Curiously, the Times report contains nary a hint of the trademark lawyer’s common anxiety that using a mark as a verb runs the risk of causing a loss of distinctiveness and perhaps even genericide. Google and “to Google” is perhaps the best known recent example of a company struggling with corporate policy with respect to a mark that has been appropriated as a verb (a synonym for search, often) by popular culture. Initially, Google tried to spin the appropriation as a complement to its trademark program; it believed that people were saying “to Google” and referring to the Google search technology. (Somewhere, I have an old issue of an ABA IP Section newsletter with a piece by Google’s trademark counsel.) Later, it shifted course. [Some context for the latter, here.]
The news media and the blogosphere are awash with reports of Pink Floyd’s victory last Thursday in a lawsuit in England against its label, EMI, over the right to distribute digital downloads of individual tracks from The Floyd’s classic concept album, The Wall. The band insists that both its artistic vision and, more important, its contract with EMI mean that “unbundling” the songs without the band’s permission is forbidden.
Naturally, the real dispute seems to be as much about royalties as it is about the artists’ rights of integrity.
What inquiring legal minds want to know is this: What does the relevant contract actually say? The court’s judgment is not available yet, from what I can tell. According to The Australian, the deal was negotiated in (or around 1999), and the language in question is this: [Read more →]
I was re-reading Perfect 10 v Google last night (and Perfect 10 v Visa) in preparaton for a cyberlaw class today and I was struck (again) by the 9th Circuit’s desire to maintain a clear distinction between contributory and vicarious liability in the ISP context. While noting that the lines between contributory and vicarious liability are not clearly drawn (quoting from Sony), the court wanted to ensure that the lines were not further blurred by overly zealous application of vicarious liability to Google’s activities in in-line linking to Perfect 10’s copyrighted images. I’m wondering if the policy behind these comments is really to ensure that more ISP cases are decided under contributory liability where the focus is more on the state of mind of the defendant than under vicarious liability which is a strict liability issue. Perhaps the court wanted to encourage later courts to clarify the scope of the contributory liability test post-Grokster. Or maybe questions about when Internet intermediaries should be liable for the conduct of others are becoming so complex that the court wanted to encourage future courts to focus more on the intermediaries’ state of mind than on other more ‘objective’ factors. I could be way off base here about all of this and the case might just be a standard application of direct and secondary liability doctrines, but I did seem to read in a concern that courts focus more on the intermediaries’ intentions than on the more objective criterion of direct financial benefit and ability to monitor and control the primary infringer’s conduct.
“The president is a person, not a product,” [David Axelrod] was said to tell [Desirée Rogers]. “We shouldn’t be referring to him as a brand.” — New York Times, 3/12/10.
I am just finishing a marvelous book about cartography and the discovery and naming of America, The Fourth Part of the World: The Race to the Ends of the Earth, and the Epic Story of the Map That Gave America Its Name (by Toby Lester, Simon & Schuster, 2009). The Fourth Part of the World tells the story of the Waldseemüller map, and draws an explicit link among the invention of printing, advances in cartography, and the history of marine navigation. Until the late 15th century, “the world” had only three parts, to scholars; kings, princes, merchants, and explorers; and mapmakers. I have long worked geographical metaphors into my work on intellectual property law, so I wondered about graphical representations of intellectual property law and what they might tell us about the information and knowledge world(s) that we believe to exist.
From what I can tell, there aren’t many of these, but I would be delighted to know about more. Here is a list of what I have found so far, online:
Pam Samuelson’s Map of the Public Domain, published as part of Mapping the Digital Public Domain: Threats and Opportunities, 66 Law & Contemp. Probs. 147 (Winter/Spring 2003). In later work, she has acknowledged, a la James Boyle, that the information law world may comprise multiple public domains.
Via Ann Bartow, I heard about this Section 108 “spinner,” which is a nifty graphical guide to what Section 108 of the Copyright Act offers, and does not offer, to libraries and librarians.
