Posts Tagged ‘Intellectual Property’
Even though I write about Intellectual Property Law a fair bit, the one thing I almost never talk about is Trademark Law, because Trademark is the one branch of IP that seems to be almost reasonable.
The idea is that when an entity adopts a name for itself or its product, it wants exclusivity. The justification for this is that the entity will be doing the hard work of building a reputation, and it wants to prevent any other entity from either taking unfair advantage of their good name by getting business through name confusion, and avoid being associated with (and possibly sullied by) projects, products or organizations it neither endorses or is affiliated with.
Groupon vs Gnome
Understandably, the GNOME Foundation was not pleased.
To use the GNOME name for a proprietary software product that is antithetical to the fundamental ideas of the GNOME community, the free software community and the GNU project is outrageous. Please help us fight this huge company as they try to trade on our goodwill and hard earned reputation.”
Of course, in a sane world where trademarks are not only allowed to exist but are protected by law, Groupon should have backed down immediately.
In the real world if you trespass on someone else’s real property and get caught, when told to leave you must leave or you can be removed or arrested.
In the demented world of IP, Groupon trespassed on the GNOME trademark and was caught. Instead of gathering up it’s IP infringement and going home, the response appears to have been “This isn’t trespassing, this is the name we chose, and we won’t give up without a fight.”
In the copyright mad world we actually live in, the only way for the GNOME Foundation to fight this was to oppose Groupon’s Trademark Applications, requiring the outlay of large sums of money. Oddly enough, free software purveyors generally don’t have large sums of money earmarked for legal battles. So naturally the GNOME Foundation had to launch a fundraising campaign to raise the estimated $80,000 it would need to opposing the trademark registration.
If a state is going to allow the existence of trademark law, it should not matter who is richer. In a sane world, Groupon would have backed down the moment it became aware of a conflict, because there would not have been any hope it would acquire a trademark that was already in use, and any Trademark Application process would have effective penalties to discourage specious applications.
Except there doesn’t seem to be any more sanity in Trademark Applications than there is in any other form of Intellectual Property Law. IP Law is always a gamble, and it always costs a lot of money. Without enough money, the best argument in the world can be drowned out.
Like any entity, GNOME had to jump through legal hoops — which surely cost money — in order to get the Trademark on it’s name. You would think that would provide protection. The problem is that it doesn’t. Like all IP law, the protection is only good until your money runs out.
The problem, of course, is that Trademark Law has become such a monster that if the entity doesn’t actively fight for its name, it can lose the right to use it.
But luckily the GNOME appeal to the Free Software Community must have achieved enough traction that Groupon felt the heat, because today I discover that Groupon has agreed to change its product name.
Proceeding in a campaign to commandeer the “gnome” name in the light of day could very well damage Groupon’s own reputation, so it has “decided to abandon our pending trademark applications for “Gnome.” “
So this should be cause for cheering, right?
what’s in a name?
‘Tis but thy name that is my enemy;
Thou art thyself, though not a Montague.
What’s Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What’s in a name? that which we call a rose
By any other name would smell as sweet
When I started writing professionally, television production companies used de Forest Research to vet the scripts they produced, to ensure that things in their scripts — like character names — wouldn’t be a legal liability. Say your movie’s villain is a doctor who murders his patients. Now if there is only one human being alive in the world with this name, and that person is a doctor, he could suffer reputation damage and may very well sue the production company (and the writer) into oblivion. But if the name you’ve chosen for your murdering doctor is John Smith, there are sure to be so many doctors named John Smith that any reputation damage would be minuscule.
So the rule of thumb was that it was safest to use a common name like John Smith. or a name so uncommon nobody has it. In today’s Internet world, we can get a pretty good idea if a name is common or non existent through internet searches. (Note: be careful to search outside your default search engine because you want an unbiased search. If you’re making a movie, it’s still wise to hire de Forest.)
Reputation is just as important to human beings as it is to corporate entities or products. Yet there are many people in the world with the same name. Maybe I’m just biased, but I think the reputation of a human being is far more important the the reputation of a corporate entity or a product. If a human being’s reputation is destroyed, a life is effectively destroyed. And yet nobody suggests human beings should be obliged to have unique names that must be registered (as racehorse names are) and defended in court on pain of losing them.
And law provides recourse to slander and libel and fraud without requiring human beings to stick to a single name. In fact, a good number of human beings have online pseudonyms as well. Certainly, name space collisions happen, but it doesn’t require human name registration.
