John William Nelson’s Comments

• Aug 24th, 2012 @ 6:29pm

  Fraud should be a concern . . . look at ZeekRewards

  on And... The Bureaucrats Begin Spreading FUD About Crowdfunding

  I do work for some work with startup companies and I know enough about SEC regulations to know when a company needs to register their offerings and when they do not. (The bread and butter of most securities lawyers—avoiding registration.)
  
  The fact is that SEC regulations, when enforced, do a lot to protect potential investors. The goal is to provide enough information to investors to allow them to make good choices.
  
  This is why public offerings—such as the recent Facebook one—require so much paperwork. Even private offerings can require lots of information. If a company makes a private offering to a small group of investors which includes some unaccredited investors then you have to do a private placement memo. While not as expensive as the IPO route, you're still talking thousands of dollars worth of legal and accounting fees.
  
  This makes it hard for startups, but is also ensures investors are protected. The information provided during IPOs and through private placement memos can protect potential investors from fraud.
  
  And fraud does happen. The internet, with its vast democratizing power through the information it provides, is not a perfect tool for sorting truth from falsity, much less sound investment from fraud. The downfall and SEC actions against ZeekRewards is a great example of this. (http://www.forbes.com/sites/timworstall/2012/08/18/zeekrewards-if-an-investments-too-good-to-be-tru e-it-is/) The reality is that people still get duped. (And no, Zeekwards did not provide PPM or IPO level disclosures. Rather, it claimed it was exempt from these as their scheme did not involve securities.)
  
  So while I am anxious to see how the SEC addresses crowdfunding of startups with equity in play, I am also worried about the potential for fraud if the rules are not crafted in a balanced way.
  
  The hope is that the rules require disclosures necessary and sufficient to provide investors the information they need, but at the same time not causing too cost-prohibitive of an amount in legal and accounting fees.
  
  We shall see, but calling worries about FUD is not really fair. While people worrying about fraud might make fearful statements which raise uncertainty or cause people to doubt the wisdom of less rigorous reporting requirements, in this case at least there are well-documented instanced where harm has occurred to investors and participants in various investment schemes.
  
  FUD, on the other hand, has always seemed to me to be more about empty fears, uncertainties, and doubts backed by little to no evidence. This is not what we have here.
  
  (Please pardon any rambling—recovering from some kidney stones and requisite painkillers.)

• Oct 5th, 2011 @ 6:46pm

  Apple will be fine . . .

  on A Time To Reflect On Innovation

  It will lose some of its dynamism, but the company has been designed quite well and been prepared quite a while for this to happen. Tim Cook has had a number of years as acting CEO.
  
  Apple will miss Steve the showman, for sure, but Steve's process of developing new tech is deeply ingrained in the company.

• Oct 5th, 2011 @ 6:36pm

  Terribly sad

  on A Time To Reflect On Innovation

  Steve Jobs was a hero of mine. It's funny, I didn't really think of him that way until I found out he died. Yet, he is one of the people I hope to emulate. His passion for his work, his ability to bounce back from tough times, and his willingness to take risks are all admirable. Perhaps it is the still raw emotions of losing my father (and another of my heroes) last December, but I am terribly sad over this.
  
  Peace be with his family and friends. A terrible blow, but a man who did so much.

• Oct 3rd, 2011 @ 6:37pm

  More attorneys need to flat fee this

  on Patent Troll Says Anyone Using WiFi Infringes; Won't Sue Individuals 'At This Stage'

  I do a good amount of flat fee work because I deal with clients who face these kinds of antics. The problem is, I don't think I could even touch one of these cases for much less than what the rates appear to be.
  
  Some attorneys (including myself) will represent folks in cases like this pro bono, and maybe that is what needs to happen. The problem is the attorney needs to be able to take the time to do it right. That can be hard to do.
  
  The thing is, if an attorney can get in and play some defense and stall it until the big players, Cisco et cetera, get the patents invalidated (or at least narrowed) then it could save a lot of folks the settlement fees.