Legal writing programs get staffed in 3 meaningfully different ways. One model relies primarily on part-time instructors (generally adjunct teachers or graduate student fellows) supervised by a director of the program who is sometimes, but not always, a full-time specialist in legal writing. A second model uses a director (sometimes, but not always, a full-time specialist) who works with faculty teaching doctrinal courses like torts or contracts to integrate writing exercises into those doctrinal courses. A third model uses only full-time faculty who specialize in teaching legal writing. Each has its pros and cons.
Model 1 is inexpensive for a school to operate. Adjunct faculty don’t get paid very much, so this saves faculty positions for people who will teach other subjects. Devoting slots this way arguably benefits students in a couple of different ways. It might mean lower student-faculty ratios in upper level classes or a wider variety of courses from which to choose. And, it could mean more faculty publishing and advancing the school’s scholarly reputation. (Note: This second point may be hotly contested depending on one’s perspective. Conventional wisdom holds that tenure-track faculty who teach outside of legal writing publish more than legal writing faculty. This is partly because many legal writing faculty hold non-tenure track positions for which publication is not a requirement. This may be changing as legal writing faculty have begun to hold tenure-track positions and publishing more.) All of this comes at a cost, however. Full-time faculty who specialize in legal writing develop considerable teaching expertise. Perhaps more than any other type of law school faculty, full-time legal writing teachers think and write about how to train lawyers. With all due respect to those who teach legal writing as adjuncts or fellows, I think that full-time legal writing faculty will, on the whole, teach better classes than part-time faculty. An adjunct has another job that is his primary income. He understandably pays more attention to that than his students. And, adjuncts frequently teach for only a few years. Just when they’re starting to figure things out, they move on.
Model 2 has intriguing possibilities for excellence that may not always be realized. When full-time faculty teach writing as part of a doctrinally focused course, the integration could lead to a deeper understanding of legal problems and how to write about them. Class discussion can explicitly tie big substantive questions to challenges in writing memos or briefs. If this works, it probably creates an excellent legal writing class. Unfortunately, the faculty I know who have taught in these programs report that the promise is not always realized because faculty who teach doctrinal classes do not, as a whole, make legal writing a priority. They prefer to concentrate on their substantive law specialties and their scholarship. Only an unusually dedicated non-legal writing specialist professor will spend the time necessary to become a top-flight legal writing teacher. Some undoubtedly do it, but others I’ve spoken to find the obligation to teach writing a burdensome distraction from teaching and writing about subjects they prefer.
Model 3 uses only full-time faculty who dedicate themselves to teaching legal writing. The obvious benefit is the development of expertise I mentioned earlier. Not every law professor will agree with this, but I think that top-flight legal writing teachers bring great value to their students. Those who don’t agree may say that any of us (meaning non-legal writing law professors) could step right in and do just as good of a job, but I’m not sure it’s as simple as that. A good legal writing course combines the reading and analysis of cases with instruction on how to write about the law. It isn’t obvious that “just any” professor would immediately do a good job of it. If experience matters in teaching torts, it probably matters in teaching legal writing too. So why don’t all law schools employ a full-time staff of legal writing teachers? Well, it’s expensive. Full-time legal writing teachers occupy faculty slots that could be used for teachers in other areas. A school may not think that legal writing is sufficiently important to warrant the expenditure.
From the standpoint of a prospective law student, it’s worth deciding how important legal writing will be to you. You will have to candidly assess your writing ability, how easily you will adapt to legal conventions, and your willingness to experience stress if you’re behind fellow summer associates/new lawyers who have had more training. To be clear, I’m not saying that legal writing should be your primary method for choosing a law school. But, if schools are fairly close in other ways, the legal writing program is one important and frequently overlooked way to identify the right school for you.
As this blog notes: “It’s a draggable umbrella designed by Qian Jiang & Yiying Wu. Apparently, it’s for people who are so accustomed to traveling with a rolling suitcase, that they can’t make the switch to an umbrella.”
Let me use this post to suggest one way in which prospective students can begin comparing academic programs. All law schools require their first year students to take a heavily prescribed curriculum. Few, if any electives exist, and indeed the required courses are practically the same at most schools. By contrast, second and third year students usually have great freedom to choose their courses.
