Ken Cloke in his book Mediating Dangerously asks: how can we transform conflict so other options emerge that do not require winners and losers? As mediators, we are asked to guide people through conflicts, shedding light so they can see and as a result move towards more creative and productive ways to conduct their personal and business affairs. As I blog on another litigation scheme designed to “save” a right’s based culture by monetizing infringement, what appears is just another version of lawyers fomenting schemes, and an industry grasping for rescue rather than creating new ways of serving its consumer.

Infringement => $$$

Here’s the newest copyright scheme to monetize infringement. David Kravets’ July 22 blog post over at Wired.com reports that Righthaven LLC, a Las Vegas company associated with Review-Journal owner Stephens Media LLC, as represented by lawyer-entrepreneur Steve Gibson, has executed a new litigation strategy designed to save “ the media world’s financial crisis.” Gibson, predicting that millions of additional infringements will yield revenue as his business plan expands in scope to capture the massive online infringements of media clients’ rights in their content, is optimistic:

Gibson’s vision is to monetize news content on the back-end, by scouring the internet for infringing copies of his client’s articles, then suing and relying on the harsh penalties in the Copyright Act — up to $150,000 for a single infringement — to compel quick settlements. Since Righthaven’s formation in March, the company has filed at least 80 federal lawsuits against website operators and individual bloggers who’ve re-posted articles from the Las Vegas Review-Journal, his first client. Borrowing a page from patent trolls, the CEO of fledgling Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission. And he says he’s making money. We believe it’s the best solution out there,” Gibson says. “Media companies’ assets are very much their copyrights. These companies need to understand and appreciate that those assets have value more than merely the present advertising revenues.”

It appears that the scheme is in service to online-media owners against those who re-post or excerpt their content – websites and bloggers, not wholesale aggregators. Because the law with respect to online excerpting of media content is based mainly on Fair Use which is explicated on a case-by-case basis, uncertainty in the strength of the claims exists. There is no clear admission in these cases of copyright infringement (as may arguably exist with illegal filesharing of entertainment media) even though there may be use of another’s content without permission. The law is not entirely in the content owner’s favor.  The Copyright Office website cautions:

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.” 

Instead of asking what are users’ expectations in the digital culture and how might publishers and authors meet them and adapt, content owners are asserting rights rather than interests, ignoring that the very business model from which these content owners derive their rights is based on two pillars of constitutional dimension, free speech and copyright, both equally designed to serve the consumer market and also anchored in democratic ideals.  In commodifying its copyrights to monetize infringement, media owners and their attorneys seem to overlook the vitality of digital content and the fact that digital content also acts as a vehicle through which individuals “speak” – communicate – in exercise of their 1st Amendment rights.

 

Can this strategy lead to Self-Censorship? 

Unlike a song or film copied and distributed online through filesharing, Righthaven brings complaints for posting in many cases excerpts of articles even though linked to the complete article with attribution - news content shared on sites not to consume as entertainment, but as information, not for its expression, but rather its currency. The chilling effect of this new litigation strategy is that it is designed to impose self-censorship, sending a message to potential infringers unable to bear the costs of litigation, that they dare not exercise their rights to repost excerpts of content, which in many cases would otherwise be fair use, one of the copyright safeguards to preservation of free speech.

Copyright and 1st Amendment coexist because, as our Supreme Court articulated in Eldred v. Ashcroft, “copyright’s built-in free speech safeguards are generally adequate to address any conflict with free speech rights.” If linking to and reposting excerpts of online content is our cultural currency –and linking and attribution the tool which allows the flow of information and communication - what might an industry which is itself built on free speech and fair use do to address copyright infringement? Is the result of a litigation strategy designed to lock up online content the preservation of a market monopoly, or is it that plus a monopoly over our cultural currency?

Media owners have an exalted status with respect to content (e.g. “hot news” as reported by Mike Masnick and Kevin Smith), and are treated more deferentially than other speakers. First Amendment and free speech are the driving force of media law. To assert as Gibson does that copyright is a media company’s core asset is to see 1st Amendment and copyright as separate rather than as twin pillars supporting the industry. When it sues its own consumer, and will even sue its content’s interviewee who has reposted, a dysfunction arises.

Copyright, a limited monopoly, cannot and does not lock up facts, opinions, ideas, or unprotectible content, and media companies’ attempt to monetize online infringement risks disrupting the twin pillars on which it bases its own survival. Online content cannot be treated as a static commodity - the digitization of information and its use on the web is not static but rather like search engines, a pointer to a flow of ever changing content transforming its static nature to process, movement creating more content, educating more consumers, transforming yesterday’s news to today’s pointer.

Freedom of speech depends on a vast public domain. Most consumers see excerpting and linking as essential to dialog in today’s marketplace. A new Facebook Page "stop the LVRJ/RIGHTHAVEN witch hunt! (may have to be logged in to FB to see it) is an online dialog about Righthaven, resulting in a black list of its media clients. Is this the way to save media from its financial crisis? Where is the bigger view which sees the creativity in mutually beneficial indexes and roadmaps?

The internet has completely changed the outcome of a copyright holders’ right to prohibit and restrict copying and distribution of copyrighted works for essentially non-commercial purposes. Assertion of these rights is based on the assumption that the use of copyrighted content is static. Robert Chender’s July 11 Contemplative Law post asks: what if the legal framework under which we assert legal rights is based on an incorrect assumption and yet is constitutionally permissible? Media owners might ask themselves this same question. The digital “free” culture has proven that a right’s based assumption no longer serves the consumer who uses content to communicate, dialog, connect, and create new uses of content. If an industry fails to serve its consumer, how can that be a means out of a financial crisis? Rather than using new technology to entrap users, technology could be used to discover ways to enhance the uses, capture new value and generate a more vital marketplace – actually, the goal of both copyright and the 1st Amendment. Wouldn’t that be cool?

Citizen’s Media law project has posted a copy of one of the complaints here. Additional links to complaints offered here.

How can we learn more about this?

Here are two great articles by Steve Green with the Las Vegas Sun, updating issues involved in this strategy to save the media, from August 9 and August 4.  

As these articles suggest, one of the issues to emerge in this dispute is the implication of the DMCA take down provisions with respect to third party content and the

essential step some websites and bloggers may have skipped in order to fall under the safe-harbor provisions (e.g., registering designated agent with the Copyright Office). Note also that Professor Eric Johnson at Blog Law Blog is tracking this story and provides good updates as well as the back-story on the Righthaven cases. There is also an interesting podcast here by Robert Ambrogli on the extent that a blogger can use content of a news story without attribution.

-MZ

 

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Blawg Review #258 at Cathy Gellis' Statements of Interest recounts the glorious history and ignominious decline of the Statute of Anne and issues a call for change. 

Take a look, you won't regret it.  Excerpt below.

But the end result of this 300-year "evolution" is a law full of absurdities that in no way delivers on the intended goal of the Statute of Anne. The quid pro quo of giving creators a little monopoly so the public could get access to their creations has given way to total domination by the creators over nearly all exploitation of their works, essentially indefinitely, at the expense of the public, and in nearly every country there is. This author-centric copyright law found around the world may be able to trace its lineage back to the Statute of Anne, but like a clone that's been copied too many times, its DNA has been degraded to the point that it is unrecognizable compared with its ancestor.

These changes have happened incrementally over the centuries, but with the arrival of the Internet the pace has increased. Like the Stationers' Company panicked at the coming of a new political age, today's incumbents fear the challenges to their power the digital age may herald.

But like we saw 300 years ago, change need not be unwelcome. Change provides opportunity to enhance society. Just as the Statute of Anne led to an explosion of public discourse, now liberated from heavy government control, the Internet presents the universe of nearly unlimited content to learn from, enjoy, experience -- and build upon. (Don't forget: even authors are regular users sometimes.) A tool like the Internet that can so enhance the public sphere needs law focused on enhancing the public sphere too, just like the Statute of Anne once did.

So maybe on this 300th anniversary of enactment of this statute its time to think about reviving it. It may be dead, but perhaps its promise is not quite dead yet.

See here for a follow-up to Lance Goddard's Blawg Review #257 at 22 Tweets, and tune in next week when Blawg Review #259 will be hosted at Legal Blog Watch. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

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As a mediator reflecting on the label “Evil” attributed to the proposed Google Book Settlement (article by Tom McNichol in California Lawyer, Saving the World from Google: Public and private interests band together to fight a deal that, they say, would destroy competition on the Internet), I wonder under what alpha-tag Google might fall in Vickie Pynchon’s new book, A is for Asshole, the Grownup's ABC's of Conflict Resolution.  Is there an E for Evil?

I am also curious about where this Evil metaphor might fit within Google, Inc.’s Senior Copyright Counsel, William Patry’s new book, Moral Panics and the Copyright Wars, which asks that we look at the moral panic generated by such labels not as aggressors, but rather as mediators in the copyright wars. As Patry describes in his blog, copyright is a system of social relationships, and that “the advantage in regarding copyright as a system of social relationships is that it focuses attention where it belongs: in mediating conflicts within that system… .”

If you would like some background and context use The Public Index, a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School.  For audio listen to Pamela Samuelson’s recent lecture, and for balance see the Google Public Policy Blog.

 

Here’s how Google became the Evil villain:

In September, 2005, the Authors Guild, representing about 8,000 US published authors and screenwriters, brought a class action against Google The Authors Guild, Inc. v. Google Inc., No. 05 Civ. 8136 S.D.N.Y Sep. 20, 2005), claiming that Google’s Library Project, launched as the Google Book Search, a project which scanned millions of in-copyright books from the collections of major research libraries, was copyright infringement. Google’s goal at the time was to make indexes of the books’ contents and to provide short snippets of the book contents in response to its users search queries.

Continue Reading...

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U.S. Statutory Remedies Unavailable to Unregistered Berne Foreign Authors, Making Pre-litigation Mediation a Good Strategy to Resolve Infringement Disputes for All Authors

Whether you are eligible under Section 412 of the U.S. Copyright Act to recover statutory damages plus attorney’s fees and costs depends on timely registration of the work with the U.S. Copyright Office. To obtain the benefits of Section 412 in a copyright infringement action as provided by Sections 504 and 505, you need to register before the infringement occurs, or within the first three (3) months after first publication of the work:

 

§ 412. Registration as prerequisite to certain remedies for infringement

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been pre-registered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

Judge William Pauley of the Southern District of New York, in Elsevier B.V, v. UnitedHealth Group, Inc., 2010 U.S. Dist. LEXIS 3261 (S.D.N.Y. January 14, 2010), recently confirmed that owners of foreign Berne member works, while not required to register their works for U.S. copyright protection or as a condition to bringing suit in the U.S., will not benefit from the Act’s statutory damages and attorney’s fees unless registration occurs as described in Chapter 4 of the Act.  National equal treatment requires nothing more – all unregistered works, whether foreign or U.S. authored, receive no statutory litigation benefits unless registered.

 

Elsevier, a publisher, sought a declaratory judgment that the Berne Convention requires equal treatment and that no formalities could be asserted against member countries denying them the full panoply of rights and benefits afforded nationals within any member country.  Despite a good argument that Section 412 violates the Supremacy Clause, Article IV of the U.S. Constitution, the court found that Congress was satisfied that the statutory incentives for registration were not preconditions to enjoyment and exercise of copyright, and that Section 412 did not condition all meaningful relief on registration. 

 

Naomi Jane Gray’s new Blog, Shades of Gray, presents a detailed discussion of the arguments presented in Elsevier, including preemption and treaty interpretation.  Her most compelling comment for how this decision affects ADR and Copyright practice is that:

“Statutory damages are critical in cases where it is difficult to prove actual damages, and provide copyright owners with significant leverage in settlement negotiations.  Thus, Section 412 acts as a powerful incentive for authors and owners to register their works promptly.” 

 

When a foreign author has not registered a work in the U.S. but discovers an alleged infringement which should be addressed in a U.S. court, an Owner of an unregistered foreign copyright may be better off seeking pre-litigation mediation of an infringement dispute, often a more viable and less expensive alternative to litigation. 

 

While we must assume that the alleged infringer will discover that the Owner has not registered, and lacks the leverage of the Act’s remedies for past wrongs, immediate registration upon discovery of the infringement can afford the Owner statutory remedies for prospective infringements should the infringing conduct not be resolved in mediation.

 

Mediation of copyright disputes is a good way to proceed in all copyright infringement disputes. As demonstrated by Elsevier, unless an Owner (whether foreign or domestic) registers the work in the U.S. timely, mediation may be the most reasonable way to proceed, allowing creative prospective solutions to alter the default paradigm of copyright law.

Continue Reading...

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The following from Carolyn Elefant at My Shingle:

[T]his recent article from NPR . . .  reports on Rock Art, a local Vermont brewery that successfully fended off a copyright challenge by the national company that makes Monster energy drink.  Rock Art didn't win as a result of a clever legal team. In fact, after Rock Art received a cease & desist from Monster, demanding that the company stop using the name Vermonster in connection with its drink, Rock Art's lawyers told the company that fighting a national corporation would be too pricey and that the company was better off registering a less controversial trademark.  After Rock Art's lawyers backed down, Rock Art launched a social media campaign, enlisting customers to help with the effort.  The campaign went viral and ultimately, the bad publicity lead Monster to back down.

Now that's alternative dispute resolution.

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Here's a great post on the mediation of a software licensing dispute from Disputing by Peter S. Vogel.

After receiving a Temporary Restraining Order (”TRO”) the Judge ordered a mediation conference between the plaintiff software licensor and their customer in Alabama. The software in dispute was a specialized tax website that the plaintiff had spent many years developing, and after defendant abruptly terminated the license the plaintiff was shocked that the defendant had a competing website providing specialized tax services somewhat a kin to the plaintiff. So the trial judge had no trouble issuing a TRO. As oftentimes happens the Judge ordered me to mediate the case since I was a programmer and have a masters in computer science. My law practice of more than 30 years has always been limited to representing buyers and sellers of IT and Internet services.

Step One – In Depth Review of Plaintiff’s Technology

Since the defendant was in Alabama I arranged a meeting with the plaintiff licensor’s technical staff at my offices a few days before the mediation conference. Plaintiff’s IT staff demonstrated the construction and schema for their data base, and how the website processed data. This exercise lasted a couple of hours, but provided good insight about their IT solution and web business.

Continue reading here.

 

 

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From the files of the World Intellectual Property Organization

Set out below are examples of mediations conducted under the WIPO Rules. The Center also makes available a summary overview of its caseload. These examples have been prepared while respecting the confidentiality of WIPO proceedings.

M1. A WIPO Patent Mediation

A technology consulting company holding patents on three continents disclosed a patented invention to a major manufacturer in the context of a consulting contract. The contract neither transferred nor licensed any rights to the manufacturer. When the manufacturer started selling products which the consulting company alleged included the patented invention, the consulting company threatened to file patent infringement court proceedings in all jurisdictions in which the consulting company was holding patents.

The parties started negotiating a patent license with the help of external experts but failed to agree on the royalty as the multimillion dollar damages sought by the consulting company significantly exceeded the amount the manufacturer was willing to offer.

Continue reading here.

 

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(image from the Digital Standards Organization)

Thanks to Law is Cool (An Extraordinary About Face on Copyright Reform) we learn that Canadian Ministers Finally Embrace Canada's Digital Future.  Below, an excerpt from the LawBytes column of TheStar.com.

[Industry Minister] Clement went first, noting how much has changed in the year since Bill C-61, the much-criticized copyright bill, was introduced. He said it was ``at least a somewhat different'' public policy environment and committed to a broad copyright consultation this summer. Canada last consulted on copyright in 2001, so the promise of open consultation alone represents an important shift in approach.

[Canadian Heritage Minister] Moore was even more forceful with remarks . . .  emphasiz[ing] the power of new technologies, saying that standing in the way of digital developments is akin to "trying to lasso a locomotive with cobwebs."

Moore continued, acknowledging "the old way of doing things is over. These things are all now one. And it's great. And it's never been better. And we need to be enthusiastic and embrace these things."

Read on here.

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Doll Dispute Edges Toward a Deal from the Los Angeles Daily Journal (for subscribers only; excerpt below)

RIVERSIDE - The Bratz doll copyright fight appears to be edging closer to a settlement, with lawyers for two dueling toy manufacturers reviewing a mediator's proposal with their clients in attempts to resolve their differences.

 

By Jason W. Armstrong
Daily Journal Staff Writer

The jurist overseeing the case, U.S. District Judge Stephen G. Larson, said in a case filing late Tuesday that "progress was made" at a court-ordered settlement conference Monday. He didn't go into specifics.

Last month, the court-appointed mediator, Pierre-Richard Prosper, told the judge in a hearing that while he felt the parties still had a lot of work to do to reach a settlement, they were "closer than ever" to resolving the five-year-old case, in which Mattel is fighting for control of rival MGA Entertainment's popular Bratz line. Larson then postponed discovery for a second phase of the trial to give the lawyers a chance to discuss a possible settlement with Prosper.

Although the lawyers aren't discussing the settlement talks, some intellectual property experts have speculated that resolution options for the case could include a licensing agreement in which MGA would continue making the dolls and pay Mattel a chunk of the proceeds.

The case is Bryant v. Mattel, CV04-9049 (C.D. Cal, filed 2004).

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We talk a lot here at IP ADR about ascertaining and fulfilling party interests to help you settle your patent, trademark, copyright or trade name and trade dress litigation.  As Entrepreneurship Magazine recently reported in getting into the mind of your negotiating counterpart, knowing your negotiating partner's desires, aims, goals, needs and fears (its interests) will go a long way to getting you the best deal available.

Getting a solid grasp on the other party's interests will help you:

* Determine what you have or can do that might be of value to them, which can make it easier to figure out how best to get what you want;

* Craft deals that acceptably satisfy the other party's interests, which will increase the likelihood that the deal will be sustainable (since the other party will be motivated by their own self-interest to successfully implement the deal);

* Uncover potential sources of value that might otherwise have been missed, which will increase your ability to invent creative, value-maximizing solutions.

 

Now, thanks to Las Vegas Trademark Attorney's recent post welcoming Michael Hall to the Trademark Blogosphere [Registration Ruminations]we learn how to Help[] Yourself by Helping Examining Attorneys.  In other words, by satisfying examining attorneys' "earned point" interests.

Back in December 1997, Fordham University School of Law hosted a discussion at which Judge Quinn of the TTAB and other panelists spoke about PTO practice.  Richard Friedman, a former examining attorney who had moved on to the NBA (as counsel, not a player!) explained how it works:

[I]f an examining attorney pulls an application that is in perfect order and can be passed right to publication, that is two points for the attorney.  The examining attorneys love that.  They are already thinking ahead to their bonus at the end of the year when they do something like that.

So your job should be to concentrate on making an application two-points perfect. . . .

Let’s say some kind of substantive refusal area comes up, but it is a gray area — not the easy section 2(d) case or the easy descriptiveness refusal.  Let’s say the examining attorney pulls an application that is in a gray area, but everything else is okay.  The examining attorney is apt to say, “All right, I am going to take my chance and not send the refusal so I can get those two points for that first-action publication.”

If, however, there are other things wrong in the application papers, little stuff, and they are going to have to send you a letter anyway, then they might as well put in the substantive refusal to cover themselves.  That is the way things work, whether we on the outside like it or not.

Discussion, Trademark Prosecution in the Patent and Trademark Office and Litigation in the Trademark Trial and Appeal Board, 8 Fordham Intell. Prop. Media & Ent. L.J. 451, 461 (Winter 1998).

In 2005, The Trademark Reporter published an article on the registration of product configuration trade dress with respect to three product types.  For one, the authors specifically observed:

To the extent one central theme existed, those who submitted their evidence of acquired distinctiveness at the time of filing the application, or before USPTO examination, appeared to avoid any challenges to the sufficiency of the evidence provided.

Karen Feisthamel, Amy Kelly, & Johanna Sistek, Trade Dress 101: Best Practices for the Registration of Product Configuration Trade Dress With the USPTO, 95 Trademark Rep. 1374, 1383 (November - December 2005).

This particular study involved a narrow field, but the authors’ observation makes perfect sense if you’re looking at it from an examining attorney’s perspective.  As Richard Friedman said, “The way to make your life easier when prosecuting trademarks at the PTO is to make the examining attorneys’ lives easier.”  Needless to say, following this strategy does not remotely guarantee that you won’t receive a refusal, and obviously there will sometimes be good reason to file an application that you know will result in an office action.  However, it puts you in a position where the examining attorney might be inclined to resolve a close question in your favor.

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Softening Up Opposing Counsel in the midst of the recession from the brilliant Charles Fincher (who kindly permits me to post his work so long as I link and attribute. 

Thanks Charles!  You're a model of 21st Century collaborative and reciprocal IP sharing!)

 

For more laugh out loud funny lawyer cartoons, go immediately to LawComix.com.

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Live Telephone Seminar

ADR in IP Litigation from ALI-ABA

Wednesday February 18, 2009 from 1:00-2:00 pm EST

Why Attend?

In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.

What You Will Learn

This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:

How to choose between litigation and ADR.

• The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
• The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
• The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
• The Ten Mediation/Settlement Conference Traps for the Unwary.
  

Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.

Planning Chair

R. David Donoghue, Esquire, Holland & Knight LLP, Chicago, IL

Faculty

Victoria Pynchon, Esquire, Settle It Now Dispute Resolution Services, Beverly Hills, CA

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Larry Lessig on The Colbert Report Deeplink by Tim Jones from Electronic Frontier Foundation.

Last night, Larry Lessig, a close ally and former board member of EFF, chatted with Stephen Colbert about Lessig's new book Remix, and how America's broken copyright laws are criminalizing our kids:

 

 

 

Colbert:  Isn't that like saying that arson laws are turning our kids into pyromaniacs?? They're breaking the law! You can't just throw the law out the window!

Lessig: "Totally failed war." Is that familiar to you?

 

 

 

 

 

Of course, remixes on YouTube promptly followed! 

 

 

 

 

 

 

 

 

 

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Thanks to @dhowell (she of Bag and Baggage) for alerting us to BetaNews' breaking news that Hasbro has settled with the Scrabulous brothers.  Here's the news release:

"Pursuant to the settlement, RJ Softwares has agreed not to use the term Scrabulous and has made changes to the Lexulous and Wordscraper games (in the US and Canada) to distinguish them from the Scrabble crossword game. Based on these modifications Hasbro has agreed to withdraw the litigation filed against RJ Softwares in federal court in New York in July of this year. As modified, the Wordscraper application will continue to be available on Facebook and Lexulous will be available on the Lexulous.com Web site."

Read the full story (an excellent post) over at BetaNews here.

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I recently advised a client that his IP dispute with a virtual world was just the type of cutting edge, paradigm busting, sophisticated legal problem that people go to law school to resolve.

Good for litigators.  Bad for client.

I'll return with business advice for resolving legal problems with business savvy but pause here to share with you Drinker Biddle's recent parade of horribles on IP challenges facing virtual worlds and their entrepreneurs.

Generating and Protecting Intellectual Property in Virtual Worlds (.pdf)

By: Gary J. Rinkerman, Philip J. Cardinale & Janet Fries

The rapid growth of online “virtual worlds,” or computer-based interactive electronic environments, such as Second Life® and There.com, has created new opportunities for creating custom, virtual content, and for advertising and selling “real world” and virtual products and services. Along with those opportunities come a number of unique and potentially complex legal issues that arise in establishing and enforcing intellectual property rights – including trademark, trade dress, copyright, rights of publicity and other rights – in the context of “virtual realities.” Conversely, owners of such rights need to be cautious in deciding whether to create their own presence in such virtual worlds, especially if the virtual world’s Terms of Use contain restrictions on how IP rights must be allocated or licensed, or how IP disputes must be resolved. Some companies may elect to create a presence in virtual worlds, but others may be “dragged in” to virtual environments by the need to monitor usage and enforce IP rights, since IP usage in these virtual environments can have significant real-world impacts.

The solution to sophisticated commercial/legal problems arising in virtual worlds requires both IP lawyers and business/negotiation advisors to resolve.

H/t to Professor Michael Scott @CopyrightLaw who is a must-follow for lawyers with IP issues on twitter; find him @InternetLaw @PrivacyLaw and @LawProf as well.  And don't forget to subscribe to his excellent Singularity Law Blog as well.

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Remember those days - largely before you went to law school - when you believed all lawyers with whom you were going to practice would evidence the benefits of a classical education?    I believed.  As did two ex-husbands until they first attended law firm holiday parties.  No mariner ever pulled them away from the hors d'oeuvres table to arrest them with the power of a seafaring tale. 

Alas, we divorced years and years before I could give them Blawg Review #189 as Exhibit A to restore their pre-law belief in the well-educated and sophisticated legal practitioner.  In #189, Colin Samuels restores the image of the legal profession by following the tale of the Ancient Mariner -- he of the "long grey beard and glittering eye" -- who weaves an irresistible narrative for the transfixed wedding guest, a story seared into the memories of those of us who happily squandered our University years studying literature.  ("what are you going to do with a literature degree, honey?")

