Tag Archives: Free Expression

Speech and — more? — speech re Russ Feingold

Originally posted 2010-11-05 17:11:32. Republished by Blog Post Promoter

Don’t say they’re anything but — what’s the term? — “fair and balanced” over at Randazza’s Legal Satyricon blog when it comes to the post-mortem on the end of Russ Feingold’s present level of responsibility with respect to the public trough trust.

Focusing on the McCain-Feingold Incumbent Protection Act, one of his satyrs, J. DeVoy, writes:

Russell Feingold will be an ex-senator in January.  It’s not soon enough.  Feingold, half of the propulsion behind the McCain-Feingold Act that limited political speech and chipped away at your First Amendment protections, was never the reformer he portrayed himself to be.

McCain-Feingold has long been one of the outgoing Wisconsin senator’s hallmark achievements. . . .

So what if he initially voted against the Patriot Act, a token vote doomed to uselessness?  When it mattered, at election time, the only civil liberties that were worth defending were those that Russ Feingold found important – evinced by McCain-Feingold.

Here to help with fairness

Marco himself couldn’t take that sitting down, and ripostes, crying “Shame on Wisconsin” (a state I was just getting to like) and with not a small bit of overstatement, as follows:

In 2001, I watched as dissent began to be equated with disloyalty. Questioning became equated with sabotage. Standing up for what you believed in became equated with treason.

My fears unfolded as the Patriot Act was rolled out. Did anyone really believe that the government worked tirelessly to “protect us,” drafting the Patriot Act almost overnight? Or was this a wish list of authoritarian desires that had simply been waiting in a file marked “Do Not Release Until We Have a Good Excuse.”

I watched as 99 of Russ Feingold’s colleagues voted to pass this sweeping measure that changed what it meant to be an American.

There was what to complain about in the Patriot Act, as the Supreme Court ruled time and again, though little of it had to do with the curtailment of free speech — Marc’s “topic,” I always thought — and certainly not the curtailment of classic political speech, which was what made McCain-Feingold a true crime against the First Amendment.

But Marc’s post completely ignores McCain Feingold.  Now who, or what, would have put a gag on the likes of such a man such as to cause such conspicuous silence where there was, as they say, a “duty to speak”?

“Scandal” at the TTAB

Originally posted 2009-09-17 14:01:12. Republished by Blog Post Promoter

You’d hardly think it possible any more. Frankly our sensibilities are too delicate to blog on this story, but that’s why there’s always the the Trademark Blog.

One Bloggin’ Apple Don’t Spoil the Whole Bunch

Originally posted 2005-01-12 00:00:00. Republished by Blog Post Promoter

Bob Cox pointed me in the direction of this coverage of the Apple trade secret litigation: Blogs Persist Despite Apple’s Suit:

“The Macintosh maker obtained a court order to subpoena the AppleInsider and PowerPage sites after it filed a suit on Dec. 13 in a Santa Clara court. Apple said it wanted the names behind a post entitled, ‘Does 1-20,’ which allegedly leaked the information in question.
The EFF countered saying bloggers’ sources are protected by the same laws that protect sources providing information to journalists. ‘Bloggers break the news, just like journalists do.
They must be able to promise confidentiality in order to maintain the free flow of information,’ EFF Staff Attorney Kurt Opsahl said in a statement. ‘Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society.'”

I don’t agree. The press shield laws are and always have been a legal fiction. They were promulgated after Watergate to carve out a narrow exception for a “the press” to the general rule that civic duties — such as the requirement to respond to subpoenas — apply to everyone. They are creatures of a time when mainstream journalism reached its apex of power and truly asserted itself as the Fifth Estate, an unelected power with the prerogative to topple governments.  So now we are seeing the artificial barriers of institutional journalism fall.

But if every blogger is a journalist, why then every — every — everybody’s a “journalist.” So now all I need is to register with Blogger — a 15 second process — and then post whatever I stole, or my best friend stole, or (better yet) what I paid him to steal from someone else — to be immune to subpoenas? (Thankfully no one has said anything about “information wanting to be free” yet, have they?)