The similarity between law school curriculums may give students the impression that there is little to distinguish the program of a particular school. However, there is one area – legal writing – where schools differ a great deal.
When I went to law school, I mistakenly thought that legal writing was the least important course I would take. And indeed, that is exactly how my alma mater, Harvard, treated it. The course was taught by second and third year students, giving it the feel of an afterthought to the “real” courses taught by full-time faculty. We didn’t pay much attention to it, and my education suffered for it. After my first year of law school, I arrived as a summer associate thinking I’d be well-prepared, only to find that I knew very little about how to conduct effective legal research or write memos. If not for the advice of a kind fellow summer associate educated at a supposedly “lesser” school, I might have failed in my first legal job.
Legal writing is important well beyond the summer associate experience. People may think of lawyers as oralists, but cases are really won and lost on briefs. When I practiced in California, judges issued tentative rulings based on briefs, and wouldn’t even hear argument from the “winning” side unless the “losing” side could convince the judge otherwise in a very few minutes. And of course, transactional lawyers must document deals clearly.
Despite the importance of legal writing, most law schools do not promote the details of their legal writing programs as heavily as other things. I can think of a few reasons. First, legal writing was not traditionally important to elite law schools, and one could argue that it still isn’t. Second, legal writing is not generally considered an academic discipline like torts or civil procedure. Third, legal writing comes across as un-sexy. Accomplished students of the sort who get into law school don’t feel good being told that their writing skills need improvement. It’s far more exciting to tell them that a school will make them experts in international human rights.
All of these things conspire to hide the importance of legal writing to students. Nevertheless, I’d suggest that it’s very much worthwhile for prospective students to compare legal writing programs at various schools and think about what kind of program best suits them. In my next post, I will describe 3 general types of legal writing programs, their pros and cons, and some of the reasons that schools adopt them.
The yellow traffic light is taking on a new meaning for motorists during these tough economic times: one expensive trap.
According to the National Motorists Association (NMA), some municipalities have been caught shortening the time in which yellow lights are on in order to generate additional revenue from tickets issued to motorists caught on traffic cameras running red lights. At least six cities including Dallas and Chattanooga, Tenn. have engaged in the practice in recent years, the organization’s Web site says.
Traffic cameras are seen as cash cows by their backers. Big cities reap millions in revenue from the cameras, which cost about $100,000 to install. Los Angeles issues about 3,600 red-light violations a month through its camera systems and netted more than $6 million last year from the program after expenses, according to the Los Angeles Times.
Shorten the time in which drivers have to stop and that revenue-stream can be even more lucrative. For the NMA, a libertarian group opposed to many traffic safety rules, shorter yellow lights is one way state and local governments can justify the expensive traffic camera systems, says the group’s President Jim Baxter.
Other groups, including the larger American Automobile Association, say the NMA is exaggerating the extent of the problem in order to whip up public hysteria. “AAA does not believe the problem is widespread,” says Justin McNaull, the organization’s director of state relations. He says the problems disclosed by the NMA were in isolated programs run by vendors motivated by profit.
Baxter, though, is undaunted. “They play games with the yellow light timing,” he says, adding that manipulating yellow lights does little to promote traffic safety
Eric Goldman reports here that Rescuecom has dismissed its lawsuit against Google. Eric strongly suggests this was primarily about Google outlasting a smaller plaintiff with fewer resources, which may well be the case. And although I was pleased when Rescuecom won on the trademark use issue, as I explained in this post from last year, I thought I was through at that point being a fan of Rescuecom.
I had switched sides because I think competitor paid placement, while a “trademark use” (the scare quotes express skepticism of the concept) for infringement purposes, is generally a pro-consumer and non-confusing practice, so I was hoping to see Google win the case on the lack of confusion. Indeed, I was also hoping the Second Circuit might, with the help of Google’s lawyers, do some good work in reining in IIC doctrine, clarifying that competitive and non-confusing use of keywords is never a problem (contra the old meta tag cases).
