Unsurprising Speculation on Bratz Litigation Resolution: Licensing Agreement in the Works
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 WriterThe 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).
Negotiation Strategies with Bart Greenberg of Manatt Phelps
Negotiation Strategies
View more presentations from Bart Greenberg.
Has the 9th Circuit Really Eviscerated Internet Trademark Laches?
See yesterday's opinion Internet Specialties West, Inc. v. Milon-DiGirgio Enterprises, Inc.
There's a vigorous dissent from Justice Kleinfeld culminating in this prediction of the majority opinion's affect on trademark law, particularly as it effects internet marks:
The majority’s evisceration of laches means that a big company can lurk in the tall grass while its little prey gradually fattens itself by dint of great effort and expense. Then, when the small competitor has succeeded, the big company can shake it down for a cut of its hard-won success, or destroy the name under which it innocently did business for years. That is trademark law as protection racket, rather than trademark law as prevention of consumer confusion.
The ADR lesson? There's a story of fierce business competition here fought out between two internet providers (living in the 21st century) and decided by the narrowest margin based on rules (laches) forged before the industrial revolution.
Only the parties know whether the Plaintiff was aiming to "shake down" its competitor or had other motives to take the considerable risk of exposing its commercial future to the decision, first, of a federal court judge and then to a three-justice federal appeals court panel.
Though commercial enterprises badly need clear rules of law to guide their present activities and chart a profitable future, they should never forget Google exec Eric Schmidt's observation that litigation is just a "business negotiation being conducted in the Courts" -- the litigation simply one bargaining chip of many to be used in negotiating a commercial solution to a justice problem - one that will avoid - if possible - zero sum outcomes on technical legal issues of no genuine interest to business people.
Dissenters from that view?
Because its more cost efficient to play nice . . . .
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.
Thinking Outside the Box to Deliver Greater Client Satisfaction During Hard Economic Times
Live Telephone SeminarADR 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
ReMix: Larry Lessig Subjects Himself to Stephen Colbert
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!
Business Solutions to Commercial IP Problems or Legal Solutions to Business Problems? Why Not Both?
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.
Blawg Review #189 at Infamy or Praise Delivers the Goods
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.
Head's Up RIAA: Engage These Kids Passions: Don't Sue Your Market for Heaven's Sake
Since you've clearly already taken your brains out of your heads, make a strategic marketing decision that doesn't put them up your #$@%.
Engage young people's loyalty; their capacity for innovation; their motivation to do the right thing if paired up with the right innovative partner.
Time to fold up the litigation tents & reconnect with the people who will or will not be buying your music for the next 60 YEARS!
The following courtesy of Professor Michael Scott @copyrightlaw.
by Mike Masnick from TechDirt
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.
Heddy Lamar and Inventor's Day at IP Think Tank Blawg Review No. 185
Heddy Lamar invented wireless tech? Well . . . . it's not quite what happened, but not too far from the truth according to Duncan Bucknell's IP Think Tank Blawg Review #185. If that doesn't send my Hollywood lawyer friends over to Duncan's pad for a read I don't know what would.
Next week’s Blawg Review will be hosted at Res Ipsa Blog.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
If you wish, send me a tiny url of posts you think are blawg review-worthy to @vpynchon on your Twitter network.
$#@^%& (that's husband cursing Twitter in background)
Collaboration Agreements for Creatives
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.
Survive in Tough Times? Don't Plate that Patent in Gold
A truly excellent post over at IP Asset Maximizer Blog on reducing legal expenses while still protecting your inventions. To give you a taste before you speed on over there, blogger and self-described "Intellectual Property and Patent Business Strategist and 'Recovering Patent Lawyer'" Jackie Hutter suggests that the "disciplined" entrepreneur will
obtain[] patent rights that are adequate, but are not so broad as to fully protect the upside opportunity associated with the innovation. The risk to such an approach is that if the innovation is a runaway success, the patent rights may not be broad enough to fully exclude competition. Few product or technology innovations are truly runaway hits, however, so the organization that decided that not all patents must be gold-plated would probably come out significantly ahead in patent legal spends.
To business people, we attorneys can seem like overly anxious mother (and father) hens in the provision of both transactional and litigation services. I learned this early as a paralegal (back when New York City was bankrupt and Times Square truly frightening to the 23-year old who took her lunch breaks prowling mid-town Manhattan). Though I worked for the head of the litigation department, my desk was outside the door of the attorney who advised Uniroyal about the potential problems posed by their advertising. He made the litigators look like pussy-cats, shouting on a daily basis at whoever it was in the ad department who just wanted a little room to create, man, and the "suits" were always worrying about liability for goodness sakes when it didn't much matter if someone sued you if you weren't selling any $%#@^% tires!! (or Sperry Top-Siders).
So remember, everything in moderation. As Jerry McGuire's infamous mission statement exhorted: fewer clients; less money.
(by the way, that's my good friend Russel asking "do you know your name?")
Musicians Outside the (i)Pod from IP KAT
See what IPKAT's talking about when it notes its fascination with the music industry's efforts to "develop new business models" in its post on the formation of the Featured Artists Coalition. IPKAT comment below. What excites the KAT at the link above.
The IPKat is fascinated by the continued efforts made on all sides of the music industry to develop new business models and feels that it's clearly apparent that there are almost as many potential business models as there are business interests -- this seems to herald the end of any "one size fits all" model. Yet there's safety in numbers, which means that even big name artists need to organise within groupings such as the FCA.
Blawg Review # 179 Secures Innovation Tomorrow Morning
Great way to start your IP week -- check out Blawg Review #179 at Securing Innovation tomorrow morning. Preview here.
