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DRM insanity confounding even Microsoft

Originally posted 2007-01-21 23:47:24. Republished by Blog Post Promoter

windows-vista-logoA reader writes in to Instapundit:  “On Windows Vista, the only way to get true HD movie and TV content from your $2000 home-theater PC will be to download illegal pirated content!”

Bad for branding, worse for trade secrets

Originally posted 2006-08-14 13:02:04. Republished by Blog Post Promoter

Pesticides in soft drinks, that is. Or even allegations of them. Boing Boing reports that a court in India has ordered Pepsi and Coke to cough up their respective formulas.

UPDATE:  It’s not easy to tell, but I think this means they got out of it.

China’s feelings hurt

Originally posted 2006-02-27 10:44:42. Republished by Blog Post Promoter

Wall of ChinaWe’ve been following the domestic story of when trademarks hurt. (And get ready for this one, homey!) But we’re not the only sensitive ones out there, even if those sophisticated Europeans are beyond trademark offense. The Hindu News explains that the Chinese government is hurt, offended, and its ego dented by a European trademark for NOT MADE IN CHINA — a mark that will have virtually no application within about five years, but never mind that. Explains the article:

The trademark of “Not made in China” is apparently an act of discrimination against Chinese products. “Since the trademark is based on intangible asset, such a mark will bring negative impact on the reputation of China-made products,” the leading official paper ‘People’s Daily’ said on its website.

We know the Chinese government is sensitive. But can’t they just pay Google to make it go away?

UPDATE:  More here.

Pipe dreams

Originally posted 2006-11-02 15:07:17. Republished by Blog Post Promoter

forkPopular Mechanics reports:

“We were there first — by 10 years. Now I see a potential re-branding that could take years to complete,” says Universal Tube’s owner Ralph Girkins. “I’m not the kind of person who looks for lawsuits, but my business is being threatened by this situation.”

We are the kind of people who do look for lawsuits, of course, and this one is more than a little adorable. And perhaps more than a little meritorious: U-Tube v. YouTube. Will it, best-case-scenario, do any harm to YouTube? Only in the checkbook department. No-o-o-o-o problem. No-o-o-o-o problem.

Yes, nothing like confrontation with a length of pipe to make you want to do what you can to make a problem “go away.” Via Instapundit.

Review Blawg Review

Originally posted 2007-03-05 14:25:10. Republished by Blog Post Promoter

Edition number 98, right here.

Not a good e-discovery strategy

Originally posted 2007-02-08 16:29:54. Republished by Blog Post Promoter

Sullivan and Cromwell bookLavi Soloway writes (hat tip to Above the Law) regarding the extremely un-white-shoe discrimination litigation in New York County between former Sullivan & Cromwell associate Aaron Charney and the law firm, including this astonishing bit:

Last Wednesday January 31 there was a secret settlement meeting at which Charney was offered an undisclosed sum in return for which he promised, among other things, to destroy the hard drive on his personal, home computer. The destruction of that hard drive moved to the center of the debate. Aaron Charney has been ordered to submit an affidavit to the court regarding the hard drive and the status of documents that were allegedly in his possession.

Judge Fried also ordered Aaron Charney to produce his personal, home hard drive at 9:30 a.m tomorrow morning, if, in fact, is has not been destroyed. Fried was particularly concerned that Charney seems to have destroyed the hard drive (which would presumably have contained emails he sent to him self from his Sullivan and Cromwell account with client documents and other firm related documents attached) AFTER being ordered by Judge Ramos at an earlier hearing not to do so. It appeared that Charney destroyed the hard drive becuase S&C asked him to do so as a condition of settlement.

This would be astonishing, indeed. You don’t even need the new, improved and annoying e-discovery rules in the federal courts, nor do you need to be a litigator, to know what a bad, bad idea that was.

Both parties may have a lot of explaining to do. Sweeter it does not get!

UPDATE: S&C promises plenty of explaining. They’ve got your explaining right here. ($5 Million?!)

UPDATE:  Settled.

I Read Dead Peoples’ Email: UPDATE

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

InboxRemember this item?  I wrote, regarding a family’s request for access to a serviceman’s email account after his death, as follows:

I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in camera, or a special master, or another neutral person should fetch the relevant information and then Yahoo! should blow taps on the account. A hero is entitled to die with his privacy and his secrets intact.

Michell Malkin reports on new developments. Like her, though for different reasons set out in my original post, I’m lukewarm about this move.

UPDATE TO THE UPDATE: Deeper treatment of this issue, and specifically the Justin Ellsworth case, continues apace. Here’s one piece in IP Law & Business (the article is not available on line for free) by Mark D. Rasch, who formerly headed the Department’s efforts to investigate and prosecute computer and high-technology crime. He recommends the creation of an ‘”Internet Living Will” designating who can have access to your electronic assets in the event of death or incapacitation, and the scope of their authority to act on your behalf.”

Also, Jonathan Bick, a lawyer in New Jersey who’s an adjunct professor at Rutgers and Pace law schools, writes in the New Jersey Law Journal, available at (registration required here, too) that agrees with the argument of my interlocutor Paul Gowder in the comments to my original post (above) that this stuff ought not to stay private: “[D]efending nondisclosure of information after a person has passed away on the basis of privacy would present significant legal difficulties. A typical result was found by the district court in New Era Publications Int’l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), aff’d, 873 F.2d 576 (2d Cir. 1989), when it dismissed a privacy argument by noting that the author of the copyrighted work was dead, thus eliminating his privacy interests. This would also be the likely outcome should a privacy argument be present in the Yahoo! matter.”

