Wednesday, April 23, 2003

Trademark Ramifications of Spoofing Continued This will be interesting. Madonna has reportedly uploaded "decoy" files to peer-to-peer networks, in order to discourage piracy. Users who believe that they are downloading Madonna's new album receive instead a recorded admonition from Madonna herself advising the user to respect the copyright in her work (not precisely in those words). When the record companies began 'spoofing' the P2P networks, I wondered aloud what precisely might happen if it became known that an artist was disseminating low-quality or no-quality versions of one's own work under one's own trademark, and I referred to one possibility as self-tarnishment. Well, from a branding point of view (which is what I had in mind when I said what I said), we are seeing something of a backlash against Madonna. Look at the comment thread here filled with threats never to buy her records again. Also, her website has been hacked. Whether she makes this back with re-gained sales, hard to tell. The trademark analyis is more complex. This assertion that Madonna is possibly abandoning her mark may go too far. In any event, how Madonna could be said to abandon her mark to the point that she couldn't prevent another recording artist from naming themselves Madonna is hard to imagine. The trademark analysis may hinge on the legality of a 'normal' transaction on a peer to peer network and the user's expectations. When someone is downloading a copy of an album from a peer to peer network, and they believe that they are downloading an unauthorized copy of a copyrighted work (or have an objectively unreasonable belief that they are authorized to download the work), is that transaction even considered to be lawful commerce? Does the law protect infringers from being deceived? On the other hand, if these P2P transactions are legal, well, then, the spoofer might have some problems, trademark and otherwise. [The Trademark Blog] I love reading these law blogs! It's like reading Scientific American, not really getting it all, but at lest understanding the implications. 1:02:20 PM

Tabacco Company Tells it Like it is Licensed to Kill is the name of a new tobacco company founded in Virginia on March 19,2003. Whether it will ever really sell tobacco is another story. The company was founded simply to prove how easy it is to set up a corporation whose charter might not be all that welcome if the truth was actually told. Sure, it's kind of a spoof. Here's a clip from their corporate statement: "Licensed to Kill, Inc. is a tobacco company. We knowingly kill people for profit. And we're proud of it. In fact, it is the explicit aim of our corporation. Just check our articles of incorporation. We're not like other tobacco companies that try to obscure what their business is about. If you market cigarettes, you market death. It's that simple. In a country which effectively allows corporations to be formed without regard to their purpose, corporations are allowed to kill people to make money. Addiction to cigarettes may be lethal, but profiting from spreading death is perfectly legal. Truthfully, as a corporation, we couldn't care less about the health hazards of smoking our products. Our bottom line is and always will be boosting profits for our stockholders. That is, after all, what corporations are about. You could say that we're 'addicted to profit.' " Clever. [Adrants] God bless freedom of speech! Sometimes you have to go over the top to make your point. 12:13:33 PM

The good that MIT does I met Berkeley CS Professor Christos Papadimitriou yesterday. He told me an extraordinary story (which he allowed me to share). Papadimitriou is publishing a book this summer with MIT Press. The book is a novel titled Turing. As Papadimitriou describes it, in one chapter he has a single line from about a dozen rock-n-roll songs. The editors at MIT press decided to seek permission for each of the 12 comments single lines. They sent out 12 letters. They received 10 forms (which had to be completed before the request could be considered) and two replies. One reply, from the representatives of the Kinks, demanded $1500 (corrected) for permission to reprint a single line "help me, help me, help, me sail away" from the song "Sunny afternoon," and $10,000 for a more extensive quote. The other reply, from representatives of the Kobain estate (which I assume is within Courtney Love's control) forbids him from reprinting the line "polly says her back hurts" from the Nirvana song "Polly." MIT has nonetheless decided that these words are protected by fair use, despite these demands. That is rare in this business. Publishers are among the most conservative "fair users" -- not because they don't believe in free speech, but because they understand the burden of non-free lawyers. If a lawsuit is filed against a publisher for copyright infringement, the cost of answering the complaint can suck up the total profit from the book. Thus, however generous the Supreme Court thinks it is when it defends "fair use," the relevant "fair use" is the freedom publishers permit. It is a great thing that publishers like MIT can help set the standard. The law should make it easier for others to do the same. [Lessig Blog] In case this missed your radar last month, I'm clearing out my overloaded drafts folder... a big Hazah! to MIT for calling "bullshit" on our apparently diminishing fair use rights. But will it be hauled into court to set a legal precedent? 11:51:37 AM