Posted on July 31, 2008 in copyright, IP, Trademark by Brian RoweComments Off

The Trademark Blog, which is written by Martin Schwimmer a very internet literate TM lawyer, asked What Should IP Owners Do In A Scrabulous Situation?

This is a very important question and one that needs to be answered not just by lawyers but also by users. It is important to protect your marks on and offline, but not at the cost of the associated good will. Hasbro chose one of the worst options both from a business and PR perspective.  Hasbro saw that the unofficial Facebook app Scrabulous was very popular. Hasbro spent 6 months developing its’ own app and then when it launched it used legal threats to remove Scrabulous from Facebook.

Hasbro was attacked by hackers shortly after launching the official version and forcing Scrabulous offline.  To a digital native the reaction makes perfect sense.  Hasbro is punishing innovators that created a market online and likely increased the popularity of the game both online and offline. The innovators did extremely valuable market research while creating a community for Hasbro, and Hasbro is repaying them by quashing them in the process of monopolizing the market.

In a Web 2.0 world, one filled with fans that help you, you need to reward them not fight them for creating communities and new markets.

Here are my reactions to the question posted on The Trademark Blog:

Q: If the Agarwalla Brothers (the creators of Scrabulous) had approached Hasbro two years ago with a proposal for a FB version of Scrabble, what likely result?

A: Hasbro would have ignored them and possibly taken the idea while never giving them any credit. Have you tried sending Apple an idea, they send you back a lawyer drafted letter that looks like it comes from the mob. My understanding is that Apple eventually apologized, but once that PR damage is done it is too late.

Q: If Hasbro were to pay the Agarwalla Brothers millions, what likely result?
A: This is the right move hands down. You offer a buy out at a reasonable price.(it does not have to be millions) Then only if the infringing innovator is not reasonable you use the law as a last resort.

Q: If Hasbro had brought this action in January, 7 months prior to having its own version up and running, what likely result?
A: Hasbro would have lost a lot of user, but by waiting Hasbro is clearly trying to free ride off the innovators. This double standard of using fans then stepping on them only angers fans.

If you have comments join the conversation at The Trademark Blog

Posted on July 30, 2008 in Fair Use, HA, IP, Seattle by Brian RoweComments Off

When you believe in free speech you need to fight for it and that is what, a Seattle based political blog is doing. HA posted a short 39 second clip (with added comments) as part of a scathing post aimed at Washington Attorney General Rob McKenna and the Washington Association of Realtors (WAR). This clip is clearly fair use. The clip was not created with copyright in mind and copyright is being used to censor the free speech use.

Before I go into the 4 Fair Use factors Watch the clip yourself:

Posted on July 30, 2008 in civil disobedience, copyfight, copyright, Fair Use, Free Culture, free music, IP, music, Quote by Sarah DaviesComments Off

Before the free culture movement even existed:

Mockingbirds are the true artists of the bird kingdom. Which is to say, although they’re born with a song of their own, an innate riff that happens to be one of the most versatile of all ornithological expressions, mockingbirds aren’t content to merely play the hand that is dealt them. Like all artists, they are out to rearrange reality. Innovative, willful, daring, not bound by the rules to which others may blindly adhere, the mockingbird collects snatches of birdsong from this tree and that field, appropriates them, places them in new and unexpected contexts, recreates the world from the world. For example, a mockingbird in South Carolina was heard to bend the songs of thirty-two different kinds of birds into a ten-minute performance, a virtuoso display that served no practical purpose, falling, therefore, into the realm of pure art.

– Tom Robbins, Skinny Legs and All, 1990

Having read that, can you honestly feel that the law ought to ban outright artists like Girl Talk and sound advice? We are strangling the innovative, willful, daring mockingbirds of our time.

