Friday, July 23, 2010
Wednesday, June 16, 2010
China Imposes Copyright Surcharge on Cafes
In an attempt to rebut allegations that it allows copyright thieves to roam unmonitored throughout Beijing and the great steppes, China has announced that it will impose a copyright fee on internet cafes which allow customers to download and watch movies while enjoying their lattes. How China intends to monitor internet usage at the 140,000 registered cafes has not yet been revealed, but it should not be an insurmountable task for a country with over a billion people seeking work, and whose attitude toward individual privacy ("Who said you could monitor my internet activity, Mao?") is more draconian than democratic. For further information, see the article on the PI Newswire.
Monday, June 14, 2010
When's Salinger's Sequel Coming to California?
When, and whether, the sequel to The Catcher in the Rye ever hits the U.S. is a question rife with speculation after the 2nd Circuit's recent ruling. For an interesting peek at what's percolating, and a link to the decision, go to Collectanea
Crazy Linkfest
These are a few links to recent posts on my main blog -- which is also called Who Is Your Lawyer for the sake of consistency -- and is a little more fleshed out and lived in than my blogger site (akin to a primary residence vs. a vacation home). There are 30+ additional posts up and running, all more or less related to recent IP news and events, some lengthy, some chatty, some analytical, some short and to the point. If you misplace or forget to bookmark my URL just type in "Who Is Your Lawyer" in one of its many various forms (e.g., Who Is Your Lawyer, whoisyourlawyer, whois your lawyer, whoisyour lawyer (and perhaps even "who's your lawyer" or "whos your lawyer"-- though occasionally those latter variations lead for some mysterious reason to articles about the new series by David Tenant (of Dr. Who fame), called Rex Is Not Your Lawyer).
Who Stole My Magic Muffin Formula?
A trade secret, of course, is loosely defined as any formula, pattern, device or compilation of information used by a company that is unknown to others andgives the company a competitive advantage. Examples come in many shapes and sizes, and include such things as unpatented inventions; future product designs and research; non-public company documents such as blueprints, laboratory notebooks and training manuals; marketing, purchasing, planning and customer information; and financial, accounting, recruiting and legal information. Basically, any information that a company finds exceptionally useful and deems “Top Secret” may qualify for trade secret status — with certain caveats. If someone outside the coterie of top level employees with access already knows your secret, of course, it’s not really a secret at all, and (as you might expect) you cannot retroactively go back and make it one. Once the cat’s out of the bag, the horse is out of the barn, the bird has flown the coop, etcetera . . . it’s bye-bye trade secret. Similarly, if you fail to take adequate measures to protect the secret, or are so boastful and clumsy as to actually tell someone else the secret, then you lose all trade secret protection. Given that some secrets are worth billions, one can see the attraction of those espionage thrillers where the secret agent seduces a corporate employee and pumps them for information or spontaneously befriends the loner lab geek and then gets them so intoxicated they blurt out every secret they ever knew. While real life may not mimic fiction quite at the level suggested by Clive Owens’ secret agent romp inDuplicity, rest assured that there are plenty of industrial spies lurking in corporate hallways, going through the rubbish at 5:00 a.m. hoping to find a scrap worth millions.
Although I mention the Thomas’ English Muffin case partially in jest, as it seems somewhat ludicrous that the internal consistency of a muffin could, in fact, constitute a trade secret, it does raise the question of just what you can take with you as a departing employee. Say you’ve been there for ten years and know the operation inside and out, know how to mix a muffin in your sleep, know what temperature the muffins need to be baked at, and for how long, and how long they need to cool before being bagged. You know it so well you don’t even have to think about it anymore. But now you’ve been offered a great job down the street at an independent bakery that wants to bring muffins to the masses — what do you do? Do you pretend you don’t know how to make a muffin? Just what information is an ex-employee allowed to use? The answer, as eloquently expressed by Judge Shadur in Fleming Sales Co. v. Bailey, 611 F. Supp. 507, 514-15 (N.D. Ill. 1985) is this:
Such information [as] comprises general skills and knowledge acquired in the course of employment. Those are things an employee is free to take and to use in later pursuits, especially if they do not take the form of written records, compilations or analyses. Any other rule would force a departing employee to perform a prefrontal lobotomy on himself or herself. It would disserve the free market goal of maximizing available resources to foster competition…. [I]t would not strike a proper balance between the purposes of trade secret laws and the strong policy in favor of fair and vigorous business competition.