Looking forward to it!
Blawg Review # 178 Rocks the IP World from Down Under
Run, don't walk to what may well be the Best BlawgReview of the Year at Freedom to Differ with these tasty IP and technology morsels.
Law, blogs and technology
At one of my favourite blawgs, The UTube Blog, Edward Lee blogged that NBC praises YouTube technology in keeping unauthorized Olympics videos off the Internet — is Viacom’s case against YouTube now toast?
At PrawfsBlawg Marc Blitz pondered the privacy implications of a video game that you control with your mind. Meanwhile Sam Bayard from The Citizen Media Law Projectblogged that YouTube announced changes to its community guidelines last week, prohibiting the upload of videos inciting others to commit violent acts, giving Senator Lieberman a partial victory on terrorist videos.
On Pointwondered whether the 11th US Circuit Court of Appeals tried to cover up a particularly deplorable decision in a civil-rights case by not publishing it, only to have the videotape of a Florida police officer repeatedly tasering a handcuffed motorist showing up on YouTube - with the apparent support of the dissenting judge.
The Greatest American Lawyer observed that Cell Phones Can Distract ... And Kill: Metrolink Engineer May Have Been Texting In Deadly Train Crash. While on that tragic accident, Traverse Legalreported that it appears that cybersquatters immediately prey upon the publicity that surrounds a mass accident.
Adam Frucci noted that an anti-consumer 8,000 words update to AT&T's 2,500 pages-long customer agreement (called a "guidebook" by the company) probably won't be read by many of its customers, but it is attracting attention from regulators who may require the telecom giant to rein it in.
Mike Masnick doubted that peer review is sufficient to help the somewhat dysfunctional American patent system. Gene Quinn wrote that patent trolling has subverted the system from one protecting innovation to one simply redistributing wealth.
And with a shrink-wrap license on a bag of grapes in a supermarket, Mike Madison suggests that contracts have finally "jumped the shark" while Timothy Zick looked at Meatspaces, Cyberspaces, and (Relative) Expressive Freedom and Michael Dorf chanted Spam, oneSpam Spam Spam Spam Spam, Glorious Spam,
Susan Crawford, the founder of One Web Day, urged us to contribute to the e-Democracy Time Capsule at timecapsule.onewebday.org:
Anyone across the country and the world can contribute by adding text, images, and video that celebrates e-Democracy to an open blog. We invite you to add the following entries:
Best of the e-Democracy Web: Your favorite tools, citizen journalist site, etc. What empowers you to act online?
E-democracy heroes: Brag about your friends and colleagues- who is behind the best political technology, content, and critical policy fights today?
Legislation and Policy: What are the issues we face in delivering the best possible future for e-Democracy?
Letters to the future: How do you see the e-Democracy Web growing (or failing) in the future?
However, one law blogger is in a little bit of trouble with the Recording Industry Association of America seeking to have attorney-blogger Ray Beckerman declared a "vexatious" litigator. According to Wired'sThreat Level blog the RIAA alleges that Beckerman, one of the nation's few attorneys who defends accused file sharers, "has maintained an anti-recording industry blog during the course of this case and has consistently posted virtually every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass plaintiffs ... Such vexatious conduct demeans the integrity of these judicial proceedings and warrants this imposition of sanctions." Read more here and visit Beckerman's blog, Recording Industry vs The People.
Submission guidelines for next week's issue here and if you're brave enough to follow Aussie Peter Black's lead, there are a lot of free dates open for next year's hosts for Blawgreview in the right-hand sidebar.
Law in Motion: Legal Documentary Journalism at its Best
When I celebrate the fact that the means of production are now in the hands of the people, I'm not talking about the ten-fingers of your 13-year-old daughter (great as her uploaded videos of the family cat might be).
If you're longing for quality documentary content on the internet, check out the KobreGuide, which has a LAW CHANNEL channel here.
The Guide takes its name from its publisher and editor Ken Kobré whose textbook (below, right) has been the widest-selling text on photojournalism in the world for nearly thirty years. 
I'd be excited about this new way to find quality moving journalism on the 'net whether or not my good friend journalist-mediator Jerry Lazar wasn't serving as Editorial Director -- a guy with some of the best instincts for quality journalism in the country. Here's how the Kobre Guide describes itself:
This project is an antidote to comprehensive Web video portals, such as YouTube and MetaCafe... We're focusing instead on handpicked, high-quality documentary-style journalism that is being produced primarily by major media outlets -- and frustratingly difficult for consumers to find...
We're a "curated" site (to use the latest buzzword, now that "edited" seems to have lost favor), which means that we're relying on discerning eyes and ears of people like YOU (and not search engines or web bots) to help alert and point us to the creme de la creme ...
We've already located scores of prizeworthy multimedia gems to showcase at launch, and now we're soliciting input from smart folks like you, who are in a position to know about and share the good stuff out there...
Criteria? ... Think "60 Minutes" TV newsmagazine-style journalism (NOT daily news or event coverage) -- but geared for the Web... Mainly video, but also compelling audio-slideshows, or a hybrid thereof...
In short: True (nonfiction) journalism Web multimedia stories of the highest professional quality...
And thanks for the shout out Professor!
If You Can't Copy the Law, There's Something Really Wrong Here
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 . . .
Larry Lessig on Congressional Reform, Internet Policy and the Upcoming Election
This is a brief interview with Lawrence Lessig at this year's Personal Democracy Forum in New York City. Lessig answers questions about Change-Congress.org: an online, participatory tagging tool to encourage reform and transparency in the US Congress.
Click here for an audio interview with Lessig.
