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Best headline of the year?

Originally posted 2006-02-07 19:44:11. Republished by Blog Post Promoter

Mister Snitch, concerned that we’re not getting enough irony, writes that this could well be the best headline of the young year. He could well be right!

Employee’s Own Electronic Customer Lists “Converted”

Originally posted 2013-03-05 17:36:15. Republished by Blog Post Promoter

Another interesting New York decision reported by the (sub only) New York Law Journal in an article called The Common Law Concept Applied to Computers:

A Manhattan judge has relied on analogy to determine that the common-law concept of conversion — the wrongful retention of another person’s physical property — applies to electronic records.

Supreme Court Justice Herman Cahn held that a terminated real estate agent who was prevented from accessing her work computer to obtain an electronic list she kept has a conversion cause of action against her former employer, the Corcoran Group.

Usually the former employer is suing the employee for theft of trade secrets. Here, presumably (the story does not say; the full opinion will be available on Thursday) the employee’s list was her own property, perhaps brought from a previous professional existence, and not that of her employer. The fact that it was kept on her employer’s computer (no backup?!) did not automatically make it the employer’s property. We will want to read the full decision, but this is a very interesting case for computer law afficionados.

One last thought from Justice Cahn:

“The question is,” according to Justice Cahn’s decision, “does the common law tort of conversion become an extinct vestige of the past as to documents maintained on a computer, merely because traditional definitions of documents evolve over time to the point where wood pulp is no longer the only required medium upon which to record data?”

Their lack of wood pulp notwithstanding, Ms. Shmueli’s electronic records still comprised property, Justice Cahn ruled.

The Trademark That’s Too Good to be a Trademark

Originally posted 2005-12-26 12:46:46. Republished by Blog Post Promoter

That’s what a generic mark is. The TTAB Blog reports that the TTAB has ruled that Lawyers.com, the consumer interface for the Martindale-Hubbell law directory, cannot be registered as a trademark for “providing an online interactive database featuring information exchange in the fields of law, legal news and legal services…”

John Welch writes, “It took the Board 29 pages to explain this seemingly inevitable result …” — inevitable to the commonsensical among us, yes, but maybe not to the narcisstic world of brand management and rent-seeking that rules the roost in public discussion of trademark. Hat tip to Evan Brown.

Bring your discomfort bag (revised and expanded)

Originally posted 2014-06-17 16:41:08. Republished by Blog Post Promoter

Technology & Marketing Law Blog: “The keyword advertising legal roller-coaster continues.”

The roller coaster I would not ride

As someone who is on that thrill ride — at least partly on the dime of my clients (as in the Buying for the Home case) — it is of course troubling for an expert such as Eric Goldman to acknowledge this. It is somewhat of a vindication, though, not least of the fact that attorneys practicing in this area really have no business telling clients they have any idea what the outcome of cases implicating these issues might be, no matter how well we think we know the law.

That’s fine as far as it goes. But what about the law? It is distressing enough to tell your client that his case involves an unsettled area of law and that two courts faced with similar facts could well come to different conclusions about the application of the “same” law to those facts. (It can even happen in the same case, as Eric points out in his commentary on Buying.) It is preposterous, however, that your client could get slammed on damages or, in theory, attorneys’ fees — which require a finding of willfulness, mind you — because courts are still feeling their way around.

What a fine opportunity for Congress to step in and provide guidance via legislation — for these angels dancing on the heads of virtual pins are in fact not so much legal decisions at all but real, live policy decisions: Shall the Lanham Act regulate, as a trademark infringement, the utilization of trademarks as search terms in Internet or other computer-based software engines?

This is not the case every time a trademark and the Internet get involved with each other. In the context of past trademark-on-the-Internet disputes, notably involving domains (which the world once thought would be the alpha and omega of trademark battlegrounds on the Web), we have argued that the issues at stake are not novel “cyberlaw” questions but merely require the application of hoary principles of unfair competition to somewhat novel situations. But that argument simply does not stand when we consider the search engine question. It is pedestrian to observe that Congress could not have contemplated this or that application of a law when it passed it. The common law tradition abjures us from such arguments. It is the job of judges to apply the law which affects the decisions we make about conduct to new factual situations by the application of analogy tempered with equity.

Yesterday you said tomorrowBut we are in a new world. When courts make fundamentally different conclusions about a question or cluster of questions — in this case whether trademarks are even “used,” as understood in the Lanham Act, by search engines [UPDATE:  See here.  They are.] It is time to recognize that these legal questions are political questions implicating not only law but commerce at all different levels, as well as technology and the shape of the Internet to come. Not everyone has the stomach for roller coaster rides. Let those who do have their fun. The rest of us, lawyers and clients alike, are entitled to the option of standing on terra firma while conducting our affairs. This is our stop.

The heart wants what it wants

Originally posted 2011-08-24 12:55:22. Republished by Blog Post Promoter

The New York Law Journal (subscription required) reports:

Manhattan Supreme Court Justice Bernard J. Fried has ruled that under the terms of a January 2003 settlement agreement, [Woody Allen’s former producer] may develop television-and-airplane versions of Mr. Allen’s “Bullets Over Broadway,” “Mighty Aphrodite,” “Everyone Says I Love You,” “Deconstructing Harry,” “Celebrity” and “Sweet and Lowdown.”

The dispute over the final cuts of the modified films is the latest fallout of a May 2001 lawsuit Mr. Allen filed against [the producer] Ms. Doumanian, her personal and professional partner Jacqui Safra and their production company, Sweetland Films.

[A settlement] agreement [betweeen the two sides] was . . . at issue in the current dispute, over the final cut of the television-and-airplane versions of six films Mr. Allen made with Ms. Doumanian’s backing.

According to Justice Fried’s decision…, the 2003 settlement stipulated that if Mr. Allen and Ms. Doumanian could not agree on the cuts that would allow his oft-profane films to satisfy TV standards, either party could submit the matter to the Commercial Division of the Manhattan Supreme Court for resolution.

Now it has. Luckily for the plucky, morally deranged Alan Koenigsberg, no one wants to see any of the films named above, nor will anyone notice if any or all of them are diced and sliced for the back of an airplane seat. The decision in Moses Productions., Inc. v Sweetland Films, B.V. has been published here (the link provided by the Law Journal was broken never was repaired).

Mr. Allen’s . . . attorneys, Michael Zweig and Chris Carbone of Loeb & Loeb, called upon a single expert witness, Time Magazine film critic Richard Schickel.

Mr. Schickel testified that Ms. Doumanian’s methodology for satisfying television standards — primarily, dubbing over offending language — would damage the films’ “comprehensibility, entertainment value and artistic integrity,” according to the decision.

By cutting scenes and camouflaging offending language, Mr. Allen argued, the producers would trick audiences into believing they were watching an unedited film. He preferred explicit changes, such as bleeping offending language and blurring offending images.

The defense, in contrast, presented two expert witnesses, both of whom specialize in adapting films for television broadcast. Their testimony focused on the eventual salability of the modified movies. . . .

After watching the original versions of all six films at issue, Justice Fried ruled in favor of Ms. Doumanian.

“Based on the undisputed hearing testimony that networks rarely or [n]ever air films with bleeping or muting, however, and the parties’ apparent agreement that shooting alternate coverage for the films is no longer feasible, it appears that word replacement is the only way to modify the content in order to comply with the parties’ agreement to create one version of each of the films that complies with generally accepted network television censorship and/or standards and practices requirements,” Justice Fried concluded.

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.