I often remind my Civil Procedure students that the rules of civil procedure are critical tools for the practice of law. Kind of like Batman’s utility belt.
Thus, this wonderful graphic, courtesy of St. Thomas Law 1L Alex Fernandez-Lovo (@afernandezlovo):
Cross-posted to Infoglut Tumblr.
President Obama in an electronic fireside hangout discussing patent trolls and software patents: acknowledging problem and admitting we’re “about halfway to where we need to go.” Via @slashdot and @eff.
Cross-posted to Infoglut Tumblr.
A food-for-thought/thinking-in-progress post: does “cyberspace” still exist?
I’ve been thinking about this issue recently in connection with several law review articles I’m writing. My feeling at this point is that our earlier conception of networked communications at the dawn of “cyberspace” in 1996 (see Barlow’s Declaration of Independence of Cyberspace) is quite different from the conception we have today. In an era of social networks, smartphones, apps, and customized services, it may no longer make sense to think of cyberspace as a shared place we visit.
One way of showing this is by examining how Google treats searches for formatives of the word “cyberspace.”
1. Search for “cy”: None of the suggestions include “cyberspace.” Considering the advertising orientation of Google, I’m not surprised that “cyber monday” shows up. But “cyanide and happiness?” Disturbing, much, until I realized that it is a webcomic.
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2. Search for “cyb”: Even more “cyber monday” stuff, with “cyberpower” at the end. Cyberpower makes UPS power strips.
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3. Search for “cyber”: If anything should show “cyberspace,” this should. But I got the same results as for “cyb.” Maybe people just don’t think about “cyberspace” as a place anymore. I’m not sure that I should, either. (“Professor, you’re sooo 20th century….”)
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4. Search for “cybers”: You’d think “cyberspace” would have shown up by now. But it still doesn’t; instead, we see “cybersource” (I had to look it up, it’s a credit card processing company), “cybersquatting” (which I’ve written about), “cyberscholar” (a/k/a, hopefully me), and “cyber security” (a hot topic). But no “cyberspace.” Interesting.
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5. Search for “cybersp”: Finally, “cyberspace” is the first hit. The first hit is Wikipedia, and claims that the term is “ubiquitous.” But based on Google’s suggested searches, I’m not so sure.
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Beyond the observations above, I’ll not speculate unduly as my thoughts are still forming. But as Dan Hunter wrote in 2003, “Thinking of cyberspace as a place has led judges, legislators, and legal scholars to apply physical assumptions about property in this new, abstract space.” That’s very true: the assumptions we make about things affects how we choose to regulate them.
But I suspect that we’re now moving into a post-cyberspace era, one of networked communications devoid of “place.” Indeed, I don’t think of either Facebook or Twitter–which I call “Super-Intermediaries” in one of my forthcoming pieces–as a place at all, but rather a connectivity tool. Super-Intermediaries are not thought of as metaphorical “places,” but as things that provide ever-shifting and oftentimes highly complex networks that can vary significantly between individuals (Twitter and Facebook) and sometimes between geographical regions (YouTube).
I suspect that this arguable shift away from place-ness may have a significant effect on how we conceive of the internet, how we describe it, how lawmakers try to regulate it, and how human rights are affected. I’ll demur from saying more as my thoughts are still forming, but I plan to discuss some of these themes next month at the upcoming Internet Law Work-in-Progress Conference at Santa Clara Law School.
Cross-posted to Infoglut Tumblr.
For the odd trademarks file: Stephen Colbert mocks DiGiorno’s new product: PIZZA and WYNGZ. Shockingly, Wyngz are not made of chicken wings. (Ok, maybe not so shockingly.) According to Colbert, the name was chosen because of laws regulating non-chicken wing products. As Colbert puts it, the term WYNGZ is “a government-mandated way of getting around the fact that it’s not real wing meat.”
