About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

Listen to the weekly audio edition on IT Conversations:
The Importance Of ... Law and IT.

Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T

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June 23, 2005

June 17, 2005

Licensed Goldfish

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Posted by Ernest Miller

GloFish are fluorescent fish that were originally bred to help detect environmental pollutants. Read the GloFish FAQ: About GloFish. Of course, who wouldn't want a flourescent fish for the dull, unexciting fish tank at home? So, they are now available for sale to the general public (Buy GloFish Fluorescent Fish). But be aware. These fish are licensed (GLOFISH FLUORESCENT FISH LICENSE NOTICE):

The GloFish fluorescent ornamental fish are intended solely for visual enjoyment as aquarium fish by end users who have purchased these fish from authorized resellers, and not for commercial reproduction. These fish are the subject of various intellectual property rights owned or controlled by Yorktown Technologies, Inc. (“Yorktown”), both in the U.S. and internationally. These rights include (1) patent rights, including published patent applications (2) copyrights; and (3) trademark rights, including slogans and service marks.

By accepting these fish, and as part of the consideration therefor, the recipient agrees: (1) not to, breed or propagate these fish, permit or encourage others to breed or propagate these fish, or otherwise intentionally engage in any activity that may result in or lead to the breeding or propagation of these fish by anyone without the express written consent of Yorktown; (2) not to sell or transfer these fish to anyone in the State of California, or to possess or otherwise engage in any activity that results in the possession of these fish in the State of California.

These fish are copyrighted? And why aren't Californians allowed to have any?

via Ed Foster's Gripe Log

UPDATE 1255PT A commentor notes that the fish were banned in California. CNN with an AP wirestory (California Blocks Sales of 'Glofish' Pets).

Comments (4) + TrackBacks (0) | Category: Copyright | Oddities | Patent | Trademark

June 14, 2005

May 30, 2005

May 29, 2005

Pop Rocks Patent

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Posted by Ernest Miller

Phosita unearths the patent for Pop Rocks, #4,289,794, from 1980 (How Stuff Works - Pop Rocks!).

The present invention relates to improvements in the method of preparing gasified candy. It specifically relates to maintaining the sugar melt at a lower temperature during the gasification step than has been employed commercially heretofore. This lower temperature results in a commercial product having larger gas bubbles than the present product. These larger bubbles give higher "Pop" ratings because they break with greater force and emit a louder sound.

Gasified candy is often sold as a novelty product and in recent years this product has become particularly popular with the younger members of the public. Today's youth seem to prefer a gasified candy which produces a very pronounced pop. Since the product of the present invention exhibits a higher "pop" rating than the commercial product produced heretofore, it is expected that it will prove even more popular with today's young people than the gasified candy currently available.

Some of the science of pop rocks here: How Do Pop Rocks Candy Work?. Adult beverages featuring Pop Rocks here: Pop Rocks Candy: Adult Beverages.

Comments (0) + TrackBacks (0) | Category: Oddities | Patent

May 27, 2005

May 13, 2005

May 11, 2005

July 27, 2004

Barbie on the INDUCE Act (IICA): From My Cold, Plastic Hands, Senator Hatch

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Posted by Ernest Miller

Nicholas_Bergson-Shilcock_I.jpgBarbie in a Blender is a wonderful celebration of free speech and fair use:

So when Utah artist Tom Forsythe took this photograph of Barbie in a blender as part of a series of critical fine-art Barbie photos, Mattel got pissed. So what did they do to try stop Tom's message? They decided to sue his ass....Luckily for Tom, he convinced some lawyers from the ACLU to step up to and fight his case, and after a long legal battle he was victorious. The judge in the case ruled that the lawsuit clearly ran counter to the first amendment, calling Mattel's suit "groundless and unreasonable." Not only that, but the Judge's order forces Mattel to pay Tom's $1.8 million in legal fees. National Barbie-in-a-Blender Day, July 27, is a celebration of this important defense of free speech.
Visit the exhibit, but Barbie's commentary on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) is my favorite. Photo by Nicholas Bergson Shilcock, Barbies Endorses

via Copyfight

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Freedom of Expression | INDUCE Act | Oddities

July 14, 2004

The Abridged RIAA Letter on the INDUCE Act (IICA)

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Posted by Ernest Miller

Sometimes, you just don't have time to read a lengthy annotation (The Excessively Annotated RIAA Letter on the INDUCE Act (IICA)). In such cases, an abriged version is much better. Brad Hill of the Digital Music Weblog has done us all a favor and condensed the RIAA's letter to the Senate. Read the original letter: Letter to Senators from Mitch Bainwol, Re: INDUCE Act.

