Tag Archives: Big Thoughts


Originally posted 2009-01-22 13:31:48. Republished by Blog Post Promoter

"The Interloper" (Norman Rockwell)

"The Interloper" (Norman Rockwell)

Working from home today after a bruising few weeks at work (see yesterday’s post!), I finally figured out what was going on with banner ads on my Internet browsing.  It raises an interesting question about Internet-related copyright and trademark law.

We use a filtered Internet service at home.  This way we know that not only do our children not have access to or permission to use the Internet, but even if they “happen to” get to it anyway, the worst of the worst is not coming into our house.  This is good for the grownups too, of course.

I recently adjusted the filtering level on the service and by virtue of that change the filter now happens to block banner ads.  This I did not mind, because many such ads, especially on Yahoo! mail, are quite garish and often rather gross and, frankly, indecent.  After this change I also started seeing a filtering message in the place of familiar, and relatively high-class, banner ads on my favorite “big” blogs that feature ads, such as Instapundit. It was not a great aesthetic experience but I got used to it.

A little while later I had the jarring experience of realizing that ads for charity auctions on behalf of orthodox educational  institutions — including a client of mine! — and solicitations for fundraising on behalf of penurious young couples in Israel were appearing on that very same site, one of the most popular English-language blogs in the world!  Well, I would say Glenn Reynolds is pretty Jewish-friendly, to say the least, but this struck me as pretty odd.


Once I could focus on the question, however, I realized what was going on:  My filtering service was reselling the filtered advertising real estate to advertisers interested in the orthodox Jewish Internet user market!

This seems to raise some interesting questions, doesn’t it?  Read More…

Taking the IP Train

Originally posted 2010-09-06 16:08:53. Republished by Blog Post Promoter

The New York Times reported (yes, reg. req.) last week that New York’s Metropolitan Transit Authority is scrambling to enforce trademark rights in its wide array of iconography, including the famous alphanumeric train symbols known to all New Yorkers.

MTA Subway Train Symbols

Evidently powered by the MTA’s burgeoning licensing program, it’s not a bad idea. No question but that these and the many other powerful symbols used by the transit system are excellent communicators of source, quality and all those other trademarky things. The New York transit system, especially the subway, is an entire subculture unto itself. In other words, don’t be surprised if there’s some pushback on this new, and somewhat belated, attempt to kind of privatize, or revenue-ize, a world that generations of people think of as “everybody’s” property.

Of course, the libertarians remind us constantly, and accurately, that when something is everyone’s property, it is ultimately treated like no one’s property at all — which “everyone” ends up paying for. Still and all, there is an interesting trademark policy issue in here somewhere. It’s one thing to say that services aren’t free and that even when, as in the case of the MTA, they succesfully address significant externalities, their costs should not be unduly disconnected from users. But it’s another thing to say that, however revenue-starved, a public institution (in the broad sense of the word) such as the MTA should restrict the public, much less the bloggy, enjoyment of a public iconography such as the train number symbols and the image of the classic subway token.

In other words, if you get a C&D letter from the MTA, give me call, won’t you?

King Kong meets Godzilla

Originally posted 2014-04-22 21:57:10. Republished by Blog Post Promoter

Via Drudge — FT.com unleases a whopper:

Microsoft on Tuesday launches a fierce attack on Google over its “cavalier” approach to copyright, accusing the internet company of exploiting books, music, films and television programmes without permission.Tom Rubin, associate general counsel for Microsoft, will say in a speech in New York that while authors and publishers find it hard to cover costs, “companies that create no content of their own, and make money solely on the back of other people’s content, are raking in billions through advertising and initial public offerings”.

Mr Rubin’s remarks, presaged in an article in Tuesday’s Financial Times, come as Google faces criticism and legal pressure from media companies over services allowing users to search online for books, films, television programmes and news. Viacom, the US media group, instructed YouTube, which Google owns, to remove 100,000 clips of copyright material.

Okay, so there’s a touch of irony here:

You see, Microsoft excels at marketing. They don’t excel at innovation. In fact, very little of what Microsoft has to offer is truly innovative. There is a tendency to come late to the game and snatch up an idea and build on it, perhaps years after the concept has hit the market, and call it their own. They market themselves as innovators and do a degree they are. Their innovation comes in the spit and polish and not in the technological breakthrough itself.

