A little trademark thought-experiment: under a proposed UN treaty, Internet Service Providers (as well as search engines, social media sites, online auctions, online games, and sites like Etsy and Thingiverse) will be responsible for detecting and interdicting trademark infringement and helping punish infringers by retaining and providing their personal information on demand from a trademark holder, without a court order.
Now, many coffee shops today are ISPs (that is, one of the kinds of intermediary targetted by this proposal). And many coffee shops today are the locus of trademark infringement -- say, when you walk in with your kid clutching a fake Barbie from a stalls market or a blanket in Santee Alley or on Broadway. If you applied this intermediary liability standard to the real world, every barista would have to be on the lookout for this kind of trademark infringement. If someone in the shop were to say, "Hey, I work for Mattel, and that Barbie's a fake!" it would be the barista's duty to leap over the counter and take away the fake Barbie.
But her responsibility wouldn't stop there: her employer would have to set up cameras and cash-register logs so that they could identify infringers later. So after you left with your kid (who is by now in tears, screaming for her lost Barbie) (or "Barbie") the barista would have to pull your name off your credit card receipt and hand it over to the random dude who says he works for Mattel, without seeing any ID (much less a court order). And she'd have to print out the photos and turn them over too.
Or she could refuse -- but if she's wrong and the Mattel guy is right, well, her boss will be on the hook for the trademark infringement, too. The barista had better be some trademark expert if she plans on refusing the request.
Many institutions are "intermediaries" for bad acts: kids ride the subway to parties where they drink before they're legally allowed to; is it the transit authority's job to police alcohol laws? Cruel pet owners hit their dogs with rolled up newspapers; adulterers meet in hotels; fraudsters use telephones, pens, photocopiers and envelopes. All these criminal acts are not subject to policing by intermediaries -- why should one industry's civil actions be the entire world's responsibility?
Some background: the new NYT paywall allows for unlimited free article views for people following links from Twitter. The @FreeNYTimes feed created links to all the NYT stories, which meant that you could read the whole paper gratis, simply by following the feed (presumably, you could also create an index of Twitter URLs that corresponded to all the URLs on the Times's site, a kind of codex of free backdoors to the paper).
The NYT has many options to fight this sort of thing. They could program their firewall to restrict Twitter referers, or to simply block anything from the @FreeNYTimes account. Instead, the Times lodged an utterly bogus trademark complaint with Twitter -- bogus because trademark doesn't generically give you the right to stop people using your product or company's name; rather, it stops people from doing so deceptively. The Times's position effectively was that Times readers would mistake @FreeNYTimes for a big-hearted gesture from the Times itself, operated by the Times in order to defeat the Times's paywall. This is a stupid thing to assert.
It's also damaging to journalism: there are many trademark holders, from Sarah Palin to Dow Chemical, who'd love it if the NYT could only use their name with permission. There is no trademark confusion when the Times prints Sarah Palin's name; there is also no trademark confusion with @FreeNYTimes.
So now there's @FreeUnnamedNews, and there's no trademark basis to use to stop the account. The next step from the Times may well be to object on the basis "deep linking," and that is a doctrine that is nearly as damaging to journalism as the exotic trademark theory the Times has already advanced: for if plain true facts ("this page exists at this URL") are property, then the Times had better get its checkbook out, as there are plenty of true facts in every edition of the Times whose putative owners would love to get paid rent for them -- and there are plenty of true facts whose "owners" would love to deny to journalists altogether (think, for example, of the true facts surrounding political corruption). And, of course, in order to sue, the Times (whose reporters have gone to jail to protect their sources) will have to demand that Twitter turn over the personal identity of the FreeNYTimes/FreeUnnamedNews person.
On the other hand, the Times might just add more complexity (and more brittleness, expense, and false positives and negatives) to its paywall by instructing it to inspect Twitter referers in detail and reject those coming from @FreeUnnamedNews. Over time, the paper will compile quite an enemies list in this fashion, a long catalog of people who are not allowed to refer other people to NYT stories.
