As some have noted, the Ninth Circuit ruled yesterday in Bosley Medical Institute v. Kremer that there is no federal trademark infringement liability for the use of a trademark in a domain name for a noncommercial website critical of the trademark holder. The key to the court's ruling was the fact that the trademark was not being used "in connection with the sale of goods or services."
This is a very big deal (props to Public Citizen, which defended the case), as I'd say the opinion's rationale applies with equal force to the content, as well as the domain name, of a website. If that's right, then noncommercial critics are completely off the hook with respect to federal trademark and dilution claims. Free pass. Scott free.
As we reported last week, the US State Department is pushing to embed insecure radio-frequency identification (RFID) chips in all new US passports. These chips would broadcast your name, date of birth, nationality, unique passport number, and any other personal information contained in the passport to anyone with a compatible RFID reader.
Security experts have pointed out that because the new passports would indiscriminately expose your personal information to strangers, they could be used as "terrorist beacons," providing a terrorist, kidnapper, or thief with a means of covertly scanning a crowd at an airport -- or any other public place -- for American targets. But there are numerous other ways that RFID passports threaten your safety, privacy, and basic civil liberties.
We're in Geneva at the World Intellectual Property Organization's (WIPO) first big meeting on intellectual property and the Development Agenda. The world's premiere IP-expansionists are considering the radical proposal that more rightsholder protections aren't always in the best interests of developing nations. Several copyfighters have been taking collaborative notes all day inside the cavernous main hall, and you can check out the transcript after the jump.
[Also see Pedro de Parangua Moniz's notes from today!]
11 April, 2005
Thiru Balasubramaniam, thiru [at] cptech.org, Consumer Project on Technology
Gwen Hinze, gwen [at] eff.org, Electronic Frontier Foundation [GH]
Ren Bucholz, ren [at] eff.org, Electronic Frontier Foundation [RB]
Groups working to protect journalists' press freedoms, the creator of a blog-search tool, weblog publishers, and more than a dozen individual online journalist/bloggers filed a friend-of-the-court brief (PDF) today in Apple v. Does -- the case in which Apple Computer is seeking to unmask online journalists' confidential sources for articles about forthcoming Apple products.
The amici urged the court to adopt "a functional test for the newsgatherers' privilege that does not discriminate between reporters, regardless of the medium in which they publish." They ask the court to "adopt a test that will not impede journalists' use of the Internet to report news by limiting their constitutional protections when they publish there."
The amici are (in alphabetical order)
For 30 years, the World Intellectual Property Organization (WIPO) has worked primarily to expand the scope of intellectual property protection around the globe. Whether it's bringing patents to countries where previously there were none, or expanding the entitlements of copyright holders in developed countries, WIPO has always started from the premise that more IP is always better for everyone.
That's changing. Countries around the world -- even across the "north-south" divide of developed and developing nations -- are becoming wary of over-protecting intellectual works. Everything from free speech and open source software to the availablity of essential medicines is impacted by runaway legal regimes, and the world is taking notice.
We won big this week. First, there is a genuinely substantive policy discussion going on within WIPO about its obligations to be more than an IP-factory and instead explore its capacity as a positive force for the social and economic development of its member states. Not only was the majority of the meeting spent discussing the excellent Friends of Development proposal, but the good guys secured two more meetings to focus on reforming WIPO, defeating those who wanted to limit the process to a single additional meeting. Second, WIPO agreed to open the next two events to the 17 non-accredited non-government organizations (NGOs) that fought hard to attend this first meeting.
In November 2002, the now-famous "Microsoft Darknet Paper" laid out the argument for why DRM is not only futile in a P2P world, but actually counter-productive (because DRM drives otherwise legit customers to the Darknet).
Well, now we have yet another example of the futility side of the equation. Princeton professor Ed Felten recently posted a lucid discussion of the new AACS encryption system intended for use on next-generation high-density DVD media (a.k.a. Blueray or HD-DVD). The verdict: it will not slow P2P sharing of movies. Why? Because its design essentially ignores the P2P reality we live in.
As many have reported, the Family Entertainment and Copyright Act of 2005 (S.167/H.R. 357), recently passed the House, which also issued a committee report about the bill. Since the identical language had already passed the Senate in February, the measure now goes to President Bush for signature.
There has been some alarmist reporting about the bill. While it's decidedly a mixed bag, I think the bill should be marked as more victory than a defeat for the public interest side in the copyfight.
So Marty Schwimmer (The Trademark Blog) asked whether the Family Entertainment and Copyright Act creates copyright immunity for those who make devices capable of auto-magically skipping commercials (like the ReplayTV 4000). The answer is no, but it's interesting how we get there.
The statute creates a new copyright exception for "the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture." At first blush, you might think that would greenlight automated commercial skipping. Not so, according to the committee report that accompanies the measure, which says that "this Act has no bearing on either the legality or illegality of such services or any litigation over the issue."
A California bill (SB 682) that would bar the use of radio frequency identification (RFID) tags in state-issued ID cards yesterday cleared the Senate Judiciary Committee -- the first major hurdle on the way to becoming law.
The good news comes in the wake of a public admission by a US State Department official that the Department is rethinking parts of its dangerous and profoundly misguided plan to put insecure RFID chips in all US passports. Of course, "rethinking" isn't nearly enough. There is no good reason to use RFIDs in ID documents to begin with, and no amount of rethinking will make that any more or less true.
The New York State Attorney General's office today announced it has filed a lawsuit against Intermix Media for deceiving users into installing and using spyware. The complaint charges Intermix civilly with several violations of New York statute and common law. The lawsuit is a step forward for end-users' rights to control their own computers, and shows the right way to address the spyware problem: with lawsuits, not new laws.