And really, does a “free society” really depend on getting out Apple’s latest product developments ahead of when they want it to get out? Read More…

Emerson InSinkErator trash compactors will mangle your hand if you stick it in one of them.

Originally posted 2006-10-19 13:44:39. Republished by Blog Post Promoter

Sounds like a reasonable assertion, right? The same thing will happen if you stick your hand into an Acme trash compactor. It’s just bad practice. Who could be offended by that?


Emerson Electric could (links added):

Emerson Electric is suing NBC over a scene in their new series “Heroes” that featured the company’s garbage disposal, according to an CNN Money article. The first episode showed one of the characters (whose superpowers include indestructibility) stuffing her hand down the disposal and getting it mangled, although within a few seconds her hand was fully healed.

However, Emerson, makers of the “InSinkErator,” believes the scene gratuitously showed their product as being dangerous. Their suit alleges that the program “implies an incorrect and dangerous design for a food waste disposer,” and “casts the disposer in an unsavory light, irreparably tarnishing the product.” They are reportedly asking the court to order NBC to “remove Emerson trademarks from future broadcasts of the show and also seek damages suffered from NBC’s acts of “unfair competition, trademark infringement, and trademark dilution.”

A spokesman for Emerson pointed out data showing that not only are you 10 times more likely to suffer harm from your dishwasher, but any injuries suffered in the event of a disposal accident would not be nearly as severe as those shown in the TV episode.

You can’t say “unbelievable” any more, because nothing is. But on the face of it, this sounds mighty flimsy — “trademark use,” anyone? — and an abuse of the Lanham Act that may be sanctionable. Decide for yourself and let me know what you think: Here’s the amended complaint.

The suit was filed in St. Louis, where Emerson is based.

UPDATE:  Stupid claim settled.  Of course.

Best of 2009: Impolitico

Posted September 17, 2009.


I first read about the brouhaha over the Politico trademark claim against the College Politico blog on Instapundit:

ED MORRISSEY: “Who owns the word ‘Politico’?” The blogosphere has been very good to Politico, and I think they should bear in mind the ill-will they’re incurring as a result of their heavy-handed legal tactics. This is like me going after everyone who uses the word “pundit” in their blog name.

Almost everything about that post, and other things besides, made me very much not to want to have an opinion on this topic. Just think what that’s saying!

But now my public, namely Jimmie himself, is demanding that LIKELIHOOD OF CONFUSION® speak!  As he writes:



The Politico’s case seems to rest on the “likelihood of confusion” standard as they claim it’s likely that people who come across Gutkowski’s site might think they were coming across a site affiliated with The Politico.I think that’s a pretty weak claim.The College Politico looks nothing like The Policito in design or content. It specifically claims a slant to the right and does not purport to be a straight news site in any way. “Politico” is also a commonly-used word and Gutkowski seems to be using the word as the dictionary defines it.

It seems to me that if The Politico’s claim is granted, the court would set a precedent for other people to claim ownership of other common English words. In which case, I’m going to go ahead and grab “blog” and “times”, and maybe “the”.

Of course, I’m not a lawyer, nor do I pretend to play one in the blogosphere. However, my friend Ron Coleman is, and what’s more, he’s an expert in trademarks and copyrights, so he ought to know a thing or three about the . I’d definitely be interested in his take on The Politico’s claim.

Read More…

Best of 2007: Ideological purity

First posted on January 24, 2007.

All Hail Chairman Google

Yahoo News:

Chinese Communist Party chief Hu Jintao has vowed to “purify” the Internet, state media reported on Wednesday, describing a top-level meeting that discussed ways to master the countrys sprawling, unruly online population. . . .

Hu, a strait-laced communist with little sympathy for cultural relaxation, did not directly mention censorship.

But he made it clear that the Communist Party was looking to ensure it keeps control of China’s Internet users, often more interested in salacious pictures, bloodthirsty games and political scandal than Marxist lessons.

10 Years of Bloggy Ok-Ness


Don’t kid yourself: This could be a very big deal.