Audaciously comparing those of us who blog to the mighty Coleridge, Colin Samuels writes:

As writers, many of us have struggled to find our voices online. Do we write as we would speak to friends and colleagues or as we would write for professional publication? Do we censor ourselves or seek controversy? Do we write on non-legal topics or maintain a strictly professional image online? Will our writing be an end in itself or a means to another end? Each new legal blogger has asked these and many other questions of himself or herself, only to find them being asked again and again as his or her blogging continues. As highly-educated professionals, we are often the severest and most persistent critics of our own writing.
 

Like the Mariner, Samuels' most recent Blawg Review (see his previous brilliant efforts based upon Dante's  Hell, Purgatory, and Heaven) so arrested my attention that I didn't even do what I must admit I always do with Blawg Review -- skim down to see whether one of my weekly posts was included (not).

I can only say to you:  Read it.  Now.  And if you're looking to justify your IP time, here are the IP links you will find woven into one of the great narrative poems of English Literature.

Venkat Balasubramani wrote that the government's use of the Computer Fraud and Abuse Act has led to a muddled discussion which confuses two separate issues: "Somehow the discussion has shifted from whether it's appropriate to use Ms. Drew's commission of a tort to support a CFAA conviction to whether the CFAA should cover access in excess of a website's terms of use. Two conceptually distinct issues that people tend to conflate."

The Media Bloggers Association legal blog explained the import of the verdict for bloggers: "There is understandable concern among many online commentators about the implications of the particular legal theories that formed the basis of the convictions, based fundamentally on the violation of various levels of online terms of service that are seldom more than glanced at and clicked through by experienced Internet users. The MBA encourages responsible use of the online resources via its Statement of Principles...."

Shortly after the verdict, Orin Kerr posted a tongue-in-cheek revised Terms of Service for The Volokh Conspiracy blog. These revised terms, which required such user promises as "Your middle name is not 'Ralph'," "You're super nice," and "You have never visited Alaska," were meant to illustrate how easily (and routinely) we can violate the use terms of many sites, resulting in potential criminal liability after the Drew decision. Scott Greenfield commented that "As terms of service go, Orin's are relatively reasonable." Greenfield noted that his blog has only one rule ("No assholes"), but that he has and will apply it arbitrarily and ruthlessly.

Frank Pasquale considered whether Google, which has become a gatekeeper for much of the world's online information, should have the right to censor that information: "Bottom line: someone in government has to have the right to determine "if the search algorithm [has become] biased." Without that basic assurance, black box search engines now are about as big a menace as the black box economy was five years ago. We trust the math wizards at Google now as much as we used to admire the financial innovators at Bear Sterns and Goldman. Only time will tell if our faith in the mathematicians was misplaced yet again." Meanwhile, Google's weak sister, Yahoo!, has apparently thrown in the towel on its internet radio project, ceding the project to CBS. David Oxenford discussed whether the move would affect the decisions recently made by the Copyright Royalty Board, which relied at least in part on arguments about internet radio's economic power which have not been borne out.

Maya Richard suggested four tactics to preemptively protect patent assets from patent trolls: monitoring patent filings for applications related to your portfolio; hedging risk with patent infringement insurance; retaining skilled IP counsel to build a case for major patent assets; and joining an industry protection group. Also writing on a patent-related topic was R. David Donaghue, who noted that despite the Twombly decision, "many district courts are requiring that patent defendants plead affirmative defenses and, in some cases, counterclaims to the higher plausibility standard." He suggests remedies for this uneven application of the Twombly standards.

id you think road kill would be the most unlikely legal topic addressed in this Blawg Review? Hah! Ron Coleman explained that "tackiness is not grounds for refusal to register" a trademark. The owners of the Chippendale's male striptease concern are hoping to register their distinctive collar-and-cuffs costume as a trademark and Coleman pointed out that they've lined-up some considerable legal and expert support for their efforts. John Welch noted that the PTO has already "conceded that the Chippendale 'outfit' is product packaging rather than product shape" and Ryan Gile added that, faced with "400 pages of evidence [presented by Chippendale's, the] PTO had no problem recognizing that the Chippendales trade dress had acquired distinctiveness." Rebecca Tushnet suggested that the claims were limited in the application, but confused rather than clarified matters: "If the fact that the torso wearing the collar and bow tie is unclothed is not part of the mark, then any man in an outfit with cuffs and a bow tie is copying the Chippendale's mark."

 

Blawg Review sails on next week when Marc Randazza and his Satyriconistas at The Legal Satyricon host.

Blawg Review has information about next week's host and instructions how to get your blawg posts reviewed in upcoming issues.

 

 

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Students Dropping Out Of School To Pay RIAA Settlement Fees?

from the educational-campaign,-huh? dept

You may recall a couple years ago that an RIAA representative suggested that an MIT student should drop out of school and get a job in order to pay the fine it was demanding she pay for sharing some music. Now, according to the associate dean of student development at the University of Wisconsin, some students are doing exactly that: "Some students have had to drop out of school in order to pay for their legal fees." No examples or proof is given, so I'm wondering if this is just a throw-away line.

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Turns out the term "Hollywood Contract" is not an oxymoron after all.  Not if you follow the three-part series Why Every Writing Team Should Have a Written Collaboration Agreement over at Theater and Entertainment Law.  And don't think you don't need one of these if you are part of a young writing team just starting in business with a friend.  I recently mediated a litigated dispute between two life-long friends with the loss of the friendship being the highest cost of the parties' failure to spell out the terms of their agreement.

An ounce of IP Prevention is worth a pound of litigation cure. 

As blogger and entertainment attorney Gordon P. Firemark explains:

In the absence of a collaboration agreement, the parties may or may not be considered partners. The work they create may or may not be considered a “joint work”, and thus ownership and control of the disposition of the work called into question. While it is true that these issues tend only to arise in situations where the team has broken up, or is in the process of doing so, the existence of a collaboration agreement can be useful in managing the parties’ separation. In some respects, a collaboration agreement is the creative team’s equivalent of a prenuptial agreement. But in many cases the collaboration agreement can be much much more.

By negotiating the terms of the collaboration agreement at the outset of the work, the parties can uncover differences in their expectations, and avoid problems that might otherwise arise later. In the absence of a collaboration agreement, the parties’ efforts may be lost if there’s no meeting of the minds, and the project may simply wind up being abandoned… or mired in litigation. Obviously, it is important to work with a lawyer to craft a workable contract that’s tailored to your team’s specific circumstances.

Continue reading here.

 

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Can a law professor be a lawyer's hero?  I have just two words for you: Larry Lessig.

See Peter Black's Freedom to Differ post today on Lessig's WSJ editorial on changing copyright law for the better and for the good.

Just one of several suggestions below.

Deregulate "the copy": Copyright law is triggered every time there is a copy. In the digital age, where every use of a creative work produces a "copy," that makes as much sense as regulating breathing. The law should also give up its obsession with "the copy," and focus instead on uses -- like public distributions of copyrighted work -- that connect directly to the economic incentive copyright law was intended to foster.

Speaking of change .... what was the prevailing dispute resolution technology when Columbus sailed the ocean blue in 1492?

In England, trial by jury!

What's the prevailing dispute resolution technology today when we celebrate Columbus Day* more than 500 years later?

Trial by jury!

So I was just wondering ....... whether we might be able to convince Lessig to head up the LegalTED Conference Steering Committee for 2009.  I'd like to sign Bruce McEwen of Adam Smith, Esq. for the Steering Committee as well, for his unbelievably great analysis of the Heller collapse (which I observed up close and personal) and for this:

Are, then, the 19th-Century notions of "conflicts" a barrier to globalizing and consolidating law firms? If you want my view, it's that clients seek concentrated--not dispersed--expertise, and that deep and long-standing industry knowledge is precisely where competitive advantage comes from. This stands "conflicts" on its head, and says that clients seek depth, not shallowness.

As well as for noting that, um, clients are adults!

From Clients are Extraordinarily Understanding (h/t to Diane Levin's brilliant and comprehensive Blawg Review # 181 here)

_________________

*  Click here for the counter-narrative.

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I remember the first time I laid my hands on a BIC pen.  I was in junior high school and the kids down the street seemed to have stumbled over a treasure trove of them.  They were . . . well . . . simply beautiful . . . as was the way they glided across the Windex-blue lined paper populating my denim-covered school binder.  (yes, I stole "Windex-blue" from the L.A. Times article on Paul Newman's recent lamented death).

Who knew I was just beginning to develop an actual aesthetic (see MOMA collection here).

Today, Securing Innovation celebrates the invention of the ballpoint pen in Blawg Review #179 here.

SI is one of the best IP blogs to appear on the scene in some time and I don't link to it nearly enough.  With Blawg Review #179 I'm hoping that S.I. will begin to get the readership it deserves -- like -- a MILLION unique hits a year -- that's how essential it is to the IP practitioner.

Today, check out the great links SI organized under the following topics:  Intellectual Property News and Opinion; Patents; Trade Secrets; Trademarks; Cyberlaw and the all important miscellaneous, entitled appropriately to the ballpoint pen topic, P.S.

Finally, the all-important reminder:

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Of particular interest to everyone interested in Intellectual Property law and policy might be the November 10th presentation of Blawg Review #185 by Global Intellectual Property Strategist Duncan Bucknell at his indispensible IP Think Tank weblog.

Of course, all those neat papers purchased in September were torn and crammed into my Pee Chee folder by the end of the term.  Someday, an ode to the Pee Chee. 

This one from Studionebula.com.

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Great way to start your IP week -- check out Blawg Review #179 at Securing Innovation tomorrow morning.  Preview here.

Looking forward to it!

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From the No Comment Department:

(h/t Slashdot)

California claims copyright to its laws, and warns people not to share them. And that's not sitting right with Internet gadfly, and open-access hero, Carl Malamud. He has spent the last couple months scanning tens of thousands of pages containing city, county and state laws — think building codes, banking laws, etc. Malamud wants California to sue him,

For full post click here.

The closing scene from And Justice for All irresistible . . .

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In light of the FBI's arrest of local blogger and alleged illegal streamer of copyrighted Guns and Roses music, Kevin Cogill, I thought it would be useful to the blogging community to direct it to tips on dealing with the FBI below:  

If an Agent Knocks:  Federal Investigators and Your Rights from the Center for Constitutional Rights. 

The Constitution.  That document containing the rights Presidents swear to protect and defend. That littletechnicality.  The Constitution.

Did I say Constitutional Rights?

Here's are the categories of advice.  Click on the Agent Knocks link above to connect to any of them.   

1. What is Political Intelligence?
2. Do I have to talk to the FBI?
3. Under what laws do the agents operate?
4. What federal agencies are likely to be interested in a citizen's political activities and affiliations?
5. How does the FBI learn about citizens and organizations?
6. What if I suspect surveillance?
7. How should I respond to threatening letters or calls?
8. What rights do I have?
9. What should I do if police, FBI, or other agents appear with an arrest or search warrant?
10. What should I do if agents come to question me?
11. If I don't cooperate, doesn't it look like I have something to hide?
12. Are there any circumstances under which it is advisable to cooperate with an FBI investigation?
13. How can grand juries make people go to jail?
14. Is there any way to prevent grand jury witnesses from going to jail?
15. What can lawyers do?
 

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Blogger arrested, accused of posting 9 unreleased Guns N' Roses songs

Those of you old enough to remember Woodstock in "real time" or to have attended yourself, you'll no doubt recall the magic moment when the concert producers decided to tear down the fences and make the concert free.

Then they made a lot of money on the documentary.

I suppose they could have called the local, state or national authorities to arrest the trespassers, but would that have made good business sense?  I don't think so.  When the culture is changing faster than the law, it makes far better business sense to co-opt the movement than to arrest it.   

Still, some people just don't get it.  

I'm linking you to the Los Angeles Times story on the arrest of a local blogger for streaming Guns 'N Roses.  Since I'm printing the Times article in its entirety, you may consider this a teeny tiny act of civil disobedience in the tradition of Thoreau (his Civil Disobedience here).    

But listen, guys.  Send the firemen instead of the FBI.  They're always much better looking.  

Need I say there's got to be bigger story here?  Like, selective prosecution?  Any criminal lawyer readers out there.

Below, the L.A. Times story.  Complete.

("Yes, Officer.  I did pay for the cartoon over at istockphoto.com.  I've got the receipt here somewhere")
 

Kevin Cogill, 27, of Culver City, who admitted to allowing public access to the songs on the Antiquiet blog, was arrested today on suspicion of violating federal copyright laws.

By Scott Glover, Los Angeles Times Staff Writer 

A man accused of posting nine previously unreleased songs by the rock band Guns N' Roses on a website where they could be accessed by the public was arrested at his home early today on suspicion of violating federal copyright laws, authorities said.

Kevin Cogill, 27, is accused of posting the songs, which were being prepared for commercial release, on the Internet blog Antiquiet in June, according to an arrest affidavit. The site received so much traffic after the songs were posted that it crashed, the affidavit states.

Cogill admitted to posting the songs when he was questioned by an FBI agent, according to the affidavit. He was arrested at his home in Culver City this morning and is expected to appear in U.S. District Court in Los Angeles later today, said Assistant U.S. Atty. Craig Missakian.

I'll be very interested to see what the U.S. District Court Judge does with this.  We have a very serious federal court bench here who do not like playing games with their extremely limited and extraordinarily valuable time.

For a genuine legal analysis see Citizen Media Law Project's coverage for which I'm providing a link and an excerpt:  

Update: Cogill has in fact been charged under 17 U.S.C. § 506(a)(1)(C), which implements the copyright amendments included in the Family Entertainment and Copyright Act of 2005. I've been able to locate the criminal complaint filed against him, and it charges that he "knowingly and willfully distributed a copyrighted work being prepared for commercial distribution, namely nine previously unreleased songs by the band Guns n' Roses, by making the songs available on a computer network accessible to members of the public."

(You can follow further developments in the case by going to our legal threats database entry, United States v. Cogill.)

Speaking of Woodstock . . . Jimi Hendrix' Star Spangled Banner below.

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This lawsuit falls into the category of deterrence.  Because I live in a part of the world where "creatives" regularly refer to Disney as Maushwitz, I don't tend to think of it as the happiest place on earth.  

The question here, however, is business strategy and tactics; public image vs. strict compliance with one's demands.

Does Dumbo's mom act the bully in the marketplace to scare off all the other fleas?  Or does she cease and desist when her C&D letters obtain compliance in all but the most minute details?

Question open.  Excerpt from IP Infringement:  The Unwelcome Guest at Kiddie Parties below.  

With its $1 million trademark infringement lawsuit against the Florida couple who happened to use costumes looking like its trademarked Tigger and Eyeore characters for their party business, the company that bills Disneyland as the happiest place on earth is now possibly being perceived in some quarters as the usual big business bully. But does Disney have a point? Is the legal action justified? 

According to an article by David Wallace on disneyorama.com, David and Marisol Chaveco of Clermont, Florida, owners of a small party business, bought two costumes resembling Tigger and Eyeore from a Pervian company on eBay and promptly advertised their availability for parties on their Web site. Like other brand owners of children’s characters, Disney regularly searches the Internet for commercial use of their characters. And spotting this particular site, Disney, known for its tough approach on potential infringers of their trademarks, sent the couple three letters demanding seven items, including sending the costumes to Disney to be destroyed. 

While the Chavecos complied with six of the requests, instead of sending the costumes to Disney, they instead sent it back to the Peruvian company, pleading the need to recoups their $500 investment. Disney’s response was the $1 million lawsuit.

 

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Get ready for a radical new idea.  One that:

• suggests the search for accuracy should trump a fully adversarial process;
• would wrest some control of the litigation and trial process from the hands of the attorneys; and into the care of the experts; and,
• just might focus IP litigants on the fact that they have a business problem burdened with justice issues rather than a legal problem that frustrates business operations.

(image from Wikimedia Commons)

Not surprisingly, a litigation process that threatens or promises these results does sound like litigation at all -- you know -- battle, war, fight.  Rather, it sounds like a summer spent in Big Sur among the redwoods, sitting on the edge of the Pacific Ocean with the parties, the judge, the jury and the attorneys in a . . . . HOT TUB!?!?!?!

My (fabulous) new iPhone New York Times app this morning delivered the following paradigm busting proposal -- a "preferred a new way of hearing expert testimony that Australian lawyers call hot tubbing."  In American Exception -- In U.S., Experts are [gasp!] Partisan, Adam Liptak explains:

In [a] procedure . . . called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues. In the Wilkins case, by contrast, the two experts “did not exchange information,” the Court of Appeals for Iowa noted in its decision last year.

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”

What kind of cases has this process been used for?

In a dispute over the boundary of an Australian wine region, for instance, “there were lots of hot tubs — marketers, historians, viniculturalists,” said Gary Edmond, a law professor at the University of New South Wales in Sydney.
 

The Drawbacks? 

Professor Edmond said hot tubbing in Australia had drawbacks and was “based on a simplistic model of expertise.”  Judges think that if we could just have a place in the adversarial trial that was a little less adversarial and a little more scientific, everything would be fine,” Professor Edmond said. “But science can be very acrimonious.”

The Systemic Response Elsewhere?

Though no one expects this process to be imposed upon the American legal process, experts in the Mother Land are calling for "radical measures" to

to address “the culture of confrontation that permeated the use of experts in litigation.”

The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills.

Just as you were saying "American lawyers wouldn't allow it," Liptak reports that

[t]here are no signs of similar changes in the United States. “The American tendency is strictly the party-appointed expert,” said James Maxeiner, a professor of comparative law at the University of Baltimore. “There is this proprietary interest lawyers here have over lawsuits.”

But we're fooling no one, particularly not ourselves.  It was Melvin Belli, after all, who once said “[i]f I got myself an impartial [expert] witness I’d think I was wasting my money.”

It's no surprise to us that

Judges and lawyers agreed, in separate surveys conducted by the center in 1998 and 1999, that the biggest problem with expert testimony was that “experts abandon objectivity and become advocates for the side that hires them.”

The Academic View from My Own Backyard?

Jennifer L. Mnookin, a law professor at the University of California, Los Angeles, who recently wrote about expert testimony in the Brooklyn Law Review, [said] “neutrals risk being a sort of false cure” because “there are often cases where there are genuine disagreements.”

The future, Professor Mnookin said, may belong to Australia. “Hot tubbing,” she said, “is much more interesting than neutral experts.”

Interesting to a law professor perhaps, but interesting is not what litigators and trial attorneys are looking for.

For further coverage and comment by the usual suspects over at the Wall Street Journal Law Blog read Experts in Hot Tubs?  Not Here in the U.S. of A.

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If intellectual property had a theme song it would have to be "Like a Virgin." 

Why?

Because IP is all about "the very first time," the "aha" moment, the creative spark that gives rise to previously undreamed imaginings.The restrictions of "how we've always done things" fall away and the numbing repetition of days become vibrant.   The rest, of course, is work.  Trial and error.  Success.  Failure. Rearranging the disaligned.  Completion.  

Then the suits arrive. That's us, the lawyers.

In honor of the moment of creation at the root of every intellectual property dispute, this week's Blawg Review No. 171 gives you the great virgins of history. 

 

To kick off the "virgin" IP ADR Blawg Review, we're linking you to Kate Monro's brilliant  and (in)famous blog The Virginity Project and giving you a tantilizing excerpt:

Touched for the very first time...
It’s all about virginity loss. Or is it? 

 . . . . I love listening to the episodes in people’s lives that are imprinted into our psyches like hot wax into a seal. The moment itself could be as dull as dishwater but it doesn’t matter because the beauty is in the detail and the connective tissue of emotions that frame this unique story.

‘You never fall in love like you do when you’re eighteen. Shot though the heart. I’ll have that again, any day of the week.’ Russell, lost virginity aged 17

Virginity loss is the backdrop to a thousand visceral teenage moments…

‘For me, the first hands-down-the-pants experience was far more significant. That was earth shattering. I mean, there is a hole there. How bizarre is that?’ Tim, lost virginity aged 16

Virginity loss is the swing door between child and adulthood. A door that we all want to push…even if we’re unsure of what we may find on the other side….

‘It was a pivotal moment, not only because I lost my virginity but also because it was a first taste of freedom, of what life could be like out in the big wide world and it was totally thrilling’. Heidi, lost virginity aged 15 

When I asked Kate if she could address the Blawg Review's readers, she graciously and immediately accepted my invitation as follows:    

Bad hair, the contents of a vicar’s cassock and toxic contamination coverage litigation. These are just a few of the subjects turned back and forth between Ms Pynchon and myself this last week. A very good email correspondent she is too. Not only that, but she’s a blogger with heart. I know, tell you something you don’t know…..

O.K.  I will. I’ve spent the past two years travelling Britain and collecting virginity loss stories from an amazing cross section of people. The oldest was 101, the youngest was 17. Yes, it’s been quite the journey. Next up, I plan to come to America and do just the same. If you are game, I would love to hear from you. Anonymity guaranteed, I promise.

Either way, I hope you enjoy stepping onto virgin territory with the lady of the law…

(and while we're speaking with a British accent, take a look at Kate's other law blog friend's new blog category, Irritation to which I can only say this == the exchange rate).

Finally!!  Blawg Review 171 as "told" by Famous Virigins from Wilkiality, the Truthiness Encyclopedia.

Wikiality claims that the The Virgin Mary was "a Republican . . . against abortion, stem cell research, gay marriage and women in the workplace."   We believe she's ecummenical and inter-religious.  Whatever her American political party, in her honor, we give you the best law and religion posts of the week, including the Florida Employment and Immigration Law Blog's announcement that the EEOC has issued new guidelines on religious discrimination and the suggestion by Thoughts in a Haystack that Religious Intolerance is Good for You.  The Legal Theory Blog takes religion head on in its post on negotiating meaning with Islam while MacLeans.CA Blog (So Much Bigger than Ezra) frets about the globalization of anti-blasphemy laws (whose first target could easily be this Blawg Review).   We don't know what the Virgin Mother would think about  Shari-ah and Mediation but you can catch Geoff Sharp riding the far edges of possibility on that topic at Mediator blah blah . . . .   We do believe the Virgin Mary does not like divorce.  But if you really Agree on Everything, you  not only don't need a mediator, we wonder why you're asking for a divorce.  Finally, though Marc Randazza has a pledge of allegiance he could get behind, we're placing no bets on Mary agreeing with him.

Ken ("I am Not Gay") Mehlman is the former Chairman of the Republican National Committee.  Wikiality annointed him the "world's oldest virgin" "[a]s the result of his religious piousness and his not being married."  Pretty flimsy evidence but it gives us an excuse to cover sex and sexuality in an IP ADR Blog.  It doesn't look like the Indiana Law Blog is having any sex whatsoever, pulling out that old "I have a headache" chestnut and blaming it on Conflicting Gay Marriage Laws.  A Florida Court has required one of its state's high schools to permit a Gay-straight alliance on campus ( School Law Blog); the Sexual Orientation and the Law Blog sees the light at the end of the Don't Ask, Don't Tell tunnel; and, the Australian Gay and Lesbian Law Blog reports on legislation that would permit children of gay and lesbian parents to be treated as -- what else? -- their children for purposes of the Family Law Act.  Speaking of bi-sexuality, check out Bob Ambrogi's post at Legal Blog Watch about a bi-"sexual attorney predator" who stalked men and women as well as once trying to convince an employee to "go to the hotel room of a highly paid expert witness who was faring poorly in a deposition [with] instructions . . . to "take care" of him in order to improve his mood."   Finally, we all just say "no" to accusing a Judge of pedophilia while attempting to prove your legal point, noting the the four month contempt sentence covered over at QuizLaw. 

Jesus, far and away the world's most famous virgin, has been imagined as lusting in his heart (cf. the Jimmy Carter Playboy interview), having a wife and family (D.H. Lawrence, The Man Who Died) and, you got it, being gay.  For this last sacrilege, check out the Pink Triangle's post Gutless Grovelers Have Bowed to Religion Again.   WWJD?  Because he hung with an odd assortment of tax collectors, prostitutes, lepers, and the undead (cf. Lazarus) we assume he'd agree with Eugene Volokh that the usual "best interests" analysis would fall short in custody decisions for parents with unusual or nontraditional friends and associates. Volokh's thoughts on the issue as well as those of his readers here.  Finally, Sarah Lawsky considers the outcome of "Mamma Mia!" -- a "division" of a daughter by three putative fathers -- in light of the seminal Summers v. Tice decision concerning injury and probability.  Hint:  it's not any of the members of the troika formerly known as the Blessed Trinity.   

