Email Taxes

This post addresses a proposed email tax by AOL and Yahoo. In an effort to stop the scourge of spam and other email nasties, the companies have proposed to impose a .0025 cent tax on every email sent. It is supposed that such a tax would enable the email hosts to provide better service on par with the U.S. Postal Service. Much dissention and skepticism, myself include, is raised over the proposed rationale for this tax (gee, I'm using the word "proposed" a lot today). It is believed that email host companies are using quality as a subterfuge for potential billions of dollars in revenue. Imagine, for every four emails you send, the company make 1 penny. That means 1 dollar for every 400 emails. I know that I send over 100 emails per day. That means that I would be charged about $2 per week or $8 to $10 per month to use a "free" email service. Multiply that by the 50 million plus people who likely use these services, and you can see how $1 billion per month is likely the real driving force behind an email tax. Is this just efficient generation of capital or unbriddled greed? The old debate between cyber-capitalists and online-libertarians thus rages on. While I consider myself among the "reasonable-person's" camp, I can't help but think how unefficent the U.S. Postal Service is at times and how much junk crap mail I receive and throw away on a daily basis. To me, this seems to harm AOL and Yahoo's desire to bring their service on par with the postal system. I think that the anti-spam and blocked user protection is working just fine. If this is anything, it is an indication that we need to re-think the revenue generation of such services as these (the current scheme of dollar generation from "free-e-mail" comes from advertisements and premium services upgrades).

Toronto Transit Counsel Wants Trademark to Control Subway Anagrams

(Original image from: BBspot)

A series of subway maps that contained remixed anagrams of the stops and locations on those maps has prompted a series of backlash from various transit authorities. In England the maps have been blocked on the Internet. In Toronto, the bloggers responsible for the maps have been threatened by lawyers from the Toronto Transit Counsel with a cease and desist letter.

Typically this is the action taken by holders of a mark who want to amicably enjoin use of a similiarly confusing mark. In this case, however I do not see how any reasonable person would confuse "Only Booger" with "Central Station." In fact, I believe that the anagrams would likely fall within one of the permissible limits of trademark use, either as a parody or under the limits of trademark use. As described on Chilling Effects the limits of trademark law likely applicable here are:

"Fair Use - there are two situations where the doctrine of fair use prevents infringement:
1 - The term is a way to describe another good or service, using its descriptive term and not its secondary meaning. The idea behind this fair use is that a trademark holder does not have the exclusive right to use a word that is merely descriptive, since this decreases the words available to describe. If the term is not used to label any particular goods or services at all, but is perhaps used in a literary fashion as part of a narrative, then this is a non-commercial use even if the narrative is commercially sold.
2 - Nominative fair use. This is when a potential infringer (or defendant) uses the registered trademark to identify the registrant’s product or service in conjunction with his or her own. To invoke this defense, the defendant must prove the following elements:
a - his/her product or service cannot be readily identified without pointing to the registrant’s mark
b- he/she only uses as much of the mark as is necessary to identify the goods or services
c - he/she does nothing with the mark to suggest that the registrant has given his approval to the defendant
Parody Use - Parodies of trademarked products have traditionally been permitted in print and other media publications. A parody must convey two simultaneous -- and contradictory -- messages: that it is the original, but also that it is not the original and is instead a parody.
Non-commercial Use - If no income is solicited or earned by using someone else's mark, this use is not normally infringement. Trademark rights protect consumers from purchasing inferior goods because of false labeling. If no goods or services are being offered, or the goods would not be confused with those of the mark owner, or if the term is being used in a literary sense, but not to label or otherwise identify the origin of other goods or services, then the term is not being used commercially. "

Certainly the anagrams are a non-commercial use. They are not being sold for money, are viewable by all with an internet connection and do not purport to compete with any of the transit authorities. These are likely a parody for the anagrams convey a definite sense of originality, while basing itself completely off of the Transit maps already in circulation. As mentioned above, I do not think people would think the that the Transit authority is issuing maps of "Hose Burner" or "Butt Rash" stations. The parody in this case is serving a valuable critical function, which would likely be protected by the First Amendment in the U.S., although may not be as strong a defense in Canada.

I think that a definite analogy to the L.L. Bean v. Drake Publishers can be made in this case b/c although the Transit authorities do have trademark rights in their map, these rights do not entitle them to quash the unauthorized use of that mark by a blogger who is simply communicating ideas or expressing points of view. As the court in L.L. Bean stated: "[T]rademark is not property in the ordinary sense but only a word or symbol indicating the origin of a commercial product. The owner of the mark acquires the right to prevent the goods to which the mark is applied from being confused with those of others and to prevent his own trade from being diverted to competitors through their use of misleading marks." The blogger in this case seems to be communicating the creative ideas in the exercise of jumbling the words of a map to create a humorous expression. Also, as stated on this site, there are many problems with the Toronto subway over the years that commuters are fed up with. This anagram map could be viewed as an expression of the ridiculousness with which transit authorities respond to problems. Of course this last argument is unlikely to hold up b/c the blogger who makes these maps does them for stations around the world so unless he is making a general statement/criticism about mass transit this second rationale won't apply.

It should be noted that although courts recognize the defense of parody the contours of the defense are not always so clearly defined. For instance in Coca-Cola Co. v. Gemini Rising, Inc. the court enjoined Gemini from continuing to sell a poster that said "Enjoy Cocaine" an obvious and blatent parody of the Coca-Cola ad campaign "Enjoy Coca-Cola." I think that this case can be distinguished from Coca-Cola (as well as the L.L. Bean case) in the sense that the Coke mark was being used for commercial purposes (selling posters and t-shirts) and was so similar as to possibly cause tarnishment. The subway anagrams, however are not created for any commercial and merely serve as an expression of word play. Also, there is not the negative connotation involved with creating silly anagrams (regardless of any possible critical function) that is present in equating the Coke identity with that of a dangerous controlled substance. In sum, I think that the parody of the anagram maps is a permissive parodic use (at least under U.S. standards) that should recieve protection and be allowed to continue.

