Copyrights, Trademarks, Patents, and branding irons

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zaratustra
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Re: Copyrights, Trademarks, Patents, and branding irons

Postby zaratustra » Sat Jan 23, 2016 3:54 pm

Well, if something -does- offend people, can the offended parties go to the trademark office and ask for a do-over?

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Mongrel » Sat Jan 23, 2016 4:55 pm

Thad wrote:I've been meaning to write about In re Tam since it came down, and now Randazza has a good article on it at Popehat.

tl;dr there's a band made up of Asian-American performers called the Slants, and their trademark application was rejected under the Lanham Act's prohibition on "disparaging" trademarks -- the same provision under which the Redskins trademark was recently nullified.

The Slants won on appeal; the court determined that trademarks are subject to First Amendment protections and the anti-disparagement clause is unconstitutional.

While I admit to some schadenfreude when the Redskins trademark was nullified, on balance I think this is the right call. I don't like letting government bureaucrats deciding what is and isn't offensive.

Or, as Frank Zappa put it:

Senator HAWKINS. Well, I might tell you that if you were to go in a toy store — which is very educational for fathers, by the way; it is not a maternal responsibility to buy toys for children — that you may look on the box and the box says, this is suitable for 5 to 7 years of age, or 8 to 15, or 15 and above, to give you some guidance for a toy for a child.

Do you object to that?

Mr. ZAPPA. In a way I do, because that means that somebody in an office someplace is making a decision about how smart my child is.


The reason for Randazza tackling this subject now is that the DoJ just issued a brief reading In re Tam as nullifying not just the prohibition on "disparaging" trademarks but also the one on "scandalous and immoral" ones.

Certainly, I find both prohibitions to be offensive under the First Amendment, but I can at least emotionally (if not Constitutionally) get on board with the government wanting to put its fingers on the scales of justice when it comes to opposing racism. But, as the In re Tam case shows us, when the government tries to do that, it usually does so with all the grace and logic of a Chris Farley character. Nevertheless, give them credit for good intentions.

On the other hand, the prohibition on "immoral and scandalous" trademarks was nothing more than a neo-Comstock attempt to legislate morality and to suppress sexual speech at the to serve illegitimate goals. One of my favorite law review articles ever was by Steve Russell, writing about the Communications Decency Act. He wrote:

By trying to regulate obscenity and indecency on the Internet, you have reduced the level of expression allowed consenting adults to that of the most anal retentive blueballed fuckhead U.S. attorney in the country. (source)


Every time I got a Section 2(a) rejection under the immoral and scandalous clause, I heard those words in my head, replacing "U.S. Attorney" with "trademark examiner." Today, perhaps, those examiners can go listen to Louie Louie, see if they find naughty words in it, and go whine to the FBI about it.


Well la-dee-FRICKIN'-dah.


A fun note about the Louie Louie thing, from a friend:
Monty wrote:Dave Marsh wrote a whole book about Louie Louie and the FBI's investigation of it. The punch line is that there really is cursing in the Kingsmen's recording; it's just not where they were looking because it's not in the lyrics.

(At 0:53 of the song, the drummer yells "Fuck!" because he screwed up and NO ONE INVESTIGATING THE SONG EVER NOTICED)

Can't say I'd fault them on that score - I can hear the shout just fine, but no way would I have ever figured out it was anything other than some generic rock-encouragement holler.
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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Fri May 06, 2016 11:58 pm

Well, THIS is depressing:

‘Zappa Plays Zappa’ Pits Zappa vs. Zappa

And a rebuttal from Ahmet: An Open Letter to My Brother

tl;dr the Zappa Family Trust owns the "Zappa Plays Zappa" trademark; Moon and Dweezil are both benificiaries of the ZFT but only Ahmet and Diva are trustees. Dweezil is angry that Ahmet wants a licensing fee for using the "ZPZ" marks; Ahmet claims that the fee is $1 per year plus an unspecified but "reasonable" percentage of profits.

The NYT article suggests that Ahmet is also demanding performance rights to the tune of $150,000 per song if Dweezil won't pay the fee, under a pretty dubious interpretation of copyright law. Ahmet denies that; he doesn't say anything about copyrights at all and says he's just asking for the same terms for using the ZPZ trademark that Gail put into place years ago.

All in all, it sounds like a pretty shitty situation. I think both brothers have done and are doing a great deal to preserve their father's legacy. I don't think that Dweezil should be inhibited in any way from continuing to perform Frank's music (I've seen ZPZ, I think, three times; it's a great show), but I also think it's entirely reasonable to kick some of the proceeds back to Ahmet to finance the preservation of the Vault.