• Sep 26th, 2011 @ 4:28am

  Re: Re: Re:

  on John William Nelson's Favorite Techdirt Posts Of The Week

  The answer is that the Manhattan US Attorney's office (I think it's them) is doing something they've never really done before (at least on this scale).
  
  So this is a first-time kind of thing. They're very likely screwing at least something up procedurally, but they're pushing those bounds because it benefits their cause (trying to shut down pirates) and they have an argument for doing so (even if some of us view it as a poor argument).
  
  As for eminent domain, there have been some eminent domain cases brought by third parties to arrests where the arrestee was carrying cash, the cops classified the cash as property seized in a drug arrest, but the third parties owned the cash.
  
  In short, these kinds of seizures are controversial and problematic, and the Roja case throws in the added confusion of domain names versus tangible property.

• Sep 25th, 2011 @ 5:08pm

  Re: Re: Re: Re: Re: Re: Re: Re:

  on John William Nelson's Favorite Techdirt Posts Of The Week

  Feeding trolls who are unwilling to engage in meaningful debate tends to serve nothing but the bank accounts of the doctors you visit for high blood pressure.
  
  But let me help you address the anonymous coward's straw man arguments. The coward states:
  
  "It would be a horrible precedent for something like Rojo to be able to hide behind the first amendment, while the site is clearly dedicated to supporting illegal activities."
  
  Yes, it would. However, no trial has found that Rojadirecta is clearly dedicated to supporting illegal activities.
  
  It would be even worse precedent for the government to take away your stuff without the citizen benefitting from a hearing to determine whether it should be taken away. After all, we fought this little think called the American Revolution over this idea.
  
  Again, you also use the analogy of a message board used by burglars and those who case for burglars. Again, it would be wrong to let folks using the board in the manner to get away with it because of a First Amendment argument. I don't dispute that, nor do I ever argue for such an absurd result.
  
  Yet, anonymous coward believes I do feel this way. Probably because anonymous coward is unwilling to debate reasonable issues in a nuanced manner but would, rather, paint the opposition as unreasonable. (Through what is called a straw man argument.)
  
  But in his example there is still the implied assumption that there would be a trial to find these people had indeed acted in concert to case out potential targets and, thereby, aided and abetted burglars. You know, the whole guilty until proven innocent thing.
  
  This has not occurred in the Rojadirecta case as of yet. The government took the domain names without a chance for hearing, without notice, and without a conviction of criminal acts by Roja. Perhaps the government can get a conviction, but the simple argument is that this should be required before we deprive folks of their property.
  
  Yet the anonymous coward refuses to address this. Likely because the anonymous coward is indeed a coward.
  
  So let's not feed the cowardly troll. The points are there, and the anonymous coward cannot bring out anything more.

• Sep 25th, 2011 @ 4:58pm

  Re: Corrupt so-called Human Rights workers.

  on John William Nelson's Favorite Techdirt Posts Of The Week

  I am not sure what this has to do with media and technology law. I think you're confusing specialties here.

• Sep 25th, 2011 @ 4:56pm

  Re: Re: Re:

  on John William Nelson's Favorite Techdirt Posts Of The Week

  Just because someone owns multiple printing presses doesn't mean it's proper to seize one and say "But it's okay, they have a lot more."
  
  Seizing one that, to carry the analogy further, serves a specific geographic region is a prior restraint on speech even if the press's owner owns another press in another region.
  
  Your own analogy acknowledges this. And you example is still an example of a prior restraint on speech.

• Sep 25th, 2011 @ 6:04am

  Re:

  on John William Nelson's Favorite Techdirt Posts Of The Week

  Yes and no. Free speech has its limits, however free speech is recognized as incredibly important in U.S. law. We have this thing called a Constitution, and this document trumps everything else.
  
  So when a law, or its application, comes into conflict with free speech then free speech should tend to win. As I stated in the portion about the UK police attempts to uncover journalist sources, there is a tension.
  