Crossposted to Civil Disobedient

Posted on July 29, 2008 in IP, ROI by Brian RoweComments Off

While rereading Public Interest’s amici brief (pdf) regarding the PTO’s proposed patent rules, from last December of 2007, I came across a nonprofit organization that I had not heard of – Research on Innovation (ROI).  The other signatures to the brief are heavy weights in the public interest field including Public Patent, Public Knowledge and Knowledge Ecology International.  ROI is a much smaller org but has a lot to offer the discussion on public interest and patents.  Here are a few details about ROI:

Website: Research on Innovation
Authors and Board Members: James Bessen, Michael J. Meurer
Blog: Technological Innovation and Intellectual Property (TIIP) Under CC-ND!
Topics: Patent law, Innovation
Post Frequency: Weekly
Comments: The content on both the ROI homepage and the blog TIIP are high quality and very relevant to the current state of patent reform. They have a clear mission to focus on Innovation with the public interest in mind. The only negative is that the site and blog are a little sparse on content, but when they add content it is worth reading.

Recent Post:

Patents as property II: Rethinking SW patents?

A Time to Rethink

Patents as property was also front and center in the thoughts of one judge on the Court of Appeals for the Federal Circuit, the main appellate court for patent disputes in the US. Senior Judge S. Jay Plager, speaking at a symposium at George Mason University, called for a “rethinking” of several aspects of patent law by returning to its origins in property law.

According to the BNA, Plager “called for a renewed focus on setting recognizable patent ownership boundaries and on strengthening the notice function that patents are intended to serve. Such a reevaluation might require a reassessment of whether software and business methods are patentable subject matter, Plager said. It might lead to limiting a patent’s scope to what was known at the time of the application filing, and to an abandonment the doctrine of equivalents as a basis for patent infringement liability.”

In addition to rethinking claim construction,

Plager said he regretted the unintended consequences of the decisions in State Street Bank and AT&T. Those rulings led to a flood of applications for software and business method patents, he noted. If we “rethink the breadth of patentable subject matter,” he said, we should ask whether these categories should be excluded from patent protection.

This new thinking is certainly encouraging. Let’s see how it develops.

- comment on this post directly at TIIP

The block quote alone is amazing and extremely important due to the subject matter and the authority of US. Senior Judge S. Jay Plager.  This is the type of thing that should be promoted by End Software Patents, rethinking subject matter for software patents and business methods is essential if we are to save the patent system.

Rating 3.5 out of 5: I, Brian Rowe, recommend checking out ROI and TIIP for anyone with interest in patents and public good.
Past Recommendations:

Posted on July 29, 2008 in IP by Brian RoweView Comments is working to build a free and open global intellectual property registry that allows users to publicly assert and identify their rights over a work. They are hiring a “geek-lawyer” type to help build the US Blog, translate the FAQ and reach out to the US market. The project supports CC licensing, and it’s definitely making important strides in authenticating creative works.

If I was not doing my last  year of full time law school next year, I would apply. This is a great opportunity to work with an international tech savvy company that is on the right side of the copyright. I met Mario and a few other members of the team at the Google Tech Summit, they were great! If you’re interested, details are available here.

This post was remixed from Tim Hwang‘s post on CC’s Blog.

Posted on July 28, 2008 in copyright, ORG by Brian RoweComments Off

ORG is a grassroots organization in the UK that fights to preserve your rights online. Here is their latest position on retroactive copyright extension for performance rights.

Open Rights Group – Copyright Extension from oreillygmt on Vimeo.

The video is simple and to the point. What I like most about ORG is that it is member driven. It is not just lawyers or academics leading a herd, it is members driving the fight for Access to Knowledge.

I wish the US had a similar member driven organization. EFF, Public Knowledge, Public Patent, Free Culture and CC are each great orgs, but none of them have strong coordinated action from members that is supported by a national infrastructure the way that that ACLU does.  FSF is the closest I can think of, but very they have a focused limited scope software.  This is a topic though for another post.  I strongly encourage people to check out ORG!