So, no frontal lobotomy required. I hope that puts your minds at ease as much as it did mine. You can still bake a muffin, though if you land at a competitor you should know that — even if you refrain from using the magic mixing machine and never even think about the almost-mystical nook-and-cranny formula — you are still likely to be sued. No matter how innocent your muffins might be, in the end, it’s all about the dough.
Friday, June 4, 2010
A Few Facts On The Google Books Settlement
For those of you who are confused about what Google actually hopes to accomplish by digitizing more than 12 million books, and what the implications are for copyright holders, the Open Book Alliance has published a very interesting analysis of the proposed Google Books Settlement, which attempts to parse rhetoric from reality. The article can be found here.Robert Scott Lawrence
My practice is not limited to intellectual property, however, and involves a number of different areas of law. For example, ten years ago I offered to lend a hand in an environmental case, which I have now had the pleasure of trying twice, and which is still active (and currently up on appeal). Another example — I recently defended a hedge fund and its principal in a self-dealing case brought by the Commodity Futures Trading Commission. So while this particular blog is dedicated to intellectual property, and the subject is dear to me, other unrelated topics may appear on these pages from time to time, since in law — as in life — variety provides the spice that relieves us from monotony.
Friday, May 28, 2010
RIAA Sues 28,000 Americans?
Though the RIAA’s litigation strategy apparently has a certain surface appeal to music industry egos, in real life the RIAA’s rigid litigation model has not yielded meaningful results. Apart from alienating the general public and creating an enormous amount of superfluous litigation for the courts’ already overcrowded dockets, the results have been abysmal. The RIAA has failed to discourage file-sharing, and created an underground file-sharing community that — like Ninja assassins — quietly creep up out of nowhere and download billions of songs on ever-changing platforms. Every time a file-sharing company gets big enough to be noticed and sued by the RIAA, it is replaced by yet another start-up providing exactly the same service at a new location, with better cloaking technology. While the industry can sue LimeWire, Pirate Bay, Napster, and all and sundry for all they’re worth, eventually a compromise is going to have to be made. The “we’ll sue you into the ground” business model is not working, is not good business, and is quite possibly not good law — just yesterday the 16 year old cheerleader who got sued for downloading 37 songs and was ordered to pay $27,750 filed a Petition for Certiorari with the Supreme Court asking the court to overturn the decision against her on the (frankly quite believable) grounds that she didn’t realize that file-sharing was against the law.
Monday, May 24, 2010
Hitler the Comedian
Frankly, faux Hitler may have a point. Since the spate of video spoofs first appeared on the web, rentals of Downfall have dramatically increased, moving the film out of the “it was nominated for an award but now you can’t find it” category into a late-night Blockbuster favorite. Given the intrinsically dour nature of the film (which is about Hitler’s last days), one could reasonably conclude that the YouTube publicity resuscitated a film that had only been seen by (approximately) four Germans since its release in 2005.
Tuesday, May 11, 2010
Free Books? Nope
Yesterday I emoted a bit on the prospect of an all-information-all-the-time database which the public could access for free, and as exemplars of this paradigm shift away from market-driven pay-as-you-go access to information I cited Project Gutenberg and Google Books. While Project Gutenberg’s 30,000+ tomes are indeed free — really free — to anyone with access to a computer or virtually any e-reader with a USB port, my reference to Google Books was more optimistic than exemplary. While Google has already scanned and plans to offer over 12 million books to the public pursuant to the the Google Books Settlement (the revised version of which is still pending court approval based on Justice Department concerns), the reality is that these books won’t be free. You can look at 20% of any book for free (by default), but Google Books will charge you a fee to access the entire book. While digitizing all books is obviously the only way to ensure their continued availability and survival, the myriad of problems surrounding ownership rights and the ever-present-issue of “Who gets paid?” still have a few kinks to be worked out. Although they may not be insurmountable, at the moment these kinks loom Everest-like over the prospect of a happy ending. Under the current regime, that book you can check out at the library and read for free? You can’t read it online without paying a fee. For a detailed discussion of the copyright issues surrounding the Google Books Settlement, see the article by Annalee Newitz of io9.com here.Monday, May 10, 2010
Free Books!