And, y'know, on a basic human level it's about two brothers (and the two sisters, too, for that matter) fighting over the legacy of a father who they lost when they were young and a mother who they just lost last year.

What a revoltin' development.


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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Mongrel » Sat May 21, 2016 2:42 am

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby sei » Thu May 26, 2016 6:44 pm

Thank goodness. Fuck Oracle.
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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Sat Jun 04, 2016 4:57 pm

It's a good step in the right direction, but I'm still really hoping that another appeals court reverses the previous ruling that API's are copyrightable in the first place.

What we've got now is a precedent that it can be legal to copy somebody else's API. That's a good thing, and it's worth celebrating -- but it's not enough. What we need is a precedent that it is always legal to do so.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Fri Jul 22, 2016 9:58 am

It's been a long, long time coming: the EFF is suing the US government over the DMCA's anti-circumvention clause, on behalf of hacker Bunnie Huang (best known for hacking the original Xbox, currently seeking to design a product that will overlay content on top of HDCP video, and recently in the news for collaborating with Edward Snowden to create a device that will tell you when your phone is transmitting data) and Johns Hopkins security researcher Matthew Green.

EFF's legal argument is broad but straightforward: if speech is protected by the First Amendment, and you have to circumvent DRM in order to express that speech, then circumventing DRM is, in that instance, protected by the First Amendment.

They're not seeking to have section 1201 overturned entirely; if you broke DRM in order to copy and illegally redistribute copyrighted content, you'd still be guilty of both infringement and circumvention. But if you broke DRM to do something legal -- in Green's case, researching security issues -- then breaking DRM to do that would be legal.

Basically they're seeking a blanket exemption stating that 1201 can't be used as an end run around the First Amendment. No more petitioning the Library of Congress every three years and maybe losing the exemptions you've had for the previous three years.

Some good articles:

Doctorow: BoingBoing, Guardian

EFF: the complaint, Research and Remixes the Law Won’t Allow, Section 1201 of the DMCA Cannot Pass Constitutional Scrutiny, and an older post called Unintended Consequences: Fifteen Years under the DMCA.

This is going to be tied up in the courts for years, and may well go to the SCOTUS given its constitutional question. And we may not get the victory we'd like to see. But I expect that, at minimum, we'll see a ruling that no, companies can't go threatening to sue security researchers for pointing out flaws in their software.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Thu Aug 11, 2016 1:23 am

I'm surprised it took this long for the other shoe to drop, but another Sonic artist is suing Archie and Sega over ownership of 15 characters he created and the issues they appeared in.

The artist in question is Scott Fulop. Unlike Ken Penders, he was actually an employee of Archie at one point (an editor), but according to the New York Post he was a freelancer, not an employee, when he drew the issues in question.

So yeah, if he wasn't an employee and Archie forgot to make him sign a work-for-hire contract, then he's in the right here. And since it sounds like Archie's Mamaroneck office forgot to make anyone sign WFH agreements back in those days, he's not likely to be the last one to stake a claim, either.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Tue May 30, 2017 10:16 pm

EFF, Techdirt: SCOTUS unanimously rules that companies can't use patents to do an end run around first sale doctrine (with a dissenting vote from Ginsburg on an international aspect of the case).

As I understand it, it goes like this: Lexmark has a patented ink cartridge design. That prevents other manufacturers from making ink cartridges that infringe on its patent.

So far so good.

However, Lexmark also tried to use its patent, and a sale contract, to say that a buyer can't refill an ink cartridge he's bought, or resell it. Basically, it asserted that it could use its patent not just to control its ink cartridge design, but also to control what people were allowed to do with ink cartridges after buying them.

Supreme Court said no, that's not how patents work, and also that's not how selling things works.

Now, this is a ruling on patents, so it doesn't set any precedent for copyright, including the DMCA and its anti-circumvention clause. But it's hard to read Roberts's opinion without thinking of the ongoing John Deere/DRM/right to repair controversy:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits. Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain. And advances in technology, along with increasingly complex supply chains, magnify the problem.


The court's done a pretty good job of smacking down patent abuse over the past few years. I'd really like to see it do the same with copyrights.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Sun Dec 10, 2017 12:14 pm

Comic-Con International has won its trademark suit against Salt Lake Comic Con.

I think this is a bad result. "Comic con" is a generic, descriptive term, and variations on combining "comic" with "con" have been around since the very first comic book convention, the 1964 New York Comicon. The trademark should never have been granted.

SLCC is appealing; I hope they win on appeal.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Sun Jan 28, 2018 1:13 pm

We Shall Overcome recognized as public domain, thanks to the same team that sued over Happy Birthday. The suit over This Land is Your Land is still pending.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Mongrel » Sun Jan 28, 2018 4:54 pm

Oh wow, who would try to earn royalties on THAT?!