The Free Software movement began as a way to fight for the existence of free (as in liberty) software. This movement was begun by programmers, because they didn’t want to lose the freedom to innovate and create. The Free Software Foundation fought against the application of Patent Law to software, because software is made up of mathematical formulas — the programmer’s raw materials — which should not be owned by anyone.
By the same token, words make up our human languages; they allow human beings communicate. And as a writer, words are my raw materials. Which is why no one, no person, no entity, should be allowed to lay claim to ownership of a pre-existing word.
When I began this blog a little over a year ago I had no idea about what was happening in the world of Intellectual Property Law. But I’ve been learning. Some of the amazing people and organizations I’ve come across who are spending a great deal of time working to fight against changes that will be detrimental to us all are linked in my sidebar.
One such organization is the Washington based public interest group Public Knowledge, who work hard to defend citizens’ rights in the emerging digital culture. Public Knowledge emailed subscribers asking for suggestions for nominations for their 2010 IP3 awards:
Let us know who you think should be honored for their good work in any or all of the “three IPs”: Intellectual Property, Information Policy, and Internet Protocol. The IP3 awards are our way of paying tribute to the thought leaders who inspired us and our supporters during the past year.”
Of course, being me, even though I am seriously new to all of this, I simply could not resist throwing in my two cents worth. Like this:
I’m willing to bet that Nina Paley‘s decision to fight for “copyleft” by releasing her wonderful animated feature film Sita Sings The Blues under a creative commons license has done more to raise the specter of true independent film making than anything else could have.
Add to that her vocal advocacy for expanded fair dealing and copyright reform, topped by her recent decision to turn down what would certainly have been a lucrative Netflix distribution because they refused to distribute Sita free of DRM.
I believe Nina Paley’s efforts are instrumental in demonstrating the value of legal file sharing which can help to preserve an open Internet.
As a writer returning to writing after a long childrearing hiatus, I’ve been doing a lot of learning about copyright, and Cory Doctorow has become one of my personal heroes. His ability to clearly explain and inform about the history of Intellectual Property, as well as his radical new ideas about IP reform have helped educate me on these issues. Cory Doctorow makes good use of his popular boingboing website to raise public awareness about IP3 issues, as well as his place in the UK’s The Guardian.
Even more brilliantly, Cory Doctorow’s book “Little Brother” brings these issues to life in a fictional world, which more than anything else helps to shine a light on the possible abuses we will face if we don’t pursue “the copyfight”.
More than anyone except my family, Cory Doctorow is responsible for the many long hours I have invested in both IP3 self education and advocacy through my blogs and any other appropriate forum I can find, either on or offline.
A year ago I was learning to make web pages and just starting my first blog. As I learned about the Internet and what you define as the IP3, Professor Michael Geist very quickly became a key source of accurate and informed online information.
Michael Geist’s various websites have both directed me to other excellent IP3 excellent resources, like Public Knowledge, as well as providing me with a strong enough grounding in the IP3 fields to help me to advocate for intelligent copyright reform and against dangerous public policies like ACTA in my own blogs.
Public Knowledge instituted the IP3 Awards to say “thank you” to those who:
“have advanced the public interest in one of the three areas of “IP” –Intellectual Property, Information Policy and Internet Protocol.”
So, two picks outta three ain’t bad for a novice.
And of course, I can still keep my fingers crossed that Cory Doctorow will be the super secret recipient of the “President’s Choice Award” that will be announced at the IP3 awards ceremony in Washington, on October 13th, 2010.
I haven’t heard of the other two recipients, Pamela Samuelson and Susan Crawford, but then I am, after all, very new to all of this. They certainly sound as though they’ve more than paid their dues in the legal and political IP trenches from the PK article.
Congratulations to all on being chosen, and a very special thank you to Public Knowledge for the important work they do.
The Internet has changed the world faster than any other technological revolution in history.
corporate vs. creator copyright
When that obsolete stuff known as videotape was new, it, too, wreaked havoc. Suddenly movies and tv shows were being released on the new medium. But the big media companies felt no compulsion to actually share the new found wealth with the creators.
Some creators took issue with this, and fought it out in court. And courts duly ruled that creators were entitled to compensation from these new revenues.
Having written the music for the Disney classic “Lady and the Tramp,” Singer/songwriter Peggy Lee was at the forefront of the fight. Urban Legend has it the Disney company did not take the court decision very graciously and vowed not to release the popular children’s film again until after Peggy Lee’s death.
It doesn’t matter if the legend is true or not, it would be a reasonable business practice; a sound corporate strategy. Suppressing the work warns other would-be litigants about the economic risk of asserting their legal rights with the added bonus of imposition of artificial scarcity which inflates the value of the product when finally released.
