Category: Intellectual Property

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Stanford and Cal Cooperate over Big Game

As a loyal Stanford alum, I don’t think I ever thought I’d see the day where Stanford and Cal would link arms over The Big Game. Thank goodness for the NFL, which has applied for a trademark on “The Big Game,” a title that has been applied for many decades to the annual football game between Stanford and Cal.

I’m hardly the first to think that the NFL’s behavior is ill-advised and heavy handed. A quick Google search turns up blog after blog making fun of the NFL’s behavior. That having been said, I’m curious…..Is there anyone other than NFL counsel who’s out there supporting this behavior or the asked-for result?

The NFL’s explanation is that they want to stop people from piggy-backing on the goodwill of the Super Bowl — you know, selling TV’s for “your big Super Bowl party.” In the story linked to above, the NFL says it sells sponsorship rights to Samsung, and suggests that the value of those rights would dissipate if they didn’t get the trademark. I’m a little surprised that someone isn’t defending this outcome as “correct” because it allows internalization of all social value from the Super Bowl to the NFL, thereby giving the NFL the proper market signal to invest in putting on its annual extravaganza. Perhaps I’ve missed it? Heaven knows I don’t read the whole blogosphere. Or, has the NFL taken us past the limits of the “internalize all externalities” policy?

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The Professor Exception and Work Made for Hire

A minor puzzle in copyright, but one of interest to faculty, is the continuing vitality of the so-called “professor exception” to the work made for hire rule. In a nutshell, the 1976 Copyright Act gives copyright to the employer for any work prepared by an employee within the scope of his or her employment. Traditionally, professors have retained copyright to their works – particularly their scholarly books and articles. But, if professors are employees of universities and they are expected to write, how does this traditional retention of copyright survive?

I am wondering if the answer lies in a nuanced understanding of the agency test promulgated by the Supreme Court in CCNV v. Reid. In particular, no one considers a professor the agent of her university when writing scholarship. If I say something outrageous in one my articles, people do not think that I speak on behalf of Boston College, nor would anyone expect to hold the university responsible for what I say. Thus, while a professor is an employee of the university in a payroll sense, he is not the university’s agent for purposes of the work made for hire doctrine because he does not write as the university’s agent.

Contrast this with how people would understand things if I were to say something outrageous in an exam I give to my students, or if I were to act inappropriately in class. In those situations, I think people would correctly understand that I am acting on Boston College’s behalf. If I committed a tort against students in those contexts (intentional infliction of emotional distress?), students would reasonably expect recourse against the university. However, to make the point again, people do not expect recourse against the university if I libel someone in my articles.

It occurs to me that this distinction may help sort out some of the tricky issues surrounding materials authored by professors for distance learning or other web-related content. In those cases (perhaps material for a branded distance learning course) where the professor is truly creating material on behalf of the university, copyright goes to the university under the agency test. In other cases where the professor writes for himself, copyright stays with the professor. Of course, contracts or other employment policies could alter this outcome. Thoughts?

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More litigation about – you guessed it – Jennifer Aniston topless pictures

The latest lawsuit is on CNN:

A Hollywood movie studio filed a lawsuit claiming gossip blogger Perez Hilton posted a stolen topless photograph of Jennifer Aniston on the Web. Universal City Studios Productions LLLP filed the suit Tuesday claiming the stolen image was posted on the perezhilton Internet site by Mario Lavandeira, aka Hilton. The picture was allegedly “misappropriated and illegally copied” during production or post-production of the 2006 romantic comedy hit “The Break-Up,” starring the actress and Vince Vaughn, the suit said. . . . The suit seeks an injunction barring further distribution of the picture and requests a court order “directing the U.S. Marshal to seize” the copyrighted material from the 28-year-old blogger.

Dan S. previously blogged about the last Jennifer Aniston nudity lawsuit, which involved allegations of breach of privacy by a paparazzi photographer. (For his excellent and very popular post, see here). The allegations in this new suit look a lot less complicated — they seem to be plain vanilla misappropriation. But as we know around here, a lawsuit involving Jennifer Aniston nude will always draw (lots of) reader attention.