Read on for Brad Hills' abriged version:

...continue reading.

Comments (2) + TrackBacks (0) | Category: INDUCE Act | Oddities

July 08, 2004

Microsoft is the Ogrethulu

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Posted by Ernest Miller

Brother Dana writes a post that uses Steve Jackson Games' Ogre as a metaphor for the difficulties that Microsoft has in dealing with viruses and bugs (Moore's Lore: Ogre). For those who aren't wargamers, Ogre is an extremely cool game that pits one giant cybernetic super tank (the titular Ogre, with tactical nukes) against hordes of regular army units (except they have tactical nukes too). Think Godzilla vs. the Japanese Army (except, because the game is exceedingly well-balanced, the Japanese Army actually stands a chance). Dana says,

In the real world, of course, the Ogre can't win.

With every turn of time, the other side gains more allies. The Ogre remains the Ogre. Even if the Ogre grows, he's not going to out-grow his opponents. The bigger he gets, in fact, the more opponents he draws.

Yes, but what of the Ogrethulu scenario? Ogrethulu is a variant of Ogre that mixes it up with H.P. Lovecraft's Cthulu Mythos. For an image of an Ogrethulu, click here and scroll about 2/3 down. Also note that Lovecraft's works are now in the public domain.

In any case, in Ogrethulu, the Ogre can regenerate its damage by eating the other units. If you're not careful, an attack by smaller units might only make the Ogrethulu more powerful.

What does this have to do with Dana's metaphor? Well, there might be a point in there or there might not. I'm not really sure. I just think Ogrethulu is a way cool metaphor for Microsoft. Also, I've been playing Steve Jackson's games since he worked for Metagaming. Bonus: SJ Games' most excellent GURPS is getting a brand new, tweaked and revised edition this August.

Comments (0) + TrackBacks (0) | Category: Oddities

July 06, 2004

The Debate Over Free Information 100 Years Ago

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Posted by Ernest Miller

One hundred years ago today, the Oil City Public Library opened thanks to a $50,000 donation from Andrew Carnegie (Building of library was controversial issue back in 1904). Yet, as the title of the article indicates, building the library was not universally applauded. Reading the article, which includes many quotes from the debates of the era, shows many parallels with the arguments surrounding many of the copyright, library filtering and open access debates of today:

“The placing of a large collection of books within the reach of school children, without money and without price, will place all children on an equality. The child who has access to many books at home will not have so great an advantage as now over the child who cannot afford to own costly books of reference.”

“…If Oil City should have an institution of that kind, it would prove the ruination of hundreds of young persons, who would waste their time and corrupt their minds by reading cheap sensational novels.”

“People who claim that the reading of (dime) books…will injure the young should investigate carefully what these young ones are reading now.”

“The argument that reading works of fiction is injurious to the minds of working men is often advanced by men who themselves enjoy perusing such books.”

“The final (election) tally: 466 against the library, 982 for the library.”

via LISNews

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Oddities | Open Access

July 01, 2004

FCC to Fine Only Viacom for Broadcasting Indecency - Why?

