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 @

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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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July 13, 2005

July 04, 2005

June 29, 2005

June 28, 2005

June 20, 2005

June 18, 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 16, 2005

June 01, 2005

ICANN Approves '.xxx' Top Level Domain

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Posted by Ernest Miller

The Associated Press reports that ICANN has approved a new top-level domain ".xxx" (Internet Group OKs 'xxx' Web Addresses). Read ICANN's brief announcement here: ICANN Moves Forward in First Phase Commercial & Technical Negotiations with an Additional sTLD Applicant. ICM Registry is the lucky company that can sell the domain names for 10x the going price for a .com domain. Read their press release:ICANN Approves .xxx Sponsored Top-Level Domain Application.

An international cross-section of the responsible online adult-entertainment industry has expressed its support for the new TLD and indicated its willingness to work through the International Foundation for Online Responsibility (IFFOR), the Canadian non-profit, multi-stakeholder organization that is sponsoring the TLD to combat child pornography and to regularize business processes and to ensure that children and others who do not wish to access adult entertainment online can easily avoid it.
Great. It is voluntary now, but expect renewed efforts in Congress and certain of the states to require those with material "harmful to children" to register in the .xxx domain. Also, expect a rash of new trademark litigation, particularly with regards to dilution and tarnishment when the .xxx domain sale begins. And what is this about stopping child porn? How will a top level domain have any impact on that?
via How Appealing


Seth Finkelstein calls the new domain "pornographic titillation" (.XXX Domain Approved).

Techdirt links to a number of their previous postings on the concept (ICANN Finally Agrees To Build An Online Red Light District).

Comments (1) + TrackBacks (0) | Category: Internet | Rating and Filtering | Trademark

May 29, 2005

May 27, 2005

May 26, 2005

March 22, 2004

Copyfight - The Remix

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Posted by Ernest Miller

Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:

Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

I'll continue to post here, of course, especially my longer pieces.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | Civil Liberties | Copyright | Digital Millennium Copyright Act | Digital Rights Management | Internet | News | Trademark

February 07, 2004

Parody of a Parody

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Posted by Ernest Miller

The Trademark Blog posts a interesting disturbing image of Miss Piggy with a breast baring pose obviously reminiscent of Miss Janet at the Super Bowl (Warning: the image may upset the sensitive) (Parody - Discuss Amongst Yourselves). Marty asks whether the image is a non-infringing parody (which comments on Miss Piggy) or an infringing satire (which merely uses Miss Piggy to comment on Miss Jackson). The case is point is the famous Dr. Seuss case which held that a satire of OJ Simpson in the style of Dr. Seuss was infringement.

Tech Law Advisor is quick to take up the discussion and quickly concludes that (Not Parody):

Miss Piggy baring her breast does not comment on Janet Jackson's exposed breast. The work shown here is quite simply infringement.

The problem here as in the Dr. Seuss case that Marty cites is that the supposed parodist merely use the work [Miss Piggy] as a vehicle to satirize something completely different [Miss Nasty]. [comments/links in original]

I disagree. To me this is a fairly clear case of parody of a parody.

Miss Piggy, afterall, is a sanitized, child-friendly parody of celebrity divadom, of which Miss Janet Jackson is an example. Miss Piggy was originally called "Miss Piggy Lee" after diva singer Peggy Lee. Since then, Miss Piggy has vamped in parodic versions of Calvin Klein, Guess? Jeans, Pulp Fiction, Sports Illustrated Swimsuit Edition, and Pretty Woman, not to mention so many, many others, including a Pigtoria's Secret shoot.

Miss Piggy clearly is meant to parody the sexuality of modern female celebrity-dom. Nevertheless, like all the Muppets, Miss Piggy's parody is sanitized for family consumption. Clearly, such sanitized family entertainment is itself ripe for parody, see, for example, directorial genius Peter Jackson's Muppet parody Meet the Feebles, in which Muppet-like creatures do drugs, porn and engage in other degenerate acts.

How better to parody Miss Piggy then to push her parody of female celebrity-dom into the realm of the absurd? The humor of this parody lies not simply in its reference to Janet Jackson's breast episode, but to our recognition of Miss Piggy as following in Janet's footsteps (as Miss Piggy has followed in the footsteps of so many other divas). The image is funny because it pushes our expectations of the sanitized parody of Miss Piggy beyond what her creators would have chosen. In the words of the Dr. Seuss decision, this image of Miss Piggy "mimics an author's characteristic style and holds it up to ridicule."

Comments (2) | Category: Copyright | Freedom of Expression | Trademark

January 14, 2004

Advertising Keywords, Netscape, Playboy and Initial Interest Confusion

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Posted by Ernest Miller

The Court of Appeals for the Ninth Circuit has overruled the district court which granted summary judgement to Netscape, which was accused of violating trademark law by selling keywords to advertisers in association with Netscape's search engine. The plaintiff is Playboy which has become to internet trademark law what Scientology is to copyright law.

