DC Circuit: Press Not Shielded

Originally posted 2005-02-15 11:44:00. Republished by Blog Post Promoter

Another red hot AP story: The Circuit Court of Appeals for the D.C. Circuit has ruled that Time magazine’s Matthew Cooper and The New York Times’ Judith Miller have to testify before a federal grand jury about their confidential sources in connection with the Plame Affair:

“We agree with the District Court that there is no First Amendment privilege protecting the information sought,” Judge David B. Sentelle said in the ruling, which was unanimous.

That makes four of us. As I blogged last month, press shield laws, even where they are on the books — there isn’t a federal press shield law; the journalists here were asserting a constitutional right, not one based in legislation — are a bad idea. Journalists are no different from you and me. Not any more. Right, Jordan?

UPDATE: Welcome, fellow Instapundit readers. You too, Mom. Knew you’d hit my blog sooner or later. Via the How Appealling blog, linked to by Instapundit, here’s a link to the decision. My favorite part is exactly the point I have been making, to wit:

Appellants counter that Justice Powell could not have meant what the United States argues, as this would have given reporters no more protection than other citizens. However, they never make it clear why they are convinced that Justice Powell must have intended to give reporters more potection than other citizens. The Constitution protects all ctizens, and there is no reason to believe that Justice Powell intended to elevate the journalistic class above the rest. Cf. Branzburg at 690 (“the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination.”).

“Could not have”!? Indeed.

UPDATE: Speaking of Instapundit, he adds this link to Volokh’s website, which focuses on one conconcurring opinion that asks the musical question we all have been asking: What about the blogs? — as well as another concurring opinion that endorses a common law-based press privilege.

UPDATE: Via Coyote Blog, see the full and definitive analysis here at Beldar.

Aereo, FilmOn, and the “Shimmer” of maybe-unlawfully-clever digital entertainment delivery

Those of you of a certain age will remember the classic SNL parody commercial for “New Shimmer“:

New Shimmer

It’s kind of the same thing with Aereo, isn’t it?  As I said in my now-legendary-in-my-own-mind multi-part post, every next judge presented with the relevant inquiries in the Aereo case — i.e., the application of terms in the Copyright Act to technological facts not remotely anticipated by its drafters — takes a different run at judicial legislating, while contemptuously dismissing the last guy to touch this digital hot potato as the dimmest of stooges.

Yes, it’s a lot like Shimmer.  Is this digital mini-stream time-place-concept-shifting business stuff a floor wax, or is it a dessert topping?  Or, as Chevy Chase urges, could it really be both?

The latest comes in via an email from Owen Phillips , who writes as follows:

Hi Ron, I like your blog! I work with FilmOn and you’ve probably seen it’s involved alongside Aereo in a major test of Copyright Office rules. Late last week the Office turned down Aereo’s request for Compulsory License under Section 111—provisionally. At the same time it put out a request to the public to comment on the issues surrounding these decisions over 30 day period.

I think your readers would be interested to hear about this—and we’d like to maximize the public’s right the be heard in all of this.

He included this Copyright Office link for public comment.  Why wouldn’t I post that?  It’s not a spam link or something.  It’s the government!  Why wouldn’t we want to help the gummint figure out whether FilmOn is a delicious addition to the end of a special meal, or the perfect way to keep that linoleum looking great?

Well, let’s see.  What do we know? We know that Owen really likes my blog.  We don’t dismiss that as flattery intended merely to smooth the way for my consideration of his pitch, for it is entirely credible that one would like my blog, and that one would say so, too, at the slightest provocation.