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Posted by Ernest Miller

Reuters is reporting that the FCC is going to fine Viacom $550,000 for Janet's nipple flash on the SuperBowl (Jackson Breast Flash May Get $550,000 Fine-Source). Jeff Jarvis notes that this would mean Janet completely topless would rate a million (The Daily Stern: The million-buck boobs). Ba-dump-bump. But, seriously folks, the decision isn't final and the Commissioners still have to vote on it. What intrigues me, however, is that the fine lawyers at the FCC apparently have argued that the 20 stations owned by Viacom should pay the maximum fine allowable, but the stations that aired the incident but were not owned by Viacom pay nothing. I have a feeling that at least one of the commissioners will complain about that, but let's think about possible reasons for that distinction:

  • People are less offended when indecency is broadcast by community smut peddler, instead of national smut peddler.
  • Statement by Commission that, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area," just a lie to trick unwary media conglomerates into slipping up.
  • FCC Chairman Michael Powell has changed his mind, there is not one First Amendment, but two. One for media conglomerates, another for local affiliates.
  • Local affiliates aren't responsible for what they broadcast. They're just there to collect the checks.
  • FCC clumsily making up for increased media concentration by fining only concentrated media.
  • "They can't fine us all." Local affiliates were right, FCC administratively unable to fine all 180 local affiliates, too much paperwork.
  • Ooops. FCC thought they had already allowed all media to concentrate in single company. Didn't realize there were still local affiliates.
  • It's arbitrary. "We're the FCC. ALL our indecency rulings are arbitrary. What are you going to do about it, huh?"
  • Permitting local affiliates to broadcast indecency without fines will make them more competitive. Supports FCC policy goal of increasing local media diversity.
  • No one was actually watching SuperBowl on the 180 local affiliates that broadcast it.
  • FCC upset that Viacom subsidiary Paramount Pictures has ruined Star Trek franchise.
These are just a few of the possible justifications. Feel free to make up your own. The FCC will.

Comments (6) + TrackBacks (0) | Category: Freedom of Expression | Oddities | Telecomm

June 27, 2004

Quote of the Day: Legal Programming Edition

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Posted by Ernest Miller

From News You Can Bruise regarding the INDUCE Act (And Another Thing):

Also, all laws should be written in my Leibnitzian Python wonder-language that contains no ambiguity.

Comments (0) + TrackBacks (0) | Category: INDUCE Act | Oddities

May 26, 2004

Execute Those Criminals in Steve Landsburg's Social Stratum

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Posted by Ernest Miller

Dear me, but isn't that Steven E. Landsburg a witty fellow? Why, he used such brilliant economic logic in his Slate column to "prove" that we should consider the death penalty for the writers of computer viruses and worms (Feed the Worms Who Write Worms to the Worms). How exceedingly clever.

Here's a question though: why didn't he write about considering execution for corporate malfeasors? Perhaps his idea doesn't seem so clever as applied to people he may socialize with.

Don't get me wrong, I'm not a fan of virus-writers, but how odd that Landsburg chooses to extend the death penalty to their non-violent crimes and not the criminal acts of those more associated with his profession.

You know, Landsburg claims that:

Governments exist largely to supply protections that, for one reason or another, we can't purchase in the marketplace. Those governments perform best when they supply the protections we value most. We can measure their performance only if we are willing to calculate costs and benefits and to respect what our calculations tell us, even when it's counterintuitive. Any policymaker who won't do this kind of arithmetic is fundamentally unserious about policy.

I would be more impressed with Landsburg's claimed need for impartial cost-benefit analysis if the analysis hit a little closer to home for him.

Comments (3) + TrackBacks (0) | Category: Oddities

May 04, 2004

FCC Receives Numerous Complaints About Oprah Show

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Posted by Ernest Miller

Howard Stern has been the FCC's indecency whipping boy for some time. After the latest series of fines, however, he asked his listeners to complain to the FCC about an episode of Oprah's talk show that included rather graphic descriptions of sex acts. The Smoking Gun has received copies of more than 1600 complaints about that episode thanks to a FOIA request (FCC Swamped With Oprah Indecency Complaints). It is impossible to know which complaints are real, but many of them are downright hilarious:

