Google has announced a change in its advertising policy and will now be allowing advertisers to bid on placement for trademark protected terms. They’re not allowing advertisers to use others’ trademarks in the ads themselves, but rather in the machine code that determines which ads to show on a given search results page or Adwords client page. (For example, the “Ads by Google” you see on the left side of this page.)
This is a significant issue for Google because it will bring more revenue and more law suits. The revenue will come from competing companies that want to target users who are interested in the competition. The law suits will come from companies that want to suppress such ads and will argue that the machine use of trademarks is infringement.
The issue of whether using trademarks in machine code constitutes infringement has not been clearly determined, but the issue is now arising in multiple contexts (search engine advertising is just one – third party pop-up ads is another). Apparently Google is confident that the machine use of trademarks does not constitute infringement. I think they have a strong argument (after all – trademark law is really supposed to protect against consumer confusion – upon which machine linking as no effect). We’ll see if the courts agree.
My opinion on Holding Names Hostage is available today over on De Novo as part of their symposium on Internet, Law, & Culture. Comments on that topic should be posted at De Novo.
I was able to obtain a copy of Lawrence Lessig’s new book this weekend in Amsterdam. I had thought of all sorts of schemes to see how quickly I could get a copy of the book from the states, assuming I wouldn’t find it in the typical Dutch book shops (which almost never have non-fiction books in the English language). I finally found the book in an American book store in Amsterdam – though I nearly left without seeing the book and only spotted it out of the corner of my eye from across the room as I was descending the stairs in disappointment (it wasn’t next to the other two of Lessig’s books).
Interestingly, the book store also featured a section of “American food” for homesick ex-pats. A good portion of the selection was Dunkin Hines cake mixes. I didn’t realize that was what I’m supposed to be missing here in the Netherlands. I miss burritos.
I was surprised that Lessig didn’t release the book online under a Creative Commons license (the copyright notice in the book explicitly reserves all rights). In fact, I was confused. He did release a Creative Commons version in pdf, and other formats would follow.
I don’t know if it’s good or bad that I’m actually reading (and caring about) the copyright notices in books now. I just finished A Heartbreaking Work of Staggering Genius and I have to admit that I was greatly entertained by Dave Eggers’ version of fine print (click “next page” to see the copyright notice).
I am now taking suggestions regarding how I should spend the $13.86 I recently received in this class action settlement. Use the comments link to make a suggestion.
If you haven’t heard, there’s a big copyright protest going on today regarding a certain remix album that juxtaposes the Beatles’ White Album with JayZ’s Black Album – thus making a Grey Album.
I’m pulled in both directions on this one. There’s no question that EMI, the owners of the copyright to the sound recording of the White Album, have the exclusive right to reproduce and make derivative works of that sound recording. Thus DJ Danger Mouse is in violation of those rights. I think the protestors concede this point, but they argue that the law should be changed or that EMI should just ignore the fact that their legal rights are being violated.
In my opinion, we do need legal tools that allow works to be used as building blocks for future works. On the other hand, creative works need to be protected to some degree to provide incentives to the creators. I think the law is too rigid in the sense that it protects works for such a long time period (the social costs of which outweigh the incentives to create). I don’t, however, think that people should be able to take large portions of another’s work when that person clearly intends to enforce their rights in, for example, a famous album that is less than 40 years old.
Copyright law must strike a balance between incentives to create and a rich public domain. Right now, I think the incentives are poorly planned, but I’m not in favor of ending protection entirely. Many protestors today seem upset with the fact that EMI is enforcing their legal rights. I can’t blame EMI for that.
Grey Tuesday / Downhill Battle
Illegal Art (has the album)
Wired Article (a clearly written introduction)
Rebecca Bolin is writing a series of posts about spam regulation in various countries over at Law Meme. It’s a mini-series of Spam Around the World.
I have something interesting about foreign spam to share too, but it’ll have to wait until a certain someone emails me a certain photo. Stay tuned.
Microsoft sues 17 year old Mike Roe (Soft). Everyone loves to hate Microsoft but I don’t see what’s wrong with trying to protect one of the strongest trademarks in history. WebmasterWorld has an interesting, but rather uninformed, discussion.