Ralph Nader, consumer advocate and democratic presidential spoiler has not, according to Wikiality, ever even dated, let alone gone 'all the way.' Because Nader is famous with law students for having said that legal scholarship is "mental gymnastics in an iron cage," we dedicate his virginity to legal practice.  We think Ralph would like Dan Hull's post at What About Clients? commenting on Gerry Spence's post that "Law Education is a Fraud" (followed by a spirited debate between Dan and yours truly on the subject -- are we really all crashing bores?). See also f/k/a's Law Blogging and the Cult of Gerry Spence.  For tips on social networking, check out Kevin O'Keefe's LexBlog post and for a more theoretical legal practice post, see Ken Adams' thoughts on whether  Law Firm Contract Drafting Services are a Commodity?  If it really is all about the client, ask your local GC what s/he really wants.  We regularly check in on the  Wired GC who last week posted on Virtual Law Partners.  Big firm practice is always in the news because we're naturally competitive and want to catch a peek of the Masters of the Universe in their underwear.  In Laid Off By Cadwalader?  My Shingle asks Why Not Go Solo by Choice?  The Cadwalader lay-offs give Jordan Furlong at Law 21 the opportunity to give us the year's best post on retaining and training associates, caring for clients and benefiting the law firm while you're at it in Associates and the bad table.  For the small fry among us, Susan Carter Liebel's Build a Solo Practice recommends ways to avoid our personal Brain Drain while The Greatest American Lawyer challenges lawyers to offer Money Back Guarantees!  Holden Oliver advises us to take care of our clients by keeping them informed.  Finally, Madeleine Begun Kane offers an Ode To Judge Ronald Leighton, quoted in full below.    

Attorneys are often verbose,
Penning legal complaints grandiose,
Writing hundreds pages
And setting off rages
From those who find wordiness gross.

But Judge Leighton showed major restraint
When he ruled on an endless complaint.
In a limerick poem
He said, redo this tome
Cuz in 8(a) compliance it ain’t!  

Joan of Arc.  Virgin.  Martyr. Warrior.  We dedicate the week's consumer rights post to a woman who dressed like a man to protect her virginity and died at the stake for saving her country. Before rushing to legal or Ecclesiastical authorities -- both of which are historically and notoriously unreliable (right Joan?) -- take simple steps to protect your own welfare by subscribing to Michael Webster's Bizop News, which this week warns us about our inclination to follow our first instincts.  Drug and Device Law links us to Pharma-Free Doctors for Journalists where you can presumably find that rare physician who is untainted by free drug samples.  From the other side of the consumer/provider aisle we hear from Overlawyered (Drunk Driving for Profit) that an insurance company was sandbagged to the tune of $5.8 million in compensatory and and $10.5 million in punitive damages.  We think that's karmic or at least levelling the playing field.  Meanwhile, the Public Citizen Law and Policy Consumer Blog alerts us to the FDA's decision to finally begin regulating tobacco, which does not remind us of virginity, but of cigarettes, particularly the best ones memorialized by former U.S. Poet Laureate Billy Collins in The Best Cigarette.  (and if you don't like Billy Collins, the IP ADR Bloggers will sentence you to a term of emotional labor at Gerry Spence's Trial Lawyer Camp).    

We devote disability law to The Elephant Man -- who suffered from neurofibromatosis -- and who presumably died a virgin. No, Pain, Depression and Anxiety is not the name of a law firm, but a post on obtaining social security benefits from the Maryland Injury and Disability Law Blog.  Disability Law 2.0 - Tan * Rested and Ready covers the new California appellate decision on aisle space while the New York Disability Law Blog cheers the SSA Commissioner's exhortation that "eliminating the backlog of Social Security Disability claims is a moral imperative."  Randy Chapman's Ability Law Blog gives advice to parents about how to find "related services" for their school-age children. Though not a disability, age itself tends to create the type of obstacles the disabled face.  To prove the truism that its best not to let your children become writers, I offer a conversation with my mother when she was in her early 80's.   

After exchanging the usual telephone pleasantries, mom began to stutter and giggle in a way I'd never heard before.  Finally, she got her question out past the hilarity -- "honey, do you think I need to worry about safe sex?"  Go mom!  But let's talk about what kind of sex is really unsafe for the Greatest Generation -- intimacies that end in the looting of trust assets as described by Estate of Denial in "Dear Candidate." (cf. That's not the sound of one hand clapping . . . . )  Think you'll find sexual safety among the widows in nursing homes?  Think again and read Sex Offenders Living in U.S. Nursing Homes from the Nursing Home Abuse and Neglect blog.   

Emily Dickinson is famous for being a true American virgin.  But as this week's New Yorker reminds us, the "theory that Dickinson was a lesbian shares a Dewey-decimal classification with a raft of other case studies -- Emily the sufferer, performer, healer, seducer, victim, hysteric, dog lover, mystic, feminist paradigm, vestal daughter, consumptive, agoraphobic."  (cf. Vagabond).  Emily's presence here gives us the opportunity to report on law and the arts.  The Art Law Blog discovers yet another Pollack find in It's Not About the Money (cf. Who the $#%$ is Jackson Pollack).  Over at Empowering Thoughts for Dancers there's a short song of praise for Volunteer Lawyers for the Arts and at Stephanie West Allen's Brains on Purpose, there's a post on legal practice and the art of Improvisation.  Why did Emily avoid the great mass of humanity?  Maybe she didn't know what The Divorce Coach knows -- people who blame others for everything can be managed.  See  "It's All Your Fault! (12 Tips for Managing People Who Blame Others for Everything)." .  Speaking of American women poets ( a rose is a rose is a rose is a rose) at least one California lawyer muses on whether a contract is a contract is a contract.  Finally, Counterfeit Chic asks an IP-Art cross-over question -- is it more subversive to create countercultural clothing or to undercut its now-iconic status by flooding the market with fakes? In legal terms, a trademark is a trademark -- but the ingenuous invocation of law to protect Seditionaries is a ironic twist.

Diogenes of Sinope  spent so much time wandering around in search of an honest man that he apparently never got laid.  Michele at the University of Oregon Student Law Blog believes she's found the honest, or at least the greenest law school in the nation while Will Li (2L) at the Situationist has a few caustic words for BigLaw's Summer Camp Sleep Over Programs.  Three years of answering Socratic questions followed by a three day bar exam.  Yup, it's over.  To renew the feeling of relief that once was, read Peanut Butter Burrito's -- Done.  I read a lot of law student blogs for this Blawg Review and can only report that most of them don't seem much interested in the law.  Not true, however, of Nuts and Boalts.  I really enjoyed reading Don't You Ever Get Tired of Being Wrong?  (re Committee on the Judiciary v. Miers). Law students don't always breathe a sigh of relief when the bar exam is over but we think Ouch at Think Like a Woman, Act Like a Man can relax -- it's the people who don't know they missed the hearsay question who are in danger of failing.  Its not only law students who are looking for a few good lawyers -- David Lat is kicking out the jams by letting Ann Althouse, Tom Goldstein, and Dahlia Lithwick choose his new co-blogger by juding six candidates in an "American Idol"-style competition  See update here. Finally, next year's bar examinees should check out May it Please the Court's post on Handwriting.  
 
Virgin Immanuel Kant -- the orignal moral reasoning guy -- prompts us to bring you Moral Grammar and Intuitive Jurisprudence from the Neuroethics & Law Blog; and, to remind everyone that mustangs do not need birth control from this week's Animal Ethics.  Finally, we think Kant might have been intrigued by Why We are Too Rational to Stop Polluting from Amateur Economists.

Isaac Newton.  The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself.   We consecrate Newton's virginity to this week's best IP and IT posts.  William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement  but it is  Patry's final blog post that we celebrate as a true virginal moment.  Pause here.  

My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.

Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here. 

Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly.  Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.

  

If you're reading this on your iPhone, you've moved from cigarettes to PDA's.  Congratulations.  Brett Trout at BlawgIT suggests that you might soon be watching television from that device in your post-coital bliss.  Protection, protection, protection.  In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks' "over"promises.   What's this?  Blog content licensing might be dying for lack of buyers?  People buy blog content?  I can hear my mother asking "why buy the cow . . . . "

The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous.  Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect.  How did he do it?  As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters  "appear[ed] in the same frequency as in the language itself."  So he

counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.

In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.     

If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright."  On the matter of greater moment --  Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board."  More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!) 

Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review?  This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360).  While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up.  All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.

Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement).  While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and,    Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.  

Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows: 

"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. .  . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"

The Law and Magic Law Blog announces the dismissal of the defamation lawsuit against Magic Mag on the ground that its a protected opinion while Ernie the Attorney has a way to make your iPhone magic here.

Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit.

Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . .  Another available data base for the engineering-attorney crowd is the subject of  Securing Innovations post IBM Technical Disclosures' Prior Art Data Base.  Concurring Opinions covers IP in the News this week, Peter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and  IP Kat curls up with Small and Sole.  

J. Edgar (I am not a perv) Hoover is yet another iconic American virgin (cf. Don DeLillo's masterpiece Underworld and the front page that inspired it). In honor of crime fighting, we bring you Religion Clause's post on the RICO action just filed agains the Church of Scientology and Tom (I'll sue if you say I'm gay) Cruise.  Serving the needy prison population might get more economical according to a post over at Amateur Economists -- How Telemedicine Can Actually Work.  What better way to celebrate a Virgin Blawg Review than posting a link to Courtroom Casanova  where Mr. Big(Crime) "hits on" the prosecutor.  Closer to home the L.A. Police Deparment has captured 43,000 counterfeit sunglasses -- you weren't expecting snow shoes -- with a street value of $8.5 million (Blogging Shades, My Authentics.com Counterfeiting News).   After a Portland, Oregon policeman was convicted in traffic court following a citizen's complaint that he used a no parking zone to grab take-out, Scott Greenfield proclaimed a "Cop Love Sunday"; Seth Freilich was somewhat less charitable.  Should misinformation about people's conviction records be placed online?  Check out Concurring Opinion's post The Problems of More Accessible Criminal Conviction Information.  For  more IP Crime news, see Copyright Law and Information Blog's post E-Bay Sofware Pirate Sentenced to 48 Months in Prison.

Lewis Carroll  "Some writers . . . who have fallen short of accepting Dodgson as a paedophile, have tended to concur that he had a passion for small female children and next to no interest in the adult world."  Wikipedia.  'But I don't want to go among mad people,' said Alice. 'Oh, you can't help that,' said the cat. 'We're all mad here."  Alice's Adventures in Wonderland  These two quotes are as good a lead-in as any to the law of Hollywood.  While you're in a fanciful state of mind, check out the Digital Media Law blog's analysis of the current state of the SAG negotiations.  And remember, Sharon Stone left Los Angeles for San Francisco because the daily Hollywood beauty contest at Bristol Farms was "too much competition."  (cf. Last Action Hero)  So it's no surprise that here in botoxed fantasy-land, its not just your enthnicity, but the tone of your skin that can get you booted off camera -- The Entertainment and Media Law Blog.  

Mother Teresa   Hooray!!  There is a Pro Bono Legal Blog.  This week, PB blogger Aaron Hurst is thinking about using google alerts to identify people or communities in need.  See Pro Bono Junkie's Blog post Customer Service is One Blog Away.   Some of the most important pro bono work being done today is off-shore at Guantánamo.  Check out the Show and Tell Trial   over at the American Constitution Society Blog.  Elsewhere, the Attig Law Firm, PLLC rightly touts its own horn for its success in its pro bono efforts to assist a U.S. Veteran in securing disability benefits.  

The Virgin Queen Elizabeth I   Elizabeth is acknowledged by historians as a charismatic performer and a dogged survivor, in an age when government was ramshackle and limited and when monarchs in neighbouring countries faced internal problems that jeopardised their thrones. What did Elizabeth do right?  Neutralize, negotiate and resolve conflict by "uniting the body natural with the body politic" as she proclaimed at 25 years of age when she ascended to the throne:  

And as I am but one body naturally considered, though by His permission a body politic to govern, so shall I desire you all...to be assistant to me, that I with my ruling and you with your service may make a good account to Almighty God and leave some comfort to our posterity on earth. I mean to direct all my actions by good advice and counsel.

In honor of Elizabeth, I give you posts from my own ADR blog posse this week.  First, we honor the newest member, Nancy Hudgins of Civil Negotiation and Mediation who has proven her bargaining cajones by negotiating the price of a bottle of "Old Raj, a distinctive gin . . . distilled with saffron [that has] a slightly orange-ish color and a different subtle but piquant taste."  WWED -- What Would Elizabeth do?  I think she'd negotiate with terrorists but not without first consulting Andrea Schneider at the ADR Prof Blog.  If you read any Blawg Review post this week, let it be Diane Levin's  Mediation Channel post All Gardeners are Optimists:  What Squirrels Reminded Me about Conflict Resolution.  Poetry.  (cf. the summer issue of the r.kv.r.y. quarterly literary journal).  Gini Nelson offers us wisdom on the Myers Briggs Indicator that will tell you everything you need to know about your "type" other than your sexual preferences.  (cf. her ABA article on the same topic here).  Are you a Virtual Virgin?  Then run right over to Mediation Mensch's post on "Getting Virtual."    Though Stephanie West Allen hails from the Renaissance rather then the Elizebethean era, anyone worried about the well-being of their parents should check out her Idealawg post Mediation Can Work in Many Elder Care Situations.  We hope Justin Patten won't mind our making him an honorary ADR British Queen by linking to Human Law's post from last week:  As we head into recession and a wave of redundancies does the Human Resources profession have some flair and imagination?  We do have an American ADR "Queen"  -- Chris Annunziata -- who will hopefully forgive me for giving him honorary ADR Queen status.  Our academic readers could benefit themselves and our "on the ground" professionals by reading this week's CKA post Why Nobody Really Reads Law Review Notes here.  My high school French is bad, but it looks like French mediator Dominique Lopez-Eyechenie is reporting that mediators have been deployed to the Metro to referee disputes there -- is that right Dominique?  Finally, the Health Care Neutral (our last honorary male ADR Queen) talks about immunity and couldn't we all use just a little of that?

Below:  Madonna and Friends -- Like a Virgin for your listening pleasure while reading this week's Blawg Review. 

Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was.  Thanks for letting us play.  And a very, very, very good night!

Thanks to the following law blogs sending link love our way:

Legal Blog Watch

Patent Baristas

Patently O

Pharmaceutical News and Resources

Likelihood of Confusion

Idealawg

Thanks to CKA Mediation and Arbitration Blog for the honorary NoDoz Award (here's the ADR Executive Summary of #171, Chris)

 

 

Chicago IP Litigation Blog

Above the Law

What About Clients?

The Mediation Channel

f/k/a

Quiz Law

Law is Cool

LexBlog

Amateur Economists

Build a Solo Practice

a fool in the forest (with special thanks for brightwhiteandsparklinglyvirginal)

Engaging Conflicts

mediator blah blah . . .

The Bizop News

And Google News no less . . .

(Blush) many thanks to Infamy or Praise for suggesting #171 "is a strong contender for Blawg Review of the Year."

The New York Personal Injury Law Blog (Linkworthy) which apparently thinks the title is more interesting than the post itself.  

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Mr. Thrifty and I tried Scrabulous for the first time this week because we assumed it would be our last chance.  Last night, we were playing Word Scraper (first game above).  We haven't figured out the rules but we think we like it. (exciting household, right?)

I'd post my own thoughts on Hasbro's lawsuit but the AmLaw Daily says it better than I could:

LITIGATORS OF THE WEEK
Kim Landsman and John Knapp of Patterson Belknap

Doug Masters, you have a future in fortune-telling. Last week, the IP chair at Loeb & Loeb told the Am Law Daily that suing the makers of Scrabulous, the online Scrabble knockoff, might not be the best move for Hasbro, which owns North American rights to the game.

"There seems to be a good amount of enthusiasm towards Scrabulous that has revived interest in Scrabble," Masters said. "You certain don't want to dampen that enthusiasm in the name of trademark infringement."

No you don't. You don't want Facebook users creating groups called "Down with Hasbro." You don't want potential customers to say your client is "technologically in the dark," "short-sighted," and "despicable." You certainly don't want angry hackers shutting down Hasbro's Web site, justifying the vandalism with an explanation that goes like this: "You didn't have the smarts or initiative to come up with as good a product as [Scrabulous], so your alternative is to mess with the superior product?" But according to The New York Times, that's what happened after Hasbro's suit forced Scrabulous off of Facebook earlier this week.

As we've said before, Litigator of the Week honors don't necessarily go to those who had the biggest win. Sometimes, it's just about who created the biggest stir. And this week that distinction belongs to the lawyers who filed Hasbro's suit: Patterson Belknap Webb & Tyler partner Kim Landsman and associate John Knapp. They wrote a well-reasoned complaint, achieved quick results, and succeeded in protecting Hasbro's intellectual property. But was it worth the backlash?

Find out here!

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Because the introduction of the movie Magnolia narrates the best criminal law bar exam question in the history of film, period, I posted it for you over at the Settle It Now Negotiation Law Blog here.  Below, the haunting last scene of that dark comedy -- Aimee Mann's Wise Up -- below.

If you want to access the mind of criminal attorneys (who have all the fun!) then run, don't walk, over to Simple Justice for a satisfyingly meaty Blawg Review.  What?  No IP crimes?  Mediating sunglass and handbag counterfeiting disputes is as close as I ever get to criminal law and then the question is always an ethical one -- can you imply that charges will be dropped if a civil settlement is entered into.  I believe the answer is "no" but I see it done all the time.

Stay tuned here for next week's Blawg Review which will be penned by the members of the IP ADR Blog. 

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We LOVE the law here at the IP ADR Blog.  And we're huge supporters of the Rule of Law as society's Great Leveller.  We're not, however, all that enamoured of lawsuits as a means to create business opportunity or to stem business losses.

Take a look, for instance, at Bill Gates recent comment about the use of Microsoft Windows in China -- the system is used on 90% of Chinese PC's but most of those OS's are pirated.  

Officially, the software giant has taken a firm line against piracy. But unofficially, it admits that tolerating piracy of its products has given it huge market share and will boost revenues in the long term, because users stick with Microsoft’s products when they go legit. Clamping down too hard on pirates may also encourage people to switch to free, open-source alternatives. “It’s easier for our software to compete with Linux when there’s piracy than when there’s not,” Microsoft’s chairman, Bill Gates, told Fortune magazine last year.

For the full article from the Economist -- Piracy -- Look for the silver lining Piracy is a bad thing. But sometimes companies can turn it to their advantage, click here.

h/t to slashdot

And to show you how deeply our commitment to the Rule of Law runs and why watching television when I was a kid wasn't a completely losing proposition . . . here's Andy Griffith (and Opie aka Director Ron Howard) on eavesdropping . . . . "the law can't use this kind of help"

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 MATTEL WINS FIRST PHASE OF TRIAL, BUT SO WHAT?

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Sometimes lawsuits, demand letters and take down notices have a larger purpose than simply making a claim against a single individual.  Whether or not AP intended to engage the entire blogging community in a public conversation about fair use of copyrighted news content content, engage them it did. 

Now AP has settled with the original target, the Drudge Retort, while engaging in one of our most highly recommended dispute resolution activities -- talking to the stakeholders about ways in which all parties can mutually benefit one another.  

See abbreviated AP announcement below. 

AP, blogger resolve dispute over copyright
By SETH SUTEL – Jun 20, 2008

An AP statement Thursday night said the company had provided additional information to Cadenhead about posting its material online, and both sides considered the matter closed. It also said the AP was having a "constructive exchange" with a "number of interested parties in the blogging community" about the relationship between bloggers and news providers, and intended to continue the dialogue.

Earlier this month the AP sent a legal notice ordering Cadenhead to take down seven entries on the Drudge Retort, his takeoff on the Drudge Report. The news agency said the postings were violating the AP's copyright. . . .

Cadenhead said in his blog post that he wouldn't reveal details of his discussion with AP attorneys about their specific objections to the blog entries until the AP releases guidance for online use of its content.

Duchene said he expected disputes between news organizations and bloggers over permissible use of copyright material online to continue, but he also said he was "hopeful that future disagreements can be handled in a less confrontational manner." 

Here's the Drudge Retort post about the settlement.

 

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When I was practicing, I'd tell my clients that litigators and trial lawyers were the profession's surgeons.  We were the people they wanted to avoid because surgery is costly and potentially life-threatening.  

Transactional lawyers, I stressed, were the Internists of the profession and they should be consulted early and often.

Because we can't prevent litigation any more than we can prevent strokes and heart attacks, we have INSURANCE.  If your business has protectable trade secrets, a patent portfolio, valuable copyrights, coveted trademarks/names or any other type of intellectual property (and all businesses do) mosey on over to the Gauntlett on Insurance Blog's recent post Restoring Balance to the IP/Insurance Interface.

Most major corporations have procedures, either through existing personnel or through the aid of consultants, that:

• Identify and evaluate the full range of IP;
• Determine the level of patent, copyright or trademark infringement by the company or others;
• Reduce exposure to legal action by managing risk;
• Protect residual risk through insurance.

The challenge comes in the last component through identifying products in the marketplace that can create similar opportunities for reimbursement and designing protocols to assure that the maximum policy benefits available to the company are properly secured.

How challenging is it to "assure that the maximum policy benefits available to the company are properly secured"?  Allow me to share my experience.

Though I have pursued coverage claims and bad faith actions against insurance carriers, by far the vast percentage of my coverage litigation practice was on behalf of insurance carriers providing excess CGL or D&O insurance to Fortune 50 companies.  Occasionally (not often) I'd also take a look at smaller claims to determine in the first instance whether coverage was available.  Some of those claims were from companies seeking coverage for patent or copyright infringement litigation.  

Here's my advice.  If you believe yourself vulnerable to suit, don't rely solely on your risk management department.  Get an annual insurance check-up by a specialist in IP insurance coverage issues.  Then get a second opinion from an insurance litigator.  I know that sounds expensive.  But it's a drop in the bucket compared to the first six months of IP litigation.  Think:

• electronic discovery
• complex procedural manuevering
• depositions of your key personnel
• media coverage

Get the picture?  Not only do you not want to hire insurance coverage litigators, you never ever want to see a mediator or settlement officer with insurance company experience.  Why not?  Because by the time you're willing to sit down with the opposition to settle a case with the aid of a third-party neutral, you've already lost no matter how great a deal you cut to terminate the litigation.

So if you can't save yourself from having a coronary, at least buy yourself a policy of insurance that will cover the likely (and unlikely) claims that put your company's life at risk.

(and, yes, insurance companies do look for ways to deny you coverage; make it improbable or very very risky for a carrier to do so)

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Thanks to LexMonitor for sending us to Rebecca Tushnet's 43(B)log  alerting us to Harvard's  Right To Teach: an Educational Fair Use Project.  We've often said that the best alternative to litigation is prevention -- here the attempt to create a "Statement of Best Practices" that will

help draw to the surface and articulate a consensus in the academic community about the scope and limitations of user rights in a contemporary culture that is, on the one hand, increasingly participatory and technologically innovative and, on the other hand, increasingly marked by the expansion and tightening of traditional copyright.

Read the full project proposal here (.pdf)

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What follows is a Press Release from the National Arbitration Forum

MINNEAPOLIS, June 24, 2008—The National Arbitration Forum issued decisions on the rights to YouTube.net, CTV.com, and AmericanGirl.net. Conflicts over domain names are on the rise. The dispute resolution provider handled 1,658 domain disputes in 2006, a 21 percent increase from the prior year, and 1,805 disputes in 2007.

The following decisions were made in accordance with the Uniform Domain Name Dispute Resolution Policy (UDRP) of the Internet Corporation for Assigned Names and Numbers (ICANN) by independent and neutral arbitrators on the National Arbitration Forum Panel.


YouTube.net

Complainant Google Inc., owner of the popular video sharing site YouTube.com, filed a complaint on March 11, 2008 against YiWuShi Shuangfeng Jixie Youxian Gongsi of China, the registered owner of YouTube.net.

The National Arbitration Forum Panelist followed traditional UDRP principles in disregarding the functional “.net” generic top-level domain (gTLD) when determining the “YouTube” domain name was identical to Complainant’s YOUTUBE trademark. The arbitrator also found that the website at the domain name advertises and displays adult-oriented content. The owner of YouTube.net registered and used the domain name in bad faith based on the fact that it was using Complainant’s well-known mark to provide such content. For these reasons, the National Arbitration Forum granted transfer of YouTube.net to Google Inc. on May 5, 2008.

CTV.com

Complainant CTV Inc., a Canadian English language television network, brought a complaint against CTV.com owner Murat Yikilmaz of Turkey, on April 11, 2008.

Complainant has used the CTV mark since 1961 to identify its goods and services, and registered the CTV mark in 1974 with the Canadian Intellectual Property Office. A three member Panel found that the domain name was identical to the CTV trademark. The Panel determined that the three letters which constitute the essence of the disputed domain name are generic initials used by many parties to identify many goods and services. The Panel found Respondent to be in the domain name warehousing business, specializing in three character domains. Respondent’s use of CTV.com to attract Internet traffic is a legitimate business interest, especially in this case where none of the advertisements are related to Complainant’s television operations. Additionally the Panel found CTV Inc. had not proven the domain name was registered or used in bad faith. The majority of the Panel denied Complainant’s requested relief on June 10, 2008. Panelist Kerans dissented in the decision, inferring that Respondent likely was aware of CTV Inc.’s business and mark in Canada and the U.S.

AmericanGirl.net

American Girl, LLC, a subsidiary of Mattel that manufactures dolls and books for young girls, submitted a complaint against The Tidewinds Group, Inc on February 25, 2008 seeking transfer of AmericanGirl.net.