I had just returned with my 3-year-old twins from Bible day camp when I turned on the show ... Tell me, Mr. Powell and Mr. Copps: How would you explain the concept of a "tossed salad" to your kids?
The Oprah show ... was so offensive that my child's head literally exploded. Please ban free speech so this never happens again.
I just wanted to say how much I appreciate all your hard work trying to take down such evils as Howard Stern.... next, please, oh please, go after that Mother of Harlots, Oprah....I will send a list of books next that I think you should look into.
I am writing to you as a very concerned elementary school teacher ... While watching this program, all I could think about were my 3rd grade students home from school, viewing these vulgar conversations about sex: at 4:30 p.m.! .... In teaching government to my students, I'm finding it very difficult to be honest. How do I teach the notion of "Freedom of Speech"???
Recently on the Oprah Winfrey Talk show ... acts of sexual nature were described in detail without the presence of a medical doctor ... Thank you for your time, ... Registered Republican

Comments (6) + TrackBacks (0) | Category: Freedom of Expression | Oddities

April 01, 2004

Wal-Mart to Purchase Universal Music Group

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Posted by Ernest Miller

Proving that it is as serious about dominating the music download business as much as it has dominated the retail sphere, Wal-Mart (aka "the world's largest retailer") announced yesterday intentions to purchase Universal Music Group from troubled media conglomerate Vivendi Universal. The purchase will give Wal-Mart immediate control of nearly 30% of the US music market including such popular artists as Eminem, No Doubt and Sheryl Crow as well as a historic catalog that includes artists such as Abba and Louis Armstrong. Read the press release: Wal-Mart to Purchase Universal Music Group.

Wal-Mart to Offer Subscription-Based Download Service?

Wal-Mart refused to discuss whether the purchase will lead to any changes in its music download service, but knowledgeable insiders confirm that Wal-Mart will certainly decrease the price of both CDs and individual downloads for their artists, putting further pressure on alternate music download services such as Apple's iTunes and Napster 2.0. Additionally, analysts believe that Wal-Mart is considering experimentation with a subscription-based download service that would provide rationed download access to the entire Universal catalog for a flat fee of approximately $5/month.

...continue reading.

Comments (0) + TrackBacks (0) | Category: Oddities

March 31, 2004

Vignettes of Modern Life

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Posted by Ernest Miller

Lucas Gonze observed something I thought an exemplar of modern life (March 31, 2004):

I was walking the dog and I heard a cellphone over my head. It turned out to be a bird.

Comments (0) + TrackBacks (0) | Category: Oddities

March 26, 2004

Newdow's Petard Paradox

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Posted by Ernest Miller

Jack Balkin offers up the following paradox regarding the Newdow case, otherwise known as the "under God" Pledge of Allegiance case (Hoisted By His Own Petard?). Argues Jack, "If Newdow wins his case, it will prove that atheism is wrong, because it's going to take a miracle."

To which I, being a reader of the Hitchhiker's Guide to the Galaxy, respond:

A miracle would be proof of God's existence. If people have proof of God, their belief would be fact-based instead of faith-based, and the loss of faith would cause God to cease to exist. Thus, atheism would be triumphant after all.

Comments (0) + TrackBacks (0) | Category: Oddities

March 15, 2004

Hey, Advertisers, Pay for My HDTV

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Posted by Ernest Miller

USA Today reports on a rather bizarre market niche: companies that are charging people to display artwork on their HDTV sets (Start-ups turn flat-panel TVs into works of art):

An expensive new digital television is big, beautiful, flat and can hang on the wall. Some might even consider the set a piece of art.
So why not display Picasso, Renoir, Monet and other masters on the screen itself?
Three companies have recently formed to help consumers do just that.

The article notes that HDTV sets are rather expensive, from $500 for the smallest models to over $17,000 for nerdvana sets. On top of this initial expense, the three companies discussed in the article expect consumers to pay a nice additional chunk of change to display licensed artwork on the sets.

Techdirt wonders if people can't come up with simpler, cheaper (presumably free) solutions (That Flat Screen TV Needs A Screensaver).

I wonder if there isn't a solution where companies pay me to have an HDTV. Why couldn't advertisers pay people to play commercials on their HDTV sets and subsidize the cost of the plasma set in return? Instead of a Matisse, why not a McDonald's?

