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Spiritual balm for clerkship-seeking law students

Originally posted 2008-02-23 22:42:25. Republished by Blog Post Promoter

In a totally random way, I ended up linking to an old piece about my adventures seeking a first-year summer associate position at my other blog.

Then after some very flattering feedback, I figured some readers of this blog might enjoy it, especially law students, so here it is, freshly warmed from 1987.

Warning: It’s written in a form of late middle English rarely used in this country any more. But you should be able to get the gist. (The original post is here.)

Copyright belongs to the ages

Originally posted 2008-03-23 17:14:32. Republished by Blog Post Promoter

Media Wonk:

No wonder they call Economics the Dismal Science. At the Internet Video Policy Symposium in Washington yesterday (co-sponsored by Content Agenda), a chorus line of academic economists postulated that content owners face a far more difficult challenge than they know in monetizing their content on the Internet, and that the odds that we can build our way out of the current debate over how to manage scarce online capacity are virtually nil.The most enthusiastically glum was Gerry Faulhaber, a professor at the Wharton School of Business at the University of Pennsylvania and the former chief economist for the FCC. According to Faulhaber, copyright is a dead letter.

“Copyright is a very big issue in the legal world today, but in the business world, when you talk to consumers about protecting copyrights, it’s a dead issue,” he said. “It’s gone. If you have a business model based on copyright, forget it.”

Provocative, I suppose, though it sounds like an overstatement, and not necessarily all that logical. The copyright regime has never depended on the opinions of non-stakeholders, merely the ability to penalize them for infringement. The technological / legal dance is far from over. I would say that the Microsoft business model, to give one example of one that is “based on copyright” at least in part, is not exactly in “forget it” mode, and will not be all that fast.

But that’s not to say it looks good for copyright as a linchpin of monopoly-type business models in the future. No, no, no.

War Is Peace; Freedom is Slavery; Ignorance is Strength

Originally posted 2007-03-28 19:08:24. Republished by Blog Post Promoter

And free speech is a form of negotiable intellectual property, right?

Maybe I can give up the blog. There is no percentage in clever commentary when the claimants provide the self-parody.  Credit to Instapundit.

The usual stupidity

Originally posted 2007-12-23 21:14:08. Republished by Blog Post Promoter

I’m Not A Trademark, Bro!:

AT! admires the entrepreneurial nature of the applicants for the following marks: DON’T TASE ME, BRO! for various shirts, DON’T TAZE ME BRO! for books, puzzles, posters, and the line, and DON’T TASE ME, BRO! for jackets, pants, and other clothing. However, we question whether the applicants appreciate how a trademark is used and what it is. Section 45 of the Lanham Act defines a trademark as: “any word, name, symbol, or device, or any combination thereof- (1) used by a person or (2) which a person has a bona fine intention to use in commerce… to identify and distinguish his or her goods… . In essence, a trademark is a source identifier. A trademark is not trivial phrase of pop culture that may adorn an article of clothing or pamphlet.

Nnnyes.

Web Two Whoa

Originally posted 2007-05-03 19:47:01. Republished by Blog Post Promoter

Diane Prange writes:

If you’re among those who think Web 2.0 is overhyped, you’ll appreciate Jim Louderback’s snide take on the terms he heard tossed around and the things he saw people doing at the Web 2.0 Expo in San Francisco. Here are a few of my favorites.

Twitter – Transmit your every thought to, well, everyone at the touch of a button! This new micro-blogging platform allows you to annoy your friends with all the mundane things you do every day. So, instead of writing a blog post every few hours that details all of the deep thoughts you’ve had, you can spew them out to e-mail, IM, and cell phones as soon as you think them! And, with only 140 characters, the more shallow or vacuous, the better! […] It’s a great tool for finding your friends on a Saturday night. It’s a lousy way to build a business.

. . .

Jim Louderback thinks it sounds like 1999 all over again. Nonsense. We’ve got much better names this time around.

Plus medals! We’ll get medals!

Whaddya know!

Originally posted 2006-12-17 11:21:24. Republished by Blog Post Promoter

The Mustang Ranch trademark case has finally been resolved — and it turns out that prostitute proprietor Lance Gilman gets to claim the trademark for the whorehouse he done boughten after all.  Ho-ho-ho!

Fishy business

Originally posted 2008-02-10 23:19:28. Republished by Blog Post Promoter

Funny things happen to trademarks in the Casbah.  John Burgess at the Crossroads Arabia blog has a story about a recent incident of Saudi Arabia’s religious police overplaying their considerable hand in connection with the arrest of a Saudi woman for having coffee with a colleague at Starbucks.

Not our topic.  But this aside did grab me, considering the special attention Starbucks and its trademark adventures have gotten on this blog over the years:

Starbucks and the religious police have a bit of a history. When the company first arrived, its logo of a mermaid caused some consternation because some thought they could see breasts beneath all that hair. To avoid problems, Starbucks came up with another logo, a seahorse. [I do wonder how the police reacted when they learned that male seahorses give birth! Talk about ‘gender bending’!!] By 2003, however, the mermaid was back on the signs, cups, and napkins. What happened to occasion that, I haven’t a clue.

Perhaps she swam her way into their hearts, or their coffee cups.  Or, more likely, the heat was off — at least for a while.

Now the heat is back, albeit on questionable grounds.  You can be sure we will milk the story here for all it’s worth.

