[Via Lawrence Solum who is often on the lookout for new legal articles dealing with intellectual property law and philosophy.]

Viva Moffat has written an interesting paper on the problems resulting from overlapping intellectual property protections -

"The interactions between the three federal schemes of intellectual property protection – copyright, patent, and trademark – have often been overlooked. This article addresses some of the issues raised by the overlaps between these areas of law and concludes that the availability of more than one form of protection for certain creative or inventive works creates problems in many circumstances; that those problems have not been considered fully by policymakers or courts; and that overlapping protection interferes with the benefits meant to flow to the public."

It has often been said that the porn industry helps drive technological innovation (i.e., Helping to decide competing formats, etc.). Can it also help drive the legal debate over IP?

Behold the latest copyright/trademark dispute involving a gay porn film that references an Italian classic.

The response letter from the defense attorney is well worth reading.

[Hat-tip: Mathhew Heller from Courthouse news]

The 9th Circuit gets it right this time.

Here is the simplistic explanation of the important aspect of this decision:

1. The Digital Millennium Copyright Act (DMCA) protects "Internet Service Providers" (including most blogging websites)from liability for various material posted by third parties. For instance, if a third-party commenter were to post a defamatory comment on this site, neither myself, nor the site's operators would be legally liable for the other person's comment, since we wouldn't be considered the authors of it. It prevents our liability for 'republication' of the third-party comment, even though it appears on this site.

2. However, the DMCA does not extend its liability protections to intellectual property (IP) claims. For instance, if somebody alleges that a thrid-party posted a copyrighted video to this site, we would still be legally obligated to take it down - provided that we were given notice and the video posting doesn't otherwise comport with fair use.

Why did the DMCA carve out an explicit exception for IP in its liability protections? The usual reasons - Big media lobbied Congress to include that provision in order to protect its turf. There is no such thing as an organized political lobby for those who might be libeled in the future. (As a result of the IP exception under the DMCA, the development of the Internet still has been unfortunately slowed...but that is obviously a much bigger debate and discussion for other posts on this site and elsewhere.)

So the vital question then becomes: What is 'intellectual property' for purposes of interpreting the DMCA? Some states have a mutant form of IP protection called the 'right of publicity'. They also have other laws under the rubric of 'unfair competition' or 'trade secret' laws that also serve as a mutant (and broader) form of IP protections. Then there are also state 'common law' forms of copyright and trademark protections that you may read about from time to time.

So in other words, state concepts of IP are often defined far more broadly than federal forms of IP. If you were to accept the broader state notions of IP, and then allow those notions to dictate the meaning of the DMCA, that would mean that the DMCA offers less and less liability protections to Internet Service Providers. States would eventually be able to define "IP" so broadly that the DMCA would effectively become a meaningless hollow shell - offering no real protections for anybody.

Fortunately, the 9th Circuit saw through the nonsense, and said that the DMCA still offers liability protections for all forms of state IP claims. The only exceptions to the protection for websites under the DMCA will be for IP that is recognized under federal law.

Well done 9th Circuit! There is still plenty wrong with federal IP and the DMCA, but at least they have seen fit to minimize the damage in this particular instance.

What special diet should I follow while taking this medicine?

Ask your doctor if you can eat grapefruit or drink grapefruit juice while taking this medicine. What should I do if I miss a dose?

If you miss a dose, skip it. Wait until the next time you are scheduled to take modafinil and then take your regular dose. If you take modafinil too late in your waking hours, you may find it harder to sleep. Do not double the dose to make up for a missed one.

How should I store or dispose of this medicine?

Keep this product in the container it came in, tightly closed, and out of reach of children. Store it at room temperature and in a cool, dry place (never in the bathroom).

Store modafinil in a safe place, so that no one else can take it by accident or on purpose. Keep track of how many tablets are left so you will know if you are missing any.

It is important to keep all medications out of the sight and reach of children, because many containers (such as weekly pill boxes, and those containing eye drops, creams, patches, and inhalers) are not child-resistant and can be easily opened by small children. In order to protect them from poisoning, always use safety caps and immediately place medications in a safe place, one that is up and away from their sight and reach. http://www.upandaway.org/es/

Medications that are no longer needed should be disposed of in an appropriate manner to ensure that pets, children and others cannot consume them. However, you should not flush these medications down the toilet. Instead, the best way to dispose of your medications is through a drug take-back program. Talk to your pharmacist or contact your local trash/recycling department to learn about drug take-back programs in your community. See the Food and Drug Administration (FDA) website, for more information on how to safely dispose of medications if you do not have access to a drug take-back program. What should I do in case of an overdose?