  Policy-wise, I think protecting journalist sources is important and should trump free speech here. This isn't a violent crime we're talking about. Even so, this will ultimately come down to the decisions of the journalists as to what constitutes the line to cross in divulging sources. (Here it is more likely to be worth fighting than, say, in a murder case.) In short, it is a journalistic ethics consideration.
  
  The legal protections journalists can use, however, vary greatly between the U.S. and the U.K. While the US protections are informed by the First Amendment, it would be a mistake to say UK protections of journalists in these cases is weaker. It is just different.
  
  More importantly, there are no bright-line rules for these cases in either U.S. or U.K. law. Ultimately, sincere journalists have to be prepared and willing to sit in jail for a time. (And many are; journalistic history in both nations have numerous stories of this occurring.)
  
  Ultimately, though, since you're less interested in discussing issues and their nuances, but wish to sum up everything into one sentence, I'll do so here:
  
  "Serious discussion of issues here; sheep should return to Twitter to re-tweet Perez Hilton."
  
  I hope that semi-colon didn't confuse you.

• Sep 25th, 2011 @ 5:56am

  Re:

  on John William Nelson's Favorite Techdirt Posts Of The Week

  The U.S. Government took possession of Rojadirecta domain names. This was done without a hearing where the government had to show cause and Puerto 80 had an opportunity to challenge it. It was done under federal law allowing the taking of property being used in an alleged crime. Here, there was sincere question about the procedures used by the government, and signed off by the court, in allowing this.
  
  But there is more to it than the procedure. Rojadirecta argues that not only were procedure and rules violated, but the procedure and rules as applied to these types of cases violate the First Amendment (the law). It is one thing to take the property of an alleged drug dealer pending the outcome of his case, and quite another to take possession of the virtual printing press allowing the defendant to exercise their free speech rights.
  
  So to answer your question, there is both a facial and an as applied challenge being claimed here. And both the law and the actions of a federal actor are being challenged.

• Sep 9th, 2011 @ 9:57am

  Re: Re: Emotional reactions leading to personal attacks are not constructive arguments

  on Photographs Are Mechanical Representations Of Facts, And Thus Should Have Only Thin Copyright Protection

  Your weak attempts at implying your personal attacks are not acually personal attacks, I suppose, is admirable so far as it shows you have some degree of social awareness. Your inability to read beyond your preconceptions, however, is disappointingly expected.
  
  Let me start at the end. Copyright law does not try to evaluate what is worthy of protection and what is not. The threshhold questions of whether a work is copyrightable are not answered by 'worthiness' but, rather, basic bright line rules.
  
  Further, you still seem to ignore my clear support of copyright protection for photographs and my clear and repeated acknowledgement of them as works of art. Then again, you strike me as someone unwilling to read past 140 characters.
  
  So instea of personally insulting people based on your misperceptions, qwjust type TL;DR and move on tonthe next Twitter post. Perhaps then the folks interested in discussions on a topic can discuss without your ill-informed, ad hominem rehtoric.

• Sep 9th, 2011 @ 9:39am

  Re: Re: Clearly you have little understanding of copyright law

  on Photographs Are Mechanical Representations Of Facts, And Thus Should Have Only Thin Copyright Protection

  Yes, thick vs. thin copyright is a term used in copyright theory analysis. It refers to the strength of copyright protection. Thick protection is provided works where the copyrightable elements are more easily identified and separated from non-copyrightable elements. Think novels.
  
  Thin copyright protection refers to works that cannot be used broadly to against other similar works. Think of the classic example of the Feist v. Rural case--phonebooks are granted copyright protection, but only thin protection. I cannot photocopy it and redistribute the book, but I can take the phone numbers and names (the facts) and reuse them in my own phonebook.
  
  Pardon any mispells in this post, on my iPad in an airport before takeoff.

