Posts archived in IP in the Digital Age

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April 15, 2009 — Patrick D

Googlejuice?

Image courtesy of http://cssjockey.com.

Image courtesy of http://cssjockey.com.

Since Google.com’s inception in 1998, the search engine has quickly grown to become a part of the everyday vernacular.  A few years ago, both the Merriam-Webster and the Oxford English dictionaries added the term “google” to their official list of English words, as it had become clear that the world-famous brand name was more than just your garden variety “fanciful” trademark.  “Google” is widely used today as a verb, sometimes referring to use of the search engine itself — “Heyo, I googled that guy we met last night…Bad news…” — and other times simply a slang replacement for “to search for” — “I’ve googled all over the house for my shoes and can’t find them anywhere…” This use of “google” with a lowercase “g” has manifested a heap of issues for the company’s lawyers, as its induction into the realm of “generic” terms threatens to loosen their grip on the beloved trademark.

William Fisher’s “Overview of Trademark Law,” explains that “[a] word will be considered generic when, in the minds of a substantial majority of the public, the word denotes a broad genus or type of product and not a specific source or manufacturer.”  It is a phenomenon some have called “genericide,” whereby a trademarked term is legally demoted from “trademark” status.  Genericide has taken the corporate soul out of many former trademarks, most of which we don’t even recognize today as brand names: xerox, thermos, kleenex, rollerblade, band-aid, among countless others.

Many of these companies have taken action to prevent the demise of their trademarks, but to no avail.  An article from the LA Times points out that the lyrics of one of the most famous commercial jingles, the one created by Johnson & Johnson for their brand of sticky bandages known as “Band-Aids” — “I am stuck on Band-Aid brand ’cause Band-Aid’s stuck on me” — includes the word “brand” not just because it’s cute when little kids try to pronounce it: it was also a desperate effort to emphasize that “Band-Aid” is, in fact, a brand.  The same article points out that Xerox Corp. embarked on a similar campaign to reduce the frequency of their trademark “xerox” as used to refer to the act of photocopying.  Google, aware that it might soon fall into the same boat as the others, has begun shooting off C&D letters to websites like WordSpy who appear to be perpetuating Google’s non-brand-specific usage.  Here’s a screenshot of WordSpy’s official definition of the term:

snapshot-2009-04-15-11-50-27
Noteworthy is that this definition, unlike those located in the OED or Merriam-Webster, pushes the generic usage, adding the phrase “particularly by using the Google search engine” as a kind of afterthought.  Originally, no mention of Google (with a capital “G”) existed, until Google’s C&D letter requested that WordSpy remove or modify their definition “to make sure that when people use ‘Google,’ they are referring to the services our company provides and not to Internet searching in general.”  A special note now follows the WordSpy definition: “Note that Google™ is a trademark identifying the search technology and services of Google Technologies Inc.”  Despite their shout-out to the Google trademark, however, the site goes on to offer citations “illustrating the more general sense of the verb.”  What is more, WordSpy includes a slew of other new terms that have been inspired by “google as a verb.”  Some noteables:

“fridge Googling” – pp. Running an Internet search based on some or all of the contents of one’s fridge, looking for a recipe based on those contents.
—fridge Google v.

“googleability” - (goo.gul.uh.BIL.uh.tee) n. The ease with which information about a person can be found on an Internet search engine, particularly Google.  Also: Googleability, googlability, google-ability.
—googleable adj.

“googleverse” – n. 1. The products, services, and technologies belonging to or associated with Google Inc.  2. Web pages, newsgroups, images, and other content indexed by the Google search engine. [Blend of Google and universe]

and my personal favorite,

“googlejuice” – (GOO.gul.joos) n. The presumed quality inherent in a Web site that enables it to appear at or near the top of search engine results, particularly those of the Google search engine. Also: Google-juice, Google juice.

As with the definition of “google” itself, all of the above terms subtly push for genericness, clearly preferring to use the more general phrase “Internet search engine.”  Unfortunately for Google, in the face of this seemingly viral usage of its brand name in everyday speech, its lawyers really have no legal recourse.  Genericide is simply a social phenomenon with legal implications, manifested by a world where widespread communication leads to widespread notoriety.  I suppose today’s internet companies, if they wish to keep hold of their trademarks, ought to be careful what they wish for before dumping millions of dollars into becoming “a household name.”  Google must now struggle under the weight of its own astonishing popularity, or risk witnessing the end of legal protection for one of the world’s most recognizable trademarks.  One might argue that Facebook and Wikipedia are on the same course, though the terms so far have managed to refer only to their websites.  Still, the risk is in sight.  How many times have you said, “Dude, I got NO work done last night.  I couldn’t stop Facebooking,” or, “Seriously, Wikipedia that s***.”  The era of internet verbification has begun.  As a kind of ironic harbinger, Wikipedia itself even features a page devoted to the use of “google as a verb.”  I won’t link you, though.  Just google it.