The decision is an unfortunate extension of Brookfield's initial confusion doctrine beyond URLs and meta-tags to search engine keywords. However, this relatively limited decision merely gets Playboy over the hurdle of summary judgement and does not necessarily mean they will win the case. Read the decision: Playboy v. Netscape [PDF], 00-56648 (Jan 14 2004).

In particular, there is a very nice concurring opinion that attacks the foundations of Brookfield itself, and I highly recommend reading it.

Of course, the decision itself has some amusing lines. For example, in analyzing the eight Sleekcraft factors, the court determines that pornography is easily substitutable, particlarly graphic pornography:

We presume that the average searcher seeking adult-oriented materials on the Internet is easily diverted from a specific product he or she is seeking if other options, particularly graphic ones, appear more quickly. Thus, the adult-oriented and graphic nature of the materials weighs in PEI’s favor as well.

There is no citation for this admitted "assertion," so one wonders whether this assumption is based on the court's personal experiences. And what do they mean by "graphic" here? If one were searching for graphic pornography, one would be unlikely to be interested in Playboy.

via The Trademark Blog

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

November 20, 2003

Pop-up Ad Firm Beats Preliminary Injunction Sought by Wells Fargo

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Posted by Ernest Miller

WIRED reports that "contextual marketing" firm (a purveyor of pop-up and pop-under ads keyed to URLs and keywords) has won a decision against Wells Fargo, which was seeking a preliminary injunction against (Pop-Up Firm Wins Again in Court). Read the 66-page decision: Wells Fargo v. Memorandum Opinion and Order Denying Plaintiffs' Motion for Preliminary Injunction [PDF]. The decision is an important victory for the end-to-end principle against attempted incursions by trademark and copyright law. Of course, there are a lot of facts to wade through, including this nugget for which Ben Edelman is cited as the authority:

Since 1996, millions of computer users have become regular users of the Internet and the World Wide Web.

Gee, didn't know that. Additionally, we learn:

...continue reading.

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

November 19, 2003

ICANN Troubles

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Posted by Ernest Miller

Two of the presenters at The State of Play conference, demonstrating their wide-ranging interests, are finding trouble regarding ICANN.

Michael Froomkin is writing about the negotiations regarding the Free Trade Area of the Americas (FTAA) treaty, in particular, the issue of domain names on the internet (Domain Names and the FTAA: A Bad Mix). Some of the problems with the FTAA as regards intellectual property have been noted here previously (IP Justice on IP in the Free Trade Area of the Americas Treaty). Froomkin is rightly critical of the mandate that countries adopt the Uniform Domain-Name Dispute-Resolution Policy (UDRP) already used by ICANN for ".com" (among others) for use with regard to each countries' top level domain name, such as .ca for Canada. If you are interested in this issue, Froomkin's post is quite informative.

Susan Crawford post is bluntly entitled, Things are getting worse at ICANN. Crawford is rightly disparaging of ICANN's report that justifies a decision to amend contracts between ICANN and the registries: Staff Manager's Issue Report on the Need for a Predictable Procedure for Changes in the Operation of TLD Registries.

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

November 12, 2003

TV Producers Take Heart - TiVo Addiction

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Posted by Ernest Miller

The San Diego Union-Tribune runs a Reuters wirestory on the difficulties some have taking time off from their TiVo (PluggedIn: TV viewers find TiVo addictive). A long list of recorded shows on TiVo apparently makes some feel guilty not watching them. While in the past, if you missed a show, you simply missed it. Now the show sits on TiVo's hard drive waiting for you to watch it. I can imagine this can be a problem for some, but most people have experienced similar feelings at one time or another. Have you ever felt guilty about not keeping up with a newspaper subscription, for example? Do you have a stack of magazines waiting to be read, eventually?

Though I don't think this phenomena particularly compelling, I do think that the social ramifications of TiVo are going to be quite interesting, as we increasingly switch from traditional broadcast to new hybrid models.

Side note ... who else thinks that the TiVo trademark is in danger of becoming genericized?

via Techdirt, see also BoingBoing

Comments (0) + TrackBacks (0) | Category: Culture | Tools | Trademark

November 11, 2003

Search Engine Ad Control

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Posted by Ernest Miller

I found this C|Net News story a little disturbing (Search engines face drug test). Apparently, the National Association of Boards of Pharmacy (NABP) is meeting with search engine providers in order to encourage the search engines to "clean up" ads for prescription drugs - by running only ads from those certified by, surprise, the NABP. This seems to be yet another move by major companies to control search engine results to favor their interests, following in the wake of eBay (Google ads a threat to eBay trademark?) and Netflix (Trademarks cast shadow on paid search), not to mention countries like France setting some unfortunate trademark precedent (Google France fined for trademark violation).

Of course, this issue is a little more complicated, since there are safety issues involved. However, isn't that why we have an FDA? Well, yes we do, but the FTC sounds a warning note about private lawsuits:

"I'm not convinced that they [search engines] won't (face private lawsuits) if some minor purchases a controlled substance through facilities based on ads they've allowed to run," Cleland [the FTC's assistant director for the division of advertising practices] said."

