Jessica Litman (jessicalitman) Wed 19 Sep 01 19:44
Hi Wendy. I'm normally a committed distributor of gloom and doom, but I worry less than you that the copyright lobbies will use this as an opportunity to slide a new law past Congress. For one thing, Congress really has taken copyright and other domestic initiatives off the table temporarily while it deals with the emergency. The same committees in Congress that handle copyright have jurisdiction over the Justice Department, the FBI, and immigration, so they're keeping busy. My other reason is that I don't think the copyright lobbies *need* to operate by stealth -- Congress is normally delighted to cooperate. Right now, I'm more worried that someone who isn't a copyright lobby will use national security concerns to persuade Congress to pass a law that's analogous to Senator Hollings' "Security Systems Standards and Certification Act" (see # 22), but recast to facilitate law enforcement activities, and then we'll be stuck with it.
No "punch the monkey" banner ads. (vard) Thu 20 Sep 01 05:48
I just went back to #22 and took another look at the text of the bill Sen. Hollings was said to be planning to introduce. Even in light of the last nine or ten days, it is still horrifying. Is it commonplace for a law to spell out so plainly that its purpose is to facilitate the negotiations of two groups of private parties with not so much as lip service to the public interest? (And that throwaway about time-shifting on your VCR does not rise to the level to any expression of concern about the public interest as such.)
Jessica Litman (jessicalitman) Thu 20 Sep 01 06:07
It has become much more common with copyright and communications laws in the last ten years. Congress would prefer that the industry groups resolve it among themselves. Industry groups need an antitrust exemption to do so, so Congress writes one right into the statute. (The antitrust exemption isn't merely formal; I'd argue that the purpose as well as the effect of most inter-industry-negotiated regulation is a restraint of trade.) Meanwhile, the interests who get seats at the table are named in the statute and outsiders (consumer groups; promoters of open source software and other competing technologies) don't get chairs.
No "punch the monkey" banner ads. (vard) Thu 20 Sep 01 12:42
Jessica, this is all so discouraging. Are there really no potentially responsive pressure points in this process?
Jessica Litman (jessicalitman) Thu 20 Sep 01 15:37
Of course there are hopeful pressure points. One of the most important is press and media coverage. Lots of journalists in this country appreciate the problem, and they've begun to persuade their editors that there's a story here. The more publicity these backroom deals get, the bigger the PR problem for the industries making the deals and the politicians enacting them. Even people who don't care much about the underlying copyright and civil liberties issues tend to get upset about the process of letting Disney and Sony decide for us whether we can make fair use.
No "punch the monkey" banner ads. (vard) Thu 20 Sep 01 16:27
If you had a one-page ad in the NYT and USA Today, and you wanted to convince ordinary citizens that they had an important personal stake in fair use and related issues, even though they had possibly never given much thought to the subject, what would you say?
Jessica Litman (jessicalitman) Thu 20 Sep 01 19:42
I think that's a question I'd like to ask the people here. What could we say that would be salient to people who assume that copyright laws protect authors, allow the public great freedom to make personal or noncommercial uses, and burden only pirates? What could we say that might persuade people who don't much think about copyright law at all?
Reporting 'accounting irregularities' (thansen) Fri 21 Sep 01 02:26
I just discovered this discussion. Very stimulating reading. I'm not particularly involved in the area professionally but it has been kind of a hobby of mine for a dozen years or so. I am looking forward to reading "Digital Copyright". I don't have an image for the perfect "your brain on drugs' ad that will turn America around on this issue. Wish I did. But I do think that the point where we went wrong stems from the Chicago School Law and Economics doctrines. The global reach of the idea that justice will be served if you assign property rights and step back has to be addressed. My own opinion is that intellectual property as a legal construction (as opposed to trade secrets which go back as long there has been trade) is pretty much about monopoly as a tool for generating capital. In the American context anyway (I am have heard various arguments about the causes and effects of the European moral rights doctrine) the right of the creator to the fruits of her labors sure doesn't seem to have been anything more than an argument of convenience. That said the rights of the artist has certainly been part of the rhetoric from the start. Mark Twain trying to control the publication of Tom Sawyer and so on. So, the successful ad will address the question of whether Mark Twain gets his royalties. But I think it also must somehow suggest that there is a community benefit that must be protected from the property rights absolutists.