The National Arbitration Forum arbitrator found that the domain name was identical to the AMERICAN GIRL trademark, which Complainant had submitted into the record. Further, Respondent used the site to display links to commercial websites, proving no legitimate interest in the disputed domain name. Finally, the Panelist looked at the registration and use of the disputed domain name. It was found that Respondent registered the domain name in 2002, three years before the application filing date for the AMERICAN GIRL mark that Complainant provided. While noting that Complainant provided no evidence that it possessed common law rights or any other trademarks previous to 2005, the National Arbitration Forum Panelist found no bad faith registration or use and denied transfer of AmericanGirl.net to American Girl, LLC on April 16, 2008.

To file a claim see www.domains.adrforum.com. Contact domaindispute[at]adrforum.com with questions. Media please contact Christina Doucet at 952-516-6486 or cdoucet@forthrightsolutions.com.

About the National Arbitration Forum
Based in Minneapolis, Minnesota, United States, the National Arbitration Forum is an international leader in arbitration and mediation services. An innovator in the industry, the National Arbitration Forum was appointed an approved provider of the Uniform Dispute Resolution Policy (UDRP) by the Internet Corporation of Assigned Names and Numbers (ICANN) in 1999. Since then, over 10,000 domain name disputes worldwide have been filed through the National Arbitration Forum’s state-of-the-art case management system, now optimized by Forthright. For more information, visit www.domains.adrforum.com.

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Hap tip to Corner of Lex and Biz for Drawing that Explains Copyright Law with link to Eric J. Heels' Copyright rights, unregulated uses, and fair use whose drawing appears below. 

This is a plea from your mediator.  Yes, I love the well-wrought narrative and yes I am a sucker for persuasive prose. 

But after I read your brief, I DIAGRAM your argument, connect the party relationships with different colored pens, make charts of the legal issues, rights, obligations, damages, business interests and the like.  

Guess what?  You could do this for me. 

And if you do it for me first (or if you are the ONLY one to do it) you will have a greatest influence on the way in which I visualize the case.  You will frame the issues and set the stage.  And though I will struggle -- as always -- to be impeccably neutral, you will have the upper hand in persuading me of anything I need to be persuaded of to depress the other side's expectations of success on the merits. 

Help me help you.

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Mediating a fairly run-of-the-mill commercial case – a fight over the sale of an import business --  a federal settlement officer slowly begins to conclude that the parties are bargaining over the value of a business that trades in counterfeit Louis Vuitton and Gucci handbags.

Is this the moment when the mediator asks herself, if I’m carrying a pricey Prada, should I push the parties out of my pad?

But that’s the Carrie Bradshaw question.

The mediator’s questions go more like this: as a neutral mediator, do I have a duty to: (a) chastise the parties for engaging in illegal conduct; (b) recuse myself to avoid participating in the creation of an illegal agreement; or (c) inform the parties that any settlement reached might not be enforced?

Before answering these difficult questions, consider the recent case of Hye Young Yoo v. Sue Jho (Calif. Court of Appeal, 2nd Dist).

Yoo, the purchaser of a counterfeit handbag business, sued the seller after investigators confiscated the counterfeit goods, which naturally caused the business to fail. Yoo wanted some or all of her money back and the trial Court (wearing black polyester) agreed -- to the tune of $103,250.

Not surprisingly, the appellate court, slightly more Manolo Blahnik but nevertheless also sporting black polyester robes, held that when it comes to illegal contracts “the law will leave the parties as it finds them.” Id. In Yoo, leaving the parties the way the Court found them meant some pretty good times for the defendant. She stole Gucci and LV designs, sold them to (unsuspecting?) customers and made a cool $400K at a time when she was likely looking over her shoulder for the law to close in.

So, what’s a neutral mediator to do?


For the tentative resolution, click here.

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Take a look at the new LexisNexis Copyright Law Center where we're pleased to be featured along with our friends at IPKat, the first Blog to welcome us to the IP Blogosphere.  Here's what LexisNexis has to say about its new Copyright Law Center:

We take pride in associating with the best talent in the legal world, so we are thrilled to include you as part of this dynamic new platform that features commentary from experts and gives visitors to the site the ability to interact with the content and one another. Also featured on the site is real-time copyright news, blogs from internal teams at LexisNexis and outside contributors, and news about attorneys, firms, and corporations, plus delivery options, including RSS feeds, podcasts and email alerts.

The selection of your blog was made by the Copyright Team responsible for the Matthew Bender Copyright publications as one of those most often visited, referred to and relied upon. . . .

Thanks LexisNexis!  We'll be nosing around the Copyright Law Center ourselves in the coming weeks.  Appreciate your including us.

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I've always said that the biggest lie in any business is "I don't take it personally."

It seems that some personal-offense-taking may be one of the reasons the lawsuit between billionaire J.K. Rowling and Fan-Lexicon-Site-Builder Steve Vander Ark has not settled (covered by our own Mike Young here and here). 

See Tim Yu's Talk of the Town piece Fan Feud in this week's New Yorker for the slight that may account for taking this spat to the bitter end.  Excerpt and link to full column below.

Last summer, at a “Harry Potter” convention in Toronto, a fan named Steve Vander Ark made a similar mistake when he dared to compare himself to Joanne (J. K.) Rowling. “It is amazing where we have taken ‘Harry Potter,’ ” he said to a crowd of dedicated “Potter” fans. Many readers dislike the epilogue in the final book; Vander Ark urged them to disregard it entirely, and even invented his own spell to do so (“expelliepilogus”). “Jo’s quit, she’s done,” he told the audience. “We’re taking over now.”

Comparing yourself to a living god can be risky, and Vander Ark has suffered cruel fates, in court and in the world of “Potter” fandom . . .

Continue reading here.

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A little slow on the uptake here in alerting U.S. readers to the official launch of the Anti Copying in Design organization's U.K. Mediate to Resolve service.  Illustration and excerpt direct from IPKat.  Mediate to Resolve's list of Mediators here.  For full IPKat post, click here. 

Not a side issue but an event in its own right, the official launch for ACID's Mediate to Resolve scheme was one of the reasons for the cork-popping at that organisation's 10th birthday party in London last week.

Right: handled properly, a good mediation can produce amicable, workable arrangements even between even potential foes

For the uninitiated:

"ACID’s (Anti Copying in Design) national Mediate to Resolve service for dispute resolution is based on the organisation’s extensive experience handling mediations. Just under 2,000 ACID mediations have taken place, of which less than 30% have required further legal intervention. ACID’S national network of Accredited Mediators offers a wealth of intellectual property dispute resolution experience. Their mix of negotiation style and skill provides a comprehensive service to those seeking mediation as a real alternative to litigation.

Many organisations are not familiar with the stages of the mediation process – and there is no reason why they should be – until they need it! We hope this booklet will clarify the use and process of mediation and help to explain the route to dispute resolution. At ACID, we are frequently asked “What mediation is and how does it work?” Mediation is a confidential meeting between two parties who are in dispute which enables them to retain control over the outcome. They are guided through the process by a skilled mediator who will use his or her expertise to restore or rebuild a harmonious relationship, but has no authority to impose an outcome.

These days the demands on businesses to succeed and grow are severely hampered by the increase in intellectual property infringement. Taking action against those who seek the fast track to market through IP theft places huge fiscal and time restrictions on the day-to-day running of organisations. ACID has spent the last decade encouraging parties in disputes to seek mediation sooner rather than later and Government is now sending a strong message to judges to look more favourably on disputing companies who seek mediation prior to any court applications". . . .

Continue reading here.

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R. David Donoghue over at the Chicago IP Litigation Blog is hosting a "Carnival" of Blogs that is new to me -- The Carnival of Trust.  

As David explains:

The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links. My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more.

We're pleased that our sister blog -- Settle It Now -- is included in the category Trust in Leadership and Management along with Charles H. Green's Trust Matters; George Ambler's Practice of Leadership;  and Stephen Albainy-Jenei's Patent Baristas  (if they gave awards for blog template design, PB would win in my book every day of the week).  In this crowd I feel like Zelig!

Here's David's generous mention of the Settle It Now Negotiation Blog and my recent post on convincing your clients to give up more than you (their attorney) predicted while still maintaining your credibility.

On the subject of trust-based leadership, Victoria Pynchon at the Settle It Now, Negotiation Blog has an excellent guide for maintaining your client's trust during a difficult negotiation: How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility? The answer is complex and multi-faceted, but it boils down to the fact that you have to get the stakeholders and decision makers face-to-face, get their buy in on resolution as a goal (in addition to winning), explore all avenues of resolution, and you have to let them explore all aspects of the dispute, even those that do not matter. The last point is a difficult one for lawyers. As a lawyer you generally want to remain focused on the settlement inputs -- money, confidentiality provisions, sale of existing product if something about the product is being changed, etc. -- but from a trust perspective it is important that the stakeholders resolve not just those issues that go into a final agreement, but any problems or concerns they have related to the dispute or the parties to the dispute.

And let me just add here -- though I'll sound like a broken record to my regular readers -- that business people seek out lawyers because they believe themselves to be victims of injustice. (see my short-short video on this topic here)

Though I, as a mediator, am always seeking business solutions to legal problems, the client's injustice problem must be addressed to maintain your credibility (and retain your client's trust.).  Every great mediator I know will address this issue with your client unbidden.  If you're using less than great mediators --  raise the issue yourself -- all competent mediators should be prepared to address the issues foremost on your client's mind right including -- Will I lose?  How much more is this going to cost me? and Am I Being Extorted or Low-Balled?

Thanks for the mention, David!  We're happy to see Settle It Now mentioned by an IP Blog as influential as yours.  Every IP dispute involves the same issues as every other commercial dispute, requiring the parties to go beyond their legal positions; explore all of both parties' commercial interests; create value from potential business synergies; claim as much of that value as possible; craft business solutions to legal problems; and, frankly address the injustice issues that led your client to seek you out in the first place. 

They'll be yours for life.

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The significant problems we face cannot be solvedby the same level of thinking that created them.--Albert Einstein

Lawyers, philosophers and scientists are all trained to question first principles.  The right of one individual to the absolute and exclusive right of dominion over property by virtue of creation or payment (by money or barter) is one of the first principles of capitalism and is rarely questioned. /**

The ownership of ideas, however, and one's entitlement to preclude others from interfering with another's dominion over them, is more slippery today than ever.  In this month's Harvard Business School Working Knowledge journal, for instance, Professor James Heskett kicks off a reader's forum -- Who Owns Intellectual Property -- (open until April 24) with the following:

I [recently] visited the website of the branding consultancy Wolff Olins, responsible for creating the branding for (RED), which raises money for The Global Fund being promoted by Bono and Bobby Shriver. (RED) is a brand, a piece of intellectual property that was designed purposely to be co-opted by others wishing to incorporate it into their advertising. Organizations such as Apple, Gap, and American Express have promoted their products and services using (RED) while raising money for The Global Fund.

Wolff Olins' homepage presents a provocative redefinition of brands as practical platforms that enable people to do things. In its words, "As brands become less the property of an organisation and more the banner of a movement, ownership will become even looser. Logos will be things other organisations, and individuals, can borrow and adapt." That belief, they maintain, will require that some companies, in their own best interests, relinquish control over brands and "be more generous" with consumers. In other words, they take the risk of transferring ownership and quality control of what used to be called their brand to others. In this case, who owns the intellectual property?

More generally, are views of ownership of intellectual property changing? If so, how will it affect the way intellectual property is valued for financial purposes? Are laws worldwide regarding intellectual property out of date? What do you think?

To add your own thoughts, click here.

____________________

/**  Though possibly apocryphal, in responding to the question "what proof need I present to demonstrate my ownership of this slave," a trial judge sitting in a non-slave state in 1840's America is said to have answered, “a bill of sale from God Almighty.” 

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Harry Potter and Copyright Fair Use junkies know this already -- there is a firestorm brewing between the not insignificant powers (and financial resources) of JK Rowling and her Harry Potter franchise (which includes Warner Brothers) on the one hand and RDR, the wanna-be publisher of a fan's "Lexicon" or reference guide, on the other.

And the battleground is copyright's amorphous fair use doctrine.

Potter fan and Michigan middle-school librarian Steven Vander Ark has a very popular and comprehensive website that is considered to be the most authoritative reference to the Harry Potter series. 

Among other things, the Lexicon collects in alphabetical order information on the series' characters, places, spells, potions, and more, quoting liberally from the original language in the Potter books. The Lexicon was so popular, and so comprehensive, that JK Rowling herself frequented it as a reference guide and awarded it a "fan site award" in 2004.

Rowling's views changed, however, when she learned that Vander Ark had cut a deal with book publisher RDR to create the Lexicon in hard copy and sell the book in stores.  Before it could be published, Rowling brought suit in New York, claiming copyright infringement.

Her legal position is that the Lexicon merely reorganized, but otherwise copied, her words and ideas -- a blatant infringement of her most basic copyright in her creations.

As Rowling notes, she has the exclusive right to create derivative works which is what the Lexicon is.  Rowling further asserts that she intends to write her own Harry Potter encyclopedia of sorts in the next decade, with proceeds to be donated to charity.

RDR is screaming fair use, arguing that the Lexicon is transformative of the original work -- that is,  taking the original and creating a wholly new and different work of authorship. RDR points to reference guides that have been published for innumerable other works of fiction, including ones for The Lord of the Rings and The Chronicles of Narnia.

So which is it, an infringing derivative work, or a transformative fair use? My fellow panelist on last month's USC IP Institute Fair Use Panel, Tony Falzone has an opinion -- Fair Use.

Indeed, Tony and the Fair Use Project are representing RDR books in the trial currently pending before New York Federal Court Judge Robert Patterson Jr. while Dale Cendali of O'Melveny and Myers' New York office leads the charge for Rowling's camp, and not surprisingly sees nothing transformative at all about the Lexicon. 

For details on the trial, take a look at the WSJ blog here the gothamist blog here.   Both are providing terrific day to day coverage of the trial.

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In the epic Harry Potter copyright fair use battle now under way in a District Court in New York, the mortal judge is wondering out loud -- from the bench -- why these parties can't just settle their dispute.

For background on this fascinating Copyright dispute, click here.

U.S. District Court Judge Robert Patterson Jr., after referencing Bleak House -- Charles' Dickens tale of endless litigation -- noted that it was “a very sad story. Litigation isn’t always the best way to solve things."

He went on to ask the parties: "Can it be resolved another way? I feel that this case could be settled and should be settled."  "I think this case, with imagination, could be settled."

Despite the invitation, even Rowling's apparently boundless imagination could not be tapped to think creatively about a global settlement.  As reported by the WSJ Law Blog here, the parties have reached a settlement of the relatively inconsequential false advertising and deceptive trade practices claims, but the copyright/fair use dispute -- the meat of the case -- continues.

Is the judge wrong to think that a high profile copyright case that makes a star of the fair use doctrine could be settled?  Or as one of the participant's asked, how do you settle with a billionaire?

Answer:  To settle with a billionaire, you need to offer something that the billionaire wants more than money.

The first task, then, is to figure out what that is. Why is Rowling fighting in the first place? What is her motivation?

We get some indication of what propels her from her own testimony at trial: protection of her characters, her "17 years of . . . hard work," her desire to write a Potter encyclopedia of her own one of these days, proceeds of which she says she will donate to charity.   Indeed, in the preliminary injunction papers filed by Rowling, she made a point of saying that she has already donated $30 million to charities.

This gives any good mediator plenty of things to work with in trying to explore settlement possibilities.  Rowling may want good press; she may want to build an image as a philanthropist; she may want to be seen as a protector of authors' rights. 

What about exploring a settlement where the Lexicon is published but some of the proceeds are donated in  Rowling's name to a charity of her choice.  If she is interested in giving young writers a leg up, the publisher could offer to open doors for young writers, one of whom could co-write or co-edit the Lexicon.

To protect Rowling's characters, RDR could agree to a licensing arrangement, thereby ensuring that no precedent is set.

A little imagination, as Judge Patterson so aptly noted, can go a long way towards finding ways to satisfy the underlying interests and motivations of all parties.

The conflict resolution side of me would love to explore ways to end the Rowling/RDR dispute in a way that satisfies all interested parties.  I am convinced there is a settlement out there to be had, if only the parties would explore it with an open mind.

On the other hand, the fair use junkie in me is avidly interested in how this monumental battle will shake out.  Fair use is an amorphous concept at best, as was made clear at the USC IP Institute Fair Use Panel last month.

Further judicial guidance -- and this one is definitely headed to the appellate courts -- would be a welcome contribution so long as it helps to clarify, and not further muggle, er, muddle, what constitutes fair use.

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Former Federal Magistrate and IP ADR Blogger, John Leo Wagner and I presented Tactics of the Adept in Modern Mediation Practice today at the ABA ADR Convention in Seattle. 

We had a lively discussion about the ways in which "at the table" tactics can be strategized in advance to assure that the right people are available for deployment at the optimal time to maximize the potential for the most effective and efficient settlement possible.  We also covered end-game strategy; deal points; and bridging techniques.

You can get a taste of the discussions by downloading our power point presentation linked above.   

Though there were a plethora of afternoon programs following our own, I was happy with my choice of the session conducted by Los Angeles complex commercial mediator Jeff Kichaven (JAMS). 

Jeff led a great discussion among mediators and litigators alike concerning settlement conferences in which coverage is an issue.  

The panel, entitled Hobbling through the Three-Legged World of Insurance Mediation:  How to Get More Third Party Liability Cases Settled was masterfully moderated by Kichaven, who drew from both panel and participants thoughtful questions and sophisticated answers.

Jeff was joined on the panel by Michael Wrenn, insurance recovery litigator in Heller Ehrman's Seattle office, who provided the viewpoint of the insured whose carrier is defending, but denying liability for any settlement by or eventual judgment against the insured.  Wrenn stressed the utility of pre-mediation conferences; the potential need for mediator assistance with client expectations; and, those rare but satisfying mediations where the mediator -- based on his ability to "bond" with the client -- sends both litigator and client away settled and satisfied.  

Also joining Jeff was Cozen O'Connor coverage litigator Thomas M. Jones (Seattle).  Jones stressed the need for neutrals to shoulder the burden of assessing and communicating the weak points of his own and his adversary's legal and factual weaknesses in a persuasive and even-handed manner.  Trust in the mediator's neutrality in providing all sides with candid assessments of risk was stressed as perhaps the most important of a mediator's usefulness to Mr. Jones and his carrier clients.

 

Finally, ACE-USA in house counsel Jonathan Roth added the client's perspective.  Mr. Roth was refreshingly candid and animated, stressing several times that his superiors "don't like to be surprised" and encouraging mediators to be as candid as possible with "bad news" they might think the client representative does not wish to hear.

 

 

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by the incomparable Charles Fincher of LawComix!

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From Concurring opinions here

As the folks at Recording Industry v. The People note, the 109-page complaint begins by invoking the RIAA's statement that it sometimes catches dolphins when fishing.

It is a bold way to show the possible callousness of the RIAA and MediaSentry . . . but seems a bit reliant on the "see they are evil" idea rather than solid causes of action.

I have only scanned the complaint but the other claims could pose problems for the RIAA.

The RICO claims and the trespass to chattels claim offer chatter fodder. If nothing else the chattels doctrine which has been questioned if not mocked may end up protecting individuals in these cases.

Furthermore, the privacy claims seem to go to property ideas in that once the plaintiff thought something was on her computer (based on alleged acts by the defendants) she spent money to protect her property. With 109 pages there is more to think on but those alone catch attention.

For remainder of post click here.

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Mike Young writes to tell us that the USC IP Institute is coming up on March 17 and 18. See brochure below. 

Mike is moderating a panel on fair use with a a group of experts, including Tony Falzone. Tony is with Stanford's Fair Use Project, and is currently in hot litigation with J.K Rowling over a publisher's right to publish a "reference guide." The case is set for trial on March 25th in New York. 

At the special interactive in-house counsel forum on March 17, the panelists will ask -- while in-house counsel have led the charge for ADR and mediation in other fields, why are they reluctant to take their IP disputes to an ADR forum, mediation in particular?

The Rowling litigation may also be worth a mention at this forum.

Mike asks why not mediation?

Don't know what to offer a world famous billionaire author? How about an enhanced reputation or donating some of the boooks' proceeds to charity? How about establishing a Rowling Fellowship for an aspiring author with a disadvantaged childhood, similar to Rowling's.  Just because someone is not motivated by money doesn't mean she is not motivated. Mediation allows the parties to explore just what that motivation might be.

The Rowling docket sheet is here.  

The Rowling motion for injunction is here. 

The RDR Books opposition is here.   

The Court decided to turn the injunction hearing into a trial on the merits.

IP Forum - Get more free documents

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“Never before in history has innovation offered promise of so much to so many in so short a time.”

"Intellectual property has the shelf life of a banana."

These two quotes from world-class innovator and IP rights owner, Bill Gates, say it all about the state of intellectual property today. While most people are aware of the intellectual property concept - of copyright, patents, industrial designs and trademarks - many still view them as business or legal concepts with little relevance to their own lives. To address this gap, WIPO’s Member States decided in 2000 to designate an annual World Intellectual Property Day. They chose April 26, the date on which the Convention establishing WIPO originally entered into force in 1970.

Continue reading here.

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This is the sort of statement I simply cannot resist.  Thanks to TechDirt!

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. . . . He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

-- Thomas Jefferson, courtesy of TechDirt's post On the Constitutional Reasons Behind Copyright and Patents -- click here for the full post.

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Recently I re-posted Five Ways to Minimize Risk of Copyright Liability from Citizen Media here. 

Today, IP attorney extraordinaire Tamera Bennett (left) dropped by to remind us of our own ADR "core values," i.e., self-determination and respect for the rights of others.  

Instead of simply approving Tamera's comment, I decided to bring it up here for everyone to see. 

The easiest way to get along with our fellow artists?  

Get a license! 

If you have genuine affection for the work of another, drop them a line, pick up a phone, send a carrier pigeon.  

"I really love your work." 

Then ask for permission to use it. 

Just do what your mother taught you.  Ask nicely.  Say please.  Then thank the nice copyright owner for being so generous with his/her work.  You'd be amazed at people's generosity, especially when you couple it with a (true) statement such as "I'm a young artist and don't have a lot of money but would really like to . . . . . " 

If you can't say that, i.e., if you have the money to pay the license fee, for heaven's sake support your fellow artists.

Tamera's comment below.  See her blog, Current Trends in Copyright, Trademark and Entertainment Law here. 

I have several concerns with the listing of ways to avoid copyright infringement.

1. "Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message" ---- Clients come to me and want to know how much of the song can I use or can I reprint a portion of this chapter of the book, or can I use this poster in something else. I advise the client to get a license. Fair Use is a defense which is very difficult to win. There is no cut-and-dry rule that you can use three bars from the song before liability attaches.

2. Add something new or beneficial (don't just copy it -- improve it!) --- This trips folks up all the time. Adding something new does not protect you from copyright infringement. You need a license to create a derivative work. Adding something new to someone else's copyright is a violation of the copyright owner's exclusive right to allow for the creation of derivative works.

Remember, if you did not create it, you probably need a license to use it.

In line with Tamera's advice, see No copyright for derivative works without permission over at the Chicago IP Litigation Blog.  Excerpt below. 

Photo my own -- a surprising street scene outside my front door. 

Plaintiff took a series of photographs of defendants’ Thomas & Friend toy trains, each pursuant to a provision that defendants could only use the photographs for two years. Plaintiff argued that defendants infringed plaintiff’s copyrights by using the photographs after the two years were up.

But the Court held that plaintiff had no copyright. The photographs were derivative works based upon defendant’s copyrighted Thomas & Friends train engines and cars. The party making a derivative work must have the copyright holder’s permission to copyright the derivative work. While plaintiff had the right to make the derivative works, plaintiff was not granted the right to copyright them. Plaintiff, therefore, had no copyright.

 

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Unbelievably extensive link roll to global IP resources in a single week!  Check it out.  I just subscribed but am thinking I'd need to take a vacation to keep up!

Thanks Duncan!

By the way, the patent infringement case I was talking about involved one co-defendant selling its business to another co-defendant where the two businesses had different geographic markets; different distribution channels; different strengths; different weaknesses; and, the seller was cash poor due to the litigation.

Thanks for picking up our post.

And welcome to the neighborhood.  When I get a moment, I'll add IP Think Tank to our Blog Roll.

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We've said this before:  prevention beats every dispute resolution mechanism available so long as you do not limit your own freedom out of fear of liability.  

That said, here are the top five tips for using copyrighted material fearlessly from the extraordinarily concise and helpful "Primer on Copyright Liability and Fair Use" from  the Citizen Media Law Project Blog.

While there is no definitive test for determining whether your use of another's copyrighted work is a fair use, there are several things you can do to minimize your risk of copyright liability:

• Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;
• Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;
• Add something new or beneficial (don't just copy it -- improve it!);
• If your source is nonfiction, limit your copying to the facts and data; and
• Seek out Creative Commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.

Read the entire Primer here.

