Tag Archives: Obama

A bunch of “IP meanines” are appointed by Obama to the DOJ–what does it mean?

Copyright Avengers? Or just a bunch of guys in suits?

Copyright Avengers? Or just a bunch of guys in suits? Courtesy of Gismodo.

The blogosphere is all aflutter over the appointment of a number of attorneys by the Obama administration to upper-level DOJ positions, simply because a number of these attorneys represented the RIAA or MPAA in a number of copyright cases, or even was successful in redefining contributory copyright infringement in the Grokster case.

Ben at Copyrights & Campaigns tries to put some perspective on the appointments, complete with an “insider” source that notes that these guys are not going to have a lot of day-to-day involvement in copyright cases.

First, there is no indication whatsoever that Tom Perrelli, Don Verrilli, Neil MacBride or the others were selected because of their views or experience on copyright issues. […] They all have extensive experience in areas other than copyright, and those non-copyright experiences, I suspect, had a lot more to do with their appointments than their anti-piracy work.

Second, the Department of Justice has virtually nothing to do with civil copyright litigation, which is almost almost always fought between private parties, with the DOJ paying no attention at all. […]

It is true that DOJ prosecutes criminal copyright infringement cases. But ask yourself when the last truly controversial criminal infringement case occurred. The fact is, criminal copyright cases are virtually all about blatant cases of commercial infringement (e.g., a factory stamping out pirated DVDs and selling them), not about interesting and controversial issues involving secondary liability or fair use. […]

Don’t get me wrong; I’m thrilled to have first-rate copyright lawyers in the top ranks of Justice. But I am under no illusion that they will be spending much of their time on copyright issues, or that the Obama Admistration’s IP policies will differ from the Bush Administration’s IP policies in any major way. The fact is that administrations of both parties have been admirably supportive of copyright owners and their legitimate efforts to enforce their rights.

Ben’s commentary is so thoughtful (and well cited, and even includes an “inside source”!), I thought it worth repeating here.  I agree that the day-to-day operation of the DOJ vis-a-vis copyright and other types of IP enforcement will not be significantly different under an Obama administration, nor that it would be significantly different if the Copyright Avengers had not been appointed.  But the differences may arise if, for example, there is a significant constitutional challenge to a copyright statute (a la Tenenbaum) and a Court of Appeals or the Supreme Court asks for the DOJ’s input. And rather than a victory for the “copyright,” perhaps because Obama did not appoint any Lessig-type attorney to the DOJ, it’s just a small defeat for the “copyleft.


Advertisements

Leave a comment

Filed under Copyrights, First Amendment, Law, Society

Now the most valuable Beanie Babies ever…

According to the ABA Journal, Ty, the manufacturer of Beanie Babies, has decided to retire the “Sasha” and “Malia” dolls.  Hurry up collectors–this will be the ultimate political collectable!

And you thought that your old Beanie Babies were worth something...

And you thought that your old Beanie Babies were worth something...

I have previously blogged about the challenges the White House will have trying to take formal or informal action to protect the intellectual property rights (if there are any) of President Obama and his family.  Perhaps no legal action will be necessary if all it takes to cut off a product is a statement by the Obamas and some bad media coverage.

1 Comment

Filed under Law, Society, Trademarks

A cease and desist letter… from the White House?

A number of news articles and commentators have noted that the Obama Administration plans on enforcing the President’s trademark and/or publicity rights against shifty manufacturers who have put Obama’s face or “trademarks” on a variety of products.

Will this cafepress.com creator be getting a cease-and-desist letter from the White House?
Will this cafepress.com creator be getting a cease-and-desist letter from the White House?

As the commentators have noted, there are serious First Amendment issues when a government official tries to prohibit a citizen’s use of the most powerful person in the world on any product, whether T-shirt, doll, or thong.  Does the thong above just seek to capitalize on the President’s personal image (perhaps that’s protectable under state law rights to publicity), does it send a political message supporting the new administration, or does it send a political message that the new president should “kiss my *****”?  Does the speaker matter?  Does the profit motive (or lack thereof) matter? How in the heck does a newly minted president (and perhaps a newly minted IP-czar) figure out what to do?