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Best and Worst Internet Laws

[Preface: I’ve already overstayed my guest visit, but before I go, I want to say thanks to the Concurring Opinions team for the opportunity to blog here, and thanks to all of you for the great comments and stimulating dialogue. A complete index of my guest blog posts. Meanwhile, I’ll keep blogging on technology and marketing law at my main blog and on all other topics at my personal blog. Hope to see you there!]

Over the past dozen years, the lure of regulating the Internet has proven irresistible to legislators. For example, in the 109th Congress, almost 1,100 introduced bills referenced the word “Internet.” This legislative activity doesn’t always come to fruition. Still, in total, hundreds of Internet laws have been passed by Congress and the states. This body of work is now large enough that we can identify some winners and losers. So in the spirit of good fun, I offer an opinionated list of my personal votes for the best and worst Internet statutes in the United States.

[Keep reading for the list]

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Pharmaceutical Law Symposium

I just wanted to invite readers in the greater NYC region to the Seton Hall Law Review’s symposium on pharmaceutical law tomorrow (Friday, Feb. 16). We’ve got some interesting panels lined up, and the general counsel of HHS (Daniel Meron) will be giving the keynote.

The Symposium will focus on how the FDA’s drug approval process affects public health, intellectual property protections, and the economy. Panels will explore the FDA’s role in determining whether a drug is safe and effective for its intended uses and how its approach addresses public health needs, affects research and development, and influences insurance coverage decisions.

We’ll also have a panel on global public health, including Terry Fisher, Shamnad Basheer, and me. My presentation, inspired in part by this Laurie Garrett article, will focus on the public health infrastructure necessary to assure the proper distribution of drugs in LDCs.

OA Wars and Rapid-Response Blogging

It’s a truism of the political process that no attack should go unanswered for more than a few hours. Bloggers on IP issues are getting the message, especially in the hotly contested area of open access to scientific and medical research. Currently many publishers of such articles can lock up access to them for decades–even if taxpayers paid for the underlying research. This situation has led to increasing calls for open-access publishing, and some legislative proposals.

The Association of American Publishers has launched a vigorous lobbying campaign in response, relying on dubious assumptions about the nature of the peer review process. The attacks have led to bizarre headlines like “Open-Access or Peer Review,” a false dichotomy if there ever was one. The author of that article reassures us that “although the people behind Federal Research Public Access Act have good intentions, the market is already doing its part to disseminate information as quickly and widely as possible.” Little if any attention is paid to exorbitantly priced journals, enormous science publisher profts, publishers’ potential irrelevance to an open-access peer review process, and how high prices and DRM can interfere with effective post-publication peer review and organization of data.

Fortunately, blogs like Peter Suber’s now provide almost instant responses to publishers’ efforts to derail open access to research publications. As part of Public Knowledge, Suber is doing a terrific job providing fair and thoughtful responses to industry lobbying. He has become a “must-read’ source for anyone writing on the OA issue.

The Commodification of Humiliation

cannonball.jpgThe revitalized Radar magazine has a great piece on “Prisoners of YouTube:” individuals caught on camera in various humiliating situations and exposed to countless views on websites. (The “Star Wars Kid” has apparently been viewed 900 million times…that may well be once or twice for everyone with ready access to the internet!) As Radar puts it,

Virtually every week has seen another private error or foolish moment datacast to the world. You could get in an argument with a stranger on a bus. Or you could disastrously try your hand as a sportscaster on a college station. Or you could accidentally shoot yourself. With 780 million camera phones sold worldwide in the last two years, no one is safe from senseless and random ridicule. The surveillance state we’ve been fretting about for so many years has snuck up on us. But it’s not concerned with political control. It just wants to see people screw up.

Recently a person dismayed by their virally-video’ed fame-gone-wrong wrote to me to ask about his legal options. I obviously wasn’t going to give legal advice on email, but he did get me thinking about potential legal recourse for these “victims of YouTube” beyond my initial reflections on “inclusion harm” in searches.

For example, imagine someone has been filmed in a “stunt” that makes them look reckless. And, say, dozens of sites that get the video (of uncertain copyright ownership) show it, and make some money off ads around it. Does the person “starring’ in the video have any right to demand a “cut,” as big film has been trying to get from YouTube (and as Euro-news outlets look to be on their way to getting in Belgium)?