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(right:  my attorney)

Yesterday I suggested that by reading Professor Marc Randazza's post Copyright vs. Free Speech (etc.) you could learn how to "respond to legal bullying without hiring a lawyer."  

When Paul Levy of the Public Citizen Litigation Group asked me what part of the Legal Satyricon's advice I was referring to, I pointed him to Randazza's citation of the Streisand Effect, the story of which reads as follows:

A few years ago, Kenneth Adelman posted aerial photos of Barbara Streisand’s home on the intertubes. Streisand got all Barbara on him and sued him for $50 Million. Before the suit, almost nobody had seen Adelman’s website. The lawsuit generated so much attention that millions of people hit his site and the photo was picked up by the AP as newsworthy. Barbara’s tantrum caused the exact opposite effect that she had hoped for.

Defending yourself from even a completely baseless defamation suit can be expensive. Accordingly, often the only defense that a citizen can afford is to rely upon the Streisand Effect, and hope that it turns into a Bickle Rain. (So named after Travis Bickle from Taxi Driver “Someday a real rain will come and wash all this scum off the streets”). Usually, when the victim of the overreaching lawyer brings the dispute to light, and the victim is in the right, the negative publicity can generate a “real rain” that will wash the scum off the streets — or at least convince the bully to be a bit more reasonable. 

Maybe it's because I'm nursing a low-level winter flu, but it didn't occur to me until early this evening that Mr. Levy might have been troubled by my suggestion that a blogger respond to a cease and desist letter without seeking legal advice.  

What I meant to suggest was that people who can't afford to retain legal counsel remain at liberty to resort to Streisand Effect Self-Help.  If there is any way for you to obtain legal advice, however, you should make every reasonable effort to do so if you are served with a cease and desist letter.  

For those who are wondering whether they should seek legal counsel, a great place to start is the  Public Citizen's Litigation site, which has a very informative Internet Free Speech webpage  and Levy's excellent outline on the Legal Perils and Legal Rights of Internet Speakers.

Although I've added bullets to an excerpt of Levy's list for clarity, it is only an outline meant to point its readers to available legal resources as well as to stress the serious nature of any legal tangle involving alleged copyright infringement.  When seeking legal advice from friends and relatives, please understand that even Uncle Joe's niece's husband who just graduated from Harvard Law School and is working for a fancy New York law firm, is not likely to know the answers to these questions.  This is a specialized area of law and only attorneys (or public interest groups) who specialize in copyright, free speech and the like are qualified to advise you.

Below, the excerpt from Levy's outline.  Download it in its entirety and print it out so you can read it in small bits from time to time.  For a non-lawyer, it's not easy to read and comprehend the entire outline.  If you take it a few paragraphs at a time, however, you shouldn't have any trouble getting the general idea.   At least you'll know what you don't know, which is the beginning of understanding.  Also see Levy's Post from the Consumer Law and Policy Blog on the issue here.

Demand letters

• Normally you get a demand letter first (but no guarantees)
• Don’t panic
  • most threats never lead to litigation
  • sometimes they are sent to make the client feel better, or to be able to say that suits was threatened
  • don’t give up your right to criticize just because you are threatened
  • But take threats seriously
  • Sometimes suit can be avoided without giving up your rights
  • Need to think through chances of success or loss and consider cost of defense worth paying for that sort of advice (without hiring lawyer for case)
  • think carefully about the demand letter though
  • if it does not make sense to defend case, consider giving in now, while it’s cheap
• Need to respond
  • Failure to respond in domain name case may be factor allowing plaintiff to file . . . [a law]suit in [a state] . . . located (far from defendant’s home)
  • [a] response can accomplish several things
    • Response is the first stage of litigation; must be drafted with litigation in mind anything you say can be used against you
    • judge and jury will see your response
    • Hence, legal advice is a good idea at this stage
    • Response might persuade the challenger that you are within your rights
    • If the challenger knows you will not just roll over, it may be more
      amenable to compromise
    • Response is also aimed at wider public
    • often, a good response can head off litigation by reminding the plaintiff how much the lawsuit will cost, not just in legal fees, but in bad publicity
    • do a press release; communicate with the Internet community
    • Good collection of documents on the Chilling Effects web site
      
• Getting Legal Help
  • Tempting to try to represent yourself, but it’s risky
  • easy to make devastating procedural mistakes, miss good legal arguments
  • in theory, courts should treat pro se defendants and their procedural mistakes more leniently. Haines v. Kerner, 404 U.S. 519 (1972) but they often do not
  • some courts are much better than others in helping pro se defendants cope
  • Second Circuit [federal court on the east coast] is particularly careful 
  • Hard to find a lawyer at an affordable price
  • unlike plaintiffs, hard to finance these cases through contingent fees or attorney fee awards
  • cases are time consuming and expensive; and you have to pay your lawyer even if you win
  • some states have SLAPP statutes [California does!] that provide for attorney fee awards when a suit against free speech is dismissed [so long as you meet all the criteria]
  • there are a handful of public interest groups [see linked .pdf] but they have very limited resources
  • if they can help, though, they will often represent clients all over the nation
    there are a few law school clinics interested in this area
  • some clinics help only in courts that are close enough for students to appear [see linked .pdf for list]

Thanks for dropping me an email Paul!  Much appreciated. 

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Thanks to Les Weinstein for hipping us to Mark Lacter's Daily Dragon -- this item on Jay Leno's federal copyright infringement action. 

It's always been a pretty gray area, but don't tell that to Jay Leno and Rita Rudner who have settled a federal copyright lawsuit against author Judy Brown and several book publishers. The comedians sued Brown in 2006, claiming that she reproduced their jokes, many of which were told on "The Tonight Show," without permission. Brown has collected and repackaged thousands of jokes by various comedians. The settlement also includes monetary compensation, which Leno, Rudner and NBC Studios will donate to charity.

For remainder of post, click here.

We've covered this issue before in Disputing Humor:  Comedy, Folkways and the Internet here.

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Reading the news in the blogosphere is sort of like reading your opponent's brief for the first time -- you're pretty certain you know that's not the law, but if you don't read the cases cited, it looks pretty nauseatingly right.  Nauseating because it makes your arguments about your client's legal rights . . . well . . . wrong. 

I rely on Plagiarism Today's Week-End Link Roll  as my IP News aggregator (thanks PT!  much appreciated!)  Yesterday, I was surprised to see PT reference a Techdirt post reporting not only Court Says You Can Copyright a Cease and Desist Letter but that you could be liable for infringement by posting on your blog a cease and desist letter sent  to you.   

This seemed wrong on so many levels (copyright, fair use, common decency, that little Constitutional Amendment we call no. 1) that it continued to bug me as I prepared for a dinner party last night and later over the kitchen sink.  I even woke up this morning thinking about it.  But I knew that someone in the blogosphere would have figured it out while I was sleeping.

How did we live without legal blogs in our lives? 

Gratitude aplenty to everyone this morning, most especially Ron Coleman over at Likelihood of Confusion who posted the answer to the question -- did the Court really say that?

Now that you're interested, just trot on over to Ron's blog to read Copyright in cease and desist letter?  Not quite.  

Thanks Ron! 

Everything is nice and orderly in my legal brain centers again.

If you want the holy writ on the Dozier Law firm's antics, read The Legal Satyricon's lengthy history and searing commentary in the post Copyright vs. Free Speech in Cease and Desist Letters.  And no, the word "chucklehead" isn't used nearly enough Marc!

I didn't mention the ADR angle -- how you can respond to legal bullying without hiring a lawyer -- a topic Professor Randazza covers better than I ever could in his post.  A must read for anyone interested in the intersection between Web 2.0 and the law and culture of intellectual property rights.

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I don't purport to be an expert in the field of internet monitoring for the prevention of copyright infringement -- though the word "prevention" does suggest prior restraints on free speech.   Because we are here at the commencement of the development of the law in regard to internet freedom, all lawyers, not just IP lawyers, should take an interest and let themselves be heard.

That said, I am providing our readers with links to the conversation taking place at the Concurring Opinions Blog and New York Times "Bits" Blog on internet neutrality.

Concurring Opinions alerted us to this Bits debate between Rick Cotton, the general counsel of NBC Universal, and Tim Wu, a professor at Columbia Law School. Full debate here and highlights here.  Further insight on this issue from Concurring Opinions here.

The issue in more detail as described by Bits' January 8 post, AT&T and Other I.S.P.’s May Be Getting Ready to Filter below.

For the last 15 years, Internet service providers have acted - to use an old cliche - as wide-open information super-highways, letting data flow uninterrupted and unimpeded between users and the Internet.

But I.S.P.’s may be about to embrace a new metaphor: traffic cop.

At a small panel discussion about digital piracy at NBC’s booth on the Consumer

Electronics Show floor, representatives from NBC, Microsoft, several digital filtering companies and the telecom giant AT&T said discussed whether the time was right to start filtering for copyrighted content at the network level.

Such filtering for pirated material already occurs on sites like YouTube and Microsoft’s Soapbox, and on some university networks.

Network-level filtering means your Internet service provider – Comcast, AT&T, EarthLink, or whoever you send that monthly check to – could soon start sniffing your digital packets, looking for material that infringes on someone’s copyright.

“What we are already doing to address piracy hasn’t been working. There’s no secret there,” said James Cicconi, senior vice president, external & legal affairs for AT&T.

Mr. Cicconi said that AT&T has been talking to technology companies, and members of the M.P.A.A. and R.I.A.A., for the last six months about carrying out digital fingerprinting techniques on the network level.

“We are very interested in a technology based solution and we think a network-based solution is the optimal way to approach this,” he said. “We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there.”

Internet civil rights organizations oppose network-level filtering, arguing that it amounts to Big Brother monitoring of free speech, and that such filtering could block the use of material that may fall under fair-use legal provisions — uses like parody, which enrich our culture.

For full article click here.

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I'm posting a photo of a 1956 Chevy instead of the 1956 Ford I remember being my family's first new car because Ford apparently doesn't want anyone to promote their vehicles.  Image from Military.com's "Ride of the Week."

Read on below:

Thanks again to Plagiarism Today's Weekend Linkroll for continuing to follow companies in self-destruct mode down their own garden paths. 

This item via PT from Boing Boing:  Ford Calls its Fans Pirates for Distributing Pictures of their Own Cars.

Why do we post this in an ADR Blog?  Because the first alternative to litigation is common business sense and we are waiting patiently for companies like Ford to awake from the same type of somnabulence that allowed Japanese car companies to run them off the road in the 1970's.

Excerpt from the Boing Boing post below:  

Josh sez, "The folks at BMC (Black Mustang Club) automotive forum wanted to put together a calendar featuring members' cars, and print it through CafePress. Photos were submitted, the layout was set, and... CafePress notifies the site admin that pictures of Ford cars cannot be printed. Not just Ford logos, not just Mustang logos, the car -as a whole- is a Ford trademark and its image can't be reproduced without permission. So even though Ford has a lineup of enthusiasts who want to show off their Ford cars, the company is bent on alienating them. 'Them' being some of the most loyal owners and future buyers that they have. Or rather, that they had, because many have decided that they will not be doing business with Ford again if this matter isn't resolved."

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Plagiarism Today continues to provide us with the best aggregation of IP news every week in its  Saturday Linkroll.  Today we're linked to Corante's post "Even Fools Don't Invest in the Music Business," noting the Motley Fool's warning (We're All Thieves to the RIAA) that

a good sign of a dying industry that investors might want to avoid is when it would rather litigate than innovate, signaling a potential destroyer of value. If it starts to pursue paying customers -- which doesn't seem that outlandish at this point -- then I guess we'll all know the extent of the desperation. Investor, beware.

While you're at it, take a look at the Los Angeles Times article, CD Sales Fall Again; DVDs See First Drop,

The [falling] figures underscore the industry's failure to combat music piracy with a campaign of lawsuits and threats. 

We like the music industry.  We really do.  Some of our best friends are musicians and composers and they're suffering some pretty hard times here.  

We just think -- as the RIAA's conduct is proving -- that BigMusic, like the American automobile industry in the 1970s, needs to start listening to at least one of the weathermen who knows which way the wind is blowing.   

Get the picture?  Yes we see . . . . (check out those hair-dos!)

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Direct from NPR to Engadget to our readers:

Speaking to NPR, RIAA president Cary Sherman . . . said . . . that the RIAA hasn't ever prosecuted anyone for ripping or copying for personal use, and that the only issue in the Jeffrey Howell case was -- as always -- sharing files on Kazaa. Perhaps most interestingly, Sherman directly addressed the "ripping is just a nice way of saying 'steals one copy'" comment made by Sony BMG's anti-piracy counsel in the Jammie Thomas case, saying that the attorney "misspoke," and that neither Sony BMG or the RIAA agreed with that position.

Why do we continue to follow this multi-strand narrative on an IP ADR blog? 

Because this is why IP is worth doing.  The law hasn't caught up with today's technology, let alone that lurking around tomorrow's corner.  We're at the very beginning.  Dawn.  And we're excited to begin the year as part of the conversation about the law the culture is in the process of creating to give artists their due; cut the producers and distributors in for their fair share; promote artistic collaboration and the solo effort; and, maybe rearrange a little bit of society, history and politics at the same time.

We're all in!

 

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Take a look at this excellent article -- Pirates Stealing Content from Rival Website -- by Florida Gunster Yoakley lawyers David Bates and Meenu  Sasser.

This one-page article is well-worth reading if you or your clients possess anything of value on the internet that can be "scraped" by pirates.

The good news?

According to Bates, "[a]bout 95% of the cases are resolved by a cease-and-desist letter."

With that kind of track record, Gunster ought to be thinking about value rather than hourly billing.  Maybe they already have.

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 (left, the victorious Karen R. Thorland of Loeb & Loeb)

Just as we're waxing philosophic about litigation's questionable ability to effectively and efficiently resolve a dispute requiring factual findings, along comes a ruling that not only resolves a mixed question of law and fact, but does so at the pleading stage without giving Plaintiff a chance to amend the Complaint.

Hearty congratulations to Karen R. Thorland of Loeb & Loeb LLP who pulled this rabbit out of the hat for BMG Music.  The new year just doesn't ever start better than that!

The Opinion in Brief 

In Leadsinger, Inc. v. BMG Music Publishing, the Ninth Circuit held today that there was no set of facts which would permit the manufacturer and distributor of karaoke machines to make and sell its devices in the absence of reprint and synchronization licenses.  In concluding that the District Court properly granted defendant's motion to dismiss without leave to amend, the Ninth Circuit explained:

No amendment would change the conclusion that Leadsinger’s karaoke device falls within the definition of an audiovisual work and outside the scope of § 115’s compulsory licensing scheme. Indeed, the conclusion that Leadsinger’s device displays a series of related images that are intrinsically intended to be shown by a machine together with accompanying sounds is justified by Leadsinger’s own description of how its all-in-one microphone allows a consumer to sing lyrics “in real time” with recorded music.

Any amendment relating to Leadsinger’s purported fair use also would have been futile. Leadsinger’s allegations support that its use of copyrighted song lyrics is commercial, that song lyrics fall within the core of copyright protection, and we have drawn the reasonable inference that Leadsinger uses song lyrics in their entirety. Thus, the only possible amendment relating to fair use would address the harm to the potential market for or value of the copyrighted work. That amendments relating to the fourth § 107 factor are a possibility is not enough to find that the district court abused its discretion given that the first three factors under § 107 unequivocally militate against a finding of fair use, and we are not to consider these factors in isolation. See Campbell, 510 U.S. at 591 n.21.

 

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Bloggers with no visual artistic talent -- like me -- are perennially searching for free images to emphasize or draw attention to the central theme of their prose.  As powerful as words can be, they cannot deliver the multi-layered messages contained in a single image  with the same degree of immediacy or power.

So it is with pleasure that we announce our own recent find of the wikimedia commons collection of rights-free visual imagery.

I quote liberally from a recent wikimedia plea for assistance below: 

Where Wikipedia’s trade is in encyclopedia articles and Wikibooks is in textbooks, Wikimedia Commons is devoted to free content photographs, diagrams, illustrations, animations, videos and audio. . . . 

We understand that written literacy is important for allowing citizens to fully participate in society. . . Media literacy is becoming just as vital. . . .

A written tradition is often about connecting people to their history, but increasingly our history is not being recorded in words on a page. Does the name Phan Th? Kim Phúc mean anything to you? Probably not. What if I showed you a black and white photograph of a little girl running down the road naked, screaming and crying? Probably you would recognise that photo, and instantly understand all of the issues it is short-hand for.

I can’t show you that photograph. It dates to 8 June, 1972, and is short-hand for the influence of the media’s reporting of the Vietnam War on the American public’s opinion of and support for that war. From this example it is clear that the media plays an active role in democracy. Free press, free people.

But not free content. That photograph won’t pass into the public domain until at least seventy years after the photographer’s death, and that’s only if the United States government doesn’t extend the term of copyright yet again (you can find the details on Wikisource, but Lawrence Lessig’s book Free Culture is a rather more readable introduction).

Social movement cyclists Critical Mass are fond of the saying, “We’re not blocking traffic — we are the traffic”. There is a similar rallying cry behind citizen journalism — “We are the media”. And while the cyclists’ refrain seems more hopeful than accurate, it’s hard to deny the reality of participatory media today. . . . 


Wikimedia Commons comes in here because it provides the basic building blocks for people who take part in media creation, commentary and criticism — that is, anyone who wants to. If you need images, video or sound that you want to be able to use without fear of being nabbed for infringing someone else’s copyright, then Wikimedia Commons is for you. And because it’s a wiki, you’re invited to give back, too.

Wikimedia Commons also takes existing free content or public domain collections and cannibalises the useful parts. By re-describing and re-cataloguing we essentially make these things that are already free, more accessible. After all, something that’s free but very hard to find is not all that useful, is it? . . .  

Wikimedia Commons is a project that merely collects media files that are in the public domain or are free content. That project doesn’t have any position about what copyright laws should be, it only cares about what currently qualifies for inclusion. That project needs your help for very boring things: to pay for more servers, more bandwidth, and more software developers. Servers and bandwidth are obvious needs, I suppose. We have many 3MB images that are regularly used in dozens of Wikipedias, but there are not too many (if any!) Wikipedia text articles that are 3MB in size. We have to put a low cap of 20MB on uploaded files because we just aren’t confident that we could handle an explosion in larger content (video files, for example, could regularly pass that limit). Media is inherently bandwidth-greedy.

As for the software developers: If you have a browse around Wikimedia Commons you might notice the interface is not that great. It’s not shiny like…well…any Web 2.0 website. It may feel like the website is wearing hand-me-down shoes which don’t quite fit right. That’s true - the website uses the MediaWiki wiki engine designed for an encyclopedia. It still needs some more tinkering to adjust to the basic unit of Wikimedia Commons, which is a file (usually an image), not an article. And while MediaWiki is open source software which means anyone who has enough time and patience can contribute, it’s enough of a complex beast that few do.

So, servers, bandwidth and software developers — that’s why I want to ask you to please dip into your pocket and donate for Wikimedia Commons. But from me personally, I hope a New Year’s resolution may make its way into your mind, to resolve to fight against copyright expansion, enjoy the availability of the commons and give back to it, too.

Happy New Year.

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($5700 by Andrew Magill)

I just ran across this terrific resource for IP practitioners -- Insurance Coverage for IP Assets. Were I still in practice today, I wouldn't make a move without this great source of IP settlement wisdom. 

Here's the thing about the law of insurance coverage (a sub-specialty of mine for the last ten or so years of my practice) -- you cannot simply read your clients' insurance policies nor simply read the pertinent case law in deciding whether to make -- or more importantly to press -- a claim for coverage. 

There are no easy coverage answers and the difficult questions raised by every coverage dispute vary from state to state.

I live with policy-holder counsel and he can't answer my questions unless I look up the answers and give them to him, at which point he'll tell me why I'm wrong (I usually am) unless I've asked six or seven additional questions.  (thanks honey!)

So add this valuable book to your research library in 2008.  

Publisher's description of contents below; link to publisher's web page featuring the book above. 

Insurance Coverage of Intellectual Property Assets is the first resource to comprehensively analyze the insurance protection issues that must be considered when an intellectual property dispute arises. From determining the scope of coverage under a policy, to tendering of a claim, to seeking remedies when coverage has been denied, this essential guidebook details the interactions among policyholders, insurers and the courts.

You'll find comprehensive and timely analysis of federal and state case law and major commercial insurance policy provisions that address:

• The extent of insurance coverage under the "advertising injury" and "personal injury" provisions
• Language in policies that limits or excludes coverage for intellectual property claims
• Public policy exclusions to coverage for claims of an infringement undertaken with intent to harm
• Interpreting ambiguous language in insurance policies
• Defending a claim under a "reservation of rights" and potential conflicts of interest triggered thereby
• Forum selection and choice of law

And more.

In addition, there's detailed discussion and comparison of the actual language used in most commercial insurance policies and the 1976 and 1986 Insurance Services (ISO) policies.

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(image links to Amazon's page for the Norton Anthology of English Literature)

Low tide here at the IP ADR Blog.  We seem to have entered a time in which America follows Europe and the U.K. by simply shutting operations down between Christmas and the New Year. 

And high time too!  No one gets any work done other than the poor store clerks anyway.  So say!  Have a little patience with them this holiday season and carry a few lagniappes in your pocket to bestow true holiday cheer upon the hard working temps, two of whom were completely flustered yesterday when their cash registers broke down over at the Grove shopping center (yeah, that's me -- bad cash register karma).

Anyone Read Beowulf Lately

But there is something relevant to intellectual property this morning -- a good article over at Concurring Opinions by Frank Pasquale, Humanities Hobbled by Copyright Law.  "While scientists are pioneering exciting new modes of cooperation," writes Pasquale,

 humanities scholars are increasingly tripped up by an archaic copyright system. Great schools of the recent past may be doomed to an ownership pattern fractionated enough to frustrate even the most persistent assembler.

May I suggest that the problem described in much greater detail in Pasquale's post be resolved neither by the compromised process of legislation nor by the adversarial mode of dispute resolution, but by a grass-roots coalition of publishers and academics working toward a solution that satisfies the greatest number of the true needs of all stakeholders.

Collaboration.  The by-word of 2008.

Cheers!

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UPDATE:  See Likelihood of Confusion (the Nutty Ninth) citing Seattle Trademark Lawyer on this opinion.

(image links to washington post article on combating the importation of  Chinese counterfeit goods)

In K&N Engineering, Inc. v Bulat, the Ninth Circuit ruled yesterday that "an award of statutory damages for trademark counterfeiting under 15 U.S.C. § 1117(c) precludes an award of attorney’s fees under 15 U.S.C. § 1117(b)." 

Why is this important to remember when attempting to settle your counterfeiting action? 

Because the more items of value you have to bargain over (particularly attorneys fees which only get worse over time) the more likely you are to maximize your bargaining position.

As Professor Leigh Thompson of the Kellogg School of Management at Northwestern University has instructed us:

One reason negotiations fail is because negotiators haggle over a single issue, such as price.  By definition, if negotiations contain only one issue (e.g., price), they are purely distributive (i.e., fixed pie).  Skilled negotiators are adept at expanding the set of negotiable issues.

Adding issues, unbundling issues, and creating new issues can transform a single-issue, fixed-pie negotiation into an integrative, multi-issue negotiation with win-win potential.

Integrative agreements require at least two issues and, in the case of negotiation issues (not parties) the more the merrier.

Why is this so?

As Roger Fisher, of Getting to Yes fame, notes, often the key to getting past impasse is understanding and then asking questions to ascertain what underlying needs that are not monetary your negotiation partner wants.  He tells this story to explain:

[A corporate CEO wanted to sell a building because he] was retiring and wanted $2 million, which he considered a fair price.  He had a buyer, but the buyer wouldn't pay that price.  I asked the seller, 'What's the worst thing about selling this building?'  And he said, 'All of my papers for 25 years are mixed up in my corner office.  When I sell the building, I can't throw everything away.  I've got to go through that stuff.  That's the nightmare I have.

Thompson continues:

Then Fisher asked the buyer why he wanted the building.  The buyer explained he hoped to sell it for hoteling.  This knowledge gave Fisher the idea of suggesting that the seller offer the buyer a lease with an option to buy with one contingency:  that the president's name be on the corner office for three years.  The buyer agreed.  In this example, Fisher notes that the key underlying needs are not about money, but more about convenience. 

Thompson, The Heart and Mind of the Negotiator, 3rd Ed. at 80-81.

This example is as much about asking diagnostic questions as it is about having multiple items for which to bargain. 

They key, of course, is to consider the probability in every case that there are undisclosed needs, fears and desires that would assist the parties in achieving a resolution that is of greater benefit to all parties than what appears to be the sum of the parts.

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(image from toothpaste for dinner)

We're sorry we missed this report from MacUser News when it appeared under the headline UPDATED: Music boss: we were wrong to go to war with consumers in November, but thanks to Plagiarism Today's Saturday Linkroll which led us to these items in Mashable (The RIAA Tries Truthiness and EMI to Cut RIAA Funding; Death of RIAA Near?) we're able to report that Warners Music Chief Ed Bronfman is singing the Innovate, Don't Litigate song. 

