were not otherwise infringing and thus the circumvention was not actionable under section 1201. This seems to be a somewhat different position than that taken in the DeCSS case.

I’m not sure if this is really part of a trend, but it is encouraging for anyone who believed otherwise non-infringing activities should not give rise to a copyright lawsuit merely because a digital lock was circumvented. Section 1201 has been used unsuccessfully in the past to try to prevent competition in the markets for garage door openers and printer ink cartridges.


Don’t Let Your Business Decisions Be Clouded By Rumors

“Mark Twain famously said that a lie can go around the world while truth is still putting on its boots.”

MinnPost has a great article with lessons businesses can learn from the Shirley Sherrod story. Cooler heads and actual evidence should have prevailed in the first place.


Copyright Law and Ownership of Software

I have a new podcast over at Tech{dot}MN. I interviewed Ray Bonnabeau of Hellmuth & Johnson about what software companies need to think about to make sure they truly own the software code the are using and creating. Ray is a really smart guy and the topic is something that is overlooked so frequently by new companies. Copyright law assumes ownership by the author, so the code you hired an independent contractor to create may not be yours.

Have a listen to “Copyright and Ownership of Software: Where Did We Get This Code Anyway?”


Happy Independence Day

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

— John Hancock

New Hampshire:
Josiah Bartlett, William Whipple, Matthew Thornton

Massachusetts:
John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry

Rhode Island:
Stephen Hopkins, William Ellery

Connecticut:
Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

New York:
William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

New Jersey:
Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

Pennsylvania:
Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Delaware:
Caesar Rodney, George Read, Thomas McKean

Maryland:
Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

Virginia:
George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

North Carolina:
William Hooper, Joseph Hewes, John Penn

South Carolina:
Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Georgia:
Button Gwinnett, Lyman Hall, George Walton


Summary of Costco v. Omega in MIPLA Newsletter

A short article I wrote summarizing the Costco v. Omega case was published in the Minnesota Intellectual Property Law Association’s New Matter™ Newsletter.

The case is about the “first sale” doctrine in copyright law and specifically, whether goods manufactured and sold abroad can be imported into the United States without the permission of the copyright holder. The Supreme Court has agreed to hear the case and it should have interesting implications for retailers, distributors and copyright owners.

MIPLA New Matter June 2010


Why I Volunteered for the EFF

A group called the U.S. Copyright Group (USCG) has filed a lawsuit against thousands of as yet unknown people who may (or may not) have downloaded or uploaded movies on file sharing networks. The strategy, which has been employed by others in the past, is to file or threaten to file a lawsuit and then offer to settle for a few thousand. Defending a copyright lawsuit will almost certainly cost much more so the offer is tempting. Plus, copyright law allows statutory damages of up to $150,000 per work, so the potential risk can be severe.

One problem with employing this strategy on the scale that the USCG is doing is that it will almost certainly result in a large number wrongly identified people who feel compelled to pay up because its cheaper than fighting. It undermines rights to privacy and anonymity. Furthermore, it doesn’t get to the real issue of how to compensate artists for their work. Lawsuits can’t possibly be a realistic long-term business model.

As far as I know, the USCG only has a large list of suspect IP addresses and is currently attempting to obtain the identities of people so they can give them the pay up or go to court offer. The Electronic Frontier Foundation has created a resource for people who are faced with responding to a subpoena and would like advice with responding. I have volunteered to work with people in Minnesota who are faced with this situation. There are other attorneys in other states who have volunteered as well.

The EFF Subpoena Defense Attorney List
The EFF’s press release about the case.


F-bomb Trademarks

One of the several reasons your trademark might be refused registration by the USPTO is that your proposed mark is scandalous or immoral. Without too much further explanation you might guess that a certain word starting with “F” and rhyming with “duck” might be problematic as a trademark. You would be right. Trademarks can be refused registration for being scandalous or immoral. Now you might think that this is America and you can say what the F— you want, and you can. But at least for now, you aren’t going to get the US government to help you protect that as a brand name.

But many people do try anyway. In fact, if you search the USPTO for applications for marks containing that word, you will see nothing but refusals (were 0 for 53 so far), probably causing the applicants to shout . . .


But. . . they did it on TV: What Glee teaches about copyright

The fictional high school chorus at the center of Fox’s Glee has a huge problem — nearly a million dollars in potential legal liability. For a show that regularly tackles thorny issues like teen pregnancy and alcohol abuse, it’s surprising that a million dollars worth of lawbreaking would go unmentioned. But it does, and week after week, those zany Glee kids rack up the potential to pay higher and higher fines.

Check out the rest of Christina Mulligan’s post at Balkanization.


Trademarks and Oil Spills

The Twitter account @BPGlobalPR has more followers than the real BP Twitter account. Yes its fake and they use the BP name and logo. The tweets are both biting and funny, at least to people who don’t work at BP. But is it trademark infringement?

If trademark law exists primarily prevent confusion in the marketplace and to let companies control their own reputation, then probably not. Does @BPGlobalPR tarnish BP’s brand? Probably, but it seems as though everyone knows its a parody, and how could you not with tweets like:

“We feel terrible about spilling oil in American waters, we’ll make sure the next spill happens where the terrorists live. #bpcares”

“Please help us with rebranding. We’re not calling it an “oil spill” anymore, now it’s a “Southern Fun Party”. #bpcares”

So, if a decent trademark infringement or dilution claim could be made, BP might ask themselves, “should we?” The answer to that might be “no.” The fallout from a trademark lawsuit now could be worse than the tweets. (See Streisand Effect) It might make it seem like BP is trying harder to plug the word leak than the oil leak.

The value of a trademark is based in large part on the reputation of the company. To BP’s credit, it seems as though their tweeting has been pretty focused on keeping people updated about the oil spill. This might be one time where protecting a trademark might be done best by letting people vent and take a few jabs.

UPDATE/CLARIFICATION: I am pretty sure that this wouldn’t be a good trademark case for BP anyway. It is such a clear parody as well as a non-commercial, non-competing use. However, there have been some inconsistent results in the area of trademark parodies. Sometimes judges as well as brand owners just don’t have a good sense of humor. Thanks to @cathygellis for the reply tweet and comment.