Examples of this go way back …

Arguably, Google has innovated more — with its search engine technology and the applications it has spun off them, and in the way it has changed the face of how people use their (and others’) computers — than Microsoft ever will. What commercial reality is motivating this attack, then? Read More…

Best of 2006: Side by side comparison doesn’t decide likelihood of confusion

Originally posted 2015-01-19 14:43:43. Republished by Blog Post Promoter

Originally posted on July 11, 2006.

Dooney pattern - Thumb

Dooney’s pattern

This is an important decision: The Second Circuit Court of Appeals has partially reversed the earlier ruling of the U.S. District Court for the Southern District of New York (full decision here) in Louis Vuitton Malletier v. Dooney & Bourke, Inc.

Here’s the “money quote” as a once-great blogger taught me to say (citations and internal quotes omitted; link added) :

We turn next to the question of likelihood of confusion. . . . The similarity of the marks is a key factor in determining likelihood of confusion. To apply this factor, courts must analyze the mark’s overall impression on a consumer, considering the context in which the marks are displayed and the totality of factors that could cause confusion among prospective purchasers.’ The district court here noted that there were “obvious



similarities” between the Louis Vuitton and Dooney & Bourke handbags. However, it determined that despite the similarities, the two marks were not confusingly similar. It appears the trial court made the same mistake that we criticized in [the] Burlington Coat Factory [decision]: inappropriately focusing on the similarity of the marks in a side-by-side comparison instead of when viewed sequentially in the context of the marketplace.

The district court reasoned:

Read More…

No free lunch. But those prices?

Originally posted 2011-02-22 13:25:33. Republished by Blog Post Promoter

“Information wants to be free.”  I must have mocked those words dozens of times here.  Or a few.  I might be counting the times I just thought that.  Either way, that expression is not an argument.  It’s a statement of ideological faith.  The pro-copyright right has its own religion on this, too.

The music industry, for example, demonstrates its faith via windmill-tilting-based litigation genuflection.  The best way to describe its approach copyright enforcement is to think of “mass tort” litigation seen through the wrong end of a telescope*–indeed, as it turns out, the “mass” is there in terms of the litigation, but it seems not so much in terms of the harm.  (Was anyone ever really fooled by that number?  Not LIKELIHOOD OF CONFUSION®.)

You don’t have to be a know-nothing, however, to believe that copyright still makes sense, at least conceptually.  Take Tracey Armstrong:

“Copyright holders have the right to price and term the works that they have created, the works that they own. That’s a stake in the ground. I couldn’t do what I do for a living without believing that,” says Tracey Armstrong, CEO of the Copyright Clearance Center, in a conversation earlier this week on the future of copyright. “We couldn’t foresee the iPad back in 1985, so digitization and the complications that come with it are what we’re working on right now.”

Well, okay, the fact that you’re paid to believe something doesn’t make it true, either–just ask a lawyer.  But she’s right.  More:

“I agree with the statement that everyone is now a publisher,” she says, “and what that means is a tremendous proliferation of material that is copyrighted and can be licensed.” She describes this as the “atomization” of content –- books being offered as individual chapters and paragraphs, computer software being parsed into individual lines of code –- a phenomenon that is causing exponential growth in the number of “granular” elements that are available to be licensed.

Of course, she adds, “the market is not infinitely elastic” -– and notes that there is plenty of information that will be offered for free, or will have to be.

The Internet’s ultimate victims

Then again, there are the iconic, high value works that will never be offered for free.

Maybe.  Probably.  “Iconic”?  Probably less than ever. But notwithstanding that there is a new world of free content out there, few of those with the most to offer are going to invest their best efforts in the creation of high-grade works, in any medium, just to have it deemed what one commenter at CCS link above called “collective social product.”  That’s just lefty liturgy for you right there–nonsense.  Yes, copyright is creaking under the weight of the digital revolution–more on that below.  But that doesn’t affect the fundamental rationale for it.  Creators and those who invest in the publication and distribution of creative works are morally entitled to, and respond in a socially beneficial way, to the incentive created by their expectations of enjoying a limited monopoly over the fruits of that investment.