On closer inspection, DiGiorno does not claim trademark rights to “WYNGZ.” A closer look at the package shows that the symbol next to “WYNGZ” is not the TM or (R) symbol, but instead an asterisk to a disclaimer stating “WITH NO WING MEAT.” Nor does DiGiorno appear to claim rights to the equally dubious “PIZZA & WYNGZ” (with or without the “BONELESS” that appears in smaller type).
Section 381.170(b)(7) [found here in the Code of Federal Regulations] defines a poultry “wing.” The use of the term “wing” cannot be used on any poultry product unless it complies with this standard of identity. In comparison, FSIS allows the use of the term “wyngz” to denote a product that is in the shape of a wing or a bite-size appetizer type product under [specified] conditions in which the agency considers its use fanciful and not misleading[.]
As a term coined and pre-approved by the U.S. government for a specified product, I have little doubt that WYNGZ is generic in this context (despite the odd statement by FSIS that the term is “fanciful”). Accordingly, DiGiorno could not claim trademark rights in the term at all, because “wyngz” is the term used for the genus of this type of non-wing product, and was created with the intention that all vendors selling this type of product could use the term.
So give DiGiorno’s one point for not asserting trademark rights, two points for putting together two tasty snack foods for the game, and deduct ten points for the cholesterol you’ll build up eating PIZZA & WYNGZ during the Super Bowl.
Or, I should say, during “The Big Game.”
Cross-posted to Infoglut Tumblr.
So let’s talk about the SUPER BOW…[SHHHHHH!!!]
Samsung has posted a really funny video of a Super Bowl ad where a fictional Samsung executive cautions two ad writers that Samsung may not use trademarked terms such as SUPER BOWL, BALTIMORE RAVENS, or SAN FRANCISCO FORTY-NINERS.
The video is a hoot, starring Seth Rogen and Paul Rudd as the young admen, and the incomparable Bob Odenkirk (the lawyer “Better Call Saul” from Breaking Bad) as the executive who lives in deathly fear of an IP lawsuit.
Perhaps the video is only funny to me because of my IP background. But I doubt that the humor is just for IP profs: after all, why would Samsung make a commercial just for me? Sadly, in our “IP licensing” culture, overblown IP claims are ubiquitous, and I have little doubt that the general public will immediately see the absurdity in the video’s “conclusion” that Samsung may only refer to the game as “THE BIG PLATE” (watch the video, you’ll see), and to the teams as the “BALTIMORE BLACKBIRDS” and “SAN FRANCISCO FIFTY-MINUS-ONE-ERs.”
You have to love the fact that Samsung – which lost a $1 billion IP suit to Apple (for patent and trade dress, the latter a variety of trademark) – is now professing a fear of overblown IP claims. Kudos to a company that can laugh at itself after it’s been told it committed a billion dollars worth of IP infringement.
Sadly, the real-world use by some of “THE BIG GAME” to refer to the Super Bowl is an example of an all-too-common feedback loop: overblown claims by IP rights owners, leading to third parties who self-censor out of fear of suit, leading to additional overblown IP claims. These feedback loops require little real-world litigation, instead relying primarily or solely on private IP enforcement. I wrote about similar feedback loops arising from private enforcement of IP rights in this article.
The video ably underscores the importance of doctrines such as nominative fair use, which when met, allows others to refer explicitly to the “Chicago Bulls” rather than having to use tortured phrases such as ”the professional basketball team from Chicago.” Or for that matter, the need to talk about the “San Francisco Fifty-Minus-One-ers.” So, shame on you, NFL — or should I say, shame on the “premier professional football sports league in the United States.” Of course, this wouldn’t be the first time somebody’s pointed out the NFL’s seeming habit of overstating its IP rights.
On to The Big Game: I wish I could say I’m excited about the game, but it’s between the Forty-Niners (meh) and the hated Ravens (grr-argh). I’m a Steelers man through and through. As one joke said, I’d rather root for an asteroid, but I think host city New Orleans has seen enough woes as of late.
Thanks to law prof Michael Risch for bringing this nominative fair use example to my attention. Cross-posted to Infoglut Tumblr.