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March 4, 2009 — Brian L

DRM and the First-Sale Doctrine on the Kindle

Courtesy: Matt Buchanan/Gizmodo

Courtesy: Matt Buchanan/Gizmodo

I am both an avid bibliophile and an unabashed gadget guy.  I had been waiting to buy the Kindle for months and bought the device minutes after Jeff Bezos announced it in New York City at a Macworld-esque event. Before my Kindle even arrived I read an article in Businessweek that made me realize that Kindle would not only change the way in which I read books, but also, thanks to the DRM, what I could do with my books.

Ever since elementary school, I would swap books with friends and lend books for extended periods of time. No one would question the permissibility of this practice, as the first-sale doctrine, enshrined into the 1976 Copyright Law (Title 17, Chapter 1, § 109)– after being upheld by the Supreme Court since 1908—which states “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Meaning after I buy a book, a movie, or any other copyrighted item, I can do whatever I would like with that material with the exception of duplicating it; I could sell it, lend it, trade it, rent it or even throw it out the window.

The DRM on the Kindle limits what I can do with a book after I purchase it; I can read it on my device, transfer it to another Kindle registered to me (seriously—why would anyone need multiple Kindles? Maybe if I had a family or something…), or perhaps, as of today, transfer it to my iPhone. This is it. I will not be able to do with my eBooks as I see fit. I am very much in agreement with the EFF’s opinion that “readers should not be asked to give up their first sale rights, whether their books are digital or made out of paper.”

As the readings suggest, DRM protection is a complicated issue with many arguments for and against. However, what I find particularly problematic is the way in which DRM is impinging on my freedom to invoke my first-sale rights to the books I have purchased. As Wildstrom acknowledges in his Business Week article:

The same can be said about the DRMs that protect downloaded music (where DRM seems to be dying), videos, and games. But those don’t have the same emotional effect on me that DRMed books do, probably because the trade in used books has been an important part of our culture in the way that selling used audio or video recordings has not. Our culture would certainly be much poorer without Powell’s Books in Portland, Ore., or Witherspoon Books in Princeton, N.J., or Manhattan’s Strand Bookstore.

For all of us Yalies who regularly lend or sell books—especially ridiculously priced textbooks after we have used them–the notion that we, for example, couldn’t transfer an Economics textbook purchased on the Kindle to a friend taking the course next year or exchange our copy of Freakonomics with a friend’s copy of Outliers seems unfathomable. Not to mention the fact that there are ways in which I can legally share DRMed music purchased on iTunes by burning the songs to a CD, for instance; there is no equivalent process on the Kindle.

Some probing into the End-User Licensing Agreement (EULA) for the Kindle reveals something that seriously undermines my previous claims about the first-sale doctrine. Even though I click “Buy now with 1-click” on the “Kindle Store” to purchase books, Amazon does not consider the transaction to be a sale in the traditional sense, meaning the first-sale doctrine would not apply. Instead of selling me a digital “copy” of the book, “Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use.” Apparently, Kindle users never buy books, they just license them under a restrictive set of conditions. The EULA then stipulates, “Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content. ”

Fortunately, Amazon’s view that purchasing an eBook merely grants consumers a license rather than ownership of a product could be challenged. Columbia University Law students quoted on Gizmodo argue, “Just because Sony or Amazon call it a license, that doesn’t make it so…That’s a factual question determined by courts…Even if a publisher calls it a license, if the transaction actually looks more like a sale, users will retain their right to resell the copy.”

While there is no case law on applicability of the first-sale doctrine to e-books, there have been cases regarding computer software, which resembles e-books in that companies claim the software is being licensed, rather than sold. In Vernor v. Autodesk Inc. (2000), the court stated that despite a claim that the software was being licensed, it was actually sold since there was no expectation that it would ever be returned; hence, the purchaser has the right do do as he sees fit with the software.  In Davidson & Associates v. Internet Gateway Inc (2004), a similar case regarding the status of software heard in the District Court for the Eastern District of Missouri, however, the Court held, “The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement.” Given the disagreement in the district courts and the fact that the digital content seems to be the way of the future, perhaps the Supreme Court will grant a writ of certiorari to one of these cases on appeal and decide the law of the land.

