Chris Ball’s Techdirt Profile

wiwa

About Chris Ball

As of 2011, I am an articling student (i.e. lawyer trainee) at a major Canadian IP law firm based in Ottawa, Ontario. I completed my law degree (2010) and an undergraduate degree in Engineering Physics (2005) at Queen's University in Kingston, Ontario. I was Articles Editor (2009-2010) of the Queen's Law Journal.

My interests include IP and technology law, the environment, peak oil, sustainable agriculture, and (uncharacteristically) mixed martial arts.



Chris Ball’s Comments comment rss

  • Oct 22nd, 2012 @ 9:25pm

    But what is "ownership"?

    Ever since I took first year property law in law school, I'm wary whenever I hear property rights referred to by a label such as "ownership". Sure, you can call it ownership, but that's just a name. What matters is the underlying rights you have over the thing. "Ownership" means something quite different whether you are talking about a dog, a house, a toothbrush, a driver's license, or a financial instrument. The whole problem with ownership of e-goods is that we don't have a shared understanding of what it is. Calling it "ownership" rather than a license might give some people some ideas about what it entails, but those ideas may or may not be true, and the label doesn't have much to do with it.

  • Jan 14th, 2012 @ 7:13am

    (untitled comment)

    "Not all frozen desserts are ice cream, but all ice creams are frozen desserts."
    What about that astronaut ice cream stuff? It's a non-frozen ice cream dessert.

  • Nov 10th, 2011 @ 8:46am

    Color trademarks

    Most famously, Owens-Corning has a trademark on the color pink for fiberglass insulation. Yeah, that stuff is not naturally that color. :)

    There is no inherent bar to trademarking a color, though as you might expect, the USPTO doesn't go giving out trademark registrations for colors willy-nilly. The color can't be functional or merely decorative, and you generally have to show to a high standard that your use of the color is distinctive and well-known.

  • May 3rd, 2011 @ 11:12am

    Broad exceptions > flexible exceptions

    I've been involved in a lot of discussions about copyright policy in Canada, where a similar debate has been going on about whether we should adopt U.S.-style "flexible" fair use. Unlike most of the people who I usually agree with on copyright issues, I also take the view that flexible fair use is a bad idea. Not so much because it leads to litigation per se, but because it leaves a lot of room for interpretation. That leads to copyright owners making really broad threats that have chilling effects. Copyright litigation is expensive. Would you be willing to put up $50,000 in legal costs if you are 90% sure you are going to win? More likely, you'll just give in; or you'll avoid the problem entirely by just not engaging in any use unless there is no conceivable argument that it isn't "fair" use.

    Even as it is, Canada's existing system of fair dealing still has most of the same uncertainties as the U.S. system, so making it more "flexible" probably couldn't do any harm. But it might not do much good either, if users can still be threatened with a lawsuit. It would be much better to just have well-defined, broad exceptions to copyright, so that people can engage in all sorts of reasonable uses without any worries that they are going to get sued.

  • Apr 8th, 2011 @ 6:38am

    Oranges and Lemons

    Here's my favourite example of this: One of the main components of orange and lemon flavour is limonine. The molecule happens to be chiral: one of the molecules is considerably more common in orange and the other in lemon. Apparently some cheap candies would use the racemate as a flavouring (because it was cheaper than optically pure orange or lemon). If you tasted them with your eyes closed, you couldn't tell the difference. But sure enough, the yellow ones tasted like lemon and the orange ones like orange.

    The same apparently goes for mint and caraway, but you'd never get me to try a caraway candy no matter what colour it was.

  • Mar 31st, 2011 @ 6:33am

    Not public = not defamation

    My understanding is that for statements to be defamatory, by definition they must be public. Just talking sh*t about someone to your friends and family isn't defamation. So if you're a plaintiff and you think an injunction like this is going to do you any good, you probably don't have a case.

