Erik J. Heels's Favorite Techdirt Posts Of The Week

from the forest-and-trees dept

This week, we asked lawyer Erik J. Heels to do the favorites. While not particularly active in the comments, Heels regularly sends over interesting stories, which we appreciate.

Mike Masnick of Techdirt did not ask me why I am a Techdirt fan, but here's why. Techdirt has (1) good headlines/titles/Tweets (headlines are titles are Tweets, you know), (2) good URLs (no outsourced feeds here), (3) good content, and (4) good cluefulness. This rare combination of goodness makes Techdirt great. Mike has the ability to see both the trees and the forest, providing timely commentary on why stuff is broken and why that brokenness might be part of a larger - often bad - trend. For its insightful commentary on the intersection of law and technology, Techdirt is on my short list of must-read blogs, and you should nominate Techdirt for the ABA's list of top 100 law-related blogs. And although I link to Techdirt more than I comment on Techdirt, I thank Mike for the opportunity to write about my favorite posts of the week.

So here are my favorite stories (trees) and trends (forest) of the week.

I have noticed that the controversy surrounding a particular flavor of intellectual property (IP) protection is inversely proportional to the duration of the IP rights: (1) Patents generally last 17-20 years and are extremely controversial, (2) copyrights generally last the lifetime of the author plus 90 years and are very controversial, and (3) trademarks last potentially forever and are not very controversial. So I'll start with trademarks!

Trademarks

1. Where In Trademark Law Does It Say It's Okay To Trademark A Town Name 'For The Good Of The Community'? (2011-08-15).

Sturgis Motorcycle Rally Inc. (SMRi) trademarked "Sturgis" (a town in South Dakota) and then tried to stop "unauthorized providers" from selling Sturgis souvenirs. The Sturgis trademark application at issue took over ten years to register (about one year is average), surviving an opposition along the way. The file is 373 pages long! In short, the applicant was able to successfully argue that the geographically descriptive mark "Sturgis" should be accepted as a trademark under the theory of "acquired distinctiveness," which states that otherwise descriptive marks can be registered if they have been used for five years in connection with the goods and services on the trademark application. If you Google "Sturgis," you will discover that the word is synonymous with the annual motorcycle rally, not with the town where the rally is held. In other words, the Sturgis motorcycle rally is more important, trademark-wise, then Sturgis, SD. This is a good example of how the law, even when applied accurately, does not always produce a fair result. It seems to me that any retailers in Sturgis should be able to sell Sturgis-related products, but the law says otherwise.

2. Waffle House Says Rap Song Called Waffle House Violates Its Trademark (2011-08-17).

This is a case of Waffle House (the restaurant) cluelessly over-reaching with the trademark rights it does own to try to stop something it doesn't like. That's not what trademark law is for. There are registered Waffle House trademarks for restaurant services and mugs and clothing. But not for rap music. See how that works? Waffle House (the restaurant) gets to stop other restaurants from calling themselves "Waffle House." But it does not "own" the phrase "Waffle House" and get to dictate to the world how or whether to use it.

Which is why Mike Doughty can sing a song called "Busting Up a Starbucks."

But even that song appears as "Busting Up a Starbuxxx" on iTunes. Hmm.

Censorship, Civil Liberties, And The Cluetrain

As George W. Bush infamously said on 1999-05-22, when trying to justify censoring the parody www.gwbush.com website, "There ought to be limits to freedom." It seems, unfortunately, that America agrees with you, W.

3. Police Try To Bring Wiretapping Charges Against Woman Who Filmed Them Beating A Man (2011-08-15).

Does this headline sound like it's coming from North Korea or from the United States? I wonder if government agencies and law enforcement personnel are more stupid today than in pre-Internet times. Or if the Internet just shines a brighter light on their stupidity. Either way, less stupid, please.

4. FCC Investigating Whether BART Cell Service Shut Off Was A Violation Of Federal Law (2011-08-16).

Good that the FCC is investigating the Orwellian decision by BART to shut off cell service over rumored protests about BART. Bad that BART even considered this option in the first place! North Korea or United States?

5. New Research: Internet Censorship To Stop Protests... Actually Increases Protests (2011-08-17).

This is what happens when governments try to censor free speech. The censorship itself becomes news, and the speech spreads. Can you say Streisand Effect?

6. Police Say They Can Detain Photographers If Their Photographs Have 'No Apparent Esthetic Value' (2011-08-16).

Stories like this make me think that maybe the 9/11 terrorists are winning. Only when our liberties return to pre-9/11 status will freedom have the upper hand. I think that the police who enforced this rule have "no apparent law enforcement value." Unless you consider security theatre valuable.

