A Moron In A Hurry

October 18, 2006

Steal This Recipe

Filed under: copyright, patents — nick @ 3:02 pm

Sometimes you just have to stop and wonder what is going on.  Legal Fixation comments on an article in Food & Wine on intellectual property in the kitchen.  Efforts include patenting certain concoctions, as well as copyrighting the expression of recipes themselves.  Of course, outright plagiarism of published recipes is a no-no, and some food processes (like engineering absinthe or molecular gatronomy) may seem apt for some sort of IP protection at first glance, but it still remains to be seen whether most cooking is truly inventive.  Chefs may disagree, but their self-interest in protecting their ritzy concoctions should be checked by some sanity.  Surprisingly, the fashion industry, which mirrors cooking in that they’re both evolving arts, has been making strides in protecting their wares, with legislation even being considered in Congress, but I’ll send you to Counterfeit Chic for more on that.  Still, we should consider the cultural implications of such food rights for fear that they go too far.  Rather than buying my food, it’s easy to imagine a time when a restaurant licenses me the right to eat their food, much like the entertainment industry is seeking to characterize “purchases” of songs and movies as merely purchasing limited licenses to use.  Upcoming chefs often work in apprenticeship type positions, meaning at some point they will be confronted with NDAs and be forced to sign away all rights to recipes they come up with to their restaurants (who will of course be in dominant position of power given the stiff competition in the industry).  Worst of all, if food patents become big business, the difficulty in proving prior art in culinary seems overwhelming and the likelihood of patent trolls seems inevitable.  Chefs had better be careful what they wish for.

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October 17, 2006

Phone’s Ringing, Oh My God

Filed under: copyright — nick @ 7:31 pm

The Register of Copyrights has ruled that mastertones (actual recordings of songs used as ringtones) are covered by the compulsory license requirements under Section 115.  This may lead to reduced royalty payments to music publishers and thus cheaper ringtones for all.

August 22, 2006

Dylan on Tech

Filed under: copyright — nick @ 4:41 pm

Quote of the day, courtesy of Bob Dylan:

Noting the music industry’s complaints that illegal downloading means people are getting their music for free, he said, “Well, why not? It ain’t worth nothing anyway.”

To be fair (and to put it in context), he was referring to his belief that new technology doesn’t make his music sound nearly as good as it sounds in the studio.  He is right though.  Even if Dylan gave mp3s of his songs away for free he would still make tons of money touring, most of which would go straight into his pocket.

August 15, 2006

Making Digital Backups of Our Culture

Filed under: copyright, internet — nick @ 1:25 am

One of the problems with locking up major cultural moments behind the walled garden of IP law is that it’s up to those who “own” them to preserve and maintain them for future generations. For all the talk that piracy and unauthorized copying hurt the short term financial prospects of such things, it’s also equally true that having millions of people with their own copies of such things will help ensure that they are always around. Strength in numbers and all. That’s why it’s so alarming to here that NASA can’t find the original recording of Neil Armstrong’s epic statement of “one small step for man, one giant leap for mankind.” In all, NASA reports that “some 700 boxes of transmissions from the Apollo lunar missions are missing.”

Not to say that NASA doesn’t care about preserving such things, but it’s not their top priority, especially when faced with increasing budget cuts while at the same time being asked to plan for more ambitious missions (like to Mars). If it’s possible to lose that recording – possibly the greatest moment of mankind since maybe harnessing fire – shouldn’t we be thinking harder about not letting such things disappear?

The Internet, and digital technology in general, allows us the opportunity to never even have to worry about such things ever again. When such a defining moment happens these days it ought to be recorded digitally and sent out so that people will see it, be amazed, realize it’s important, and download it to their computers. Fortunately, something similar has happened with NASA, as it appears the only copies available now are those that were sent to television stations for broadcast. Again, strength in numbers.

In a way that gets little attention, this is what Google is trying to do with Book Search. There are millions of books whose “owners” are not properly motivated enough to ensure that they will be read in the future. Rather then allow for such a valuable project to proceed, the “owners” think it better to sue under the thinking they might get a few extra nickels out of the deal. Though Google is only one, it is better than no digital backups, which was the problem NASA had with the original recordings.

