Re: Copyrights, Trademarks, Patents, and branding irons
Posted: 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?
Hold on to your butts.
https://brontoforum.us/
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.
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)
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.
Mongrel wrote:Oh wow, who would try to earn royalties on THAT?!
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.