Here’s my working list of standards that the Administration could consider:

  • Differentiate between the President and other members of his family. Images of the president by himself, probably not actionable.  There have been dolls of all sorts of presidents, and my guess is that Bush, Reagan, and Nixon (or their estate) didn’t get a license fee.  That’s the cost of being a president.  Likewise, use of the First Lady’s image can be used, so long as the company does not claim or imply that the product is specifically endorsed by Mrs. Obama.  Images and likeness of the kids are not to be used except in bona fide news stories.  (The TY Maila and Sasha dolls walk the line, but probably shouldn’t deserve a formal, legal response unless the dolls are made to appear like the First Children, or are marketed as the Obama children).
  • Differentiate between elements of the Obama 2008 “campaign brand” and actions, policies, and statements of the President. What was remarkable about the Obama campaign was the degree to which the campaign was successful at branding the candidate — as the best agent for “change,” “hope,” and progress.  Part of that campaign branding certainly was the Obama “O” logo.  It’s certainly possible that consumers would believe that a product with the O logo would be either put out by, sponsored by, or endorsed by the campaign.  And use of the campaign logos  (without any political commentary) should not implicate the “core” First Amendment “political speech” rights. (Of course, that begs the question of whether a government official should be policing IP rights of Obama as a candidate or the Obama campaign).

Perhaps this thong, made by "Herban 420 Wear" on cafepress.com, is more violative of the Obama rights than the one above?
Perhaps this thong, made by “Herban 420 Wear” on cafepress.com, is more violative of the Obama rights than the one above?
  • Differentiate between simple uses of the President’s image as a subject of the merchandise and attempts to state or imply that the president endorses a particular product. This is the trickiest standard to craft.  The basic standard is pretty easy.  If someone places Obama’s face on a package with a talking balloon saying “I endorse this product,” that’s probably actionable.  Likewise, using Obama’s face on a T-shirt sponsored by a non-profit with the words “OBAMA IS A BAD PRESIDENT,” definitely not actionable.  But at what point does a commercial entity (like, say, Pepsi) have the right to freeride on the Obama brand, imply that Pepsi is implicitly endorsed as the “soft drink of change,” or that President Obama is a Pepsi drinker?

Probably not this far:

(link courtesy of Marc Ambinder via Copyrights & Campaigns)

  • Finally, I’d suggest that anyone in the administration err on the side of not taking formal (or informal) legal action. The last thing this president needs is a whole bunch of whiny bloggers (like me) saying that publicity lawsuits by the president is counter to his policy agenda, unnecessarily money-grubbing, and downright hypocritical.

Anyone else have any good ideas for guidelines? (Oh, and Mr. President, if you need a contract attorney to write your cease-and-desist letters, I’m available.)

UPDATE: CNN has a great listing of the Top 10 pices of “Obama Merch” from the inauguration.

1 Comment

Filed under First Amendment, Law, Trademarks

Obama retakes oath; Chief Justice doesn’t learn his lesson?

As reported by the ABA Journal here and by MSNBC here, President Obama retook the oath of office last evening in the map room, due to the bungle of Chief Justice Roberts, which Jim Lindgren at the Volokh Conspiracy attributes to the Chief Judge’s inappropriate adherence to the fifth edition of the Texas Manual of Style‘s bogus requirement that a helping verb and the main verb not be split by an adverb. I just think that Roberts forgot because he was nervous and didn’t bring a cheat sheet, like Justice John Paul Stevens did when he swore in Vice President Biden (video here via Yahoo).

