Operation in Whose Sites?

(It is simply unfair that this week we’ve had some truly amazing things happening on the cyberlaw front, while I have to study up for finals. So this will have much shorter than it warrants.)

Sometime over the past few days the Department of Justice seized 82 websites under civil forfeiture statutes, citing violations of trademark and copyright law.  If you go to, say, “boxedtvseries.com,” you will not see boxedtvseries.com (here’s an Archive.org capture from 2005). Instead, you see this:

The seizure, entitled “Operation in Our Sites II” (part I was a small-scale seizure over the summer), relied on power granted under civil forfeiture statutes: sections 981 and 2323 of Title 18 are cited, but really it’s all about 2323, with 981 providing the procedure.  Assuming they followed the letter of the law here, this means that someone in the Attorney General’s office filed what is tantamount to a criminal warrant, and then obtained custody and title of the goods in the name of the Attorney General and the United States.  This is shocking and surprising for a number of reasons.  This is exactly the concern raised by groups opposing the Combating Online Infringements and Counterfeits Act – that the government would be able to “blacklist” websites “dedicated to infringing activity,” and then take them off the Internet.  We also are asserting domain over the Internet itself, something which no other country has tried to do.  Big questions come up here, namely Can the United States do this as a matter of fact? Can they do this as a matter of authority?

To examine the U.S. authority in doing this would be far too much to take on right now with finals, so I’m going to focus more on the facts.  To do this requires a quick crash course on Internet architecture. Here goes:

The Internet is driven by numbers, IP addresses specifically.  If you type “204.11.50.136″ in your browser you will see the website for the blog Boing Boing.  This is Boing Boing’s web address.  Of course, we wouldn’t want to have an Internet where we needed to memorize IP addresses like phone numbers, so we developed a naming system to organize and label these addresses.  This is the Domain Name System, or DNS.  This system consists of a series of 13 “root servers,”  located throughout the globe, which tell all computers where to go to look up the addresses of sites ending in “.com,” “.net,” “.edu,” and so forth.  These root servers are redundant copies of each other, designed so that if one goes down the others can still direct traffic.  Each of these top level domains (“.net” in our example) contains another server (and backups thereof) which stores a list of every website that ends in that extension and its corresponding IP address.  This is of course a gross simplification, but when we type in “boingboing.net,” our computer looks to the root server to find the “.net” server, then goes to the “.net” server and asks where to go for “boingboing.”  That server responds “204.11.50.136,” and the connection is made.

So what does it mean to “seize” a website?  I am hunting down the civil forfeiture warrants used in Operation in Our Sites II, but it seems to that once they convinced a judge that there was probable cause to issue this forfeiture order, the government went to the DNS servers involved in translating (“resolving” in the lingo of the industry) the websites at issue, and had them change their destination to the Justice Deparment’s website, http://www.seizedservers.com/ (a website created 6 days ago, likely for this operation).  Now if you enter in “boxedtvseries.com,” instead of resolving to whatever numerical address it had before, it resolves to “74.81.170.110.”  Of course, if you happen to know what the old number is for “boxedtvseries.com” you can still type in that number and get the old website.  The Internet is deliberately decentralized in that way.  Short of actually taking the computers that host “boxedtvseries.com” – computers that could be anywhere in the globe – the best the Justice Department can do is make it so that the DNS servers no longer point there when someone types in words instead of numbers.

And this has lead to one interesting hypothesis from ComputerWorld – what happens if people no longer trust the institutionalized DNS servers?  There’s nothing in the architecture of the Internet to stop anyone from creating a new DNS server that resolves names differently than the DNS system does now, telling people where, for example, the real “boxedtvsets.com” is located.  If they were to do this outside the jurisdiction of the United States, I don’t see how civil forfeiture (or the proposed COICA bill) could stop it. And this would create all sorts of chaos for the Internet as a whole – imagine a world where typing in the same URL on two different computers would lead to pulling up two different websites.  I hope the Justice Department realizes what kind of special fire it is playing with right now by forcing DNS servers to resolve to places where sections of the public do not want them to resolve.  John Perry Barlow may have been more right than we realize: we may have a domain name mutiny if we are too reckless in enforcing the law this way.

