The interesting thing to watch here is how local governments, which are competing for Google’s resources, are bidding in what is in effect an auction conducted by a private company.  One wonders how far into municipal governance Google might go.  It’s a new and different twist on the idea of a company town.

Duluth?  Certainly, according to the Duluth Answer Man:

No Tags

The NFL uses a coin flip to determine not only the order of battle at the start of a game, but also the order of battle at the start of overtime.  Does that favor the team that wins the toss?  The movement to reform overtime procedures is afoot again.

Coin tosses are used to determine draft order.

And a coin toss – a secret, unobserved coin toss – was used the other day at the NFL’s offices to determine whether the New York Giants or the New York Jets would have the right to host the first “home” game in the new “New York” (quotes in place because it’s actually New Jersey) football stadium.  The Jets lost the toss, or so they were told.

If a coin is tossed in Roger Goodell’s office and Woody Johnson didn’t see it, was the coin truly tossed?  If it were tossed, how could Woody Johnson truly know that Roger Goodell didn’t use a coin with two (Giants) heads? 

And in an era when the computing power that put a man on the moon in 1969 is available in a cheap device that I can hold in my hand and that can be networked to umpteen other related devices, why is anyone still using an actual coin?  It seems to me that transparency, fairness, and accountability — all of the things that Woody Johnson claims were missing in the Giants/Jets decision — could have been built into the decision easily, had the parties agreed to use something like the random.org Coin Flipper.

No Tags

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.]

No Tags

Naturally, the real dispute seems to be as much about royalties as it is about the artists’ rights of integrity.

Among the many helpful reports are these:  The New York Times, The Guardian, and The Australian.

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:

“There are no rights to sell any or all of the records as single records, other than with (Pink Floyd’s) permission.”

The court had to decide the meaning of the word “records,” which appears twice.  Presumably there is also a grant of rights, to which this is a limitation, reservation, or exception, but I don’t know what the grant of rights said.  According to the Times, the judge “accepted arguments” that the purpose of the clause was to “preserve the artistic integrity of the albums.”  But of course the text of the contract does not say that, and one might reasonably conclude that if that were Pink Floyd’s goal, then the band should have taken care to hire counsel who could manifest that in clearer language.  Having failed to do so, the ambiguity in the meaning of “records” might then be resolved in favor of EMI.  It is certainly plausible to suppose that as of 1999, “records” still referred to physical media.

In the US, there is an interesting line of similar cases having to do with ambiguous contract language and new markets and uses for copyrighted works to which that language applies – or might apply.  Those include Herbert Cohen v. Paramount Pictures, Boosey & Hawkes v. Walt Disney Co., and Random House v. Rosetta Books.  I had the good fortune today of teaching that line of cases today, then offering Pink Floyd’s case as a concluding hypothetical.

Not surprisingly, it appeared that few of the students had ever heard, or heard of,  Pink Floyd.  [Updated: It now appears that my students' blank expressions were generic blanks, not PF-related blanks.  Just about all of them aver familiarity with PF, which is consistent with Pittsburgh radio's AOR fetish.]   For anyone who would like a reminder, here’s a YouTube clip of “Money” as part of Laserium show:

No Tags

Which recalls:

No Tags

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:

Jonathan Band’s recent chart titled GBS March Madness: Paths Forward for the Google Books Settlement, distributed by the Library Copyright Alliance.

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.

Tom Bell produced this map of intellectual property.

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.

No Tags

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.

No Tags

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.

No Tags

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.

No Tags

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.

No Tags