Tag Archives: copyright

shaolin trademarks and copyright as generic for IP

In an SFgate story about conflicts between folks trying to take Shaolin practice in different directions, I spotted this:

In recent years, the main temple’s abbot, Shi YongXin, has tried to copyright the Shaolin name. He’s also been criticized for commercializing the faith. YongXin gave his approval to Ho’s venture in San Francisco.

Really? I thought. Tried to copyright the name? Surely they mean trademark …. A little googling found this China Daily article from a couple of years ago (2004/9/28). I quote in its entirety because virtually every single paragraph illustrates the wacky confusion:

Shaolin monks in hand-to-hand copyright battle
Updated: 2004-09-28 09:53

The monks of China’s Shaolin temple are not just good at kung fu but also increasingly agile at using copyright rules to protect their name from rip-offs, state media reported.

The 1,500 year-old temple, known as the cradle of China’s martial arts, recently set up the Henan Shaolin Temple Industrial Development Co., whose main purpose is to protect the temple’s intellectual property rights, Xinhua news agency said.

“Everyone just wants to make some profits from the name, totally regardless of the integral image of Shaolin Temple,” Shaolin abbot Shi Yongxin told the agency.

More than 1,000 brands containing “Shaolin” have been registered without the approval of the temple in the United States, Japan and Europe, Shi said.

Since its start, the new company has been engaged in feverish activity, registering nearly 100 Shaolin-related brands in China and has applied to register “Shaolin” brands in over 100 countries, Xinhua said.

A survey by the China Trademark and Patent Law Office found that many countries were competing to register their own trademarks of Shaolin or Shaolin temple, state media reported previously.

On the west coast of the United States alone, there are three Shaolin temples. In Europe, Shaolin temples can be found in Vienna and Budapest.

with a photo captioned:

A young monk of China’s Shaolin temple demonstrating his skills. The monks have increasingly been using copyright rules to protect their name from rip-offs. [AFP]

Further reading–it looks like this story has flurried every couple of years, 2002, 2004, 2006:
* The People’s Daily from 2002/9/25 had more information about the beginning of the trademark wars.
* The USA Today picked up the story around the same time.
* The BBC News on 2004/6/29
* 2004/6/2 a story at p2pnet.net
* Another 2006 piece from China Shaolin Temple itself gives their perspective.
* China Daily, 2006/10/19 had this insightful history:

Back in 1993, Shi Yongxin took a ham manufacturer to court for promoting the ham under the brand “Shaolin,” which he claimed constituted a trademark infringement. It was the first case on brand rights in China’s religious circles.

Recalling the lawsuit, Shi said, “a long time ago, communication and transportation were not as convenient as today, and products were circulated in a limited area, so trademark registration was not required. With globalization comes infringement. To protect the trademark, we have to register the brand ‘Shaolin.’ The registration is totally protective. ”

However, the Shaolin Temple brand is being taken advantage of by other businessmen. About 200 meters north of the temple, the local tourist bureau has built the Shaolin Temple Martial Arts School, and right across from that is a Zen institute that is backed by a salt company.

Many suspect such commercial aspirations will disturb the tranquility of the temple. Shi, however, believed such establishment is a result of the interplay between business and brand, likening Shaolin Temple to the American Disneyland, which is a brand as well as a business.

* Kung Fu Magazine had an interview with Shi Yongxin, Abbot of Shaolin temple:

GC: How is trademarking the name of Shaolin going?
Abbot: Recently, some businessmen and companies had been engaging in using the Shaolin name to further their product. This influenced the image of Shaolin culture in a negative way. Now Shaolin Temple is attending to this matter. Abuse of the Shaolin trademark will diminish the influence of Shaolin Temple and create misunderstandings of Shaolin in the public eye. Shaolin represents the best of traditional Chinese art in kung fu and Chan Buddhism. As we know, some products and services provided by these companies were outlawed by the rules of Buddhism. So we have begun to administrate the trademark of Shaolin, not for the sake of profit, just for the sake of preserving our culture and religion.

… This was an interesting search in its own right, but a couple of observations:
* You know, it’s not so easy to google for something + copyright, because every frickin’ thing on the Internet says “blah blah blah COPYRIGHT date by yadda yadda yadda”.
* This isn’t the first time I’ve noticed “copyright” being used synonymously for “intellectual property”. It’s as if the copyright trademark is itself being diluted.

