If that fart doll that you wanted to buy happens to be more expensive this year, you can thank the 7th Circuit Court of Appeals based on its decision today in JCW Investments Inc. v. Novelty Inc. (Note how the court is careful enough to include the ® trademark sign in its decision when it refers to "Pull My Finger Fred". Do they do the same if they mention the Academy Award Oscars® in a decision?):

Meet Pull My Finger® Fred. He is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fred is a plush doll and when one squeezes Fred's extended finger on his right hand, he farts. He also makes somewhat crude, somewhat funny statements about the bodily noises he emits, such as “Did somebody step on a duck?” or “Silent but deadly.”

Fartman could be Fred's twin. Fartman, also a plush doll, is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fartman (as his name suggests) also farts when one squeezes his extended finger; he too cracks jokes about the bodily function. Two of Fartman's seven jokes are the same as two of the 10 spoken by Fred. Needless to say, Tekky Toys, which manufactures Fred, was not happy when Novelty, Inc., began producing Fartman, nor about Novelty's production of a farting Santa doll sold under the name Pull-My- Finger Santa.

Tekky sued for copyright infringement, trademark infringement, and unfair competition and eventually won on all claims. The district court awarded $116,000 based on lost profits resulting from the copyright infringement, $125,000 in lost profits attributable to trademark infringement, and $50,000 in punitive damages based on state unfair competition law. The district court then awarded Tekky $575,099.82 in attorneys' fees. On appeal, Novelty offers a number of arguments for why it should not be held liable for copyright infringement, argues that Illinois's punitive damages remedy for unfair competition is preempted by federal law, and contends that the attorneys' fees awarded by the district court should have been capped according to Tekky's contingent-fee arrangement with its attorneys. For the reasons set forth below, we affirm.

Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative…

[Hat-tip: Decision of the Day Blog]

Via the Legal Theory Blog, Suffolk University law professor Stephen M. McJohn has released an interesting paper entitled Patents: Hiding From History.

A summary:

This essay considers how patent law doctrine clouds the historical record of technological development. The essay first surveys a recent book that relied heavily on patent records to reexamine acutely the role of intellectual property in economic development, "The Democratization of Invention," by B. Zorina Khan. The essay's second part discusses how patent law today likely distorts patents as primary historical sources. The law encourages an inventor not to accurately disclose her invention and its place in technological development, but rather to submit vague and overbroad invention descriptions and claims. In describing the invention, some case results perversely favor what one commentator has called "intentional obscurity." Other aspects of law governing disclosure encourage inventors not to define their terms; or identify the category of invention in the preamble; or limit the claims to the actual invention. Likewise, inventors can be at a disadvantage if they explain the advantages of the claimed invention or submit software code used to implement the invention. Even keeping up on technology in the field may hurt the patent applicant. Reform of such rules could help the patent system today, and, as a byproduct, tomorrow's history.

Download the entire essay here.

If you are interested in keeping detailed track of all of the contested litigation over music file sharing, there is no better blog than the Recording Industry vs. The People blog.

It features many of the actual motions from cases that are slowly winding their way through the courts - waged by the brave few who refuse to kowtow to the RIAA.

Viacom is caught committing an act of Copyfraud by demanding that YouTube.com take down videos that they (Viacom) have no rights over.

If copyright only extends to actual "fixed" works and not ideas, then it seems to me that copyright should not extend to the concept of characters. A character is no more than an idea once you divorce it from the underlying fixed text. That is in fact one of the primary falsehoods in copyright law - any derivative work that does not contain an actual clone of the fixed underlying work is merely borrowing from an idea, not the protected fixed work itself. Ideas can admittedly have varying degrees of abstraction, and a fictional character is certainly less abstract than many other forms of ideas - but that does not change the fact that it is still just an idea. All literary ideas remain ideas until they are written down (or "fixed" as the law would say). Once it is written, the idea remains an idea. The copyright should only extend to the concrete writing itself. The entire concept of "derivative" works destroys the fundamental compromise behind copyright philosophy.

Unfortunately, the courts have never recognized this obvious falsehood. If X creates a suave spy named "James Bond", then all future authors are prevented from using a suave spy character named James Bond, even if they never actually copy from the previous works that Bond has appeared in. They may even be prevented from creating a spy character with a different name, but still happens to dress sharp and enjoy vodka martinis that are "shaken, not stirred" (since many would naturally identify such traits with the Bond character),

So what happens when the courts blur the distinction between ideas and fixed works? You get ridiculous lawsuits like this one - where Carol Burnett sues somebody for drawing an animated character wearing a blue bonnet, bucket and mop. Maybe even depicting janitors tugging on their ears is now off-limits.

Much of the best science fiction is rooted in current reality, and then projects both its logical evolution and theoretical possibilities into the near future.

If the length of copyright terms are "life of the author plus 70 years", try to imagine the effect on the public domain if the average lifespan of a person becomes at least 120 years.

With that in mind, check out this science fiction short story entitled "Melancholy Elephants" (which was apparently written back in the day when copyright terms were "merely" the life of the author plus 50 years).

Fight the future...

Columbia Law School hosts a great website that attempts to catalogue and analyze every major published court case involving music copyright infringement claims.

The site is put together brilliantly - cross-referencing song titles involved in the cases, and (in some cases) providing audio files of the disputed works in question. Anyone who wishes to educate themselves about this subject should definitely consider bookmarking this site.

You all had to see this one coming.

Big Media took its first big swing at YouTube Tuesday as Viacom Inc., the owner of MTV, VH1, Comedy Central and other cable networks filed a $1 billion copyright lawsuit against the video-sharing site and corporate owner Google Inc.

The lawsuit marks a sharp escalation of long-simmering tensions between Viacom and YouTube and represents the biggest confrontation to date between a major media company and the hugely popular site, which Google bought in November for $1.76 billion.

The question remains if the Internet will remain a truly revolutionary invention that forces us to re-think the traditional parameters of IP, or if it will simply devolve into another Pay-Per-View medium for media conglomerates to control. Actually, it isn't even just the conglomerates.

[Update]: Lessig has some good analysis about this - along with a link to the actual complaint.

Thanks to David K. Levine (no relation to me) and the rest of the gang here at Againstmonopoly.org for inviting me on as a guest blogger.

Brief background about myself: I produce a radio show in Los Angeles. I am also a licensed attorney who still occasionally dabbles in law on the side (mainly in defamation defense - but also with some experience in copyright infringement defense). Before that, I worked in film and television post-production which helped to form my views that current IP schemes overburden artists and stifle creativity.

I have previously guest blogged for other sites, including: Patterico.com, The Southern California Law Blog, and Calblog.com. I still occasionally guest blog for the first two sites listed, but I thought it best to bring over my posts about IP to this site for the sake of thematic consistency within blogs. If you still have an interest in other areas of law and/or media bias - feel free to check out those sites as well.

I have previously written a series of posts concerning IP entitled The Tyranny of Copyright Law, The Tyranny of Trademark Law, The Tyranny of Patent Law, and the (somewhat related) Coming Legal Superstorm Against Bloggers. [Each post is a multi-part series that is often spread out over multiple blog sites. Click on the links and they will provide further links to other parts of the respective series.]

I welcome all feedback and debate regarding my posts and the ideas that are generally put forth by this site. I know that many readers of the other blogs I have written for have a difficult time accepting the difference between real (tangible) property and so-called intellectual property. They would often roast me over the coals in their comments with delightfully amusing abuse. I hope that they will follow me over to this site on occasion to continue it (and in that process, hopefully become exposed to some new ideas that will change their thinking over time).

:-)