One last thought.  The other big cyberlaw case of the day is, of course, Wikileaks and its dumps of classified government information.  One of the great ironies of our legal system is this: to stop the Wikileaks website would take a criminal prosecution establishing a violation of a state interest of the highest order, an order so strong the Supreme Court has never found it in any leak of classified information distributed by the press. (I think that’s a good thing, by the way.)  But if Julian Assange was trading in fake handbags instead of state secrets, his website could be down already though civil forfeiture.  Does that seem right to you?

Update 12/3 – apparently the copyright / First Amendment dichotomy I mentioned above was noticed by none other than Sarah Palin.

Purchasing for the People: a Proposal for a National Corpus of Significant American Works

Today marks the 47th anniversary of the “I Have a Dream” speech.  The speech needs no introduction. I don’t need to tell you what it was or who said it. We know all that by virtue of living in the United States. It is so important to our national identity that we just know it, and many cannot identify from where they learned it (save those who experienced it firsthand).

Considering its ubiquitous nature, you may surprised to know that the speech is still protected under copyright, and any use of it (barring the frustratingly narrow world of fair use) is subject to a license from the estate of Dr. King.  The speech has been subject to litigation, including a 1990s challenge where CBS used a section of the speech in a documentary and did not seek a license, whereupon the estate sued for infringement.  There, the 11th Circuit rejected a summary judgment motion for CBS, holding that CBS did not prove the work was in the public domain due to publication without registration and proper formalities.  This matter settled out of court, so the question was never fully resolved, but today the work is largely considered protected.  The Estate treats it as such, and to other potential users, that’s probably all that matters.  Dr. King published the work and registered copyright shortly after the speech in 1963 (according to this SDNY case), and his estate renewed copyright in 1991, so the work will remain under copyright until 2058.

So as you look over footage from that speech today, note how little of the actual speech you hear.  Often a clip from the march will run silently, or only for a second.  You will probably only see one station, at most, play it, and they will probably acknowledge that they licensed it from the King estate.  Those seeking to use the speech publicly in any form will need to enter into an agreement with the EMI or Intellectual Properties Management in Atlanta to use it.  Fail to do so, and the Estate could decide to sue.

I see this as a societal wrong.  That speech is so vital to American identity that it should be as free as our founding documents to read aloud, share, disseminate, remix, and re-envision.   No organization or entity, not even the very estate of Dr. King, should be able to restrict others’ use of the speech.  It is simply too large and too significant to not be freely accessed and shared.  We all should be able to broadcast the speech in our own manner, and share from it extensively and without limitation.

On the other hand, our actions should not punish Dr. King (or his heirs) for creating a work so significant that it far eclipses other cultural works.  Remember that copyright in America is all about creating incentives for authors and artists to create and disseminate works.  It would be a perverse incentive, indeed, to afford a writer a monopoly over a sermon, and then remove that monopoly should the writer create a profoundly important sermon.  Dr. King, though his estate, is well entitled to compensation.

I see a third option to balance the rights of the copyright owner and the desires of the public: the United States, on behalf of its people, could purchase the speech and release it into the public domain.

Imagine if we created an award, given periodically and with appropriate pomp and circumstance, for works of the caliber and importance of the “I Have a Dream” speech.  This award would come with a substantial cash prize, and in consideration the recipient would assign copyright interest in the work to the United States.  The U.S. could then inject the work into the public domain, making it free for all to use.  Over time, this would build a corpus of important American works, which could be celebrated and shared throughout the country, freely, and without hesitation.  The “I Have a Dream” speech, or “This Land is Your Land” (claimed to be under copyright, though disputed), or “Happy Birthday To You” (still considered under copyright, though disputed), or “God Bless America” (likely still under copyright, and many arrangements of which are actively protected), or any other cultural artifact which transcends Romantic authorship and has become vital to our cultural identity could be shared as freely as “The Star Spangled Banner,” The Gettysburg Address, or the moon landing footage (all in the public domain).