To me it illustrates the difference between corporate and creator agendas, and in particular why corporations should never be allowed to hold copyright. Creative works of any kind, what human beings call art, are valued differently by human beings, while to a corporation, the only value of art is the bottom line.
enter the lawyers
Here in the Twenty First Century, Intellectual Property Law has become the “sexiest” area of the legal profession because it is both one of the most lucrative areas of law and the source of mind boggling power. IP law has been changing the world.
The primary changes to copyright and lawmaking have been driven by the big media interests.
Music, movies and television “rightsholders” have been driving the changes since those are some of the most lucrative forms of intellectual copyright product.
All the changes to Copyright Law over recent decades have been made to benefit corporations at the expense of both creators and culture; the rules of copyright have been quietly becoming madder and madder (as in the hatter).
writers and publishers
Ironically, although copyright began to provide incentive for the creation of literary works by making it possible for good writers make a living, the publishing industry has not been in the forefront of the current copyright war. The American book publishing industry was built on commercial piracy, more properly called bootlegging.
In the early days of twentieth century paperback novels sold for less than a dollar and writers were paid only a few pennies a word.
Nearing the end of the century I was surprised to learn that writers were still being paid mere pennies a word although paperback novels sold for upward of ten dollars.
The justification was always the great expense borne by the publisher. Printing and distribution costs rose with inflation while payment to the creators did not keep pace. Publishers impressed upon writers that demanding better pay would make books too expensive and lead to fewer books sold. Physical costs were tangible and so always managed to take precedent over the writer’s intangible creativity.
The 21st Century we have seen the introduction of ebooks. Digital books differ from physical books in one crucial way: they cost next to nothing to copy.
Yet customers have been conditioned to spend on the order of twenty dollars for a physical book. Naturally publishers have been happy to sell the average ebook in the ten dollar range. After set-up production costs are negligible, making the revenue stream approach 100% profit.
Amazingly, these same publishers begrudge any change in the royalty payments to the authors. Instead of sharing this good fortune with their writers, the golden egg laying geese of the publishing industry, most publishers have been trying on the same power grab movie companies tried with video: laying claim to legal rights they had not been granted.
One of the most compelling reasons I never seriously considered placing my novel with a traditional publishing house was the problem William Styron’s heirs had with the publisher.
Mr. Styron’s family believes it retains the rights, since the books were first published before e-books existed. Random House, Mr. Styron’s longtime publisher, says it owns those rights, and it is determined to secure its place — and continuing profits — in the Kindle era.
The discussions about the digital fate of Mr. Styron’s work are similar to the negotiations playing out across the book industry as publishers hustle to capture the rights to release e-book versions of so-called backlist books.
That was my tipping point. Would you trust this industry to do right by you? I wouldn’t. Given the choice, I’m not willing to hand over my creative work to traditional publishing. Particularly since this same digital revolution gives me choice: technology has made self publishing a valid and viable option.
The arrogance of publishers to assert claims to ebook rights by default– simply because they’d published traditional physical paper version– is ludicrous.
At issue is who holds digital rights in older titles published before the advent of ebooks. Publishers argue that the ebook rights belong to them, and authors and agents respond that, if not specifically granted, the digital rights remain with the author.
On Friday (June 23rd, 2010) the Wylie Agency shook the world
by taking a stand for authors and against the publishing houses. (And for themselves, never forget that. Wylie has launched a whole new business here; this may well be straying into anti-trust waters.)
This Literary Agency is setting up the Odessey Books imprint under which they will release older works as ebooks; specifically books whose digital rights have not been signed over to the physical publishers.
The publishers who believed themselves entitled to this copyright are of course greatly outraged that works they believed safely under their control has been snatched out from under them.
Odyssey certainly appears to already be a going concern, with a set of clean simple text based digital book covers for the classics they are releasing exclusively through Amazon’s Kindle for the first two years.
Good for Wylie, good for Odyssey.
From a consumer’s point of view I have reservations. I only looked at the pricing for one book, so the prices may vary, but I have to wonder how the ebook version of a books could cost more than the physical paperback version also sold through Amazon. Yes, the ebook version is sleek and lightweight, but the Kindle is after all a reader laden with DRM that I understand prevents copying for both format shifting and backups. In other words, the ten dollar ebook will be locked inside a brick if the Kindle breaks down or becomes obsolete. But that’s another story.
From an author’s point of view, there may be financial problems. Odyssey doesn’t seem to be offering authors such a great deal.
“Yes, there are costs of creating a digital version, but offering a 25, 30% royalty is insulting.”
