Blogging Hiatus

I have recently received a job with the judiciary in Texas.  Until I discuss the possibility of continuing to blog on selected topics with my supervisor, I’m afraid that I’ll be on a hiatus.

All Apple, all the time

From Gizmodo, this excellent post summarizing all of Apple Computer’s major legal IP battles (including the trademark battle with Apple Records, the Beatles’ record label and the resulting “sosumi” alert sound, the patent battle with Creative over the iPod’s nesting menus system, the devastating copyright battle with Microsoft, and the current IP battle with Psystar over Psystar’s Mac clones and the installation of Mac OS X on non-Apple hardware) and their outcomes.

A company never afraid of a good IP fight, either as a plaintiff or defendant

As a (former?) Mac Addict, I do bask in the glow of the amazing creativity that Apple, particularly when led by Mr. Jobs, has managed to emit.  As an IP attorney, I would have loved to have been involved with many of these disputes (particularly the trademark battles–APPLE itself is a somewhat tough brand, and they’ve done a good job protecting it but not going over the top by suing, say, Applebees because Apple Computer serves food in its employee dining room), but I have to recognize that it is still like any other business, and sometimes it may go a bit too far to protect its awesome ideas (at generally-above-market-prices).

Fewer posts today

I am participating in a 50 hour trivia marathon sponsored by Lawrence University.

What it takes to be a successful trademark blogger…

While I put my computer away yesterday, enjoying the magnificent inauguration and subsequent celebrations, John Welch was busy blogging about a recent decision of the Trademark Trial and Appeal board, denying an opposition brought by Tootsie Roll for for failure to establish priority. And instead of also enjoying the day, Ryan Gile, a/k/a Las Vegas Trademark Attorney, can only think about MISTER FLUFFY instead of the momentus events taking place.

As cool as MISTER FLUFFY is, I think I’m glad I enjoyed the day.

Blogging Haitus

No posts this morning. It’s time for all of us to enjoy this tremendous occasion. In any “standard” inauguration, it’s still an awesome occasion–the peaceful transition of power in the most powerful nation in the world. This year, it is simply mind-blowing.

Pirates of the World – Copy & Unite!

From this article at TorrentFreak:

Ung Pirat,* or ‘Young Pirate’, is the youth organization associated with the Swedish pirate party. Yesterday it was a big day for the group, getting 1,325,744 Swedish Krona (Approx €121,900, or $161,700 US) from the national board for youth affairs. The amount is based on a membership count of around 1280 members, but with current membership of around 4,872, next years amount should be even greater.

The national board for youth affairs (Ungdomstyrelsen) awards money to organizations, in order to ensure that they have access in influence, to promote the next generation of politicians; indeed possibly the current generation. At least two of the board members of Ung Pirat are listed on the Pirate Party’s list of candidates for June’s EU elections.

[…]

UP, at just over two years old, has seen a fantastic growth rate. It is now the third biggest political youth organization in Sweden, behind those of the Moderate and Social Democrat parties, and ahead of the Christian Democrats – all parties with representatives in the Swedish Parliament.

Arrg Maitey! Vote fer me an' download all the Flo-Rida ya can muster!

Per Nilsson recognized this as well, saying, “It is positive that the organization in a short time has managed to build a large nation-wide activities on issues involving many young people.” With this money and constantly growing support, it’s quite likely that come the next election, the Pirate Party will be voted into parliament.

“The growth of the Young Pirates in Sweden heralds the coming of a new dimension in European politics,” Ung Pirat’s Mattias Bjärnemalm told TorrentFreak, “The communication revolution has made the life of the younger generations into something altogether different from how their parents grew up, and now that cultural change will alter the very core today’s political landscape.”

What an interesting idea.  People who are upset with a country’s copyright rules actually organizing to take political action to change them.  Regardless of what you think about the RIAA’s enorcement efforts, whether copyright law (or the penalties for infringement) should be strengthened or relaxed, or whether you have “new media” ideas about how copyright should be modified for the “Mixing” generation, what’s actually fairly easy to see is that you can affect political change if you have the will.