Used Game Sales Follow Up - Are Game Stores Like Private Libraries?

I am posting this in response to a question I got about my post: Do Commercial Used Game Sales Violate Publisher's Rights? An amazing blogger and attorney who I speak with asked what I meant by my saying "[The First Sale Doctrine] does not apply per se to computer programs."

This is the response I emailed him:

Great to hear from you! For the most part, I am trying to understand First Sale Doctrine. But I am also playing a bit w/analysis. Check it out - I was trying to hint at this provision from the statute:

§ 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
(b)(1)(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.

I wonder if anyone could make the argument that the practice of game stores who sell new videogames at a premium, with the expectation that they will eventually receive those games back, in used condition, to resell them in a secondary market, could be considered "in the nature of" rental or leasing.

It's a huge stretch and likely falls well outside of the renting or leasing context, but it's not completely off. If we think of the fact that places like Game Stop sell annual memberships cards that allow customers 10% off of used games, we can consider them in an ongoing agreement that creates the expectation of used game purchases with these gamers. Thus any new games these customers buy are like paying a premium rental price, with the option of keeping the game, rather than a purchase. Many of these customers will bring the game back after beating it, and trade it in for store credit, with the likelihood that they will pick up another used or new game with the credit they just earned. So these stores create repositories of used games or game libraries that are rotated among the gamer community who frequent them, and thus fall "in the nature of" rental, lease or lending.

Again, I'm really just playing with the analysis, but I think it's not impossible to think of it that way (even though it's probably impractical). If you think there is any rationality to this at all, please let me know. If so, should I put in in the post?

Thanks for reading!

(Original image from: The Green Anarchist)

The game publishers are upset at the retailers for creating this secondary market that they feel they are entitled to a slice of. Is this capitalism at its best or something else?

Do Commercial Used Games Sales Violate Any of Publisher's Rights?

The owner of a copyright has certain exclusive rights in that work including, the reproduction right, adaptation right, ditribution right (including performing and displaying the work publicly) and moral rights of attribution and the like in visual arts. One limitation on these rights is known as "the First Sale doctrine" which basically allows an owner of a lawfully made copy or phonorecord to sell or otherwise dispose of it, as well as display it to the public [17 USC 109]. This rule does not apply per se to computer programs. As video games are computer programs, I wonder if there are any copyright implications in the multi-billion dollar used games industry. As it stands this is more of a property issue than an intellectual property issue, but I wonder if either side of the debate can look to IP policy considerations by analogy in determining positions. On one side, the game publishers would like to see a cut of the money from their retailers selling used games, b/c they see it as a damper/distraction on their new sales. On the other side, retailers insist that used games sales fuel incentive for consumers to purchase new games. Whichever side of the coin you adopt, it is interesting to note that copyright policies in protecting original works seek to maximize incentives to create. Do commercial used games sales enhance such incentives or detract from them?

Is Yahoo Diluting the XBox 360 Mark?

I had an interesting experience just now on Yahoo.com that directly relates to what we are going over in my IP class this evening. There is a hyperlink in the Yahoo services box title "360" (w/the degrees symbol). I clicked on this link thinking it would give me the latest information on Microsoft's XBox 360, but instead I was brought to a page that offered me the opportunity to set up my own Yahoo blog, photos and writing space ala MySpace. Would Yahoo's use of the mark "360" constitute trademark dilution of Microsoft's Xbox 360 mark ?

Dilution is defined as "the lessening of the capacity of a famous mark to identify and distinguish goods or services." (15 U.S.C. 1127). In an action for trademark dilution, Microsoft would first need to show that "360" has become a famous mark. It would then need to prove that Yahoo intended to use the reputation of the Microsoft's game console to promote its own it's own "360" product, and that such a use actually caused injury in blurring the "360" mark.

First, to establish whether "360" is a famous mark would depend on a balancing test of numerous factors laid out by courts. "These factors include:
(1) the degree of inherent or acquired distinctiveness of the mark, i.e. how unique is the mark;
(2) the length of time in which the alleged famous mark has been in use;
(3) the extent of advertising and publicity of the mark;
(4) the geographical extent of use of the mark (if for example, the mark has never been used in Anchorage, Alaska, the mark may not be "famous" in Alaska); and
(5) the nature and extent of use of the same or similar marks by third parties, i.e. if the mark is commonly used by various companies in different lines of business, the mark is not likely to be famous enough to bring to mind one specific business and therefore is not likely to suffer 'dilution.'"

(Quotation of factors from: Trademark Protection Broadened For "Famous" Marks, website, Stites & Harbison).

Some courts have found that niche or regional fame showed under these factors is enough to render a mark famous. Most courts seem to require a mark to be more generally well known. Whether the "360" mark has taken on either status is debatable. To the video game industry and niche market, "360" has a very specific meaning. Likewise, an argument could be made that in the current commercial market, "360" also has become famous to mean Microsoft's game console. XBox 360 was one of the hottest and most sought after items of the 2005 holiday season and continues to be in short supply for the huge demand. Still, despite both of these arguments, "360" is also a descriptive term meaning "full circle" and I do not know if Microsoft's seasonal domination of that term would be enough to appropriate it commercially from it's mathematical origins.

Even if Microsoft could show that "360" has taken on a distinctive meaning when used in the commercial context with the degrees symbol, under Moseley v. V Secret Cataloge, Inc. (2003) Microsoft would need to prove actual injury of diluted distinctiveness to their mark. Again, what made this an interesting question for me in the first place was my actual own actual confusion over clicking Yahoo's "360" link thinking I would get Xbox 360 news. If there is a network effect of this happening among the Xbox community, and Microsoft could prove such an effect through survey, tracking software or other means, then a court could an actual blurring present.