If you’ve never taken a look at what you can read for free, check out Project Gutenberg. Over 30,000 titles are available at the click of a mouse, including works by F. Scott Fitzgerald, Saki, and many many many other acclaimed writers. And soon Google will be adding 4 million more titles for your reading pleasure. Better upgrade your RAM.
Monday, April 19, 2010
Who's That Barbie Girl?
Barbie is, of course, an American icon known to virtually every man, woman and child in the United States. Even if you are a man (and played with G.I. Joe as a boy), your sisters played with Barbies, or your cousins did, or the girls down the street had tea parties with Barbie in the back yard. Even if you have not seen an actual Barbie doll since you were a child, simply by virtue of living in our culture you have been exposed to the concept of Barbie. Think about it. If you have seen a movie in the last six months you will have seen the trailer for Toy Story 3, which dramatically stars Barbie and Ken as heroine and hero, respectively — although Ken may be a villain. It’s difficult to tell given his penchant for ascots, which are mainly associated with wealthy layabouts and decadent aristos.Putting Ken aside, Barbie is a cultural icon, and she looms large in the American imagination. If you have daughters under the age of ten, you will invariably have been subjected to Barbie-mania at your local Toys ‘R’ Us, where your options include not just Handicapped Barbie or Bilingual Spanish Teacher Barbie, but Hard Rock Café Barbie, Star Trek Barbie, Harley Davidson Barbie (Ken has a ponytail and wears leathers), and Top Model Barbie, to name a few. Having not entered a Toys ‘R’ Us since approximately 1976 myself, I was astounded to find some 50 different Barbies on display, including ceremonial Barbies eerily reminiscent of the porcelain dolls collected by childless spinsters.
Litigation hasn’t always gone Barbie’s way, however. As is the case with many a top model, controversy is a staple of Barbie’s diet, and sometimes the results are hard to swallow. You may recall the humorous prank in 1993 when a group calling itself the “Barbie Liberation Organization” modified Barbie dolls by giving them the voice box of a talking G.I. Joe doll, and secretly returned the dolls to the shelves of toy stores. Parents and children were surprised when they purchased Barbie dolls that uttered phrases such as “Eat lead, Cobra!” and “Vengeance is mine!” That vexed Barbie, and preyed on her mind for years, so when the Danish-Norwegian pop-dance group Aqua released a song called “Barbie Girl” in 1997 which contained lyrics such as “You can brush my hair / Undress me everywhere” and made other obvious references to Barbie, Barbie threw a hissy fit and sued MCA Records for trademark infringement and – if you can believe it – defamation. The case wended its way through federal court until finally, in 2002, Judge Alex Kozinski ruled that the song was protected as a parody under the First Amendment, and famously advised the parties to “chill.” This was a rough period in Barbie’s life, where the world seemed to turn its fickle back on her as it does so often with celebrity favorites – see, e.g., Britney, Lindsay – and every time Barbie took steps to protect her image it seemed as if she got slapped down by the legal system and ridiculed by the media. While “Barbie Girl” was being blasted through the airwaves on what seemed like the radio of every car in America, a Utah artist named Forsythe had the audacity to publish unflattering photos of Barbie.
These days, such things are simply beneath her notice.
Wednesday, April 7, 2010
A few years ago Julian Dibbell wrote a book called Play Money — Or, How I Quit My Day Job And Made Millions Trading Virtual Loot, which detailed the year he spent trying to win a bet with himself. The bet: that he could make more money by killing trolls and demons (or making armor) in Ultima Online than he ever had as a writer. Quirky concept, I agree, but the more you look into it the more interesting the idea gets, especially when you realize that the gold pieces used as currency by Ultima Online and other massively multiplayer online games (e.g., World of Warcraft, Eve Online or Lord of the Rings Online) are actually traded online in the same way that say, Brazil’s currency (the real) is. And many of the currencies from virtual worlds are more stable than those circulated by certain South American regimes.
