John Mitchell’s Techdirt Profile


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  • Aug 25th, 2015 @ 3:33pm

    A recipe for scrambled eggs can be copyrighted

    Lest anyone take too literally the notion that you can't copyright a recipe, there is a copyrighted work entitled "Copyrighted Recipe for Scrambled Eggs" -- see

  • May 5th, 2015 @ 8:19am

    Trade secrets?

    When I think of the "IP" bag, I include trade secrets. Although not created as a statutory right of "exclusion" (monopoly) like patents, copyrights and trademarks, Mike's framework still fits, and is perhaps better illustrated: Spilling the beans on a trade secret may get me in trouble because i spilled the beans, but the beans are not protected.

    Even with copyright, Mike is right that we must look only to the contours of the right. The private performance of a movie, for example, is never infringing. It is perfectly legal to watch a movie, and to privately perform a movie. The fact that I do so from a stolen DVD makes no difference. The fact that I do so from an infringing copy makes no difference. So, I'm caught watching a movie using a DVD that I stole from a homeless man, that he found in the trash, that was illegally made from an illegal cam-cording of a movie being illegally shown in a theater using a reel that was stolen at gunpoint in order to finance a terrorist group? Watching it is perfectly legal, and protected b the First Amendment.

  • Mar 4th, 2015 @ 12:36pm

    Republicans want to strengthen antitrust laws? LOL

    If a Republican Congress says it prefers to make antitrust laws the preferred way of dealing with something, what it really means is it doesn't want to deal with something. Ever since Reagan teamed up with the Chicago School Kool-Aid makers, "antitrust law" has been that weird uncle everyone tries to ignore during Thanksgiving dinners - a mere shadow of what it was 50-60 years ago.

  • Mar 4th, 2015 @ 12:22pm

    He's got it bass ackwards on Internet neutrality

    If we have self-driving cars, the last thing I want is for Verizon to be doing deals with BMW and Apple to make sure their cars never crash into each other, while Comcast threatens Nokia and Chevy with slow accident-avoidance response times if they don't pony up what BMW and Apple are paying Verizon.

  • Mar 4th, 2013 @ 10:33pm

    Re: Be silly that reseller rights are more than the creators.

    You have it exactly backwards. The Copyright Act specifically says that the right of the author to distribute copies of the work is "subject to" the right of the owner of the copy to distribute it without permission from the copyright owner. That is, you can't get a copyright without it being subject to the superior right of the copy's owner to lend it, sell it or give it away. And that makes perfect sense. It is quite common for us to own the tangible medium (paper, USB, computer hard drive) before the copyrighted work becomes embodied in it, making it a "copy" under the Act. If I own a piece of paper and you license me the right to reproduce your poem onto it, I still own the paper, and have the right to sell it. It should make no difference that I happened to be in Ontario at the time I reproduced it onto my paper.

  • Mar 4th, 2013 @ 10:27pm

    Re: Re: What about agriculture?

    It would not affect your sale of the taco itself, but it would affect the sale of any wrapper containing copyrighted text or images. Crazy, I know. Some video games have a copyrighted disc made in the USA and copyrighted packaging made abroad.

  • May 18th, 2012 @ 11:55am

    Re: No, this is more like recipes

    Ah, but you can copyright a recipe. See John T. Mitchell, Copyrighted Recipe for Scrambled Eggs, 2007 (Trademark Registration No. TX0007357813). And, "prior art" relates to patents, not copyrights. The devil is in idea/expression dichotomy.

  • May 18th, 2012 @ 11:52am

    Re: Obscene not the same as illegal

    It is incorrect to say that "obscene pornography" is illegal. Obscene material is not protected by the First Amendment to the U.S. Constitution (so held a 5-4 majority in the Supreme Court), but whether it is illegal depends on what specific jurisdiction you are in, what jury is judging it, and when. One court held that what may have been obscene 9 months earlier it not the same as what is obscene today, since obscenity is judged by the "contemporary" community standard, which may change rapidly.

  • May 18th, 2012 @ 11:18am

    Re: You CAN copyright a recipe

    The myth, "you still cannot copyright a recipe," persists. It is false.

  • Aug 23rd, 2011 @ 5:39am

    Might this stance backfire?

    On the question of "Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act," I've always wondered whether the copyright owner position might backfire, and harm all copyright owners. Given that the 106(3) right is expressly made subject to 109(a) (the first sale doctrine), one would think that any expansion in the reach of 106(3) to cover making available a copy for reproduction over the Internet would necessarily expand the reach of 109(a) as well. Although the plain language of 106(3) clearly applies to "copies and phonorecords" distributed in tangible form (as those two are defined as tangible objects, if plain English can make leaving your copy out where someone can copy it a violation of the distribution right, then wouldn't anyone who legally reproduced a work from a copy or phonorecord that the copyright holder made available over the Internet necessarily have the right, without the consent of the copyright holder, to make that copy or phonorecord available to others? I know it sounds silly, but no sillier than saying I "distribute [tangible] copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership [of the physical object], or by rental, lease, or lending [of the physical object]" whenever I allow someone access to my copy sufficient to allow them to reproduce it.