As it turns out, Rescuecom wants the same thing! And it wants to be in the front line in that battle. Rescuecom is apparently seeking a declaratory judgment supporting its right to engage in competitive keyword advertising, targeting the customers of Best Buy’s Geek Squad.
Way to go, Rescuecom, looks like I’m on your side once again. Best of luck in litigating your way to a more sensible version of online trademark law.
“It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.” Darrell v. Joe Morris Music Co., 113 F.2d 80 (2d Cir. 1940).
Posted at the request of Prof Giuseppina D’Agostino, Director, IP Osgoode, Intellectual Property, Law and Technology Program, Osgoode Hall Law School, York University, Toronto, Canada:
“(1) We have posted a call for applications for the summer 2010 IPilogue
team and we would be very pleased to hear from students at your own
institution. The call for editors has a deadline of 31 March 2010 and may
be found here: http://www.iposgoode.ca/wp-content/uploads/2010/IPilogue-Editors-Summer-2010.pdf
. Students from all schools are encouraged to get involved and we look
forward to their contributions! Please let me know if you have any
questions or suggestions as to how we might work together and further build
on this cross-institutional conversation.
(2) We are recruiting a new Assistant Director and would welcome you
passing on details to any who you think might be interested (see job ad
attached). Applications are due March 12, 2010
Last, on a somewhat unrelated note, I would like to seize this occasion to
inquire as to whether you have any articles/reviews/notes etc ready or soon
to be ready for publication. David Vaver … and I will be relaunching
the Intellectual Property Journal (IPJ) and are seeking submissions. As you
may know, the IPJ was first launched by David Vaver in 1984 and made a
unique contribution to the scholarly and practicing IP community in Canada
and around the world. The IPJ is a quarterly publication and there are 3
more issues that will be published this year. Please feel free to get in
touch with either of us on this front as we would be pleased to be able to
work with you.”
The coming of spring means that thousands of aspiring lawyers will soon have to choose the law school they will attend. Over the last decade or so, rankings like U.S. News and World Report’s have become increasingly important in making those decisions. How heavily should a would-be lawyer rely on these rankings in making her choice of where to attend? And are there other things she should examine if rankings don’t tell the whole story?
Over the next few weeks, I intend to post my thoughts about these questions. Like most law professors, I’m curious to see how my schools (I teach at Boston College and went to Harvard) get ranked. But beyond that idle curiosity, I’ve thought a bit (and just a bit) about evaluating the quality of a school because I’ve had the privilege of serving on American Bar Association teams that visit schools and prepare reports for purposes of accreditation. These visits typically last 3 days and offer team members a real “look under the hood” of what is happening at a particular school. I’ve also had the opportunity to get to know a couple of other schools through visiting or other methods that offered more than a casual glance at their programs. In some cases, I’ve come away convinced that schools deserve their rankings (whether high or low). But in others, I’ve come away with the impression that a school is actually a lot better or worse than its U.S. News ranking suggests. I am not going to discuss the specifics of those impressions, but I will try to share the general things I’ve learned in hopes that it will help those choosing law schools.
So let me start with just a few thoughts about U.S. News and how much weight it should be given. In my opinion, U.S. News gives a rough indication about how prestigious a school is. Every prospective law student wants to know what a school will do for his resume, and U.S. News helps answer that question. The top of the list – perhaps 5 to 8 schools – are sufficiently prestigious that simply going there will do a lot for the student in question in terms of career opportunities. Beyond that, however, things get more dicey. The schools that follow surely carry prestige, but employers will no longer pay attention “just because” a particular applicant went to the school. The individual’s ability matters more. That’s not to say that a school’s reputation becomes irrelevant. It remains relevant, but in my opinion a prospective lawyer needs to think about what school will make him a capable lawyer.
To make this clear, look at the numerical scores assigned by U.S. News to various schools. In last year’s ranking, Yale was #1 with a score of 100. Harvard was #2 with 95. Duke, Northwestern, and Virginia shared #10 with 80. Now let’s take a look further down the line. Three more schools shared #20 with scores of 66. Five schools shared #30 with a 62. In short, the difference between numbers 20 and 30 was one point LESS than the difference between numbers 1 and 2, and 16 points less than the difference between numbers 1 and 10. That means, according to U.S. News, there’s not much difference between a school ranked 20 and one ranked 30.