• Sep 9th, 2011 @ 7:00am

  Re: Its not a mechanical representation of the facts.

  on Photographs Are Mechanical Representations Of Facts, And Thus Should Have Only Thin Copyright Protection

  Actually, you've just described how cameras use mechanical functions to represent the light in a specific moment of time.
  
  So cameras, by your explanation, create photographs that are mechanical reproductions of fact (i.e., the light hitting the film or image sensor).

• Sep 9th, 2011 @ 6:57am

  Emotional reactions leading to personal attacks are not constructive arguments

  on Photographs Are Mechanical Representations Of Facts, And Thus Should Have Only Thin Copyright Protection

  I am the lawyer who wrote those legal arguments. Thank you for relying on personal attacks regarding whether I have a soul before you actually read the work, much less bother to understand what is being read.
  
  No where did I say photographs are not art, nor do I write that photographs are undeserving of copyright protection.
  
  You complain that my argument looks to the medium rather than the content. Yet, have you even read my argument? If you did, then you certainly do not understand it.
  
  This is nothing to be ashamed by. My argument rests on issues of copyright that even many lawyers don't grasp, much less Anonymous Cowards like yourself.
  
  But let me try and simplify it for you. Copyright protects expression. Facts and ideas, however, are not protected by copyright law. The problem with photographs is that it is near impossible to separate the unprotectable factual elements of a photograph from its protectable expression elements.
  
  Therefore, while photographs clearly deserve copyright protection (as original expressions), they do not deserve thick copyright protection as you might see in cases involving novels. The reason being that if we provide thick copyright protections to photographs then you very well might have comical situations where the first person to take a photo of the Statue of Liberty can bar all subsequent photos.
  
  Perhaps it is just my lawyerly lack of a soul, but I find it more sinister to give people methods to shut others out of expressing themselves. My argument is an attempt at increasing the likelihood of individual expression and, thereby, increasing the likelihood of art being created.
  
  Then again, I am not an Anonymous Coward, I'm just a soulless lawyer. What would I know?

• Sep 9th, 2011 @ 4:28am

  Clearly you have little understanding of copyright law

  on Photographs Are Mechanical Representations Of Facts, And Thus Should Have Only Thin Copyright Protection

  Pardon the ad hominem title, but consider me miffed that you jump to conclusions on my knowledge of these topics and fail to look more deeply at my own work. (And consider your own ad hominem attacks on me.)
  
  I have a good deal of understanding when it comes to modern copyright law. I've taken photography courses and worked on a number of my own photography projects. I've developed my own film—which is as much of a composition process as the taking of a photo—and I have worked on my aperture, shutter speed, and film speed settings to get desired effects.
  
  I have also worked with electronic manipulation of images—changing the color balance, manipulating backgrounds, smoothing out portions of an image, and more.
  
  As I wrote in my post, I have great respect for the effort and creativity that goes into the composition of a great photo. Effort and creativity alone, however, are not the basis for copyright protection. Effort, frankly, has no bearing on copyright protection. Creativity only goes to whether a work has the minimum level of originality to be copyrightable. And, as I wrote, photographs do deserve copyright protection. (There are many who still argue they do not.)
  
  Photographs, however, deserve thin copyright protection. The reason is that it is near impossible to separate the copyrightable elements of a photograph from the underlying facts mechanically represented by the photo. (And just because the image is stored digitally does not mean it is no longer a mechanical representation of fact—there was still a mechanical process in creating the image.)
  
  This thin copyright should extend to digitally edited photographs for these same reasons. Otherwise the same tortured attempts to separate expression from fact occur. Where would you draw the line?
  
  Take the photo of a girl sitting on a wall with a fall landscape in the background. Should you or I be prevented from taking a photo of our sisters, wives, or mothers while sitting on a wall with a similar fall background? What if we happen to be at that same wall—are photos of girls on the wall reserved only for the first person to take a photo of a girl on the wall?
  
