The Girl Scouts Sues The Boy Scouts Over Trademark

Trademark

from the scouting-party dept

As you may recall, the Boy Scouts of America decided late last year to — finally — allow girls to join their ranks. It was a widely praised decision that was long overdue, with the organization’s mission statement not calling for any kind of gender exclusivity. You may also recall that the BSA has some history of being on the wrong side of intellectual property concerns and even has a special law created just for the BSA to allow it to be trademark bullies. These two seemingly unrelated worlds have now collided, with the BSA being sued by the Girl scouts of America over trademark concerns.

The Girl Scouts are suing the Boy Scouts, saying the organization’s inclusive rebranding effort has caused all sorts of consumer confusion from mistaken enrollment in the Boy Scouts to misinformation about a merge of the two groups.

Tuesday’s trademark infringement lawsuit is an attempt to clear up the uncertainty, said the Girl Scouts of the United States of America.

The Manhattan federal case noted the two separate youth organizations have long coexisted. But problems arose when “core gender distinction” was altered by the Boy Scouts of America, which announced in October 2017 it would open its doors to girls beginning in 2019. Earlier this year, the Boy Scouts unveiled new marketing campaign to back the effort. “Scout Me In,” the tagline proclaimed.

What happened here is pretty simple. And, frankly, pretty stupid on the part of the BSA. And we should acknowledge that Techdirt generally, and myself specifically, tend to advocate a more permissive attitude when it comes to trademark concerns. In this case, what BSA did was to rebrand itself without the “Boy”, instead recruiting girls into its ranks using the “Scouts BSA” branding and term. To be somewhat critical of the Girl Scouts, having that “BSA” in its name certainly does some work to differentiate it and call back to its original Boy Scouts of America name, but I’m not sure one could argue that “BSA” alleviates any concern. The Girl Scouts, of course, are still a thing. And this appears to have led to very real confusion in the marketplace.

In court papers, the Girl Scouts said the Boy Scouts’ rebranding announcement has created all kinds of brand confusion across the country.

For example, some Minnesota families looking to sign up their girls were erroneously told the Girl Scouts and the Boy Scouts have merged. Meanwhile, in Indiana and South Dakota, some parents mistakenly signed up their daughters to girls’ programs in the Boy Scouts.

Those are pretty clear cut examples. But, for some, this has become a tricky case. Most people view the Boy Scouts being more inclusive and allowing girls in as a good thing. Most people think the term “scout” is fairly generic at this point. Are we really to advocate that the GSA can keep BSA from including girls as scouts?

No, of course not. The problem here arose when BSA decided to brand itself by dropping the “Boy” instead of replacing it. If the branding and marketing material had instead replaced “Boy” with something else, particularly with a new name that used a different acronym, there wouldn’t be a problem. If BSA had decided to become the Field Scouts of America, for instance, confusion wouldn’t have been a thing. That it chose to do otherwise, knowing full well that the Girl Scouts exist, is actually fairly belligerant.

Filed Under: boy scouts, confusion, girl scouts, scouts, trademark
Companies: boy scouts of america, bsa, girl scouts of america, gsa, scouts bsa

The US Refusing To Sign 'The Paris Call' Is Not As Big A Deal As Everyone Is Making It Out To Be

Overhype

from the this-is-a-pointless-document dept

On Monday, a bunch of countries and companies officially announced and signed “The Paris Call,” or more officially, “the Paris Call for Trust and Security in Cyberspace.” It’s getting a fair bit of press coverage, with a lot of that coverage playing up the decision of the US not to sign the agreement, even as all of the EU countries and most of the major tech companies, including Google, Facebook, Microsoft, Cisco and many many more signed on.

But, most of those news stories don’t actually explain what’s in the agreement, beyond vague hand-waving around “creating international norms” concerning “cyberspace.” And the reports have been all over the place. Some talk about preventing election hacking while others talk about fighting both “online censorship and hate speech.” Of course, that’s fascinating, because most of the ways that countries (especially in the EU) have gone about fighting “hate speech” is through outright censorship. So I’m not quite sure how they propose to fight both of those at the same time…

Indeed, if the Paris Call really did require such silly contradictory things it would be good not to sign it. But, the reality is that it’s good not to sign it because it appears to be a mostly meaningless document of fluff. You can read the whole thing here, where it seems to just include a bunch of silly platitudes that most people already agree with and mean next to nothing. For example:

We reaffirm our support to an open, secure, stable, accessible and peaceful cyberspace, which has become an integral component of life in all its social, economic, cultural and political aspects.