Here is the description of the tool from the Change-Congress.org web site:
Change Congress is a movement to build support for basic reform in how our government functions. Using our tools, both candidates and citizens can pledge their support for basic changes to reduce the distorting influence of money in Washington. Our community will link candidates committed to a reform with volunteers and contributors who support it.
Here's part of the interview where Lessig addresses internet issues and the upcoming election:
I think there's a fundamental decision that will be made in this Election about the philosophy that will guide the next generation of the internet. John McCain has signaled very clearly that he's going to continue the philosophy of what I refer to as a kind of Neanderthal philosophy that the government has no essential role in this essential infrastructure. And that means basically privatizing the infrastructure to the interest of a increasingly small number of infrastructure providers. And the Obama platform is fundamentally committed not to displacing private interest but to complimenting private interest with other interests which are also essential to the internet's future.
So social interest and public interest and cultural interest that compliment the commercial interest; and so I think that an Obama Administration will appoint people and drive for regulation that guarantees this wider range of objectives that's achieved by this infrastructure. So just like we didn't build the high--the national highway system simply to serve GM's cars or to serve Ford-cars but to build it to support a wide range of uses, some commercial, some non-commercial and the same thing with the electricity grid and the same thing with every single infrastructure we've built. That's the way I think we'll think about the internet--that it serves many different objectives--some private, some not, and the government needs to make sure it can serve all of them well.
Cease and Desist at Pooh Corner
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.
As We Were JUST saying . . . . last YEAR, Innovate, I mean ADVERTISE
I've lived long enough to remember the Empire of the American Car Industry, 25 cent a gallon gas and 35 cent packs of cigarettes (I should have quit when prices reached the half dollar mark).
In the mid-80's Pulitzer Prize winner David Halberstam wrote a scorching indictment of the way the Detroit Auto Giants all but handed over the keys to their market dominance to the Japanese for whom the battle of Detroit and Toykyo looked more like taking candy from the hands of oblivious monster-car babies. The Reckoning remains must-reading for anyone who does not wish to see Ozymandias /** written on the feet of a torso-less Statute of Liberty by the end of the 21st Century.
I'm certain we're not the only civilization to cling to what we know; and, who, in the face of the almost certain market loss simply continue to do things the way we have always done them.
Which brings us to the recording industry, which has intimidated, bullied and sued its own market on its way into almost certain commercial oblivion now that capitalism has made possible that which Marxism failed to accomplish -- putting the means of production (and distribution) into the hands of the people.
This morning, however, the New York Times Business section brings us Now Playing on YouTube: Clips with Ads on the Side -- the first indication we've seen of a Media Mogul Epiphany.
After years of regarding pirated video on YouTube as a threat, some major media companies are having a change of heart, treating it instead as an advertising opportunity.
n the last few months, CBS, Universal Music, Lionsgate, Electronic Arts and other companies have stopped prodding YouTube to remove unauthorized clips of their movies, music videos and other content and started selling advertising against them.
CBS may be the most surprising new business partner in that its sister company, Viacom, is still pursuing its acrimonious billion-dollar copyright lawsuit against YouTube’s owner, Google.
So far, the money is minimal — ads appear on only a fraction of YouTube’s millions of videos — but the move suggests a possible thaw in the chilly standoff between the online video giant and media companies. Getting into the good graces of media entities is seen as critical to the future of YouTube, which has struggled to show appreciable revenue for video ads.
To read the full article, click here.
Quite the time for the members of the RIAA to rethink their market strategy in light of this development in its campaign to bully grandmothers, teenagers and disabled single mothers.
From Slashdot:
Phase I of the RIAA's misguided pursuit of an innocent, disabled Oregon woman, Atlantic v. Andersen, has finally drawn to a close, as the RIAA was forced to pay Ms. Andersen $107,951, representing the amount of her attorneys fee judgment plus interest. But as some have pointed out, reimbursement for legal fees doesn't compensate Ms. Andersen for the other damages she's sustained. And that's where Phase II comes in, Andersen v. Atlantic. There the shoe is on the other foot, and Tanya is one doing the hunting, as she pursues the record companies and their running dogs for malicious prosecution."
(empahsis mine)
Merrily, merrily, merrily, merrily life is but a dream . . . . .
_________________________
**/ For non-Lit majors, Ozymandias by Percy Bysshe Shelley below.
I met a traveller from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desert. Near them on the sand,
Half sunk, a shatter'd visage lies, whose frown
And wrinkled lip and sneer of cold command
Tell that its sculptor well those passions read
Which yet survive, stamp'd on these lifeless things,
The hand that mock'd them and the heart that fed.
And on the pedestal these words appear:
"My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!"
Nothing beside remains: round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away
Blawg Review #171
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).
.jpg)
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:
Pharmaceutical News and Resources
Thanks to CKA Mediation and Arbitration Blog for the honorary NoDoz Award (here's the ADR Executive Summary of #171, Chris)
a fool in the forest (with special thanks for brightwhiteandsparklinglyvirginal)
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.
Fabulous Scrabulous, Word Scraper and the Wages of Litigation
.jpg)
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 BelknapDoug 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?
Wise Up at Simple Justice's Blog Review No. 170
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.
AP, Drudge Retort Resolve Copyright Dispute as AP Continues Dialogue with Bloggers
.jpg)
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."
IP Risk Management: Protection, Protection, Protection
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)
The Best ADR is Prevention and Harvard's Educational Fair Use Project is a Good Start
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.