The larger point to remember is that when control of important works is entrusted to a select few, the odds of losing a significant moment that defines a culture, a species even, is more likely to be lost than if it were widely distributed. Preservation seems to get little attention these days when it comes to IP issues and the Internet, unless you take the position that locking things up produces more, because if it gets lost, then the only choice is to create more to fill the void in the market.

July 22, 2006

Name that Smell

Filed under: copyright, patents, trademark — nick @ 11:18 am

There has been lots of discussion on-line recently as to the IP status of scents.  Here is a quick round-up of the discussion and a technological development that could change everything.

It seems that the stink first wafted over the Atlantic due to recent decisions in France and the Netherlands that have recognized copyrights in perfumes. Counterfeit Chic was the first to report on this and the NYT followed (or here) up a few weeks later.

Info/Law thinks that a smell, more specifically a perfume, should be protected by patent law rather than copyright, but also notes the way that the French are much more protective of the moral rights of artists.

There’s also the question of trademarking a smell. As The Trademark Blog has pointed out, a Lituanian pizza parlor is arguing that the smell of their pizza has secondary meaning that affords it trademark protection:

“Opinion polls show that many consumers in Lithuania identify the pleasure of eating pizza with our trademark,” said Mindaugas Gumauskas, marketing director of the [pizza chain]. “This makes us believe that the scent of freshly baked pizza is a subject to our copyright.”

If the request is granted, it does not mean that other pizzerias would have to stop making the oven-baked dish, but only [the chain] would be able to make the claim that its food smells like freshly baked pizza.

Thus highlighting the potential peril of such an expansion of intellectual property rights.

Since trademark is all about brand protection, there are always people looking to protect nontraditional marks such as smells, tastes, feels, and etc. Here’s also a bit of history behind protecting nontraditional marks.

Generally speaking, smells have usually been denied protection because there is no good way to define one. For instance, registering a trademark requires a graphical representation of the mark, which is impossible for a smell, as the Court of First Instance of the EC ruled in Eden v. OHIM in denying trademark protection for the smell of strawberries.

A patent requires both that the subject being patented be new and non-obvious.  Using the smell of strawberries as an example, the scent is clearly neither new nor non-obvious; everyone knows and can recognize the smell of strawberries.  However, gene patents have become fairly commonplace since a case, Diamond v. Chakrabarty, 447 US 303(1980), first loosened the accepted ban on patenting living organisms.  There, SCOTUS said a man-made organism was patentable.  Gene and other bio patent seekers attempt to exploit this kind of loophole, with moderate success, through the drafting of narrow claims over extracted or purified biological elements.  Thus, while a regularly occurring gene as it occurs in nature might not be patentable, using mechanical processes to isolate it increases the odds that the lab version can be patentable.  Though, gene patents are hotly contested as being incompatible with the plain meaning of patent law, especially as more obvious biological phenomena are being patented.

So what do gene patents have to do with scents?  In 2004, Dr. Richard Axel and Linda Buck were awarded the Nobel Prize for scientifically describing how scents are processed by the nose.  It should be no surprise then that, based on this discovery, researchers are working on a machine that is able to record a smell and play it back.  If successful, not only does this mean that the smell of my mother’s one of a kind apple pie – using a mix of McIntosh and McCoun apples with cinnamon, nutmeg, and a dash of cardamom – could be recorded and coded (ie. fixed in tangible form), it could also be duplicated for all sorts of uses.

And once there’s money to be made the IP lawyers and suits will follow.  If you fix it, they will come.  Such a smell machine would break down many of the practical barriers in denying scents IP protection.  Copyright?  Here’s the olfactory code of my smell, much like a computer program.  Trademark?  With the ability to reproduce at will and package ingeniously, building secondary meaning is no longer so difficult or implausible.  Patent?  Like with gene patents, if I modify the smell of strawberries and can isolate it from its natural source, what’s stopping the USPTO from giving me a patent?  All of a sudden, what seems practical – scents are too ill-defined for IP protection – starts to smell a bit fishy.

