In the wake of the FBI’s takedown of Megaupload, FileSonic, a popular cyberlocker site, has disabled its “sharing” feature. FileSonic users are now only able to download files they personally uploaded. And it seems that other sites may soon follow….

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Technologist Cynthia Hsu, Esq.

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the Internet. There is little doubt that Steve Jobs was at the forefront of the tech revolution. He was an innovator in the realms of…

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Technologist Andrew Chow, JD

Last August, video game maker Bethesda filed a trademark infringement complaint against the makers of Minecraft, a sandbox-style game. Minecraft developers were creating a new game called Scrolls, which Bethesda believed to be a little too similar to their own…

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Technologist Cynthia Hsu

The Recording Industry Association of America (RIAA) has a new target in its crosshairs: ReDigi, a newcomer to the digital music world. ReDigi offers users the ability to sell their “used” digital music. Think about it this way, it’s just…

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Technologist Cynthia Hsu

A number of Silicon Valley heavyweights joined forces on Tuesday to oppose the Stop Online Piracy Act (H.R. 3261), a new bill introduced late last month. Google, Facebook, Twitter, eBay, Yahoo, AOL, Zynga and LinkedIn are urging members of the…

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Technologist Stephanie Rabiner

This is neither a trademark case nor a California case, but I think the folks at techdirt raise some interesting food for thought…

What What (In the Butt)? What What (Fair Use Doesn’t Need a Trial)?

Trademark Law Briefs Trademark Law Briefs

This is neither a trademark case nor a California case, but I think the folks at techdirt raise some interesting food for thought…

What What (In the Butt)? What What (Fair Use Doesn’t Need a Trial)?

Trademark Law Briefs Trademark Law Briefs

Is Twittersquatting the new cybersquatting? It might not be, but it’s certainly proven to be more than annoying for Coventry First. Coventry First is a leading company in the secondary life insurance market. Essentially, Coventry buys rights to life insurance…

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Technologist Cynthia Hsu

THResq points us to a fun, but thorough, law journal article by law student Benjamin Arrow, looking at whether or not Duff Beer, from the Simpsons, is protectable as a trademark in the real world (or you can go directly to the paper) (pdf). The analysis is actually more complex than you would think, noting that as you shift from the fictional world of the Simpsons to the real world of beer production, the issue switches from being a trademark issue to a copyright issue, where the beer is a form of a derivative work on the copyrighted expression known as the cartoon of Duff Beer.

Fox and The Simpsons’ creator, Matt Groening, developed the
idea for the fictional brand, Duff. Therefore, when a real-world
manufacturer puts out a product by the same name, one might
think that it has stolen Fox’s idea and that, as a matter of equity,
intellectual property law ought to furnish a remedy. But
intellectual property law does not protect ideas in the abstract.
While a real-world Duff manufacturer may have taken more than
just an idea, it is difficult to articulate how much more. Part of the
reason it is so difficult to conceptualize the injury Fox suffers
when another producer introduces a Duff Beer to the marketplace
stems from the fact that Duff Beer is a fictional product sold in a
fictional universe under a fictional brand name. Fox’s injury looks
very different when we suspend our disbelief and plunge into the
fictional world of Springfield, accepting the fictional reality as our
own and when we pull back, remind ourselves that The Simpsons is
nothing more than a cartoon and view Duff Beer as one element of
a vividly imagined work of animated fiction. As a consequence of
this puzzle of perspective, Fox suffers a different intellectual
property injury depending on our vantage point.