Another issue to consider would be initial interest confusion. This involves one company using another company's established mark in it's metatags or website text to divert traffic to their site. Once there, users are likely to just use the infringing competitor b/c they are offering a near identical substitute service. This analysis is not likely to influence the Microsoft case, because no one would assume that Yahoo's web service would be a substitute for Microsoft's videogame console.

Google Copies Everything

(Original image from: the i spot.com)
On the EFF website I just read a post titled: Google Copies Your Hard Drive that was very disturbing. It seems that Google has just released a desktop software that allows copies of documents on your hard drive to be viewed by the public in their searches for information. The default scheme of this software enables such searching, and the concern is that most consumers will not know to reconfigure the software to preclude such use. This presents major privacy issues. For one thing, information that used to require a search warrant to find, now can be had through the simpler process of subpoena. Also, this changes the peeking that the government or hackers can do to get to your personal information. Ultimately though, I am disturbed by the copyright infringment possibilities.

What does this mean for copyright? I have a lot of writings on my hard drive of unpublished works that I am currently arranging to put into a book. Google search would allow a possible appropriator to search the text of my work and take it for himself. Also, the simple act of installing Google software would subject my work to unauthorized copying. Google would defend itself by saying that I authorized the copying by agreeing to the terms of the software, and technically they'd be right. So the moral of the story is to make sure you know what your default configurations subject you to. It is not likely that the open door of information will be closed anytime soon, despite bills being proposed in Congress that would require websites to delete information after legitimate business purposes have been served. So be proactive and take the self-help measures that you can to protect your work and your privacy.

China's Wasted Youth: Why Internet Cafes Are Being Shut Down

(Original image from: BBC News)

As I sit and eat my Moo-shoo Beef before Choice of Law class, my thoughts turn towards the Chinese government yet again. This time it is in response to a post I saw that commented on a crackdown in teenagers' use of internet cafes. It seems the government feels that there is a morality problem among the youth of China that stems from their online exposure. As such they have banned teens from having access to internet cafes, karaoke bars and discos. The government states that "audio and video products and electronic games ... harm national security and incite hatred toward other nationalities." It refers to the overwhelming popularity of massive multiplayer online role playing games (MMORPGs) in China as an "addiction" that requires government intervention.

ADA Asks: Does Your Website Speak? [IP Bytes #7]

(Original image from: Undoing Ruin)

A blind student has initiated a law suit against Target Corp. alleging that their website violates provisions of the Americans With Disabilities Act ("ADA") b/c it does not accommodate blind users. The ADA provides that places of business, schools and others must make accommodations to differently abled individuals. The most obvious manifestations of such accommodations are wheelchair ramps or handicapped parking spaces, but now it seems that there is a trend towards targeting (no pun intended) cyberspace.

The main concern raised by those who think that the ADA does not refer to websites is that certain "organizations" can bring suit against large companies, urging them to retool their websites. Rather than go to court over the issue, the companies submit to the demand and, as Scott Kirwin says in a post on Dean's World:

"The result? The charity gets a large corporate "donation", the lawyers take a cut of the gross, and the firm is charged with spending hundreds of thousands of dollars on making its external-facing website ADA compliant."

The sky is not always so grim for big business. South West Airlines successfully defended against such a suit in a federeal district court in Florida. The court granted their motion to dismiss on grounds "place of public accommodation" did not include websites. In the 12 page opinion the judge construed the language of the statute narrowly and found that the internet was not to be reasonably read out of it.


Original image from: Handheld Heaven)

I personally think that the judge may have been short sighted. As we move into an age where Wi-Fi allows broad band users to be mini-internet hubs, the web is becoming even more public than ever. Also, the internet has become indispensible for various public functions such as paying parking tickets, registering for classes at schools and obtaining financial aid. Surely these types of websites should be under an obligation to have functionality that accommodates differently abled users. We thus come to a crossroads: do we require that websites be classified and revamped according to the needs under the ADA based on their function? Should commercial sites be as pressed to comply as say federal government or municipal sites? Where do we draw the line? I believe the answers to these questions will not be as far off as the judge in the FL opinion may have assumed, and that we may come to see this issue as more than just cyber-extortion.

DRM - Libraries Get Wise [IP Bytes #6]

(Original image from HWSW)

Last week I ventured to the public library in my new town. I have always had a special place in my heart for libraries (how appropriate today on Valentine's Day). This likely stems from my love of books (I even love the way they smell when they are new), but there is something else about a place that trusts the local citizenry with its' property and provides them with a wealth of knowledge and media all free for the borrowing. In todays' digital world of instant gratification, short attention spans and gigarage storage capabilities, we seem to be in a mode of owning a piece of everything (even if it is not ours to own). Take a look at the popularity of Napster, Grokster or LimeWire and the issues of digital rights management inevitably rear their contraversial head.

At one end of the spectrum there are the libertarians that believe everything should be available and that the integrity of creation is stimulated by a population that has access and preservation rights to all content. Websites like Creative Commons and YouTube are prime examples of those who place a premium on the free transferability of content. Then you have the other camp that believes artists (and those that produce/promote them) should be compensated for their work right now, that the community benefits more from stimulating originality rather than availability. This side includes Itunes and friends, who charge per download, keeping tight control over what gets put where. Wherever you fall in the spectrum, it cannot be denied that digital rights management will play a large role in how we own and receive information in the future.