Despite this, I suspect that many aspiring lawyers place unwarranted weight on the relative rankings of schools outside the top few. U.S. News (and maybe others) need to have a “top 20” or “top 50” to make rankings interesting. A law student, however, needs to find the school that will best educate her, and I am hoping that the posts I intend to write will help students identify schools that will help them flourish.
The law sometimes takes its integrity in its hands when the Federal Circuit gets its hands on a copyright law question, and the Federal Circuit’s opinion the other day in Gaylord v. United States, involving fair use, bears out that proposition in spades. Gaylord sculpted a column of soldiers as part of the Korean War memorial in Washington, D.C. The Postal Service used an edited photograph of the column, covered in heavy snow, on a stamp. Gaylord sued the U.S. Government for compensation. The Court of Federal Claims ruled that the use of the sculpture, covered with snow, in the photo, on the stamp, was “transformative”; the parties stipulated that Gaylord had suffered no economic injury. On appeal to the Federal Circuit, a divided panel reversed, holding not only that the fair use conclusion was clear error but that the stamp is not “transformative.” Judge Newman dissented.
That thumbnail of the opinion omits a lot of interesting detail (here is a link to the whole thing), but the bottom line for me is that the majority opinion is both conclusory on the fair use merits and unfathomable on the procedural (clear error) question in ways that leaves me scratching my head. But judge for yourself. Here are a photograph of the plaintiff’s sculpture, and a copy of the defendant’s stamp. Is the latter plausibly “transformative”? The majority wrote: “Capturing The Column on a cold morning after a snowstorm-rather than on a warm sunny day-does not transform its character, meaning, or message. Nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude.” That argument substitutes metaphysics and meteorology for the views of a reasonable audience. The standard for “transformativeness” that I extract from Campbell v. Acuff-Rose Music is whether a changed message based on the original work “reasonably could be perceived.” Has the Federal Circuit followed its defense of the idea of property to the extent that it has substitute its own artistic sensibility, and its implicit skepticism that a photograph of a three-dimensional object ever could be transformative, for that of an audience of reasonable stamp-buyers?
Judge for yourself. The images below are copied from the Federal Circuit’s opinion.
A bit overshadowed by all the hubbub over the oral argument in McDonald v. City of Chicago, the Supreme Court yesterday handed down an important copyright opinion in Reed Elsevier v. Muchnick. (But see Howard Wasserman, Marcia Coyle.) The court held that Section 411(a) of the Copyright Act, which requires registration of a copyright as a prerequisite to an infringement suit, is not “jurisdictional”—that is, failure to file a registration does not deprive a court of all power to hear a claim.
This might not initially sound significant; after all, a plaintiff who files an infringement claim on an unregistered copyright is still going to have the case dismissed, whether Section 411(a) is deemed a mere prerequisite to filing or jurisdictional. But the distinction matters in three types of cases: class actions where unnamed members of the class would include owners of unregistered works (the Muchnick situation); plaintiffs who seek an injunction against further infringement encompassing all of their works, registered and unregistered; and would-be defendants who file for a declaratory judgement against a copyright owner who hasn’t registered yet. All three of those seem like worthy candidates for a court’s consideration as a policy matter, but all three were impeded by a slew of lower court opinions holding that a failure to register deprived the court of all power to even hear such disputes. (Congratulations for the win are due to lawyers from my old firm: Chuck Sims, who argued the case before the Supreme Court, and Jon Baumgarten.) [Read more →]
Plagiarism either makes you a bad person, or bad people are plagiarists, or both. Either way, it’s obviously a moral crime, not an ethical economic one. This morning brings yet another example of someone made to do penance:
Nick Simmons, the son of the rock star Gene Simmons, sought to make a name for himself in the comic book industry as the writer and artist of “Incarnate,” a manga-style series from Radical Publishing. The attempt may have backfired. Last week the publisher announced plans to halt production of a collected edition of “Incarnate” after Internet message boards filled up with accusations that Mr. Simmons had copied layouts, dialogue and character designs from other manga series, including “Bleach” and “Hellsing.”