While EULAs may be struck down by the courts, as Proessor Lessig’s blog post earlier this week about public domain books with DRM restrictions suggests, there is nothing to indicate this would spur a change in the DRM restrictions. Since dismantling the DRM would constitute illegal circumvention under the DMCA, it would still be impossible for someone to legally invoke their first-sale rights to digital books. As we read in Lessig’s Code 2.0 earlier this semester, there are four different ways in which digital content can be protected; with respect to the Kindle, Amazon is using redundant means–both a EULA (a legal contract) and DRM (code)– to restrict the use of its content so it could still retain control in the event that one fails.

The first-sale doctrine has an additional complication when we are discussing digital content such as e-books. Wildstrom states the obvious, “Digital books don’t get dog-eared or marked up and their bindings never break, there’s no reason not to prefer a “used” e-book to a new one if its price is less.” Typically, there is price discrimination in the book market and those with can afford to pay price for their books, have a strong preference for new, crisp unmarked pages, or need a book immediately will shell out for a new copy, while others can opt to save money on a used copy in worse condition. It is difficult to imagine how publishers and authors would maintain constant revenue streams if there were no incentive to buy new books and used e-book markets on the internet featured the exact same books available on the Kindle store for much less money. As Wildstrom goes on to say publishers would have serious qualms about allowing Amazon to license their books if it could result in the loss of so much revenue. Currently, there are two major waves of book sales, for best sellers, at least—hardcover releases and paperback releases. However, if e-book readers proliferate and more and more people begin reading on devices like the Kindle, there could be a wave of people buying a book after it is released. If people could sell or transfer their books, presumably charging less money than a new eBook, people looking to buy a book for less could simply get the book from a friend or on a marketplace.

There are some solutions to this predicament. A middle ground could be reached in which limits are imposed on the number of times a book  can be transferred and transfer fees or listing fees could be assessed that would give Amazon and/or the publishers money each time a book changes hands (as “Eric” suggests in his comments on Wildstrom’s piece). Alternatively, Amazon could “rent books” for a limited time at a cheaper price point than purchased books, which could cause people looking to save money to pay for a rental instead of buying a second-hand e-book. Some software (e.g. SPSS Statistics) can be rented on a semesterly basis for students wishing to save money instead of purchasing the full version. The relative ease of renting an e-book verses purchasing an e-book from someone else could keep the flow of revenue moving even if Amazon relaxed its DMA to allow people to invoke their first-sale rights.

Speaking of the first-sale doctrine in the digital age, the Freakonomics blog on the New York Times website featured Questions and Answers with Professor Lessig the other day. In response to a question about the first-sale doctrine, Lessig said:

The First Sale Doctrine represents an important principle forgotten by copyright extremists — that copyright “protection has never,” as Justice Stevens put it in the Sony Betamax case, “accorded the copyright owner complete control over all possible uses of his work.” But in my view, to restrike a proper balance in the digital age, we need to move away from an architecture of copyright law that triggers regulation upon the copy. Instead, copyright law needs to focus on the economically relevant acts that need to be regulated to create the incentives copyright law should produce — and not on the (impossible, self-defeating, and absurd) objective of regulating every time a computer “copies” a work.”

Then question then becomes, what are these economically relevant acts?

Your thoughts?

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February 24, 2009 — Tyce W

Hyping the Hype Machine

(Photo courtesy of The Hype Machine)

(Photo courtesy of The Hype Machine)

I was first introduced to The Hype Machine by a music collecting, risk averse friend who assured me that this was the only legal way to get free music. Unlike traditional P2P services, in which individual computers connect to each other directly in order to swap files, Hype Machine is a blog aggregator. Basically, Hype Machine’s software scours the net for music blogs, especially those hosting MP3’s. Users can then search Hype Machine for particular artists or songs, or they can use the site to check out what’s currently popular. The site maintains a compound RSS feed of blogged tracks, so visitors can listen to songs streaming on the website, visit the original posts on the various music blogs that Hype Machine aggregates (where the songs can often be downloaded directly from the blogs), or travel to Amazon or ITunes where they can buy the songs they’re listening to.

