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February 27, 2006
Blawg Review #46
I really like what Sean Serrine had to say in his introduction to Blawg Review #46 at de novo that I'm going to quote almost the whole thing (but that shouldn't stop you from going over there to see all the great posts compiled this week):
Here is the problem as I see it, (and I'm sure I'm just as much at fault as anyone else), nobody is giving out permanent links anymore. As much as I love Bashman and Volokh, I haven't seen the links on their sidebars change for over a year! It seems that in an effort to become more professional, blawgs have become static, just like the websites we found before blogs came around. They have great writing, but they are all starting to talk about the same thing. Rolling with the news cycle instead of creating it.I agree with Sean and I've recently implemented a new category page for my blogroll that I need to finish updating.So here is your chance to show that lawyers are all about learning new things no matter who is telling them. If you read something you like, put a link to that blawg on your sidebar as a silent thank you for a job well done. I know plenty of you out there know how to tip, (you better if you're going to drink those $7 coffees), and this is how tipping works in the blogosphere. Best of all it's free! So show some link love....
And thanks for the nice comment on Blawgr.com.
Posted by Kevin Heller
February 26, 2006
Break in the Road
fiftyone:fiftyone has a post on Break in the Road, a benefit album for the Katrina and Rita Victims:
"If you've seen Juvenile's video, you can see that New Orleans still needs our help. CD's are $10 and all proceeds go to Habitat For Humanity's "Operation Home Delivery", a three-phase response to help provide assistance and rebuilding opportunities in New Orleans and elsewhere along the Gulf Coast."
Also, I understand that no money will be going to the insurance companies who will assuredly try to persuade you that their shareholders were the biggest victims of Katrina and Rita.
Related: Ernie the Attorney - Katrina
Common Scold - Mother Nature
Posted by Kevin Heller
1 Billion Suckers Served
Thomas Hawk says thanks a billion to every iTunes music store sucker (I think he means buyer): " I think Apple's DRM is awful and represents a major step back for us all. I think those that are investing in iTune digital libraries are suckers. You are basically betting that Apple's proprietary DRM laced format will be the standard for the rest of your life. You are paying too much for your music and tying yourself to only Apple products going forward."
There's a lot more.
Related: Downhill Battle on iTunes
Posted by Kevin Heller
The one and only Blawg Review
If something were to ever happen to blawgreview.com, you can rest assured that you could still find a link to every Blawg Review issue.
I have updated my Blawg Review category page to provide a link to all the past issues. All future issues will have their own posts.
Also, if you're ever confused as to whether a post on another web site is a legitimate Blawg Review blawg post, you can look there as well: http://techlawadvisor.com/blawg_review/. If its not on that page then it is not a Blawg Review.
Posted by Kevin Heller
Copyright & Contract Primer
Bubble-Wrap: Why the Contractual Protection of Ideas is Preempted by Federal Copyright [pdf]
Posted by Kevin Heller
Is the DMCA Unconstitutional?
Yes.
Posted by Kevin Heller
P2P File Sharing is Non-Competitive Use of the Work
As Professor L. Ray Patterson explains: "The competitor uses the copyright; the consumer uses the work. The copyright owner, by reason of the Copyright Act and the copyright clause, has not only no right to interfere, but a duty not to interfere with the consumer's use of a publicly disseminated work."
In the course of copyright legislation and through a drafting error that occurred at the time of the 1909 act fair use was now being applied to consumers where previously it had only applied to a competitor’s use or piracy: "As originally promulgated, the fair use doctrine was a fair 'competitive' use doctrine designed to enable a rival author or publisher to use a copyrighted work in preparing another publication. Therefore, the doctrine applied only to competitors, not consumers."
Therefore an individual user should not be liable for copyright infringement unless their actions rise to the level of piracy.
Consumers are not competitors. Copyright laws should not even apply to their use of the work whether that be distribution or downloading; so long as that use is non-commercial.
Originally published: 2004-07-28
Posted by Kevin Heller
Top Cyberspace IP Cases of 2005
as compiled by John Ottaviani of the Technology & Marketing Law Blog: Top Cyberspace IP Cases of 2005.
Grokster, WhenU, Napster, Hulk, Patents, Purdy, Gonzalez, Blizzard, Falwell, Kremer.