There are a number of legal issues from virtual worlds that have superficial interest or — perhaps better stated — create the equivalent of cocktail party chatter for the intellectual property crowd. For example, in many online worlds you may chose to be an honorable member of the Thieves Guild, in which case it is perfectly acceptable for you to wander the world breaking into houses and stealing jewels and gold and artifacts — you’re a thief, after all, so it’s basically your job to act in this fashion — whereupon you can trade these items for something else in virtual reality (e.g., food, weapons, a horse, a house, etc.), or if you managed to get your hands on something truly exceptional you can simply list it on eBay and sell it for real dollars. So you’re stealing from people in virtual reality, fencing the goods on eBay, and pocketing the cash in your PayPal account, all tax free, since the IRS has no idea how to value what you’re doing. And did I mention it’s all perfectly legal?
Apart from the idea of a currency exchange (which makes sense when you realize that more than 10,000,000 people play World of Warcraft regularly, and many other MMOGs have over a million subscribers), these online worlds are rapidly changing the way intellectual property law works. Intellectual property, of course, deals with intangible assets, and thus dovetails perfectly with the concept of intangible worlds. Recently, though, the questions asked have been real brain twisters. For example, who owns the rights to your avatar — the “you” you created – in the online world? What if you upload a real photograph of yourself to the game server and the character you are playing actually bears your face — which you can actually do in Tiger Woods PGA Tour 10? What if the user agreement you signed (by clicking “I agree” when you logged on for the first time) says that all intellectual property in the game, including anything you create while using the game, remains the property of the corporation that owns the game? Who owns your avatar now? Most people never even read the user agreement, of course, but does the fact that it’s mandatory that you agree in order to play the game mean that it’s a contract of adhesion and can be voided, or does it mean you foolishly gave up your intellectual property rights in exchange for the privilege of being a half-elf ranger wandering the forests of Elfheim during the 22 hours a week you play the game?
If this sounds too theoretical, note that last year Taser International sued Second Life for trademark infringement because characters were using, and selling, virtual replicas of tasers in the game. Sounds silly, doesn’t it, until you find out that people pay $100 million to Linden Labs every year to buy Linden dollars so that they can clothe and feed their avatars in Second Life, and that the virtual reality gray market generates about $6 billion in revenue annually. And then someone tells you that Ben Folds Five actually did a live concert in Second Life (and you couldn’t hear it unless your avatar bought a ticket and attended), and Judge Richard Posner of the Seventh Circuit Court of Appeals has given lectures in Second Life, and Coke, Pepsi, Gap, Versace, Porsche, McDonald’s and all the other corporate sponsors are sniffing around figuring out how to protect and capitalize on their trademarks in these realms. Somehow, the more you look at it, the less silly it seems. Where real money stands to be made by playing with Monopoly money, the law perks up its ears and starts paying attention.
Tattoo You
For the last year I’ve been randomly assaulted by tattoos. One day I’m walking to my favorite San Francisco coffee shop — Cafe Amici — and I bump into a group of teenagers. I look up and one of the boys is shaking a little tin cup and has a tattoo of a pink hippopotamus on his forehead. Not a sticker, not a temporary tattoo, but indelible ink on his forehead. A hippo.
Fast forward several months, I’m in line for an espresso at the same shop, and right in front of me is a guy with tiger stripes tattooed on his neck and face, and presumably on the rest of his body. He looks cool, but I hope for his sake he’s famous. Or at least rich.
Then, yesterday, a friend sends me a joke email entitled Why Can’t I Get a Job? that shows a host of 20-somethings with prominent facial piercings and tattoos, as well as — in a few cases — a cosmetic alteration designed to make the bearer look as though he starred in Hellboy and has little demon horns bursting from his skull. Funny, weird, a statement I’m not particularly sure I’m capable of understanding.