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The Limits of Law & Econ in IP: The Case of Digital Music

Once again, the folks at Truth on the Market have celebrated the recording industry’s efforts to assure perfect control over copyrighted content via Digital Rights Management. Free marketeers like Tyler Cowen are beginning to question DRM as a tax on consumers, and even one of the big four record companies is considering abandoning it. Untroubled by such doubts, Josh Wright and Geoff Manne push for ever more latitude for the dominant platform (iTunes) and dominant content providers (the big four recording companies).

Their posts provide classic examples of what Reza Dibadj has called the key shortcomings of conventional law & economics (L&E) reasoning. As Dibadj summarizes,

[T]hree of the most basic assumptions to the popular L&E enterprise–that people are rational, that ability to pay determines value, and that the common law is efficient–while couched in the metaphors of science, remain unsubstantiated.

Let’s take a look at how each of these assumptions drives the TOTM approach to digital music markets.

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Close the Education Gap with Advertising?

What if a technology company like Microsoft supplied a school with computers students could use for free? Self-interested, maybe, but certainly there could be a convergence of interests there. Well, what if the company then required that the computers not run any alternative software? A little less nice, but in a country where income, education, and opportunity are closely intertwined, poor schools would have to think seriously about turning down such an offer. Well, what if the company then implemented a technology that required students to watch enough advertising to justify the use of computers and repossessed the computers if students didn’t watch enough ads? I’m not dismissing this model as, on net, bad for students — I’d want to see some data on that. But I find the mixture of commercial interest and education more than a little disturbing.

(FYI, I first read about the Microsoft patent on Slashdot.)

Norse Wisdom on Digital Music

communism.jpgEven if antitrust in the U.S. slowly fades into a subfield of legal history, international pressure can lead to fairer business practices. Consider Norway’s recent pressure on Apple to open up its iTunes/iPod music platform to rival players: “Norway’s consumer regulator declared the lack of interoperability illegal, and gave Apple until Oct. 1 to change it or face legal action and possible fines.”

When emissions standards were introduced in the 1970’s, it’s said that Toyota hired a thousand engineers, and Ford hired a thousand lawyers. We can see where each company is now. Apple’s response to the Norwegian directive appears to show that, after Fordishly fighting France tooth and nail on interoperability, they are finally interested in a constructive approach. Consider these extraordinary words on Apple’s website:

[A final] alternative is to abolish DRMs entirely. Imagine a world where every online store sells DRM-free music encoded in open licensable formats. In such a world, any player can play music purchased from any store, and any store can sell music which is playable on all players. This is clearly the best alternative for consumers, and Apple would embrace it in a heartbeat. If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store. Every iPod ever made will play this DRM-free music.

Why would the big four music companies agree to let Apple and others distribute their music without using DRM systems to protect it? The simplest answer is because DRMs haven’t worked, and may never work, to halt music piracy. Though the big four music companies require that all their music sold online be protected with DRMs, these same music companies continue to sell billions of CDs a year which contain completely unprotected music. That’s right! No DRM system was ever developed for the CD, so all the music distributed on CDs can be easily uploaded to the Internet, then (illegally) downloaded and played on any computer or player.

Precisely. Rather than trying to sweep the sand from the shore, and massively annoying everyone in the process, why not follow this plan? True interoperability would likely lead to a boom in the sale of both digital music players and music. For way too long, the industry has focused on minimizing losses, rather than maximizing gains.

Fortunately, the scorched earth litigation strategy against infringers is getting less viable as a few defendants fight back. In Capitol Record v. Debbie Foster, the defendant successfully introduced a “‘prove it was me using the computer’ defense.” The strategy may gain traction: “Although the judge in Elektra v. Santangelo declined to dismiss the labels’ infringement claims against Patti Santangelo, he doubted that ‘an Internet-illiterate parent who does not know Kazaa from a kazoo’ could be found liable for file sharing done in her house without her knowledge or consent.” Foster actually won attorney’s fees against the RIAA–throwing a wrench into the works of an infringement litigation machine.