Speaking at the GSMA Mobile Asia Congress in Macau, Edgar Bronfman told mobile operators that they must not make the same mistake that the music industry made.

"We used to fool ourselves,' he said. "We used to think our content was perfect just exactly as it was. We expected our business would remain blissfully unaffected even as the world of interactivity, constant connection and file sharing was exploding. And of course we were wrong. How were we wrong? By standing still or moving at a glacial pace, we inadvertently went to war with consumers by denying them what they wanted and could otherwise find and as a result of course, consumers won."

Mobile operators risk the same, he said. Fewer than 10% of mobile owners buy music on their handset, the vast majority of which is ringtones.

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In Fans:  Friend or Foe, the IP lawyers at Sheppard Mullin, citing this BBC article on a fan-made video-game Warhammer movie, throw this question out to the blawgosphere: 

At what point does a work of fan fiction pose a threat to the intellectual property rights of the owner?

The Sheppard Mullin post -- covering gaming-fan-generated content and German law on le droit moral -- is meaty and thought-provoking, raising the type of questions addressed by the Lessig video posted here yesterday.

Check it out!  And if you're inclined to answer the question in your own blog, please do let us know!

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Thanks again to Plagiarism Today for yet another great Lawrence Lessig video.  

Forgive us our fandom for a law school professor, but this guy is the smartest, most forward-thinking, creative individual thinking and talking about art, copyright, culture and the internet today. 

Some of this is pulled from the earlier presentation we posted but this is much more thorough and all-encompassing. 

Check it out.

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O.K., we admit it.  We were a little bummed that no ADR Blawgs made the ABA Journals' Blawg 100 List.  But, as always, our spirits were lifted by our fellow bloggers who are, after all, our community, our posse, our homes, our peeps.

So thanks to Tom Mighell over at Inter Alia for making the IP ADR Blog Blawg of the Day yesterday. 

And while we're giving thanks, a big IP ADR bear hug to the folks at Mediate.com who featured Michael Young's post on . . . . yes . . . copyrighting flatulence . . . . this week. 

That's the first appearance of our blog in the Featured Blogs section of the Mediate.com site and we're happy to have finally made it there.

Finally, we're happy to announce that IP ADR Blogger Victoria Pynchon's Settle It Now Negotiation Blog has become part of the Forbes.com Business and Financial Blog Network.

While you're clicking on links, you might consider subscribing to Tom Mighell's great Internet Legal Research Weekly here!

 

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Sometimes you've got to wonder whether anyone really cares about intellectual property at all. Or class and culture for that matter.

Take the case of the Pull-My-Finger Fred doll versus Fartman, the epic battle of the farting plush dolls. Now I'm not that far removed from teaching my boys about the incredible magical powers of the pulled finger not to understand how a Pull-My-Finger Fred doll could enjoy a certain amount of commercial success. (In fact I have a brother who probably rushed out to buy the first one.)

But 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" who farts "when one squeezes [his] extended finger on his right hand," and "makes somewhat crude, somewhat funny statements about the bodily noises he emits, such as 'Did somebody step on a duck?' or 'Silent but deadly'" really worthy of emulation?

Our thanks for this bit of IP whimsy to Judge Diane P. Wood of the Seventh Circuit Court of Appeals for the fine description in her March 2007 opinion.) 

Apparently Novelty Inc. thought so. It created Fartman, described by the Court as (and this may sound familiar to you):

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.

Does the world really need two white, middle-aged, overweight, balding, flatulating, wise-cracking male plush dolls? But that's not the point.

The point is, what was Novelty Inc. thinking? Why blatantly infringe on someone else's copyright? If you really must have a gas passing plush doll to fill out your product line, why not create one with a full head of blond hair, or standing with a green shirt, or ... a woman! (You women know you do it. Don't deny it. I think Judge Diane Wood might have been feigning innocence when she wrote:

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

O.k., that's not the point either. Nor is it to critique the legal issues raised by this case, including the ever fascinating and difficult idea/expression distinction. That has been done admirably and more timely by others, including William Patry in his post Fartman Appeal Fizzles.

Rather, my point is this:

Dispute resolution in the IP field comes in all shapes and sizes.

One of the best means of dispute resolution is to avoid the dispute in the first place.

Call it pre-dispute resolution.

In this case, Novelty Inc., is now liable for nearly a million dollars in infringement damages, more than half of which were the plaintiff's attorneys fees.  Clearly, Novelty could have used a little pre-dispute IP counseling.   With professional guidance, it could have avoided a case that stunk from the start. (Come on, you knew it was coming eventually.)

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. . AND THEN SETTLE YOUR COPYRIGHT CASE.   

 

(right, IP ADR attorney, mediator and blogger Michael D. Young of Weston Benshoof and Judicate West; case link courtesy of Thelen Reid)

$27 million will buy you a whole lot of cake. And you can eat it too. That’s one of the lessons from the Tennessee Court’s unprecedented sanctions award against an apparent copyright infringer who just refused to stop copying. 

In MGE UPS Systems v. Titan Specialized Services  (OPINION HERE), the copyright owner not only obtained a sanctions order worth $27 million against one of its primary competitors (and apparent copyright infringer), but was still entitled to pursue its claim for copyright damages. 

How is that for protecting your intellectual property while also setting the stage for a pretty advantageous settlement negotiation?

Using the lingo of ADR/negotiations, MGE UPS Systems showed how a copyright owner could effectively utilize the litigation process to change the parties’ respective leverage, and then set itself up for the perfect negotiated outcome.

Here’s the short set-up: MGE UPS Systems, Inc. sells, and then services, “Uninterruptible Power Supply” equipment, equiqment  systems customers (such as hospitals) install to ensure a constant supply of power in the event of an outage. 

Because this equipment must be regularly serviced and maintained, not surprisingly, there are a number of competitors who provide such services to UPS users -- and who compete head to head with MGE for that business.

Things were pretty competitive…until MGE built a better mousetrap. It developed new software that was so good it allowed UPS to service its equipment 2-4 times faster than its competitors, and with greater accuracy and efficiency. The software was, of course, proprietary and copyrighted. The competitors were starting to feel the pinch.

Beware the Mobile Employee

One competitor apparently pinched back. If you’ve worked in any technology-based business, you know how prevalent employee mobility is – and how easy it is to download secrets onto a simple pen drive that fits in your pocket.  According to complaint's allegations, defendant JTP solicited one of MGE’s former employees who just happened to have a pirated copy of the MGE proprietary software. JTP obtained the software, distributed it to its service personnel, and began competing against MGE with MGE’s own copyrighted product.

Why JTP thought it could get away with this thievery is never explained.  Why it believed it could then go out in the market place and start miraculously servicing UPS equipment in 1/6^th the time without raising suspicion is also never explained. 

What needs no explanation is what happened next. As soon as MGE learned of the theft and infringing use of its software, it filed suit. 

The Leverage of Time

With the suit filed, is it time to call in fellow blogger Vickie Pynchon to mediate the dispute? JTP probably would have loved this. Settlement takes time, and every day that passed setting up and conducting the mediation would have been another day JTP could have been in the field utilizing MGE’s own copyrighted software to steal business from MGE. JTP would have been incentivized to drag the process out for as long as it could. 

But for MGE, this would have been a mistake. The leverage of time was working against it. With MGE bleeding every day, what it needed was litigation triage. So MGE sought to staunch the blood flow by applying for – and obtaining – an emergency restraining order against JTP prohibiting it from using the MGE software at all for any purpose whatsoever. 

Now who was in a hurry to settle? Not MGE, certainly. The leverage had flipped. Back in sole control of its proprietary software, it could now regain control of the Service market as well. It was JTP who should have been in a hurry to settle before it became locked out of the market altogether. Maybe it could cut a licensing deal?

Time to Call the Mediator

This is the time JTP should have called Vickie to seek out a mediated solution. But it didn’t. Instead, it took a seriously wrong turn. According to the opinion, rather than comply with the Court order, JTP ignored the thing altogether and continued utilizing the copyrighted software in competition with MGE. 

The Leverage of Sanctions

When MGE learned about JTP's contumacious conduct, it returned to court and sought sanctions. And what sanctions they were.  After a two day evidentiary hearing, the court, noting that a third of JTP’s income was based on its service of MGE equipment, awarded MGE “a monetary sanction of thirty (30%) of JTP's gross revenues from July 21, 2004 to date.” 

Thirty percent!  $27 million! 

(The court also ordered an inspection of JTP’s computers – at JTP’s expense of course – and awarded MGE its attorney’s fees.) 

And this doesn’t include MGE’s infringement damages!

An entire blog could be dedicated to litigation sanctions.  (I looked, but couldn’t find one -- readers should feel free to start one.)

Unless JTP had a rabbit up its sleeve, this would have been a good time to call Vickie to get this one settled or at least to read the chapter on negotiating from a position of weakness in Malhotra's and Bazerman's Negotiation Genuis.   

$27 million and damages? 

That’s what I call having one’s cake and eating it too. 

(Though I’m a pie guy myself.)

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Join Stanford Professor Larry Lessig's Creative Commons 50,000 Friends Drive!

You can join the Creative Commons Facebook "Cause" here.  Text below from the Creative Commons Cause page:

The Mission:  to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules

Description: Too often the debate over creative control tends to the extremes. At one pole is a vision of total control — a world in which every last use of a work is regulated and in which "all rights reserved" (and then some) is the norm.

At the other end is a vision of anarchy — a world in which creators enjoy a wide range of freedom but are left vulnerable to exploitation. Balance, compromise, and moderation — once the driving forces of a copyright system that valued innovation and protection equally — have become endangered species.

Creative Commons is working to revive them. We use private rights to create public goods: creative works set free for certain uses. Like the free software and open-source movements, our ends are cooperative and community-minded, but our means are voluntary and libertarian. We work to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them — to declare "some rights reserved."

Positions: Copyright can be exercised in such a way that it promotes collaborative culture while still protecting the author's legal rights.

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Here's the thing about bullying.  When you do it in public, champions will arrive on the scene to do battle.  According to the recent ABA article Oregon ‘Ground Zero’ in RIAA Battle Against File-Sharing,

in filings this week, Attorney General Hardy Myers' office said the Recording Industry Association of America's litigation tactics may violate his state's data-mining laws . . . [and] called for an investigation of the recording industry's tactics.

In response to the RIAA's muted characterization of the AG's attempts to protect its citizens as  "misguided," New York lawyer, Ray Beckerman (The Recording Industry vs. the People) . . . says that the "the Oregon AG's move to question the RIAA's tactics is long overdue."

 "The RIAA has been bringing fake copyright infringement lawsuits, the sole purpose of which is to get the names and addresses of John Does. . . . The strategy is then to drop the case and pressure individuals to settle, he added.

For those who missed our first post on this issue here, we once again provide an explanation of bullying from the social scientists.  

Bullying, they tell us, is the repeated and deliberate abuse of power by one person or group over another person or group.

The social context in which bullies flourish?  Relatively stable social groups with a clear hierarchy and low supervision.

Why?  Because hierarchy – a system that ranks people one above the other -- makes low-status individuals visible, easy to get at and less likely to receive protection by their peers. 

When you bully a State's citizens in full view of that State's arm of justice, however, you can't expect that you -- the sixth grade bully -- can continue to shake down the third graders for their lunch money.

Kudos to the State of Oregon for riding to the rescue!

For college students targeted by the RIAA -- and those who might be -- attorney Beckerman provides his practical and legal advice here.

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L.A. Times reporter Dawn Chmielewski wins the tech-legal lede of the day contest by reporting that

the U.S. 9th Circuit Court of Appeals on Monday reaffirmed its earlier support for the socially redeeming value of searching the Internet for nudie pictures.

The San Francisco court, in reviewing a case it initially considered in May, reiterated its finding that Google could display tiny versions of photographs by Perfect 10 Inc., a Beverly Hills-based adult publisher, in search results, even when those images were copyrighted.

That opinion affirming in part, reversing in part, and remanding to the District court is here.

And that report, by the Los Angeles Times, is almost right. 

The Ninth Circuit instructed the District Court to make further factual inquiries to determine whether Google and Amazon are contributorily liable for infringing uses by other websites.  As the Court held:

Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works,and failed to take such steps.

The best analysis of the opinion on the web right now is Eric Goldman's Technology and Marketing Law Blog post Perfect 10 v. Amazon Opinion Amendment--Ninth Circuit Does 180 on Fair Use Burden for Preliminary Injunction here.

Quotes that form the meat of the opinion below:    

HOLDING ON DIRECT INFRINGEMENT (GOOGLE)

In this case, Google has put Perfect 10’s thumbnail images . . . to a use fundamentally different than the use intended by Perfect 10. In doing so, Google has provided a significant benefit to the public. Weighing this significant transformative use against the unproven use of Google’s thumbnails for cell phone downloads, and considering the other fair use factors, all in light of the purpose of copyright, we conclude that Google’s use of Perfect 10’s thumbnails is a fair use. . . . . We conclude that Google is likely to succeed in proving its fair use defense and, accordingly, we vacate the preliminary injunction regarding Google’s use of thumbnail images.

Continue Reading...

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On the very same day that the Volokh Conspiracy was worrying about the potential for contributory infringement resulting from its posting a YouTube video to his highly respected blog, Google, YouTube's owner, was saying the following to its eighty gazillion bloggers:

Blogging from YouTube

November 26, 2007

As you videobloggers already know, you can upload your videos directly to Blogger. But for the rest of the video watchers out there, did you know you can just as easily post YouTube videos to your blog?

All you need to do is set up your YouTube account to post videos to your blog using the "Share" button. You'll enter your Blogger information once, and from then on it's one-click sharing from any YouTube video page!

If there were liability for contributory infringement, you'd think this encouragement by YouTube's owner to post YouTube videos to its owners' blog sites would fit the bill. 

So we're now resting even easier about posting YouTube videos.  We're relying on Google not to be steering its blog customers into acts of infringment when posting its subsidiary's videos on its Blogger blog sites.

At some point we imagine (as Howard Beale in Network was asked to) the existence of a single corporate entity, unable to sue itself, sounding litigation's death knell.  

 

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(photo:  The Kreation of Adam by Krystian Schneidewind)

Culture and consumers precede the law.  They rarely, if ever, conform themselves to the needs, interests and desires of business.  Culture and consumers govern business.  Business does not govern them. 

The law follows culture.  As we noted in Disputing Humor:  Comedy, Folkways and the Internet, "the law" is not just a set of rules, but a life condition "in which [people] are carriers of rights and duties, privileges and immunities."

No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*

In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." Id.  

There are 87 comments over at the Volokh Conspiracy -- many of them pretty heated -- about the practice of posting (or linking to) YouTube videos.  When there's this much dissent and passion, what the law will be is anybody's guess.

We also recently noted that the RIAA is waging a computer-sleuthing and intimidation campaign against its own customers in an effort to stop illegal downloading (apparently going so far as to notice the deposition of a ten year old girl).  When Goliath is going after Davy as if Davy were carrying a tactical nuclear weapon instead of a sling shot, cooler heads are not prevailing.

Enforce Your Rights by Suing Your Market or Adjust Your Business Practices to Changing Times?

Taking on just one of the legal issues raised by the 87 Volokh commenters is good only for people who like to tinker with the law (lawyers).  It is always bad for people who want to make a profit from selling stuff to the public.  

Take YouTube.  One of the commenters over at Volokh made this small but important point -- a "point of law" that could consume the energy of teams of well-paid lawyers for years if not decades.

You "link" to the YouTube clip, but the clip itself is stored on some YouTube server. The "link," however, plays directly from this blog. Is this different than (1) a link that opens a new YouTube window (requiring the additional step of the user clicking "play" from YouTube's website)? If so, why?

I think we'll all agree that it is different than, for example, (2) a blogger providing the following instructions:

"If you'd like to watch the video, google these terms: "Herbie Hancock" and "One Night with Blue Note." Then click on "I'm Feeling Lucky" and watch the video."

So ... is the embedded YouTube link more similar to (1), or is it more similar to (2)? Does copyright law have anything to say about this?

When you post a YouTube video to your blog what you are really doing is cutting a rectangular window in your blog template, letting the YouTube video shine through.  If YouTube "takes down" the video, it will no longer "show" through the window you've cut for it. 

Question.  Is this infringement or contributory infringement?  You have an hour.  You may begin writing your answer . . . . . NOW.  

Listen, lawyers love questions like this.  They allow us to ply our trade at its most creative -- to push the envelope or even to break the mold.  There's nothing we like more than asking ourselves and our colleagues whether the laws enacted, interpreted and enforced when copying machines were the primary means of reproduction should apply to the practice of virtually cutting holes in blog templates for videos to play through.  

Do Columbia and Warner Brothers want to spend their creative talent, business acumen and cold hard cash trying to maintain the past when the present and the future are so full of opportunity?  

Listen.  The producers and distributors will find a way to make a living in the new Millennium.  They're very very good at that.  They will, however, do so much more quickly if they focus on serving their customers by delivering a superior product.  Serving customers with a summons and complaint is applying a quill pen to a problem that requires a laser gun.        

UPDATE FROM CITIZEN MEDIA LAW PROJECT Embedded Video and Copyright Infringement answers most the questions raised here and over at Volokh in favor of the poster. 

*/  See, Weyrauch and Bell, Autonomous Lawmaking:  The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965).  The Weyrauch book on Gypsy Law can be found here.

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Check out the Law and Propriety of Posting YouTube Links over at the Volokh Conspiracy in response to commenter "Sonia Sturunch's" accusation that the posting of Herbie Hancock's Cantaloupe Island (below) "weakens the philosophical underpinnings of the [Volokh] blog's stated commitment to the rule of law and of the constitution."  

UPDATE ON THE VIDEO BELOW FROM COMMENTER CHRIS NEWMAN (WHOSE OWN WEBSITE IS HERE)  --  BLUE NOTE IS OWNED BY EMI AND EMI HAS LICENSED ITS MATERIAL TO BE VIEWED ON YOUTUBE.  For purposes of this post, we'll ignore the fact that this hot issue is no issue at all becaue it could be an issue and one lawyers like us like to think about.

We're fans of the rule of law and the United States Constitution here and over at the Settle It Now Negotiation Blog as well.  It certainly never occurred to us that posting a YouTube video on our blogs posed a threat to either the Constitution or the Rule of Law.  Frankly, when we started blogging, we didn't think anyone would take any notice at all. 

Now that our readership is growing, we have to admit we've had a low level of worry about the YouTube links. 

Mostly we've been thinking that the Rule of Law is experiencing some pretty rough growing pains in response to the re-ordering being done to the business and culture of art, music, literature and the like.  We don't know where it's going but it seems to us that it's giving more power to the artists and less to the producers and distributors.  We have nothing against making an honest buck from production and distribution.  But being really serious fans of art and artists, we've been thinking it's a good thing that the means of production and distribution have been more or less put back in the hands of the people who sing and play and draw and write and dance.

When the substance and application of the law is difficult because the culture it was devised for and applied to is radically changing, that's the best time to be a lawyer and legal scholar because you get back to first prnciples again.    

We like what the Volokh Conspiracy has to say about posting YouTube videos because it seems common sensical and intellectually sound way for the law to wrap itself around the new culture of the internet.    

Sorry for the long wind-up.  The excerpt below and the link to the entire post is above.    

First, let's examine the question of substantive copyright law. Is it copyright infringement to provide a link to a file hosted on YouTube that is likely an unauthorized copy, and to invite readers to view the file?

. . . [M]y sense of the answer is "probably not."

The primary issue is liability under the principles of contributory infringement. As the Supreme Court explained in Grokster, "One infringes contributorily by intentionally inducing or encouraging direct infringement." Contributory infringement generally requires (1) knowledge of the infringing activity and (2) a material contribution to the infringement.

The law here is really murky, in part because there are so few cases (DMCA notice & takedown letters usually address the problem before a lawsuit is filed), but I think I'm probably not liable.

First, I don't think a link in this context amounts to a material contribution to the infringement. The file I linked to is very widely and publicly known. If you google the song name, the file is the second link that appears (right after the Wikipedia entry). The clip has been viewed over 125,000 times in the last year. Further, YouTube is one of the most visited sites on the Internet, and everyone knows that you can get music clips there: just go to youtube.com and search for "cantaloupe island" and this clip is the first thing that pops up.

Given that, I don't think my linking to the file is a "material" contribution to any infringement.

Yes, my link singled out the widely known clip for its musical excellence; but I see that as pointing out which of the widely-known clips on YouTube is musically strong, not doing the work of locating and pointing out the infringing clip. Given that, I don't think linking to it materially contributed to any infringement: a YouTube link in this context strikes me as more like the link in Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006) than the link in Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).

Second, I'm not sure I have the knowledge required for contributory infringement. The cases here are super-murky, but they seem to suggest that "knowledge" is not satisfied by a decent likelihood, but rather appears to require a pretty bright "red flag" showing that it is essentially certain (in light of the uncertainties of ownership, fair use, and the like) that conduct is leading to unlawfully infringing activity.  . . . 

(emphasis mine)

I'm going to follow the discussion of this issue over at Volokh and invite our readers to weigh in or there.  It's law-making time.  Join the fun!  

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When a body as pro-business as the American Bar Association calls out an industry group for bullying, it's time for that organization to take a close look at its behavior in the marketplace. 

Remember, it's not just about the law. 

It's about civilization, community, ethics, even etiquette. 

It's about making allies rather than enemies.  It's even about -- gasp -- doing good.  Or at least not doing any harm.

(image from Will Blog for Experience -- RIAA:  Screwing You Since 1952)

So why is the Recording Industry of America Association the likely winnner of the IP ADR Dictionary's 2007 Bully Award?

Because it continues to act like a sixth grade kid shaking down the first graders for their lunch money on the primary school playground. 

But first the definition of a bully in his full social context.

In their 2005 article Bullying roles in changing contexts: The stability of victim and bully roles from primary to secondary school academics Mechthild Schafera, Stefan Korna, Felix C. Brodbeckb, Dieter Wolkec, and Henrike Schulzdam use as their "bully" definition the systemic one:

[the] repeated and deliberate . . abuse of power [which is] most likely to occur in relatively stable social groups with a clear hierarchy and low supervision, as is found in schools, the army, or in prisons.  

In this context, say the authors "[a]n aggressive individual’s search for dominance can be facilitated by a hierarchical structure in that it makes low-status individuals visible and easy to get to."

This definition of systemic bullying fits to a "T" the behavior described in the recent ABA Journal article Plaintiff to RIAA:  Download This! 

The attorney subject of the article who is litigating a malicious prosecution suit on behalf of a woman wrongfully sued for illegal downloading, says that the RIAA, 

targets people [for downloading infringement actions] without the resources to challenge the lawsuits. . . 

According to [the malicious prosecution filed on behalf of his client] a support center employee told [Plaintiff] that unless she paid the [RIAA] $4,000-$5,000, she would be ruined financially. Additionally, the action states, the claim center employee told Andersen that he believed she was innocent, but she should pay something anyway.

“He explained ... that defendants would not quit their attempts to force payment from her because to do so would encourage other people to defend themselves,” the complaint states.

At issue is the RIAA's methodology for identifying infringers, a methodology that is not "100 percent" according to law professor Jonathan Zittrain. 

According to Zittrain, a professor at Harvard Law School and the University of Oxford, none of the infringement actions has gone to a verdict.

Some suspect that many of the association’s suits have resulted in default judgments because many defendants cannot afford legal representation. Cases might settle for far less than the initial demand.

“I heard of a $300 settlement they just took,” says Jason Schultz, a senior staff attorney with the Elec­tronic Frontier Foundation. According to Schultz, the RIAA outsourced much of the copyright infringement litigation “factory style” to small law firms, and it hired nonlawyers to negotiate settlements.

Though Jonathan Lamy, RIAA’s senior vice president of communications, claims that the group’s investigation methods are sound and that it is not pursuing those who cannot afford legal counsel, everyone knows that few ordinary citizens could afford the legal representation necessary to defend themselves against the type of aggressive and well-orchestrated campaign described by the ABA article.

So why is this bullying?

Bullying, like pornography, is one of those things you know when you see.  That the RIAA's illegal downloading campaign perfectly fits the academic description of bullying therefore comes as no surprise.

The RIAA's "deliberate and repeated" use of powerful computer technology to investigate consumers' downloading activity, coupled with its well-orchestrated use of an army of low-paid attorneys and collection agents to deliberately and repeatedly bring suit against consumers who might be potential -- but certainly not proven -- illegal downloaders is marketplace bullying at -- frankly -- its most shocking.

And though the RIAA spokesman insists that it does not "target" those who cannot afford legal representation -- how many of us -- even the professionals among us -- could? 

This is systemic bullying at its most definitional

[the] repeated and deliberate . . abuse of power [which is] most likely to occur in relatively stable social groups with a clear hierarchy and low supervision, as is found in schools, the army, [] in prisons . . .

or simply in the marketplace.

Nobody likes a bully.  It's time for the RIAA to do a little soul searching about its place in the society that supports its members by buying their products.