UPDATE:  Oddly enough, this story has perked up once again.  According to the And Far Away blog, the 1992-2010 Saudi Starbucks logo was not a seahorse, but this “a crown swimming in the sea” — here, you take a look:

The real story, though, says Roba Al-Assi, is the “chadorable” logo Starbucks al Saud is about to switch to — or, which, as she says in the post, she can only imagine….

I’m not sure all her commenter’s “get it” — maybe they hadn’t had their first cup yet.

NFL punts in “Big game”

Originally posted 2007-05-25 13:34:06. Republished by Blog Post Promoter

The NFL is a lot of things, but I never thought it was stupid. It turns out that it isn’t. The Sports Blognfl.jpg reports:

Remember that stupid effort by the NFL to trademark the phrase “Big Game,” even though everyone knows the phrase has, for more than a century, been used referring to the Cal-Stanford rivalry?

Well, the NFL has dropped its bid.

Smart.

UPDATE:  “Repeat after me: TRADEMARKS ARE NOT “WORD PATENTS”

Smocking it out

Originally posted 2007-05-21 18:21:57. Republished by Blog Post Promoter

Ben Manevitz updates us on the Diane van Furstenburg “you stole my smock” litigation.

Ben’s take: “As a litigator, I’m going to give everyone involved in any litigation the secret! the best piece of advice ever! Ready? Here: Shut Up!”

Easy advice to give, but darn it, I like to say “smock”!  Smock, smock, smock, smock, smock, smock.

“Criticizing A Trademark Is Not Trademark Infringement”

Originally posted 2007-09-29 21:25:32. Republished by Blog Post Promoter

It’s free speech. This is a big step forward:

In a recent example of just how bizarre [trademark overreaching] has become, there was apparently a dispute over the trademark of the word “Freecycle” that’s been used by groups who promote reusing stuff that would otherwise be thrown out. There was an attempt to [register a] trademark [utilizing] the term, but not everyone was happy about it. One guy put up a website protesting the idea to [register] the term, and he got sued for trademark violations in using the mark in his criticism. Clearly, that’s way beyond the consumer protection purposes of trademark — but a district court actually agreed with the trademark holders, saying that the guy violated trademark law in “disparaging” the trademark. Luckily, the [9]th Circuit appeals court has now overturned the ruling, noting that there is little to no chance of confusion here over the mark. More importantly, the court pointed out that there is no such law against “disparaging” a trademark. That’s a good thing, too, or pretty much all criticism would be outlawed.

Thank you, Ninth Circuit. What’s astonishing, depressing and pathetic is that the mark owners won at the trial level. That’s the level at which small- and medium-sized business and individuals get slaughtered every day.

More here on this story.

Unlocking DRM in Switzerland

Originally posted 2007-12-02 22:50:06. Republished by Blog Post Promoter

Boing Boing:

Switzerland’s government has silently adopted a brutal copyright law based on America’s failed Digital Millennium Copyright Act — but with 50,000 signatures, the law can be reversed.

Switzerland’s new law criminalizes breaking digital locks — circumventing “digital rights management” technology — and telling other people how to break those locks. This means that even when you have the right to access a song, video, book or document, no one is allowed to show you how to get at the data. If the law says you’re allowed to — for example — convert a song you bought on iTunes to play it on a non-Apple player, you still can’t do so, because no one is allowed to make or sell or even give away a tool that helps you do this.

Because of Switzerland’s principal of direct democracy, this law can be overturned if 50,000 Swiss citizens sign a petition asking for it to be reconsidered. Here’s a petition that starts the ball rolling. Tell your friends! Link.

I mean, it’s Switzerland. They’re famous for their secrecy, their chocolate, their cheese. Leadership on intellectual property issues? Not so much, I think. But the story does point up one thing: DRM, and most of the IP regime enacted by legislatures in thrall to Hollywood, record companies and the like, is profoundly unpopular if it’s not ignored entirely by the populace.

Keyword advertising: Big IP pushing hard

Originally posted 2008-01-30 12:38:15. Republished by Blog Post Promoter

Paul Alan Levy has brought my attention to this development, which he rounds up at the Consumer Law & Policy Blog:

Corynne McSherry and Eric Goldman have posted a timely joint warning about an effort within the Trademark Litigation Committee of the American Bar Association to put forward a series of resolutions that are apparently designed to revive the hitherto unsuccessful litigation efforts by trademark owners to prevent their competitors (and occasionally critics) from using keyword advertising and similar techniques to promote comparative and critical advertising on search engines. Because of the important consumer benefits from rules that protect the ability of businesses to engage in truthful comparative advertising, Public Citizen has litigated that right over the years in a line of cases running from Virginia Pharmacy Bd. v. Virginia Consumers Council to our current cases challenging bar rules that unduly limit lawyer advertising in Florida and New York. . . .

I have participated in a number of bar meetings related to this issue, and the trademark owner interests on the plaintiff side of these cases admit that newspaper ads, billboards, and product placement would not violate anybody’s trademark. They have had a great deal of trouble, however, explaining why keyword advertising is any different from a trademark perspective.

Owners of “high equity” intellectual property including trademarks want nothing more or less than ownership of trademarks as rights in gross, European-style, meaning in part that nominative fair use or any fair use at all would be written out of American trademark law — along with some pretty important parts of the First Amendment. And that, of course, is the explanation.