* Grokster
* Coca-Cola Co. v. Purdy: The final factor considers whether the degree of purchaser care can eliminate any likelihood of confusion which would otherwise exist between the products. Several courts have noted that the quick and effortless nature of "surfing" the Internet makes it unlikely that consumers can avoid confusion through the exercise of due care: "In the internet context, in particular, entering a website takes little effort - usually one click from a linked site or a search engine's list; thus, Web surfers are more likely to be confused as to the ownership of a web site than traditional patrons of a brick-and-mortar store would be of a store's ownership."
* BMG Music et al. v. Gonzalez: Northern District of Illinois granted summary judgment in a file sharing suit against an individual file sharer accused of downloading 30 songs. The court rejected fair use and innocent infringer defences.
Gonzalez asserts that the "fair use" defense applies because she: (1) was just "sampling" the songs to determine if she wanted to purchase them; (2) already owned [*3] many of the songs she downloaded; and (3) did not cause any financial harm by downloading 30 songs. These contentions are without merit. First, the Ninth Circuit in A&M Records, Inc., 239 F.3d at 1014-19, rejected the argument that "sampling" by direct infringers is a "fair use." Second, the contention that Gonzalez already owned some of the recordings she downloaded is not relevant because the Recording Companies only seek redress for songs that Gonzalez admits she did not own.
Under section 402(d), however, the "innocent" infringement defense is not applicable "if a notice of copyright in the form and position specified by this section appears on the published [recordings] to which [the infringer] had access." (Emphasis added.) While it is undisputed that the copyrights of 30 songs at issue were properly noticed on the covers of CDs, Gonzalez contends that she has raised a question of fact as to whether she had access to the notice. Although it is true that Gonzalez did not have actual possession of these CDs, section 402(d) does not require proof that the infringer had "actual possession." 2 Nimmer on Copyright, §7.02[C][3], at 7-17 n.25 (2004). Instead, the plaintiff need only show that the CDs with notice "were in circulation [and] available" to the infringer. Id.
* Bosley Med. Inst. v. Kremer: NonCommercial Domain Name Trademark Use OK; Ninth Circuit joins 5th & 6th in okaying non-commercial gripe sites. The Ninth Circuit has held that the use of a business owner's trademark as the domain name of a noncommercial website — the subject of which is consumer commentary about the products and services represented by the mark — does not constitute infringement under the Lanham Act. Bosley Med. Inst. v. Kremer, No. 04-55962 (9th Cir. April 04, 2005) To read the full text of this opinion, go here.
* 1-800 Contacts, Inc. v. Whenu.com, Inc., No. 04-0026, 04-0446 (2d Cir. June 27, 2005) (defendant's "pop up" advertisements, which appear on computer screens contemporaneously with the appearance of plaintiff's internet website, do not infringe upon plaintiff's trademark.) [pdf of the decision] 2nd Cir. says pop up ads don't confuse.
* Fallwell's that ends well for free speech. Check out James Griffith's coverage of Falwell Critic Permitted to Keep "fallwell.com" Gripe Site Domain Name.
Posted by Kevin Heller
Assumptions about Copyright Law
Brett Frischmann at madisonian.net has read a draft of Matthew Sag's forthcoming paper entitled: "A Rational Choice Model of Copyright Enforcement: Why the RIAA should continue to target 12-year-olds and grandmothers".
About this paper, Brett writes: "I will note that Matt ...asks two questions: (1) why do so many consumers feel that unauthorized file sharing is acceptable when it is clearly illegal?"
Posted by Kevin Heller
VeriSign wants to control dot com registry forever
Bob Parsons, founder of Godaddy.com and seller of domain names says that "VeriSign has somehow persuaded ICANN to propose a new contract where VeriSign will be the permanent and unregulated controller of the .COM registry. VeriSign would also get the right of presumptive renewal. This means when the new contract for the .COM registry comes up for renewal in 2012, it won’t be put out for bid – like the .NET contract was in 2005 – instead it will simply renew in VeriSign’s favor." Hot Points - A huge scam in the making. The .COM registry contract. VeriSign: Shame on you!