What’s FilmOn?  Go look for yourself at the FilmOn website.  And before we go any further with what Owen wants you to hear about, here’s what is, more precisely, going on with FilmOn — an item from  yesterday, July 21, 2014: Read More…

INTA thoughts

Originally posted 2010-05-26 12:48:30. Republished by Blog Post Promoter

On the tail end of the annual meeting of the International Trademark Association in Boston, which I’ve used as an excuse not to post much or any new material, some thoughts:

  • I’ve heard widespread unhappiness about the quality of the programs, which in my experience seems to be largely justified.  Information is doled out as if by an eye dropper; many presenters are not competent public speakers or, in some cases, English speakers; no printed materials are distributed; and, if you haven’t been following my tweets on the subject, an inordinate amount of time is spent by panel “chairs” reciting the boring bios of panel participants to an audience that really could not care less.
  • Also on the negative side, the “exhibition” part is getting harder and harder to understand.  If you’re signed up for a full complement of programs, there’s very little time to check out the exhibitors.  Yesterday they chased us away at 4 PM.  On the other hand, maybe it doesn’t make that much difference:  It seems to be the same cats every year, or if it’s not, it still, as I said, seems to be.  Is there any commercial relevance to these hire-pretty-girls-and-set-up-a-colorful-display-and-get-business-cards-in-a-bowl things any more?
  • On the up side:  Boston!

Boston at night

Beautiful city, amazing conference center (yes, it’s a bit too sprawling perhaps, but they seem to really have thought out how space like this is to be used), just always a great experience visiting here.

  • Also, as usual, the execution of every conference-planning aspect of the annual meeting by INTA is well-neigh flawless.*  Shuttle buses worked great.
  • Trademark lawyers are mostly fun and interesting.  I’m amazed how many are “dressing up” in this unseasonably hot weather, though.  I opted for biz-cazh, myself.
  • No real excuse for grownups to go to the disco parties at night.  Certainly not if they’re married and traveling alone.  But I’m told there were fewer such parties this year, a reflection perhaps of competitive  and financial issues, or maybe a realization of how pointless these things are.

At the end of the day, INTA’s okay.  I like INTA.  Naturally it’s mainly the property of Big IP.  Committee membership, much less leadership, is mainly–mainly–about corporate and big-firm hierarchy, not thought leadership or anything scary like that.  But what do you expect?  The rest of us are treated courteously and as professionals deserving of a voice as long as we have “game.”  And, hey, we’ve got game, no?

*  One niggling exception:  Every year I indicate–on INTA’s own form–my “preference” for a kosher meal at the Table Topics luncheon meetings, and every year I end up having iced tea for lunch.  If you can’t deliver it, folks, don’t offer it!

Feeling his oats

Originally posted 2007-02-12 15:58:36. Republished by Blog Post Promoter

TMBrandingcap.com brings this quote from John Stuart, former Quaker Oats chairman:

If this business were to be split up, I would be glad to take the brands, trademarks and goodwill and you could have all the bricks and mortar – and I would fare better than you.

Sounds right to me.

Defending the trademark infringement defendant

It’s an art, not a science — like all litigation — and despite the best advice, well… there are some things, many of them in robes, you just can’t account for.

But still, why not at least get the best advice?

Right. So here (below) are excerpts from the Lawline program I recorded on this topic in May of this year (2014).  The excerpts are free; for the full-hour CLE program and relatively less free advice (hence worth relatively more than the cost of these excerpts), click here.

Marty Schwimmer’s blog

Originally posted 2005-01-03 21:02:00. Republished by Blog Post Promoter

By the way, let me be very clear about this:  The definitive blog on the topic of trademarks is my friend Marty Schwimmer’s Trademark Blog.

It’s funny also.

The line in the sand

Originally posted 2010-06-17 23:02:24. Republished by Blog Post Promoter

Scott Greenfield:

You write that apology, and it better be done before hell freezes over or else.  That will show him, right, Judge?

You could quote this guy every day.

Redskins’ intractable trademark troubles — or sportswriters’?

Originally posted 2012-01-04 11:22:31. Republished by Blog Post Promoter

I’ve been following the REDSKINS trademark travails since forever.

Well, they’re not over. Or are they?

Live with me in real-time, real-life blogging time.

