IPTAblog

The New York Times, Art Purchases Lead to Lawsuits Following Cruise Ship Auctions: "When most people think of art auctions, they think of Christie’s or Sotheby’s in New York or London, not a cruise ship. But over the last two decades, auctioning ‘fine art’ on cruises, often to first-time bidders who have never met a reserve or inspected a provenance, has become big business."

Law.com, Cruise Passengers Claim Gallery Short-Changed Them During Voyage: "He ended up buying two works on a two-week cruise aboard Celebrity Cruise Lines' Constellation in June 2007. Bouverat said he was told the print and painting he purchased from Park West Gallery were worth about $15,000 apiece. He paid a total of $20,520. Once on land, he says he learned the Miro print was almost worthless, akin to poster art. The other piece was a painting of a clown playing a guitar by Anatole Krasnyansky. Bouverat said Krasnyansky appears to work exclusively in a stable of artists for Southfield, Mich.-based Park West, which bills itself as 'America's premier art dealer.'"

More links available at the Art Law Blog: At Sea (UPDATED)

Michael Madison, Madisonian, has a thoughtful look on the Scrabulous and the online reaction, The Stakes of Scrabulous, "Still, on balance, I think that Hasbro deserves a win if the case were litigated to judgment; the name 'Scrabulous' would likely be found to be confusingly derivative of 'Scrabble,' and the boards do resemble one another, though they are hardly identical. Still, if the producers of Scrabulous changed the name to 'CrosswordMania' and changed the color scheme of the Board, then they would be on safer ground. Not to say safe ground altogether, but safer. Hasbro’s IP rights don’t extend to the idea of online crossword games."

In its complaint against the Scrabulous developers, Hasbro describes the Scrabble board:

19. The SCRABBLE® playing board has bonus squares that give the player who puts a word on them double or triple letter scores and double or triple word scores. The square are colored, marked, and arranged as shown in Exhibit 1.

A. The center square is rose colored with a black star and the first player to take his or his turn receives a score that is double the value of the tiles.
B. The 4 corner squares and the 4 squares that are mid-way along each side (that is, that are 7 squares from the corners) are deep red in color and are labeled and award the player a "triple word score." There are 8 total "triple word score" squares.
C. Starting with the tile diagonally closer to the middle of the board for each corner "triple word score" square, the next four squares diagonally toward the center of the board are rose in color and are labeled "double word score." There are 16 total "double word score" squares.
D. "Triple letter score" squares are dark blue and "double letter score" squares are light blue. They form an "X" pattern through the center of the board and pyramid shapes off the sides of the board with the dark blue "triple letter score" squares forming the outer points of the "X" and the second level of the pyramids. There are 12 dark blue "triple letter score" squares and 24 light blue "double letter score" squares.

Here is a Scrabble game:

This is a Scrabulous game:

Here is what the licensed version of Scrabble on Facebook looks like. Note that the colored squares are different colors than the board game. What does this mean as far as the distinctiveness of the Scrabble trade dress?

What about a game that shares the word list and tile distribution and number of places on the board, but has a different look and places the bonus squares in different locations on the board? What if this game is configurable by the user and gives the game players the option to set it up like a Scrabble board but doesn't offer the Scrabble setup as a preset?

That's what the creators of Scrabulous have done with their new game, WordScraper. Is there any likelihood of confusion here? Copying?

I was too busy playing Scrabulous last week to blog about the complaint filed by Hasbro against the creators of Scrabulous, the online word game that happens to share the board layout and rules of play of Scrabble.

Complaint in Hasbro v. RJ Softwares (08cv06567, NYSD filed Jul. 24) for copyright infringement, trademark infringement, trademark dilution and common law unfair competition.

In addition, Hasbro served Facebook with a DMCA takedown notice.

Facebook forwarded the takedown notice to the Scrabulous developers who prevented access to the application for addicts users in the US and Canada.

In the NY Times Bits Blog, Brad Stone reports Hasbro Notches Triple-Word Score Against Scrabulous With ‘Lawsuit': "'Hasbro has an obligation to act appropriately against infringement of our intellectual properties,' said Barry Nagler, Hasbro’s general counsel, in a statement. "We view the Scrabulous application as clear and blatant infringement of our Scrabble intellectual property, and we are pursuing this legal action in accordance with the interests of our shareholders, and the integrity of the Scrabble brand.'"

Wendy Seltzer argues that a game like Scrabble is not a sufficiently creative form of expression to be copyrightable. Scrabbling for Legal Rationalism: No Copyright for Games: "So the 'methods of operation' — the rules of the game, should be uncopyrightable no matter how intricate. Their particular expression in an elegantly written manual may be protected, but another is free to extract the underlying ideas and rewrite the manual to describe an identically played game."