Comments (0) + TrackBacks (0) | Category: Oddities | Tools

March 04, 2004

Court Using Linux Hears Lawsuit Claiming Linux Infringes Copyright

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Posted by Ernest Miller

I don't post much about the ongoing SCO v. Linux lawsuits, though heaven knows there is much to discuss in the case. For incredible, indepth, precedent-setting blog coverage of these lawsuits, see the justly famous Groklaw.

Most recently, SCO has begun suing not only distributors of Linux, but users as well. In the first case brought against an end-user, SCO has sued Autozone for using Linux and thus violating SCO's copyrights (It's Autozone). All well and good, but there is something unusual about the case.

Netcraft is not involved directly in the case, it is an English company that conducts research and analysis on the internet. According to their about page, since 1995 they have been,

a respected authority on the market share of web servers, operating systems, hosting providers, ISPs, encrypted transactions, electronic commerce, scripting languages and content technologies on the internet.

Thus, it is no surprise that they would check up on what systems the court involved is running. They report that some of the computer systems for the court in charge of the SCO v. Autozone lawsuit run on Linux (Court that will hear SCO v AutoZone lawsuit itself runs Linux). Indeed,

Plaintiffs filing lawsuits must enter copies of their legal documents in Adobe PDF format in the court's Linux-based Case Management/Electronic Case Filing (CM/ECF) system, which will provide electronic updates of case information for the litigants and their lawyers.

This, I think, is a first. I have no idea if there is a precedent for this sort of thing. Here you have a court that is engaged in precisely the same conduct the plaintiff complains of. If a judge did this it would not only be an appearance of a conflict of interest, it would be a conflict of interest and clear case for recusal. What do you do when the court administration is involved? Can an entire court recuse itself? Is there any rule or precedent for this?

In related news, SCO public relations people continue their so-far successful campaign to get the world to hate them by comparing themselves to the RIAA ('We're just like the RIAA,' says SCO).

Comments (5) + TrackBacks (0) | Category: Copyright | Oddities | Open Source

November 07, 2003

The Grinch Who Stole Linux

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Posted by Ernest Miller

I've been following but not posting on the SCO v. World copyright battle over Linux. However, this post from Groklaw is definitely worth passing on (The Grinch Who Stole Linux).

By the way, parody or satire?

Comments (0) + TrackBacks (0) | Category: Oddities | Open Source

October 31, 2003

An E-Voting Machine Goes "Boo!"

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Posted by Ernest Miller

What is more frightening on Halloween than an attack on the reliability of our voting system? This is the question cartoonist Tom Tomorrow asks in an episode from his comic strip This Modern World (This Modern World: Something Truly Terrifying). See, my E-Voting Archives for more info on how truly scary this is.

via Copyfight


Siva Vaidhyanathan reprints an article from the The Chronicle of Higher Education on the additional notice-and-takedown letters Diebold has been sending to universities whose students are standing up against Diebold's bullying (3 More Colleges Receive Cease-and-Desist Letters From Maker of Voting Machines). Of course, the article is already seriously out of date. See, the Why War? website for an update list, but at least three more universities (in addition to the one's in the article) have received notice-and-takedown letters as well (Targeting Diebold with Electronic Civil Disobedience). Of course, this won't get Diebold very far ... mirrors are appearing much faster than letters being sent.

On a personal note, a friend of mine was the intended target of one of the notice-and-takedown letters. More later when he has decided how he intends to respond.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | E-Voting | Halloween | Oddities

Independent Creation, the "Halloween" Mask and Classic Movie Makeup

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Posted by Ernest Miller

Perhaps some of the most famous copyrights this time of year are the copyrights for the designs of the classic Universal Studios Monsters (Frankenstein’s Monster, Bride of Frankenstein, The Wolf Man, Dracula, The Mummy, Phantom of the Opera and the Creature of the Black Lagoon), which were created by Jack Pierce. Sometimes, of course, copyright doesn't lead to lawsuits, but inspires alternate creation, such as the more "realistic" design of Frankenstein's Monster in the Hammer Films classic The Curse of Frankenstein.