July 18, 2006

Pirate Hunting Merit Badges

Filed under: china, copyright — nick @ 10:00 am

The NYT reports today on the Boy Scouts of Hong Kong and their new Intellectual Property Badge Award Program:

Starting this summer the Hong Kong government plans to have 200,000 youths search Internet discussion sites for illegal copies of copyrighted songs and movies, and report them to the authorities. The campaign has delighted the entertainment industry

One of the concerns that the program, helped put in place by the Motion Picture Association, raises is that these Scouts are going to be teased and labeled uncool by their friends. In response, the MPA is flying in a bunch of movie stars to meet with the Scouts to make them feel cooler about what they’re doing.

The program actually could be good for the Scouts, even if the program was rolled out here, so long as the kids were taught both sides of copyright without all the propaganda. The Boy Scouts should be aiming to teach kids the things they need to know to be good citizens that they aren’t taught in school and teaching about copyright is a brilliant move. Of course, the lack of a Fair Use Merit Badge shows that this program is helplessly out of balance.

July 11, 2006

Are We All Pirates?

Filed under: copyright — nick @ 10:49 am

The LA Times posts an editorial We Aren’t All Pirates, criticizing Hollywood’s efforts to put the balance that copyright law is supposed to create between artists and the public out of whack, declaring that:

Lawmakers shouldn’t assume all consumers are bootleggers and every digital device is a hand grenade aimed at Hollywood.

That many of Hollywood’s actions involving copyright stiffle innovation isn’t news, but that Hollywood’s local paper agrees seems surprising.

June 13, 2006

Hans Zimmer Sued for Ripping Off Gustav Holst

Filed under: copyright — nick @ 7:53 pm

Hans Zimmer, the Oscar-nominated composer of the Gladiator score, is being sued by the Holst Foundation for copyright infringement, claiming that Zimmer’s work is a copy of Gustav Holst’s “Planet Suite.

I have not heard either, so can make no judgment, but here is an interesting excerpt from a review of Zimmer’s score:

It has a pacing and sometimes a melody that is similar to Gustav Holst’s “Mars, Bringer of War”, but the imagery and power that it evokes more than makes up for the brief similarities that come through the music. It’s hard really even to describe, there are so many things going on at once in the music.

Another online review thinks that Zimmer’s “The Battle” is a rip off from “Pirates of the Carribean.”

The Amazon.com review of the Gladiator score:

Most modern Hollywood films have musical “temp tracks” laid in as they’re edited, usually classical standards or music from other soundtracks that helps shape the dramatic and emotional intentions of works in progress. Sometimes these temp tracks become the score (as in “2001”), but more often they serve as a template for the film’s eventual scorer. That said, we’ll boldly climb out on a limb and opine that director Ridley Scott was listening to a whole lot of Holst’s The Planets as he was cobbling together his modern gladiator epic.

What does Zimmer’s lawyer think of the claim?:

Just listening to the two works is enough to tell any listener this claim has no merit.

Really?

A Portrait of the Artist as a Copyright Villain

Filed under: copyright — nick @ 6:11 pm

I am not likely to die of bashfulness but neither am I prepared to be crucified to attest the perfection of my art. I dislike to hear of any stray heroics on the prowl for me.
~ James Joyce, explaining to his brother the balance of pride and practicality that governed the public side of his career as a writer.

Carol Schloss, a Stanford professor of English, has filed suit against the estate of James Joyce challenging its assertion that her scholarly work on Joyce would amount to copyright infringement:

Shloss accused Joyce's grandson, Stephen James Joyce, and estate trustee, Sean Sweeney, of destroying papers, improperly withholding access to copyrighted materials and intimidating academics to protect the Joyce family name.

Traditionally, copyright laws provide an exemption for academic or scholarly research when the use of copyright work is at issue – such is considered fair use – which is what is happening here:

The dispute centers on Shloss' research for "Lucia Joyce: To Dance in the Wake," her 2003 book that posited James Joyce's mentally ill daughter was the muse behind "Finnegans Wake," his last novel. Published in 1939 and filled with Joyce's trademark puns and impenetrable prose, "Finnegans Wake" traces human history through the life of an Irish everyman and his family.

Lucia Joyce, who first was committed to a mental hospital at age 25, died in 1982 at age 75. Shloss maintains in her book that Lucia Joyce's inspiration is woven throughout "Finnegans Wake," but says in her lawsuit that the Joyce family has labored to excise any public or academic mention of the woman.