At Madisonian, Frank Pasquale also wonders about whether copyright protects the Scrabble board, but that the similarity between the marks seems like to lead to a likelihood of confusion, Absolutely Scrabulous: "But that still leaves the elephant in the room%u2013the substantial similarity between Scrabulous and the mark Scrabble. But in keeping with the theme of this post (of pushing defenses here to the breaking point)%u2013could Scrabble be generic? I know that%u2019s doubtful, but I also have a sense that there is no other way that people refer to the %u201Cgame that involves seven lettered tiles played for points on a board that includes double and triple letter and word scores.%u201D On the other hand, if you asked the %u201Cman on the street%u201D if Scrabble is the name of a word game or the name of trademark for a company%u2019s (version of a) word game, it seems like the latter interpretation is at least as likely as the former for someone with an elementary knowledge of the law."

More than anything in the short term, the takedown will be the best promotion for Hasbro to drive traffic to the licensed Scrabble application (which, surprisingly, is dreadfully slow and ugly compared with the simple and relatively elegant Scrabulous application.)

The New York Times reports on the use of search engine data to establish community standards for web sites, What’s Obscene? Google Could Have an Answer: "In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like ‘orgy’ than for ‘apple pie’ or ‘watermelon.’"

The Times also reports that most of the buyers of Grand Theft Auto found it acceptable that the violent, mature-rated video game include hidden sex scenes and chose not to file for a claim in a class action settlement. Hidden Sex Scenes Draw Ho-Hum, Except From Lawyers: "Lawyers who sued the makers of the video game Grand Theft Auto: San Andreas profess to be shocked, simply shocked, that few people who bought the game were offended by sex scenes buried in its software. Any buyer upset about hidden sex in the violent game could file a claim under a settlement the lawyers struck with the game’s maker, Take-Two Interactive. Of the millions of people who bought the San Andreas version after its release in 2004, exactly 2,676 filed claims."

And, not really related, the state of Kentucky will filter blogs on its computers under the same standard it treats all other websites. Greg Beck writes at Internet Cases, Kentucky settles banned blogger’s First Amendment challenge to Internet filtering policy: "Political blogger Mark Nickolas yesterday settled his lawsuit against Kentucky, in which he challenged the state’s policy of blocking blogs on state-owned computers. The settlement provides that Kentucky will no longer target websites for restriction just because they are blogs, and will instead treat them in the same way it treats other websites with similar content. In other words, classifying a website as a ‘blog’ is no longer a good enough reason to ban a site on the state’s computers."

NPR reports on the Chinese groups using P2P to distribute subtitled versions of American TV shows: Chinese Fans Follow American TV Online - for Free: "Han says they can download untranslated versions of the American shows from the peer-to-peer file-sharing site BitTorrent as soon as 10 minutes after new episodes air in the U.S. Then they find closed-captioned scripts in English; those also turn up online shortly after the show airs. The captioned scripts are the raw material. Han says they take those scripts and turn them into creative Chinese translations."

Previously: Perestroika by Piracy

The New York Times reports on the passing of George Carlin, George Carlin, 71, Irreverent Standup Comedian: "Mr. Carlin was hailed for his poignant observations on the absurdities of everyday life in routines like 'Seven Words You Can Never Say on Television.'"

A broadcast of the "Seven Words" routine brought to the Supreme Court the question of whether the First Amendment allows the FCC to regulate broadcasts of speech that is merely indecent. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

David Oxenford, Broadcast Law Blog, George Carlin - Writing the Indeceny Rules the FCC Never Did: "Perhaps the greatest misimpression of the Carlin routine is the widely held belief that there are in fact Seven Dirty Words that you can never say on the air. In fact, that is not and has never been the FCC's holding. In fact, until recently, there were no words that were specifically banned on the air - all had to be evaluated by context."

New York Times, The Feisty Station That Defended Carlin’s ‘Seven Words’ Looks Back: "In a 1978 milestone in the station’s contentious and unruly history, WBAI lost a 5-to-4 Supreme Court decision that to this day has defined the power of the government over broadcast material it calls indecent."

Bruce Schneier, The War on Photography: "What is it with photographers these days? Are they really all terrorists, or does everyone just think they are?
Given that real terrorists, and even wannabe terrorists, don't seem to photograph anything, why is it such pervasive conventional wisdom that terrorists photograph their targets? Why are our fears so great that we have no choice but to be suspicious of any photographer?"