China can’t be competitive as anything other than a source of slave labor if it shuts down the Internet, Cuba-style — and it wants to be. On the other hand, its leaders do not want to cede political control along with economic control, which history has proved to be a very difficult task. Read More…

Best of 2005: New York’s MTA Has an IP Obsession

If You See Something, Say Something
The New York Sun reports that New York’s Metropolitan Transit Authority has filed to register the phrase “If You See Something, Say Something” — its “watch out for presents from the religion of peace” campaign on the New York public transit system — as a trademark. It’s serial number 78696607 on TEAS, the trademark registration database, filed August 19th.  Says the paper:

The move has surprised officials at many transit agencies, who had assumed the phrase, which is now used in various iterations as part of transit security programs from San Francisco to Sydney, Australia, was an industry version of a free download.

It surprised them, but it didn’t surprise LIKELIHOOD OF CONFUSION readers, who for months now have known about the MTA’s obsession with trademarks and copyrights! Others have noticed, too. Someone at the agency — could it be that unfriendly C-and-D-meister Lester Freundlich, who’s also the attorney of record on this application? — has identifed IP as a possible licensing profit center.



Look, no question they need the money, and IP exploitation could offer a great return on us turnstile jockies. Why, the rat I saw scurrying across the tracks of the E train last week at what should be the MTA’s showpiece station — Times Square — was so large that it’s scandalous that it didn’t have the MTA logo smartly emblazoned on its side. No way any two-legged denizens of subterranean Gotham would get away with that.  And we don’t. Priorities!!

UPDATE:  They got it.

War Is Peace; Freedom is Slavery; Ignorance is Strength

And free speech is a form of negotiable intellectual property, right?

Maybe I can give up the blog. There is no percentage in clever commentary when the claimants provide the self-parody.  Credit to Instapundit.

“Criticizing A Trademark Is Not Trademark Infringement”

It’s free speech. This is a big step forward:

In a recent example of just how bizarre [trademark overreaching] has become, there was apparently a dispute over the trademark of the word “Freecycle” that’s been used by groups who promote reusing stuff that would otherwise be thrown out. There was an attempt to [register a] trademark [utilizing] the term, but not everyone was happy about it. One guy put up a website protesting the idea to [register] the term, and he got sued for trademark violations in using the mark in his criticism. Clearly, that’s way beyond the consumer protection purposes of trademark — but a district court actually agreed with the trademark holders, saying that the guy violated trademark law in “disparaging” the trademark. Luckily, the [9]th Circuit appeals court has now overturned the ruling, noting that there is little to no chance of confusion here over the mark. More importantly, the court pointed out that there is no such law against “disparaging” a trademark. That’s a good thing, too, or pretty much all criticism would be outlawed.

Thank you, Ninth Circuit. What’s astonishing, depressing and pathetic is that the mark owners won at the trial level. That’s the level at which small- and medium-sized business and individuals get slaughtered every day.

More here on this story.

Mourning Sonny

Posted on November 17th, 2008:

No, not that Sonny. No, rather this: If America’s most famous variety-show-star-turned-congressman hadn’t slammed into that tree on that fatal day of downhill skiing, we’d probably never have the Sonny Bono Copyright Term Extension Act of 1998. That’s reason to mourn him right there.

Fair enough — if he’d sat in the lodge and drank cocoa instead we would probably still have the law, but at least its embarrassing content would not be matched with a preposterous name. But given that it is what it is, ten years later, what is it? Gigi Sohn says well:

How can you measure the number of new works and new wealth that were not created because of the extended terms? Or the number of new orphan works created? But since it has been shown that about 98% of copyrighted works lose their value between year 55 and year 75 of protection, we know who has profited from the law – large, multinational media companies like Disney, Fox and NBC-Universal, who maintain a vise-like grip on works that should have belonged to the public years ago. Suffice it to say that the Sonny Bono Act was nothing more than corporate welfare for big copyright holders. . . .

