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Where Were You When “Happy Birthday to You” Was Found to Be in the Public Domain?

Newly discovered evidence [according to a court filing] “proves conclusively that Happy Birthday has been in the public domain since no later than 1922.” At stake is the more than $5,000 per day—or $2 million per year—that singers, stage directors, filmmakers and advertisers currently shell out to use the [song]. – The Washington Post

My entire extended family and I—some six dozen of us, spanning four generations—were at a Joe’s Crab Shack celebrating Nana’s big 1-0-0. The wait staff was midway through a verse of the restaurant’s proprietary alternative ‘Joyful Anniversary of Your Being Born’ melody when one of the busboys—a second-year law student, I think I’d heard him mention—glanced at his phone. He must have gotten word of the court decision just then, because he signalled to the rest of the servers’ ensemble and as one they transitioned to the previously-verboten tune. It took a moment for the other relatives and me to catch on to what was happening, but when we did we joined in. More than one voice cracked—with emotion, for this was a truly momentous occasion. As it turned out, Nana herself entered the Great Public Domain in the Sky the following month—by which I mean she died—but she died with her faith in the American legal system restored, even if she never forgave Chester A. Arthur.”

– Randall W., Atlanta

“I was at home, swimming in an enormous pile of money—the royalties I’ve earned from selling eBooks of public domain works on No wonder the Warner Music Group wanted to keep the most recognized song in the English language out of there. The public domain is a festering goldmine.”

– Molly M., Raleigh-Durham Read More…

Best of 2011: The seven habits of highly annoying lawyers


First posted on February 4, 2011.

Or, perhaps, the companies that hire them.  Let’s see if we can find all seven in this highly effective — certainly highly earnest! — item from Mark Malek at the Tactical IP blog.

But first, while I haven’t looked into the facts here, this item made me wonder:  Can we find the Seven Habits of Highly Annoying Lawyers in the typical overreaching cease-and-desist letter story?  I would say so:

  • Covey Habit1: Be Proactive
    • Lawyer Habit 1:  Be a Prostitute
  • Covey Habit 2: Begin with the End in Mind
    • Lawyer Habit 2:  Begin with the Fee in Mind
  • Covey Habit 3: Put First Things First
    • Lawyer Habit 3:  Shop for the Right Jurisdiction First
  • Covey Habit 4: Think Win-Win
    • Lawyer Habit 4:  Think Win-Bankrupt Them
  • Covey Habit 5: Seek First to Understand, then to Be Understood
    • Lawyer Habit 5:  Seek First to Understand What You Can Get Away With, then Make Your Threat Understood
  • Covey Habit 6: Synergize
    • Lawyer Habit 6:  Sin
  • Covey Habit 7: Sharpen the Saw
    • Lawyer Habit 6:  Sharpen the Teeth

I’m feeling more effective already!  Okay, now to Mark’s probably unrelated, but highly enthusiastic — not to say excessively perky — offering about the Covey thing: Read More…

Regrets, I’ve had a few

But then again, too few to mention.

The problem, of course, is someone else mentioning them.

Google says it has the solution:

When you enable Mail Goggles, it will check that you’re really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math problems after you click send to verify you’re in the right state of mind?

By default, Mail Goggles is only active late night on the weekend as that is the time you’re most likely to need it. Once enabled, you can adjust when it’s active in the General settings.

What an odd cultural artifact.   But perhaps a speed bump for electronic text communications is not such a terrible idea.

Of course you ultimately have to be able to do math.  And, you know, if you could “do the math,” you wouldn’t really even be considering sending that email.

Digital Analogy: Behind the Scenes of Aereo

“In a case with far-reaching implications for the entertainment and technology business, the United States Supreme Court ruled on Wednesday that Aereo, a television streaming service, had violated copyright laws by capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee. …

Justice Stephen G. Breyer, writing for the majority, said the service was ‘not simply an equipment provider,’ but acted like a cable system in that it transmitted copyrighted content.” – The New York Times


Stephen BreyerBreyer, J.: We must decide whether the respondent infringes the exclusive rights of copyright owners by selling subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as those programs are broadcast over the air.

I am of the opinion that, viewed in terms of Congress’ regulatory objectives, the behind-the-scenes technological differences do not distinguish the respondent’s system from cable systems, which need to get permission to broadcast copyrighted content. Even though cable systems depend in large part upon the use of cables—whereas the respondent does not—the respondent’s set-up is essentially the same.

U.S. Supreme Court Justices Pose For Group PhotoSotomayor, J.: Aren’t cables just bundles of wires, though? I believe that they are. And we heard testimony that the respondent’s physical set-up—the machines in a warehouse in Brooklyn—does use components that themselves have wires. It would seem to me, then, that the respondent effective admitted that its system depends on cables, and therefore the conclusion that the respondent’s system is a cable system is not at all a hasty one.

And I graduated with honors from Princeton, albeit with a degree in History. But it’s not as if this is a complicated technological question that requires any specialized knowledge to answer.

Justice RobertsRoberts, C.J.: I agree with my colleagues that the respondent’s electrical contrivance is basically a machine built to infringe upon the exclusive rights of copyright owners, but I take issue with the comparison of the respondent’s apparatus to a cable system. To my mind, the respondent’s appliance is most like an artificial satellite, and specifically Sputnik 1. As my brothers and sisters on the bench will recall, the so-called “Elementary Satellite” boasted four external radio antennas to broadcast radio pulses.

Similarly, the respondent houses thousands of dime-sized antennas, each of which receives a television broadcast, which a transcoder then translates into data that can be transmitted over the Internet. We can not risk another so-called “Space Race.”

