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Showing posts from October, 2010

Iraq-a-Whac-a-Mole and Generic TM's

Litigation against alleged wrongdoers online, particularly p2p web sites, has repeatedly been characterized as a game of Whac-A-Mole.  So has the war in Iraq, political campaigning, cybersquatting,  and more.  Speaking of the classic game, what is taking so long for a version of the game on the Wii?!  There is a live trademark on the term for computer and video games.  Like the other registered marks on the term, that one is owned by Bob’s Space Racers, Inc., the manufacturer of the arcade game and assignee of the "Whac-A-Mole" mark(s).  After reading another article about the RIAA's Whac-A-Mole litigation campaign against filesharing sites, I began to wonder whether it should start being referred to as a game of whac-a-mole.  In lawyer terms, I'm beginning to think that the trademark for Whac-A-Mole brand (video games, entertainment, etc.) has become generic and now serves as a reference to any evasive, repeated behavior by the same or similar entities. 

In trade…

The Blind Bystander Effect

The Bystander Effect is a name for the behavior of groups of people individually or collectively ignoring or choosing not to respond to a situation because each person assumes someone else will or already has.  Onlookers might not respond out of fear of the consequences or just not wanting to get involved.  The law (in the United States) even supports this response.  On day one of bar review, we were reminded of first year torts and that there's no legal duty to strangers.  There are exceptions, such as for certain pre-existing relationships, but generally a gold medal swimmer or anyone else is free to walk by a drowning child without diving in or calling for help.  The most famous example of the Bystander Effect is the murder of Kitty Genovese.  Thirty eight onlookers failed to call the police or react as Ms. Genovese was chased and stabbed to death in Queens in 1964.  As Malcolm Gladwell summarizes in The Tipping Point on page 28, “… the lesson is not that no one called despite …

The Steinbrenner Letters

Techdirt alerted me to two recent NY Times article about love letters written by former New York Yankees owner George Steinbrenner.  Rest in peace, Mr. Steinbrenner.  The first NY Times article describes the history of the letters and provides a copy of one of the them.  The second article discusses the effects of the first article and the Yankees' continued objection to their publication.  In short, 77 year old Mary Jane Schriner once dated Steinbrenner and recently shared a series of letters he wrote to her in 1949.  A writer contacted her about publishing a memoir containing the letters and they contacted the team, which claimed that copyright in the letters would be violated if the letters were published.  I’m not saying this just because I’m a Yankees fan, but the team is right.

Without marching through a fair use use analysis under copyright law or the free speech concerns of potentially barring publication of the newsworthy letters, the Times' original publicatio…

Innocent Infringers

I've been working through a laundry list of copyright cases from the past year that I haven't had a chance to dig into yet.  Today's choice was Maverick v. Harper and the "innocent infringer" defense. 17 U.S.C. 504(c)(2) gives courts discretion to reduce an award of statutory damages where "the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright..."  Section 402(d) bars the defense in situations where notice "appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access..."

In the case, Harper asserted that she thought posting files to a shared folder on a p2p network was tantamount to listening to music on an internet radio station.  For a high-schooler who presumably grew up a "digital native", this seems entirely reasonable.  In …

----book

Tonight I had the pleasure of watching a great program on CNBC, “Executive Vision: Leadership in Action – Technology”. The panel discussion spanned nearly every hot topic in technology, including cybersecurity, global development, jobs, U.S. and/versus foreign education, IP, broadband infrastructure and [you name it]. You can find out more about the show and the series here.

One statement struck me: “Social networking has become like air, you don’t notice it until it’s missing.”  I’m sure others have made the same or similar observations; this time it came from Nicholas Negroponte.  I agree with his statement for the most part but come at it from a slightly different angle. In late 2008, when Facebook became (IMHO) overrun by apps and had recently opened registration to anyone (not just those with a .edu or school-specific email), I decided I’d had enough. After watching Myspace become totally overrun by spammers, I feared the worst for Facebook.  I'm fine with opening tech…