As libraries are a large repository for content, they need to take measures in preventing infringment. One such measure that I encountered was a copy protection label on the Miles Davis CD that I borrowed. This label prevented me from even playing the CD on my laptop. I could only listen to the music on my stereo. This surprised and disappointed me, because I mainly wanted to listen to the jazz while I did work on my laptop in my various coffee shop haunts and other places. The copy protection label thus limited my freedom, because I could not copy the music to my hard drive to listen to it anywhere other than my apartment.

On Wikipedia, the term refered to is "copy protection" or prevention: "any technical measure designed to prevent duplication of information." This definition is included under the more general term "digitial rights management." Supporters of DRM would say that such a label is beneficial in doing what it did. Since I only borrowed the CD from a library I only have limited rights associated with it. The label only actualized these limited rights. Still, I couldn't help but think of two considerations that against such a limited rights theory.

First is the notion of autonomy. Were this a book of paper and print I would arguably have limited rights associated to it that come with the borrowing. At the same time, however, I am presented with the option of engaging in fair uses of that book in copying certain pages or excerpts to take with me, should I chose to. This could be a real benefit in the case of a large and heavy hardcover book that I might not want to carry around with me. Now, one can make the argument that the portability of the book is analogous to the portability of the CD and thus the same limited rights are present in both. I think that such an argument is weakened by the fact that I don't need a stero or other third party device to disseminate the content of the book (unless you count my reading glasses, which are also portable).

The notion of portability (which could also be solved by supporters of DRM by saying that I could use a discman), leads to the second point to consider: space-shifting. Space-shifting occurs when a user merely makes a copy of music she already owns "in order to render portable...those files that already reside on a user's hard drive...Such copying is a paradigmatic noncommercial personal use." A&M Records v. Napster, 299 F.3d 1004 (9th Cir. 2001). The court in Napster cited to RIAA v. Diamond Multimedia Sys. ("RIO"), which allowed users to download content from their computers to MP3 players. The majority distinguished the Rio case and denied Napster the space-shifting argument because their software permitted millions of users to simultaneously simulate copies beyond their limited rights and distribute them freely to the public. Permissible space-shifting (and its' predecessor "time-shifting" from Sony Corp. v. Universal City Studios Inc.) expose content only to the original user who has obtained limited permissions in the work.

(Original image from: Infoworld)

The question of whether the limited rights that I acquire as a borrower of content should be closer aligned to Rio or Napster is not an issue that I am aware of has been answered. As a matter of self-help and avoidance, it seems the library has made my choice for me. I could not violate the copyright even if I wanted to - or could I? True, if I physically remove the protection label I am on the hook to the library for the cost of the media, however, from a content libertarian standpoint I could circumvent the protection measure with a little innovation. Such measures would put me at risk of violating the Digital Millenium Copyright Act, and I don't mean to say that I tried them. What I am saying is that one would think that limited rights permitted to me by the library by virtue of their civic trust in me over the content I borrow should be enough to permit me the courtesy of space-shifting. To do the opposite perhaps speaks of the respect that is expected of me as an autonomous adult dealing with the library.

In closing I would like to point out an argument made by Dan Bricklin on his website for anti-copy protection. In his article, Copy Protection Robs the Future he says:

"I believe that copy protection will break the chain necessary to preserve creative works. It will make them readable for a limited period of time and not be able to be moved ahead as media deteriorates or technologies change. Only those works that are thought to be profitable at any given time will be preserved by their "owners" (if they are still in business). We know from history that what's popular at any given time is no certain indication of what will be valuable in the future. Without not-copy protected "originals", archivists, collectors, and preservers will be unable to maintain them the way they would if they weren't protected. (Many of these preservers ignore fashion as they do their job, because they see their role as preservers not filters.) We won't even be able to read media in obsolete formats, because the specifications of those formats will not be available."

His argument is that the current trend of copy-protection frenzy will benefit monetary reward in the short-run, but hurt the preservation of works in the long run. I do not know how well this argument relates to the limited rights of borrowers to the library, but I liked his conception of arguing for a free flow of information and copying, especially in the realm of works that may have little popular or monetary interest at the current time. It is possible that individuals might preserve such works, while institutions or commercial ventures may not.

Registered Fantasy: Group of Online Gamers Trademark Themselves [IP Bytes #5]

(Original image from: Doug Minkler)

Well it had to happen. . . with the corporatization of everything in existence, ownership and dollar interests have crossed over to the completely make-believe. Massive Multiplayer Online Role Playing Games have been popular in the media for their tendancy to engulf the lives of the players. These games involve giant online worlds created for the express purpose of having players plunge their created characters into them. Often these games are huge and can host thousands of players at one time building up the reputation and abilities of their characters.

The idea of clans quickly followed. A clan is group of players who adventure together. It began as a way of creating virtual friendships and has evolved into groups creating derivative communities and opportunities for adventure. Putting aside the possibility of copyright infringment aside, this post exlusively highlights the rise of The Syndicate. This group is one of the largest online gaming groups in cyber space. Using the influence of their sheer numbers The Syndicate is the first clan with corporate sponsorship. Entering an alliance with Thunder Box PC the clan now claims that the word "syndicate" should be considered trademarked for use in a MMORPG clan. As such they have created exlusive rights to this name that don't seem to fit the traditional notion of trademark laws.

Generally people trademark a name to protect the reputation of a source provider of goods or services. The Syndicate doesn't seem to really be providing either. While they do have a "reputation" in the online gaming world, it seems a stretch to think of them the way one thinks of a purveyor establishing an identity to foster competition. Arguably one say that the whole idea of a clan and MMORPG in general is competitive and this is The Syndicate's way of remaining viable, distinguishable and traceable. Also, the fact that they promote Thunder Box P.C. and act as a gateway to their sponsor's products may qualify them under the trademark umbrella. Perhaps I will better understand this as my present level of experience with trademark increases. I am interested to hear what others write about this, and will want to follow any developments.