Commercially, this is not good. As I wrote before, the mental state that the Times paywall strives to evoke in its reader is "Hey, I'm getting so much value from this site, I think I'll sign up as a paying customer," not "Oh, those bullies at the Times have clobbered another programmer and this is the fifteenth time this month that it mistook me for a freeloader. Screw them!"
The Times's staff have tweeted that they are glad to have traffic from users who leap the paywall -- a visitor is a visitor -- and implied that I've mis-stated the nature of their strategy. However, this trademark theory, hostile to free speech and an open society, belies their bravado. The problem with the Times's paywall isn't (just) that it won't work -- it's that it will lead an institution whose mission is free speech, transparency and due process into a war with its readers that demands that it oppose these values to hold its ground against them.
- New York Times paywall: wishful thinking or just crazy? - Boing Boing
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- Report: NYT will soon kill timesselect online paywall - Boing Boing
Combine this with the current vogue to copyright trolling, where scumbag lawyers send out indiscriminate shakedown letters demanding copyright "settlements," these being sums priced below what it would cost a victim to get legal advice as to whether they should cough up, and you've got the making of a fine racket for the next generation of legal fraudsters, bottom-feeders and blackmailers.
I love that this UN agency has made its mission to provide full employment for extortionists and trademark lawyers.
When a Thingiverse contributor uploaded 3D-print-ready homebrew tiles for German superboardgame Settlers of Catan, it raised a bunch of interesting legal questions. Is it illegal to make your own Settlers tiles? To download 3D files describing these tiles? To host the files? To print the files?
Now, Public Knowledge provides some legal analysis:
Let's start with copyright. Settlers of Catan is probably protected by copyright. Importantly, that protection does not cover the entirety of the game. Instead, copyright protects the design on the game tiles. This makes sense - the image on the tile (of pastures, or fields, or rocky quarries, or the like) is just a picture, and pictures are well within the scope of copyright. However, Sublime's 3D designs make no attempt to copy the images on the tiles. Copyright might also protect the shapes of the pieces, except these shapes are so generic and utilitarian (rectangles for roads, simple houses for settlements) that any protection would be extremely limited. Moreover, Sublime's pieces are generally more ornate that the official versions.PK's Michael Weinberg (author of the excellent white paper It Will Be Awesome if They Don't Screw it Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology) goes on to analyze the patent and trademark implications, and concludes that it's almost certainly legal to make, host, design, download and print your own Settlers tiles.
Copyright does not protect the shapes of the tiles (they are designed to fit together, and are therefore most likely "functional objects" outside of the scope of copyright). Nor does copyright protect the actual rules of Settlers of Catan. Game rules, like recipes, have a limited number of ways that they can be expressed. Copyright protects expressions, not ideas. Therefore, in order to protect the free flow of ideas, recipes and game rules are rarely protected by copyright.
- The Settlers of Catan - Boing Boing
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On November 29, the application was rejected for two reasons. First, the examiner pointed out, the fact that your name appears in a news article or on your Facebook page is not evidence that you are "providing a website" featuring political information. Second, Palin did not sign the application.Sarah PalinTM Having Trouble With Registration
The examiner pointed out that if a mark is the name of a particular living individual, it can't be registered unless that individual has signed or there is some other record of consent. (The examiner cited cases involving "Little Debbie," who is in fact a real person, and "Prince Charles," who arguably is too.) Because Palin hadn't signed, the application could not be granted.
It seems like signing your name is not something you would forget when your name is what you're trying to trademark, but she's a busy woman.
- Fake Disney movie trailer for the Sarah Palin story - Boing Boing
- The Sarah Palin Turkey Video - Boing Boing
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- Palin Debate Prep Flowchart - Boing Boing
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- Sarah Palin in 30 seconds - Boing Boing
At first glance, the leak suggests intermediaries such as ISPs and search engine portals may now be liable for trademark infringements by their account holders - unless there are clear exceptions such as the Safe Harbour provisions available under the Copyright Act regulations.ACTA: ISPs could be liable for trademark infringements (Thanks, NeilM!)
Professor Anna George, adjunct professor at Murdoch University and former DFAT negotiator on WTO TRIPS and the digital economy chapters of the US-Australia Free Trade Agreement, believed such a change would potentially be bad news for Australia's trade relations.
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