We also reaffirm that international law, including the United Nations Charter in its entirety, international humanitarian law and customary international law is applicable to the use of information and communication technologies (ICT) by States.

I mean, great. But so what? The “measures” the agreement seeks to implement are almost equally as meaningless. Here’s the entire list:

• Prevent and recover from malicious cyber activities that threaten or cause significant, indiscriminate or systemic harm to individuals and critical infrastructure;
• Prevent activity that intentionally and substantially damages the general availability or integrity of the public core of the Internet;
• Strengthen our capacity to prevent malign interference by foreign actors aimed at undermining electoral processes through malicious cyber activities;
• Prevent ICT-enabled theft of intellectual property, including trade secrets or other confidential business information, with the intent of providing competitive advantages to companies or commercial sector;
• Develop ways to prevent the proliferation of malicious ICT tools and practices intended to cause harm;
• Strengthen the security of digital processes, products and services, throughout their lifecycle and supply chain;
• Support efforts to strengthen an advanced cyber hygiene for all actors;
• Take steps to prevent non-State actors, including the private sector, from hacking-back, for their own purposes or those of other non-State actors;
• Promote the widespread acceptance and implementation of international norms of responsible behavior as well as confidence-building measures in cyberspace.

I mean, sure? Some of that is meaningless. Some of that is silly. Some of it is obvious. But none of it actually matters because it’s not binding. Could this lead to something that matters? Perhaps. But it seems silly to condemn the US for failing to sign onto a meaningless document of platitudes and meaningless fluff, rather than anything substantial. There’s no problem with those who did choose to sign on, but it’s hard to see how this is a meaningful document, rather than just an agreement among signatories to make them all feel like they’ve done something.

Filed Under: cybersecurity, eu, france, internet, internet regulation, paris call, security, us

Daily Deal: Nix Mini Color Sensor

Deals

from the good-deals-on-cool-stuff dept

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Filed Under: daily deal

RIAA Court Filing In Stairway To Heaven Case Warns Against *OVERPROTECTION* By Copyright

Copyright

from the pigs-are-flying-over-hell's-frozen-tundra dept

Here’s one you don’t see everyday. The RIAA is telling a court that it needs to be careful about too much copyright protection. Really. This is in the lawsuit over “Stairway to Heaven” that we’ve been covering for a while now. As we noted, the 9th Circuit brought the case back to life after what had appeared to be a good result, saying that Led Zeppelin’s “Stairway” did not infringe on the copyright in the Spirit song “Taurus.” While we were a bit nervous about the case being reopened after a good result, as copyright lawyer Rick Sanders explained in a pair of excellent guest posts, there were good reasons to revisit the case — in part to fix the 9th Circuit’s weird framework for determining if a song has infringed, and in part to fix some bad jury instructions.

As with the Blurred Lines case, I’ve been curious how the RIAA and various musicians would come down on these cases. After all, I can imagine how they could easily end up on either side of such a case. Lots of musicians take inspiration from other musicians (it’s actually kind of an important way for most musicians to develop), and if that’s seen as infringing, that seems like it should be a huge problem. But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far.

And… that’s actually what it’s done. The RIAA and the NMPA (National Music Publisher’s Association, which historically is just as bad as the RIAA on many of these issues) actually had famed law professor Eugene Volokh write an interesting amicus curiae brief in support of the 9th Circuit rehearing the case en banc (with a full panel of 11 judges, rather than just the usual 3). Hat tip to Law360’s Bill Donahue, who first spotted this.

Anyway, who among you ever expected the following in an RIAA brief:

Copyright law thus needs to carefully calibrate and balance its rules to prevent both over- and underprotection. Composers? intellectual property must be protected, but new songs incorporating new artistic expression influenced by unprotected, pre-existing thematic ideas must also be allowed. The panel opinion badly overprotects, and in doing so is inconsistent with other federal appeals court decisions that have addressed the same issues.

Who are you and what have you done with the real RIAA?

Other parts of the RIAA brief (and I can’t believe I’m saying this) make the same argument I’ve been making about this case (and the Blurred Lines) case for years:

This Court should also correct the precedent set by the panel allowing findings of infringement based on the use of uncopyrightable elements. Most compositions share some elements with past compositions?sequences of three notes, motifs, standard rhythmic passages, arpeggios, chromatic scales, and the like. Likewise, all compositions share some elements of ?selection and arrangement? defined in a broad sense. The universe of notes and scales is sharply limited. Nearly every time a composer chooses to include a sequence of a few notes, an arpeggio, or a chromatic scale in a composition, some other composer will have most likely ?selected? the same elements at some level of generality.