Justice KennedyKennedy, J.: Judge Roberts, I remember Sputnik. I knew Sputnik. Sputnik was a friend of mine. Judge Roberts, the respondent’s system is no Sputnik. The respondent’s system is more like——

Roberts, C.J.: That was really uncalled for, Judge Kennedy.

Kennedy, J.: You are the one that was making the comparison, Judge Roberts. Frankly, I think that the respondent’s system and the Soviet Union’s polished metal sphere—the one whose launch ushered in an age of new political, military, technological, and scientific developments—are so far apart in their objectives that I’ve completely lost my train of thought. No, wait! I remember: The respondent’s system is like a steam locomotive, and railroads were very good for America. I vote to acquit.

Justice KaganKagan, J.: There’s an old saying: “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” I have given the respondent’s system, as it was described and explained to us in detail by lawyers for both sides during oral argument, and as the records of the Patent Office illustrate it, and I have reached the conclusion that what we’re talking about here is a duck.

But I mean that literally. The respondent’s system is an actual duck, in that it is a waterbird with a broad blunt bill, short legs, webbed feet, and a waddling gait. Interestingly, ducks themselves are often confused with several types of unrelated water birds with similar forms, such as loons, grebes, gallinules, and coots.

Breyer, J.: I have been called a “coot,” a term that I understand means “a foolish or eccentric person, typically an old man.” Read More…

The poetry of the Lanham Act

West Side anglesYehuda, an Israeli blogger who blogs on board games and gaming, presents the Lanham Act in verse.  A taste:

If you own a mark that’s
Really used in commerce
Pay heed to the directions
Written down in this verse

You must “own” the trade-mark
(Though it doesn’t say how)
And you must promise to use it
Or be using it now

It is to weep.

Don’t Say I Didn’t Warn You

Google shares are up only seven-plus percent this morning. Am I sitting pretty? Let’s put it this way: My haircut this morning? Paid for.

The original parody guide to law school – “Welcome to Lincoln Law”

Instapundit is rife with gag guides to law school, and some serious ones, too.

Been there. Done that — in this 1992 article called “Welcome to Lincoln Law” (in the old Student Lawyer magazine of the ABA Law Student Division).

It’s a little dated, but believe me, the advice still holds true.

Generic IP abuse rant post

From time to time leading citizens and crimefighters call on LIKELIHOOD OF CONFUSION®, publicly or otherwise, to weigh in or “rant” on issues that have come to their attention, and I try my best to comply — even at the expense of doing something none of us would do as lawyers, which is stick my neck out on something before fully researching it.  It seems prudent, therefore, to prepare a standard template for such rants, given the apparent predictability of this blog’s point of view on things, and to have it ready as needed.

More citiscapes

Wait a minute — this isn’t a courthouse at all! It’s a post office!

I am throwing it up here in case anyone else wants to start a blog and use it, too.  Choose the appropriate bracketed term for your particular outrage.

Via [A FRIEND ON TWITTER], word has reached your ever-ready-to-react blogger about the outrageous abuse of [COPYRIGHT] [or TRADEMARK] law in connection with the [CEASE AND DESIST LETTER SENT] [or LAWSUIT FILED] by [VERY BIG COMPANY] [or VERY SMALL COMPANY WITH A STUPID LAWYER] against [INNOCENT FAIR USER] [or INNOCENT DESCRIPTIVE USER] [or VICTIM OF SELECTIVE ENFORCEMENT].

As regular readers know, I’ve already blogged about this issue, brilliantly, of course, here, here, here and here. Of course Eric Goldman agrees with me about this, too, though he doesn’t actually mention me, but he’s a very, very busy man.  Also I was proved right in this case and also this little number right here.

And of course we know that I can say this because of my extensive enforcement experience representing [BRAND], [BRAND] and [BRAND].

So I know what I’m talking about, okay? Paid those dues. Walked the walk. Why just last month I filed a plaintiff’s action in a [TRADEMARK] [or COPYRIGHT] case!

Despite all this no one — especially the big shots at INTA who just won’t recognize my true worth and are certainly never going to send me referrals, hardly, or even admit they read this blog even though I see the names of their firms in my server logs — has taken any action to [AMEND THE COPYRIGHT ACT] [or AMEND THE LANHAM ACT]  [or TEACH THOSE JUDGES HOW TO READ]. All of which just goes to show that it’s just a lot easier and sneakier for Big IP, through its handmaidens in the judiciary, to defer to those big law firms, when really what the IP community needs to do is to finally step up and [OFFER ME AN ADJUNCT POSITION] [or ASK ME TO SIT ON A PANEL] [or SEND ME REFERRALS].

Diversion, you claim?   Read More…

What would we do without experts?

With apologies to James Taranto — this is what came up on my Google alert for trademark news tonight:

Analysts: iPhone Trademark Dispute Likely To Be Resolved Quickly
Mac Rumors – Newport News,VA,USA
According to, financial analysts and legal experts are expecting Apple’s iPhone trademark dispute with Cisco to be resolved quickly,

Apple Unlikely To Go To Court In iPhone Trademark Dispute, Experts Say
InformationWeek – Manhasset,NY,USA
Apple is more likely to reach a deal with Cisco Systems than to risk losing a trademark suit over the use of the name iPhone, experts say.

Trademark Law: The Dismal Science

The Tata Group put out this press release about a trademark decision that some people seem to think is funny. It is evidently connected with this WIPO decision.

Likelihood of Confusion doesn’t get it. No one said trademarks were supposed be fun, much less funny. Much less bodacious.

Hat tip to John Berryhill via the INTA List. Apparently he gets it.