This is not without some precedent.  We have a National Recording Registry, designed to preserve the primary recordings vital to our national identity.  We have a National Film Preservation Board, doing the same for works of film.  The quasi-public Kennedy Center recognizes a handful of artists, musicians, and comedians for their lifetime achievements in the arts.  The Library of Congress is well-equipped to handle this sort of project — consider its Gershwin Prize for Popular Song.  The United States could give Nobel-Prize levels of compensation for the work and still strike an equitable bargain: a substantial amount of revenue to the copyright holder, and a comparably insignificant dent in the national budget.  And with such a system we would not need to wonder if a use of King’s speech was “fair,” or likely to result in a cease and desist letter.  We would be at liberty to perform the speech, incorporate it into songs, broadcast or webcast the speech, restore the work and share such restorations, or play the speech in public buildings.  The work would not be abandoned by this status, but canonized, and appropriately celebrated by all.

On the Gizmodo/iPhone debacle

If you’re going to read two articles on this whole Gizmodo/iPhone situation, read these:

• Prof. Orin Kerr (whom I shouldn’t praise too highly at the moment, as he’s grading my exam) gives his all-important 4th  Amendment perspective over at the Volokh Conspiracy.

• EFF Civil Liberties Director Jennifer Granick provides the 1st Amendment analysis.

In short, while the probable cause from the search would have to come from an affidavit to the warrant, which Gizmodo has not released along with the search warrant itself, there seems to be no fatal warrant errors under the 4th Amendment. Per Prof. Kerr, if there were overbreadth issues on the face of the warrant the police likely did not rely on them to execute the search. I don’t know if I’m alone in wondering how the (theoretically still-controlling) 9th Circuit case of United States v. Comprehensive Drug Testing would impact this analysis, as the 9th Circuit seemed to be commanding a series of ex ante requirements which the magistrate here did not include. The consequence for violating the 4th Amendment would be most severe for the police here, as it invokes the always discussion-provoking exclusionary rule.

Stautory privacy laws present a more complicated situation, turning around this question: Was the warrant issued for evidence of crimes committed by Jason Chen, or the original source of the iPhone? If the warrant is to gather evidence on a crime committed by Jason Chen himself (the California equivalent of knowing receipt of stolen property, for example), it would seem that the Privacy Protection Act would not save Chen, and the application of the California Shield Law is uncertain and unexplored. If, on the other hand, the search at Chen’s residence was for evidence of a crime committed by the source of the iPhone (for failure to adhere to California’s laws on possession of missing property), it would seem both federal and state statutory laws cleanly apply. The consequence for this is far less severe than violating the 4th Amendment – civil damages generally.

This is also where the 1st Amendment plays its role in this complicated dance. The courts have recognized the 1st Amendment protects journalists in these circumstances, especially against restraints on publication in Bartnicki v. Vopper and the all-famous Pentagon Papers case. I worked on a brief highlighting the 1st Amendment argument against restraint of publication of even unlawfully-obtained information last summer. Under this line of cases, Chen could not be punished for disclosing information about Apple’s new product, even if the disclosure itself violated the law (and according to at least one court, even if the disclosure itself violates laws protecting trade secrets). An argument can be made for extending this same rationale to prevent “second-degree” punishments like receipt of stolen property. The inclusion of property does make for a novel case, but any attempt to balance the newsworthiness of the property’s disclosure versus the criminal harm of a stolen property would easily side with Chen given these facts. As Granick puts it, this likely won’t save either Chen or the source of phone from whatever crimes they may have committed, but should at least force the police to proceed delicately in investigating the crime.

I leave further analysis to others, as I am in the middle of packing up my DC abodes and shipping up to Boston. I’ll close with an observation and a question: I notice a lot of the ire invoked in this circumstance is against Apple, and I’m not sure if they’ve earned that. Do we know that it’s Apple behind this whole investigation, and the subsequent search? Until we do, I wonder if we shouldn’t be training our guns somewhere else. I know a lot of us see some duty on Apple to denounce or deter the investigation against Chen, but I wonder if others out there presume it was Jobs in a tank breaking down Chen’s door, and not the San Mateo police.