In case of an overdose, call the Poison Control Helpline at 1-800-222-1222. Information is also available online at https://www.poisonhelp.org/help. If the victim has collapsed, had a seizure, has difficulty breathing, or cannot be awakened, call emergency services immediately at 911. Symptoms of overdose include, but are not limited to:

difficulty falling asleep or staying asleep agitation restlessness confusion hallucinations (seeing objects or hearing non-existent voices) Nervousness Uncontrollable shaking of any part of the body fast, slow, or pounding heartbeat Chest pain nausea diarrhea

What other important information should I know?

Keep all appointments with your doctor.

Do not let anyone else use your medication. It is a crime to sell or give modafinil as a gift. Ask your pharmacist how to refill your prescription.

It is important that you keep a written list of all the medicines you are taking, including those you received with a prescription and those you bought without a prescription, including vitamins and dietary supplements. You should have the list every time you visit your doctor or are admitted to a hospital. It is also important information in case of an emergency.

Not to toot my own horn here, but...well, ok...I'll toot it.

Last week, I was the only one that I knew of to bring up the copyright implications of the great Hillary Clinton/Apple/Orwell mash-up ad that had made its rounds across the Internet. I pointed out that there was an obvious tension between core political speech and Apple's potential claims of copyright.

I ended the post with these thoughts -

"This is merely the analysis in relation to a potential copyright claim by Apple. There is also the analysis for copyright infringement by the George Orwell estate. After all, the Hillary Clinton/Apple ad is also still a derivative work of 1984, right? Shouldn't Orwell's estate have a say if this ad should be able to exist or not? I don't think it should. But copyright maximalists no doubt feel otherwise."

Well what do ya know? It turns out that people who licensed works from the Orwell estate have finally noticed and decided to start some legal threats over copyright violations.

Glenn Reynolds is wrong - This isn't "a dumb intellectual property lawsuit". It is instead a dumb intellectual property LEGAL SCHEME that we have - one in desperate need of underlying reform. We won't have a solution to this problem until people understand the difference here. The quality of lawsuits are mostly dictated by the quality of the underlying laws.

One claim from the threat strikes me as particularly bizarre - the notion that "the Orwell novel is still under copyright, at least until the year 2044."

Orwell died in 1950. Even under the ridiculously long term of "life plus 70 years" that has been retroactively applied to copyright lengths, that would mean that 1984 becomes public domain in 2020 at the latest. Where do those people get off claiming copyright until 2044? Am I missing something in my math here??

[Update: My math wasn't wrong, but my analysis might have been. If the Orwell people are claiming that the work was published in the U.S. before 1963 AND had the copyright renewed, then it extends for 95 years from the initial date of publication. So if it was published in U.S. in 1949, that would make the date of 2044 correct. It's scandalous and morally outrageous - but still legally correct.]

If anyone wants to enjoy Orwell's work, I encourage them to read this post: Orwell's Copyright Police State - Reloaded.

Supplemental question: Is the company that purchased the "Orwell rights" in this instance acting on their own in issuing legal threats? Or were they contacted and encouraged by Barack Obama's political adversaries to try and suppress the anti-Clinton ad on their behalf?? If the latter occurred, then what are implications for copyright being used as a direct weapon to suppress political speech? Ok class, please discuss...

Gong Li is arguably the most successful Chinese actress working in Hollywood today. I would definitely recommend that you check her out in the vastly underrated Miami Vice film from last year.

In their Dec.06/Jan/07 issue, Venice Magazine interviewed Li on a wide variety of subjects. In addition to describing the current state of competition in the Chinese theater industry, part of the interview was a revealing look into how media piracy can be used as an effective tool against government censorship.

Venice: Have you ever been censored in your work, your acting?

Gong Li: Some of my films have been censored and are not allowed to be shown in China. Raise the Red Lantern was probably the biggest one. Curse of the Golden Flower is ok and so is Miami Vice. Some scenes that are in the American version have been cut out of the Chinese version. But things are more open now in China than they used to be.