IP Soap Opera: Time to Tune Up Your Harassment Policies
Thanks to the Amlaw Daily (courtesy of writer Nate Raymond) for bringing us this shocking news -- Kasowitz Benson: Former IP Head Harassed 12 Women
The former head of intellectual property at Kasowitz, Benson, Torres & Friedman sexually harassed at least 12 female employees at the firm--including making advances on seven of them in one night--before he was fired in December, according to a lawsuit filed Monday by the firm.
The complaint, filed in New York state court, is the first detailed account explaining why Kasowitz Benson says it fired Jeremy Pitcock, an IP litigator who joined from Simpson Thacher & Bartlett in 2006. Pitcock denies sexually harassing anyone, let alone having engaged in a pattern of sexual harassment.
When you have a dozen women willing to jeopardize their careers (more on that later) to bring down a powerful law firm partner, my innocent-until-proven-guilty default flags.
(pictured: Bill Clinton, our former Sex-Addict-in-Chief, with the lovely Sheryl Crow -- think he didn't hit on her?)
What does this have to do with IP ADR? A lot. These are the human frailties -- some enlarged to actionable claims leading to disgraced departures -- for which the appropriate alternative dispute resolution technique is prevention. Counseling. Apology. Forgiveness. Reconciliation.
As a woman who was an early entry into the profession, I haven't had a lot of sympathy for my younger cohorts. I should do better in this regard but my own attitudes remind me that some old ideas are really really hard to change. Like the idea that women can take care of themselves. The idea that ridicule is the strongest antidote to unwanted attention (I have a great story about this but can't "print" it in a "family" blog). The recollection, from an era of Queen-Bee-Syndrome, of the solidarity and sisterhood we shared around the issue of our male superiors' unwanted carnal attentions.
And I have been known to say that the power balance between a 25 year old woman and a 45 year old man is heavily weighted in favor of the woman.
Unfortunately, senior men "hitting" on younger women will always be with us. It's the degree of ineptitude that generates the type of news you see here. Twelve women? That's not only a management problem (HR is asleep at the wheel). It's an addiction problem. If caught early enough, the offender can be channeled into a treatment program rather than ejected from the firm. In the case of a senior IP litigator, that ejection can cost the firm millions to tens of millions of dollars.
So here are some resources that everyone -- including those who are most protected against their own bad behavior -- senior IP litigation or transactional rainmakers -- can use to nip this sort of thing in the bud.
For a quick all-firm tune-up, call Julie Yanow at EquiLaw.
It's not just that Julie is one of my best friends. It's that her common sensical training courses are fun and hilarious because that's just who she is.
Even I'd pay to see her speak!
And she most assuredly does not share my pull-yourself-up-by-your-bootstraps, buck-up, take it like a . . . . man? attitude toward sexual harassment.
See her Training page here.
Here are 12 Questions from Sex Addicts Anonymous for self-diagnosis in the privacy of your room. Your attendance at SAA meetings is something you're allowed to keep secret until you decide (if ever) that you want to share this life-transforming experience with others. (though not a member, I have seen thousands of happy people transformed by the principles used in SAA, all of which are borrowed from the original 12-step AA program).
See also the Sex and Love Addicts Home Page -- an unusually well-designed site for a 12-step program)
For further reading, check out:
Sex Addiction Treatment and Recovery from the Dual Diagnosis Blog
What I Wish I'd Know About Sex Addiction Twenty Years Ago
Definition of Sexual Harassment from the About.com Human Resources Blog.
This dated but still relevant article from Fortune Magazine - Addicted to Sex A PRIMAL PROBLEM EMERGES FROM THE SHADOWS IN A NEW--AND DANGEROUS--CORPORATE ENVIRONMENT
Addicted to Love: Sex, Love and Compulsion here.
Here's a recommended reading list provided by SexHelp.com
The SLAA Journal (if you read this and "hear" your own story being told, it's time to venture out of your secret space to meet up with others who share your challenges and are successfully meeting them).
Finally, a little humor from the HR Legal Source (those offended by stuff that's funny, please skip this video) :
HR people? Any additional resources you'd suggest?
Domain Name Disputes: You Tube, CTV and American Girl Decided by Arbitrators from the National Arbitration Forum
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.
More Alternative ADR Practices: Preventing Patent Shark Attacks
If your company's business revenue depends to any degree upon its valuable patent portfolio head on over to the Harvard Business Review website and read "Patent Sharks" by Joachim Henkel and Markus Reitzig.
Henkel and Reitzig make the following recommendations to help companies avoid patent shark attacks:
- Move away from amassing huge patent portfolios for cross-licensing with competitors
- Simplify standards and create more-modular designs
- cooperate with competitors early in the R&D process
- Foster interdepartmental and intercompany cooperation
- Stop flooding patent offices with insignificant inventions.
For the full article, click here.
Both videos -- JAWS in 60, 30 and 15 seconds are for your summer viewing enjoyment.
More on the Absence of a Harry Potter Settlement
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 . . .
The Chicago IP Litigation Blog Includes Settle It Now in the Carnival of Trust
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.
Greek Island Seeks to Bar Gay Women from Using the Term "Lesbian"
Too busy to comment, but couldn't resist posting this one. Comments from the IP crowd? Ideas for interest-based solutions from the ADR posse? Mike Young?
ATHENS, Greece - A Greek court has been asked to draw the line between the natives of the Aegean Sea island of Lesbos and the world's gay women.
Three islanders from Lesbos — home of the ancient poet Sappho, who praised love between women — have taken a gay rights group to court for using the word lesbian in its name.
One of the plaintiffs said Wednesday that the name of the association, Homosexual and Lesbian Community of Greece, "insults the identity" of the people of Lesbos, who are also known as Lesbians.