EFF on DMCA, 12 years later

Very quickly between classes here, I want to let you guys know that, as Techdirt notes, EFF has recently released their anual analysis of the Unintended Consequences of the DMCA.  It’s always worth a read.

It’s important to keep in mind as we all try to get inside the minds of those negotiating the much-discussed-but-little-understood ACTA treaty, that (at least for me) the problem is not that the law will directly change American law.  Ben Sheffner makes an excellent case as to why this is unlikely to change American law, and, aside from the three-strikes concern, I have no reason to doubt this claim.  The problem I have with ACTA – aside form the secrecy and the lingering Internet cutoff threat – is that it will lock in DMCA-like provisions in the rest of the world.  It will become harder to act on the advice of organizations like EFF and modify our (admittedly already-codified) law.

This is, in many ways, rescaling one of my favorite arguments in favor of federalism: when states are free to regulate individually, the states can function as “laboratories” experimenting in policy judgments to solve common problems.  States in turn can learn from each other and adopt regulations accordingly, and the greatest policy structures will ideally prevail.  I’m not saying the DMCA is uniformly bad, but I can’t believe that it’s the best we can do to solve the complicated intersections of technology, security, trade, and copyright.  I bet, left to their own devices, other countries can do far better, and we should not be foreclosing this experimentation.

Howard Zinn: the Anti-Slacktivist

(image from Flickr user Douglas Brown)

I don’t have much to add to the outpouring of support for the life and memory of Howard Zinn, but I do want to put his life’s work in a bit of perspective.

A central plank of Zinn’s message always was this: change does not come from a ballot box; change happens when you stand up and do something. And the old adage (which I think came before Zinn, but he used it well) about standing still on a moving train holds true. Not acting these days is as much an affirmation as acting. There is no standing still in these times. I doubt there ever was.

We live in a world where a distortion, when repeated enough, becomes held as true. We have to expend real energy to get to honest truth, and no one will do that for us. At a time in which we need people, real people, up and out and getting peoples’ attention, we find pleasuring comfort in Internet slacktivism. And that simply won’t do. To quote Zinn:

If those in charge of our society – politicians, corporate executives, and owners of press and television – can dominate our ideas, they will be secure in their power. They will not need soldiers patrolling the streets. We will control ourselves.

And I don’t mean get offline, necessarily. The Internet is the best weapon the people have right now. But the gloves are off the corporations in the wake of Citizens United, and it simply is not enough these days to wear a bracelet, or protest via Facebook status, or add a ribbon to the back of a car.

So what would Zinn say about so-called slacktivism? I would guess it would go like this: write, but write to someone; post statuses, but post about ways for people to take real action; symbolic bracelets and ribbons are good, lawn signs and picket lines are better. Your friends and Twitter followers already know how you feel. To make change you need to reach more people, more strangers, and more adversaries. Only then will you change minds.

I saw Howard Zinn speak three times in my life, and each time was inspiring, uplifting, and most importantly, motivating. The world will sorely miss him, I’m sure. Rest in peace.

Lefsetz Letter on the Live Nation / Ticketmaster merger

I mentioned a few days ago that I’d be spending a good slice of this year analyzing the Live Nation / Ticketmaster proposed merger from as many angles as I could manage. (There’s an antitrust law casebook on my lap as I write this.) Anyone following along with me would probably like to know that this evening music industry expert Bob Lefsetz has posted on his very influential Lefsetz Letter his rundown on the merger.

Lefsetz approaches this from the perspective of the largest complaint we’ve heard on this merger: that this is going to impact ticket prices and make it more expensive to see shows. He attacks this in a rather sobering way, noting that not for years has Live Nation or Ticketmaster been about much other than the money. When Don Law and Robert Sillerman were making their bones buying out other promoters they were doing it for profit, and today the market (as much as there still is one) will keep the downward pressure on prices until we find equilibrium. It’s the market that dictates this merger, and the bottom line which is leading these companies to act. He also notes that artists deserve a lot more blame than they are receiving for the perpetually skyward costs in the live concert industry, and perhaps this is the product of the slow commoditization and big business-ification of our once-innocent industry.