Venice: How does the whole censorship process work?

Gong Li: Things are different there, so I'm not entirely sure about the details but this is how I think it all works. First, a script is written. If the script is passed, then the film is made. Upon completion, the film is screened. What exactly happened on Raise the Red Lantern I'm not so sure, but it was back in the 90's when things were much more strict. Apparently, they showed the film a couple of times and somewhere, somebody, a certain somebody, raised some doubts about it and so the film was pulled. But it's all part of the system.

Venice: How do you believe American films are different from Chinese films?

Gong Li: With American film there is a much broader variety of what you can make and what can be seen. Because of the aforementioned script review system in China, it limits the films you can make quite a bit.

Venice: How are films seen in China? I know there are big cities which are modern with movie theaters, but what about the interior of the country, which is quite rural. How are films effectively distributed to the public?

Gong Li: In the big cities on the East Coast there are many theaters. Specifically, there are two kinds: National theaters that are run by government agencies, and privately run theatres. The privately run theaters show a wider variety of films. They are also much more luxurious, cleaner, and have digital projection capabilities; everything you have here in American theaters. But they tend to be much more expensive. Towards the western part of China, there tend to be fewer private and more National theaters, so the movies might be a little older and the range of films may be a bit narrower.

The bigger problem in China is video piracy. People get pirated videos because they are cheaper and easier to find than going to the movies. So people stay at home and watch a pirated DVD instead of going to the movie theater. In a way, this really shows that Chinese people truly love watching movies. If there were fewer pirated videos available then people obviously wouldn't see as many movies.

Venice: There's no way the government can censor pirated videos.

Gong Li: You're right You can't censor pirated videos. You can censor the cut versions that are shown in theaters, but the uncensored videos are still out there. So again, the problem is the pirated video, because if you want to do real censorship control, you have to censor the pirated video.

Venice: So then an argument could be made that pirated videos in China are a good thing. That the pirated videos are opening Chinese culture up to the rest of the world?

Gong Li: [laughs] Right, because if you censor a film or cut some of it, people are still going to see it all on the pirated video. A paradox is created by the censorship and banning. They think, why are people objecting? What is wrong with it? It makes them want to see it even more. So this really is a paradox; it has a way of increasing the pirate video market due to the curiosity.

Here in the U.S., piracy can also be looked upon as the current form of our Boston Tea Party as applied to the electronic age. While there is no direct government censorship here akin to the Chinese model, there has certainly been an overreach of copyright schemes that adversely affect free speech.

One must consider the role piracy has to offer as a legitimate form of social protest in certain areas of the current debate over copyright restrictions. [Though naturally, I don't use the word "legitimate" here in the context of "legality", but rather "moral" legitimacy along the lines of the Boston Tea Party - an act that was every bit as unlawful as media piracy.]

Debra Opri has apparently joined the growing rank of attorneys who are smoking crack when it comes to trademark law.

Let's get one thing clear: Trademarking a phrase for general use is a flat out unconstitutional violation of free speech. Are Opri and Birkhead honestly arguing that is somebody uses the phrase “Goodnight my sweet baby Anna” in a book, film, or any other creative work, then that person must pay off Birkhead or risk being hauled into court??

Trademark serves a useful and legitimate purpose when it is used to identify a specific good or service. For instance, if Birkhead sold baby cribs with the brand name “Goodnight my sweet baby Anna”, it is perfectly legitimate to prevent other crib competitors from using that name. This has nothing to do with principles of monopoly. It is simply a necessary tool for consumer protection.

With that said however, it is insane to try and claim a general trademark over the phrase itself when it is divorced from a pre-existing good or service. At that point, it is no longer a tool to identify a commercial good, it then becomes a naked and virulent attempt to try and privatize language itself through a government enforced monopoly. Anyone claiming to be an attorney who endorses such nonsense out to be shamed out of the profession.

Coke is a legitimate trademark to identify a cola brand. Are Opri and her ilk seriously arguing that I have to get permission from the Coca-cola company if I write a book where I have a character say, “I'd like a Coke, please.”? Surely you see the ridiculous implications here. The Supreme Court has criticized this attempt to abuse trademark law by claiming it as "mutant" form of copyright protection. However, this hasn't prevented special interests from trying to re-enforce their monopoly over language and communication.