Censorship Knows No Bounds [IP Bytes #4]

(Original image from One Man Band Width: An Amercian Professor in China)

On the Blogger News Network is another story about a journalist arrested in China for printing "dissident content" in his blog. It seems that officials located him via request for information on the cyber dissident from Yahoo. The man's information was turned over by the U.S. firm without hesitation. This is a disturbing take on expression and protection. If the information supplied in order to gain access to the right to express oneself freely in a blog or other media tool is so readily obtainable by those that would do them harm, how effective can our media tools be for providing honest reporting and opinion?

It seems that in our global shift towards a connected world, we will only be as connected as the powers that be let us be. In owning your content take care to be sensitive not to anger extremist sects, communist governments or powerful people. Even if you think you are writing anonymously know that they can find you. Big Brother is watching....

(Original image from: Emergent Chaos: The Emergent Chaos Jazz Combo of the Blogoshpere)

Unreasonable Burden (Craig's List)

Just wanted to make a quick post before I got back to my Commercial Law readings. Saw a quick article saying that mentioned a law suit against Craig's List. It seems that there were roommate and housing posts that allegedly violated the anti-discrimination provisions of the Fair Housing Act. Craig's List has answered the allegations by citing the impossibility of monitoring over 8 million posts per day. Sounds overwhelming. It will be interesting to see what the court determines the responsibilities of a publicly available, online "wanted list" will be...

Red Cross seeks injunction agains Video Game Industry [IP Bytes #3]

(original image from: videogamenews.com)



The Red Cross has it out for the video game industry. In a letter to Davis and Company attorney Chris Bennet, David Pratt of the Canadian Red Cross urges support for enjoining the future use of "red crosses on white backgrounds" in video games.

Traditionally the video game industry has used this symbol to denote in game icons that can replenish a character's health as well as status bars that indicate how much health is left. The Red Cross says that this is a misuse of their trademark, and that they do not want their organization being associated with video games. In the wake of controversy from such games as Grand Theft Auto or the bloodiness of wartime realistic games like Call of Duty 2, the Red Cross feels that the integrity of their organization is put in jeopardy when their identifying mark is universally associated with restoring health in the video game:

"The fact that the Red Cross is also used in videos which contain strong language and violence is also of concern to us in that they directly conflict with the basic humanitarian principles espoused by the Red Cross movement. The crux of the problem is that the misuse of the Red Cross in video games is not only in contravention of the law, it also encourages others to believe that the emblem of the Red Cross is “public property” and can be freely used by any organization or indeed for commercial purposes."

While the Red Cross understands that they cannot reasonably expect to enjoin prior use of the symbol in video games due to the long industry history of using it, they seek to curb future use in this manner. In their letter, the Red Cross seeks to enforce the exclusivity of their mark through provisions of the Geneva Convention, as well as traditional notions of trademark law. According the 1949 Articles, any country that is a signator to the Geneva Convention must enforce the provision that the Red Cross must be identifiable and unambiguous in its need to have a clear meaning in wartime situations. If this argument prevails, The Red Cross has a clear channel to inducing the distinguishability of their mark globally and can likely press upon other governments to uphold their trademark rights.



From my perspective, the concerns of the Red Cross have two divergent manifestations that need to be considered. First, their argument is weaker for games that simply use the symbol of a cross on a background or health pack to denote a health icon. In games such as Condemned: Criminal Origins (involving a police officer on the trail of a psycho killer in domestic USA) where a red cross on a white background is used to denote a generic first aid kit. If it can be shown that such symbols have become synonymous with the general collequial use of healing, rather than the distinct services of the Red Cross, it may be found that the symbol has suffered the fate of genericide. Second, if the Red Cross can withstand the claims that their mark is in generic use to denote health, I think the Red Cross has a stronger argument for enjoining it's use in realistic wartime games. These games use the mark for its verisimilitude and are trying to identify such health stations as the type that the Red Cross is known for providing.

It will be interesting to follow this case and see how it develops. Also, as I start to learn more and understand the way trademarks work, I am curious to know whether there is a distinction between visual genericide and textual genercide. To me it seems this is a case of visual genericide rather than textual. When I play videogames, I do not associate the health packs that I use to replenish my character with the Red Cross. In fact, the idea never even crossed my mind until I read about their complaint. Perhaps this is exactly what they are trying to avoid: that people in combat will have the same attitude toward their valuable service. Alternatively, the way that health in video games is distributed has changed over the years. Games such as The Chronicles of Riddick: Escape From Butcher Bay use a health distribution system that requires three spikes being inserted into the characters' neck at a designated checkpoint. Other games, such as Halo 2 and Call of Duty 2 (mentioned above) do away completely with health pack, and rely on a system that replenishes health after an alotted time period. Even more realistic is the health system of Grand Theft Auto: San Andreas (also mentioned above) that requires the character to scarf down food at local restaurants (at the risk of obesity if he eats junk food and doesn't exercise). The point is that as the video game industry evolves, they are devising new and creative ways to distribute health. Reliance on red crosses on white backgrounds has ceased to be a standard. Whether that fact militates in favor of the Red Cross or not will be an interesting issue to watch as this saga unfolds.

Networking Solutions [Misadventures of an Evening Law Student #3]

(Original image from Career and Alumni Connections - PCCW)

As evening students most of us come to law school with a much different take on "the real world" than some of our younger, daytime colleagues. We are not here because it seemed like the right thing to do, mom and dad expected it or we wanted to hide out in school for another few years. Like some of our focused daytime brothers and sisters, we are here because we wanted to change our lives by training to become attorneys. In the mishmash of academia this goal can be distorted by unrealistic expectations and dibilitating uncertainty about where all this will eventually lead us. In a class of one hundred or more law students, only one of us will be the top of the class. Only ten to fifteen of us will we will end up in top ten percent, which leaves a good chunk of us somewhere in the middle of the pack. Heap on top of this competative atmosphere the pressures of having real world challenges, such as a current career we need to maintain, putting food on the table, wives, children and mortgages the subtle art of balancing all these factors can be overwhelming. The spectre casting a menacing shadow over all of these facets of evening studenthood: getting a job in a law firm.