* Every article has its own copyright date and they’re apparently being put in almost at random as part of website templates in some cases, the article in other cases, etc. For instance the 2002 USA Today article, which I found on 2007/4/29, had a “Copyright 2005 the Associated Press”. The Kung Fu Magazine article didn’t have a date on the article or on its copyright statement, but had an automatically generated “today’s date” in the header — so one might mistakenly read the article and think it was today. This is a problem for citations, of course, but it’s also a problem for orphan works issues in the far future. So if the dates on the works themselves are practically meaningless, then how is the future historian going to be able to tell when the 95-year corporate copyright term has expired? If we’re all relying on the overworked Internet Archive as our de facto copyright database then someone needs to give them like a bajillion dollars in a hurry so they can capture the whole Internet and do it every day.

CD sales up, down, irrelevant

The large corporate music industry has been whining to all the major media outlets that its CD sales are down. Accordingly numerous stories have been written in the last month about the trials and tribulations of the industry, whose dreadful loss of CD sales hasn’t been made up by the sale of individual songs.

First – I note that the transition (back) from albums to songs is touted as a bad thing, somehow. This, I really don’t get. The vast majority of commercial albums produced in the last forty years have not been “albums”, but collections of (a) hits, (b) a few noncommercial interesting songs, and (c) several filler songs, in varying proportions. These artists were being forced to produce albums when they wanted to produce songs. It’s as if every short story writer were being forced to write massively long novels.

That’s actually not a good model for creativity or quality artistic production. Why would anyone bemoan this transition? The more viable economic models and methods of distribution there are, the better. Now, artists can produce songs, longer pieces, albums, etc., according to their degree of inspiration.

It really bugs me when people (read: middlemen businesses) get so wedded to particular models that they act as if those models are the natural, One True Way, despite manifest evidence to the contrary. I’ve grown used to this absurdity in terms of the music industry thinking they have a god-given right to sell music as if it were on degradable media to consumers who do not have quality reproduction material — to force us all to live in the 1950s, in other words. But you’d think that in at least one area, they would welcome what is obviously good?

Second – it may all be just so much BS anyway. Yes, the major record industries are reporting CD sales down (and their numbers have proven oh-so-trustworthy in the past), but Harold Feld at Public Knowledge is reporting on information from CD Baby that sales are up — for independent musicians. In other words, long tail economics are at play here: The top part of the curve may be flattening out to some extent (and Feld reminds of us of some of the reasons that the late 1980s/early 1990s were a golden age for CD sales) but music overall is more a part of our lives than ever.

surprise! more copyright stuff!

People have called my attention to a few more copyright & related matters lately:

* Darren Barefoot, who did the project “GetAFirstLife.com“, received a hilarious anti-cease-and-desist in its comments section, purportedly from Ginsu Yoon, VP of Linden Lab (Second Life’s company). Or as Peter Hirtle put it when passing it along, a “proceed and permitted” letter. More P&Ps, please! And fewer C&Ds.

* The recent movie “Dodgeball” hit the courts on a copyright infringement suit; the NYT wrote up the story, hitting some of the colorful details as the court tried to distinguish coincidence from copying, and substantial similarity from generic scenes a faire. (Would it kill the NYT to link to the freakin’ case for readers? I’ll dig it up and post it.)

* In addition to the RIAA’s stepped up “enforcement” at college campuses, the RIAA is also now attacking open wireless networks. (See Wired News blog.) A friend was asking me about this: What’s in it for the RIAA? Are they really trying to deter individuals? Well, to some extent, but principally they’re just trying to keep the issue in the limelight. It doesn’t matter if any individual enforcement action is effective, or if they get bad press; as far as they’re concerned, there’s no such thing as bad press on this issue. The more press on copyright “infringement”, the better. They want to create copyright anxiety (“copyright awareness”).

* And, last but not least, an uplifting story about Bent Skovmand — unfortunately it’s an obituary, so some might not get the “uplifting” part. But what’s uplifting is that this person spent his life seeing a problem and working to solve it. That is a success story. Every time I think of the waste of space and destruction of human energy represented by the current occupant of the White House, I’m going to try to dedicate an equal amount of time to the inspirational life of Bent Skovmand.

In case you’re wondering, the NYT obit is great, and Wikipedia’s entry is stubby but accurate. Basically Skovmand was an agricultural scientist who worked to preserve plant diversity and access. He was concerned about the monoculture techniques of modern industrial farming, even as he worked with farmers and governments around the world to help foster the Green Revolution. Ultimately he began to collect and archive seeds of all sorts of strains of food and agricultural crops, developing a project called the doomsday vault — a warehouse for agricultural crops in an island off of Norway, heavily safeguarded and secured against all manner of natural and human-made catastrophes. The vault will contain at least three million crop seeds.