  • Mar 29th, 2011 @ 8:43am

    TM law is about unfair competition, not consumer protection

    Mike,
    While I agree with you in the end, I disagree with your characterization of trademark law as being intended for consumer protection. Preventing consumer confusion is a crucial part of it, but I would say that is ancillary to the true purpose of trademark law, which is to prevent unfair competition between businesses. As with any law though, a lot of businesses treat trademark law as an instrument for pursuing whatever end they want. So you get abuses like companies trying to claim that a generic term is their trademark to prevent other companies to use the term (which wouldn't really be unfair competition because consumers aren't confused -- in fact, consumers are potentially confused when a company claims exclusive rights to the term), or companies trying to use their trademarks to stifle free speech (which, again, wouldn't be unfair competition unless it confuses the public about the source of the product or service).

    The history of how the law has developed is very clear on this. We have lots of laws intended to protect consumers, but trademark law is merely intended to protect businesses from other businesses that might steal their customers by confusing them.

  • Feb 8th, 2011 @ 12:23am

    Beer

    Beer might not taste as good if it's the wrong temperature, and it might go bad if it stays too warm, but that distinctive skunky flavour isn't from heat, it's from light--or UV, to be more precise. That's why you should steer away from Corona and all those other beers that come in clear or even green bottles. Stick with brown bottles or cans, the beer will keep better. Also keep your beer in a dark place.

  • Feb 2nd, 2011 @ 6:31am

    Not that useful

    Such zones probably wouldn't be that useful. Heck, they already exist in the form of the many countries that either don't have much in the way of patent laws or where it simply isn't work a patentee's time to get a patent there. The problem is that while you may be able to practice the invention in those places, you still can't sell the patented invention, or things made with the patented process, in places where there is patent protection. The fact that it might be in native territory instead of another country probably wouldn't make a huge difference.

    There are still opportunities to take advantage of such patent free zones, and I'm surprised more businesses don't take advantage, but they aren't the panacea you might think.

    Also, I wonder about the international and trade-related aspects of this decision. Sounds like it probably violates TRIPS and/or the Paris Convention. Not that the U.S. is exactly known for holding up its end of treaties. (Yes, I'm a bitter Canadian.)

  • Dec 9th, 2010 @ 6:28am

    Oops

    Your ♥ shows up as an actual heart. And weird things are happening when I preview this comment. I think we've discovered a minor bug in your CMS.

  • Dec 7th, 2010 @ 6:36am

    Push vs. Pull

    It makes a certain amount of sense (but only a certain amount) to regulate content in push content like television: people don't have a choice about what they get, so you regulate it to make sure they get "enough of what's good for them." It makes absolutely no sense to regulate pull content like YouTube or Netflix, where the user chooses what she gets. While you're at it, why not regulate what movies people rent from the video store too?

    Still, if this ever does make it into regulation, I think there's a serious ground to challenge it based on freedom of expression.

  • Dec 2nd, 2010 @ 7:48am

    Dragon's Den

    This is the exact concept behind the TV show Dragon's Den which airs on CBC in Canada and apparently exists in several other countries. The idea is that a bunch of entrepreneur competitors get a few minutes to pitch their business idea to a panel of venture capitalists. The competitors have a good (or sometimes hilariously bad) idea for a business, but lack the capital and/or business acumen to execute them on a large scale. If they can convince one of the panelists to go in on their idea, the panelist can invest in their company or partner with them to put the idea into practice. Kinda boring as a TV show, but interesting from a business perspective.

  • Nov 11th, 2010 @ 10:20am

    Limitations on trademarks

    Let's not forget, a trademark only comes with the exclusive right to use it in a particular trade. This isn't like Nintendo would get the right to stop anyone else from using the expression "it's on like Donkey Kong"--only to stop anyone from using it in such a way that it might be misleading or confusing. I feel like Nintendo has a legitimate interest in preventing, say, Sony or Microsoft from using "it's on like Donkey Kong" to market their competing video game systems.

    Now that's not to say that trademarks aren't often abused by rights-holders making unjustified threats, but I don't think registering and using a mark like this inherently abusive.