Also an intersting idea: The government helps support minority political parties to grow if they show a serious and large enough base. I think both Democrats and Republicans would be quaking in fear of that prospect in the U.S.

* Too bad their website is only in Swedish.

No Doi award– no qualified immunity when principal demanded removal of “Team Avery” T-shirts

From the Student Press Law Center:

A U.S. District Court judge ruled Thursday that a student had not clearly established her First Amendment right to criticize her principal in an off-campus blog that used coarse language, denying the student a trial on her claim.

[…]

Doninger also filed a First Amendment claim against Niehoff [the principal] for making students who opposed Doninger’s removal from office take off T-shirts that said “Team Avery” while in an assembly where student candidates gave speeches. In that count, Kravitz said the Tinker standard applied, and that the administrators were not protected by qualified immunity in that instance. The administrators argued that because the speech involved T-shirts, not armbands as in Tinker, that it was not clearly a Tinker case, and therefore, qualified immunity should apply.

“None of these distinctions convinces the Court that the right of students to engage in non-offensive, non-disruptive speech on school property was not clearly established,” Kravitz’s opinion said.

No doi. This case is fairly interesting, and got a trip up to the Second Circuit Court of Appeals on the student’s preliminary in junction motion.  It also got a lot of attention in the blogosphere.

Why?  Because the kid called her superintendent [edited; the previous edition of this post incorrectly reported that the comment was targeted at a principal] a “douchebag” on a livejournal post.

From the few facts I could glean from this most recent opinion (from the Student Press Law Center in PDF form), Ms. Doninger apparently had a disagreement with the superintendent [editd from: one of the principals] from her school regarding a popular school battle of the bands called “Jamfest.”  In disgust, Doninger posted a blog entry on livejournal:

jamfest.

jamfest is cancelled due to douchebags in central office. here is an email that we sent out to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. anddd..here is the letter we sent out to parents.

According to facts recited in the opinion [edit from Apparently], Jamfest was not canceled, but the administrators had decided that it would either occur in the lunchroom (acoustic only) or that it would have to be rescheduled for the auditorium.  And I guess they had a heckuva time dealing with angry students and parents once this “misinformation” was disseminated.  Thus, as a sanction to Doninger, they (a) refused to allow her to run for  reelection to class secretary [edit from run for class office], and (b) at an assembly where students went to listen to speeches for class office and/or vote, they prohibited friends of Doninger’s from wearing “Team Avery” T-shirts “in silent protest” (they did, however, allow Doninger to wear a T-shirt entitled “R.I.P. Democracy.”

Doninger sued for violations of her First Amendment rights (both for being punished by not being allowed to become a class officer and for the administration’s prohibition of the “Team Avery” T-shirts), her Fourteenth Amendment Equal Protection rights (as a “class of one”), for state law rights, and for intentional infliction of emotional distress.  The district court denied Doninger’s preliminary injunction motion, finding her not likely to succeed on the merits of her class officer claim, finding no future irreparable harm vis-a-vis the Team Avery claims, and the Second Circuit affirmed, on slightly different grounds.

The Defendants were back, this time with a summary judgment motion, both on the substance of the claims as well as on qualified immunity grounds.

In what is a very comprehensive opinion, the Court determined that even if Doninger’s punishment for her blog entries amounted to a constitutional violation, such a right was not “clearly established” at the time of the alleged violation.

The Court listed a number of contrary cases addressing appropriateness of regulating in the schoolhouse on-line student speech created off-campus.  It then cited to a number of law review articles (some of which were likely student notes, whose authors were thrilled that an Article III jurist cited their writing) recognizing the morass that this area of law is in:

If courts and legal scholars cannot discern the contours of First Amendment protections for
student internet speech, then it is certainly unreasonable to expect school administrators, such as
Defendants, to predict where the line between on- and off-campus speech will be drawn in this new
digital era. Since, as explained above, the particular right Ms. Doninger seeks to enforce was not
clearly established at the time of the events in question, Defendants are entitled to qualified
immunity on Ms. Doninger’s blog entry First Amendment claim.

