Second Life name: Juris Amat
Email address: Legal@vipo-online.org

Basic topics:
Berne Convention, RAM copying theory, DMCA, domestic and international trademarks.

Advanced topics:
Object permissions: Object permissions allow users to control the use of virtual objects through Digital Rights Management (DRM).

Question:
Do object permissions grant other users a limited license to the work?
Answer:
Most likely yes with regard to those allowed permissions, but note that object permissions could be supplanted with a license to restricts use beyond the permissions.

Take Away: Register your trademarks!

This was a good presentation in a typical CLE style with a lot of practical advice. The post mortem devolved a bit into a creator v. contractor rights debate. If you are interested in work for hire and copyright, check out U.S. Supreme Court. Commun. for Non-Violence v. Reid, 490 U.S. 730 (1989).

Speaker Bio:

Tamiko Franklin is the Director of International Legal Services for Matijevich Law Offices, where she develops the transactional intellectual property practice and coordinates IP related corporate and telecommunications services in addition to supervising client portfolios and a network of cooperating attorneys throughout eastern Europe. She earned her Juris Doctor and Master of Intellectual Property degrees from Franklin Pierce Law Center.

Dan Laster

Associate Professor of Law
University of Washington

Laster spoke on several cases from a practical perspective here the two that I think are most interesting.

Genericide
The Freecycle Network, Inc. v. Oey, — F.3d —-, 2007 WL 2781902 (9th Cir. September 26, 2007) The defendant was a former member of the Freecycle network and is now trying to kill the potential mark through using it in a generic way. The District Court granted an injunction against the defendant stopping him from engaging in acts against the mark. The appeals court vacating the ruling stating that their is no trademark action for disparagement under the Lanham Act. The court had the opportunity to avoid the first amendment issue.

Keyword advertising- can Google sell keywords of someone else trademark? The second circuit says you must have use in commerce. Merck & C. v. Mediplan Health Consulting Inc.(2nd) draws the analogy that keyword advertising is merely product placement. 7th circuit disagrees with the 2nd and views keywords as use in commerce. In the 9th circuit things are up in the air.

I also recommend Burnett v. Century Fox Film Corp. 491 F. Supp. 2d 962(2007) for parody rights.

Kate Spelman

Copyright Year In Review

Spelman recommends Be Kind Rewind, not as a good movie but to understand the public opinion on copyright. “We need to stop using piracy as a term.”

Takedown notices can give minimum contacts. (Dudnikov v. Chalk & Vermillion 2008) This is a huge development as it can add a large risk to sending takedown notices.

Gladwell Gov’t Servs, Inc. v. Country of Marin No. (9th Cir. January 28, 2008) – This case reads the work for hire provisions as very limited and does not extend work for hire to clause that merely state work for hire in contracts.

Cases to watch:

Greenberg v. NAt’l Geographic Soc’y, et al., 488 F.3d 1331 (11th Cir. 2007) Does copyright include the right to organize? This case was just argued last week.

Jacobsen v. Katzer (N.D. Cal. August 17, 2007) Defendant tried to patent GPL License derivative work. Damages were limited to contract and copyright has been forfeited under GPL. This is a real bad outcome for the GPL as it removes the teeth of the copyright act from the GPL limiting enforcement.

Perfect 10 v. Google 416 F.Supp.2d 828 (C.D. Cal 2006) – miniaturization is Fair Use, this case shows how fair use is being asked to do too much in the digital age and how we need other exceptions to copyright.

On the Negative side: This is the first conference I have been to in a long time with only 1 power outlet per 60 people and very bad wifi (part of the room has no wifi). Coming from a techy background I forget sometimes that computers are not the norm in all professions.

13th Annual Intellectual Property Institute
Seattle University CLE on Software and Piracy
Washington State Patent Law Association CLE
Music in the New Millennium

I will be live blogging from both the 13th Annual IP Institute and the Music for the New Millennium event. I will be in New Orleans for the 2009 Nonprofit Technology Conference for the other two. If anyone is interested in attending and representing the FFIP / Free Culture point of view and would like to blog about it please contact me (Brian at Freedomforip.org). I will also be adding these events to the FFIP Google calendar (Along with the NOLA conference).

13th Annual Intellectual Property Institute

Date: March 7th
Event: IP Conference
Location: WA Convention Center
Cost: $225 GA, $100 for first 20 students

Speakers:
20 plus Highlights include:
Joseph Miller, Lewis and of Clark Law, speaking on recent supreme court cases
Bruce E.H. Johnson, Davis Wright Tremaine, speaking on Fair Use and the First Amendment
There is even a whole panel on Second Life and Online Liability!