Ok, I got that off my chest. Now let me say something positive about both the DMCA and the Sonny Bono Act. The simultaneous passage of these two copyright strengthening bills, despite the strenuous objections of libraries, arts and cultural organizations, consumer electronics companies, and cyberliberties groups clearly hit a nerve, and became the impetus behind the copyright reform movement. . .

[W]hile we’ve stopped many bad things from happening, we have not yet been able to get any law or policy adopted that would bring some balance (or sanity) back to copyright law.

Read it! Hat tip to Denise Howell, via Twitter.

Comment here.

SUPER HERO® my foot

UPDATE: Our NPR interview on this topic was on NPR’s “All Things Considered” just before 6 tonight.

We blogged on this topic last week. Today the LA Times weighs in, writing, confusingly:

TICKETS TO THE California Science Center’s latest exhibit, “Marvel Super Heroes Science Exhibition,” sell for $6.75 and up. But there’s one lesson the exhibition offers free of charge to anyone who wanders by the museum, and it’s not about science.

The lesson is in the giant sign looming over the center’s entrance archway: “Marvel ® Super Heroes(TM) Science Exhibition.” The “TM” stands for trademark, signifying that Marvel is claiming exclusive rights to use the term “super hero” as a marketing term for, well, superheroes. The company and its largest competitor, DC Comics, jointly obtained the trademark from the federal Patent and Trademark Office in 1981.

The government’s action means that any company wishing to market a comic book, graphic novel or related item with any variation of “super hero” in the name or title must get permission from Marvel and DC. Dan Taylor, the Costa Mesa-based creator of the “Super Hero Happy Hour” comic, learned about this absurdity two years ago when he was contacted by lawyers for Marvel and DC, prompting him to rename his series to the more pedestrian “Hero Happy Hour.”

What government action? What happened in 1981? (See below — someone else found the answer.) Nor does a claim of a valid registration make any sense in light of the claim in the editorial that the sign says:

Marvel ® Super Heroes(TM) Science Exhibition

If SUPER HEROES were a bona fide registered mark, it should say “Marvel ® Super Heroes ®,” not “Super Heroes(TM).” “TM” signifies the assertion of common-law trademark rights — not a registered mark and, as a practical matter, that a mark was either refused registration or that legal counsel advised against seeking registration (because the refusal would harm a future common law claim).The editorial argues that SUPER HEROES is a generic term not entitled to any trademark protection, which is correct. Genericness is the only way to defend against a registered and incontestible trademark, which presumably one registered in 1981 would be.

Even if it were true that two competing companies could own a trademark jointly in an area where they compete — thereby violating the axiom that trademarks indicate a single source of a good or service with which they are used — they seem to be succesfully avoiding the issue of their absurd joint registration, even as their giant signs claim only a “TM” common-law mark.

I guess that’s some super-heroic PR / legal spin job by the comic book fiends, but why journalists aren’t “getting this” — or why I [couldn’t] for the life of me find the source that does indicate a registration — leaves me pretty confused at the very unlikelihood of it all.

UPDATE: Attorney Robert J. Sinnema points me to registration number 1179067:


He adds:

If you look at the owner/assignment information it appears to show joint ownership between DC and Marvel. (I’m with you, though–I don’t know how the mark can be a valid indicator of source.)

And why the plural? Believe me, there’s a reason for everything, including the companies’ continued non-use of the ®. They simply don’t want to draw attention to preposterous joint ownership (again — by competitors!) of the registration of a generic term. Ah, but utilizing the joint assignment — when a joint application would never have passed muster — is diabolically clever. It’s still not an enforceable trademark, however — registration, assignment or not.

UPDATE: Via (and according to) aTypical Joe, I have discovered my inner (trademark – protected) self! Read More…

Anti-Sedition Acts begin their attack on the Internet

Different River reports on the biggest threat to free speech ever — the McCain-Feingold Act and its state law copycats.  Is there any chance that the new and improved Supreme Court will save us from this not so petty tyranny?  Or will the present controversies over “money in the political process” (see here for a contrarian view, by the way) make things even worse?