Paris Hilton trademarking “That's hot!”? Pat O'Reilly trademarking “Three-peat”?? Donald Trump trademarking “You're fired!”??? These people have simply wasted their time and money by listening to attorneys who simply don't know what they are talking about.

Meanwhile, if there are any artists out there who can demonstrate that they have published creative works using these “trademarked” phrases, please let me know. I will be happy to publicize your work on this blog and provide free legal defense if you are threatened.

Part 7 of Tyranny of Trademark law here.

[Update as of 4-2-07]: Larry Birkhead has issued a fascinating message on his webpage over at LarryBirkhead.net -

TRADEMARKS: I have never requested a trademark, signed or filled out any paperwork on a trademark relating to Anna Nicole Smith, and the saying "Goodnight My Sweet Anna Baby." The form was filled out by another individual on my behalf. The form was not reviewed or approved by me. The media is reporting that they have seen a copy of the form, please send me one as I have asked for a copy and never have received it. It does not have my signature or authorization, I am far too busy working on my fight for my daughter Dannielynn, to worry about things like trademarking sayings for use in movies, etc.

**In other words, I will seek to have this trademark withdrawn or cancelled on the grounds it was not approved by me.**

So Birkhead is claiming that this was done "by another individual on [his] behalf" - apparently without his consent or approval. Was he referring to attorney Debra Opri? It's impossible to know for sure. However, we do know that Opri was fired by Birkhead recently and that Opri has engaged in Gloria Allred-style media saturation overreach in trying to promote her own name. This would certainly fit the profile of an overzealous entertainment attorney who tries to make outrageous claims on intellectual property to the detriment of the client. But I'll wait for more facts to come in.

Whoever tried to make that trademark registration, it is utterly scandalous even by the standards of the Anna Nicole Smith saga.

Traditional print newspapers continue to post declines in revenues.

Jon Fine describes it as "further evidence that rising Web revenues do not cancel out falling print revenues."

Now compare this phenomenon with the similar decline of revenues in the music industry. What is happening in the news industry is circumstantial evidence that even if everyone where to use industry-sanctioned Internet downloads to get their music, overall revenues would continue to decline for the music business. I'd say that this further complicates the disputed claim that the decline in music revenues comes primarily from unauthorized downloading. It should also be pointed out that the same dynamic exists for the news industry - How many of us have read news that was e-mailed to us by a friend who copied and pasted the text of an article on their own? How many of us simply read the copied news off of a third-party blog without clicking on the link to the underlying news site? Should not this considered to be "pirated" news just as we term "pirated" music? As long as copyright exists, it certainly should protect print every bit as much as music, right? If such monopolies must exist on any level, it seems silly to discriminate between different kinds of creative works (i.e., giving music greater protections over print news).

And yet with all of these observations, look at the difference in how each industry has reacted. The music indusrty continued to try and sue everyone it can in order to enforce a status quo that no longer exists. The news industry has perhaps resigned itself to the fact that they will have to operate with less revenues for the foreseeable future. But they are at least slowly coming to grips with that future and are still struggling to find sensible solutions. Imagine the cultural impact if media corporations started suing Internet users for reading news off of "unauthorized" websites. And yet, there are many who still think that what the music industry is doing is somehow justified.

AP Reporting -

Activist groups sued the parent company of Comedy Central on Thursday, claiming the cable network improperly asked the video-sharing site YouTube to remove a parody of the network's "The Colbert Report."

Although the video in question contained clips taken from the television show, MoveOn.org Civic Action and Brave New Films LLC argued that their use was protected under "fair use" provisions of copyright law.

They said Viacom Inc. should have known the use was legal and thus its complaint to YouTube to have the video blocked amounted to a "misrepresentation" that is subject to damages under the 1998 Digital Millennium Copyright Act.

The challenge, filed in U.S. District Court in San Francisco, came about a week after Viacom filed its own, $1 billion lawsuit against YouTube, claiming that the wildly popular Web site is rife with copyrighted video from Viacom shows, including "The Colbert Report."