Patents

7. Google Spends $12.5 Billion To Buy Motorola Mobility... And Its Patents (2011-08-15).

8. What Google Gets With Motorola Mobility (2011-08-16).

9. Motorola Deal Showing Massive Loss To Innovation Caused By Patents (2011-08-17).

The big tech story of the week was Google's purchase of Motorola. Or was it Motorola Mobility? (Same? Different?) Or Motorola Mobility's patents? I think the only Motorola device I've ever knowingly used is my sucky cable box. So I was having a hard time caring about this deal. When commentators started suggesting that the deal was a patent play, it started to make more sense to me. I teach and practice patent law, and I believe in the ideals of the patent law system. But to say that the current patent law regime is broken is an understatement. Most patents are a waste of money. Modern patent laws were never designed to allow for non-producing non-inventors (i.e. patent trolls) to extract revenues from those actually adding value to society. What worries me most about the Google/Motorola deal is that I don't believe that Google believes in "don't be evil."

Baseball

10. NY Yankees: It's Insulting To Call Us The Evil Empire... But It's Also Trademark Infringement (2011-08-18).

I'm also ending with trademarks. Baseball trademarks! It seems that The New York Yankees (aka The Evil Empire, at least in Red Sox Nation) are opposing a trademark for Baseball's Evil Empire (misspelled as "Baseballs Evil Empire" in the application). You know, because the Yankees are evil! Bwah-ha-ha! (See "Streisand Effect" above.) I love it when the jokes write themselves.

I am a diehard Red Sox fan (sorry, Mike). And if Suck The Red Fox (a not-so-subtle Spoonerism for "F*ck The Red Sox") can be registered as a trademark, then I have no problem with Baseball's Evil Empire! Go Red Sox! And Dear Yankees, here's a lesson for you from your friends at Google: Don't be evil!


Erik J. Heels is an MIT engineer; trademark, domain name, and patent lawyer; Red Sox fan; and music lover. He blogs about technology, law, baseball, and rock 'n' roll at ErikJHeels.com.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Sebastian, Aug 20th, 2011 @ 12:19pm

    A lot of great posts!

     

    reply to this | link to this | view in thread ]

  2.  
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    AR (profile), Aug 20th, 2011 @ 1:58pm

    And your a lawyer???

    Ok, so maybe there is hope out there.
    "I teach and practice patent law, and I believe in the ideals of the patent law system"
    Please keep teaching your students common sense. Dont teach them to become "legalese bottom feeders" like some of the others do.
    Hopefully, They may grow up to be the judges of tomorrow.
    Oh, like your posts by the way

     

    reply to this | link to this | view in thread ]

  3.  
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    Richard (profile), Aug 20th, 2011 @ 3:12pm

    Controversy

    (1) Patents generally last 17-20 years and are extremely controversial, (2) copyrights generally last the lifetime of the author plus 90 years and are very controversial, and (3) trademarks last potentially forever and are not very controversial. So I'll start with trademarks!

    I think that is really because of the broadness of their claims.

    Patents can stop you doing something even if you are doing it completely independently without copying anyone else.

    Copyright is weaker, in that you have to be copying to infringe. Independent creation of something similar (even very similar) is allowed.

    Trademarks don't stop you doing anything they only restrict how you identify your activity.

    SO - yes the shorter terms are for the more draconian restrictions - which is sort of right if you believe in these things - and does explain the relative controversy levels.

     

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  4.  
    identicon
    Androgynous Cowherd, Aug 20th, 2011 @ 3:33pm

    Chaos

    3. Police Try To Bring Wiretapping Charges Against Woman Who Filmed Them Beating A Man (2011-08-15).

    Does this headline sound like it's coming from North Korea or from the United States?


    Unfortunately, the United States. Since North Korea is basically Soviet Russia: The Shitty Low-Budget Sequel, the North Korean police would have just quietly disappeared her in the night. Perhaps with the recent Patriot Act extension that level of unaccountable power is the eventual aspiration of the US's police forces, though.

    5. New Research: Internet Censorship To Stop Protests... Actually Increases Protests (2011-08-17).

    This is what happens when governments try to censor free speech. The censorship itself becomes news, and the speech spreads. Can you say Streisand Effect?


    There's an even simpler explanation. When the people start protesting, they have N grievances against the government, but, once the government tries to censor their speech in a misguided and stupid-bordering-on-evil attempt to quell the riots, they have N + 1 grievances against the government.