However, in regards to the administrators’ confiscation and/or prohibition of the “Team Avery” shirts at the assembly, the school district was not so fortunate.

The district was up against Tinker v. Des Moines Independent Community School District, the watershed Supreme Court case that recognized that students’ use of non-disruptive armbands to silently protest the Vietnam conflict was protected expression.  The district tried to argue that even though the school had no written ban on “electioneering” materials beforehand, and even though the administrators were not looking to confiscate any “electioneering” materials beyond the T-shirts, that that the T-shirts were prohibited “electioneering” speech, a content-neutral restriction. Buzz. Denied.

Then the school district tried to argue that this case was different from Tinker because it dealt with T-shirts and not armbands.  Buzz. Denied. Then the school district tried to argue that Doninger didn’t have standing because hers was not one of the shirts that were confiscated.  Buzz. Denied. No qualified immunity, and the case goes to trial on this issue.  (Because Doninger lost on her “big” claim of not being allowed to be a class officer, I wouldn’t be surprised if the case settles, so long as the district can pay some of Doninger’s attorneys’ fees.)

School teachers and administrators have it tough.  They have to make difficult, and sometimes snap, judgments about student discipline.  They are often seen as “the enemy,” and schoolchildren are constantly trying to find ways to usurp and undermine their authority. But on the other hand, they have egos and tempers, too.  School teachers and administrators are human, but some times the have to be super-human, especially when they’re feelings are hurt.  And when a kid calls a superintendent [edit from principal] a “douchebag,” I’m sure that hurt.  And I’m sure the school officials [edit from principal] didn’t want to have that “sort of kid” in a leadership role.  And I’m sure that the school officials [edit from principal] may have been [edited from was] sick of this kid overreacting to restrictions the administrators were placing on Jamfest.  And I’m sure the school officials [edit from principal] wanted to send a message that not every kid can go on livejournal, or myspace, and berate school officials.  But how many hundreds of thousands of dollars could the district have saved if the principal simply let the “douchebag” comment roll of their backs [edited from her back]? Or, if the school district’s administrators were well educated on First Amendment law in school, so they could have avoided the potentially devastating confiscation of the “Team Avery” T-Shirts?

If she just gave Doninger a warning that, “if you run for class officer, you’re a representative of the school and your class. With that comes some responsibility, including the words you use to describe school officials.  Should you shirk that responsibility, you will not be able to continue to be a class officer, or hold any position of authority or honor in an extracurricular at this school,” would that have solved the problem?  Would this kid just have found a way to push the limits anyway, just to sue for suing’s sake?  Who knows.  In qualified immunity cases involving police action (particularly illegal search and excessive force cases) police are often given a bit of a “cushion” due to the snap judgments that must be made in the course of apprehending and restraining a suspect.  Perhaps that “cushion” should be afforded to school administrators, if they reasonably perceive a substantial risk to the safety or security of the school or its children.  Based upon the facts I discerned from the opinions, I don’t think that would have made much of a difference in this particular situation, however, it provides some additional protection when school leaders need to make snap judgments.

I think the case was rightly decided, and it will be interesting to see what happens if the case goes to trial.

Update — because of the comments below, I was alerted that I made a few errors recounting the facts of the case.  The edits are above, in bold, and I welcome further (non-biased) clarifications.

Real CourtTV– Judge Nancy Gerner allows live streaming of oral argument

As reported by ComputerWorld here, United States District Judge Nancy Gertner has agreed to allow a streaming webcast of an oral argument occurring on January 22 in Capitol Records v. Alaujan and Sony BMG Music Entertainment v. Tenenbaum.  The oral argument is on Mr. Tenenbaum’s Motions to Amend Counterclaims, opposition to the record companies’ Motion to Dismiss the Counterclaims, and a Motion for Joinder of the RIAA.  Mr. Tenenbaum, a Boston University Ph.D. candidate, has been accused of using peer-to-peer file sharing to download music.  He got an attorney– Charles Nesson, professor of law at Harvard and of the Berkman Center for Internet and Society.