Related: "We Are Inept. Replace Us." by Bret Fausett
Posted by Kevin Heller
Legal Podcast Review
Recent Podcasts: Feb 19-25
* New Jersey Legal Update - Podcast # 28: discusses the case of Lewis v. Harris which is being watched nationally as a case which may direct how courts view legislation which bans same-sex marriage.
* Coast to Coast: The Hussein trial: Robert Ambrogi and J. Craig Williams discuss The Trial of Saddam Hussein with Simone Monasebian, chief of the U.N. Office of Drugs and Crime.
Posted by Kevin Heller
Consumption: Media and Culture
Following up on my Night Float post, I just can't stop thinking about how WRONG Jason Calacanis is about youtube. I've been on it for the past week and I am finding lots of user generated media. Unlike, Napster where more than 90% of the files were copyrighted by the music cartel, the majority of files seem to me to be user generated, although there are still copyrighted works, I doubt it is anywhere near the 90% mark.
I also disagree with his comment that: "It's a silly, little business that anyone could setup in a week." I for one couldn't because I can't afford the hosting costs, but more than that I'm not sure Jason could either. He posted on Feb 20 that he could "set it up in a weekend" and I still don't see the Weblogs, Inc version. I'm not surprised frankly, since he's not even willing to pay to host his own images sometimes.
Related: I will try to limit my film, tv and music posts to the weekend, but I can't guarantee it.
Posted by Kevin Heller
Labor & Employment Law Podcasts
This is a rather interesting podcast series that I came across.
Eric Meyer is an employment and labor law attorney in Philly for Dilworth Paxson LLP who podcasts (rss feed here: xml), but does not have a blog. You can find previous podcasts right on his attorney page.
I like the fact that Dilworth is both hosting his files as well as allowing him generate the feed through their site.
After the jump you can see other
Recent Podcasts by Eric Meyer
* Podcast #1: A Labor Attorney's Perspective on the T.O. Arbitration [25 minutes, 12M MP3]
* Podcast #2: Employers Must Take Note of Zavala v. Walmart Decision [12 minutes, 5M MP3; PDF of Zavala decision]
* Podcast #3: No Love from the Eighth Circuit under the Americans with Disabilities Act [10 minutes, 4.5M MP3; PDF of Nuzum v. Ozark Automotive decision]
* Podcast #4: No EEOC Charge? No Sweat [11 minutes, 5M MP3; PDF of EEOC v. Bare Feet Shoes decision]
Posted by Kevin Heller
February 23, 2006
Blog Disclaimers
Tech Law Advisor: On Blog Disclaimers [via]
Posted by Kevin Heller
Brown Raysman blog
Filed under "more big law blawg news" -- please note that Brown Raysman appears to be using blog software (MT or typepad with no sign of lexblawg) to publish their Technology Law Update.
I noticed the blog as a result of a link to my hosting of the Government Motion to Enforce the Subpoena against Google that was part of this Internet Regulation entry.
Posted by Kevin Heller
February 22, 2006
Night Float
Tonight is the first night of my wife's two weeks of night float at the hospital. Basically over the next two weeks me and the kids will never occupy the house at the same time as her except for this lone saturday. Otherwise, we are on our own. Naturally, she's bored sitting in the lounge and in between answering pages wishes that she had a dvd player. I told her she does. I told her that she just needs to try out videosift, youtube, itunes, and googlevideo and emailed her the links.
Now while, I'm on the subject of youtube, here are Matt Haughey's and Jason Calacanis' thoughts on the subject.
Haughey - Rambling about blogging and TV: "I'd argue that YouTube is the king of this movement because they have such loose and lax legal guidelines. Of course, everyone that uploads claims they own the copyright and got release forms from everyone involved and cleared anything seen on camera, blah, blah, blah, but in reality, it is totally lawless and people are basically uploading random interesting TV bits they dump right off their computer. It reminds me of Napster in 1999, totally interesting, and totally illegal in the eyes of IP lawyers."
Calacanis - YouTube is not a real business: "YouTube.com gets some ink in the New York Times today. The piece spends a decent amount of time explaining the success of the site: it's makes money off other people's IP."
But unlike Napster, I'd have to argue that alot of this stuff is user created. Check out this video for example:
Posted by Kevin Heller
Take a minute
to read Matt's post.
Posted by Kevin Heller
Conviction
I'm currently watching Dick Wolf's new show Conviction (ahead of its tv release) in lieu of Idol insanity.