"My sister can't say she is a Lesbian," said Dimitris Lambrou. "Our geographical designation has been usurped by certain ladies who have no connection whatsoever with Lesbos," he said.
The three plaintiffs are seeking to have the group barred from using "lesbian" in its name and filed a lawsuit on April 10. The other two plaintiffs are women.
And below -- a T.V. lesbian "mediator" gives warring parents a hologram of custody battles. Funny.
((red)) and the ownership of intellectual property
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.”
Patent Construction Reversal Rate So High "You Can't Advise Your Clients on What's Going to Happen"
There are dozens of reasons why a negotiated settlement of a patent infringement case is superior to continued litigation, but only one reason why it's even better than winning. As law.com recently reported, "over the last decade, 38 percent of the cases had at least one term found on appeal to have been wrongly construed [and] . . . 30 percent of the cases had to be reversed or vacated because of an erroneous claim construction."
As usual, we have Dennis Crouch at Patently-O to thank for the statistics, which were gathered by David Schwartz, an assistant professor at The John Marshall Law School.
"For some lawyers, the high reversal rate is worrisome," according to law.com's article Federal Circuit Tosses Out $104 Million Patent Verdict in DirecTV Case here.
"It's higher than everyone would like," said Michael Barclay, an IP lawyer at Wilson Sonsini Goodrich & Rosati. "You can't advise your clients on what's going to happen."
One fix for the issue was proposed in the patent reform bill that is currently stalled in the Senate. It would change the rules to permit an interlocutory appeal to the Federal Circuit after the hearing on claims construction instead of waiting until the trial is finished.
Proponents said the change would cut out all the time wasted on trials that ultimately get overturned by the appeals court. But opponents, including Federal Circuit Chief Judge Paul Michel, said that the change would clog up the appeals court and cause even more delays in patent cases.
In the Finisar case, a Texas jury originally awarded the tech company $78.9 million in damages after it found that DirecTV willfully infringed on a patent involving methods for transmitting and broadcasting digital information. U.S. District Judge Ron Clark denied Finisar's request for an injunction but awarded $25 million in enhanced damages. DirecTV was also on the hook for prejudgment interest, post-judgment interest and a compulsory license.
The appellate panel vacated the verdict, ruled that the alleged infringement wasn't willful, and invalidated one of the seven patent claims in question.
DirecTV's appeal had challenged the construction of two terms in the district court's claim construction as too broad. The appeals court agreed, though it ruled that only one of the misinterpretations was harmful.
For the full article, click here.
Where Fantasy and Fair Use Collide
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.
Do You Need a Magic Wand to Settle with a Billionaire?
A mere muggle gets it. But will IP attorneys heed the call to mediate?
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?
Maybe the question was rhetorical, but it's a good question nonetheless. How do you settle a case when the opposing party has billions of dollars already stashed away?
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.
Frankly, We're Surprised This Didn't Happen Earlier: Class Action Seeks to Stop RIAA Bullying
.jpg)
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.
USC IP Institute 17 and 18 March 2008
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
Prepare to Celebrate World IP Day
“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.
The Easiest Way to Get What You Want: Say Please
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.
.jpg)
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.
IP ADR Dictionary: "S" is for Story Telling
I was once contacted by one of the writers for the hit series House who wanted to know what the parties may do doing a mediation. After explaining several current mediation "processes" to him, I said this.
The beauty part is that you can actually do anything you want during a mediation. There are no rules.
Then we had a great conversation about what Dr. House might do in a mediation, none of which made it to the screen because it was too wild to appear there But we had a lot of fun.
Mediation advocacy is not too much different from trial advocacy except that the page is blank. The stage is empty. The computer hasn't yet booted up. The first word hasn't been penned. None of the characters has spoken. The sun is not yet up.
As our former national poet laureate Billy Collins has written in his great poem Aristotle,
This is the beginning.
Almost anything can happen.
This is where you find
the creation of light, a fish wriggling onto land,
the first word of Paradise Lost on an empty page.
Think of an egg, the letter A,
a woman ironing on a bare stage as the heavy curtain rises.
This is the very beginning.
The first-person narrator introduces himself,
tells us about his lineage.
The mezzo-soprano stands in the wings.
Here the climbers are studying a map
or pulling on their long woolen socks.
This is early on, years before the Ark, dawn.
The profile of an animal is being smeared
on the wall of a cave,
and you have not yet learned to crawl.
This is the opening, the gambit,
a pawn moving forward an inch.
This is your first night with her, your first night without her.
This is the first part
where the wheels begin to turn,
where the elevator begins its ascent,
before the doors lurch apart.
Mediation is a writers' blank page.
Writing is easy. All you do is stare at a blank sheet of paper until drops of blood form on your forehead. - Gene Fowler
Aside from writers' block, I have no answer to the question why there isn't more great mediation advocacy. But I can steer you in its direction. Take a look at Stephanie West Allen's interview with Diane F. Wyzga -- an attorney, nurse, and a professionally trained storyteller, who helps lawyers tell their clients' stories to juries. Read the entire interview. I provide only a tantalizing excerpt below. Then we'll talk more about mediation advocacy next week. As attorney Wyzga explains:
What could I teach a lawyer about storytelling? Robert McKee had the answer:
Storytelling is the art of expressing meaningful change in the life situation of a character in terms of values to which the listener reacts with emotion.
This is what lawyers do all the time! I just needed to overcome law school’s linear analytical training that says he who dies with the most facts, wins. And show lawyers how we listen to stories.