In effect, the entire internet becomes a kind of P2P network. And unlike traditional P2P software, record companies can’t easily track who’s listening to what. Napster, Kazaa and Pirates Bay were for chumps, my friend told me – this was the future of music online.

Of course, things turned out to be a bit more complicated than that. Hype Machine might be legal, but then again it might not. It’s one of many descendants of the original P2P services that operate in a legal gray area. Its creators have learned from the mistakes of Grokster, Kazaa, and others, and they take great pains to emphasize that the site is not intended to encourage infringement. Users are constantly told to legally purchase the songs they listen to, and the site’s legal disclaimer insists that its creators “can’t be responsible for what people post on their blogs.” The site’s creators are also quick to point out that they make most of their revenue from users who follow links on the site to ITunes or Amazon to purchase music (they receive 5% of all such sales).

But the site does not only point users towards blogs. In order for Hype Machine to make the songs available on the site, it mirrors the MP3’s passing through, makes copies, and then puts them online at URL’s of its own. This is the only reasonable way to allow large numbers of users to listen to the songs without overwhelming the hosting blog or running up a massive ISP bill for them. To minimize legal trouble, Hype Machine hides the files at URL’s that are never made public. This way users cannot simply download the MP3’s to their computers via Hype Machine’s servers.

Lately, though, creative programmers have been writing scripts that allow users to find the URL’s where tracks are hidden and download them to their own computers. One blogger created such a script and posted it, only to remove it the next day at the request of Hype Machine’s founder, who feared legal repercussions. Other scripts have since been written, and efforts by Hype Machine to block such programs have had limited success.

It seems unlikely that the ability to download tracks, as opposed to merely stream them, would significantly impact the legal status of the site. But a good faith effort to prevent such downloading might show an absence of infringing intent (something that is vital in the aftermath of the Supreme Court’s decision in the Grokster case). And it might prevent lawsuits by convincing copyright holders that the website is merely providing free advertisement, rather than cutting them out of a market.

Still, there are significant reasons to worry about Hype Machine’s future. Presumably, Hype Machine hopes for safe harbor under Section 512 of the DMCA. In their copyright notice they inform readers that copyright holders may follow the procedures outlined in Section 512 and notify the site’s creators, who will remove offending links. But critics may argue that the site actively seeks out music (much of it copyrighted), mirrors it, and stores it on its server, rather than merely acting as a gatekeeper and allowing users to upload content themselves.

Certainly, if Viacom’s pending action against YouTube is successful, there is no reason to believe that Hype Machine would fare better. Like YouTube, Hype Machine responds to chilling notices but does not employ software to block copyrighted material. Its popularity as a site is due in no small part to the presence of infringing material, and it does not seem to have a policy of terminating infringing users.

For now, Hype Machine provides a valuable service to thousands of users, allowing them to discover new music, read about artists they enjoy, and even download files that they would otherwise have to pay for. So use it while you can – it may not be around forever.

5 comments

February 10, 2009 — Adi Kamdar

Open: Why scientists should support open access

Photo by Gideon Burton via flickr

Photo by Gideon Burton via flickr

Congress is… odd. They introduce odd bills sometimes. But one bill, introduced to the house last week (February 3) by John Conyers, is especially odd… and kind of scary when it comes to open access. The bill has made publicknowledge.org angry because it removes the policy of the NIH that ensures taxpayer access to taxpayer-funded research within 12 months of the research’s publication. Why the heck would Conyers do this?

Supposedly he was just angry that the House Appropriations Committee bypassed the House Judiciary Committee when creating this policy. Conyers thought this was an issue of copyright. And it is… just… like the publicknowledge blog post says, it doesn’t change copyright law at all. Scientists are simply made to work within existing copyright law and put their research online, making it publicly available. I don’t know what Conyers was thinking, but scientists should be all for open access.

Why?

Well, first of all, let’s go through what open access is. Open access (and A2k, Access to Knowledge) means that certain resources, mainly journals and scholarly texts, are freely available to the public. Anybody can use the information posted (online) to learn, write a paper, or conduct further research–as long as he or she attributes the original author(s).

Open access is one of those pro-participation things that, really, would make the world better. Jack Balkin, a leader in the movement, notes how A2K is a human rights issue because of its ability to increase health, education, scientific progress, and more.

Today, I went to a talk by Victoria Stodden, who’s a post-doctoral fellow at MIT Sloan School of Management and a fellow with Science Commons. I semi-liveblogged it, but I’ll summarize and go through points that she mentioned.