Finally, today I pass a kiosk that has a picture of movie star Megan Fox in lingerie, advertising something or other, and prominently displayed on her right forearm is her famous tattoo of Marilyn Monroe. Believe it or not, one of my first thoughts was “I wonder if Marilyn’s estate has publicity rights in the tattoo on her arm?” And then my mind spun down the twisted legal path of wondering if an argument could be made that Megan Fox is unfairly trading off of Monroe’s goodwill by permanently associating herself with Monroe — i.e., by virtue of having tattooed the iconic symbol onto her flesh. If someone did that with another trademark — say, the McDonald’s arches — would McDonald’s have a viable trademark infringement case against them? What if the individual prominently flaunted the tattoo in photo spreads across the world in a way that was clearly commercial (e.g., in advertisements) or in a way that perhaps disparaged the sainted patriarch of fast food? One can imagine a porn star with a Ronald McDonald’s tattoo named Ranni Macdonald that might cause offense in the same way that Mariah Carey was offended by porn-star-turned-politician Mary Carey’s attempt to trademark her stage name (which Mariah ill-advisedly opposed on the grounds that it would confuse the public).
Intrigued by the Monroe question, I discovered a pair of federal court cases discussing the posthumous rights of Marilyn Monroe — Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. and Shaw Family Archives Ltd. v. CMG Worldwide, Inc. — which held that because (a) Monroe died before California’s Celebrity Rights Act was passed in 1985, and (b) the state of New York does not recognize a right of publicity after the artist’s death, Monroe’s name, image, and voice are now in the public domain in the states of California and New York. By implication, they would also be in the public domain in any state that, at the time of Monroe’s death in 1962, did not recognize a right of publicity that survived the artist’s death.
In response to those rulings, California passed legislation that created descendible rights of publicity that last 70 years after death — retroactively — for any person who died after January 1, 1938. Armed with the newly-passed SB 771, in 2007 the heirs of Monroe’s estate moved for reconsideration in the Milton H. Greene case. While the court agreed that due to the passage of the bill, Monroe’s heirs had standing to assert Monroe’s posthumous right of publicity under California law, in a strange twist of fate — because of inconsistent positions previously taken by Monroe’s estate before the California taxing authorities (which had the effect of drastically reducing her estate tax) — the court ruled that the heirs were barred from claiming that Monroe lived in California at the time of her death. Which meant, in polite terms, Game over, heirs. Do not pass Go. Do not collect $200.
In short, the public now owns Marilyn, so Megan Fox is at liberty to flaunt her Marilyn tattoo to all and sundry, without fear of prosecution from the grave. And should you, yourself, desire to adorn your body with an image of America’s great Hollywood diva, you may do so as well. You may even wear her proudly on your forehead — though it’s unlikely to do much for your career.
Tuesday, March 23, 2010
Papa's Suitcase
As the literary-minded will no doubt recall, on the cusp of Hemingway’s early fame virtually all of his finished but as yet unpublished work was lost in a bizarre twist of fate. The incident, which occurred in late December, 1922, is noted by Hemingway in A Moveable Feast and receives half a paragraph in Carlos Baker’s biography of Hemingway. As Baker reports, Hemingway’s first wife, Hadley, before catching a train from Paris to Switzerland to meet her husband, had packed all his manuscripts (except for Up in Michigan and My Old Man) “in a separate small valise so that he (Hemingway) could get on with his writing during the Christmas season.” However, at the Gare de Lyon someone purloined the bag holding Hemingway’s pages — which contained poems and short stories and the beginning of a novel never again seen.Though the tale of what happened to the suitcase and its contents has been the subject of apocryphal rumors for the last eight decades, several years ago two interesting takes on the tale appeared in popular literature. The first, The Hemingway Papers by Vincent Cosgrove, takes this episode and embellishes it in a winning action-adventure novel. The second, MacDonald Harris’ Hemingway’s Suitcase takes the tale a step further and purports — within the confines of a story about finding the suitcase — to reproduce five of the missing Hemingway short stories.
Hemingway’s immediate reaction to the loss was just as once might expect — continued melancholia and a lingering sense of bitterness over the loss, which some critics have pointed to as the cause of his breakup with Hadley. In a 1923 letter to Ezra Pound, Hemingway wrote:
I suppose you heard about the loss of my Juvenalia? I went up to Paris last week to see what was left and found that Hadley had made the job compete by including all carbons, duplicates, etc. All that remains of my complete works are three pencil drafts of a bum poem which was later scrapped, some correspondence between John McClure and me, and some journalistic carbons. You, naturally, would say, “Good” etc. But don’t say it to me. I ain’t yet reached that mood.