When its the ABA  -- not the ACLU -- that marks you as a school yard bully, you're not making any friends -- only enemies.  And no organization, no matter how powerful, can afford that.

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Lawrence Lessig.  You know who we mean.  We just posted his pitch-perfect power point presentation here just the other day.

But who could have predicted at any time before this very moment, a day on which an Austrian art-technology-philosophy group working at the "proto-aesthetic fringe [with] pop attitude, subcultural science, context hacking and political activism" (Monochrom) would make a video recording of a love song to an internet & society law school professor.  Who knew law schools would ever offer a course on the internet?  Who could have foreseen . . . oh, never mind . . . 

Thanks to Boing Boing (first) and Concurring Opinions (second) for allowing us to mark this staggering milestone in international-legal-cultural history. 

Skip the Mr. Wizard science experiment and go straight to the Monochrome Melody at 2 minutes and 30 seconds.

Take it away boys!

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Don't Miss This Talk:  it's Not Long and It's More than Well Worth Watching.

He says:  "let's make  being young legal again."

Here's the description:

Larry Lessig gets TEDsters to their feet, whooping and whistling, following this elegant presentation of "three stories and an argument." The Net's most adored lawyer brings together John Philip Sousa, celestial copyrights, and the "ASCAP cartel" to build a case for creative freedom. He pins down the key shortcomings of our dusty, pre-digital intellectual property laws, and reveals how bad laws beget bad code. Then, in an homage to cutting-edge artistry, he throws in some of the most hilarious remixes you've ever seen.

About Larry Lessig

Stanford professor Larry Lessig is one of our foremost authorities on copyright issues. In a time when “content” is not confined to a film canister, Lessig has a vision for reconciling creative freedom with marketplace competition.

Thanks to Stephanie West Allen of Idealawg and Brains on Purpose for hipping me to this video.

By the way, Larry exemplfies all of the great speaking techniques that I learned from Faith Pincus and Sandy Linville in their "must attend" Public Speaking seminar for WLALA yesterday.

If you don't do anything else for your legal career in 2008, find out where Faith and Sandy are speaking about public speaking -- Faith's site is SpeechAdvice.com -- easy url to remember -- as are all her tips for making you the best speaker at your next speaking event, court appearance, CLE seminar or firm picnic..

I've been speaking publicly, first as a college professor in the mid-80's, then as a NITA coach and then as an Adjunct Law Professor at Pepperdine U. School of Law for more than twenty years. 

Sandy and Faith's half-day seminar yesterday changed my speaking life immediately and forever. 

Don't miss it.

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(photo:  Get Out of Jail Free Card by Mark Strozier)

Because there are criminal penalties for copyright infringement, the question whether the Plaintiff can agree to withdraw criminal charges in exchange for a civil settlement is often raised in an IP mediator's practice.

I am reminded of this issue by today's New York Times article "Insurer Sues Over Mississippi Inquiry."  As the Times reports:

State Farm Insurance is suing Mississippi’s attorney general, accusing him of violating an agreement to end a criminal investigation of the insurer’s handling of claims on the Gulf Coast after Hurricane Katrina, according to court papers unsealed Friday.

State Farm’s lawsuit claims that the attorney general, Jim Hood, reopened a criminal investigation of the company and its employees “for the purpose of harassment” and to coerce the insurer into settling civil litigation spawned by the Aug. 29, 2005, hurricane.

State Farm says Mr. Hood agreed in January to end his office’s criminal inquiry as part of a settlement agreement that called for the company to reopen and possibly pay thousands of policyholder claims.

State Farm suing Mississippi for failing to honor an agreement to drop a criminal inquiry in exchange for the settlement of civil claims?  

I must be missing something because the settlement sounds unethical and the lawsuit without merit because civil claims were settled in exchange for the termination of a criminal investigation.  (the first attempted settlement is reported by the Mass Tort Litigation Blog in Birmbaum, Scruggs and the Katrina Settlement here).

In California, the State Bar Committee on Professional Responsibility and Conduct has expressly opined that "An offer to dismiss a criminal prosecution may not be conditioned on a release from civil liability because that practice constitutes a threat to obtain an advantage in a civil dispute in violation of the Rules of Professional Conduct." (See Formal Opinion 1991-124 here)

Looking into the issue a little more deeply in the context of copyright infringement litigation, I found this excellent Manual -- Prosecuting Intellectual Property Crimes prepared by the U.S. Department of Justice containing this useful Chapter on Ethics and Obligations.

In regard to the question whether it is ethical to drop criminal charges in exchange for a civil settlement, the DOJ advises that the answer is "unclear."

X.B.2.a. Victims Who Seek Advantage by Threats of Criminal Prosecution

It is commonplace for an IP-owner's attorney to send a merchant a letter directing him to cease and desist sales of infringing merchandise. If the merchant continues to infringe, the letter will be solid evidence of the defendant's mens rea during any ensuing criminal case.

Sometimes the IP owner's letter will include an express or implied threat to seek criminal prosecution should the merchant persist. The extent to which a lawyer can ethically threaten to press criminal charges to advance a civil cause of action is not clear.

The lack of clarity stems in part from a patchwork of ethical rules. The ABA's Model Code of Professional Responsibility (1969, amended 1980) explicitly prohibited strategic threats of prosecution: “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” Disciplinary Rule 7-105(A). The ABA's Model Rules of Professional Conduct, adopted in 1983, omitted the rule as redundant or overbroad or both.” See ABA Formal Ethics Opinion 92-363 (1992) (allowing a lawyer to use a threat of a criminal referral to obtain advantage if the civil claim and criminal matter are related and well-founded).

Not all states have dropped the old rule, and some have adopted other specific provisions addressing the issue. Compare Office of Disciplinary Counsel v. King, 617 N.E.2d 676, 677 (Ohio 1993) (disciplining a lawyer under the old rule for threatening to seek prosecution unless opponent in property dispute paid disputed rent or vacated the property) with Disciplinary Rule 7-105(A) (Or. 2003) (allowing such threats “if, but only if, the lawyer reasonably believes the charge to be true and if the purpose of the lawyer is to compel or induce the person threatened to take reasonable action to make good the wrong which is the subject of the charge”).

This is a tricky area and one all IP counsel are advised to research prior to negotiating the termination of civil proceedings when criminal charges are also pending.  If you, like me, are fond of "templates," take a look at this negotiated Permanent Injunction settling the civil pretexting case brought agaisnt Hewlett Packard by the State of California. 

Note that the Attorney General's Press Release announcing this $14.5 Million Civil Settlement -- earmarked to help "Law Enforcement Efforts to Fight Identity, Intellectual Property Theft" -- expressly cautions that 

The filing and settlement of the civil complaint have no effect on the criminal case, which remains pending against all five defendants in Santa Clara County Superior Court.  

UPDATE:  Thanks to the Mass Tort Litigation Blog for Professor Erichson's generous and thoughtful post on the civil settlement/criminal prosecution ethical question -- link in comment below-- and for hipping us to David Rossmiller's post (including extensive links to the court documents) on the facts of the matter in his Insurance Coverage Blog  post State Farm Sues Mississippi AG Hood.  

From Rossmiller's post on this issue and many others I have read, I have to tell you that Rossmiller's Blog is the only one anyone concerned with coverage really needs to read.  I must also admit that anyone who says that "work is the curse of the blogging class" has captured my heart as well as my mind.

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(right:  Google CEO Eric Schmidt conjuring the 22nd Century)

Thanks to Ron Coleman of Likelihood of Confusion for passing along this gem from the The Trademark Troll on the S&L Vitamins case:

Almost every case involving the sale of unauthorized but genuine goods is a case where a brand owner is asking the courts to become an enforcer for the brand owner - against the brand owner’s own customers!!…

This brings to mind Jonathan Schwartz's brilliant post Free Advice to the Litigious which spawned our blog category Innovate, Don't Litigate.  This short tale from Sun Microsystem's CEO can't be repeated often enough: 

Years back," he writes, "Sun was under pressure in the market."

Although many users loved our core Solaris operating system, others thought it was built for high end computers, not grid systems. Our computer business had failed to keep pace with the rest of the industry . . . . [W]e gave customers one choice - leave Sun. Many did. Those were the dark days.

Where did they go? They went to GNU/Linux, a free and open source operating system built by a growing community, running on x86 systems. Why? Because the pair ("Linux on a whitebox") delivered, then, better grid performance, with more flexibility. We didn't erect barriers to exit, we promoted customer choice. Even when it cut the wrong way, as it did here. And yes, it hurt.

Was litigation a solution? It was suggested as one:

With business down and customers leaving, we had more than a few choices at our disposal. We were invited by one company to sue the beneficiaries of open source. We declined. We could join another and sue our customers. That seemed suicidal. . And we were encouraged to innovate by developers and customers who wanted Sun around, who saw the value we delivered through true systems engineering.

So we took that advice. . . . We redoubled our focus on innovation, in hardware and software, that would differentiate our offerings. Not just as good as the competition, but vastly better. . . . 

In essence, we decided to innovate, not litigate.

If "Our business Models Are melting Down Around Us," Should We Be Attempting to Freeze Them at the Very Moment in History When They Are About to Revolutionize Our Lives?

Schwartz is not alone in singing the innovation song.  Bruce Nussman advised CEO's this summer to Be Designers, Not Just Hire Them with this explanation.

There are moments in history when the pace of change is so fast and the shape of the future so fuzzy that we live in a constant state of beta.

I mean, let’s face it, our business models are melting down around us, our personal careers are morphing—or disappearing-- and there is less certainty about tomorrow than at any other time in our lives.

Innovation is no longer just about new technology per se. It is about new models of organization.

Design is no longer just about form anymore but is a method of thinking that can let you to see around corners. And the high tech breakthroughs that do count today are not about speed and performance but about collaboration, conversation and co-creation.

Could We Kill Internet 2 and 3.0?

All of this makes me wonder how misguided it might be to prevent the consumer-innovators of internet content sharing sites like YouTube from using, sharing, downloading, mixing, ripping, and burning the content that made YouTube what it is in the first place -- one of the most valuable internet sites on the planet in a mere eighteen months.

I am not the only one who has had this thought, of course.  None of this wild proliferation of creativity could exist had it been planned and controlled by a single corporate or governmental entity.  The internet -- and everything on it -- has arisen in relationship to and as a result of everything else.  No one can truly claim authorship.

Will demanding our "rights" to control our creation kill the creator, i.e., the collective consciousness that built the internet?  

Another innovator (brought to us by Coleman in Google Tumult via a Tech Crunch Post about  Attributor) CEO Jim Brock, has an answer -- snippet below:

If you are playing whack-a-mole and remove something from one site, it will appear somewhere else. Web-wide visibility is what publishers want. . . Smart publishers recognize that the blogosphere is the greatest promotional medium ever created.  . . A lot of publishers are holding back . . . they are fighting digitization. We’d like to see it set free.

While We're At It, A Little Propaganda About Net Neutrality Below

Customers seeking new information and innovative solutions to business problems often meet their needs by internet downloading and online file sharing.  Unfortunately, these activities attract viruses that can corrupt computer data.  For this reason, every strong marketing network requires a comprehensive computer backup solution to recover misplaced or lost data. The data recovery group is a complete data recovery package that focuses on recovering data from computer hard disks.  Of course, high-quality recovery hardware is useless without excellent data recovery software. With the help of disaster recovery application or windows backup software, a company can maximize its recovery hardware output to avoid market fallout caused by viruses.

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The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Anatole France, The Red Lily, 1894, chapter 7 

 AP Minneapolis from the Los Angeles Times

A woman facing a $222,000 music-sharing verdict asked a judge Monday to overturn it.

Jurors in a case that six record companies brought against Jammie Thomas found that she violated the companies' copyrights by offering 24 songs over the Kazaa file-sharing network. They ordered Thomas, a mother of two who makes $36,000 a year, to pay the companies $222,000.

In a motion filed Monday, Thomas' attorney, Brian Toder, did not argue that she hadn't violated the copyrights. Instead, he said that because the songs could have been purchased online for about $24, the $222,000 verdict was disproportionate and amounted to punitive damages. 

for remainder of article, click here.

Jury Instructions

Copyright law allows damages of $750 to $150,000 per song.

What the Jury Awarded 

$9,250.00 per song.

The Music Companies' Actual Damages

The songs could have been purchased online for about $24.00.  Without itemizing, defense counsel pegged the record companies' actual damages at "less than $151.20 in all."

Who Else the Major Record Companies are Pursuing

According to the Times, the Recording Industry Association of America has sued 26,000 of its individual consumers for damages.  In September, it also sent "a new wave of 403 pre-litigation settlement letters to 22 universities nationwide" on behalf of the "major record companies."  See RIAA News Release here.

Why the Jury Likely Made the Thomas Award So High

If you've been following this story, you don't have to do much guess work to believe the jury was likely punishing the defendant for lying to them on the witness stand.  Although the defendant denied file-sharing on direct examination, documents produced at trial pretty well demonstrated that she was not telling the truth. 

This always pisses the jury off.

What the Jury Didn't Know

• Thomas. a single mother of two, makes $36,000 a year.
• 2006 Executive Compensation for One Major Record Company Warner Music Group as reported to the Securities and Exchange Commission as of January 17, 2007
  • Chairman and CEO Edgar Bronfman, Jr. -- $1 million salary;  $6 million bonus
  • Lyor Cohen, CEO U.S. Recorded Music $1.5 million salary: $4.5 million bonus  
    Michael Fleisher, Exec. VP $ 800,000 salary; $ 1.4 million bonus
  • Chief Financial Officer David H. Johnson $700,000 salary; $800,000 bonus
  • Alex Zubillaga, Exec. VP, Digital Strategy $600,000 salary; $1 million bonus
• The U.S. Bureau of Labor Statistics estimates the average yearly earnings of salaried composers and music directors in 2006 at $53,320.
  

Even Primates Won't Tolerate Econimic Inequities on this Scale

Finally, though I've resisted seeing it for more than 25 years, the Les Misérables "power to the people" song . . . .

Little people know
When little people fight
We may look easy pickings
But we've got some bite

So never kick a dog
Because he's just a pup
We'll fight like twenty armies
And we won't give up
So you'd better run for cover
When the pup grows up!

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The IP ADR Bloggers have just gone "live" with our new web site:  ipadr.com.

Come on by and check us out!  

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Avoiding jury duty?  Would it be more convenient to serve from a laptop in your own home?

The disputes iCourthouse is apparently set up to handle appear to be of the Judge Judy variety.

Still, as law firms outsource patent applications and  legal research to India and litigants settle their disputes online (see posts on CyberSettle here and here)  can net jury trials be far behind?

Please do let us hear from anyone who's used either Indian legal outsourcing services or iCourthouse before.

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Thanks once again to Liklihood of Confusion for its post The Red Cross Fights Back.  The links provided by Confusion's Ron Coleman bring you this nugget from the PR war that we cannot imagine anyone other than the Red Cross winning.

It is particularly regrettable that J&J's lawsuit would seek to interfere with the preparedness mission of the Red Cross – increasingly important post 9-11 – during National Preparedness Month when everyone should be working together to get prepared.

Research shows only 7 percent of Americans have taken the necessary steps to prepare for disasters, but that 82 percent would get prepared if it was easier to do. Red Cross items such as those that are the subject of the amended complaint help families take the necessary steps to Be Red Cross Ready: to get a kit, make a plan and be informed.

The basis for many of J&J's claims focuses on an alleged agreement between Clara Barton and J&J in 1895 . . . 

The Red Cross will aggressively protect its longstanding right to use the Red Cross emblem in support of its humanitarian mission.

Post-9/11 humanitarian relief and protecting American families from terrorism.  Got anything to top that J&J?

See our previous post on interest-based potential negotiated resolutions to this dispute here.

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The IP ADR Blog is pleased to announce that we are being joined in our IP blogging venture by John Leo Wagner, Federal Magistrate (Ret.).

Judge Wagner is a colleague of Mike Young's and mine at the Southern California ADR firm Judicate West.  His impressive credentials will soon be posted in the "About" section of the blog (up at the top there).  We provide only the highlights of his judicial and private practice career below.

Welcome John!!  We know that our IP ADR Blog readers will greatly enjoy hearing your thoughts on the negotiated resolution of IP disputes.

ABOUT JUDGE WAGNER

Judge Wagner has been engaged in the settlement and trial of intellectual property disputes for over 20 years. He is currently a full-time neutral with Judicate West Alternative Dispute Resolution, where he mediates and arbitrates all manner of patent, copyright, trademark, trade dress and trade secret disputes.

John was formerly Of Counsel with the Los Angeles-based law firm of Irell & Manella LLP, where he was the head of the firm’s ADR practice group and Director of the firm’s Alternative Dispute Resolution Center. He worked for over seven years as one of the ADR Center’s primary neutrals, settling a myriad of difficult intellectual property disputes.

Before joining Irell & Manella, John served for over twelve years as a United States Magistrate Judge in the Northern District of Oklahoma, where he founded and administered the Court’s mediation program, and served as the resident expert in settling IP disputes.

John has mediated and arbitrated thousands of cases and was recognized as a Southern California Super Lawyer in the field of Alternative Dispute Resolution in 2007. He has also been selected for inclusion in he 2007 edition of The Best Lawyers in America in the specialty of Alternative Dispute Resolution.

John is the President-Elect of the International Academy of Mediators, a Fellow of the American College of Civil Trial Mediators, a Member of the CPR International Institute for Conflict Prevention and Resolution’s Panel of Distinguished Neutrals and a Diplomate Member of the California Academy of Distinguished Neutrals.   John is also a member of the Board of Directors of the Federal Bar Association's ADR Section.

John has been active in guiding national ADR policies and practice for over two decades. He was appointed by Chief Justice Rehnquist to serve on the Court Administration and Case Management Committee of the U.S. Judicial Conference, where he helped to formulate rules and policies governing ADR programs in the Federal Courts. He also served on the CPR Advisory Committee dealing with Mediation Procedures and the CPR/Georgetown Commission on Ethics and Standards in ADR.

Judge Wagner frequently teaches and lectures on ADR topics.  

We're happy and proud to have him join us here.

 

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Thanks to IPKAT for noting this newsworthy IP settlement, especially since we're getting too old (and busy!) to keep up with pop music. 

Right, the settlor -- Amy Winehouse. 

Click on the image to be transported to her "official site" where you too can be introduced to her music for the first time if you're similarly generationally impaired.

If you're considering offering an apology as at least part of the "compensation" for a wrong you or your client has been accused of committing, take a look at Stanford University Professor Frederic Luskin's Nine Steps to Forgiveness here.

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HOW IT STARTS

"They cheated me," said the C.E.O. of a Fortune 500 company. 

"They stole my invention [or process, design, employees, product, market, or, customers]."

"They copied, knocked off, lied, misled, withheld, and, denied."

This is how the litigation begins.  You can recite it in your sleep because you drafted the complaint, the counter-claim, and, the interrogatories.  You prepared the examination, the cross-examination, and the jury instructions.

HOW IT ESCALATES

With each passing day, their wrongful, outrageous behavior and the injustice done to your client grows. 

Why? 

Because they prove their essential bad character and malicious intent with each litigation thrust and parry.  Your conduct is righteous, avenging, and, pure, while theirs only confirms their bad faith.  They destroy documents, alter evidence, mislead the Judge, and file pleadings at 5 p.m. the day before three-day weekends.

HOW IT COMES INTO THE JUDGE'S SETTLEMENT CHAMBER OR THE MEDIATION CONFERENCE ROOM

Although no one "takes it personally," by the time you bring your clients to a settlement conference or mediation, they cannot bear the sight of one another. 

I have not only been instructed that joint caucuses will not be tolerated, I've been asked to assure that the parties will not lay eyes on one another because the other side's very corporeal existence might so inflame the disputants that the negotiation session will melt down before it has had the chance to begin.

If you are a litigator with at least five or six years of experience representing clients in hotly contested intellectual property litigation of any stripe, you know that I am not exaggerating.

I want you to keep this litigation posture and emotional climate in mind for the next few weeks because all of my posts are going to be based it.

WITH A LITTLE HELP FROM OUR FRIENDS -- ENSURING THE BEST POSSIBLE NEGOTIATION   

In the coming weeks, we will be discussing some concepts in the social psychology of conflict that will help you de-esclate the conflict, which will, in turn, help everyone brainstorm and negotiate a deal as effectively and efficiently as possible.  

Toward that end, we'll talk about cognitive biases, with a little help from our friend Michael Webster, whose Psychology of Compliance and Due Diligence Law Blog was just last week named one of the ten best legal blogs on the internet. 

We'll also rely upon Harvard Business School's Working Knowledge, an invaluable, free resource that will improve every commercial litigator's ability to "cut to the chase" of the business interests that lie at the heart of every great settlement. 

Today's post, for instance, in fact the entire series of posts, was inspired by the HBS Working Knowledge Newsletter article -- Why We Aren't as Ethical as We Think - A Temporal Explanation by Max Bazerman (author of the great new negotiation text Negotiation Genuis) and his colleagues Ann E. Tenbrunsel, Kristina A. Diekmann, and Kimberly A. Wade-Benzoni. 

Other on-line resources we'll be using to explore this topic include:

Beyond Intractability (this link, for instance, is to our friend Ken Cloke's article on Mediators without Borders, which describes several great techniques for de-escalating conflict). 

The Freakonomics Blog, covering, among other things, marketing strategy that often overlaps with negotiation strategy, see e.g. Should Apple Burn its Economics Textbooks here and monetizing the value of spending more time with a loved one here. 

Brains on Purpose, our friend Stephanie West Allen's Neuroscience and Conflict Resolution Blog, see e.g. this recent article -- Conflict, Is it All In Your Head?, which appears, along with another cool dozen-plus conflict resolution blogs at Mediate.com's "Featured Blogs" page and Geoff Sharp's 40 Sites in 40 Minutes  including Gini Nelson's Engaging Conflicts on such topics as The Ethics of Compromise here and Diane Levin's Online Guide to Mediation on such topics as Is Your Negotiating Style Leaving Value on the Table? here.

Roger Dooley's brilliant Neuromarketing Blog, see e.g. our Negotiation Blog post on Small Talk and the Value of Joint Sessions here.

The Legal Theory Blog, see e.g. Negotiation and Time Perspective.

The Trial Lawyer Resource Center, whenever we need reminding that trial may well be the better alternative to a negotiated resolution, and to avail ourselves of the settlement insights posted there such as Listening During Settlement Negotiations. 

Malcolm Gladwell's Blog (the Tipping Point and Blink), see, e.g., this post on why journalists failed to detect the Enron debacle.  

The texts on which we usually rely will also be cited to assist you, including 

Professor Leigh Thompson's introductory-intermediate guide to negotiation, The Mind and Heart of the Negotiator (2d ed) -- the first chapter is online here.

Lax & Sebenius' essential 3D Negotiation -- excerpt online here.

Bazerman and Malhotra's newest compilation of negotiation advice, with which to earn your own post-graduate negotiation degree, Negotiation Genius.

The American Bar Association's massive compendium of negotiation strategic and tactical advice, The Negotiator's Fieldbook (online chapters include Analyzing Risk by Jeffrey Senger)

 Every new or existing website can benefit from search engine marketing.     Although many web hosting service providers supply domain registration, internet safety, and general marketing services, they do not locate the dedicated IP addresses you need. Just as  advertising agencies promote their client’s products or services online, search engine marketers facilitate web marketing through link exchange, email marketing, adsense promotion and the like.  An abundance of websites and articles provide internet marketing information. By reading seo reviews you can improve your chances of finding the best company to provide SEO services for your company.

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(right:  1915 New York Times logo from the Project Gutenberg eBook)

It's one of those days when nearly everything in the massive Sunday New York Times seems laser-directed at my interests, which also happen to be those of the IP ADR Blog.  So in case you didn't have my relaxing reading day, here are the good reads from today's NYT.

1. how and why we deal with money and possessions the way we do (Even in a Virtual World, Stuff Matters);
2. new ways to value the intangibles driving the post-industrial economy (Re:Framing - When Balance Sheets Collide with the New Economy);
3. the painful personal results of conflict avoidance (much more about this soon) (How to Avoid, Well, You);
4. poker strategy and tactics (yes, law/busines/IP is more poker than Clue) (When to Hold 'Em, and When to Go to Poker School);
5. patent reform (of course) (House Passes Bill to Curb Suits by Patent Owners) 
6. wait for a final ruling, negotiate settlement or pursue an at-risk launch -- Teva weighs its options after federal court refuses to enjoin its release of a copycat generic (Wyeth Loses Bout in Fight on a Generic);
7. a challenge to negotiation orthodoxy raised by San Diego, California real estate "range pricing" to encourge the parties to negotiate in the ZOPA (A Pricing System with Wiggle Room); and, finally,
8. the history of knockoffs (The Knockoff Won't Be Knocked Off) (more on this later as well).

That's it.  It's one of those rare Sundays when, as a result of our interior painting project and the kindness of neighbors whose new pool was finally ready to be christened, I could read the entire Sunday New York Times.