In keeping with his general concern for openness and human access to genetic diversity, Skovmand critiqued the propertization of genetic information: copyrighting genes is “like copyrighting each and every word in ‘Hamlet’, and saying no one can use any word used in ‘Hamlet’ without paying the author.” According to the NYT, he gave away his own data on CDs, rather than trying to control it.

So — Bent Skovmand. May more of us have the opportunity to lead such fulfilling and satisfying and productive lives.

universities and copyright

Suddenly there’s a lot of press about the rights enforcement companies and their P2P notices — this Washington Post article and this AP story are just two of the recent press.

How timely — I just finished a report on exactly this issue. I spoke with representatives from 25 different educational institutions and online service providers to understand their processes and practices, and pressures.

What we found is that universities have indeed set up overly harsh policies in response to P2P notices. The policies were typically created in the last few years, under significant political pressure and media spotlight — pressure and spotlight engineered by the large entertainment companies. University officials are typically very concerned about academic expression interests, but may not have looked at these policies in relation to all their other policies.

We found a lot more of interest — including really problematic behavior on the part of the rights enforcement companies. The report (Intellectual Property and Free Speech in the Online World) is available online, for free, in PDF.

US copyright lobby madness

The US copyright lobby (as represented by the “International Intellectual Property Alliance”, a confusingly named consortium of US copyright lobbying groups) has just done a report on the failures of the rest of the world to properly protect its members’ intellectual property. We care, because it submits this report (solicited? unsolicited?) to the US Trade Rep who basically adopts it wholesale in its annual report of what to do next. (The US Trade Rep is the strong-arm of US policy, basically “encouraging” other countries to adopt legislation and policies that favor US interests. Contact USTR lists some relevant numbers and address.)

Michael Geist (a Canadian Internet and copyright law scholar) wrote a terrific analysis of the report. He does a beautiful job of contextualizing it within the US’ climate of copyright extremism.

# For instance, the report criticizes the rest of the world for not adopting the US version of the much-criticized and highly problematic anticircumvention provisions of the 1998 DMCA.

# Second, the report criticizes countries that seek to adopt some of the consumer-friendly provisions that US law still contains (e.g., fair use in Israel; time shifting in New Zealand; compulsory licensing regimes around the world).

# Third, the report criticizes countries that attempt to promote educational, privacy, and cultural initiatives, such as copyright exceptions for students in South Korea, Brazil and Canada; privacy protections for Greece; etc. The report criticizes countries that have failed to adopt the life+70 years copyright extension — an extension which even the US Register of Copyrights, MaryBeth Peters, acknowledged was probably a mistake.

Of particular interest to me, the report criticizes Italy, Greece, and Mexico for not implementing the US version of the Section 512 takedown procedure. Greece includes some privacy provisions, and Italy and Mexico haven’t done it yet at all. Just as well, because the hastily-enacted and poorly-thought-out provisions have created a lot of problems here in the US. See Heins Beckles 2005, Urban / Quilter 2006, and Quilter/Heins 2007.

Go read Michael Geist’s article.

a natural history of copying

David Conniff on “Happy Days” in Times Select (sigh) writes about the human tendency to imitate and synchronize:

Mirroring the people around us is also a way we communicate affiliation and affinity. Two people in a friendly conversation often match each other’s body language down to the crossing of their ankles or the waggling of their feet. When it happens unconsciously, it feels good for both partners, as a way of saying, “I’m with you.” Studies suggest that we like a conversational partner more if the other person has subtly mimicked us. Mirroring gestures and movements also seems to help people work better together. They find a shared rhythm and gradually coalesce into a team, so the parts of a project get handed on seamlessly, as if by magic. One person starts a sentence and the other person finishes it. One comes up with a new product idea, and the other nudges it in a new direction.

Monkey see, monkey do. My friend and colleague Howard Besser often talks about how humans learn by copying: children, apprentices, writers, lawyers.

No wonder copyright law is in such a spasm.

WSJ editorial page embarrassment

The WSJ editorial page is not something I ordinarily frequent, but they recently wrote an editorial on the DMCA. Aside from a reflexive and simplistic “intellectual property is good so don’t bother me with nuance or details” attitude, this paragraph struck me:

Google claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material. The firm also asserts a right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have the legal right to hop over your neighbors’ fence and swim in their pool — unless they complain.