  But, say, we touch it up digitally. We change the color balance and really make the fall colors pop out while the colors of the foreground—wall, girl, etc—become more muted. Brilliant—but what are the copyrightable elements? The bright fall colors in a background with muted foreground colors? The juxtaposed feeling of a lively fall background—fall being a period of decline—versus the foreground of the youthful girl? Can I no longer highlight the colors in a foreground versus a background?
  
  More to the point, does the work done in editing this photo convert the non-copyrightable elements of the photo—the facts mechanically represented in it—or the thin-copyrightable elements—the photo as a whole—into something deserving of thicker copyright protection? While you might not agree that all photos of girls sitting on walls should be barred when I simply snap a photo of one, do you now change your mind since I've edited it digitally? What about just those that get edited digitally to highlight background colors versus foreground colors?
  
  If you think this kind of analysis and these questions are ridiculous, then I'd say I agree.
  
  But this is exactly the same kind of questions and the same analyses courts undertake. And it is ridiculous. That is the point of my post—photographs do deserve copyright protections, but there should be a bright line rule that they receive thin copyright protections versus thick copyright protections. This would cut down on these types of tortured analysis.
  
  Moreover, this doesn't mean photographs aren't expressive, are not creative, and are not original. No, they clearly are. Great photographs are works of art, and I do not dispute that.
  
  But we already have a similar type of bright line rule when it comes to sound recordings. They receive thin copyright protection, despite being works of art themselves.
  
  And if you're willing to argue that sound recordings do not have the same creative capacity as photographs, then I would argue that your understanding of what goes into sound recordings is woefully inadequate to make such a judgment. Creating a great sound recordings take quite a bit of skill, creativity, and work—as does creating a great photograph.
  
  Finally, you say true photography is like writing. I would agree. However, the writing it most closely resembles is news writing. A great news writing chooses his words carefully in an attempt to portray the facts of a situation. Nevertheless, news copy deserves (and receives) thin copyright because it is a representation of facts. (Similarly so, non-fiction books receive thin copyright—see Dan Brown's case involving his book, The Da Vinci Code, and The Holy Blood, and the Holy Grail.)
  
  But if you take only one thing away from this Andy J, please take this: Skill and Labor have no bearing on whether something can be copyrighted. Copyright is reserved for works of original expression. This is a low bar—the only thing that must be shown is a minimum of creativity. However, all the skill and labor in the world exercised on non-copyrightable elements—facts and ideas—cannot convert them into a copyrightable element.

• Aug 30th, 2011 @ 4:52am

  This is not an uncommon right

  on Federal Court Invents A New Intellectual Property Right: The Money Makes It So Exclusive Right To Record

  It reminds me of the situation with Stonehenge a while back. The folks behind the maintenance of the Stonehenge monument declared a copyright in all photos of Stonehenge. This was wrong.
  
  However, they may potentially restrict the right to take pictures inside the Stonehenge enclosure they manage subject to the photographer either paying the Stonehenge folks so the photos can be used commercially or promising not to use the photos commercially.
  
  This would not apply to any of the photos taken outside of the enclosure, however.
  
  Here, you have sporting events. The WIAA has the ability to control access to these events through license. (Through the organization's charter, thereby subjecting member schools to its rules and regulations.) The license may subject someone to restrictions on filming the event.
  
  This is no different than what you see at other sporting events, such as college or pro football. In fact, much of the conference fighting in college football right now (with Texas A&M threatening to leave the Big 12 for the SEC) comes down to who has control over the sale of TV rights. (The Big 12 has allowed the University of Texas to create it's own "Longhorn Network," thus getting TV revenue directly from distributors rather than through a conference-wide Big 12 deal.)
  
  There are also fights over this in pro sports. Dallas Cowboys owner Jerry Jones has constantly sought to broaden his ability to market his team's rights—TV, merchandise, etc—himself, rather than through league-wide contracts. He also seeks to avoid revenue sharing of the income he makes through these sales.
  