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(photo, right, E and F by ednothing)

We were about to move on to "F" is for the Future in the IP ADR Dictionary, having already said that "E" is for Entrepreneurial Integrative Bargaining and, more simply, "E" is for Emotion.

But then we saw yesterday's Lawsagna post Three Kinds of Empathy and couldn't resist applying it to your IP disputes.  

Lawsagna not only defines the three types of empathy (according to Paul Ekman) but also has a bunch of great links on its uses, so please do check it out there. 

The bare bones are:

1. “Cognitive empathy” is “knowing how the other person feels and what they might be thinking. . . . 
2. “Emotional empathy” is . . . a state [of] “feel[ing] physically along with the other person, as though their emotions were contagious.”
3. “Compassionate empathy” [is] understand[ing] a person’s predicament and feel[ing] with them [in a way that] spontaneously move[s you] to help, if needed.”

THIS IS WHY YOU NEED TO BRING THE BUSINESS PEOPLE TOGETHER AT SOME POINT IN THE MEDIATION OR SETTLEMENT NEGOTIATION TO BREAK THE IMPASSE

I have a million stories about the parties more or less spontaneously settling litigation after hours and hours of impasse in shuttle negotiation.  See e.g., Conspiracy Theories and Granfalloons.

Impasse-busting joint caucuses are particularly useful in IP negotiations because the parties are so often in the same business or industry and the lawyers, for all of their industry experience, are not.  

Listen, the clients have so much in common that you don't even need to search for the semi-meaningless-empathy-building-"granfalloon" of shared experience (same nationality, same language, same military service, same college, same hometown,etc.) to get the three empathy principles working in your favor.  Shared experience is in your clients' genetic structure.

I never commence a mediation in joint session because at that stage of the settlement negotiation, all the parties want to talk about is why they're going to win -- not a terrifically useful way to start a productive business negotiation. 

But I never let the parties leave the mediation without putting them together, with or without attorneys and mediator, in a last ditch effort to make a deal.

YEAH, LIKE WHAT, YOU ASK

In one case -- a lawsuit over the design of an Hawaiian shirt -- I was the second mediator to attempt settlement of copyright litigation that had been extremely contentious.  We were moving in such small increments toward a potential settlement (in the nano- and stratospheres) that we were essentially at impasse all day long. 

When I suggested a joint session, counsel said, "why do you think Party A will be able to explain to Party B better than you why he should pay us what we want?"

My response?  You can predict it, I'm certain. 

"These guys negotiate more deals in a day," I said, "than we litigators negotiate in a month or a year.  Let them try to do what they're best at doing."

I then coached both of the parties before their meeting (without counsel or mediator) but I don't think I needed to.  They emerged 20 minutes later with a business deal. 

When I asked how they had accomplished it (they were both smiling and proud of the result), one of them recounted, to the other's evident pleasure, "well, we talked about baseball for a couple of minutes and I said 'how about $X?'  He mentioned his son joining a LIttle League team and I told him my son had just been made Captain of his high school football team.  He responded to my demand by saying, 'I really don't want to pay more than $Y.'  I asked 'how about Q' and we shook hands on the deal."

"We didn't want the lawyers to look bad," he concluded, looking around to see that the attorneys weren't within hearing range, "so we decided to stay in the room and talk a little bit about business before coming back out.  The deal was done in only five minutes."

And this is a common experience, not a rare one-off.

Lesson? 

Trust your clients to have the capacity to empathize with one another's business plight and their skill in cutting a deal that is genuinely best for them.  These guys were seasoned business men in one of the toughest and most aggressive industries in the world.  And yet they emerged from that joint session like little kids who'd just hit a home run. 

Bring your clients and their considerable negotiation skill-set back in from the cold and they will thank you for it by bringing you their buisness the next time their first response is to bomb the bastards back into the stone age.

And with that, we finally leave the letter "E."

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In the extremely unlikely event any IP ADR Blog readers haven't yet heard about the Nixon Peabody Theme Song Brouhaha, go to Blawg Review here (It's Not Just Fair Use . . . ) for the must-see YouTube video posted after NP sent YouTube a DMCA take down notice.

Listen, anyone over 50 could have made this mistake, so we're really sorry, NP, that it came to this.  The internet isn't just a two-dimensional chess game in which you've got to predict the other side's moves, if you mess with the Web 2.0 generation, you're deep into string theory. 

My best advice?  Don't make a YouTube move without checking it out with your first and second year associates first. 

There you go, that alone justifies the $160K first year salaries.

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Take it or Leave It?  (cartoon by Charles Fincher at LawComix.com) 

Don't get caught making unproductive settlement moves, learn from some of the best in the U.K., L.A. and Half Moon Bay in October and November. 

For our U.K. readers, Victoria Pynchon will be speaking on IP ADR in the USA: Big Ideas and Fresh Perspectives on 8 October 2007 at the Hatton Conference Centre in London.  Click here to see the day-long schedule and to sign up for early-bird discounts.  A downloadable .pdf of the conference schedule is in our sidebar to the left.

For our Southern California readers, a full-day seminar on Settlement Techniques that Give You the Winning Edge with IP ADR Bloggers Victoria Pynchon and Les J. Weinstein; Judges Alexander Williams, III (full-time settlement Judge) and Victoria Chaney (Ass't Supervising Judge of the Los Angeles Complex Litigation Court); and neutrals the Hon. John Leo Wagner (Federal Magistrate, Retired) and Jay McCauley, will take place at the Wilshire Grande in downtown Los Angeles on November 13, 2007.  Sign up here.  

If your practice crosses over with employment issues, join us for ALFA International's Labor & Employment Practice Group Seminar entitled "Employer of the Year" or "the Office": Which One Are You? (.pdf of the event brochure) at the Half Moon Bay Ritz-Carlton on October 3-5, 2007.

Once again, Victoria Pynchon will be speaking, this time with Joshua Frank, Senior Legal Counsel to DHL (moderated by James M. Peterson of San Diego's Higgs, Fletcher & Mack, LLP) on the Pro's and Con's of Employment Arbitration.

You'll have to get up early for this one -- it's scheduled from 8:45-10:00 a.m. on October 3 -- but we promise you a lively debate and fresh perspectives on an issue that might make corporate and litigation counsel want to rip those arbitration clauses out of their and their clients' employment agreements. Then again, you might just decide to rewrite those ADR Clauses altogether so that you get the best possible dispute resolution mechanism for your and your clients' work-force.

Either way, the time is ripe for reconsidering and revising the way in which you and your clients handle disputes with their employees.

JOIN US!!

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This just in from the AP, YouTube has a secret death wish.  See story excerpt and Jerry Seinfeld explaining why you don't give awards to comedians.  Nor do you take their depositions.  They are trained assassins.  

NEW YORK - YouTube wants to question comedians Jon Stewart and Stephen Colbert as part of its defense against claims that it illegally airs Internet snippets of sports and entertainment videos. 

The request, which surfaced Tuesday in court documents, was made last week to the judge presiding over lawsuits brought against YouTube by Viacom International Inc., England's top soccer league — The Football Association Premier League Ltd. — and indie music publisher Bourne Co.

To continue reading, click here.

 

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We're delighted to have as one of our bloggers international IP mediator and arbitrator Eric Van Ginkel.

With a background in both transactional and litigation law practices, Eric has been dealing with complex international corporate and business transactions for more than three decades. 

In addition to his IP practice, Eric has also litigated cases and advised clients concerning co-development deals, mergers and acquisitions, commercial real estate developments, straight and syndicated loans, and license and distribution agreements.

Eric acted as in-house counsel for almost ten years, and in that capacity, supervised the litigation of a substantial number of cases in the member countries of the European Union.

Eric is an arbitrator and mediator for the International Chamber of Commerce (ICC), the American Arbitration Association (AAA), the International Centre for Dispute Resolution (ICDR), the World Intellectual Property Organization (WIPO), the National Arbitration Forum (NAF), the Australian Centre for International Commercial Arbitration (ACICA), and the International Mediation and Arbitration Center (IMAC).

He also serves on the Panels of the United States District Court (Central District of California), the Los Angeles Superior Court and the California Court of Appeal (Second Division).

In addition to his LL.M. in dispute resolution from the Straus Institute, Eric holds Juris Doctor degrees from both the Law Faculty of Leiden University in the Netherlands and Columbia Law School in New York City. Being a Netherlands citizen living in California (having lived both in Europe and the United States), Mr. van Ginkel is sensitive to cross-cultural issues.

Eric is fluent in Dutch, English, French and German, and somewhat proficient in Italian and Spanish.

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(right:  Signs of Human 4 by Zach Stern)

In his recent Concurring Opinions post Art in an Age of Digital Reproduction, Frank Pasquale takes the time to discuss the pro's and con's of expanded "moral rights" in artwork.  Excerpt below, link above.

 
I recently went to the Art Institute of Chicago to see the Jeff Wall show. I’d seen some of his photographs in the newspaper, but I wasn’t buying the critical praise. .  .  

I’m glad I did. One of his pieces, Dead Troops Talk (a vision after an ambush of a Red Army patrol, near Moqor, Afghanistan, winter 1986), struck me as a Dulce et Decorum Est for our time. The visual monotony of a desert landscape and dull Russian officers’ uniforms is relieved only by gore and improbably animated faces, some laughing profanely, others enigmatically contemplating their fate. The startlingly inventive “Flooded Grave” . . . is set in a drab cemetery and features an open, water-filled tomb filled with a riotously colorful array of sea anemones and urchins. All the work was backlit, achieving a luminosity no printed page (or monitor I've seen) can convey.

Which brought me back to my initial lack of enthusiasm for Wall’s work. Did the newspaper copy mislead me? Would thumbnails on the web have done the same thing? . . . I’m . . .  wondering about the extent to which an artist might want the power to stop inferior copies of his or her work, if only to avoid misimpressions like mine.

On the other hand, I’d never have even gone to the show if I hadn’t seen the reproductions in the New York Times article on Wall. So I'm not sold on the need to, say, expand moral rights so as to permit artists to assure that only those appreciating the "real presence" of the work itself can see any copy of it.

BLOGGING WITH IMAGES FROM THE INTERNET

Because I use so many images to illustrate this blog and the Settle It Now Negotiation Blog, I'm keenly interested in the apparently contradictory interests of making an author's work available to an audience likely to appreciate it and keeping one's hands off another's work without first obtaining permission. 

In my own case, I've found that simply asking permission, giving credit and providing a link to a web site of the artist's choosing generally (99%) results not simply in permission but also in gratitude for the exposure.

Because posting a few thoughts on the blog, along with a vivid image, is such a spontaneous act (at least in my case) there were times in the past when I did not seek permission before posting but only gave credit and linked to the artist's site.  I figured everyone googled themselves occasionally, the artist would see his or her name, take a quick look at the context and object if the use was objectionable, in which case I'd promptly remove it.    

That, as you can imagine, finally led to a dispute, in consequence of which I no longer post any images other than those for which I've received permission, which I firmly believe constitute "fair use" or those with creative commons licenses (like the one above).

The ability to download material already on the internet in just a few seconds makes it difficult for even an IP specialist to resist.   

Nevertheless, I have learned my lesson and hence only link to but do not post a Jeff Wall image here.

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(Thanks as always to the generosity of the fabulous Charles Fincher at LawComix.com for the greatest law cartoons ever!)

And many additional thanks to Mark Partridge over at the Guiding Rights Blog for sharing this thunderbolt with us:  there were sixteen trademark, twenty-three copyright and seventy-one patent cases tried in the entire U.S. Federal System last year (the only place they can be tried for our foreign readers). 

I don't know what percentage of the total cases filed that is, but I can't believe it is more than one percent.

One of the most common questions I get from attorney-students when I teach Deposition Skills for  the National Institute of Trial Advocacy as I did last week-end is this:

"Should we conduct a killer cross-examination during the deposition or save it for trial?" 

My answer? 

You're not going to trial. 

Don't save anything unless it's for a strategic litigation as opposed to trial tactic.  You'll "try" your case, if at all, to a mediator.  Don't save it for me.

In all fairness to IP trial attorneys, I assume that a great percentage of IP litigation now takes place in arbitration.  If anyone knows how many IP cases are arbitrated every year, please feel free to pass that number along.

And thanks for the statistics Mark!

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(photo:  Lock and Key by Lord Cuauhtli)

I've already seen counsel use the Wayback Machine -- which has archived 85 billion web pages from 1996 to a few months ago -- to show prior art during the mediation of a patent dispute.  

The fact that this excellent means of independent sleuthing might constitute a crime would never have occurred to me.  But that's what creative lawyers are for Jack!  Finding ways to make the other side pay for the unfair advantage of opposing counsel's hard work and creativity. (though it appears the crux of the issue here is "getting lucky" when the Wayback Machine provided screen shots it shouldn't have).

Before proceeding on this topic, I want you to close your eyes for a moment and imagine a different world.  One in which the collective education, creativity, knowledge and experience of the world's litigators could be used collaboratively to . . . . let's say . . . meet the United Nation's Millennium Goals! 

No?  That being the case, here's the new law on using the Wayback Machine to prove your case, whether you prevail by virtue of hard work, good luck or a combination of the two.  

Bottom line -- it's not a crime either to use the Wayback Machine to prove your case nor to reap the benefit of "getting lucky" when it malfunctions.  

Read the opinion here.  Excerpt below:

Healthcare Advocates has not shown that the Harding firm viewed any images that they
were not entitled to see. The facts show that the Harding firm made requests via their web
browsers to the Wayback Machine to view archived web pages, and those requests were filled. 

Kimber Titus testified that she typed the web address she sought into the Wayback Machine, hit the “Take Me Back” button, and a list of screen shots available for viewing was presented. She clicked on the dates individually, and when an image appeared on her computer screen she printed a copy. (Id. at 78.) Ms. Titus testified that sometimes clicking on a date returned the “Robots.txt Query Exclusion” message. 

When this occurred, she clicked on the link that said “search here for all pages,” and was
provided with the list of dates from which she continued searching. No evidence has been
presented showing that the Harding firm did anything to get past the blocking mechanism. The facts show that the Wayback Machine gave Ms. Titus the ability to view archived screen shots of Healthcare Advocates’ website.

No evidence has been presented showing that the Harding firm exceeded that access. The
facts do not show that the Harding firm did anything other than use the Wayback Machine in the manner it was intended to be used. Gideon Lenkey testified that the Harding firm accessed the Internet Archive’s website with only an ordinary web browser, they did not employ any special tools. He wrote that the Harding firm obtained these images because Internet Archive’s servers experienced a condition that made them forget about protective controls.

“On some occasions and for reasons unknown these two servers would determine that robots.txt file did not exist on the HCA site and on those occasions would deliver the protected content.” The Harding firm only viewed the archived screen shots that the Wayback Machine provided.

As the facts do not show that the Harding firm exceeded the access provided, Plaintiff
attempts to convince this Court that determination of this issue must focus on the fact that the Harding firm viewed archived screen shots that the copyright holder did not want them to see. Healthcare Advocates argues that the Harding firm’s access was unauthorized because the images were viewed without its explicit permission. This fact is irrelevant. The statute only penalizes persons who exceed authorization.

The Harding firm was given the power to view the images by the Wayback Machine. While the screen shots may have been returned in error, they were ultimately provided. The Harding firm requested archived images from Internet Archive’s database, and those requests were filled. The Harding firm got lucky, because the servers were
malfunctioning, but getting lucky is not equivalent to exceeding authorized access.

There's a lot more in this case of benefit to litigators -- particularly the cautionary tales about electronic evidence and counsel's obligation to preserve "caches" on their hard drives.

 

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We received the below announcement yesterday from Les Weinstein's and my good friend Martin J. Trupiano, with whom we both worked.  I worked briefly with Marty at the (now departed) Los Angeles office of Pepper, Hamilton & Scheetz, and Les worked with him for a much longer time at, successively, Pepper; Graham & James and, finally, Squire, Sanders & Dempsey.

Here's the thing about Marty.  He's not simply a sophisticated, creative, careful and dogged advocate for his IP clients, he's truly one of the nicest people I've ever known.  (Is that libel per se when applied to a litigator?)  Marty's no push-over.  But he is one of the last of a breed -- the gentleman lawyer who relies on depth of knowledge, skill and, yes, cunning, rather than threats and obstruction.

If I needed an IP lawyer, Marty would be the first attorney I would call.  He's particularly dear to my ADR heart because he knows the difference between a legal position and a business opportunity and is always ready to craft a deal rather than to endlessly pursue litigation.

An example of Marty's generosity:  when I asked Marty if he'd co-teach a session of my ADR class at Pepperdine Law School on the resolution of religious issues on the job, he did as much or more work than I do in preparing for the class; met with me for two hours to discuss the issues in detail (an experience that deepened my own understanding immeasurably) and taught the class to rave reviews from my students.  Gratis.  For the love of the subject.

He's one of the good ones.  If anyone's looking for representation, you couldn't do better at any "big firm" than to take advantage of Marty's "big firm" expertise in his new boutique practice.

All of that said, here's Marty's announcement:

MARTIN J. TRUPIANO

is pleased to announce the opening of the

LAW OFFICES OF MARTIN J. TRUPIANO

The firm will represent companies and individuals in business litigation relating to patent, trademark and, copyright infringement, theft of trade secrets, unfair competition, antitrust violations, licensing disputes, breach of contract, and other commercial claims in federal, state and arbitral forums in California and throughout the United States.

Referrals welcome.

16000 Ventura Blvd.
Suite 1000
Encino, CA 91436
Telephone: 818-783-5151
Facsimile: 818-783-8585
Email: mailto:MTRUPIANAOLAW.COM

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This is the third part of a three-part interview with Jay Taylor, a partner with the Indianapolis, Indiana law firm of Ice Miller. Mr. Taylor's primary practice area is intellectual property law with a focus on patent, trademark, copyright, and trade secret litigation and mediation. He also concentrates in business aspects of intellectual property law such as acquisition, sale and licensing of intellectual property assets, and computer hardware and software sale and licensing.

MS. PYNCHON: Do you believe that the speed at which technology is changing these days should make mediation even more attractive to attorneys handling IP disputes?

MR. TAYLOR: I can tell you that the technology most effecting litigation practice today is electronic discovery. The new rules and case law on that topic are going to make discovery even more burdensome than it already is. And I’ve no doubt it will be abused by some attorneys for the sole purpose of forcing the opposition to capitulate.

Moreover, as technology advances, the costs required for experts to explain the technology in terms the court and jury can understand increases exponentially.

However, it is true that advances in the client’s patented technology often has an impact on the parties’ desire to settle a lengthy case. Many years ago, I was involved in a case involving a patent on controlling pattern stitching on sewing machines. While the case was pending, the technology advanced to the point where the patented technology was obsolete. The new technology was vastly superior and the old patent was worthless. The case settled quickly and reasonably because the whole market changed. This is going to be even more evident in the future as old technology is replaced more rapidly with new technology.

We will always, however, have the trolls with us, who attempt to reinterpret old patents to cover the new technology. Still, in many fields, the valuable life a patent is more limited today than it used to be by virtue of technology’s volatility.

MS. PYNCHON: Do IP disputes have other characteristics that make them uniquely appropriate for mediation?

MR. TAYLOR: I think the primary reasons IP cases and particularly patent cases are particularly good candidates for mediation is the cost of the litigation and the unpredictability of the results. The law itself is always in a constant state of flux. But with the Supreme Court overruling the Court of Appeals for the Federal Circuit on a regular basis in several very significant areas, that flux has increased to the point that very little is certain.

A patent case that may have looked very good several years ago, may now look less appealing because the standards for obviousness have been lowered, or the likelihood of an injunction reduced, or the likelihood of a willful infringement determination due to the failure to product an attorney opinion undermined.

Trademark disputes raise a whole set of other issues. Most often, the goal is an injunction to prohibit continued use of the infringing mark. Damages are usually less of a concern, so money alone is not going to get the matter resolved. Here, creative settlements are a premium and often the only way a trademark dispute can be resolved.

I once had a trademark case where the two clients reached a business settlement in the courthouse hallway as I was picking a jury. That is a case where mediation would probably have produced a comparable settlement much earlier and at much less expense to both sides, but neither the court nor the parties pursued mediation. At that time, mediation was not as widely recognized and practiced as it is today. Today, knowing what I now know, I would push such cases harder toward mediation.

MS. PYNCHON: Are you seeing a marked increase in mediation in your practice.

MR. TAYLOR: Oh, yes. Quite a bit. I am seeing more and more attorneys recognizing the benefits of mediation and counseling their clients to agree to it. Some courts are also beginning to recognize the benefits of mediation and pushing for and implementing rules for court ordered mediation. The Court of Appeals for the Federal Circuit has implemented a mediation program for all cases appealed to that court. Personally, I think that by the time a case gets to appeal, it is too late to mediate. Only time will tell if the program works.

MS PYNCHON: Thank you so much for sharing your experience and insights with us. It’s been very illuminating and education for me. Do you have any parting thoughts?

MR. TAYLOR: Yes, the mantra for the modern businessman should be "mediate, don't litigate." Litigation is costly, time consuming and disruptive for a business. Businessmen want as few uncertainties in their business as possible, and the result of litigation, by its very nature, is totally uncertain. Mediation, on the other hand, provides both sides with an opportunity to resolve a dispute on terms that are mutually acceptable at a cost far less than litigation. If the dispute is one that can possibly be settled, every attempt should be made to do so as early as possible through negotiation, and if that fails, through mediation.

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(photo by Bansky)

by Eric Van Ginkel

If you and opposing counsel enter into a post-dispute arbitration agreement that involves a copyright infringement issue, be sure to dismiss the action that was pending in the US district court. If not, chances are you will be held liable for the winning party’s legal fees incurred in post-award proceedings under 17 USC § 505.

That is the lesson I draw from the decision of the US District Court for the Northern District of California in Brayton Purcell LLP v. Recordon & Recordon, --- F.Supp.2d ---, 2007 WL 1462365 (N.D. Cal., May 18, 2007) (currently available only on Westlaw).

What happened?

The law firm Brayton Purcell, headquartered in Novato, California (near San Francisco), discovered that the website of San Diego-based Recordon & Recordon had materials on elder abuse that looked a lot like Brayton Purcell’s page on that subject. Recordon brought the web designer, Apptomix, into the lawsuit, which argued that it had developed that page based on independent research.

The three parties decided to submit the dispute to binding arbitration. In May 2006, the arbitrator found in favor of Brayton Purcell, and the two defendants sought to vacate the award. The district court denied the motions to vacate and confirmed the award. Then Brayton Purcell filed a motion for post-arbitration fees and costs.

The Court’s Holding

The court found that Section 505 of the Copyright Act applied to this case.  

As this case was not dismissed by the parties when they agreed to submit the dispute to arbitration, this case remains a “civil action under this title” within the literal meaning of § 505. In this regard, cases cited by Recordon denying post-arbitration fees are inapposite. They do not involve a continuation of a court case in which interim arbitration has taken place, but rather the initiation of an independent lawsuit seeking confirmation of an arbitration award.

In other words, [t]he analysis might be different had the parties in the case at bar stipulated to a dismissal of the case as part of their agreement to submit to binding arbitration. There would no longer have been a “civil action” under the Copyright Act pending before the Court, and any new court filing seeking to confirm the arbitration award arguably would not be a “civil action” under the Copyright Act.

Rather, federal jurisdiction for such a suit would have to have been independently established, e.g., diversity. To be absolutely clear on the matter, the court stressed that in agreeing to binding arbitration, the parties could have stipulated that fees would be awarded only in arbitration, and not for any post-arbitration proceedings.

Continue Reading...

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Les Weinstein, who remains affiliated with the law firm of Shelton Mak Rose Anderson PC while arbitrating national and international intellectual property cases with the American Arbitration Association, was my boss, mentor and teacher more than twenty years ago (yikes!) when we practiced together at Pepper, Hamilton & Scheetz.

It's a pleasure and privilege to welcome Les as one of the contributors to the IP ADR Blog.  Since meeting one another again in the ADR world, Les and I have co-mediated copyright and patent infringement cases and I have assisted him with some of the most sophisticated and complex arbitrations, including a billion dollar infringement case between two IP industry titans. 

Les has over 40 years of experience as a trial, counseling and appellate lawyer specializing in patent, copyright and trademark law, as well as the law of competition (antitrust, trade secrets, unfair competition and unfair trade practices). Mr. Weinstein's knowledge of patent law and practices is particularly deep.

He is not only registered to practice before the U.S. Patent and Trademark Office, he had early experience as a Patent Examiner, before which he worked as an engineer to ITE Circuit Breaker Co.

No stranger to the courtroom, Mr. Weinstein worked for the U.S. Department of Justice in Washington D.C. under an appointment to the Attorney General's Honor Program. It was there that Mr. Weinstein earned his trial stripes before going on to a long and distinguished private career as a partner with McKenna, Conner & Cuneo; name partner with Bleecher, Collins & Weinstein, and Senior Partner with the law firms of Pepper, Hamilton & Scheetz, Graham & James LLP, Squire Sanders & Dempsey LLP and Sheldon Mak.

Continue Reading...

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