    (Somehow I'm reminded of a famous expression among computer programmers: "Someday, you will have a problem, and you'll think 'I know! I'll use regular expressions!' Now you have two problems." The government has a problem with public relations and thinks "I know! I'll just forcibly shut everyone up!" Now they have two problems.)

    Of course, government can't please all of the people all of the time, but when the people send a clear message to them that "you're doing it wrong!", sticking your fingers in your ears isn't the answer and clapping your hand over their mouths certainly isn't.

    It's something of a have-a-hammer, every-problem-looks-like-a-nail problem. The government tends to have two hammers: force and large amounts of money (with the ability to print more). So their problem-solving strategy seems to consist of "can I throw money at the problem?" (stimulus package: away!), then "the problem's even worse now!" (because you did it wrong, stupid), and then "okay, can I just stick a gun to everyone's head and make them behave, and maybe even make them pretend everything's fine? Maybe, after long enough of everyone pretending, the markets will even rebound due to apparent consumer confidence, or something". And so we get voodoo economics, censorship, and more voodoo economics, and the recession spirals.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Androgynous Cowherd, Aug 20th, 2011 @ 3:35pm

    Re: Controversy

    Copyright is weaker, in that you have to be copying to infringe. Independent creation of something similar (even very similar) is allowed.


    Not anymore, unfortunately. Independent creation of some kinds of services (especially if they involve music) seems to get you sued by the record labels these days.

     

    reply to this | link to this | view in thread ]

  6. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Aug 20th, 2011 @ 5:50pm

    AIDS.

     

    reply to this | link to this | view in thread ]

  7.  
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    Anonymous Coward, Aug 20th, 2011 @ 6:33pm

    Typo: (c) typically life+70, not 90. Or did I miss a secret extension. How is Mickey, anyway?

     

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  8.  
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    Chris Rhodes (profile), Aug 20th, 2011 @ 7:41pm

    Re: Chaos

    North Korea is basically Soviet Russia: The Shitty Low-Budget Sequel

    Love it!

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    carl demers, Aug 20th, 2011 @ 9:57pm

    what can I do with ipods.bz

    what can I do with a domain ipods.bz
    I own this domain name,but is a trademark.

     

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  10.  
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    Hephaestus (profile), Aug 20th, 2011 @ 11:07pm

    Re: Re: Controversy

    "Independent creation of some kinds of services (especially if they involve music) seems to get you sued by the record labels these days."

    So lets come up with a plan to remove the record labels ...

     

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  11.  
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    Any Mouse (profile), Aug 21st, 2011 @ 12:36am

    Re: Re: Re: Controversy

    Seems to me the record labels are working on that for us.

     

    reply to this | link to this | view in thread ]

  12.  
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    Richard (profile), Aug 21st, 2011 @ 4:40am

    Re: Re: Controversy

    "Copyright is weaker, in that you have to be copying to infringe. Independent creation of something similar (even very similar) is allowed."

    Not anymore, unfortunately.


    Of course there are many attempts to subvert the rules - see for example the photography example earlier this week - but if the law is applied correctly these should be slapped down - as indeed this one was.

    It also happens with trademarks - people try to elide them with copyright in order to create a law that has greater reach than either. They come up with nonsensical ideas like "you shouldn't be able to leverage the reputation of someone else to promote your product." Of course this is NOT what trademark law actually says (they are trying to borrow the philosophy of copyright and insert it into trademark).

    Trademark law does not prevent you from using name recognition that has been created by others - provided that it is clear that you are not claiming to be directly endorsed by them. If it did then most tribute bands would fall foul of it - for example.

     

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  13.  
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    Richard (profile), Aug 21st, 2011 @ 6:10am

    Re:

    life+70, not 90.

    I think he's elided "life +70 or 95 for corporate works " together.

     

    reply to this | link to this | view in thread ]

  14.  
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    The eejit (profile), Aug 21st, 2011 @ 9:04am

    Re:

    Acquired Intellectual Dishonesty Syndrome?

     

    reply to this | link to this | view in thread ]

  15.  
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    donw (profile), Aug 21st, 2011 @ 10:53am

    Glad I found you

    So much great information I don't see in the mainstream media.
    Keep it coming.
    Thaks

     

    reply to this | link to this | view in thread ]

  16.  
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    ErikJHeels (profile), Aug 22nd, 2011 @ 7:40am

    Re: copyright term

    Life + 90 was a typo, I meant life + 70. Still, crazy long.

     

    reply to this | link to this | view in thread ]


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