  • Dec 12th, 2010 @ 8:53pm

    Re: $15 for DVD? HUH?

    Perfectly legal -- an has been forever. Often called the "first sale doctrine," it is currently codified in two sections of the Copyright Act. Section 202 says that copies and copyrights are two separate things, and selling one does not convey the other. Section 109(a) says that the owner of a copy lawfully made under the Copyright Act is entitled, without the consent of the copyright owner, to transfer title or possession to anyone. Section 106, which confers the copyright in distribution, makes it "subject to" section 109, so the right of the owner to rent, lend, sell or give away the disc trumps the rights of the copyright owner. But it is provides a huge benefit to copyright owners. I mean, how much would you really pay for a new car if you had to have the manufacturer's permission to trade it in, sell it, let someone else borrow it, or let the junk dealer pick it up? I'm willing to pay $15 bucks in part because I am free to part with it.

  • Jun 2nd, 2010 @ 11:30am

    Might not CopyLeft give protection for lawyers who want it?

    I've filed my fair share of briefs, and other lawyers have often used them either to aid their own research or even as copy/paste for their own briefs. I have no problem with that, but the bias in the current copyright system is that no one knows I have no problem with that. The legal presumption is that I am a copyright maximalist. Perhaps I should be adding a Creative Commons type of license to my briefs which would allow such uses, but with a proviso that prohibits services such as LEXIS or WestLaw from charging for them (or if they do, requires them to pay me a fee for permission).

  • Mar 24th, 2010 @ 8:52am

    "March Madness" is the NCAA's olympic effort at a world cup in a college teacup

    Like I said. Sue me. I'll still enjoy the sweet sixteen.

  • Mar 11th, 2010 @ 10:25pm

    Re: So it is official, Obama is a corporate puppet

    Paul hit the nail on the head. Global corporate interests could care less whether the profits are counted in the U.S. column or some other country's column, provided they go into their bank accounts and to their shareholders. A huge chunk of so-called "protection" of U.S. economic interests is, in reality, an effort to gain better tools to price discriminate againt American consumers, and sue for some "IP" violation anyone who dares attempt to arbitrage the price differential. ACTA's objectives may mean greater revenues for U.S. corporations, but at the expense of U.S. consumers.

  • Mar 11th, 2010 @ 6:23am

    Risk-free downloading

    There is a certain "Duh! What did they expect?" element to this. I have no doubt that if we had a three-srikes law in the U.S., unauthorized downloading would spike. "Download all you can before the first strike." If people knew that the first time they got pulled over for speeding they would get a free pass, we would see more speeding. Yikes! Imagine a three-strikes law for murder -- everybody gets to get rid of at least one person during their lifetime. Investors in the copyight hodling companies who have pressed for these laws should hold management accountable for stupidity.

  • Mar 3rd, 2010 @ 5:22am

    Does Professor Craig Anderson cause aggression?

    As I read what professor Craig Anderson had to say, my heart started beating faster, and I felt more aggressive -- I found myself starting to clench my fists, and wanted to do something physical. I wonder if they could measure whether reading jackass reasearch studies causes aggression?

  • Nov 29th, 2009 @ 9:09pm

    Re: Re: Re: Price...

    No, no license is required for the retailer that owns the copies. That has been the law since 1909, before we even had consumer copies of movies, and was most recently reiterated in Section 109(a) of the Copyright Act of 1976. Popularly known as "the first sale doctrine," it provides that the owner of a legal copy can dispose of possession of that copy without the copyright owner's consent.

  • Nov 12th, 2009 @ 9:47pm

    Private toll booths on public roads?

    Paying people the public's money to invent and then letting them keep the public out unless it pays again is like hiring a contractor to build a public street and then looking the other way when the contractor sets up a toll booth on it.

  • Nov 12th, 2009 @ 9:40pm

    Slot car mods

    When I was a kid, slot car racing was the rage, whether serious types at a local commercial center, or using the home "Aurora" sets. What distinguished the leaders from the pack was the mod skill. Everyone could reach a pretty good skill level at driving as fast as the car and the curves would allow, but getting the car itself to go faster than the original design was the true mark of a champion. The fad no doubt would have passed a lot sooner if modding had been called "cheating" and a "no modding" rule was passed and enforced by copyright law.

    There is a reason they call them "games". Let the gamers play. If they don't like the way some players play, they will figure out their own home rules, and we are likely to see all kinds of variations emerge.