Link (the print edition includes black and white images of a source image and the accused; if I have time later, I will add them here. Do you have a link?)
For no particular reason, the episode reminds me of the current Dr. Pepper ad campaign featuring the Doctor of Love and Gene Simmons, in full KISS makeup, deadpanning, “Trust me. I’m a doctor.” Surely that’s an original line.
Amid the brouhaha, it’s refreshing to read about a writer who is “caught” copying from a source and who unapologetically refuses to apologize. That would be the German teenager Helene Hegemann, who the Times refers to as an author, without a trace of irony. From the mouth of a teenager, even a witty and talented teenager, the proposition that “I’m remixing” comes off as a pose; I even heard a college student recently refer seriously to “the remix aesthetic” as a subject of her proposed master’s thesis. But posing is what teenagers do. Billy Collins, by contrast, is no poser.
For no particular reason, the latter episode reminds me of Eco’s The Name of the Rose, in which the sanctity of the text gives way to reason and interpretation. Surely we have learned something since then. No one expects the Spanish Inquisition.
It will be interesting to watch the unfolding of discussions of the PS3 network problem(s) and solution(s), and then to compare that unfolding to what has happened in the Toyota world over the last several weeks.
The Sunday New York Times usually offers a number of interesting features on IP and tech topics, and yesterday was no exception. My favorite piece was this one, about the demise of the old-style Repo Man. As in so many areas, human judgment and discipline are being superseded by surveillance, data, and automation:
At the core of this technology-intensive trend is a set of high-speed digital cameras mounted on the hood and trunk of a vehicle that snap pictures of license plates while passing other vehicles, even at 80 miles per hour. Photos of the plates (including the time the photo was taken and the car’s GPS coordinates) instantly pop up on a laptop computer inside the repo man’s vehicle. Optical character recognition software converts the plate numbers to text.
The process gets more technical: the plate numbers are checked against an encrypted database of delinquent cars, compiled from lenders and stored on the computer, which is refreshed continuously using a wireless link.In most cases, the license plates photographed are attached to cars with no payment problems. But when a plate on a wanted list is found, the computer screen displays further information, including the make and model, its vehicle identification number, or VIN, and the name of the lender. The data is used to confirm that the right car has been found — scofflaws sometimes swap license plates, for instance.
If the car is parked, a tow truck can be called in; if not, the repo man can follow the car and, with luck and tact, negotiate a handover when the driver parks.
Contrast that description of “code is law” with old-style, fictional “code is law”:
I shall not cause harm to any vehicle nor the personal contents thereof, nor through inaction let that vehicle or the personal contents thereof come to harm. It’s what I call the repo code, kid. Don’t forget it — etch it in your brain. Not many people got a code to live by anymore.
That’s Harry Dean Stanton, in Repo Man, a terrific old(er) cult film. (It was released in 1984 and co-starred Emilio Estevez.)
I don’t want to get too nostalgic for old-style repo men, nor do I diminish the benefits of the new technology. It’s wise to watch out for its abuses (in both contexts), and to watch out for what comes next. Why waste all that gas driving around and scanning cars as they drive by? The cloud is a powerful place. Why not link a cheap transmitter on the car to (i) the borrower’s account with the lender and (ii) to the relevant state vehicle registry and (iii) to a regulated pool of repossessors? If a borrower misses X number of payments, the wheel of (mis)fortune automatically lights up in the garage of the next towing company on the list, which tracks down the transmitter and collects the car.
Or perhaps this sort of thing is already in development. When I taught Secured Transactions years ago, I read that automobile license plates were inventions largely for the benefit of banks, not for the benefit of public safety departments. I can’t quickly track down a source for that, so that statement may be apocryphal. But the NYT story hints strongly that lenders are behind the new repo technology, not repo men themselves.
A bit overshadowed by all the hubbub over the 
