Reason: How would you assess the accomplishments of EFF so far?

Barlow: Every existing power relation is up for renewal with cyberspace, and it was only natural there would be an awful lot of fracas where cyberspace met the physical world. EFF has been the primary mediator on that border. We have been very successful at protecting against excessive government encroachment into the virtual world.

Copyright and intellectual property are the most important issues now. If you don’t have something that assures fair use, then you don’t have a free society. If all ideas have to be bought, then you have an intellectually regressive system that will assure you have a highly knowledgeable elite and an ignorant mass.

Reason: Is it your goal to annihilate intellectual property?

Barlow: Let me differentiate my own view from ex cathedra EFF. I personally think intellectual property is an oxymoron. Physical objects have a completely different natural economy than intellectual goods. It’s a tricky thing to try to own something that remains in your possession even after you give it to many others.

Barlow’s fiery rhetoric has been a strong inspiration for both my and Sarah’s activism in copyright and patent reform.

PS: If you have not read A Declaration of the Independence of Cyberspace take a minute to.

“Piracy versus business is just a false opposition. In the end it is just a question of business becomes piracy and piracy becomes business” – James King
The slides form the presentation are also great! “When I grow up I will Eat Your Lunch!”

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

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.

Copyfight: This is a team blog with some impressive names in copyright law including Donna Wentworth of the Berkman Center and Wendy Seltzer of of Northeastern University School of Law. The articles are a bit on the academic side, but very well researched and cited. The only downside is that the authors seem to post in cycles and I can not tell which authors are still active or have gone elsewhere to blog.