WSJ 2006/12/1 (it’s the editorial page so the person who actually penned this embarrassment doesn’t have to sign his or her name)

I realize that editorial pages don’t require fact-checking, but getting the law this wrong is embarrassing. Readers of this blog probably are very familiar with the DMCA, but a couple of quick pointers:

  1. The DMCA doesn’t “allow[] Internet firms to provide a thumbnail of copyrighted material.” I believe the hopelessly inept WSJ editor was probably thinking about the Kelly v. Arriba 9th Cir. decision, supported recently by the 2d Cir. decision in Dorling-Kindersley. Both of those interpreted fair use (17 USC 107) to include offering thumbnails for a different purpose.
  2. “… without permission as long as it promptly stops the trespass if the copyright owner objects.” Presumably here they’re talking about the DMCA notice-and-takedown provisions, 17 USC 512. Of course, these provisions don’t apply to original infringement — reproduction and distribution — but to the responsibility of ISPs and other intermediaries when their networks are used for reproduction and distribution. That is, at best, secondary infringement (contributing to or vicariously responsible for someone else’s infringement), and it’s really not at all clear that ISPs would be liable for it even in the absence of the safe harbor provisions. Which aren’t “claimed” by Google et al but ”given” to them by Congress.

Since they can’t be bothered to do even the barest minimum of fact checking, and don’t understand what they’re talking about, it’s hard to actually take them seriously. Are they this bad all the time?

Gigi Sohn of Public Knowledge probably very wisely didn’t bother correcting their extremely shoddy fact-checking but responded to the overall tenor of their arguments; the WSJ published their letter – and because the WSJ puts their content behind passwords, the full-text of the letter is available at PK’s blog by Alex Curtis.

we knew it would come up eventually

A recent court denied a motion to preliminarily enjoin distribution of copyrighted dildos, noting that dildos are useful articles, and separating the copyrightable expression from the unprotectible ideas would be … difficult. Bill Patry excerpted some of the best parts of the decision. Conwest Resources, Inc. v. Playtime Novelties, 2006 WL 3346226 (N.D. Cal. 2006).

It used to be that my most exciting legal props quest was to find a jeweled bee pin.

DMCA exemptions issued

The Library of Congress / Copyright Office issued its third set of DMCA rulemaking exemptions, just before taking off for the holidays. I was eagerly anticipating the rulemaking (even more eagerly than usual) after David Carson, General Counsel at the Copyright Office, kept dropping hints about the what we could all look forward to at a panel at Fordham last Friday. (The ever witty Hugh Hansen said it was the closest he’s seen to a legal strip tease.)

The rulemaking is more generous than it has been in past years (though still not as generous as I would be).

To sum up & paraphrase:

“Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.” (The exemptions go into effect starting Monday 11/27 & expiring Oct. 27, 2009.)

  1. Film professors. (new) Film professors etc. can circumvent CSS on DVDs for teaching. (Limited to works in the school collection.) (New exemption)
  2. Preserving old video games. Libraries & archives can preserve computer programs & video games for obsolete platforms & medias. (This kind of exemption shows the weirdness of the 3-year expiration for each of these rulemakings. Libraries & archives had better do a lot of preservation in the next 3 years because who knows if we’ll get it again in 2009! This is a carry-over exemption, but every 3 years librarians have to make the case again.)
  3. Malfunctioning dongles. You, me, and anyone else can disable malfunctioning access dongles on computer programs if the dongles are obsolete. (Another carry-over.)
  4. EBook blind readers. Blind ebook read-aloud exemption continues from past exemptions.
  5. Cell phone switching. (new) If you switch cell phone companies you can disable proprietary technologies to keep your cell phone. (This is a new exemption.)
  6. Sony rootkits. (new) Sony rootkits and other CD copy protections can be disabled to test, investigate, or correct security flaws or vulnerabilities. (This is a new exemption, and I’m glad it’s here, but, honestly, we got more bang for the buck out of the furious glare of news media & public outrage & a little state’s attorney general scrutiny.)

The Librarian of Congress carefully reminded us that “[t]his is not a broad evaluation of the successes or failures of the DMCA.” Also, that the rulemaking is just for access-control exemptions, not copy-control exemptions, nor does the rulemaking craft exemptions for the prohibitions on making / distributing circumvention tools.

There’s a lot more detail in the 88 page “Recommendation of the Register of Copyrights”, which is where the juicy comments on everybody else’s proposed recommendations will be. What a fun txgiving read! O thank you Copyright Office — this is much better than a football game. (I’m not being sarcastic.)

artists and IP

The NYT has two interesting stories right now featuring, shall we say, different approaches to artists and IP.

The first in a genre near and dear to my heart is a profile of Dark Horse Comics, which “built [their] publishing platform around creators’ rights … [Their] pitch was, ‘We’ll match the rights that you get from other companies and we’ll let you own the work.’”