However, such outcomes aren't always the case. Even something as simple as the everyman "Michael Myers Mask" used in the original "Halloween" movie has had its share of controversy.

In Don Post Studios, Inc. v. Cinema Secrets, Inc. [PDF], which was decided in 2000, a strange sort of independent creation case took place. Don Post Studios, who had designed the mask used in the 1978 movie (for a payment of $150), was marketing a similar mask to the public under their own auspices. Cinema Secrets, a major supplier of Halloween masks and such, had licensed the mask design from the makers of the movie, and was marketing their version to the public. Don Post sued for copyright infringment (among other things), claiming that Cinema Secrets had copied the Don Post mask. Cinema Secrets won the copyright issues on a claim of independent creation (among other things): Cinema Studios' mask was based on the movie, not the Don Post mask. The winning claim brings a whole new meaning to the term "independent creation."

Interesting fact: the infamous mask used in the movie was a modified version of a "Captain Kirk" mask based on a foam master of William Shatner's head. Scary, indeed.

Comments (0) + TrackBacks (0) | Category: Copyright | Halloween | Oddities

Pumpkin Carving DRM

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Posted by Ernest Miller

SpookMaster is one of the leading websites for those interested in advanced jack-o-lantern patterns. The website is a commercial enterprise, and though they have some free designs, they make money by selling the pumpking carving patterns. They have somewhat traditional designs such as "Frankie" and "The Bewitching Hour," as well as more contemporary designs, such as "Arnold Schwarzenegger." You might think that it would be relatively easy to copy the patterns which are shown on the site, and thus avoid paying for the patterns, but you would be wrong. Be sure to pay attention to the copyright notice:

If you try to copy an example pumpkin from the website you get the message These sample patterns look just like the real thing but they are NOT CARVEABLE. The sample patterns have been designed to look exactly like the carved patterns but with a few minor (unnoticeable) changes that make them impossible to carve. We don't do this to be mean, we do it to protect our business. [emphasis in original]

For added fun, try to copy and paste from their website and see what happens.

Readers may also be interested in the copyright notice on this Jack-o-Lantern Bookmark Crochet Pattern:

This pattern is COPYRIGHT © Jackie Karp 2002
Do NOT post on other web sites, crochet groups etc or copy illegally. It is free for personal use ONLY! Do not pass it on to other people via email or by copying it as you are taking traffic away from this site by doing so

Comments (0) + TrackBacks (0) | Category: Copyright | Digital Rights Management | Halloween | Oddities

Knott's Pirates Offer a Solution to File Sharing

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Posted by Ernest Miller

Every year in October since 1973, Knott's Berry Farm (a theme park in Southern California) is transformed into Knott's Scary Farm, one huge, fiendishly frightening park with more than a dozen haunted mazes and other horrific attractions. It is the first and many think the best Halloween-themed theme park. If you enjoy things Halloween and are in Southern California during October, it is a must see.

In any case, one of the highlights of a visit to the Halloween Haunt is "The Hanging," which is a parody of pop culture and celebrities, with many stunts and special effects. During the event dozens of celebrities are slaughtered, soaking the stage (and some in the audience) with blood. A review of last year's show called the parody "so good you can smell the lawsuit." This year's hanging featured a Pirate Theme, "The Curse of the Black Pearl Necklace," a risque parody of Disney's Pirates of the Caribbean.

What would a pirate-themed parody of contemporary culture be without some references to file sharing?

In this year's show, the ghost pirates (or are they pirate ghosts?) complained that users of file sharing programs, such as "Kazaa..aar", were not real pirates and were giving piracy a bad name [I note that the audience cheered quite loudly at the mention of "Kazaa..aar"]. The "real" pirates realized how difficult it would be stop P2P programs, but they had a solution. If you can't stop P2P, you have to stop the file sharing at the source - by killing the celebrities who produce the works that will be shared! The audience seemed to like the solution quite a bit.