In my own experience this has not been easy. As you may have already read in Misadventures 1 and 2, those of us not in the top ten have to work even harder than our classmates with the top numbers. Career counsellors will tell you that grades are important, but not the only thing that counts. I think this is realistic advice when given in context: grades are the prima facie showing of whether a firm will even consider your other experience/achievements. Please don't think me too cynical for viewing the state of affairs with this kind of biting honesty. I do believe there are exceptions out there, but for the most part when you are nothing to the hiring partner other than two pieces of paper (cover letter and resume) the numbers matter. That is why in order to break the mold you need to change the rules.

Since the average evening law student will not be in the top ten of their class creative solutions are often in order when considering the steps to take in securing employment. Of course we should all go through the routine steps of blanketing area law firms of interest with our cover letters and resumes, but for the Average Joe and Josephine some of the following suggestions may provide a bit of sanity and satisfaction in the search. I cannot reiterate the countless people I know who have secured good positions (sometimes w/top NYC firms) on the simple basis of who they knew. One example is a friend of mine we'll call John (not his real name).

Arguably, John has very good grades. He is in the top twenty percent of the class and has some great life experience. Now John and I do not attend a law school in the top ten (Yale, Harvard, NYU, etc.), but we are a "tier one", locally respected law school with a good reputation. This summer John worked at a top NYC law firm w/a bunch of summer associates from those top ten schools. In fact, he was the only summer associate at the firm from a school like ours (local/respected/but not top dog). How did he do it? Turns out that through the business that John ran while attending law school, he had done a job for the wife of one of the hiring partners from the firm. In a conversation with her John mentioned that he was currently attending law school while running his business. The wife immediately offered to connect John with her husband who could maybe help him out. This simple conversation eventually led to an interview and then to a job.

(Original image from: Blog, "Ramshackle Wonderland, It's Always After 5 O'Clock Somewhere...")

Now John's "cinderella story" may seem a bit cliche and out of reach, but the lesson is applicable: open our mouths. People are not mind readers. If we don't tell them what's going on with us they will never know. In speaking to people we should be willing to discuss our current law school situation and even let them in on our needs for a summer job. We never know who someone else knows. To keep things to ourselves ends the possibilities right there. Forming connections is exactly what the word implies: opening up the circuit, letting others in and permitting a free exchange of possibilities.

Likewise we should always be on the lookout for helping others to become connected. Perhaps we know of an opportunity that wasn't right for us at the time, but it may be perfect for them. We should make the connection for our colleague and wish them well, which brings me to my second point: we can't afford to be greedy. Opening up channels for others is not only an act of kindness, but from a human standpoint it renders us less of the cliche, type A personality that lawyers have become infamous for. As a result we can grow as attorneys and as human beings, and perhaps the more we help others to be connected, the more connected we are. An example from my own experience: a close family friend of my wife's runs an two-man IP firm. Now I want to work in the IP field more than anything, and this friend once offered me an assistant position. The only problem is that he prefaced it by saying, "I don't know if this is the right thing for you." His concern was that 95% of his practice involves complex patent registrations/litigation, for which he believes that engineering courses are essential. As the title of this blog implies, I come from an art background (writer, visual artist and actor) and my extent of scientific training was a biology 101 course freshman year of college. While my friend was willing to give me a position, he believed that it would be a dead-end and that I should consider going somewhere else with a more diversified IP practice. Fast forward four months later: I'm speaking to a classmate of mine who is an engineer and interested in doing exactly what my friend's firm does. I gave him the number, told him to use my name in making contact and I alerted my friend to my classmates' interests. Time will tell whether or not that works out, but for now it felt good to give a lead to a fellow classmate. Who knows, maybe someday he'll do the same for me.

(Original image from: "Highschool: The Nightmare Begins")

This brings me to the last point of network solutions for today: find value in the "rejection letter". I collect all of the "rejection letters" that I receive and make a point of highlighting the usually included words: "nothing to offer you at this time." It helps me to hone in on those words, because I never know when there might be a time that they will have something to offer me. That is why I like to think of the "rejection letters" as extension letters - they are opportunities to extend my network further than it was before I made contact with those people. After the extension letter comes back I make it a point to email or write a letter back to the hiring partner or HR person who wrote to me, thanking them for their consideration and directing them to my website or blog, if they have the time. By doing so, I provide that contact with a bit more of an open channel to my world, which hopefully they will explore and discover a bit more about me than two pieces of anonymous paper could have ever have communicated.

To conlcude, here are some practical and simple bullet point solutions derived from what has just been discussed:

• Make a list of everyone you know / don't judge names, just write / then separate the list into 1's, 2's and 3's based on whether you think they'd be able to help you make a connection now (1) w/in the year (2) or some time in the future (3) / contact your 1's and follow the trail
• Go online to bulletin boards, blogs and web groups involving practice areas you are interested in / respond to people's posts and make friends w/attorneys through discussions / they might be able to give you valuable suggestions or leads
• Take advantage of networking events at the lawschool / these include big ones specifically geared towards networking and simple panel discussions involving working attorneys
• Join your local BAR association / they always have events / there are BAR specific bulletin boards and contacts that can likely help
• Volunteer / clinics and pro bono stuff during the summer (when the full-time worker part-time student likely doesn't have class) is valuable experience and can hook you up w/good people / it is also nourishment for the soul (remember to stay human)
• Start a blog / in writing about my own misadventures and IP related quibs, I have an outlet for whatever I need / others can see it and get to know me better / I learn more about the law and myself by writing it

That's all for now.