  • Nov 3rd, 2010 @ 9:33am

    Incentives

    Of course, I'd rather that the airline spend the money on not losing luggage, but perhaps that's just wishful thinking...
    It's not as if the money they are paying out to unfortunate passengers is coming out of their "not losing luggage" budget. Making them (more) liable for lost luggage actually gives them a financial incentive to not lose luggage--or, rather, it reduces the incentive to be careless about whether or not they lose luggage--encouraging them to spend money to solve the problem. That said, I don't think this is likely to have an appreciable effect on the problem, because they're probably spending enough money on this problem already that not spending enough money isn't the issue.

  • Oct 26th, 2010 @ 6:31am

    14 days is better than forever

    A friend of mine has had my real-book copy of Jared Diamond's Guns Germs & Steel for almost three years now. We now live in different towns and it's pretty difficult to get it back from him. When you look at it that way, maybe the Kindle system isn't all bad...

  • Sep 27th, 2010 @ 6:47am

    Sounds like normal discovery to me

    Admittedly I don't know anything about the rules of civil procedure in whatever state this is in, and I haven't read the judgment, but: how is this news? When you get into a lawsuit, you have to turn over any relevant non-privileged documents. And that includes Facebook messages. Otherwise it's not fair to the other side. Any issues of privacy go only to whether or not the documents should be kept confidential as between the people involved in the lawsuit and the public. And as far as I can tell, that isn't the issue here.

  • Sep 2nd, 2010 @ 7:20am

    Juries

    As a (soon-to-be) patent lawyer in another country, I have to say that it still blows my mind that the U.S. does jury trials for patent lawsuits. Here in Canada, there is a general principle that if the subject of a civil trial is too complex for a lay jury to understand, then it is always tried by judge alone. As a result, I don't think there's ever been a jury patent trial here. (Not to mention that most IP litigation takes place in the Federal Court, where there are no juries.)

    I for one would love to see patent trials carried out by a jury of "persons of ordinary skill in the art" a true jury of the patentee's peers, if you will. Good luck trying to find six PhDs in organic chemistry to serve as jurors though!

  • Aug 19th, 2010 @ 6:18am

    Competition Law vs. IP

    Competition law statutes generally contain exceptions for IP rights. As Nina said, copyright (and patents, industrial designs, etc.) exist precisely for anti-competitive purposes, so it wouldn't make much sense for lawmakers to allow competition law to trump IP in general. That said, competition law (at least here in Canada) is quite often used to curb IP rights; it's just not as useful as you might think, and only works in pretty extreme cases.

  • Aug 13th, 2010 @ 7:12am

    A journal editor's perspective

    As a former editor of a peer-reviewed academic journal (admittedly in the social sciences), I have a slightly different take on peer review. The main role of our peer review process was not to determine what was "good" or "right", but to determine what was worth publishing. High quality journals get a lot of submissions, and, sadly, a lot of them aren't very good. But, since most of them deal with very specialized subject matter, it is often hard for a generalist editor to tell the good papers from the duds. So, for those papers that pass our basic internal review, we get the opinion of someone who knows about the specific area to help us tell the good from the bad.

    Most of the submissions end up being published somewhere, as they should be--heck, most of them are already posted in some form on SSRN before we even get them--so the traditional system of peer reviewed journals doesn't really serve a gatekeeper role per se. Rather, the journal's role is mostly editorial (i.e. making the papers the best that they can be) and curatorial (i.e. bringing attention to them). This, I think, is an important value-added service.

    So while I agree that the peer review that goes on after publication is more important than the traditional process, this realization hardly heralds the end of traditional peer review. That said, it's probably important for people to be aware of the difference between pre- and post-publication peer review, and not assume that because a paper has been published in a reputable journal that it has been thoroughly vetted for correctness.

  • Jun 5th, 2009 @ 12:57pm

    Maybe it's the name (as wiwa)

    I think I'll wait for the Palm Post rather than but down any money for the Pre.