Because the proceedings on January 22 are only oral argument, the Court reasoned, “narrowcasting” the proceedings will not influence the performance of any witnesses or testimony. And, because the record companies hope to discourage illegal file sharing through general deterrence built up from the publicity of lawsuits across the country, the Court was “curios” as to why the record companies objected to the motion.  Therefore, the Court reasoned:

The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these filesharing lawsuits.

The Courtroom View Network (CVN) will create the narrowcast using the cameras (likely to be fairly low-res security cameras and monitors) already installed in the courtroom, and the Berkman Center will rebroadcast on http://cyber.law.harvard.edu.  I’ll be tuning in to hear Professor Nesson’s arguments regarding the constitutionality of the fines potentially imposed by the Copyright Act, as well as the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999.

(A copy of the PDF decision of the Court is here.)

In addition, kudos to Judge Gertner for being brave and allowing this narrowcast. I’m generally not a huge fan of cameras in the courtroom, especially during trials, as I do believe that it intimidates jurors, affects witness testimony, and may cause grandstanding by judges and attorneys (especially those who see a trial as “free attorney advertising” or judges who are subject to reappointment through popular-vote elections).  But oral argument, particularly in circumstances like this, is a different kettle of fish.  I’m excited to see how the record company attorneys respond.

United States Ditrict Judge Nancy Gertner for Supreme Court?

I first heard of Judge Gertner during the early Blakely/Booker era in 2004 and 2005. She was a pioneer in reacting to the decisions, and has become a sentencing expert.  She’s also a blogger.  She’s a Yale grad, appointed to the bench by President Clinton, and has been very outspoken on a number of civil and criminal justice issues. I would think a jurist of her caliber would be a perfect Supreme Court nominee for President-elect Obama, especially if Justices Stevens, Souter, or Ginsburg were to retire soon.  She’s brilliant, thoughtful, progressive-leaning (in a literal, as well as political, sense–how many other judges have blogs and allow webcasting?), and, as a district judge, she brings insight to the court about the day-to-day practicalities of jurisprudence that no other sitting justice currently has. She may suffer, though, from “too much information-itis,” as with some other long-time Supreme Court hopefuls, just because she’s said too much about too many topics that may seriously frighten center-leaning Democrats and Republicans. But both her future–and this oral argument–will be something to watch.

Stephen Colbert to Larry Lessig –“I want a divorce!”

From Wired’s Blogs– this story about Stanford law professor Lawrence Lessig’s appearance on The Colbert Report.  Lessig is hocking his new book, Remix: Making Art and Commerce Thrive in the Hybrid Economy. Fun, surprising comments from the interview:

Professor Lessig on The Colbert Report

• Cobert: “You say that copyright laws are turning our kids into criminals, because they’re keeping kids from doing all the ‘remixing’ that they want of pre-existing copywritten material… Isn’t that like saying arson laws are turning our kids into pyromaniacs?”
• Lessig: “Totally failed war. Is that familiar to you…?” Colbert: “No. … You’re saying we need a surge in copyright protection?” Lessig: For 10 years we’ve been waging this war. Artists have gotten no more money, businesses have gotten more profit, and our kids have been turned into criminals.”
• Colbert: “Never, ever, ever, ever take anything of mine and remix it.  For instance, I would be very angry, and possibly litigious if anyone takes this interview right here, and remix[es] it, with some great dance beat, and then it starts showing up in clubs across America.”
• Lessig:  “We’re joint copyright owners; I’m OK with that. … Copyright is joint for us; we’re in this together Stephen.” Colbert: I want a divorce.”