In the grip of a heartfelt story artfully told, the factfinder listener’s mind is fully engaged creating a parallel world of social judgment based on their world views and experiences. Now the attorney and factfinder are one: working in concert in a cooperative enterprise considering options, possibilities and outcomes.
As of a recent verdict in June, I have 11.11 million reasons why I continue to believe that a heartfelt story artfully told using language with power, passion and precision will engage your jury every single time.
Yes, You Should -- If At All Possible -- Seek Legal Advice When Served With a Cease and Desist Letter
(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.
Copyrighting Comedy
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.
Ninth Circuit Decides Comedy Club Arbitration Battle
Mr. Thrifty and I have been known to walk to the IMPROV (Jerry Seinfeld, Sarah Silverman, and before Mr. T., even Rosanne Barr before she was Rosanne). The club is right around the corner from our little neighborhood -- the one that's recently been renamed "Beverly Grove" in honor of the two shopping centers that anchor it firmly in L.A.'s march of progress to complete gentrification.
The presence of the IMPROV in my own personal geography is strong -- I took my comedy-driving- school-class there from the now pretty famous Kathy Griffin back in the day when I used to power my cherry red RX-7 up and down PCH at speeds local law enforcement couldn't ignore.
But I digress before I lede, a perilous practice when reporting not quite so exciting arbitration clause interpretation cases.
So here it is: Comedy Club, Inc. v. IMPROV West Associates, etc., the Ninth Circuit construing trademark licensing arbitration and non-compete clauses between an IMPROV licensee, the Comedy Club, and the IMPROV as follows:
- the arbitrator properly arbitrated the equitable claims where the "scope of arbitration" clause could reasonably be interpreted to embrace such claims;
- the arbitrator’s award enforcing an exclusivity clause containing a restrictive covenant by terminating the Comedy Club's right to open other clubs could not be set aside as "completely irrational" since that's what the contract provided for;
- the arbitrator exceeded the scope of his authority by enjoining non-party "affiliate" family members; and,
- because enforcement of the agreement's covenant not to compete barred the Comedy Club from operating in a substantial portion of its market, that portion of the award violated California Business and Professions Code § 16600, was therefore entered in manifest disregard of the law and had to be vacated.
The Ninth Circuit therefore,
vacat[ed] the district court’s order confirming the arbitration award and remand[ed the case back] to the district court with instructions to vacate the Partial Final Arbitration Award in so far as it enjoin[ed the Comedy Store's] Affiliates, unless they [were] agents or otherwise acting for [it] and to the extent it prevent[ed the Comedy Store] from opening or operating non-Improv clubs in counties in which [the Comedy Store] does not now operate or own an Improv club.
So who said arbitration awards can't be appealed?
With all due respect to those of us here at the IP ADR Blog who arbitrate IP disputes, these lengthly and complex proceedings make me want to mediate the darn thing.
Is Copyright Protection One of the Interests We're Willing to Give Up Net Freedom For?
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.
Threats, Lawsuits Fail to Revive Industry & Fool Says Don't Rush In
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!)
RIP YES; SHARE NO: THE RIAA SPEAKS
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!
The IP Litigator's Holy Grail: Dismissal without Leave to Amend
(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.
Don't Go to War with Your Consumers: Bronfman
(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.
Question for the IP Blawgosphere at the Sheppard Mullin IP Blog
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!
Lawrence Lessig at Google on the Long Tail and the Culture of the Internet
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.
What Can I Do to Advance Creative Freedom AND Artistic Control?
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.
Oregon A.G. RIAA Bully-Buster
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.
The New Perfect Ten on Infringing Uses of Online Photo Links and "Framing"
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)
Continue Reading...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.
Hollywood Writers Explain the Strike in 3:50
UPDATE: For a discussion of the reasons why this video so powerful presents the WGA's case, click here.
Thanks to the National Law Journal's Los Angeles Legal Pad for posting this short video "Why We Strike."
A post explaining the reason the reasons given here feel pretty darn persuasive next.
And, by the way, we're really happy to see the L.A. Legal Pad becoming much more substantive a legal news source than it originally was.
We're pretty certain we have Jason Siegel to thank for this improvement in content and thank him we do!
We're looking forward to watching it grow!
The Last Word on Posting YouTube Videos to Your Blog and a Scene from the Prescient Movie "Network"
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.
YouTube and the Law: What it IS or What it WILL be?
(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.
Volokh on Posting YouTube Videos on Law Blogs
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!
More Thoughts on the Chili Peppers Suit against Showtime
(right: Los Angeles IP and Entertainment attorney Richard Jefferson)
Some comments deserve their own post and this is true of Richard Jefferson's thoughts on our recent post Red Hot Chilis and Showtime Californicate in the Los Angeles Superior Court.
After reading over the Complaint, I now see legally how the Red Hot Chili Peppers (the "RHCP") were able to get this case in Court without being accused of blatantly filing a frivolous complaint.
The RHCP have coupled a claim for unfair competition and dilution regarding the TV show title (which looks like a weaker claim on its face) with the stronger claim against the TV Show's soundtrack release (the Californication soundtrack). Of course, the media headline is going to pick up on the more publicized RHCP Album Name vs. TV Show element, but this is typical of the media game in Hollywood.
There are a number of issues that make this case an interesting case to follow, such as the claim that the RHCP's album title has acquired a "secondary meaning" that will transcend trademark categories and the fact that Showtime actually applied for a federal trademark for "Californication" in the TV series category.Like most entertainment cases, it appears to me that this is just another case of "who has the bigger pockets to pay their lawyers". I suspect that there were extensive pre-litigation correspondence between the parties and Showtime never reached a settlement number that was high enough for the RHCP so they sued.