Comments (0) + TrackBacks (0) | Category: File Sharing | Halloween | Oddities

October 28, 2003

This is not the Link You're Looking For

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Posted by Ernest Miller

There is a nice little satire of the Swarthmore/Diebold link scandal being hosted on a Georgetown server (The Diebold Memos are NOT here).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression | Oddities

October 27, 2003

DRM Companies Fund Felten's Attacks on DRM

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Posted by Ernest Miller

Famed computer science professor Ed Felten runs the Freedom to Tinker blog, where his discussions of cryptography, security, copyright and freedom and technology generally are deservedly popular. Popularity comes with a price, however. In this case, the cost is the expense of bandwidth. In order to offset some of his costs Felten decided to try Google AdSense (ADS). The system puts AdWords on the bottom of the individual entry pages for Freedom to Tinker. The ads are supposed to be "relevant to what your readers see on your pages."

Interestingly, the ads on Felten's site are almost all for copyright/patent enforcement and digital rights management - topics upon which Felten has strong opinions, most of which would not be viewed favorably by the advertisers. I'm not sure which is more ironic - Felten advertising DRM systems - or DRM companies funding Felten through advertisements.

Be sure to read the comments on Felten's site.

Comments (1) + TrackBacks (0) | Category: Cryptography | Digital Rights Management | Oddities

October 26, 2003

Politically Significant Trademarks in China

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Posted by Ernest Miller

As noted here earlier (Yang Liwei © 2003 CNSA All Rights Reserved), Chinese businesses are very interested in using names associated with the successful Chinese space program. The Times of India has the latest, as well as an interesting quote about Chinese trademark law (Spaced-out Chinese cash in on spaceman's fame):

Shenzhou V, the spacecraft which took Yang on 14 orbits around the earth last week, is also the object of several trademark applications but these hopefuls are likely to be out of luck.
"Shenzhou V is a special name that has significant political meaning," said Xun Xianzong, a trademark official.
"So far, there is no precedent for the use of such names as trademarks."

Shenzhou means "Divine Vessel" in Chinese. I wonder what other "special names" have "significant political meaning."

Comments (0) + TrackBacks (0) | Category: Oddities | Trademark

October 21, 2003

Schizophrenic Reporting from the Guardian

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Posted by Ernest Miller

The New Republic used to run a little feature making fun of newspapers that had contradictory stories. Today, Techdirt has come across a classic of the genre (Same Study, Completely Opposite Interpretations On Downloadable Movies). Apparently, The Guardian has two stories about the same Informa Media Group study on movie piracy. One story begins with scare-mongering (Film industry pays dearly for piracy):

The impact of internet piracy could be losing the film industry $460m (£275m) annually within seven years unless the leading motion picture studios and distributors act now, warns a new report.

The other story (Studios 'should welcome' movie downloads) is a tad more optimistic:

Hollywood has little to fear from internet piracy despite the chaos that illegal download sites have wrought on the music business and movie studios should embrace downloading as a new sales tool, according to a new report.

Comments (0) + TrackBacks (0) | Category: File Sharing | Oddities

October 19, 2003

Two Thumbs Up for the "Piracy Meter"

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Posted by Ernest Miller

Ebert & Roeper can take their thumbs and do something else with them from now on. Mary Hodder has come up with a more compelling measure of a movie's worth (Broadcast Flag II):

The Piracy Meter: if I pirated movies, this is how I'd rate them, as to what's worth clogging my dsl connection for 24-36 hours to get one.

The details of the meter aren't quite clear, but might I suggest the following rankings (from worst to best)?:

CAM - Who cares if the movie was recorded in a cinema with a consumer-quality camcorder and/or where the audience can be seen or heard? The movie is simply not worth the effort of getting a quality copy. Download only when desparate.

Telesync - Better than CAM, still recorded in a cinema, but usually with professional-level equipment and a separate audio source (so the audience cannot be heard). Getting better, but download only if you're not going to be using your broadband for a day or so, like during a weekend trip.

Screener - Generally recorded from promotional videotapes or DVDs which have been sent to film critics, marketing firms, Academy voters, etc. This ranking has been discontinued until further notice upon request of the MPAA.