The second is an article about Daniel Moore, a photo-realist artist (he calls it “photofuturism”) of Alabama sports moments. The University (as we in Alabama called it) is suing Moore for trademark infringement of its crimson-and-white color scheme. Yea, Alabama, Crimson Tide, yadda yadda yadda fight song lyrics sung ironically. (I went looking for the actual fight song lyrics, which did not comport with my memory, and found myself in a hell of blinking and color-challenged websites dedicated to Crimson Tide football obsession. Dave’s College Football Fight Songs is restfully simple, for those of you who want to know the actual lyrics, and not the one line that is engraved falsely in my memory.)

X-posted at sivacracy

Fair Use Revisited talk in DC, Sept. 21

Judge Alex Kozinski, renowned for his copyright and trademark jurisprudence, will be delivering a lecture on “Fair Use Revisited” Thursday, Sept. 21, 2006, at Washington College of Law, American University, Room 603. Judge Kozinski is always entertaining as well as enlightening, so this is an event not to be missed. More information at .

LA Times thinks Hollywood is going too far

Is it a sign when the LA Times thinks Hollywood is going too far? God, I hope so.

In today’s editorial, the LAT says:

[editorial summary: Copyright infringement is bad, intellectual property is good, yadda yadda.] But what the entertainment industry is seeking in this year’s proposals isn’t merely protection from piracy; it’s after increased leverage to protect its business models.

That’s why lawmakers must bear in mind the balance needed between copyright holders’ interests and the public’s, something Congress has not done well lately. In 1998, it gave copyright holders broad power to block legitimate uses of works, even those in the public domain, through the use of electronic locks that impede copying of digital products. And that same year, it prolonged the public domain’s starvation diet by extending copyrights an additional 20 years, to 70 years beyond the death of the creator.

As they weigh the entertainment industry’s pleas, lawmakers shouldn’t assume all consumers are bootleggers and every digital device is a hand grenade aimed at Hollywood.

I really ought to read the LAT more often, because this seems pretty sensible.

tacky but lawful derivative liberty

Statue of Liberation Through Christ; photo by Rollin Riggs

A fundamentalist mega-church in Memphis has repurposed the Statute of Liberty. [7/5 nyt] Lucky for them the Statue is in the public domain. Shake your head at its awfulness at thestatueofliberationthroughchrist.org. Christian nationalism, indeed.

Maybe someone should remind them that the Statue’s French.

 
 
 
 
 
 
 
 

copyright misuse in the 8th Circuit

Out of the thickets of antitrust doctrine (“Noerr-Pennington”, anyone?) comes a District Court decision concluding that “‘misuse of copyright’ is a viable defense to a copyright infringement action”, and concluding similarly to the unclean hands defense. Hitherto the 8th Circuit had punted on copyright misuse, finding it not applicable in the particular cases it reviewed, while declining to state whether the defense was theoretically available or not. I expect the plaintiff (a racing association claiming infringement of its rules) will appeal.

* Int’l Motor Contest Assn, Inc. v. Staley, — F.Supp.2d —-, 2006 WL 1667889 (D. Iowa 2006 June 19). (Mark W. Bennett, J.)

* Bill Patry’s analysis (7/5)

some notes

(1) Today’s NYT article on “tough questions” for gubernatorial candidates on abortion: all the gubernatorial candidates quoted are men. [NYT 6/5]

(2) Mercury Rising discusses what happened to Wen Ho Lee after the racist government debacle a few years back. [sideshow 6/4]

(3) I don’t believe I’ve plugged Ann Bartow’s “Fair Use and the Fairer Sex” article on the blog, although I’ve referred many people to it by now — It’s going to be a critical work in the developing scholarship on IP and critical theory. [info & link]

(4) I can’t make Octavia Butler’s memorial in NYC tonight (it was sold out and I’m in Boston anyway) but I snapped some pix from a Barnes & Noble memorial. Yes, it’s Barnes & Noble. I snapped them anyway because it was a lovely memorial. [x-posted w/ pix @ fsfblog 6/5]

(5) I’m setting up a listserv for folks in SF/fandom who are interested in IP issues particularly; and information more generally (telecomm, open distribution, libraries & information industries, media, censorship/First Amendment, etc.). The SF community has been, for years, an exemplar of the fact that consumers are creators are consumers, and that might explain why there’s less polarization among copyleft/copyright than in other genres/creative communities. Also, SF folks are particularly smart at realizing that rules and regulations are choices, and we can make different ones, and that technology can change everything. So I think that by pulling together SF/fandom to talk about IP/media we can have some interesting and hopefully really productive discussions.

I haven’t set up the list yet because I don’t have a snappy name for it — fandomIP? fanip? sfanip? sort of like turnip, isn’t it? pernip? parsnip? anyway – I’m taking suggestions for names, and offline emails if you’re interested in joining.