It stars Stephanie March, Milena Govich and some dude that has definitely never stepped foot in a law firm.
Posted by Kevin Heller
Combating Digital Piracy: The Limits of Technology
Combating Digital Piracy: The Limits of Technology
Monday, March 20 @ 6:00 p.m.
Benjamin N. Cardozo School of Law/Yeshiva University's Uri and Caroline Bauer Distinguished Visitor Program presents Tom Rubin, Associate General Counsel, Microsoft Corporation, discussing Intellectual Property and Digital Piracy. Mr. Rubin heads the Copyright, Trademark and Trade Secret Group and leads a 30-member team that is responsible for the creation and strategic management of Microsoft's extensive international intellectual property portfolio.
Posted by Kevin Heller
Domain Name Drop Market over $10M
WSJ ($) reports that domain name expiration auctions totaled $11.5 million in 2005 (2,291 sales were reported) which is almost triple that from 2004.
In related news, I registered a new domain with Godaddy.com the other day and they informed me that Google is allegedly now looking at whois info related to lenght of registration to aid in determining page rank. Godaddy specifically asked me whether I would like to register the new domain for two years because Google looks unfavorably at one year registrations. Not sure if its a sales technique, gimmick or scam. Anyone out there see anything on this.
(tags: godaddy, google, page rank, domain names, drop catchers)
Posted by Kevin Heller | Comments (0)
Kelly versus Perfect 10
What distinguishes the Kelly v. Arriba Soft Corporation, 336 F.3d 811, 820 [pdf], case where the court held that thumbnail images of copyrighted works constituted fair use and the recent ruling by U.S. District Judge A. Howard Matz in the Perfect 10 v. Google case?
I believe the cases are distinguished on the basis that Perfect 10 actually sells downloadable thumbnail versions of its nude photos.
I don't necessarily think this would make good law if this is how the case is eventually decided, but the cases can clearly be distinguished on that basis.
Fair Use will continue to exist in cases where the copyright holder does not sell thumbnailed versions. Google's Image search will not be crippled, but clearly the burden will be on the search engines to determine what images can be included in its image seach.
Bonus: Marty Schwimmer has linked to a copy of the injunction [pdf].
See also: William Patry on Google Nudes (I personally think the implied license is a stretch.)
* Perfect 10 Image Search on Google + Perfect 10 Models JPG (with Clothes on)
Posted by Kevin Heller | Comments (0)
Free Culture Swarthmore Hates DRM
Free Culture Swarthmore has organized a DRM Protest at Tower Records on Feb 25th, 2006. [via BB]
The protest will take place Saturday, February 25th at noon at the Tower Records Store on South Street. It will continue into early afternoon. Free Culture wants to inform consumers of their fair use rights and warn them about the DRM threat.
Related: freeculture.org
Posted by Kevin Heller
February 21, 2006
Are Law Students Still Competitive?
Check out this email from an Emory Law School student to their professor:
"You're spending too much time with my moron classmates and you ought to be focusing on those of us who are getting the material."
[NYT: Why It's All About Me]
Related: WSJ (free) Infamous Emails Don't Always Kill Careers
Posted by Kevin Heller
February 20, 2006
Humbled & Humored
More on the Big Law Blawg Conference from Cathy Kirkman at the Silicon Valley Media Law Blog.
Posted by Kevin Heller
Talk about Big Brother
This story may seem too ridiculous to be true, but Houston, named one of the fattest cities in America, also has big plans for keeping an eye on their local citizens.
Scott Henson of Grits for Breakfast (excellent Lone Star blawg) reports that Houston's police chief wants cameras in apartments, private homes. I wonder if he plans on starting a lucrative side business of providing voyeur prn for the masses.
Posted by Kevin Heller
Blawg Review #45
is up at Patrick Lamb's In Search of Perfect Client Service blawg.
Posted by Kevin Heller
Google's Response to the DOJ
For all of these reasons, the Court must reject the Government's Motion.
Response to the DoJ motion [pdf] posted by Nicole Wong, Associate General Counsel.
Posted by Kevin Heller
February 15, 2006
Ripping Own(ed) CD's not Lawful
EFF points to filing by the RIAA which says so.