It’s particularly ironic, in light of this self-evident truth, for left-wingers to utilize sloganeering such as “collective social product” in arguing against copyright.  In their rush to “liberate” property and the “means of production” they’re abandoning the labor theory of value meant to justify collectivism as against our natural inclinations.  On the one hand, we expect to control the fruit of our efforts.  On the other hand, yes, let us resist the raw conception that market price is the only criterion of “value” in human intercourse–even with respect to creativity.

Front door on Times Square

All that glitters is not gold

But copyright does not reward the arbitrary capturing and bottling of “knowledge,” but rather the tangible expression of it and the investment of effort and resources by the “knowledge worker” in bringing it to the market.  True, the rest is negotiable, but copyright in its ideal form is a very reasonable assignment of rights as to these expectations.

Now this assertion would seem belied by the change from a regime in which only a handful of publishers decided what would be published and distributed and at what price, to one in which free publication of valuable substantive content is ubiquitous.  Why is so much quality free content published if people need copyright as an incentive?

The reason is that there are many kinds of incentives, not all of them financial or amenable to easy “disclosure” or pricing.   We publish for free to enhance our professional reputations; to advertise our services; to seek the attention of those who might pay us for more intensive or comprehensive content; to be part of or affect debate; to gratify our egos.  None of these motivations means either that the “content” published for inherently “should be” free or that any other content that isn’t free “should be” free.

I’m not sure Tracy Armstrong is necessarily loaded for bear in her campaign to convince the rest of the world of this, however.   Read More…

Revisiting the Black List

Originally posted 2014-02-27 18:10:00. Republished by Blog Post Promoter

David Bernstein writes:

[Northwestern Law Prof Martin] Redish concludes, and this Reviewer agrees, it was entirely appropriate — under the First Amendment, and also morally — for businesses and individuals to boycott members of the Stalinist CPUSA.

(SKIP PARAGRAPH IF YOU DON’T CARE ABOUT LAW SCHOOL POLITICS. ) Marty Redish wrote that? Very impressive for its political incorrectness. Maybe he’s hankering to follow (one of my other first-year NU Law professors — took Redish’s course on federal jurisdiction, too, which really paid off…) Dan Polsby, also recently getting attention on the Volokh blog, to George Mason Law. Interesting NU / George Mason thing going on here — what with Bernstein’s article appearing the NU Law Review…. (Ugh. I should leave this stuff to Brian Leiter.)

But really, I highly recommend the link, assuming that like everyone else you don’t read law review articles. Everything you thought about the “Red Scare,” pretty much, was wrong (unless you’re the type who reads this blog regularly, I guess). And the fact that a mainstream First Amendment authority such as Redish will write that this was an issue of moral choice, not “stifling of dissent,” is a very good development.

Best of 2009: “Keeping it real — the ultimate use in commerce”

Originally posted 2009-12-27 16:56:22. Republished by Blog Post Promoter

This was first posted on May 7, 2009.

The TTABlog® reports, again, on the fraud issue, but that’s not what interests me here so much this time. Rather, it’s the question of the lifecycle of a trademark’s “use in commerce” status when plotted against that of a specific product which may no longer be manufactured, but which arguably may have trademark significance.

Ron ColemanI have looked at this question in other contexts before, particularly in this post where I wrote about a company called River West Brands, that pokes through the junk-heap of “abandoned” consumer-products trademarks and tries to make money off them. The focus in that post was on trademarks for lines of goods that no longer exist, and I linked to related items by Pam Chestek and, guess what, John Welch that dealt with the issue. But here there’s a twist: The trademark, WAVE, is very much alive in Bose’s successful line of high-end audio equipment. But, as befits a “fraud on the PTO” case, the focus here is on one particular product in the list of goods and service that is no longer in production. Can the trademark still be a trademark?