Neither YouTube nor its parent, Google Inc., was named in the latest lawsuit, filed on the plaintiffs' behalf by the Electronic Frontier Foundation and Stanford Law School's Center for Internet and Society.

Viacom spokesman Jeremy Zweig had no immediate comment.

Under the DMCA, YouTube and other service providers are generally immune from copyright lawsuits as long as they promptly respond to copyright complaints, known as takedown notices. According to the lawsuit, a takedown notice was sent to YouTube last week, and the video was blocked almost immediately.

Service providers are not required to investigate claims under the DMCA and in fact could lose their immunity if they take too long to respond. The law does give users the right to sue the issuer of the takedown request when it contains misrepresentations that an item is infringing. Such lawsuits are rare, though.

"People just shoot off a takedown notice without really giving a second thought to the material being taken down and whether it's really proper to be taken down," said Corynne McSherry, a staff attorney with the EFF. "A lot of people cave in because they don't realize they can push back or they can't afford to push back."

The lawsuit seeks unspecified legal costs and damages on grounds the plaintiffs' free-speech rights were harmed.

"With this lawsuit, we are making clear that corporations like Viacom must not be allowed to muzzle independent video creators and censor their free speech," said Eli Pariser, MoveOn's executive director.

The parody "Stop the Falsiness," a play on host Stephen Colbert's use of the term "truthiness," was jointly produced by MoveOn and Brave New Films, an activist production company that has made documentaries on the Iraq war, Wal-Mart and the Fox News Channel.

I'm often on opposite ends of political matters with MoveOn.org, but kudos to them for this move. It is about time that Viacom was called on the carpet for its Copyfraud. Additional kudos to the EFF which often does great work.

[EFF's legal documents and press release about the case here.]

More general information about Copyfraud can be found here.]

One question though: Colbert is a "parody" show. If you make a parody of a parody, does it then become a "satire"?

There has been much media coverage over this independent political ad created by Philip de Vellis.

Question: While the media has brought up the implications of the ad as a loophole to campaign financing restrictions, why is there no media analysis of the copyright implications?

The ad was a re-working of a commercial for Apple Computers. I happen to think that reworking the original commercial for political speech ought to be fair use. But the current state of stifling IP laws clearly seem to hold otherwise. If more in the media were to point that out, it might spur a discussion towards changing one of the many unfortunate aspects of our copyright laws.

News outlets refer to the Hillary Clinton/Apple ad as a “spoof”. But is it a “parody” spoof? Or a “satire” spoof? It seems insane to have to answer this question, but the insane state of our laws compel us to.

The courts have held that “parody” of a work falls under fair use, but “satire” does not. I have long held that you cannot legitimately distinguish between the two. Making such distinctions requires a purely subjective artistic analysis – something that should have no place in the determination of substantive law.

For instance, some argue that a recent Yiddish reworking of “Dick and Jane” should be considered unlawful “satire” since it doesn't directly "comment" on the original work as a “parody” does. I hold that it is clearly attempting to parody the WASP norms put forth by the Dick and Jane characters. Just as I hold that the “Cat NOT In The Hat!” work directly commented on Dr. Seuss's original work by making fun of Seuss's own norms in children's literature by tailoring the story to a famous murder trial. So who is right? Who knows?? It depends on your artistic viewpoint. But it is insane to have the law make distinctions in this realm.

In one instance, it is a case of free speech protected by the Constitution. In the other case, it is an unlawful act that can subject you to a six-figure fine among other penalties. It all depends on how broad a judge's personal sense of humor and/or art is. But some attorneys insist that the legal community is uniquely qualified to draw such lines.

Does the fact that Apple has refrained from claiming copyright infringement mean that it tacitly endorses the anti-Hillary ad? (and, by implication, endorses the Barack Obama campaign?) Or does it merely imply that it feels that the ad is protected speech? It would be disturbing to think that such an ad could exist for several months and generate political discussion, only to have Apple file a complaint later down the road and try to suppress the work.

This is merely the analysis in relation to a potential copyright claim by Apple. There is also the analysis for copyright infringement by the George Orwell estate. After all, the Hillary Clinton/Apple ad is also still a derivative work of 1984, right? Shouldn't Orwell's estate have a say if this ad should be able to exist or not? I don't think it should. But copyright maximalists no doubt feel otherwise.