Inkwell: Authors and Artists

    
Hi Wendy.

I'm normally a committed distributor of gloom and doom, but I worry
less than you that the copyright lobbies will use this as an
opportunity to slide a new law past Congress.  For one thing, Congress
really has taken copyright and other domestic initiatives off the table
temporarily while it deals with the emergency.  The same committees in
Congress that handle copyright have jurisdiction over the Justice
Department, the FBI, and immigration, so they're keeping busy.  My
other reason is that I don't think the copyright lobbies *need* to
operate by stealth -- Congress is normally delighted to cooperate.

Right now, I'm more worried that someone who isn't a copyright lobby
will use national security concerns to persuade Congress to pass a law
that's analogous to Senator Hollings' "Security Systems Standards and
Certification Act" (see # 22), but recast to facilitate law enforcement
activities, and then we'll be stuck with it.
  

    

I just went back to #22 and took another look at the text of the bill
Sen. Hollings was said to be planning to introduce. Even in light of the
last nine or ten days, it is still horrifying.

Is it commonplace for a law to spell out so plainly that its purpose is to
facilitate the negotiations of two groups of private parties with not so
much as lip service to the public interest? (And that throwaway about
time-shifting on your VCR does not rise to the level to any expression of
concern about the public interest as such.)
  

    
It has become much more common with copyright and communications laws
in the last ten years.  Congress would prefer that the industry groups
resolve it among themselves.  Industry groups need an antitrust
exemption to do so, so Congress writes one right into the statute. 
(The antitrust exemption isn't merely formal; I'd argue that the
purpose as well as the  effect of most inter-industry-negotiated
regulation is a restraint of trade.)  Meanwhile, the interests who get
seats at the table are named in the statute and outsiders (consumer
groups; promoters of open source software and other competing
technologies) don't get chairs.
  

    

Jessica, this is all so discouraging. 

Are there really no potentially responsive pressure points in this
process? 
  

    
Of course there are hopeful pressure points.  One of the most
important is press and media coverage.  Lots of journalists in this
country appreciate the problem, and they've begun to persuade their
editors that there's a story here.  The more publicity these backroom
deals get, the bigger the PR problem for the industries making the
deals and the politicians enacting them.  Even people who don't care
much about the underlying copyright and civil liberties issues tend to
get upset about the process of letting Disney and Sony decide for us
whether we can make fair use.
  

    

If you had a one-page ad in the NYT and USA Today, and you wanted to
convince ordinary citizens that they had an important personal stake in
fair use and related issues, even though they had possibly never given
much thought to the subject, what would you say?
  

    
I think that's a question I'd like to ask the people here.  What could
we say that would be salient to people who assume that copyright laws
protect authors, allow the public great freedom to make personal or
noncommercial uses, and burden only pirates?  What could we say that
might persuade people who don't much think about copyright law at all?
  

    

  I just discovered this discussion.  Very stimulating reading.  I'm not
particularly involved in the area professionally but it has been kind of a
hobby of mine for a dozen years or so.  I am looking forward to reading
"Digital Copyright".

  I don't have an image for the perfect "your brain on drugs' ad that will
turn America around on this issue.  Wish I did.  But I do think that the
point where we went wrong stems from the Chicago School Law
and Economics doctrines.  The global reach of the idea that justice will
be served if you assign property rights and step back has to be addressed.

  My own opinion is that intellectual property as a legal construction (as
opposed to trade secrets which go back as long there has been trade) is
pretty much about monopoly as a tool for generating capital.  In the
American context anyway (I am have heard various arguments about the
causes and effects of the European moral rights doctrine) the
right of the creator to the fruits of her labors sure doesn't seem
to have been anything more than an argument of convenience. 

  That said the rights of the artist has certainly been part of the
rhetoric from the start. Mark Twain trying to control the publication of
Tom Sawyer and so on.  So, the successful ad will address the question of
whether Mark Twain gets his royalties.  But I think it also must somehow
suggest that there is a community benefit that must be protected from the
property rights absolutists. 
  
  

    

  I think that #58 reveals a deep misunderstanding of how property
rights figure in all of this.  What we have is a situation where
the rights to intellectual property have been abused, displaced,
and manipulated to the great advantage of corporate media and to
the great detriment of both authors and the public.  We need to
rebalance things, and we can't do that by foolishly attacking the
property rights paradigm.
  

    

Meanwhile, I wanted to share this tidbit I picked up in biz:


Topic 197 [biz]:  Microsoft Antitrust Litigation, continued
#855 of 858: However, nothing the details can only be obtained
(biscuit)      Fr
i Sep 21 '01 (11:26)     8 lines

 Here's one way to try influencing public opinion:

   http://slashdot.org/articles/01/09/21/1438251.shtml

 According to this tidbit, the FrontPage 2002 license reads in part:
 "You may not use the Software in connection with any site that
 disparages Microsoft, MSN, MSNBC, Expedia, or their products or
 services..."

Topic 197 [biz]:  Microsoft Antitrust Litigation, continued
#856 of 858: quack quack QUACK QUACK (jstraw)      Fri Sep 21 '01
(11:27)     1
line

 <sprays diet coke all over monitor>

Topic 197 [biz]:  Microsoft Antitrust Litigation, continued
#857 of 858: Get your free lobotomy here (mthomas)      Fri Sep 21 '01
(11:40)
   5 lines

 "You may not use the Software in connection with any site that
 disparages Microsoft, MSN, MSNBC, Expedia, or their products or
 services, infringe any intellectual property or other rights of these
 parties, violate any state, federal or international law, or promote
 racism, hatred or pornography."