Posted by Kevin Heller
Google Desktop
FactoryJoe has one of the best roundups I've seen on the privacy issues regarding the new Google Desktop v. 3.
Counterpoint: Google Desktop Fears Overblown?
Posted by Kevin Heller
February 14, 2006
She's such a romantech!
I Heart Tech on what to give that special someone on Valentine's Day.
Related: It's actually someone's job at Google to create pink gmailchat emoticons.
Posted by Kevin Heller
When Parody meets the Law
WSJ article on The Problem with Parody. Rounds up some of the different parody sites that have dealt with c&d letters and how some of the spoofed have dealt with it (and as Marty Scwimmer indicates -- dealt poorly).
If you're interested legal aspects of parody you should look at the following:
Not Parody
Booble, Booble
Aberzombie Domain
Puma, Puma, More puma
Posted by Kevin Heller
Blawg Review #44
Bob Coffield hosts Blawg Review #44 on his Health Care Law Blog.
Linky goodness.
Related: Health Care Law Bob
Posted by Kevin Heller
February 09, 2006
Enjoin the Intent to Annoy Act
Declan McCullagh [via Politech] posted links to the complaint [pdf] and news coverage regarding the operator of an anonymous emailing service who filed an injunction against enforcing the law which seems to have some free speech implications:
"respectfully requests that the Court enter judgment as follows:
A. Declare that 47 U.S.C. §223 violates the First and Fifth Amendments of the United States Constitution;
B. Preliminarily and permanently enjoin defendants from enforcing the
above-noted statutory provision;"
I'm just glad the act doesn't apply to weblogs... otherwise how would I amuse myself.
Previously: Intent to Annoy
Posted by Kevin Heller
PatentMojo needs rescuing
The Rethink(ip)rs need the help of a Ruby programmer to get their patent search to RSS site back up and going.
(tags: ruby, patents, rss, law2.0)
Posted by Kevin Heller
Big Law Laying Claim to Blawging
Kevin O'Keefe has posted details on his site on the Blog Law & Blogging for Lawyers Conference which includes several interesting panel discussions and speakers from firms such as Wilson Sonsini, Davis Wright Tremaine, and McGlinchey Stafford.
Dennis Crouch of Patently-O is one of the co-chairs with Cathy Kirkman and O'Keefe is even doing a panel on blawging * (note though that he posts the title of his workshop on his blog as "Business of Blogging for Lawyers").
Next thing you know he'll change the name of the company to lexblawg (the .com domain is available).
update: Comments are open.
Posted by Kevin Heller | Comments (2)
Caselaw Archives
I like where I was going with this -- too bad it was abandoned.
http://techlawadvisor.com/caselaw
Posted by Kevin Heller
February 08, 2006
Trademark Law for Dummies
I had no idea that they even sold a Trademark Law for Dummmies.
Related: Dealing with Dummies, For Dummies***
for: The Trademark Blog
tags: trademark
Posted by Kevin Heller
February 07, 2006
Crush With Eyeliner
I'm in the midst of creating a Valentine's Day iPod playlist/mix for my wife and I was remembering that we used to sing Crush with Eyeliner to each other. The summer after we met I took a film class on Literature & Film. Anyway, in The Big Sleep (which is my absolute favorite Bogart film), Lauren Bacall sings this song which MUST HAVE served for the basis of Stipe / R.E.M.'s Cruch with Eyeliner, but I can only find one other person on the whole internet er google who is aware of this fact.
Any film & music scholars out there that can weigh in?
Posted by Kevin Heller | Comments (0)
Coloring Book for Lawyers
Can be found on this site via Google here and at http://sneezing.blogspot.com.
For more lawyer humor and legal funnies go to IP Funny.
Posted by Kevin Heller
Web 2.0 versus Law 2.0
It seems to me that the more interesting linguistics/spelling discussion is the Web 2.0 Flickr progeny (Grabbr and retrievr and gtalkr) rather than whether blawg should be stricken from the record.
But no matter which side of the debate you stand on, I believe that you will enjoy David Giacalone's hystrcl take on the subject:
bummr: where did all those e's go?