I landed my first gig in the music industry in late 2002 (before I could drink, sign a contract, buy a lottery ticket, or even drive after midnight in Massachusetts), and have been working in and out of the business ever since. My first employer has been the one constant source of work throughout my entire career: a small in size but big in results concert promoter of the old guarde, and my longstanding mentors even through my present hiatus in law school. And so, my concern is not about ticket prices. From an industry perspective I do have faith in the free market to settle this somewhat – that there will come a time when U2 realizes they won’t fill Boston Garden at $250 a seat and the prices will sink. From a selfish angle I can still shell out $10 to see the bands I give a damn about at the Black Cat or Middle East, so no harm there.

No, my concern is the independent promoters. It’s something most concert goers do not notice or really care about, but the promoter is the catalyst that makes concerts happen. The promoter gets the venue, artist, labor, and marketing together to actually make a show come to life. The promoter assumes the risk; indeed, the promoter is the one that takes the proverbial and literal risk in the idea. Without independent promoters, my fear is that live performance market will suffer from a rather stagnant imagination. Put it another way: No Micheal Lang and crew, no Woodstock. No Dave Werlin, no Phish festivals. No Marc Geiger and crew, no Lollapalooza. No Kevin Lyman, no Warped Tour. No Barry Horgan, no All Tomorrow’s Parties. No Goldenvoice Concerts, no Coachella. The organic feel of all these festivals (in their early forms) is no happenstance. And that’s just the creativity. The innovations made in better live concert experiences (from more peaceful security to integrated medical support to clever concert swag) were made not out of concern for corporate shareholders, but with genuine desire to give fans the best experience possible. I do not, for a moment, believe that a corporate conglomerate will ever match what the independent and dispersed market has provided.

Throughout all of this ticket sale information is one of the closest guarded secrets a promoter can have. All calculations are made and most expenses flow from the volume of tickets sold at concert. At the really big shows – the festivals especially – you never want your rival promoters to know how many tickets you are selling, because a good promoter can do so much damage with that information. As healthy and strong as my relationship with my old employer was, I know my old bosses would fire me on the spot were I to start leaking that information to rival promoters.

But in America you have to sell your tickets with Ticketmaster, and thus Ticketmaster will always know how you’re doing. And in almost every market in America you are competing with Live Nation in the live promotion market: they own the venues and they have the promotion shops to make these shows happen on their own. My fear is what will happen to the independent promoters once their biggest rivals in the market know exactly how much money they are making. I’m not sure yet if it’s a fear I can characterize under the Sherman Act, but it’s a fear I have as a music lover and fan and what leads me to staunchly oppose this merger.

NH Supreme Court hears online journalism case

Back in June, as an intern at the Berkman Center’s Cyberlaw Clinic, I worked with members of the Citizen Media Law Project and the Reporters Committee for Freedom of the Press in drafting an amicus curiae brief (PDF) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. In this case, a mortgage industry news website obtained documents from New Hampshire and Massachusetts Banking Departments, providing details the ongoing investigation of a New Hampshire mortgage company (an investigation which ended in over $700,000 in fines). Upon publishing those documents the company in question sued the website in New Hampshire state court, ordering that the documents be removed and the source of the documents be revealed. The Rockingham County Superior Court granted these requests, and the case was appealed to the New Hampshire Supreme Court.

We focused on the First Amendment issues at stake case, and there were many: the lower court’s injunction worked a prior restraint on speech, it punished the disclosure of information that did not violate New Hampshire law – and even if it had, federal precedent would prohibit applying that punishment to these facts –  and it ordered the disclosure of the identity of an anonymous source, in violation of both U.S. and New Hampshire laws and case precedents. (Our press release following our filing is here.)