Serious Eats, On Banning Photography from Restaurants: "It's not hard to relate to Chang's position on Ko; from the minute the place opened, it was overrun by camera-toting food-porn obsessives wanting to capture the joy of a meal at the best new restaurant in the city. But if you ask me, an outright ban is entirely unfair. No photos of the chefs? Sure. No photos of other people in the restaurant? Well, of course. Don't use a flash? Naturally, that's rude."

Here are some more links to pieces discussing the orphan works problem in general along with specific criticisms of the Orphan Works Act of 2008.

Gigi Sohn, Public Knowledge, The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps: "Why do we have all of these orphan works in the first place? We have them because starting in 1978, copyrighted works no longer needed to be registered to get the full protection of copyright law. The consequence of this automatic copyright has been that it has become very difficult to find who owns the rights to a particular work. Even when works are registered, sometimes the owner is a company that goes out of business, or an individual who dies, or sometimes the registration is never updated. If you are a person or institution that wants to use a work under copyright but cannot find the owner, even after a thorough search, you are out of luck — current copyright law provides the same onerous damages whether you are a good faith actor or a pirate. And these damages can range anywhere from $750 to $150,000 per infringement. So nobody takes the risk that the copyright owner will show up and drag him to court. As a result, orphan works are relegated to the dustbin of our culture."

Nancy Prager, Fundamentals of Copyright and the Problem with Lost Owners: unintended consequences: "Unfortunately, the proposed bill fails to offer the original creators of a work any protections related to: 1) the right to make decisions about whether their work can be used; 2) payment; and 3) attribution. In fact, the legislation — which doesn’t even mention creators — could override contract terms that have been spelled out between a creator and a record label."

Carolyn Wright, Photo Attorney, They Still Don't Get It: "While it is true that OW does not make registration with the private registries mandatory, registration will be required if photographers want the same protection for their works as they have now. Specifically, for those photographers who register their photos with the Copyright Office, they also would have to register with the private registeries to rebuff a potential OW defense and thus be eligible for statutory damages, the primary weapon that creatives have to fight infringements."

Donn Zaretsky, The Art Law Blog, On Not Getting It: "There are reasonable grounds for opposing the legislation, and I've discussed some of them here before. But it seems pretty clear to me that the creation of a new private registry that would make it easier to find authors who want to be found is simply not one of them."

Susan Scafidi, Counterfeit Chic, Orphan Works and the Adoption Process: "While many agree that the basic idea has merit, the reality is somewhat more complicated.  After almost two decades of telling creators that they don't have to do anything to receive protection, is it fair to penalize them for not showing up in the Copyright Office's searchable records?  What's a 'diligent effort' to find a copyright holder?  What's 'reasonable compensation' if the copyright holder turns up later?  And -- perhaps most relevant to the apparel industry -- what about the difference between the kinds of works on which it's easy to display copyright notice (a book, for example) and the kinds of works that often don't bear the author's name (like a printed textile that's been cut and sewn into a garment)?"

Dan Lewis suggests going even further and that online publishers should have bear the burden of taking an action to maintain copyright in abandoned works, Copyright and the Duty to Maintain "In the digital age, with content available over the Web, why put all the burden on the subsequent user of the content? Instead, let’s shift the burden on the rights-holder to, in the very least, maintain his content and/or contact information"

Here's an Ask Metafilter post looking for assistance with a real-life example of an orphan work issue-- a willing licensee unable to find the copyright owner in order to obtain a license, I can has copyright permission?: "I am now in the position where I would like to obtain permission to reuse an image, but am having a hell of a time tracking down the copyright owner."

Previously: Working on Orphan Works

Glenn Greenwald, Salon.com, George Bush's latest powers, courtesy of the Democratic Congress: "I've now just read a copy of the final 'compromise' bill. It's even worse than expected. When you read it, it's actually hard to believe that the Congress is about to make this into our law. Then again, this is the same Congress that abolished habeas corpus with the Military Commissions Act, and legalized George Bush's warrantless eavesdropping program with the 'Protect America Act,' so it shouldn't be hard to believe at all. Seeing the words in print, though, adds a new dimension to appreciating just how corrupt and repugnant this is."

Users of text messaging services have a Fourth Amendment reasonable expectation of privacy in the contents of the text messages stored on the service provider's network. Quon v. Arch Wireless Operating Company (9th Cir. Jun. 18, 2008). Analysis from Orin Kerr.