Posted on July 28, 2008 in IP, patents by Brian RoweComments Off

Some people might have noticed that on the EFF Wins Savage v. CAIR! Fair Use in Action
post the link to the decision downloaded a PDF of the judgment hosted on an external site that we have not mentioned in the past – JDSupra. We normally try to link to AltLaw due to their open access model. For documents not yet on AltLaw we have decided to try using JD Supra. Here is little more information about the service:

JD Supra is an online repository of legal documents – a community-based research tool that offers everyone free access to the law and its practitioners:

  • A community, in which members of the legal world post their court filings, decisions, and articles to a searchable database that is free for anyone to use.
  • A real-time news source, in which the media 1) has instant and simultaneous access to important court filings and decisions, and 2) can find legal experts easily.

The overall structure of the site along with an opportunity to reach a legal audience has made the site appealing.  Honestly, I have been a little wary of using the service.  The main funding model appears to be firm sponsorship and paying for links on your profile. It is not the ideal model for public interest.  This means that FFIP does not get a link back from the site without spending $450.  As a volunteer organization with no real budget, this is not possible.  I feel slightly bad contributing time and links to an org that does not reciprocate.  If they had an lower donation level for public service and educational outreach orgs, or an option to earn a link through posting a certain amount of high quality content, I would feel better about using the service.

On the positive side EFF is one of the site’s sponsors.  A good service with a supporter like EFF is worth trying even over minor objections.

Posted on July 27, 2008 in CC, Isummit, SL by Brian RoweComments Off

This years Isummit should be easy to follow and maybe even participate in from a far. With streaming media, Second Life simulcast, live blogging and interactive forums.  Here are the details abridged from the Isummit blog:

Live events:

This year, the opening session, keynote addresses and closing event will be streamed live through the iSummit website (look out for the video broadcast button coming soon). They will also be streamed into Second Life, with the highlight of Jimmy Wales’ keynote address, which will be streamed from the virtual world, to the audience in Sapporo. Here’s a list of streaming times:
30 July: GMT 00:00-01:30 GMT and GMT 07:00-08:00
31 July: GMT 01:00-02:00 and GMT 08:00-09:00
1 August: GMT 01:00-02:00 and GMT 05:40-06:20
This year we have an “official” live blogger covering certain sessions. He’ll be using Cover It Live, which allows you to not only track the details of what happens during each session, but also to leave comments and ask questions in the live blogging stream. If you’d like to participate, check out the sessions and times that our live blogger will be online, and how to participate here.

Asynchronous options:

  • iSummit blog will be updated at least twice a day with blog entries about various sessions.
  • iCommons wiki, where volunteers will be taking notes from the sessions and developing the Checklists on Openness.
  • Podcast that will feature interviews about the cultural and entertainment-related events.
  • Newsletter to the iCommons mailing list with samples of the most exciting coverage coming out of the event.
I am still looking for details on how to connect with the legal day online.
Posted on July 25, 2008 in EFF, Fair Use by Brian RoweView Comments

EFF has won another important free speech case this is great news. EFF is quickly becoming the ACLU of the online world.

The rest is from LawGeek,

Several months ago, radio personality Michael Savage sued the Council on American-Islamic Relations (CAIR) for copyright infringement (plus some RICO charges) because they rebroadcast just over four minutes from his radio show on their website in order to point out his use of anti-Muslim messaging, encourage advertiser boycotts, and raise awareness and money for CAIR’s activities. CAIR (represented by EFF and Tom Burke of DWT) moved to dismiss claiming among other things that the use of the clip was a fair use.

Today, Judge Illston of the Northern District of California dismissed the suit, agreeing that the use of the material for commentary and criticism was a classic fair use.

Specifically, Illston held:

The complaint affirmatively asserts that the purpose and character of [CAIR's] use of the limited excerpts from the radio show was to criticize publicly the anti-Muslim message of those excerpts. To comment on [Savage's] statements without reference or citation to them would not only render [CAIR's] criticism less reliable, but be unfair to [Savage]. Further, it was not unreasonable for defendants to provide the actual audio excerpts, since they reaffirmed the authenticity of the criticized statements and provided the audience with the tone and manner in which plaintiff made the statements.

Check out the opinion here

Thanks EFF!

Previous posts on this case:

Copyright v. Free Speech: Savage v. CAIR (fair use analysis)

EFF and DWT defend CAIR against Michael Savage