Last Wednesday the New Hampshire Supreme Court heard arguments from the parties in the case. Being in DC, I could not make it up to see the argument, but reports from the hearing are coming from Poynter Online, New Hampshire Public Radio, and /.. These reports suggest a great deal of the oral argument was spent discussing whether the rights recognized as awarded to “journalists” should apply to an online website of this nature, particularly the rights which protect disclosure of sources.

I find it interesting that, from what I’ve seen, there’s no record of the court discussing the issue most often advanced in a website publication case: “this isn’t a prior restraint as the material was published before it was removed.” The respondent lead with this in their brief (PDF), but no sources note this as being in the discussion. Instead, it seems as if the reporters’ privilege against revealing anonymous sources was the main tack of the respondent’s oral argument. This is a major hurdle for the respondent, but certainly not the only hurdle: even if they were to persuade the Court that the privilege should not apply to this website, they still would have to deal with the prior restraint and unconstitutional punishment issues raised by the petitioners, and the fact that the statute under which they brought this claim does not appear to create a private right of action. The absence of these arguments from the reported discussion during arguments could suggest that Court has already made up their mind on those issues.

Naturally, when the Court rules I’ll be sure to pass along that information.

An introduction to sampling

(waveform of the “Amen Break”)

Carleton (and before him James Nord and YouTube user mobius32) brings to my attention this excellent video about the “Amen Break” – one of the most important 6 seconds in recorded music, originally recorded by The Winstons.  Check it out:

This is loosely related to a journal article I am writing on sampling rights.  I don’t think I’ll be getting as abstract as the “cultural public domain” argued here, and my conclusions might cut directly against some of mobius32′s arguments here, but his concern about copyright re-appropriation and the incoming clash between copyright law and digital sampling are certainly right up my article’s alley.  And I’ll certainly be taking up the Bridgeport Music case mentioned in passing towards the end of the clip.  This is a must-watch to understand the foundations of many of our modern discussions on sampling rights.  Check it out.

Jamba Juice’s new advertising technique is despicable

(Thanks to the eminent Mr. John Hodgman for the TwitterScoop)

There’s a ripoff happening online that’s caught my attention this afternoon.

David Rees is a humorist best known for creating cutting, heady, sarcastic comics using clip art and simple speech bubbles.  Highlights of his work include My New Fighting Technique is Unstoppable, My New Filing Technique is Unstoppable, and the excellent Get Your War On, now available as a complete anthology book.

Get Your War On highlighted the mass hysteria and empty logic surrounding the US “War on Terror,” and ran from the beginning of the Afghanistan invasion through the end of the Bush presidency.  The comic prominently features two characters who are never given a name, but are sometimes referred to as “accounts payable” and “accounts receivable.”  A sample comic:

Apparently GYWO made a lasting impression on an employee or ad agency contractor over at fruit smoothie enterprise Jamba Juice, as the company featured the two characters on a recent advertisement for a “Cubicle Picnic” contest (these are stills from a flash video which runs when the website starts up):

Goes without saying, but Rees was not to happy with his anti-corporate comic being used as a blatant, “viral,” corporate shill.  On his blog he is now asking for a boycott of Jamba Juice, railing on the comic in general, noting the use of the exact same word balloons, insulting Jamba Juice drinkers, and ending with this remark:

Whoever made this ad is probably a 22 year-old “creative” at some ad agency in Tech Valley, CA. Way to think outside the box, sonny. Have fun snorting cocaine at the nightclub you go to with your friends who work at Twitter or wherever. And no, Adult Swim will NOT buy your stupid cartoon you’re developing with your housemates about four guys who work at an ad agency but are secretly lobsters.

Goddamn, I need to get Code Pink on the case about this. I’ll take this shit to the Supreme Court and live-blog my own lawsuit. Judge Sotomayor better side with me.

BOYCOTT JAMBA JUICE!