Posted by Kevin Heller
Law School Credit for Blogging
3L Epiphany is getting credit for blogging -- which I guess means that he's actually paying the law school to blog. [via Buffalo Wings & Vodka]
Posted by Kevin Heller
February 06, 2006
Blawg Review #43
Blawg Review #43 hosted by Online Guide to Mediation's Diane Levin has a shakespearean theme. I especially enjoyed ACT X: Blogs and Blogging.
That has such people in’t!
The Tempest V.i
Great job Diane.
Posted by Kevin Heller
February 04, 2006
Blogging Kevins
I never understood why my Italian mom picked an Irish first name to go along with this jewish surname, but I think it's about the most perfect fit there could be. Thanks Mom.
It's an honor to be included in this excellent round up of what Kevins are blogging about:
Kevin Murphy's Blogging Kevins.
Posted by Kevin Heller
Inflation
At the start of the third grade (1982), I placed my first ever football bet. I wagered 50 cents on my favorite football team to beat my best friend's favorite team -- the Dallas Cowboys. I won that bet.
Hopefully, the Steelers can come through for me again tomorrow and help me win $500 in the office pool.
* WSJ fix
* Grant Bowman writes emails to friends and also was working for Lehman until a few days ago when the Steelers gave him the golden nod.
...while at work I got an interesting phone call. The Steelers wanted to sign me and take me with them to Detroit for Super Bowl XL. Since then my life has been turned upside down. I took a two week sabbatical from Lehman Brothers, and am now in Pittsburgh practicing with the team. Several people since then have asked me to keep them up to date on what is happening. In response I have decided to write the "Super Bowl Letter" in order to keep everyone up to date....
Posted by Kevin Heller
Tiffany accuses eBay of harboring counterfeirt merchandise
Tiffany's wasn't happy when it found fakes on eBay and now the retailer is suing the internet swap-meet for allowing its members to sell counterfeit jewelry on the site. [yahoo! news]
In this CNN video, Soledad O'Brien discusses the lawsuit with Daily Candy's Danielle Romano.
For more on this topic, Susan Scafidi's Counterfeit Chic does an excellent job of following the trademark counterfeiting industry.
[tags: counterfeit; trademark; infringement; dilution; tiffany; ebay]
Posted by Kevin Heller
February 03, 2006
selling a dot U S
I have a domain name available for anyone who wants to develop it:
sucksmyan.us
Imagine all the possibilities for subdomains....
Posted by Kevin Heller
Potential Publicity Nightmare, Ethical Improprieties for IP Firm
Legal firms cold-calling artists appearing on P2P networks doesn't translate to new clients for firm. [via Waxy]
Posted by Kevin Heller
Blonde Justice
on anonymity, blonde and blawg.
Posted by Kevin Heller
Subways & iPods
John Kiel Patterson filed suit against Apple because iPod earbuds promote hearing loss at full volume or 115 decibels.
And to answer the question that is on your mind -- who would listen to an iPod at max volume -- NYC Subway riders: "noise levels up to 98.6 decibels."
Read the complaint: pgs 1 - 18.
Photo of famous subway riders:
Related: hearing protection ; ipod ; apple ; Bribe your Senator with an iPod
Posted by Kevin Heller
February 02, 2006
Dead Kennedys as relevant as ever
I direct you to go read about Warrantless Wiretapping and Domestic Spying while listening to I am the Owl. In fact you should go listen to the whole album: Mutiny on the Bay.
John W. Dean agrees: "George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachably."
Related: Prepared Statement of AG Gonzalez, Feb 6, 2006 - The U.S. Attorney General's prepared statement to the U.S. Senate Judiciary Committee at hearings inquiring about the Bush Administration's newly revealed N.S.A. domestic eavesdropping and surveillance program.
Findlaw Coverage: N.S.A. Domestic Surveillance Inquiry Documents
Posted by Kevin Heller
Beaneball blogs Cardozo blogging event
Beaneball: A blogging presentation at Cardozo
Posted by Kevin Heller
Silicon Valley Gossip Blog
Not to be confused with Silicon Valley Media Law Blog, Gawker Media has launched Valleywag, a tech gossip rag or FC 5 years later -- you decide, we'll keep tabs.
Posted by Kevin Heller
February 01, 2006
How Web-Savvy Are You?
Wendy Davis highlights some quality blawgers in this article at law.com.
Posted by Kevin Heller