I think it’s the wrong outcome. Expectations, expectations, expectations!

UPDATE ON REPOSTING IN 2009: Recently this item about “what happens to your email when you’re dead?” got a lot of play over Twitter.  This has been dealt with, in terms of what email providers do, elsewhere, too (and in a funny, macabre way here), but the issues I raised in this post — i.e., what should happen to your emails when you’re dead? — are not really being taken to heart by lawyers, policymakers or too many other people either.  Thinking about this more, I realized that I wrote so many posts on this topic, the last of which is here, that it should be part of my backward looking categorization project, and made up a whole category for these “emails of the dead” posts.  Enjoy them… while you can.

Even Hippies Have their Limits

Originally posted 2005-12-04 23:22:11. Republished by Blog Post Promoter

Dead LogoReuters “news” service reports:

Facing a revolt by its famously faithful fans, The Grateful Dead backed away on Thursday from a move to block “Deadheads” from downloading the jam band’s concert recordings for free.

The San Francisco Bay-based band had asked an independently run Web site to stop making thousands of the group’s recordings available for free download.

Yeah, hippies have their limits, but when do we hear about them?

[W]ith the 1995 death of lead singer and guitarist Jerry Garcia, band members no longer keep up such an active tour schedule, making the Internet an important source of revenue.

Oh, that’s when — when the gelt is on the table.  How can the Grateful Dead band members possibly not have “enough” money by now?   Well, rock stars only tell everyone else how much dirty lucre is too much — they have no moral limits, themselves, on either earning it or spending it.  But we digress:

But the founder and director of the Web site (, Brewster Kahle, said in an online posting on Thursday that bootleg audience copies of the band’s concerts had been restored for free downloading.

Yes, hippies have their limits. Thing is their spawn don’t. They never do:

“It appears doing the right things for the fans has given way to greed,” the fan petition said.

Bass player Phil Lesh posted an apologetic message on his own Web site saying he did not know the band had asked operators of the site to take down the recordings.

“I do feel that the music is the Grateful Dead’s legacy and I hope that one way or another all of it is available for those who want it,” Lesh wrote.

Grateful Dead spokesman Dennis McNally said a major concern for the band was that trading music over the Internet did not create the same sense of community as trading tapes in person.

Heh-heh. Yeah, that’s it. Community, baby. Don’t bogart that community.

Wal-Mart pushed back on dubious trademark threats

Originally posted 2006-03-08 13:33:28. Republished by Blog Post Promoter

New_Walmart_Logo.svgMarketWatch reports this story about an opinonated gent who’s suing Wal-Mart for a declaratory judgment:

Smith said he was making a point by comparing the giant retail company to the Nazis by creating T-shirt designs that played off the Bentonville, Ark., firm’s familiar logo, including “I (heart) WAL*OCAUST. They have family values and their alcohol, tobacco and firearms are 20% off,” the newspaper reported.

Wal-Mart launched a legal battle by writing a cease-and-desist demand that led Smith to file suit Monday in federal court in Atlanta. Former presidential hopeful Ralph Nader’s legal aid group, Public Citizen, is helping Smith, the report said.

Smith should be ashamed of himself for comparing a damned variety store to the Third Reich. It demonstrates a real lack of moral judgment on his part.

But the stupid party here is Wal-Mart, which should get its clock cleaned and which has given a platform for publicity to a bitter, if morally blind, adversary. Whether it will in this trademark-owners-take-all environnment is, however, anyone’s guess.

UPDATE: Hm. Maybe Wal-Mart had it coming?

UPDATE: The Pierce IP News Blog has it that Wal-Mart will claim its trademark is being besmirched by Smith. In other words, its claim will probably hinge on a trademark dilution count. You know, dilution — the infringement that never has to say “I’m confused.”

Tattoo Me ®

Originally posted 2006-01-09 21:20:36. Republished by Blog Post Promoter

Eric Goldman has an interesting piece about an issue that has actually come up in my practice: Trademarks and tattoos, and specifically the concept of people selling “space” on their bodies to act as “human billboards.” “People appear willing to brand just about any part of their body for the right price,” he says. He also notes, however, that — just as you’d think — that price isn’t usually forthcoming.

Internet anonymity still a judicial fave

Originally posted 2007-01-24 14:56:30. Republished by Blog Post Promoter

Evan Brown reports:

A trial court in Arizona has quashed a subpoena served on Godaddy, issued by a plaintiff in a defamation suit against an anonymous website owner. Applying the standard articulated in the Delaware Supreme Court decision of Doe v. Cahill, 884 A.2d 451 (2005), the court held that the plaintiff had failed to present a strong enough case to overcome the defendant’s First Amendment right to speak anonymously. Under the Cahill standard, a plaintiff seeking to unmask an anonymous Internet defendant must put forth evidence sufficient to withstand a motion for summary judgment before the court will order the identity to be revealed.

We’ve discussed this issue beforemore than once. Although I am chary of the general proposition that Internet anonymity is an unalloyed good thing, this is a good policy: Where there is no defendant but a John Doe, as justified as it may be to file against unknown defendants in general, it is the court’s duty to make sure that the power of the court be utilized to obtain discovery in pursuit of a meritless claim.

Bloggers bend the elbow

Originally posted 2007-05-01 15:00:11. Republished by Blog Post Promoter

Old goats, fresh drafts
Bob Cumbow holds court at the INTA bloggers’ imbibery at the annual convention in Chicago.

UPDATE:  More evidence of hijinks.