~Kassia Krozser, Today in Publishing: A Skirmish
Although I don’t believe the Guardian’s assertion that Wylie’s Amazon deal brings the end of the publishing world nigh, I certainly do think this is a good thing.
It sounds to me that the Wylie Agency is stepping in and performing the service that that publishing houses should have performed for their clients. Adaptability is key to any business long term survival. The total control they have long held seems to have seduced the publishing industry in much the same way it has the recording and movie companies into believing that they deserve control of these copyrights.
this story can help start the copyright conversation
Technology has changed the world indescribably, and corporations have exerted untold amounts of pressure on lawmakers the world over to legislate anti-progress in the form of copyright laws and treaties.
The changes being made to the world in the name of copyright are still largely unnoticed by most people. Demographically young computer savvy people are among the most knowledgeable sector of society about these issues, but they are a minority. And the fact remains that the whole world NEEDS to be part of the conversation. Allowing corporate interests to control the conversation is increasingly leading to greater and greater imbalance.
copyright and the public domain
I’ve never understood how anyone besides the creator is entitled to the proceeds from copyright. License the work to the publisher sure, but giving them copyright? No legal system should ever have allowed this. Copyright was meant to encourage creation for the good of culture.
In the beginning there was the commons. Ownership of the songs and stories of belonged to everyone. Story tellers preserved and shaped the culture, and in return society made sure they could make living at it. Minstrels telling a good tale or singing a good song were fed. The introduction of the printing press changed things in that the words of the writers could now be spread and shared through this artificial means. Copyright is an artificial right assumed by society in an effort to encourage creators to continue to create by controlling the monetization of their work for a finite period of time. When the term was up, the work went into the public domain so that all of society could get the benefit.
tweets from ORGcon
The UK Nonpartisan Open Rights Group, working to fight the UK’s ill advised hastily passed Digital Economy Act, today held #ORGCon. Cory Doctorow tweeted highlights. Copyright and the Public Domain were central to the convention, and much of what @doctorow and other attendees shared online, particularly comments by keynote speaker James Boyle provide some powerful background for this article:
- For the 1st time in human history, all the works produced by our contemporaries are inaccessible to us
- Paradox: absent Creative Commons etc, none of us will be able to share/use/mix anything made by our contemporaries in our lifetime
- Most works exhaust all commercial viability in 5 years
- Prior to 1978, 85% of works went into PD after 28 yrs b/c most authors didn’t think it was worth renewing copyright
- Of works in British Library > 28 yrs old, only 3-5% are commercially available
- Retrospective copyright extensions cut us off from our own culture to the benefit of no one
- If industry norms on copyright clearance were given as exam answers in law school, you’d flunk out
- Why not say “Hell with it. Copyright is dumb… ignore it.” Because culture’s viability shouldn’t be dependent on lawlessness
- Copyright maximalists have created a generation of lawbreakers, some guilty, some joyful. This is a great harm
- Prior to GOOGLE Book Search, books had been transformed into the least accessible place to put information
- Jennifer Jenkins: What used to be considered creativity is now thought of as theft.
- We’re the first generation in history to deny our own culture to ourselves.
- The Digital Economy Act was the result of the biggest lobbying operation @tom_watson (not speaking on behalf of his government) has seen in his political life.
- “An entire generation has given up the idea that breaking the law is wrong”~ James Boyle
For further first person #org coverage read:
Elmyra’s ORGcon 2010 Livejournal
rt @doctorow: Until the tenth Century a musicians just needed to play.
Until the 19th century musicians just needed to be literate.
In the twentieth century, musicians needed to be geeks,
But in 21st Century musicians need to be lawyers.
These laws will force all of us to be lawyers.
Everyone from professional media makers to children putting together school projects.
The United States has enacted the DMCA. The UK the DEAct. Canada has tabled Bill C-32, copyright legislation misleadingly titled “The Copyright Modernization Act”. And the secret international copyright treaty A.C.T.A. seeks to subjugate the copyright laws of the whole world.
Copyright is no longer simply an area of special interest to publishers and writers. Changes being made in the name of copyright effect culture and the the way we access culture in every country of the world.
We all need to be part of the conversation.
Image Credits: spider web used under a CreativeCommons Attribution 2.0 Generic license (by) 2004 cybershotking
Fate of videotape (en:obsolence) © 2004 by Tomasz Sienicki used under a Creative Commons Attribution 2.5 Generic license
William Styron, Santiago, Chile, 1988 photo by Marcelo Montecino Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic
Wikipedia cropped cinema image of Peggy Lee, used under the public domain in the US and fair dealing in Canada