Stephen James Joyce's, James' grandson who now controls the estate, has an article describing his abusive treatment of academics in this week's New Yorker. His stance is to be critical of acadamia, generally questioning its worth and its motives to expose his family's private affairs:

As I got older, I realized Joyce is not the difficult writer they say he is,” he said. “When they say, ‘We’ve done so much for him,’ I think, What about the thousands, not to say millions, of readers they scared off? All this crap they write—that’s good old American slang!”

The article also lays out the background to the lawsuit, with Lawrence Lessig provding a bit of commentary on the case. In fact, his name is at the top of the complaint, which can be read here, and is being brought by Stanford Law's Center for Internet and Society.

It's a fascinating case, with some legitimate claims brought forth by Joyce's Estate. Unfortunately, while one may share sympathy with the Joyce Estate, it's really a matter of whether the law backs up its claims, which as written probably don't to the extent that it wishes. Read the New Yorker article, as it explains the conflict like no other, until I can digest the complaint and cover it more thoroughly.  William Patry has some further analysis of the case, as well as further readings on this area.

Essentially though, if Schloss's use isn't fair use, then I'm not sure what is.

New Copyright Treaty in the Works

Filed under: copyright — nick @ 4:56 pm

It appears that the US is behind a new treaty that would extend intellectual property rights to cover anything that is broadcast or webcast:

Now imagine creating an entirely new layer of rights over everything that is broadcast or webcast, on top of whatever copyrights already cover the work. You find a copy of a movie in the library and manage, at great expense, to work out that it is in the public domain, or to get the copyright holder’s permission. Perhaps the work is covered by a Creative Commons license, granting you permission to reproduce. Not so fast! Even after trudging through all the orphan works problems in copyright, you would have to prove that this copy had not been made from a broadcast or webcast. More clearance problems! More middle-men! More empirically ungrounded state-granted monopolies! Just what we wanted. There are even some serious free speech problems.

It’s an old trick.  Congress supports making international treaties more draconian so it can defend its domestic actions by saying “We’re merely trying to step in line with the rest of the world.”  By the way, William Patry made this point as to this treaty a while ago.  It certainly is convenient that Congress is so concerned with world opinion when that opinion is driven by domestic corporate interests.  And where are the complaints of foreign or international law shaping our Constitution?

Thanks Slashdot
.

June 9, 2006

Hollywood v. Hackers

Filed under: copyright — nick @ 2:10 pm

In the left corner:

John Perry Barlow used to be the lyricist in the US supergroup ‘The Grateful Dead.’ He went on to co-found the Electronic Frontier Foundation, the pressure group that’s placed itself front and centre in the fight to keep the tanks of government and corporation off the lawns of cyberspace.

In the right corner:

Congressman Dan Glickman became US Secretary for Agriculture under Bill Clinton. Nowadays he’s the President and CEO of the Motion Picture Association of America, the body that wields the collective political and legal muscle of the Hollywood studios.

And the decision goes to Barlow, for when he says:

These are aging industries run by aging men, and they’re up against 17-year-olds who have turned themselves into electronic Hezbollah because they resent the content industry for its proprietary practices. And I don’t have a question about who’s going to win that one eventually.

But you know the problem is – the bad news is that you’re up against a dedicated foe that is younger and smarter that you are and will be alive when you’re dead. You’re 55 years old and these kids are 17 and they’re just smarter than you. So you’re gonna lose that one.

June 4, 2006

Major Murphy and the DMCA

Filed under: copyright, DMCA — nick @ 8:11 pm

Whether it can be attributed to Murphy's Law, or perhaps I think Hanlon's Razor, the IEEE Spectrum reports on a whole host of useful technologies and projects which were abandoned because of the legal restrictions imposed by the DMCA. This is just the latest in a series of reports that condemn the DMCA, whether because of the chilling effects of DMCA take-down notices, the problems it creates for search engines, or simply because its just a bad law from front to back. DMCA's supporters no doubt praise its effectiveness, but they are also in the business of propaganda and protecting profits at all costs. Hopefully members of Congress will take heed of these reports before ramming another insane copyright bill down our throats. Though it's difficult to compete with the lobbying budgets of the big content companies, they and Congress should at least offer the public a reach around in the form of some sort of concession towards protecting consumers through ensuring interoperability of formats and devices, for example.

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