Also, not only is this good exposure for the band but the way that the media has spun the story so far, Showtime is getting some good pub as well by making it seem like this is a far fetched claim.
Thanks for the thoughtful analysis Richard! Much appreciated.
RIAA Likely Wins the IP ADR 2007 Bully Award
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.
Red Hot Chiles and Showtime Californicate in Los Angeles Superior Court
(click on image for the RHCP website)
The following local news comes via the UK's IPKat post Hot Stuff for the L.A. Courts, linking to an Australian news source, picking up the item from the AP. You'd think I'd know what's happening in my own back yard, but nooooooooooooooooooooooooooooo.
[T]he Red Hot Chili Peppers have sued Showtime Networks over the name of the television series Californication, also the name of the band's 1999 album and one of its singles of the same name.
The lawsuit, filed in a Los Angeles court yesterday alleges unfair competition, dilution of the value of the name and unjust enrichment, claiming the title is "inherently distinctive, famous ... and immediately associated in the mind of the consumer'' with the Red Hot Chili Peppers, the Associated Press reported..
''Californication is the signature CD, video and song of the band's career, and for some TV show to come along and steal our identity is not right,'' said the band's lead singer Anthony Kiedis.
Since there seems to be little likelihood of confusion between the television program and the record album and because the RHCP waited until Californication became a "hit show" before making its claim, is it possible that the lawsuit itself is a form of "free riding" on the success of the Showtime series -- that re-connecting the word "Californication" with the RHCP eight years after the album's release might well breathe new life into its sales.
I mean, if you recorded an album awhile ago and a series of the same name suddenly became a big success, wouldn't you want the show's ubiquity to remind people of your album everytime the show was mentioned? Is the filing of the Superior Court action -- which is certainly colorably meritorious -- nevertheless also a really really low-cost advertisement for the band?
And though I'm increasingly out-of-touch with pop culture, Californication does not seem to be out of touch with anything (I admit to being a fan). In fact, it is awash with pop cultural references making it (in my geeky book at any rate) pretty darn "hip."
And since the RHCP are also pretty darn "hip," the available synergies for both "products" seems obvious to me.
In other words, isn't this a business problem with a business solution rather than a legal problem with anything close to an answer that is easy enough to make it worth the parties' time and money to fool around with in the Courts.
I'd love to hear the opinion of Ron Coleman whose Likelihood of Confusion blog has convinced me he's one of the best in the field right now.
Ron?
UPDATE FROM RON COLEMAN who you'll notice is now carrying an advertisement for our friend Charles Fincher's law mugs -- Mug the Judge! Small world.
Ron writes:
Well, titles of works aren't normally protected as trademarks. Here, look.
I vote "no" for the Chilis. Love the work, though!
Vickie Pynchon - November 25, 2007 9:01 PM
Thanks Ron! The link is to a terrific Hollywood Reporter article on the issue entitled Sam I Ain't by local trademark attorney Jonathon Sokol.
In this November 15 article, Sokol cites the Second Circuit concluding "that literary titles do not violate the law 'unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or content of the work.' 875 F.2d at 999.
Circumstances under which titles ARE potentially infringing are also included in Sokol's article.
Thanks Jonathon. Great article!
Geek Love Lyrics for Larry Lessig
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!
Stanford Law Professor Larry Lessig Talks About Creative Freedom
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 LessigStanford 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.
"B" is for BATNA: At the End of the Day, It's All About a Jury Trial
(above, art imitating the truth -- Billy Flynn: Would you please tell the audience... err... the jury what happened? -- Razzle Dazzle from Chicago)
Why are we back to the "B's" and more particularly, why are we back to BATNA?
Because I've been mediating more "pure money" cases lately and recalling for my litigants the central fact of settlement life.
IF YOU'RE NEGOTIATING THE SETTLEMENT OF A LAWSUIT, YOUR "BETTER ALTERNATIVE TO A NEGOTIATED AGREEMENT IS A JURY VERDICT." PERIOD. END OF STORY.
This is why we're so happy to have found a new legal blog called Deliberations, which is all about the psychology of jurors; what they like; who they'll hate; what their predilictions and pre-dispositions are and how you and your clients might be able to influence them to decide the case in your favor.
As the Jury Research people teach us (here, by the way are two of the best jury consultants in Southern California, if not the nation, Chris St. Hilaire of M4 Strategies and Tom Bernthal of Jury Insight -- see the recent $15 million verdict largely credited to Bernthal's efforts) the jury is not comprised of your law school class, your university friends or even your high school classmates.
Who is it composed of and how do they think? That's the problem. You and I -- no matter how down to earth we believe ourselves to be -- have NO IDEA.
This week, however, Deliberations helps us out by telling us just how many jurors will likely be struggling with alcoholism and drug addiction in their families when we voir dire them and by pointing us to this great NPR (must read) quiz on the American Jury System.
The author of Deliberations, Anne Reed, a trial lawyer and jury consultant at Reinhard, Boerner & Deuren in Milwaukee, recently suggested to me that trial lawyers, jury consultants and mediators "might have something in common."
Oh yes. YOU -- trial lawyer, jury consultant, jury -- are the other side of my equation.
YOU ARE MY DISPUTANTS' BATNA.
Suing Your Customers and Dismantling Your Marketing Network?
(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
.jpg){kind=small}
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.
"B" is for Bully: Jean Valjean at the Music Store
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.
-
- 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!
Law School IP Essay Question: Are Defensive Football Signals Trade Secrets?
Below is the hypothetical from Eric Sinrod's CNet News Perspective Column, from Watergate to Videogate.