Read More…

Best of 2009: Don’t be evil, much

Posted February 7, 2009.google-logo-874x288

It was bad enough that the government has gone “in house” on copyright issues.  Now not only is the government looking more and more “bought” on this, but the “Don’t be evil” kids — again, via Glenn — also continue to confirm everyone’s worst fears.  (No they’re not the government… not yet…)  First it was the turnover of YouTube to the RIAA.  Now it’s Google’s Blogger empire. This from TechDirt:

[M]any music bloggers are now fighting a much more invisible menace, with posts they’ve written suddenly disappearing from their sites (via Tyler Hellard) hosted on Google’s Blogger platform. An RIAA source says that the group sends Google a list of URLs it doesn’t



like, and Google “then deals with the problem.” Google says that it notifies bloggers after their posts have been taken down, in accordance with the DMCA. But it should hardly be surprising that many of those affected say they’ve gotten no such notice, nor that the offending material was either legally posted and/or supplied by the labels themselves.

Maybe.  Read More…

Best of 2006: The Eve of Destruction

Posted on January 26, 2006.

Big buzz for the new book by my law school classmate and ideological opposite, Professor Doug Litowitz:

Destruction of Young LawyersAdvance praise for The Destruction of Young Lawyers:

“If you are interested in the law, you better read this book. It tells the scorching truth about law schools and the so-called profession better and more honestly than any book I know.”

Gerry Spence
renowned trial lawyer and founder of Trial Lawyer’s College

“Easily the best of the lawyer books, The Destruction of Young Lawyers is tightly reasoned, clearly and lucidly written, full of examples and anecdotes, and well-paced.”

Richard Delgado
Distinguished Professor of Law, University of Pittsburgh

“This engaging and subtle series of essays summarizes and expands our understanding of the sources of stress and distress in the lives of today’s lawyers.”

Mark Tushnet
Professor of Constitutional Law, Georgetown University



Perhaps he’s overstated it, though probably not as much as those interviewed in this New York Law Journal article (subscription required) think he did, but as I said in an email to Doug: “I haven’t read your book but appreciate the buzz it’s generated. I’m not unhappy that I went to law school but you’re right that at least a certain segment of people — mostly those with brains, imagination or creativity (horror if it’s more than one of those) — are destroyed at least partly by the big firm experience.” Read More…

China fakes reform

On the eve of the Beijing Olympics — which is nothing if not a branding, merchandising and licensing bonanza to which athletes are invited — a nervous Chinese government official writes in the Wall Street Journal that that the era of Chinese counterfeiting is about to end, actually, and here’s why:

How will we do this? In the following four ways:

  • First, we will make timely revisions to IPR legislation, including the laws on patent, trademark and copyright, as well as regulations on their implementation. We will also bring forward legislation in the areas of hereditary resources, traditional lore, folk arts and geographical marks so as to improve the overall framework for IPR law enforcement and management.
  • Second, we will speed up the revision of laws and regulations on punishment of IPR infringements, and strengthen the systems of judicial protection and administrative law enforcement. We will mainly rely on judicial protection for protecting intellectual property rights. We will mete out more severe penalties, reduce the cost of IPR protection, and deter violation by raising its cost.
  • Third, we will properly define the scope of intellectual property rights to prevent their abuse, ensure a level playing field, and protect the lawful rights and interests of the public. We will ensure a better mesh of our IPR policy with those of culture, education, scientific research and public health to uphold people’s rights to properly use the information and fruits of innovation in ways permitted by law in their activities in culture, education, scientific research and health, and make sure that innovation achievements are shared more equitably.
  • And finally, we will launch extensive educational programs among the public to further encourage innovation, promote such moral standards as honesty and credibility, and condemn plagiarism, piracy and counterfeiting. We will raise people’s IPR awareness and foster an innovation-friendly IPR culture in which knowledge and integrity are respected, and laws and regulations are complied with.

Still with us? A lot of chin music, really. An hour later and we again feel hungry. Why?

One would think that a totalitarian regime would have no trouble implementing policies such as these. They are just rules, after all. The problem is that China has opened to free enterprise, but it has not opened to the rule of law.

Free enterprise plus political repression — reliance on coercion throughout legal, administrative and social institutions — will not, in the long run, work in a large economy.  And in the short run, at least, the result is endemic corruption. Read More…