  So what do these agreements generally look like? First, they are based on the standard property right of license.
  
  A license grants someone the ability to enter property. When you go to the theater, or a restaurant, or a store, you are there by license. These licenses can be implied or explicit.
  
  Licenses allow property owners to set conditions for admission. They can demand you leave cameras outside, for example. They can demand that, prior to entry, you sign away any copyrights to photos or videos you take with your cameras.
  
  Once this initial step is taken, then copyright can come into play. If you've waived your right to the copyright on photos or videos you've taken, then you're violating copyright when you distribute them without the permission of the property owner (who now owns the copyright).
  
  The real question in the WIAA example is whether this is good public policy. Should the WIAA or the individual schools/communities have the right to establish broadcasting rights? Further, because this is a quasi-governmental organization, does the WIAA have a right under the WIAA to operate in this manner?
  
  The copyright and property questions, however, are clear as day.
  
  And, to that point, the fair use analysis is the same under this situation as it would be for other works. A random fan who took a grainy video on his camera phone will have stronger fair use exception arguments than a Gannet staffer who snuck in a quality camera with the intent to video the event for later streaming.
  
  So there you go, too much information and TL;DR. Forgive my lack of brevity; I didn't have more time to write a shorter post. (And I have a sinus infection headache which is making me a bit spacey.)

• Jul 27th, 2011 @ 1:18pm

  Re: "Coca-Cola" is a registered trademark of the "COCA-COLA COMPANY",

  on Blue Cross / Blue Shield Says Study Pointing Out Failures Of Its Doctors... Violates Its Trademark

  A physical good can not be trademarked. Physical objects can, but that is different. For example, packaging can be trademarked. A Coca-Cola bottle design is indeed trademarked because it operates as a source identifier for the good being sold—with Coke, it would be the soda.
  
  On top of that, trademark protects against the use in commerce of the mark by another. Referring to Blue Cross doctors in a study is not using the term in commerce. This is so even if the study is being sold.
  
  The reason is that the 'use in commerce' requirement is a use wherein the trademark is being used to identify a good or service being offered for sale. In the study example provided here, Blue Cross is not being used to identify a good or service being offered for sale, but rather it is being used to identify doctors that are part of the Blue Cross network.
  
  I've touched on various aspects of trademark law on my blog through various posts in the Trademark tag here:
  http://www.lextechnologiae.com/tag/trademark-2/
  
  Or the Trademark category here:
  http://www.lextechnologiae.com/category/trademark/

• Jul 22nd, 2011 @ 10:08am

  This will be an interesting case . . .

  on Kim Kardashian Sues Old Navy For Hiring Actress Who Looks Like Her

  Vanna White sued over a robot in a commercial who performed a job similar to hers in a spoof of a gameshow similar to wheel of fortune.
  
  And she won.
  
  I have to say, watching the commercial, I could see the Kardashian look. There is definitely homage to the fashion scene and culture scene Kardashian moves in.
  
  Is that enough to give this case legs? I dunno.

• Jul 21st, 2011 @ 6:09am

  Geographic marks generally aren't allowable . . .

  on Anheuser-Busch Trying To Trademark Area Codes For Local Beers

  You'd have to add more to it. For example, someone mentioned 312 Urban Wheat. You might be able to trademark that—but that may still be problematic from a geographical mark standpoint.
  
  And yes, I'd argue area codes would be geographically descriptive.

• Jul 20th, 2011 @ 2:34pm

  Wow.

  on Supporter Of Fashion Copyright Accused Of Plagiarizing Other Supporter Of Fashion Copyright

  The biggest problem here is that Suk and Hemphill do not do a good job of citing and references Scafidi's work. You can agree with someone and use their ideas, but you have to cite to them.
  
  What boggles my mind is that no one at Stanford Law Review found Scafidi's work and the need to add more citations to it. That's a black mark on Stanford Law Review.

More comments from John William Nelson >>

John William Nelson has not submitted any stories.

Submit a story now.