JUICE SUCKS, DRINK WINE

Were the two of Rees’ own creation this would be an open and shut copyright case.  The tricky part is, the clip art characters are in the public domain.  (At least according to Rees in his post; I’ve yet to verify that.)   Even so, copyright law does permit one to claim ownership of original creative contributions to existing public domain works – like the layout of an anthology of public domain art or the text Rees adds to the speech bubbles in GYWO.  But is a particular design of a speech bubble enough?  Should it be?  Any IP nerd will quickly tell you an “idea” alone is not protected; but while the idea of doing a comic based on a depressing, stale office environment using public domain clip art cannot be protected under US copyright, has this crossed over from being the “idea” of a GYWO-like comic to a cognizable claim of infringement?  Could you, or should you, be able to claim that while Rees can’t claim copyright infringement from use of a public domain work, he should be able to claim it when Jamba uses the same two public domain works in the same context?

I’m rarely (maybe never) one to advocate an expansion of intellectual property law, and I’m trying very hard to imagine how I would feel if Rees ripped on Jamba Juice instead of the other way around, but I feel as though the law should provide remedy for this sort of shameless ripoff.

Perhaps the best remedy is found under trademark.  Trademark law is a means of helping the public identify the origin of goods, allowing manufacturers to protect their brand identities against other market participants creating stopping confusingly similar products.  In short, trademark law is why I can’t go into my kitchen, develop a new soda, call it “Coca-Cola” (or “Coce-Kola”), and start selling it in stores. Within the field of trademark law is a term of art – trade dress – to reference protections provided over layout, packaging, and other unique characteristics of a product which, if copied, can cause confusion in the marketplace even if the copier didn’t use the name directly.  In other words, trade dress is why I can’t go into my kitchen, develop a new soda, put it in a red can with cursive white script in the same layout as a Coke can, and start selling it in stores.

Trade dress may provide a remedy here.  Perhaps Rees can claim that the layout of the figures and use of the speech bubbles are sufficient design characteristics for a trade dress claim.  As John Hodgman noted, “many will presume [Rees] made these ads and is getting paid. Not True.“  That said, there is no doubt David Rees fans would be upset if he started making ads for a company like Jamba Juice, and to the extent this leads fans to believe that the confusion is causing harm to Rees’s GYWO brand.  This also helps me distinguish this case from others where I might be okay with someone ripping on another company’s design: this is not done for commentary, parody, or other fair uses, and in doing this ripoff Rees will be falsely depicted as endorsing this activity.  If trademark can be said to further the public interest of distinguishing goods, while still providing First Amendment protections critical to a public discourse, a use like this – which confuses the origin of the comic and adds nothing meritorious to the public good – seems a ripe candidate for a trademark claim.

Regardless of whether courts find a cause of action in what Jamba Juice did, whoever came up with this add should be fired.  This is the sort of activity which gets a company on shame-worthy blogs like You Thought We Wouldn’t Notice, and causes people to distrust, boycott, or even sue a company.  I can’t find the agency responsible for this ad, but in digging around I found this YouTube video of Jamba Juice’s ad agent describing the Cubicle Picnic promotion.  Be it him or some other viral marketing lackey, this is plagiarism, and even if the law does not recognize fault with that the creative industry most certainly does.

Update: James Urbaniak, in addition to being the voice of Dr. Venture on the Venture Brothers, has taken up arms in this particular fight.  As his LJ post notes, the organization responsible for this ripoff ad is LA agency Neighbor.  From his post:

Their unintentionally hilarious website positions themselves as paragons of crunchy, earthy, green, do-gooder, one-world decency. According to their manifesto: “You get conscious, inspired, ethical, engaged, genuine, positive and purpose-driven work that grows your business and your people all the while making the world a better place.” Ad man, heal thyself.

Heal thyself indeed.

Update 2 (21 June): Thank you all for the comments, emails, and especially for the budding discourse.  This story has clearly grown beyond this humble little blog.  For much more coverage, see BoingBoing, Consumerist, Fast Company, Brand Flakes for Breakfast, Comics Alliance, and Timothy Buckwalter’s blog. I hope to do some more research into this trademark and copyright question and share what I find, but work keeps me busy during the week.  Until then, I defer to the comments below and the links above for more discussion.

Due to the increased traffic, I should probably quickly (create and) state my commenting policy: I do moderate comments on the blog, but as long as it’s pertinent to the discussion I’ll post it.  If you feel this is unfair let me know.