Bob 'rab' Bickford (rab) Fri 21 Sep 01 11:29
I think that #58 reveals a deep misunderstanding of how property rights figure in all of this. What we have is a situation where the rights to intellectual property have been abused, displaced, and manipulated to the great advantage of corporate media and to the great detriment of both authors and the public. We need to rebalance things, and we can't do that by foolishly attacking the property rights paradigm.
No "punch the monkey" banner ads. (vard) Fri 21 Sep 01 12:26
Meanwhile, I wanted to share this tidbit I picked up in biz: Topic 197 [biz]: Microsoft Antitrust Litigation, continued #855 of 858: However, nothing the details can only be obtained (biscuit) Fr i Sep 21 '01 (11:26) 8 lines Here's one way to try influencing public opinion: http://slashdot.org/articles/01/09/21/1438251.shtml According to this tidbit, the FrontPage 2002 license reads in part: "You may not use the Software in connection with any site that disparages Microsoft, MSN, MSNBC, Expedia, or their products or services..." Topic 197 [biz]: Microsoft Antitrust Litigation, continued #856 of 858: quack quack QUACK QUACK (jstraw) Fri Sep 21 '01 (11:27) 1 line <sprays diet coke all over monitor> Topic 197 [biz]: Microsoft Antitrust Litigation, continued #857 of 858: Get your free lobotomy here (mthomas) Fri Sep 21 '01 (11:40) 5 lines "You may not use the Software in connection with any site that disparages Microsoft, MSN, MSNBC, Expedia, or their products or services, infringe any intellectual property or other rights of these parties, violate any state, federal or international law, or promote racism, hatred or pornography." Topic 197 [biz]: Microsoft Antitrust Litigation, continued #858 of 858: quack quack QUACK QUACK (jstraw) Fri Sep 21 '01 (12:02) 3 lines wow enforcable?
Bob 'rab' Bickford (rab) Fri 21 Sep 01 14:46
Good grief, what idiots wrote *that*??! I hope whoever they are, they get slapped down really hard for that bit of stupidity.
Jef Poskanzer (jef) Fri 21 Sep 01 14:47
Why is anyone surprised that a convicted criminal company does bad things in more than one area?
Jessica Litman (jessicalitman) Fri 21 Sep 01 15:55
Mr. Poskanzer, I'm delighted to meet you. I've been using your acme.com website as an example in my trademarks class for five years. Are license terms like this one enforceable? Maybe yes, although I'm not aware of any court that has yet enforced one. In the few states that have adopted UCITA, my understanding is that they may well be. The anti-circumvention provisions of the DMCA add another wrinkle -- the argument is made that the license terms are part and parcel of the access-protection that prevents use of the program until you click "I agree", and that therefore violating any term of the license agreement is illegal circumvention of an access protection device. I would hope that a court faced with a lawsuit invoking this term would find a way to refuse to enforce it. Still, as we know, threatening a lawsuit works exceptionally well, even if the suit is never actually filed.
Jef Poskanzer (jef) Fri 21 Sep 01 16:21
I hope acme.com is a *good* example!
Jessica Litman (jessicalitman) Fri 21 Sep 01 17:40
It's an excellent example!
Linda Castellani (castle) Sat 22 Sep 01 00:20
Could you say more about that, since I'm not familiar with the site or how it could be used as an example for trademarks, Jessica?