I guess the Chief did not learn from his mistake, and at least according to this photo, once again administered the oath without a cheat sheet:

According to this photo from the White House (via MSNBC) it looks like the Chief Justice once again danced the high wire without a net

According to this photo from the White House (via MSNBC) it looks like the Chief Justice once again danced the high wire without a net

According to the articles, the oath was re-administered because of fears that “conspiracy theorists” would continue to believe that Obama’s presidency was not legitimate, a theory that’s been circling on the Internet since the inauguration:

Craig, the White House lawyer, said in a statement Wednesday evening: “We believe the oath of office was administered effectively and that the president was sworn in appropriately yesterday. Yet the oath appears in the Constitution itself. And out of the abundance of caution, because there was one word out of sequence, Chief Justice John Roberts will administer the oath a second time.”

The Constitution is clear about the exact wording of the oath and as a result, some constitutional experts have said that a do-over probably wasn’t necessary but also couldn’t hurt. Two other previous presidents have repeated the oath because of similar issues, Calvin Coolidge and Chester A. Arthur.

Article 2, Section 1, Clause 8 of the Constitution states:

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

That sounds to me that, even though the President “becomes” President by operation of law at Noon, before he can take any action as president “enter on the Execution of his Office,” Obama had to take the oath provided for by the Constitution. I think that the Constitution probably doesn’t require a word-for-word recitation of the oath, so long as what was recited recognized that the new president affirms that he will execute the office and preserve, protect, and defend the Constitution.  What if the new president were deaf and had to sign the oath? American Sign Language would not necessarily be a word-for-word translation of the oath (unless each letter were spelled out; unlikely).  Yet, certainly someone using ASL to take the oath would be considered to be president.  Or what about a president who may have a lisp who says “I do tholomy thwear…”?  Once again, I’d say that’s no problem. And the Chief Justice’s acceptance of the oath as sufficient likey ends the inquiry. And who would have standing to challenge the inefficacy of the oath?

But whether or not Obama had to re-take the oath, I’m not sure this will have the desired effect.  Why? Because conspiracy theorists will continue to question the illegitimacy of the president. Not that they need any help, but here are a few more ideas:

  • The President took a variety of executive actions on Tuesday and Wednesday, including nominating cabinet positions.  If the Oath was improperly administered, (which the President implicitly admits by re-taking the Oath) aren’t all of those actions legally invalid?  And if the invalid actions include the nomination and appointment of, for example, Hillary Clinton as Secretary of State, aren’t all of her subsequent actions as SoS invalid?
  • None of this matters anyway because, according to many conspiracy theorists, Obama was not born in the United States, thus he could never be president to begin with.
  • How can a guy be president when his chief white house counsel is a guy named “Greg Craig“?

Leave a comment

Filed under Society

Obama Set to Name FCC Chair

According to the ABA Journal, quoting the New York Times, President-Elect Obama is preparing to nominate Julius Genachowski to be chair of the Federal Communications Commission.  From the article:

He also advised Obama on telecom policies and helped in his campaign’s successful online strategy, according to the Times. Genachowski clerked for Justice David H. Souter and was chief counsel to former FCC chairman Reed Hundt in the 1990s.

The FCC Chair is a serious appointment. In the last decade, the FCC has taken a much tougher stance on “indecency” leading to fines in the infamous “nipplegate” incident.  This year, in FCC v. Fox Television, the Supreme Court is reviewing whether “fleeting expletives” broadcast by networks can subject them to indecency sanctions.

netneutralitycopy1

But more than just whether Bono can say the “F-word” once on TV, the past years have seen a slurry of FCC-permitted media consolidation (allowing those with the most money to speak with the loudest voices), questions regarding whether new FCC faces a slew of new regulatory issues, such as whether broadband providers may prohibit or give priority to different streams of media, or those coming from preferred sources, or whether there must be “net neutrality”  (background here).  Media companies, public interest groups, and academics alike have been working to make serious changes in FCC policy.

A compelling portrait of modern telecommunications

A compelling portrait of modern telecommunications

What flows over telephone and cable wires in interstate commerce, and what flows over the air “in a million tiny pieces” has a profound effect on all of our lives today.  The courts and Congress may play a role, but it’s at the FCC where all the technical decisions that seriously affect what we can see, when we can see it, and how we can use the Internet happen.  Stay tuned.


Leave a comment

Filed under Law, Society