LD/DVD Rip - Accomplished simply by copying a LaserDisc or DVD. Picture and audio quality are generally very good. Good movie and definitely worth renting on DVD, but who wants to make the trip to the local Blockbuster? Go ahead and download, unless you're too busy grabbing MP3s.

Telecine - A high quality copy taken directly from the film reel. Popular with professional pirating operations. Great movie - go ahead and download even if it makes surfing unbearably slow and then burn to DVD-R.

Comments (0) + TrackBacks (0) | Category: File Sharing | Oddities

Yang Liwei © 2003 CNSA All Rights Reserved

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Posted by Ernest Miller

The Straits Times reports that the China National Space Administration (China's NASA) has copyrighted (I think they mean trademarked) the name of Yang Liwei, who made history as China's first taikonaut when he was launched into orbit aboard the Shenzhou-5 on October 15, 2003 (It's a taikonaut, it's a pear, it's... copyright). Businesses will be unable to use the name without permission of CNSA, apparently in order to prevent the unscrupulous from capitalizing on Lieutenant Colonel Yang's fame. Among those interested in licensing the name is Yang's birthplace, which wants to name a white pear they produce after him.

In related news, the People's Daily quoted Yang Liwei as stating that he did not see the Great Wall of China from space ('I did not see Great Wall from space': Yang Liwei).

Comments (0) + TrackBacks (0) | Category: Copyright | Oddities | Trademark

October 17, 2003

Original Gummy Fish Not So Original

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Posted by Ernest Miller

The Trademark Blog brings word that Malaco, makers of Original Swedish Fish and holders of the associated trademark/trade dress, has lost on summary judgement a trademark suit against Promotions in Motion, marketers of Famous Sqwish Candy Fish (not to mention Nuclear Sqworms) (The Aesthetically Functional Swedish Fish). The opinion, which can be read on Juris Notes (Malaco Leaf, AB v. Promotion in Motion, Inc.), is pretty devastating. This case is a real good example of how not to protect trade dress. For example, you might want to avoid cases where the judge can write lines like this:

Malaco's contention that its Marks are entitled to a finding of acquired distinctiveness is further belied by its own internal marketing reports, including one dated a day before it filed this complaint, reporting that "[m]ost respondents consider 'Swedish Fish' a generic term of fish-shaped gummi candy," and that its Marks enjoy "weak trademark protection."

Anyways, I just like cases that have lots of discussion concerning gummy. While there is not a thigh-slapper in the decision, I find that reading stuff like, "Notably, animal-shaped gummy candy is common in the candy industry" amuses me. Apparently, I amuse easily. Among other highlights, the case also features a discussion of the functionality of gummy designs and the following footnote:

Soft and chewy candy is generally categorized by the industry as either "gummy" if it has a primarily gelatin base, or "juju," if it has primarily a starch base. (Deposition of Frank Galatolie, dated March 20, 2002 ("Galatolie Dep.") at 130-31; Defendants' 56.1 Statement ("Def.'s 56.1 Stmt.") ¶ 3.) For purposes of uniformity, this Court refers to the parties' products as "gummy" candy.

Bet you not many people are aware of that distinction.

Perhaps Malaco should look for other designs carved by gummy artisans who work exclusivly in the medium of gummy ... too bad that Gummy Mummy is already taken.

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Disbarring for Downloads

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Posted by Ernest Miller

There is an interesting (for lawyers anyway) point about downloading being discussed on My Shingle (Disbarment for Downloads?) and the New York Lawyer's Word/Life Wisdom column (I like to download music from from Napster-type Web sites. If I am ever sued for this, do I risk disbarment or any other type of sanction from the State Bar?). Can/should lawyers be disbarred for downloading?

First, downloading isn't going to get you into trouble, it is the uploading or making available of files that is getting lawsuits going. It is rather sad that even a publication for lawyers can't make this distinction. Second, this is a much more difficult ethical question than a legal one and I think it will be rather fact dependent. For example, you might be able to sue a parent because their child is uploading files but will you disbar the parent for the actions of the child?

via the Tech Law Advisor

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