I got excited by a link on my Google alert for trademark news, to this story in the Washington Post:

As Redskins’ struggles drag on, so does court challenge to name

By Courtland Milloy, Published: January 1

Back in 1992, Washington reigned as Super Bowl champs with high hopes for two in a row under coach Joe Gibbs. That year, a Native American resident of the District, Suzan Harjo, became the lead plaintiff in a lawsuit seeking to change the team’s disparaging name: Redskins.

As the legal battle over the name enters its 20th year, let’s review some highlights of a struggle in which moral victories by the plaintiffs often coincided with demoralizing losses by the team on the field — including dashed hopes of winning another Super Bowl.

So far, so good: Some new development!  Looks like I can post on the seemingly intractable trademark troubles of the Washington Redskins!

But… what’s the new news?  Here’s the last paragraph of the story, which refers to the earlier dismissal of the Harjo case on laches grounds:

2012: Another lawsuit to get rid of the team name, Blackhorse et al v. Pro-Football Inc., will be working its way through the courts, this one from a younger group of Native Americans who cannot be said to have “waited too long to file.”

But they have already waited too long for justice.

So, then, what is the status of Blackhorse that made it newsorthy at the Post?  Well, not much; it is kind of creeping along.  A few weeks ago, the parties filed a joint stipulation of facts in the opposition action pending in the TTAB.  Not a lot to report.

Slow news day? I guess in the sports department, it pretty much always is, in Washington.  But Happy New Year!

A theory of likelihood of confusion

Originally posted 2007-08-24 08:02:28. Republished by Blog Post Promoter

The Legal Theory Blog excerpts from a recent article on the the back story of trademark litigation, by one Michael Grynberg:

The plaintiff effectively represents two parties. She defends her trademark and simultaneously protects consumers who may be confused by the defendant’s behavior. The defendant, by contrast, stands alone.The resulting “two-against-one” storyline gives short shrift to the interests of non-confused consumers who may benefit from the defendant’s purportedly infringing behavior. Ignoring these consumers is especially problematic given the ease with which courts apply pejorative labels, like “misappropriation” and “free riding,” to the conduct of trademark defendants. As a result, courts are too receptive to non-traditional trademark claims, like initial interest and post-sale confusion, for which the case for consumer harm is questionable.

More rational results are available by appreciating trademark litigation’s parallel status as a conflict between consumers. This view treats junior and senior trademark users as proxies for different consumer classes and recognizes that likely confusion among one group of consumers may affirmatively harm others.

I like anyone who tries to push back harm-to-the-plaintiff-free trademark lawsuits based on “non-traditional trademark claims,” and I have not read the whole article (I don’t think it’s available on line), but I don’t quite think this works. As a practical matter I do not believe that this “two against one” burden is a meaningful one for defendants; on the contrary, it is a burden the plaintiff has to carry: He has to convince the courts that not only he, but consumers, are being harmed by the alleged infringement.

Well, that’s how it’s supposed to work. The problems is the opposite one from what it seems Grynberg is saying: Judges ignore the consumer-harm burden placed on the plaintiff, and treat trademarks as rights in gross. Or at least, some do; and the corporate trademark bar most certainly wants them to.

Thus the problem is the mirror image of the one posited.  The solution: Don’t add a factor to the defendant side; merely recognize it on the plaintiff side. It’s been there all along, feeling lonely, judges.

About as effective as the real Great Wall

Originally posted 2007-03-15 23:17:31. Republished by Blog Post Promoter

A website called the Great Firewall of China tests websites to see if they’re being censored in China.

To my disappointment, I don’t rate. And it’s not as if I haven’t tried to offend. More than once. A lot more.

Hat tip to Roland Dodds.

Starting ‘em out young

Originally posted 2007-02-11 19:43:15. Republished by Blog Post Promoter

Counterfeit Chic looks at tomorrow’s counterfeiters. Well, that’s how Susan looks at them, anyway. When you’re a carpenter everything looks like a nail, you know?