And of course, the remixes abound. Like “Artistic Socialism” [YouTube] by EmJayEff, “Operation REMIX” [mp3] by DJ Cable and this one by Ludachrist:

I have to admit, Lessig’s got a point:  Congress has been ratcheting up copyright terms, penalties, and fines, allowing DRM and making it a crime to subvert it, and now increasing criminal actions against peer-to-peer copiers. Has this really prevented piracy? Not much. Has the record industry been saved? Not really.  iTunes is becoming totally DRM free.  The artists that are succeeding have figured out how to thrive in the peer-to-peer, Myspace, Twitter generation.

On the other hand, I’m afraid that some of Lessig’s comments paint with too broad a brush.  He claims that 70% of “our children” are “criminals” because they copy music on peer-to-peer systems. That’s probably true.  But the vast majority of infringers on peer-to-peer are not yearing to breathe free from copyright restrictions so that they can remix content to make something new.  Rather, the file sharers want something for nothing–they want music or movie content that cost hundreds of thousands of dollars, or millions of dollars, to make at no cost.  Could some of those uses be “fair” (like previewing an artist to see if you like their work before buying)? Certainly.  But are there millions of people out there, collecting digital media just because they can? You betcha.

I haven’t read Lessig’s book (although I think I’ll pick it up… legaly… and pay both the physical costs like the paper, printing, distribution and the intellectual royalty to Mr. Lesig) but my guess is that he imagines a sea change in the economic foundations of the media enterprises — make movies with an economic model like Twitter, where the content is free, but money is made through ad revenue, or as part of being in the distribution channel, or the like. Of course, that would be a revolution in intellectual property law that ultimately devalues the property itself in favor of the method of production or distribution. I’m not too sure that most authors would favor it. But I’m glad there are people like Prof. Lessig in the world to make us challenge our IP paradigms.

“Stripper Idol” Part Deux

Gene Quinn at IP Watchdog has written this post about the ongoing “Stripper Idol” lawsuit (blogged by yours truly here).  In the post, he argues that the commentators on Fox News covering the story argued on the Bill O’Reilly program that because no one would confuse a strip club with American Idol, there’d be no likelihood of confusion as to source of the services, and therefore the strip club wins.  Gene writes:

While I do enjoy O’Reilly, the fact of the matter is that his legal correspondents were dead wrong, as are most legal correspondents when the attempt to pontificate about matters relating to patents, trademarks or copyrights.

He then states that a trademark dilution theory is most likely to be successful, as “likelihood of confusion” need not be proven.  While I agree with him that the O’Reilly commentators were “dead wrong” in their assessment of the merits of the suit, I respectfully disagree that dilution is the best theory for FremantleMedia to pursue.

First, dilution is sticky because you have to prove that your mark is “famous.”  Under the Texas dilution statute, which may be more liberal than the Section 43(c) of  the Lanham Act, fame may be easier to prove.  But it’s still a significant threshold of proof that the plaintiffs must overcome.

Second, a number of recent federal decisions have noted that for a junior mark to dilute a senior mark, the junior mark must be nearly identical to the senior mark.  In other words, if we’re not going to look at consumer confusion, you have to prove a very close nexus between the allegedy famous mark and the allegedly diluted mark.  While STRIPPER IDOL and Design may be close the AMERICAN IDOL and Design design, it’s a hard burden to show that the more risque mark actually dilutes the distinctive quality of AMERICAN IDOL or tarnishes its image.

My continuing belief is that the best theory revolves around likelihood of confusion, not as to source of the goods, but as to sponsorship or affiliation. A typical survey question used to support Plaintiff’s case may ask something like “Do you believe this strip club had to get permission from anyone to use this logo? If so, who?”  I wouldn’t be surprised if a good percentage of people would respond “Yes; American Idol.”  That’s confusion as to sponsorship or affiliation.

Dilution is a good idea, too, particularly under Texas law (which may be more lenient than the federal standards), and I can’t wait to see how the case unfolds.