Though it is unlikely that they would turn up at this late date, works by Hemingway have a strange way of appearing out of thin air every decade or so. In 2009 a “restored” edition of A Moveable Feast was released which includes additional material that was cut from previous versions; in 1998 the novel True At First Light — which had been under seal since the early 1970’s — was edited and released by Hemingway’s son Patrick; and in 1986 a much-abridged version of Garden of Eden (which had run to 800-pages in manuscript) was released by Scribner’s to mixed reviews. Perhaps 2011 will see the discovery of the suitcase in a ramshackle Paris attic that is being converted by a French Legionnaire’s grandson into condos for the new generation of American expats. To be true, the tale would have to be so over-the-top that it would make bad fiction cringe.
Wednesday, March 17, 2010
Jack Kirby's Kids Sue Marvel -- And Disney Too
In January, Marvel Comics filed a lawsuit in federal court in New York seeking a declaration that all of Jack Kirby’s creations belong to Marvel under the “work -for-hire” doctrine. This month, the Kirby kids have retaliated by filing suit against Marvel and Disney in federal court in Los Angeles seeking a declaration that the copyright termination notices they sent out last September are valid, and that the copyright in all of Kirby’s characters — including Captain America, the Fantastic Four, Thor, and the X-Men — will revert to the heirs over the next several years.The timing of the suit could not be better — given Hollywood’s continuing fascination with superheroes, and the upcoming release of the first Captain America movie, the litigation theatrics should commence shortly. Stay tuned for further details, and be sure to check out Eriq Gardner’s article in the The Hollywood Reporter.
Wednesday, March 10, 2010
Downloading Is Piracy?
James Murdoch says illegal downloading is just like stealing a purse. What do you think? See article at http://bit.ly/dl6a4g
Thursday, March 4, 2010
How To Write a Novel Using Someone Else's Work
Helene Hegemann is pushing the limits set by writers like James Joyce (the original Mr. Cut-and-Paste) by freely grabbing content from other writers — in some cases, entire scenes — and appropriating it for her own use. This pastiche or collage style of writing has pushed hot buttons in the ongoing debate about what constitutes copyright and plagiarism in literature. Some writers claim that the practice is so commonplace that it is simply part of the creative process — that the living inevitably borrow from the dead — and that it has been going on from time immemorial. Shakespeare, as any college literature student knows, borrowed heavily from other playwrights. Hamlet, for example, is very like Saxo Grammaticus’ Gesta Danorum; Romeo and Juliet is said to be based on Arthur Brooke’s narrative poem The Tragical History of Romeo and Juliet; and King Lear is based on the story of King Leir in Historia Regum Britanniae by Geoffrey of Monmouth. Borrowing plots in this way was common at the time, and after Shakespeare’s death playwrights promptly began borrowing from his works as well.
Several years ago, Jonathan Lethem wrote a brilliant article defending the use of “borrowing” by writers in their pursuit of new creation, arguing that creation itself necessarily calls upon the inchoate melange of what one has read over one’s life as an unconscious source of style, language, allegory, sentence structure, plot, and pacing, and that — in a sense — imitation is the sincerest form of flattery. But now writers such as Hegemann and David Shields — whose new novel “Reality Hunger” is built almost entirely of quotations from other writers and thinkers — are pushing the boundaries as to what is appropriate as borrowing, and casting the question of copyright infringement in a different light. When is it plagiarism and not merely exercise of artistic license for transformative purposes? When does fair use become foul? We’ve seen what has happened to the music industry as it has been pulled kicking and screaming into the future by DJs and artists who use sampling techniques to create their own unique sound, and it was only a matter of time before the issue jumped media to stodgy old print. But where is the line going to be drawn? I suspect that the answer does not lie in the simplistic question “To borrow, or not to borrow,” but rather in litigation reminiscent of Bleak House, which will leave everyone unhappy.
Subscribe to:
Posts (Atom)