T'shuva/Crane Philosophy (part 3 of 3) [Kung Fu Expressions #3]]

“Returning to the Source: T’shuva and the Lessons of the Crane – Part 3 of 3”

The path of the martial artist is wrought with distractions. Even when performing the simplest training tasks our minds are apt to wander. When this happens we must return our intention to the training at hand. The act of returning the mind to its proper focus is an example of the Jewish concept of T’shuva, (return or discovery of the spiritual source) as well as the crane philosophy of Hung Ga (conserving the essence).

Similarly as we move through everyday life there are many things that can and will distract us from the true path. The commitment we once had to train or practice the principles of Hung Ga can fall by the wayside of worldly clamors and responsibilities. When this happens we do well to remember the lessons of the crane. For if we lose sight of ourselves, and our purpose we may find that our very essence slips away and we are not even aware of it.

I speak from experience. For four years my training was constant and I participated in many school events. As time went on I found myself enrolled in law school, working a full time job and married to an amazing woman. Despite these possible distractions, I always remained loyal to my Sifu and my training, often coming to school at 10 p.m. to train by myself or with my brother Sam. Then the crucial test came: I sustained a serious injury to my right shoulder that took me away from kung fu for the past seven months. Unable to physically train, I lost my way and gave up an important guiding force to me all these years. I forgot the lesson of the crane; return to the source and conserve essence.

(Original image from NSDU Magazine, Fall 2003)

Realizing how far I had gotten from my kung fu and my Sifu, I picked up the phone and called him. He welcomed me home. From that simple act of reaching out I have returned to my training. Although physically limited, I find that I am still able to do simple things like light chi gung, speaking to training brothers and participating as best I can in the school. I am returning to the core of what made me a martial artist in the first place, dedication, commitment and love. The lessons of the crane have brought me back (T’shuva). It feels good to be home again.

There's Something Rotten in Denmark: Should Violent Backlash Impact the Free Exchange of Ideas? [IP Bytes #2]

(Original photo from APC Africa - Freedom of Expression)

In looking at ownership of expression we must always be mindful of the counterbalance of the freedom with which we allow that expression to evolve. The United States Constitution authorizes Congress to grant copyrights and patents: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (U.S. Constitution, Art. I Sect. 8). This grant of Congressional power under the Commerce Clause is meant to have the effect of generating revenues for innovators who contribute to the progress of both science and useful arts. Read in conjunction with the First Amendment of the Constitution, "Congress shall make no law ... abridging the freedom of speech or the press," we begin to see how the American idea of expression must be unabridged and capable of ownership.

This is not without limits. Courts have spent years interpreting the meaning of "useful arts" as well as crafting permissable instances where the government may in fact "abridge the freedom of speech." One such example is Brandenberg's unlawful incitement test:

"Merely teaching or advocating unpopular ideas must be distinguished from teaching or advocating the duty, necessity, or propriety of acting on those beliefs. The right to speak and organize cannot be abridged no matter if the group's message and purpose are repugnant to American values (such as KKK speech). In order for government to intervene, the speaker must subjectively intend incitement (imminent evil), use words which are likely to produce action (imminent action), and openly encourage or urge incitement (suggesting, for example, it's a duty to commit a crime)."

("Freedom of Speech" website: http://faculty.ncwc.edu/toconnor/410/410lect08.htm). Some areas of speech are granted no protection such as obscenity, fighting words and libel. There are other areas of speech that under Constitutional Law are granted lesser protection such as hate speech, commercial speech, internet defamation and campaign speech. These areas intersect with the laws of copyright, and some commentators have called copyright a restriction on speech as well. But what about a world where violent backlash becomes a restriction of free expression?
(Image from National Business Review)

Over the weekend of February 4th 2006, protestors of a Danish cartoon allegedly depicting the prophet Mohammed with a lit bomb for a turban culmanated months of peaceful yet heated protest with extreme acts of violence. They burned the Danish Embassies in Lebbanon and Syria and violence erupted in other countries as well. Initial response to the cartoon stemmed from angry reactions to seeing what Muslims concluded was the prophet Mohammed depicted in graphic form. This is a sin in the Muslim culture regardless of the message intended (in this case that Muslim extremism, regardless of religiousity, involves violence and bombing). The perception of some Westerners has been that Muslims are angry that Mohammed is being depicted as a bomber, and call it ironic that the response to a stereo-type of violence has been violence. What such a conclusion misses, however, is that the extreme response to the cartoon is for the depiction of a prophet at all, not that he is depicted in a certain way.

This story has been a concern here in IP Bytes because of the implecations of violent backlash affecting the free exchange of ideas. While the rules of Amercian Constitutional Law and free expression do not apply with binding force to the world community, I think it is the sincere hope of democratic individuals that others will find value in the ideals of freedom that have been born of having such doctrine here in the United States. To see news stations refuse to show the cartoon in their broadcasts about the embassy burnings for what they say is "respect for Muslim worshippers" is suspect to interpretation. Are they refusing to show the cartoon for fear of backlash? As I write this these same fears cross my mind. It seems however, that the creator/owner of the cartoon is and has been much more likely to be on the receiving end of anger than those who would report or write about it. Which leads me to the point of this blog: will the Danish cartoonists and media be hesitant to print similar material in the future b/c of the response? Has their ownership of such expression, which has caused a violent backlash towards the Dutch in general (rather than the actual copyright holders) be nega-centive enough to curb the further expression of such a topic? Time will tell, but I do know that I would hate to live in a world where such backlash is a response to what becomes permissible to print or own. We need to be free to express and own dissenting views, even if we don't agree with them. The proper response is intelligent discourse and counter-dissent, not burnings and destruction. There are so many tools today (more than ever) to have your voice heard: sign up free blog, write a letter to the editor stage a peaceful protest, etc. For now, we will have to wait and see how the world reacts and whether such tensions can be resolved through open exchange.