No doubt some attorney will try to run with that ball, but we can only hope the lawsuit fails. After all, do we allow billboard owners to be sued when minors buy alcohol advertised on billboards?

Commercial speech, though subject to different levels of protection than other speech, is still important from a freedom of expression point of view. Advertising via search engines is going to be an important aspect of this speech on the internet. We should be concerned about how search engines restrict this form of speech.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Internet | Trademark

Merriam-Webster Responds to McJob Controversy

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Posted by Ernest Miller

I've spoken with Merriam-Webster's publicist and although he had no immediate comment as to why the term McJob was removed from the new word samples page (see, McWimps - Merriam-Webster Caving to McDonalds Threats), he did provide me the following statement:

SPRINGFIELD, MA., NOVEMBER 2003—Merriam -Webster Inc., publisher of Merriam-Webster’s Collegiate® Dictionary, Eleventh Edition, stands by the accuracy and appropriateness of its definition for McJob:
“a low-paying job that requires little skill and provides little opportunity for advancement”
Words qualify for inclusion in the dictionary because they are widely and commonly used in a broad range of carefully edited sources. For more than 17 years, “McJob” has been used as we are defining it in a broad range of publications, including The New York Times, U.S. News & World Report, Publishers Weekly, Rolling Stone, The Times (London), The Boston Globe, Ms., Harper’s, The New Republic, Utne Reader, The Vancouver Sun, Sunday Times of South Africa, and Queensland Australia’s Courier Mail.
In editing the Collegiate Dictionary, we bear in mind the guidance offered by Noah Webster that “the business of the lexicographer is to collect, arrange, and define, as far as possible, all the words that belong to a language, and leave the author to select from them at his pleasure and according to his judgment.” The English language is constantly changing and evolving, and it is the duty of Merriam-Webster editors to record and reflect these changes.

I'm glad to see this statement, but I still wonder about the removal of the word from the sample page.

In a related post, Dana Blankenhorn looks at the economics behind the phrase (McEconomics).


Merriam-Webster responds to the question of the removal of the word from the sampling page:

The "New Words Sampler" on the free site was not the Collegiate Dictionary--it was a marketing tool to promote the dictionary. "McJob" has not been removed from the Collegiate Dictionary, which can be found in print, CD-ROM, or online at Because people were confusing the content of the marketing piece with the full content of the Eleventh Edition of the Collegiate Dictionary, it is currently under revision; a new version will be restored soon online.

Hmmmm ...


Don't know why I misspelled Merriam "Mirriam", but I did. It is now corrected.

Comments (3) + TrackBacks (0) | Category: Freedom of Expression | Trademark

McWimps - Merriam-Webster Caving to McDonalds Threats

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Posted by Ernest Miller

On Saturday, I took a look at McDonalds claim to be upset by the inclusion of the word McJob in the eleventh edition of the Merriam-Webster dictionary (McTrademark Follies). As I noted, the complaint seems quite specious since the word has been in common usage for nearly a decade and is found in many other dictionaries.

However, yesterday, Blind Höna | På Kornet noticed that the Merriam-Webster website has removed the term "McJob" from their page touting new words added in the 11th edition (McDonald's Newspeak: Unwanted words purged from dictionaries).

The evidence is clear: note this source HTML for the page with a list of some of the new words added to the 11th edition (

<!-- pulled 11/10/03 <p>

<a name="McJob"></a><strong>McJob</strong> . . . . <em>noun</em> (1986) <strong>:</strong> a low-paying job that requires little skill and provides little opportunity for advancement


via BoingBoing

UPDATED 1640 PT - Corrected misspelling.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Trademark

November 08, 2003

McTrademark Follies

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Posted by Ernest Miller

MSNBC runs an AP wirestory reporting that hamburger purveyor McDonalds is upset by the inclusion of the word "McJob" in the latest version (11th Ed.) of the Mirriam-Webster dictionary (McDonald’s balks at ‘McJob’ entry):

In an open letter to Merriam-Webster, McDonald’s CEO Jim Cantalupo said the term is “an inaccurate description of restaurant employment” and “a slap in the face to the 12 million men and women” who work in the restaurant industry.


“McJOBS is trademarked and we’ve notified them that legally that’s an issue for us as well,” Riker [a spokesman for McDonalds] said.

...continue reading.

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

November 04, 2003

Abusing Trademark to Control Searching

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Posted by Ernest Miller

David Galbraith has an interesting post about Google's Trademark Complaint Procedure (Trademarking search terms). He wonders whether there is a "possibility of people trademarking terms and expressions specifically so that they can use them within Google ads?" In other words, whether people will trademark "Blog" candy, in order to control the use of the term "Blog" in Google ads - whether or not the ads had anything to do with candy. Given that Google has already been hit with court-imposed fines for trademarked keywords triggering ads, they certainly would be reticent to stop people from abusing the system this way (Google France fined for trademark violation). Thanks, France.

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

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 19, 2003

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.

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