Mike Roe apparently has enough bandwidth to keep his site up despite everyone rushing to see it. I wonder if this UVA student with the same name is seeing any extra traffic to his site.
Maybe I should register MikeRoeChip.com, which appears to be available right now.
There was a comment about the Lexis points that compared them to the famous Harrier Jet case. The story goes like this: Pepsi made a television commercial advertising their Pepsi Points promotion. As consumers collected Pepsi Points, they could turn them in for various items. At the end of the commercial, a student arrives at school in a Harrier Jet, and the words “HARRIER FIGHTER 7,000,000 PEPSI POINTS” are displayed on the screen.
Someone actually scraped together 7,000,000 points and tried to get the jet. Pepsi wouldn’t comply and found themselves as a defendant in federal court.
The court explains the commercial in detail:
The three boys gaze in awe at an object rushing overhead, as the military march builds to a crescendo. The Harrier Jet is not yet visible, but the observer senses the presence of a mighty plane as the extreme winds generated by its flight create a paper maelstrom in a classroom devoted to an otherwise dull physics lesson. Finally, the Harrier Jet swings into view and lands by the side of the school building, next to a bicycle rack. Several students run for cover, and the velocity of the wind strips one hapless faculty member down to his underwear. While the faculty member is being deprived of his dignity, the voiceover announces: “Now the more Pepsi you drink, the more great stuff you’re gonna get.”
The cite is Leonard v. PepsiCo, Inc., 88 F. Supp. 2d 116 (S.D.N.Y. 1999). Or you can just click here. The description of the commercial is well worth it.
Now, lets hypothetically imagine that Lexis and Westlaw offered the Harrier Jet. Based on a sticker price of $23.7 million, it would take about 1.15 billion Lexis and Westlaw points to buy one. If only these points were transferable…
A few months ago, a partner at Paul Weiss ate some bad sushi. She gave a paralegal the assignment of researching the sushi restaurants in the area and reporting back. What followed was a formally written three-page memo, complete with footnotes. The memo has surfaced in recent days, and has been getting passed around law firm inboxes.
The New York Times covered the story yesterday, but Gawker has the memo.
If I ran a firm I would never let this sort of thing happen. The footnotes are not in Bluebook format!
As I write this there are Red Sox fans in my street hootin’ and hollerin’ in celebration of tonight’s victory. I don’t know if those in other cities have been privy to the “Cowboy Up” phrase that has become an unofficial slogan / cheer of this year’s Sox, but it’s popular enough to have found its way onto t-shirts, signs, and even into law school emails.
The trademark implications of printing “Cowboy Up” on t-shirts and signs could be very interesting as excited fans open their wallets. The Associated Press reports that a Wyoming company called Wyoming West Designs that has a trademark in the phrase has begun to make quick licensing deals with baseball merchandise vendors. I can’t find this in the USPTO database. It’s late though – so maybe it’s there and I just don’t see it. In any case, I doubt Wyoming West would have a good case for infringement against those making the shirts to sell outside Fenway Park. There could hardly be confusion as to source.
The Red Sox themselves might have a good case against the shirt makers since they’re relying on the good will of the Sox to sell the shirts (which have the same colors and fonts as the Sox’s marks). I suppose a cheap license from Wyoming would give the Sox a stronger case against shirt makers around Fenway.
In any case, I’m too tired to really analyze this, but I think it’s an interesting case. Wyoming West Designs really has been using the mark for shirts and stickers, but they don’t own the domain cowboyup.com. Jerry England got to that one first. He’s using the phrase for his “folk art”. Someone is running some sort of instant community software to make cowboyup.org, but it looks to me like this was before the Sox’s use of the phrase. Cowboyup.net features another clothing store. So it appears that the phrase was popular enough amongst real cowboy enthusiasts to snatch up all the good domain names before baseball marketers knew what was happening. Maybe the fans should have adopted a fanciful mark like “Cobup”. It would have been much easier to protect under trademark law.
There’s only one Google Adwords ad for “Cowboy Up”, and the interest bar is full from people going to Today’s Champs.