The Intersection of Intellectual Property, Patent Law, and Software Piracy

Date: March 14th
Event: Software CLE
Location: Seattle University Law School

Speakers:
Judge James P. Donohue, Magistrate Judge, Western District of Washington
Katheryn Frierson, Assistant U.S. Attorney, Criminal Division, U.S. Attorney’s Office, Western District of Washington
William J. Harmon, Senior Attorney, Microsoft Corporation, Redmond, WA
Michael D. Stein, Partner-in-charge, Woodcock Washburn, Seattle, WA

Register Online for the SU Software Piracy CLE

Washington State Patent Law Association CLE

Date: March 19th
Event: Lunch CLE on Patents
Location: Washington Athletic Club, First Floor

Schedule
Registration 11:30 a.m.
WSPLA Business 11:55 a.m. – Noon (Please note early start)
Program and Lunch: Noon – 1:30 p.m. (Please note due to volume of material to cover, the Program will begin at noon sharp)

Cost: WSPLA Members $55 Students $35 Others: $75
Panelists:
-Dale R. Cook, Intellectual Ventures
-Scott R. Hayden, Amazon.com
-Jennifer K. Johnson, Zymogenetics
-Brian C. Park, Dorsey & Whitney

Cases Discussed:
SanDisk Corp. v. STMicroelectronics, Inc. (Federal Circuit repudiates “reasonable apprehension of suit” standard for patent declaratory judgment actions and might allow DJ actions in response to any invitation to license)
In re Comisky (Method claims that depend entirely on use of mental processes do not contain patentable subject matter)
In re Nuijten (Federal Circuit says electrical signal not a “manufacture” and therefore not patentable subject matter)
In re Seagate (Federal Circuit replaces duty of due care standard for avoiding enhanced damages with “objective recklessness” standard)
KSR Intl v. Teleflex (Supreme Court rejects rigid application of Federal Circuit’s “teaching, suggestion or motivation” test for obviousness)

Music in the New Millennium

Date: March 28th
Event: Future of Music panel talk
Location: Davis Wright Tremaine LLP, 1201 Third Ave, 22nd Floor Seattle Wa
Cost: Suggested contribution of $15 (law students are free).

Speakers:
Dave Dederer Lead singer of Presidents of the United States of America and VP of Content for Melodeo
Robert Sullivan, Music attorney for Johnny Cash, Randy Travis
Dan Sheeran, SVP RealNetworks
Online Registration

Jessica Litman:

We’re asking fair use to do too much. If we think that unauthorized use of works is always infringing, we end up relying on fair use to get us out of any problems that arise. It’s hard for fair use to do what we ask it without expanding it, but if we want to confine its boundaries, we should redefine its tasks. The problem is not §107 but §106 – an essentially nonstatutory expansion, since Congress hasn’t revisited the key issues in 30 years, but judicial and business understandings of the rights have expanded.

Current fair use doctrine is not optimized for Google Book Search, no matter how you want it to turn out, or for individual personal consumptive uses, though it is optimized for The Wind Done Gone.

Note from Brian Rowe: Parody has strong protection under fair use, but that protection is not mentioned in the copyright act. This is part of what makes the law confusing to those who only read the text of the law without examining the relevant case law

“We need to reexamine our complicity in the sloppy and unbounded expansion of §106 into an unbounded use right. The Copyright Act should be understand to grant rights to readers etc., not just copyright owners and their assignees. “ (Emphasis mine)

Note from Brian Rowe: *Cheer* These are the types of changes we need to restore balance to the copyright act. Rights to use, share and remix. With life plus 70 we need proactive use rights sooner rather than later.

Tim Wu:

Tolerated use: slightly different from fair use… technical infringements of copyright law that are not subject to enforcement action, but are tolerated. [Y]ou look at these uses and say “maybe fair, maybe infringing.”
Example: Lostpedia, a fan-created encyclopedia for Lost. The site is notable for sheer volume: 3 million changes. The details accumulated for one character, Kate Austen, involve a huge amount of work – and her entry is longer than the entries of most presidential candidates on Wikipedia. There are pages and pages of theories about Lost as well. And it would be hard to analyze Lostpedia for fair use – pictures seem possibly infringing, but there’s commentary that seems like traditional fair use. There are also transcripts for every show. Almost everyone would agree the transcript is a violation of the reproduction right of the underlying script. Yet there’s been no legal action against this site. Every once in a while, the show actually advertises on this site. Is this an implied license? Probably not, but definitely a tolerated use.
Another example: Guyz Nite’s video celebrating Die Hard. The lawyers for the studio sent a takedown notice, but then the marketing department wanted to pay Guyz Nite to put it back up because it was good promotion; the band says it has no formal license for the footage.

Note from Brian Rowe: Lawyers are living in yesterday while marketers are living in tomorrow. Lawyers too often do not get web 2.0.

Three ways in which the law is or will be adapting to these mass quantities.
(1) The rise of systems of opt-in copyright. To activate statutory rights, copyright owners have to give some type of notice to the putative infringer before that person actually becomes liable in some way.

Note from Rebecca Tushnet: What I have called informal formalities

It’s like the exceptions for certain public performances that exist in the statute and allow nonprofit performances so long as the copyright owner doesn’t object. Section 512 is like that, pending the outcome of the Viacom case. Orphan works proposal: flip the duty to object to the rights owner. Google Book Search also has that pattern, where Google wants an opt-out system.

Note from Rebecca Tushnet: Wu suggests teaching a course called “Google,” which I thought about too.