Popups and Spam [Creativity of the Ordinary #4]

Popups and Spam - is this fair use?

Do you like pop ups and spam?

I do not like pop ups and spam, I do not like them, Email Jam.

Would you like a mortgage now? Just click right here I'll show you how.

I do not want a mortgage now. I do not want to be endowed. I do not click them here or there I do not click them anywhere.

Cheap drugs! Cheap drugs from Canada! This pop up spam can bring such fun!

Cheap Canuck drugs won't make me click. Don't need them, want them, I'm not sick! I do not like pop ups and spam. I do not like them Email Jam.

Would you click them at your work? Would you click them in a park?

I would not click them at my work. I would not click them in the park. I would not click them here or there. I would not click them anywhere.

Auto loans! Surely auto loans! Could you, would you for Auto loans?

I would not, could not for auto loans. Not for cheap rates, hot dates or free cell phones. I do not like pop ups and spam. I do not like them Email Jam.

But surely you want to know the stock! The markets' picks are piping hot!

I do not even trust your picks. So just remove me from your list. I say clearly Email Jam no more no more pop ups and spam.

Free TV? What about for free TV? Would you click them for a free TV?

(image from Blue Swallow Hotel review)

I would not click them for free TV... What size, what kind an LCD? No never! Never! You hear me? I will not click them for TV. So please, oh please just let me be! I do not click pop ups and spam, I do not click them Email Jam.

You do not click them so you say. But have you tried them now-a-days? Stock tips, draft picks, dates and more; by clicking you'll see just what's in store. Will you click one just to see? Will you click one just for me?

Just for you? Just for you? Will you stop this if I do? If I click just one pop up or spam will you stop this Email Jam?

I will. I will. I promise you. Just click this one and then you're through. Just read one spam or click a pop, then just type "quit" right in this box, and all this popup and spam will stop.

Epilog: our hero clicks to his chagrin and Email Jam is let right in. He clogs he pings and all is done, our hero has unleashed the one. The one big bad pop up and spam, that could destroy the the systems' RAM. From one computer to another speads the virus none could smother. And our poor hero now is stunned for Email Jam was no one. An ad sense bot with charm and wit to fool the people, make them click. A twist a turn in pop up spam. A kind of pop up uberman. That gets paid lots to click and click, plus a bonus for a trick. The trick is this, just pure and plain, get real people too and you get paid. Double money for real response, plus your automatic ones. The real ones count at even more, so bots exploit the open door. So please be careful where you click, for just one slip and it may stick. Yes Email Jam is on the move so click right here to be removed.

Trooooooogle [IP Bytes #1]

Trooooooogle - subjective truth for the dissemination of (almost) all knowledge

Image from: http://www.china-guide.de/china/bildungssystem/b.grundschule.html

Google has been hot in the news over the past year. The latest headlines involve two separate issues (1) Googles' expansion into China, and (2) Googles' library project to make the content of every single published book searchable online. This first post of IP Bytes will explore them both.

Google's recent expansion into China has caused quite a stir among the information community. The fact (yes, actual fact) that the knowledge giant is willing to yield to censorship pressures of the Chinese government seemed at first glance counterintuitive to their mission of arming the world with knowledge and sticking to their own mission statement "don't be evil." The news last week sent shockwaves through the blogging community that resulted in some bloggers, including the reputable Blogger News Network, discontinuing their Google ad sense accounts, which pay them fees-per-click.

Despite angered and incensed technorighteous bloggers and critics it is important to keep in mind that there are some possible benefits of Google taking the steps to create an online presence in China, even if that presence is limited. Previous to this move the dissemination of information in China was even less than it would be without Google there. What the information community needs to be mindful of is that the flow of information increases with time rather than decrease. While initially the move in China seems to militate against the spirit of the Googlegalactic conquest, in the long run it could result in a more informed population that comes to not only appreciate the vastness of knowledge, but actually demands it.

(Image from: http://www.tiscali.nl/content/article/cmult/438815.htm)

The second issue surrounding Google these days involves their library project of ambitiously scanning all library books (both copyrighted and not) online for searchability. Google library would allow the entire text of a book to be searchable for the terms entered into the search bar by users. They would be provided with a list of hits that would allow them to read about two sentences around the word. The full text of the book would only be available if the publisher allowed it to be. In other cases, Google users would be directed to either the publisher's website or other resources telling them where they could get the book.

Objectionable publisher's were quick to respond to this move by Google. They echo much of the dissent that arose over "Google Print" which the company has been using for years as a way of linking users to material. The only difference between Google Print and Google Library is that in Google Print the publishers were opting to participate to their benefit, showing as much or as little of the book as they pleased. The disputes that usually arose concerning Google Print involved authors and publishers who had issues surrounding the amount of work permitted online that may have contravened their publishing agreement. Unlike Google Print, the posting of content through Google Library was done without the permission of the publishers and has stirred up much tension in the publishing world over what is permissible. Whether this comes down to a decision of whether the snippets of work shown through Google are permissible as a transformative use for indexing rather than publishing purposes remains to be seen.


I think that as technology moves forward publishers and copyright holders may need to change what they view as the scope of protectible work and take advantage of the opportunities that a search engine like Google can provide. Of course one can imagine the converse (publishers' worst nightmare) where people find snippets that they want and then go take the last few words and then use a bypass software unlock the entire work two lines at a time. This may seem unlikely at the inception of Google's library project, but the danger in allowing technology to flourish is that our perceptions of what is protectible also must expand.