What's the hottest stop on the indie rock touring circuit? It might be the halls of Congress. From The A.V. Club, Random Rules: Jonathan Coulton: "I actually ran into OK Go in the basement of the Senate building in Washington D.C. I was being walked around to various congressional staffers to talk about digital freedom. I was there on behalf of the Digital Freedom Campaign, and they walked me around. We had a bunch of meetings, talked to Congresspeople about what they could do to keep the bits flowing as easily as possible, and why it was important to independent musicians like me. OK Go was there because they were also speaking as part of some hearing, and I ran into them in the basement of the Senate building"

Michael Piatek, Tadayoshi Kohno, Arvind Krishnamurthy, Challenges and Directions for Monitoring P2P File Sharing Networks or Why My Printer Received a DMCA Takedown Notice: "The focus of this paper is to examine the tension between P2P users and enforcement agencies and the challenges raised by an escalating arms race between them. We ground this work in an experimental analysis of the methods by which copyright holders currently monitor the BitTorrent file sharing network. Our work is based on measurements of tens of thousands of BitTorrent objects. A unique feature of our approach is that we intentionally try to receive DMCA takedown notices, and we use these notices to drive our analysis."

Freedom to Tinker: Study Shows DMCA Takedowns Based on Inconclusive Evidence: "The existence of erroneous takedowns is not news — anybody who has seen the current system operating knows that some notices are just wrong, for example referring to unused IP addresses. Somewhat more interesting is the result that it is pretty easy to ‘frame’ somebody so they get takedown notices despite doing nothing wrong. Given this, it would be a mistake to infer a pattern of infringement based solely on the existence of takedown notices. More evidence should be required before imposing punishment."

Catherine Rampell, Chronicle of Higher Education: How It Does It: The RIAA Explains How It Catches Alleged Music Pirates: "Here's how the process works: The RIAA maintains a list of songs whose distribution rights are owned by the RIAA's member organizations. It has given that list to Media Sentry, a company it hired to search for online pirates. That company runs copies of the LimeWire program and performs searches for those copyrighted song titles, one by one, to see if any are being offered by people whose computers are connected to the LimeWire network. For popular songs, the search can turn up dozens, if not hundreds, of hits. A search on Madonna's latest release, '4 Minutes,' turned up more than a hundred users trading various copies of the song."

JA Apparel Corp. v. Abboud (SDNY, June 5, 2008)

Ron Coleman, Likelihood of Confusion, Mad Abboud you: "It’s worth taking a look at because just reading the bare-bones fact pattern of it above, this doesn’t look like a hard case. But perhaps the juicy part of it slowed things down — such as how Abboud, not unsurprisingly for those creative types, showed up at JA Apparel after they’d bought his name lock and stock and barrel (more below) along with his clothing line and promptly found himself ‘unable’ to work with the company due to, yup, creative differences."

Rebecca Tushnet, 43(B)log, jaz hands: Joseph Abboud loses name to company he sold: "In a long and thorough decision, the magistrate judge concluded that noted fashion designer Joseph Abboud had transferred all rights to use his name in a commercial manner to JA Apparel, a menswear label he launched in 1987. He sold the label in 2000 for $65.5 million, along with the associated names, trademarks, etc., including ‘Joseph Abboud,’ ‘designed by Joseph Abboud, ‘JOE,’ ‘JA,’ and similar or derivative terms."

Wall Street Journal, Abboud Loses Trademark Case: "A federal judge ruled that menswear designer Joseph Abboud, who sold his trademark and later left the company that owns it, can't use his name to promote a new line he calls 'jaz."

Here are a couple of articles (and a response) about the history, impact and future of the internet and WWW.

Vanity Fair, How the Web Was Won, "Vanity Fair set out to do something that has never been done: to compile an oral history, speaking with scores of people involved in every stage of the Internet’s development, from the 1950s onward. From more than 100 hours of interviews we have distilled and edited their words into a concise narrative of the past half-century—a history of the Internet in the words of the people who made it."

Nick Carr gets bored easily, blames the web in general and Google in particular. Is Google Making Us Stupid? "Over the past few years I’ve had an uncomfortable sense that someone, or something, has been tinkering with my brain, remapping the neural circuitry, reprogramming the memory. My mind isn’t going—so far as I can tell—but it’s changing. I’m not thinking the way I used to think. I can feel it most strongly when I’m reading. Immersing myself in a book or a lengthy article used to be easy. My mind would get caught up in the narrative or the turns of the argument, and I’d spend hours strolling through long stretches of prose. That’s rarely the case anymore. Now my concentration often starts to drift after two or three pages."

James Grimmelmann, The Laboratorium, Is Google Making Us Insipid?: "Overall, it’s a weak piece. While it’s better-written and slightly more convincing than other entries in the genre of ‘warnings about Internet cognition,’ there’s nothing in it that I haven’t seen before. He shuffles the deck into a different order, but it’s still the same old cards."