Trademark

In a post from last week, I mentioned the warning letters the NFL has been sending to churches, claiming that they were infringing copyright by hosting Super Bowl parties. Something else that struck me as odd about the letters was the fairly arbitrary designation of 55 inches as the cutoff for an allowable TV size.

Yes, there’s a 55-inch specification in the Copyright Act, but that applies to non-dramatic musical works—something that, while it might apply to the halftime show (some years, there’s more drama than others, I suppose), doesn’t characterize a football game. The relevant part of the law (17 U.S.C. § 110(A)) says:

(A) except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless—

There’s a lot that’s interesting in the recent controversy over Hasbro and Mattel, joint owners of the Scrabble trademark, asking Facebook to remove the third-party application, Scrabulous. On the academic side of things, it’s fascinating to think about to what extent various aspects of board games are protectable by different areas of intellectual property law.

Alex, Sherwin and I will spending most of this week at the International Consumer Electronics Show, otherwise known as CES. We’ll be trying to see what are the cool new technologies and trends and to consider their policy implications. The show is massive, the biggest trade show in the world, with nearly three thousand exhibits and 150,000+ attendees taking up the entire Las Vegas Convention Center and Sands Expo and Convention Center, as well as parts of the Hilton, Renaissance, and Venetian hotels.

Yesterday, Gigi testified before the House IP Subcommittee on H.R. 4279, an IP enforcement bill that threatens to increase penalties for copyright infringement. We’ve got her written testimony here, as well as a press release here.

One of our biggest concerns, the disaggregation of damages, was echoed by a wide variety of groups, including law professors, libraries, and software and consumer electronics manufacturers. This clearly seemed to have an effect on many of the Subcommittee members, with even staunch supporters of the bill noting that this provision deserves revisiting and (hopefully) revision.

Late Wedesday (December 5, 2007), Representative John Conyers (D-MI), Chair of the House Judiciary Committee, introduced H.R. 4279, a bill designed to increase penalties for IP crimes. This is the officially-introduced version of the enforcement bill we’ve seen at least a couple of times before, and the companion of the recently-introduced S. 2317. Like those other bills, H.R. 4279 removes the registration requirement for criminal enforcement, allows higher statutory damages through disaggregation, and slaps together a slew of civil and criminal forfeiture provisions that require courts to confiscate computers and other devices from infringers.

TITLE: To enhance remedies for violations of intellectual property laws, and for other purposes.

The full text of this bill is available on Thomas. Follow discussion about it on OpenCongress.

Here’s a quick section-by-section breakdown (with commentary) of the provisions of the newly introduced IPEA by Sen. Leahy, S. 2317.

Section 1: The title of the bill

Section 2: This section allows the Attorney General to bring a civil cause action for conduct that would otherwise be criminal infringement of copyright under section 506 of Title 17. This language comes from the old PIRATE Act, and as before, we believe that is an inappropriate use of federal funds to enforce private rights of action—something that rarely occurs under other parts of the law, and at those times, typically as a “public good” (as opposed to the benefit of an individual, movie studio or record label). Here, you have the DOJ acting as a copyright holder’s private attorney.

2237 Rayburn House Office Building
Washington, DC

The House Judiciary Committee, Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing on: International Piracy: The Challenges of Protecting Intellectual Property in the 21st Century.

Please check the hearing information page for a witness list and testimony, as it is made available.

As Fox News and the rest of the conservative media/blog machine have happily crowed unto the skies, Google Ads dropped a set of ads from Senator Susan Collins (R-Me) critical of Moveon.org Collins is rnning for reelection, and apparently Moveon has now become the favorite bloody shirt to rouse the otherwise dispirited base. Apparently, Google informed Collins that because her ad used the trademark of someone else (here, Moveon.org, because these days everyone trademarks everything out of sheer self-defense), which Google bans under its advertising policy.

Recently, several tech blogs made note of the fact that some of the founding fathers were skeptical of intellectual property. What is so compelling about these quotes that tech blogs would turn their attention back two hundred years? A good guess is the sharp contrast of the founders’ views with the current atmosphere surrounding IP, in which accomplished authors must be reminded that intellectual property is different than real property, and (presumably) well-educated lawyers for major corporations assert that intellectual property crime is a more pressing problem than actual theft, fraud, or burglary. The same attitude is visible in the current effort to extend IP rights to fashion, which this blog has discussed before. As the quotes above make clear, that someone could “own” the idea of a polka dot shirt with a flower would not have jived with the founders.

Such meme-hoarding avarice even seems to be rubbing off on the small business community. Consider this article from the New York Times, about a restaurant entrepreneur who is suing her former chef for opening a restaurant that is similar to her’s. The article does not reveal precisely how similar the two restaurants are, so the suit may not be baseless - there are some rules against copying the appearance of a restaurant, and they are in place for good reasons. However, Rebecca Charles, the potentially wronged restaurateur in the article, isn’t mad for any of those reasons. Instead, her ire is due to the same misguided view that has infected the big content industry: that giving someone ownership in an idea is not a drastic step to be taken cautiously, and only when necessary. Rather, Ms. Charles seems to think that such ownership rights reflect a natural entitlement due to the first person with an idea to throw their hands up and say, credibly or not, “I thought of it first!”