His purpose here is not normative, but descriptive: the law seems to be dealing with these developments by establishing opt-in. The traditional answer to mass violations of copyrights, or claimed violations, was compulsory licensing. The alternative emerging solution to transactions costs is opt-in.
(2) In reaction to something like Lostpedia, there may be more pressure on interpretation of the adaptation right and perhaps a narrowing. There are two lines of cases, mostly unreconciled, about what counts as an adaptation. The Seventh Circuit has left more white space, in Litman’s terms – not everything you do with a work makes it a derivative work. A Beanie Baby guide is not a derivative work of a Beanie Baby.
(3) Perhaps companies like ABC want to encourage things like Lostpedia. They might consider clear No Action Policies about what they’re not going to act on. This is different from licensing because such policies could change. If they think it’s good for business – which Wu thinks it probably is – they could make the rules clearer. Since people are doing it anyway, that might not be all that important, but perhaps signaling makes a difference.

Randy Picker:

There is no fair use right! It’s important to distinguish use and access rights. We understand the rules for owning a piece of paper. But composing a poem on a piece of paper doesn’t change the ownership regime for the piece of paper. Creating the poem doesn’t create an access right to it, and it’s hard to get to a use right without an access right.

Note from Rebecca Tushnet: I’m pretty sure I disagree, at least as to works that have been voluntarily disclosed. Wendy Gordon wrote about this extensively in her Yale piece. Fair use doesn’t trump otherwise applicable law. The statute merely says that a fair use isn’t an infringement; other laws may apply, like obscenity.

It used to be true that disclosing a work necessarily involved surrendering control. But it’s now possible to distribute works digitally and still exercise control at a distance.

Note from Brian Rowe: he is talking about DRM, and he is wrong on two counts: DRM fails both technically, you can always hack it, and philosophically, people hate it. DRM only causes rancor in fans

So the question is what copyrighted work “locks” we are going to respect.
The ProCD case allows the contract to be enforced. DRM is another option. Adding it on to an existing medium, like CDs, generally failed, but integrating it into a new product, as with DVDs and iTunes, has generally been successful.

Note from Brian Rowe: I strongly disagree, see my DRM posts for more information.

The importance of incremental investment in copyrighted works: publisher won’t do the Mandarin translation until it’s seen whether the English version is a success. You get market feedback on the value of the work before you make more investments. Authors are overoptimistic about the commercial appeal of their works.

Note from Brian Rowe: I do not think I agree with any of Picker’s points.

Unlike the rest of this blog, which is in the public domain, this post is under a Creative Commons Attribution 2.5 License. The original post was written by Rebecca Tushnet on 43(B)log. Edits by Brian Rowe including moving links away from FindLaw for ethical reasons.

Last year, before becoming a student at Seattle University, I attended the Intellectual Property Law Society (IPLS) sponsored CLE on the intersection of Antitrust and IP. I was very impressed by the panel of speakers that included Daniel Ravicher of Public Patent and Joe Miller of Lewis and Clark’s Law School who challenged the assumptions put forward by many of the other pro-corporate-interest speakers by adding a voice for Social Justice that included alternative views of IP and the social harms of some of the policies being discussed.

This year I attended the IPLS sponsored CLE on video games and IP law, and was disappointed that the CLE did not allocate time to social justice issues related to the topic at hand. The CLE covered several topics that have a potential social justice impact such as user-owned IP in massive multilayer online games, the rating of video games, and file-sharing via peer to peer networks. I was hopping to see at least one speaker address these issues from a user’s perspective.

Unfortunately, the CLE not only ignored social justice issues but also artificially portrayed one on the most influential online communities for social justice movements, Second Life. Second Life was painted as a shallow chat and cybersex service that has squandered its IP rights by allowing its users to retain copyright on everything they create. This depiction failed to mention of some of the extremely positive aspects of Second Life. Second Life has become an online community for both academics and nonprofits who wish to reach a wider audience. This last year I attended a lecture in Second Life sponsored by Harvard’s Law School as part of their Law in the Court of Public Opinion extensions class. The lecture was free and anyone could register and participate regardless economic standing or geographic location.

On the nonprofit front, Second Life has become a gathering place for organization like the Electronic Frontier Foundation and Creative Commons who advocate for users rights online and alternatives to traditional copyright. Their events last year included an interview with the highly esteemed Seventh Circuit Judge Richard Posner that respectfully challenged some of his proposition in his recent book “Not a Suicide Pact : The Constitution in a Time of National Emergency”. Organizations like UNICEF and Global Kids have reached out to users in Teen Second Life as a vehicle to involve teens in community outreach activism on global and local issues.

I hope next year’s CLE on IP returns to the thoughtful dialogue about social justice that brought me to SU. To help realize this goal I will be starting a chapter of the socially conscious IP student organization Free Culture. If you have interest in helping balance the prospective on IP and Social Justice that Seattle University puts forward, please feel free to contact me, roweb@Seattleu.edu or Brian@freedomforip.org.

Thank you,

Brian Rowe
1L Seattle University
FreedomforIP.org

PS this Letter is in the Public Domain, No copyright has been reserved.

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