Also the same operation is trying the same nonsense with "This Land is Your Land", which I could only imagine would have Woody Guthrie laughing his ass off (and maybe offering a few sharp words for the idiots trying it).
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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Mon Jan 29, 2018 12:14 am

Mongrel wrote:Oh wow, who would try to earn royalties on THAT?!

The original purpose for registration was actually the opposite of that: Seeger registered it so he could prevent anyone from trying to make money off it.

Which is a noble goal and all, but well-meaning copyfraud is still copyfraud.

Regardless, even if you accept Seeger's copyright as legitimate (and it wasn't), Ludlow copyrighted it after he already had, and Seeger's copyright expired in 1976.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Sun May 13, 2018 1:18 pm

Bunnie Huang is crowdfunding a video device designed to modify video signals before output.

He's creating it, in part, to help establish standing for his lawsuit against the US government over the DMCA's anti-circumvention clause. As you presumably all know by now, the DMCA makes it illegal to circumvent a copy protection mechanism for any purpose (with a few exemptions, established every three years and only effective for three years at a time).

Huang's device operates as an example of what fair-use practices are and are not legal under the DMCA. It's got an encrypted mode which can overlay content (such as text) on an encrypted video but can't process any of the content of the video, and an unencrypted mode which can actually process and modify video. The key point for demonstration is this: if you've got an unencrypted video stream, it's legal to run speech recognition on it and automatically create subtitles. If the video stream is encrypted, it's illegal to do that.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Mongrel » Tue Aug 14, 2018 5:55 pm



#NotTheOnion
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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Sat Oct 27, 2018 1:30 am

EFF Wins DMCA Exemption Petitions for Tinkering With Echos and Repairing Appliances, But New Circumvention Rules Still Too Narrow To Benefit Most Technology Users

Motherboard has an article about how it relates to games specifically: Copyright Law Just Got Better for Video Game History

The new rules will be disappointing for average users who had hoped to get abandoned multiplayer games up and running again, just for fun. Albert told Motherboard that the Museum of Art and Digital Entertainment pushed to make these exemptions cover "affiliate archivists," allowing private citizens to contribute toward software preservation. "The Copyright Office specifically rejected that request," they said. "I think one of the things that they are concerned about is that the number of people who do this work should stay relatively small."

There’s also a catch for the institutions that do this work: Archivists and preservationists have to acquire the server code legally, and that’s a tall order.


So, as usual, the exemptions are a step in the right direction, but not a very big one.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Thad » Tue Jan 01, 2019 4:10 pm

We made it through 2018 without another copyright extension.

(Sort of. We did get the Music Modernization Act, which isn't perfect, but is, on the whole, mostly an improvement to the patchwork of state laws we previously had for sound recordings.)

So, for the first time since 1998, copyrights have expired. Today, works published in 1923 entered the public domain in the United States. (Again, with the exception of sound recordings.)

It's still possible that Disney et al could come back and push for another copyright extension before the copyright to Steamboat Willie expires in five years, but it's going to be a lot harder now than it was in the 1990s. The public is better informed and better organized on this issue than it was in 1998, and this is one area where Congress's total dysfunction works to our advantage.

Timothy B Lee at Ars makes an argument that I'm inclined to agree with: the rightsholders are probably going to give up on extending copyright, and instead shift tactics: you might start seeing a lot more non-Disney Mickey Mouse merchandise, but the makers had better be damn careful not to incorporate elements from cartoons that are still under copyright, and they're going to want to be careful about just how they use the "Mickey Mouse" trademarking on the packaging.

Course, we've already seen some examples of how this looks; ever go to the store and see a DVD with a bunch of old, public-domain Superman, Popeye, et al cartoons on it? Smart distributors are careful to note that those characters are still under copyright and trademark, and selling these public-domain shorts does not imply any official endorsement by their rightsholders. Expect to see a lot more stuff like that in the coming years, but with Mickey Mouse cartoons included.

Expect more ridiculous legal claims, too -- like when the Doyle Estate claimed that Sherlock Holmes is not public domain because the last few stories are still under copyright, or when the Burroughs Estate claimed that Dynamite's Warlord of Mars and Lord of the Jungle comics infringed its trademarks on John Carter and Tarzan, despite those names not actually appearing in the titles of those comics. This is a big win, but there's still plenty more legal fuckery to come.

And I'd say we're still at least 20 years out from having legislators who are willing to talk about decreasing copyright terms.

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Re: Copyrights, Trademarks, Patents, and branding irons

Postby Mongrel » Thu Jan 17, 2019 10:34 pm



Sure, it'll probably be overturned on appeal, but this is still hilarious.
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