An analogy to Internet law helps explicate the puzzle. Writing
on the problem of perspective in this area of the law, Professor
Orin Kerr posits that “whenever we apply law to the Internet, we
must first decide whether to apply the law to the facts as seen from
the viewpoint of physical reality or virtual reality.” Kerr terms
the perspective from inside virtual reality the “‘internal
perspective’ of the Internet” and the point of view of an “outsider
concerned with the functioning of the network in the physical
world rather than the perceptions of a user” the “external
perspective.” In attempting to apply law to the Internet, our
perception of who is doing what to whom is not a mere cognitive
tool for conceptualizing difficult problems, Kerr contends.
Instead, our selection of perspective is itself outcome
determinative, because “[b]y choosing the perspective, we choose
the reality; by choosing the reality, we choose the facts; and by
choosing the facts, we choose the law.” While Kerr suggests
that courts may dismiss this problem of perspective as “a minor
skirmish in the ‘battle of analogies,’” he notes that courts “already
choose perspectives when they apply law to the Internet” without
realizing it.

While this may just seem like a fun, little intellectual query, the second paragraph above highlights why it’s actually pretty important. For nearly a decade, we’ve been pointing out the problems that occur when you take laws from the real world and pretend you can just apply them naturally into a virtual world. The same thing applies here to some extent. In this case, it’s resolved via copyright law, since the creation of Duff Beer may be protectable under copyright in the real world, and any such beer would be derivative. Trademark, on the other hand, which would apply in the fictional world, does not apply in the real world, since there’s no real “use in commerce” of a product known as Duff Beer.

Either way, the paper is a fun read, and actually raises a series of issues that are important and worth thinking about when discussing how the real world law applies on the internet in general and in wider “virtual” worlds.

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Techdirt Mike Masnick

Last year, we wrote about a ridiculous situation in which the Association for Information Media and Equipment (AIME) threatened UCLA, after discovering that the school had set up an online video service, that let UCLA professors put up legally licensed video clips so that students could watch them from their computers. AIME claimed that UCLA’s license did not allow for such uses. UCLA claimed this was fair use. After initially taking down the videos, UCLA decided this was worth fighting over and put the videos back up last March. At the time, we thought a lawsuit from AIME would come quickly, but apparently it took until December. UCLA recently filed a motion to dismiss the lawsuit, setting up a few reasons why — including the claim that, as a state university, it has sovereign immunity from copyright lawsuits and, also, that AIME is not the copyright holder in question, and thus has no standing.

However, as Kevin Smith (not the filmmaker we’ve been talking about recently, but rather someone at the Duke University Library) notes in the post above, there is an interesting claim in the motion, where UCLA suggests that the breach of contract claim (which comes under a state law) is preempted by federal copyright law. If I remember the details correctly (and you copyright lawyers out there, feel free to correct me), with the Copyright Act of 1976, that law basically superseded any state laws that covered the same grounds. Mostly, people have thought this meant that state copyright laws effectively were wiped out (though, as we’ve seen, some awful remnants of those laws remain).

However, what UCLA seems to be arguing, is that federal Copyright Law could also wipe out portions of state contract law as well, if those aspects are covered by copyright. It’s a creative way of saying that you can’t contractually give up aspects of copyright, such as fair use. Now, there are some areas where it’s known you can’t give up what copyright says via contract. You can’t, for example, contractually give up your termination rights (which let you take back a copyright you assigned to someone decades later). Also, it’s not quite the same thing, but the recent ruling in the Augusto case has suggested that there are situations where you don’t give up copyright exceptions (in that case, first sale) — but it’s distinguished by the fact that the court effectively said there was no license on promotional CDs (despite a stamped on “license” text).

So rather than relying on something like that, UCLA seems to be relying on preemption of state contract law, to say that even if you signed a license agreement, fair use rights can still apply. It’s an interesting point. I’m of a mixed opinion on whether or not it’s a good thing, however. I am a fan of such copyright exceptions, and would be worried if we started to see fair use “licensed away” in more situations. However, would that also mean that we couldn’t license away other aspects of copyright law? Would that cause trouble for certain types of licenses, like Creative Commons licenses?

I’m guessing that the court may skip over this issue entirely, in that it can just hand UCLA a victory on the sovereign immunity or lack of standing claims and just move on without addressing this issue. However, I do expect that it will show up again in other lawsuits at some point.

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Techdirt Mike Masnick