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Freedom to blawg

Originally posted 2014-06-25 01:28:21. Republished by Blog Post Promoter

Blawg Review #85 is up, down under.  It’s one of the most thorough and “dense” blawg reviews ever.  I mean that in a good way.

Little McCain Feingolds and Their Allies

Originally posted 2013-04-12 12:20:03. Republished by Blog Post Promoter

Via Instapundit, Ryan Sager writes about what happens when “campaign finance laws” (including state law versions of the McCain-Feingold Anti-Sedition Act) are used to literally shut down the exercise of First Amendment rights in free political speech — typically when the speaker is on the right.

Sager has been on this story for a while. Where are all those self-described civil libertarians who are obsessed with every kind of acid test for the upcoming Supreme Court nominees except whether the new Justice is at least an even bet to restore the First Amendment? Indeed, where are the self-described First Amendment defenders? From the looks of it, their concerns are everything on God’s green earth — Ward Churchill, “academic freedom,” the right to public obscenity, “global resistance to the war in Iraq,” the Patriot Act — everything but what is really happening to the actual First Amendment.

Enjoy this blog while you can.

All you need is what he’s got

Originally posted 2011-04-26 21:41:29. Republished by Blog Post Promoter

Randy Barnett, enjoying a new authorized remix of a bunch of Beatles music, frets that we can’t have more of the same because of bad old “intellectual property”:

IP is supposed to create incentives for innovation. Here, as elsewhere, it is suppressing innovation. I know the counter arguments: The Beatles songs would not exist in the first place if not for IP; nor would this mix. And they deserve recompense. And they should be able to control the quality of derivative uses lest the value of their property be diminished, etc. I know the drill.

I also know the responses. The Beatles would not have created music unless compensated untold millions? Cirque Du Soleil would not have need a sound track for their show? Unlikely. They would not have created music unless their decendents were made millionaires many times over? Hardly. They deserve to control all derivative uses? What about the writer of the poster on which “For The Benefit of Mr. [Kite]” was based and his or her deserving descendants?

He then goes on to criticize the abuse of IP, especially copyright, with which I certainly agree. But he doesn’t really wrestle with what the right to make derivative works really is all about.

Barnett also puts himself in the position of “price second-guesser” as to what he thinks the proper price for owners of original works “should be” before they authorize the creation of derivative works. I suppose his rationale for that is that intellectual property isn’t “really” “property” at all, and perhaps he’s right.

I don’t believe, however, that this means the price mechanism is to be uncoupled merely so we can innovate utilizing other peoples’ creative works. Perhaps the Beatles wouldn’t have needed untold millions to write their brilliant music; but perhaps they would have, before, for example, making the massive investment, for its time, that the production of the Sgt. Pepper’s Lonely Heart’s Club Band album entailed. Where do we draw that line? And since we’re asking how much the Beatles really “need” in order to be the Beatles, how much do we “need” in order to listen to remixes of “Good Day Sunshine”?

Arizona court takes Lanham Act to its logical (modern) extreme

Originally posted 2006-07-21 11:52:31. Republished by Blog Post Promoter

A judge in the U.S. District of Arizona issued, earlier this week, an injunction against “any comments that could be construed as to disparage [a trademark].” Thankfullly, as Euguene Volokh reports, the Ninth Circuit has stayed the order.

Unbelievable? Not in the slightest. Why not? Trademarks have feelings, too. Now that they’re all but enforceable in gross (a trademark law term roughly meaning without necessarily being associated with a good or service, which is traditionally what they had to be to be trademarks or to be infringed), they should be protected from pain, as well as unsightly dinks and dents. They’re very sensitive, you know. And very high maintenance.

Bad “Experience”

Originally posted 2007-03-07 13:13:09. Republished by Blog Post Promoter

Michael Atkins reports (I added a link):

Owners of the Jimi Hendrix family of trademarks have sued over use of the deceased musician’s name in connection with the marketing of vodka. Experience Hendrix, LLC, and Authentic Hendrix, LLC, filed suit yesterday in the Western District against Washington-based Electric Hendrix, LLC, [which was allegedly] formed … in 2005 for the purpose of selling, bottling and marketing vodka as HENDRIX ELECTRIC, JIMI HENDRIX ELECTRIC, or JIMI HENDRIX ELECTRIC VODKA. . . .

The Seattle Times reports the Hendrix family especially objects to the use of Mr. Hendrix’s name to sell vodka.

“In view of the circumstances of my brother Jimi’s death, this attempt to associate his name with the sale of alcohol beverages amounts to a sick joke” stepsister Janie Hendrix said in a statement released yesterday.

There is too much confusion… Jimi will get some relief.