And though we don't think it necessary to answer the question, our U.K. readers may use Football for Dummies in responding.
A [New England] Patriots' assistant was apprehended for operating a video camera on the sidelines of the opposing team, the New York Jets, during the first game of this season. The camera contained footage of the Jets' defensive signals.
NFL rules prohibit video-recording devices in the coaches' possession both on the field or in a locker room during the course of any game. The rules also state that video for coaching reasons must emanate from places enclosed on all sides with an overhead roof.
The NFL's executive vice president for football operations has since sent a memorandum to head coaches and general managers to clarify the rules. The message was unambiguous: videotaping of any kind, including taping of an opposing team's offensive or defensive signals, is not permitted on the sidelines, in a coaches' booth, in a locker room or from any other place available to a team's staff during a game. . .
The National Football League fined Coach Bill Belichick $500,000 while the Patriots were ordered to pay $250,000. The league also ruled that the Patriots must forfeit a first-round draft choice next year if the team reaches the playoffs (which is highly likely) or second- and third-round selections if it fails to make the playoffs.
"Did justice prevail?" asks Eric. "Even more, does the result hold up as a matter of law?"
You have one hour. This is a closed book exam. Do not read Eric's trade secret analysis until you have closed your blue book or shut down your laptop.
You may begin.
IP Camp Lawsuit: Virgin/Creative Commons/Flickr Dispute
(newly famous teen camper, Alison Chang, flashing the peace sign at her camp counselor)
Oh what a tangled web the internet can be.
As reported yesterday by the Sydney Morning Hearld, a teenager whose photo was taken by a camp counselor who posted it under a Creative Commons license on flickr and which eventually showed up on a Virgin Mobile televsision ad, has sued everyone in sight, including (mysteriously) Creative Commons itself. See Virgin Sued for Using Teen's Photo here.
We have to clean up the kitchen after a delicious Sunday brunch, after which we will return to this post with reasons why an early mediation of this dispute could solve all of the parties (not to mention society's interests better than litigation ever could.
I'll just leave you with this thought: if you had the choice between making your own rules and letting the Courts make them up for you, which do you think you'd choose?
_____________________________________________________________________________
.jpg){kind=small}
California is one of the few states where you can study for the bar at home. A guide to online law schools can be found here.
John Leo Wagner, Federal Magistrate (Ret.) Joins the IP ADR Blog
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.
IP Apologies in the News
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.
On the Internet, Nobody Knows You're a Dog: Negotiating the Settlement of Your IP Dispute
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)
.jpg){kind=small}
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.
IP ADR BLOGGER MICHAEL YOUNG SPEAKS ON EFFECTIVE MEDIATION ADVOCACY
.jpg)
If you're going to the 80th Annual California State Bar Meeting, you'll want to sign up for IP ADR Blogger Michael Young's Presentation on Mediation Advocacy.
If you don't yet know, the Meeting will be in Anaheim this year on September 27-30. Mr. Young's presentation will take place on Saturday, September 29 between 8:30 a.m. - 10:30 a.m.
Mr. Young's presentation -- Effective Mediation Advocacy, or How To Let The Other Side Have Your Way: The Prince meets The Art of War -- is one of the must-see seminars of the Annual Meeting. After all, 95% of your cases are going to settle, many of them during mediation. Develop "winning" mediation strategies and your clients will be happy, your business robust and your pocket-book full.
How much better does it get?
But that's not all, Mike will also be speaking at the 4th Annual Conference Film & Television Law to be held on October 11-12, 2007 at the Hyatt Regency Century Plaza, Los Angeles.
His topic?
The hot hot hot mediation issue of the day -- Deception and Manipulation in Negotiations with Co-Presenter Ted Russell, Esq., Senior Vice President, Litigation Fox Entertainment Group, Los Angeles.
Nixon Peabody: It's Not Just Fair Use, It's Parody Now
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.
Didn't Anyone Teach YouTube? Never Depose a Comedian - They Are Trained Assassins
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.
Mark. S. Hostetler's Winning Legal Strategies for Advertising and Marketing
We continue our on-going series "Our Readers Write" with Blackwell Sanders attorney Mark S. Hostetler.
Slip this CD into your car's player and spend the most valuable thirty minutes of the year with Mark S. Hostetler, Of Counsel in Blackwell Sanders St. Louis Missouri office, as he discusses what every executive needs to know about negotiating the legal issues critical to the success of every advertising and marketing campaign.
The CD and accompanying text -- part of the Virtual Leadership Seminar -- include an overview of the laws that affect advertising and marketing, the steps to take to insure compliance, and the dangers to avoid to prevent unwanted legal entanglements with regulatory agencies.
Topics covered include:
- A detailed look at the most important laws governing advertising and marketing;
- a step by step guide for implementing a successful strategy;
- the 5-7 mistakes most often made and how to avoid them;
- specific negotiation strategies;
- roles and motivations of each party;
- a seasoned attorney's strategy for working with some of the world's largest companies; and,
- case Studies of specific situations and what you can learn from them.
Mr. Hostetler's background includes broad management experience in corporate, regulatory, legislative, marketing, antitrust, sales and operational matters. He is the former Vice President of a leading food company with numerous market leading brands and over twenty production facilities.
He has extensive experience dealing with the Food and Drug Administration and the United States Department of Agriculture. He has represented clients before the National Advertising Division, the National Advertising Review Board, the Federal Trade Commission and the United States Justice Department, and various state attorneys general.
Mr. Hostetler is a sought-after speaker at numerous industry conventions and bar association seminars and adjunct professor on advertising and marketing quality control and other process and operational topics.
Thanks for sharing Mark!