Also, a very warm thanks to John Hodgman and David Rees for their kind words and links.

Thoughts on Capitol v. Thomas-Rasset

The retrial of the first (and only) filesharing case to end in a jury verdict (for the record companies, for many thousands of dollars, but under a faulty “making available” theory) started last Monday.  By the end of the day Thursday, we had a stunning, $1.92 million verdict against Jamie Thomas-Rasset, for sharing the following songs on Kazaa:

• Aerosmith – Cryin’
• Bryan Adams – Somebody
• Def Leppard – Pour Some Sugar On Me
• Destiny’s Child – Bills Bills Bills
• Gloria Estefan – Coming Out in the Dark
• Gloria Estefan – Here and We Are
• Gloria Estefan – The Rhythm is Gonna Get You
• Goo Goo Dolls – Iris
• Green Day – Basket Case
• Guns ‘n’ Roses – November Rain
• Guns ‘n’ Roses – Welcome to the Jungle
• Journey – Don’t Stop Believin’
• Journey – Faithfully
• Linkin Park – One Step Closer
• No Doubt – Bathwater
• No Doubt – Different People
• No Doubt – Hella Good
• Reba McEntire – One Honest Run
• Richard Marx – No and For Ever
• Sarah McLaughlan – Building A Mystery
• Sarah McLaughlan – Possession
• Sheryl Crow – Run Baby Run
• Vanessa Williams – Save the Best for Last

That’s $80,000 per song downloaded.  Her No Doubt adventures alone cost her $240,000: more than the original verdict of the first trial.  (Of course, it would be naive to assume that No Doubt will see any of that money.  If these companies approach the litigation campaign like they approach releasing albums, they’ll use the high profits from the top 5% to pay for the 95% that lose money, leaving none for the artist at the end of the day.)

There has been all sorts of ink spilled on this issue, from Ars Technica, Ray Beckerman’s RIAA vs. The People, P2Pnet, Ben Sheffner’s Copyrights & Campaigns, Wired, and even the Electronic Fronteir Foundation (raising some intriguing constitutional questions regarding the verdict).

The quote that sticks out for me from all of this comes from Ben Sheffner’s article he wrote for Billboard, where he wrote:

But a question arose after the verdict about whether the sheer size of the damages could lead to a backlash against an industry that is already portrayed in some quarters as overreaching.

Why Billiboard – an organization enjoying a place of high regard amongst all industry professionals due to decades of objective analysis of the music industry – would let such a known hard-line copyright figure pen their lead story on this all-important case escapes me, but even more confusing is how they could let such a gross misstatement of the public reaction onto their pages.  “[A]n industry that is already portrayed in some quarters as overreaching”?  Sheffner may be forgetting (and so I’ll remind him) that the RIAA was rated the worst company in the world in 2007 by Consumerist, edging out Halliburton for the dishonor (a website that appeals to a rather wide and large demographic, according to Alexa).  Amongst people aged 15-30 in America, the disdain for this lawsuit tactic is near universal.  In my Music Industry classes at Northeastern I never once met a person who thought this was a good idea.  Even my friends that went on from college to work for the RIAA or its labels agreed that this was a profoundly stupid business decision.  This is not just a handful of nerds, angry that Napster shut down and left to spreading hate speech on slashdot; this is an entire generation.  Sheffner’s comment makes about as much sense as saying “Coca-cola is considered in some quarters as a satisfying refreshment.”

Sheffner is absolutely right that no one expects the RIAA to get $1.92 million out of this, but what remains to be seen is if that’s because Thomas-Rasset goes bankrupt and liquidates her assets to the RIAA or because her attorneys successfully raise a valid appeal.  This case is most certainly not over, and its aftershocks will be felt for some time.  At the end of all of this, let’s not forget that a mother of four’s financial life was ruined on Thursday.  And what did we, or anyone else, get in exchange?

Update: Meanwhile, Pierce Law students have managed to successfuly settle an RIAA case there (against a woman who had no computer), getting the case dismissed with prejudice.