Jessica Litman (jessicalitman) Sat 22 Sep 01 06:53
Jessica Litman (jessicalitman) Sat 22 Sep 01 06:54
Jessica Litman (jessicalitman) Sat 22 Sep 01 07:09
I apologize for scribbling my responses 67 & 68. I'm having technical problems with the interface: my responses come back duplicated and garbled. What I said was this: I had read Jef's question to ask, among other things, whether I'd been telling my students that he was courting trouble under the trademark law. So I answered his question the way I did mostly to tease him. In fact, I waited a decent interval and then sent him a message telling him that no, I didn't. Jef registered acme.com back in 1991, when folks were registering domain names just because they liked them. (He's a fan of Warner Brothers cartoons.) He uses it as a personal home-page, and has over the years added some material related to his freelance business. In the mid-1990s, trademark owners discovered domain name space, felt they were entitled to claim it as their own, and staged an infamous and mostly successful takeover campaign. My students tend to come to the issue with the conviction that trademark owners should be able to do business from a site at www-dot-trademark-dot-com, and should moreover be able to oust whoever got there first. My job is to change their minds about that. Asking them to articulate why Acme plate glass or Warner Brothers ought to be able to kick Jef off of acme.com is a useful step in that process.
Linda Castellani (castle) Sat 22 Sep 01 16:28
Ah. Has Warner Brothers attempted to give Jef the boot?
No "punch the monkey" banner ads. (vard) Sat 22 Sep 01 18:56
That is a good question. Thinking about it, I guess my view tends to be that if the most famous use of a wordmark is in fiction of some kind (i.e. Road Runner cartoons), particularly if the word is in the dictionary, it is not exactly the same as trying to register "www.adidas.com" for example (I don't use nike.com as an example because Nike has historic and mythological meanings).
Jef Poskanzer (jef) Sat 22 Sep 01 19:21
Warner has attempted to buy acme.com twice, but have never attempted a takeover. Since they copied the use of Acme as a mail-order catalog mark from Sears Roebuck, their claim on it would be pretty dubious. I actually agree that trademark owners ought to automatically get a corresponding domain name. I just don't agree that <trademark>.com is that name. The domain name space should have been sliced up into one more level of distinction. Instead of distributing xxx.com names directly, those second-level names should have been reserved for subject-specific second-level registrars. Companies could then go to them for third-level names. This would have left a lot more room for holders of the same mark in different business areas to all get their own domain names. There's some indication in the early domain-naming RFCs that this was 'the original intent of the founders', but unfortunately no one got around to implementing it before the explosion in name registration, and then it was too late. Nevertheless I have been doing my own little part to advance this view, by giving away third-level name registrations under acme.com. Any Acme business is welcome to have an xxx.acme.com name free of charge.
Jessica Litman (jessicalitman) Sat 22 Sep 01 20:05
I expect that part of the problem is that trademark owners often believe their marks to be more distinctive and famous than they actually are. A couple years ago, for example, the company that makes "White House" brand apple juice went after Dan Parisi, who operates a sexually explict site at whitehouse.com, arguing that anyone who visited whitehouse.com was, of course, looking for the company that makes the famous "White House" brand apple juice.
Mike Godwin (mnemonic) Mon 24 Sep 01 06:30
In the first wave of reverse domain-name hijacking, I was working for EFF, and I would get calls from many people, every day, who wanted help defending their possession of a domain name against a trademark holder who wanted to either force the sale of the domain name to it or was threatening a lawsuit to compel the turning over of the domain name. Often, the person holding the domain name had an excellent case for keeping it, but no money to speak of, which meant he couldn't afford to show up in court to make that excellent case. In such cases, my advice often had to be "Accept their first offer." At least that way, the domain-name holder might get something out of losing the domain name-- if he was sued, and the trademark holder had a colorable case, the trademark holder would win and the domain-name holder would end up with nothing. Of course, now the Cybersquatting Act has been passed, with the perverse consequence that a domain-name holder must not even offer to sell the domain name to the trademark holder -- that in itself is evidence of cybersquatting, supposedly!
Amazon.com sales ranking: 1,304,455 (wendyg) Mon 24 Sep 01 16:48
It seems to be turning out that bad copyrighnbt law in the wake of recent events is the least of our troubles; it seems as though every piece of bad law we've fought against on civil liberties grounds for the last ten years is being dusted off and scheduled for an attempted ramming thorugh while people are still in shock. wg
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