Basically, scientific communication and publishing isn’t taking advantage of new technologies–as much as scientific research is. Stodden focused more on computational science–not experimental or deductive–based on simulations and modeling. Scientists, when they publish reports, almost never publish their codes or algorithms… which results in low reproducability, even from the scientists themselves!

Science is built on the idea of peer review. This is why open access makes so much sense. As we’ve seen with open source software, putting ‘code’ out in the open and letting others work on it leads to such progress. Scientific works, though, fall under copyright law and are copyrighted automatically, leading to unnecessary IP issues.

Stodden mentioned the purpose of copyright–and we’ve read it many times–is to prohibit copying and provide incentive to create. This–at least the former part–seems antithetical to the fundamentals of science. She proposed that scientists should release published reports under a CC BY license and code under a type of BSD license, modified to include attribution.

This is essentially what the NIH is having scientists do. Sites like PLoS are online journals that champion open access and allow scientists to publish their works with a CC BY license.

Now why would a scientist do this? And why doesn’t the use of scientific works fall under fair use? Well, it might, but we all know how ridiculous fair use is. Also, fair use is using something and not diminishing the value it has to the original copyright holder. Well, as Stodden mentioned, the value for scientists is attribution. And really, an open access system would be awesome for attribution purposes–by publishing your work to the commons, the number of derivative articles that would cite you would increase manyfold. The problem she mentioned is that, in certain cases, tens to hundreds to thousands of scientists could have input on a single paper. But, with newer technologies, this shouldn’t be a problem–one could simply utilize attribution tags of the power of search engines, etc.

In all, this is better for scientists and better for the world in general. Congress, by introducing that bill, is being really silly. And backwards. And potentially harmful to our scientific progress. If anything, they should expand the policy of open access to organizations like the National Science Foundation, which currently funds a lot (if not most?) of research. Unless this has already been done as per this recommendation.

Also, here’s the site for the Alliance for Taxpayer Access and SPARC, because they’re relevant.

-Adi

This is the PS section. Basically, I wanted to either blog about this, the Google Book Search project, or the recent wikileaks posting. I’ll talk a little about the wikileaks posting. Notorious recently for posting Scientology documents and hacked pictures of Sarah Palin’s Yahoo account, the website just posted a billion dollars worth of Congressional Research Service reports. These reports, generated in secrecy (kinda) for Congress, are non-partisan, full of data, and in the public domain(!). However, because they’re generated for Congress, people don’t normally have access to them. Now they do. Hooray!

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February 3, 2009 — Mickey M

A Guided Tour of Mashups

Welcome, thank you for your interest in mashups and for joining me today.

Allow me to take you on a strong down Mashup Lane. Please note the internet below our feet, the crumbling ideals of copyright law behind us and the numerous clubs and DJs on our left and right sides. Up ahead you will see a new future of music interpretation. Hold on please!

DJs make mashups by combining music from two or more songs to make some new, derivative, arguably quite creative work. Since these seem to go against the core of copyright law as it is enforced the mashups generally are not sold but played by DJs at clubs and distributed online. Exceptions to this norm include Girl Talk and Big D and the Kids Table.

While many musical architects draw from other tracks and reuse beats and musical segments, mashup creation tends to emphasize the recognizability of the songs used. An effective mashup will create an ‘ah-ha’ moment of sorts, or a subtle smirk, as the songs taken out of context become more than they were alone. That sense of synergy makes mashup listening a very entertaining and rewarding pasttime, and thus my collection has grown steadily as I pursue even more DJs and compilations.

The next stop on our tour up ahead will be the collection complex. Many mashups are distributed as albums instead of individual tracks, often with a theme. DJ Danger Mouse created The Grey Album by combining Jay-Z’s The Black Album with The Beatles The Beatles, known frequently as The White Album. Taking great liberties with Green Day, the mashup team Dead Grey made American Idiot into American Edit. Each holiday season a team of DJs create Santastic, a mashup album full of Christmas-themed creations.

In San Francisco Adrian & the Mysterious D have been hosting mashup nights at clubs in San Francisco, currently at the DNA Lounge. Their site also collects mashups monthly and releases the best of the year in a collection each December. For the beginning connoisseur I highly recommend the content at Bootie and the annual collections.

When you have had a chance to visit more neighborhoods in Mashuptown you will start to develop a personal taste. I’d like to take this chance, before the end of our tour, to share with you some of my favorite sites.