Topic 197 [biz]:  Microsoft Antitrust Litigation, continued
#858 of 858: quack quack QUACK QUACK (jstraw)      Fri Sep 21 '01
(12:02)     3
lines

 wow

 enforcable?
  

    

  Good grief, what idiots wrote *that*??!   I hope whoever they are,
they get slapped down really hard for that bit of stupidity.
  

    
Why is anyone surprised that a convicted criminal company does
bad things in more than one area?
  

    
Mr. Poskanzer, I'm delighted to meet you.  I've been using your
acme.com website as an example in my trademarks class for five years.

Are license terms like this one enforceable?  Maybe yes, although I'm
not aware of any court that has yet enforced one.  In the few states
that have adopted UCITA, my understanding is that they may well be. 
The anti-circumvention provisions of the DMCA add another wrinkle --
the argument is made that the license terms are part and parcel of the
access-protection that prevents use of the program until you click "I
agree", and that therefore violating any term of the license agreement
is illegal circumvention of an access protection device.  

I would hope that a court faced with a lawsuit invoking this term
would find a way to refuse to enforce it.  Still, as we know,
threatening a lawsuit works exceptionally well, even if the suit is
never actually filed.
  

    
I hope acme.com is a *good* example!
  

    
It's an excellent example!
  

    

Could you say more about that, since I'm not familiar with the site or how
it could be used as an example for trademarks, Jessica?
  

    <scribbled>
  

    <scribbled>
  

    
I apologize for scribbling my responses 67 & 68.  I'm having technical
problems with the interface:  my responses come back duplicated and
garbled.  

What I said was this:  I had read Jef's question to ask, among other
things, whether I'd been telling my students that he was courting
trouble under the trademark law.  So I answered his question the way I
did mostly to tease him.  In fact, I waited a decent interval and then
sent him a message telling him that no, I didn't.

Jef registered acme.com back in 1991, when folks were registering
domain names just because they liked them.  (He's a fan of Warner
Brothers cartoons.)  He uses it as a personal home-page, and has over
the years added some material related to his freelance business.

In the mid-1990s, trademark owners discovered domain name space, felt
they were entitled to claim it as their own, and staged an infamous and
mostly successful takeover campaign.

My students tend to come to the issue with the conviction that
trademark owners should be able to do business from a site at
www-dot-trademark-dot-com, and should moreover be able to oust whoever
got there first.  My job is to change their minds about that.  Asking
them to articulate why Acme plate glass or Warner Brothers ought to be
able to kick Jef off of acme.com is a useful step in that process.
  

    

Ah.  Has Warner Brothers attempted to give Jef the boot?
  

    

That is a good question. 

Thinking about it, I guess my view tends to be that if the most
famous use of a wordmark is in fiction of some kind (i.e. Road Runner
cartoons), particularly if the word is in the dictionary, it is not
exactly the same as trying to register "www.adidas.com" for example (I
don't use nike.com as an example because Nike has historic and
mythological meanings). 
  

    
Warner has attempted to buy acme.com twice, but have never attempted a
takeover.  Since they copied the use of Acme as a mail-order catalog
mark from Sears Roebuck, their claim on it would be pretty dubious.

I actually agree that trademark owners ought to automatically get a
corresponding domain name.  I just don't agree that <trademark>.com is
that name.  The domain name space should have been sliced up into one
more level of distinction.  Instead of distributing xxx.com names
directly, those second-level names should have been reserved for
subject-specific second-level registrars.  Companies could then go to
them for third-level names.  This would have left a lot more room for
holders of the same mark in different business areas to all get their
own domain names.  There's some indication in the early domain-naming
RFCs that this was 'the original intent of the founders', but
unfortunately no one got around to implementing it before the explosion
in name registration, and then it was too late.

Nevertheless I have been doing my own little part to advance this view,
by giving away third-level name registrations under acme.com.  Any
Acme business is welcome to have an xxx.acme.com name free of charge.
  

    
I expect that part of the problem is that trademark owners often
believe their marks to be more distinctive and famous than they
actually are.  A couple years ago, for example, the company that makes
"White House" brand apple juice went after Dan Parisi, who operates a
sexually explict site at whitehouse.com, arguing that anyone who
visited whitehouse.com was, of course, looking for the company that
makes the famous "White House" brand apple juice.  
  

    

In the first wave of reverse domain-name hijacking, I was working for
EFF, and I would get calls from many people, every day, who wanted
help defending their possession of a domain name against a trademark
holder who wanted to either force the sale of the domain name to
it or was threatening a lawsuit to compel the turning over of the 
domain name.

Often, the person holding the domain name had an excellent case for
keeping it, but no money to speak of, which meant he couldn't afford
to show up in court to make that excellent case. In such cases, my
advice often had to be "Accept their first offer." At least that way,
the domain-name holder might get something out of losing the domain name--
if he was sued, and the trademark holder had a colorable case, the
trademark holder would win and the domain-name holder would end up with
nothing.

Of course, now the Cybersquatting Act has been passed, with the perverse
consequence that a domain-name holder must not even offer to sell the
domain name to the trademark holder -- that in itself is evidence of
cybersquatting, supposedly!  
  

    
It seems to be turning out that bad copyrighnbt law in the wake of recent
events is the least of our troubles; it seems as though every piece of bad
law we've fought against on civil liberties grounds for the last ten years
is being dusted off and scheduled for an attempted ramming thorugh while
people are still in shock.

wg