To keep every work from infringing?and to keep authors from being able to claim ownership of otherwise unprotected elements? this Court has stressed that selection and arrangement is infringed only when there is virtual identity between two works, not loose resemblance. The same principle should be recognized for music.

The brief goes into more detail — again more or less repeating what I said in my original post, but with a bit less swearing (okay, 100% less swearing) — on why it’s crazy to argue that non-protectable works should be analyzed in determining if there’s infringement:

The panel opinion concluded that the instruction nonetheless erred, on the theory that such common elements could still be protected if ?used in combination with other elements in an original manner,? slip op. at 20, as a form of creative ?selection and arrangement,? id. But all compositions will share some elements of ?selection and arrangement,? defined in a broad sense, with some earlier compositions. To prevent nearly every new composition being at risk for liability, copyright claims based on ?original contributions to ideas already in the public domain,? Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), are seen as involving a ?thin copyright that protects against only virtually identical copying.? Id. at 812; see also Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003) (?When we apply the limiting doctrines, subtracting the unoriginal elements, Ets-Hokin is left with . . . a ?thin? copyright, which protects against only virtually identical copying.?); Rentmeester v. Nike, Inc., 883 F.3d 1111, 1128-29 (9th Cir. 2018). This Court has long recognized this principle in claims involving visual art that allegedly creatively combines public domain elements, as with the sculptures in Satava or the photographs in Ets-Hokin and Rentmeester. The same should apply to music.

I also agree with the RIAA in saying that the “inverse ratio” rule is incredibly stupid. This is the rule adopted by some courts that the amount of “substantial similarity” necessary to show infringement decreases with the amount of “access” the accused infringer had to the original work. But, as the RIAA notes, that makes no sense (especially these days):

Indeed, while as a practical matter few composers create works that are strikingly similar to older ones, nearly all composers enjoy a striking level of access to a vast range of works: They hear them online, on the radio, at concerts, at home, and elsewhere. Indeed, they may hear them without ever seeking them out?played as mood music in elevators, supermarkets, and restaurants, or as incidental music in a film or in a television or radio commercial. Yet even if hearing the songs this way counts as a ?high degree of access? (itself a vague concept that juries would have a difficult time applying), that should not allow the creators of new works to be sued under a ?lower standard of proof of substantial similarity,?

And, finally, I agree with the RIAA that it would be a mistake to let a jury hear the recordings to compare the two songs. The case is not about the copyright in the sound recordings, but in the composition (which are not the same). And the problem with the sound recording is that it includes the unprotectable/public domain content, and that can be hard for a non-professional jury to separate out. The RIAA agrees:

Here, for instance, the panel agreed with Judge Klausner that the jury should not be allowed to determine substantial similarity by comparing Stairway to Heaven to Spirit?s sound recording of Taurus. Slip op. at 25, 31, 34. Unsurprisingly, Judge Klausner concluded that, because of this, it was better for the jury not to hear the sound recording at all, especially since hearing the sound recording would do vanishingly little to help the jury determine anything else (such as access).

Finally, the RIAA (correctly!) calls out the very weird part of the 9th Circuit ruling that suggested that as an alternative to allowing the jury to hear the sound recordings, they should be allowed to observe Led Zeppelin’s Jimmy Page listening to the recordings “to evaluate his demeanor.” As the RIAA points out, this is utter nonsense.

The panel rejected this judgment call on the grounds that ?allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings.? Slip op. at 34. But is this really so?

Imagine Page sitting there, relistening to the recording of Taurus (which he had already recently heard when preparing for the trial, III ER 502). The jurors are watching his demeanor, an unusual thing for people to do when they are listening to a song together with someone. What would they be looking for on his face that would in any way bear on the question whether he had heard the song nearly 50 years before, in 1967 to 1971? Is there some supposedly tell-tale facial expression that captures the reaction, ?Yes, I had heard that song back then??

Anyway, thanks to Led Zeppelin and Professor Volokh for actually creating a scenario where the RIAA and I are mostly on the same page — and that page is warning about the negative consequences of overprotection of copyright in harming artists and limiting cultural output.

Filed Under: blurred lines, copyright, eugene volokh, inspiration, led zeppelin, overprotection, public domain, spirit, stairway to heaven, taurus
Companies: riaa