UPDATE: Two riders were approaching, the wind began to howl.

Giving up the Web

Originally posted 2010-11-05 17:11:33. Republished by Blog Post Promoter

ClickZ News says lawyers are “Giving Up on Web Trademark Infringement”:

“Trademark dilution is death by a thousand cuts,” said Joe Dreitler, partner at Frost Brown Todd. “And if there are a thousand people doing parodies of Louis Vuitton, at what point [does it occur]?”

It’s almost as if the claim of trademark dilution, regarding which we have long been very dubious, brings its own punishment: It is now so relatively easy for a truly famous mark (such as Vuitton, which we have represented) to make a meritorious dilution claim and yet it is even easier to dilute a trademark on the Internet. And the bigger the trademark the more dilutable… the more it cries out for dilution… the more lawyers and trademark owners trip over themselves trying to figure out what to do about it. As this article demonstrates, they’re increasingly frustrated over their inability to do anything as the truly anarchistic nature of the Internet defies enforcement regardless of budgets or ambitions.

Probably the smart thing would be to forget about dilution, which the world lived without since Creation, and focus on tight brand building and enforcement against real infringements. But of course that is a course the trademark owners are constitutionally incapable of considering. Are they on the verge of making utter fools of themselves in the RIAA “constant nuclear option” enforcement — I mean, “enforcement” — mode? Probably. And law firms will profit all the way, which is the up side. (You think I meant that as a bad thing?!)

DMCA not such a good idea, after all

Originally posted 2007-03-26 12:48:39. Republished by Blog Post Promoter

Boing Boing is all over the story that’s all over the Internet today: “DMCA’s author says the DMCA is a failure.” (Hat tip to Instapundit.) That’s Bruce Lehman, whom I interviewed for this article (the first article on Internet law in the ABA Journal) some time around the Civil War.

Well, it seemed like a good idea at the time, but Lehman acknowledges that we’re in the “post-copyright era” now. Just to prove it, Boing Boing has links to his speech, ripped from a university server utilizing a proprietary media application, now freely available to every and sundry person via YouTube.

Strumming their fate

Originally posted 2006-06-06 20:39:18. Republished by Blog Post Promoter

Gibson Les Paul Guitar

The Les Paul Guitar

We blogged a while ago about the Les Paul guitar lawsuit, based on the idea that the shape of the Les Paul guitar was a trademark of Gibson Guitars when the District of Tennessee declined to agree with that idea. Now it’s been finally resolved, and the winner isn’t Gibson — the Supreme Court denied to hear their appeal from the Sixth Circuit Court of Appeals, which affirmed the decision. The Baltimore Sun reports:

William D. Coston, a Venable LLP attorney who represented Paul Reed Smith in the case, said the appellate court ruling and the Supreme Court’s refusal to hear the case further clarify trademark restrictions on product shape.

“The law says to win a trademark case you have to show a likelihood of confusion,” Coston said. “Gibson was forced to concede that no one would ever be confused at the point of sale.”

Steve Duvall, a sales associate at Music-Go-Around in Cockeysville, said many companies have mimicked the Les Paul style.

“For the longest time, Gibson overlooked it,” he said. But with the popularity of the Paul Reed Smith’s Singlecut, “the company had really broken into the same market.”

Point of sale, not “initial interest,” is what governs confusion? What a concept!

Changing the IP Mentality

Originally posted 2012-06-22 14:07:19. Republished by Blog Post Promoter

Mark V.B. Partridge, a partner at the firm that bears the name of my old trademark professor and author of the Guiding Rights Blog [link is dead – RDC], has written a very important piece for the [non]billable hour blog. Here’s my favorite suggestion:

2. Eliminate rights in gross mentality

My second change, admittedly related to the first, would be to eliminate the “rights in gross” mentality. By this, I mean the notion that a trademark creates an absolute and exclusive right. One sees this tendency on both sides of the rights issue. A trademark owner may have the view that no one else may use its mark for any purpose. The junior user may believe there is no infringement if the mark it adopts is not identical to another’s trademark.

I don’t think there’s a single bigger problem in trademarks than this mentality. It is not necessarily an unreasonable view for trademark owners to have; they pour millions or even more into the “brand equity” represented by a trademark. But that should not, and does not, change what a trademark is supposed to be. Unfortunately, the flowering of federal trademark dilution law has cut in exactly the opposite direction of this would-be change — and I don’t see it getting better.

Blawg Review!!!

Originally posted 2011-05-25 15:33:57. Republished by Blog Post Promoter

How did I miss this? Happy century of weeks!

I actually hadn’t.  Here’s where we’re really up to, though!