Monthly Archives: December 2010

Trademark Resolution

So if you’re thinking about heading to the gym for a new years resolution, this might interest you:

‘Spinning’ Trademarked; Gyms Being Threatened For Holding Spinning Classes Sans License

* from the ride-that-bike dept

Who knew trademarks went to the gym?! Har har, the trademarks themselves don’t, but the people looking to turn a buck on a new fitness craze certainly would. And as far as the company “Mad Dogg” is concerned, they trademarked “Spinning” in 1992, created the mental association with stationary bikes and crazy popular routines, and now want to cash in… globally. From the article, it seems that gyms that get the cease & desist or license demand are just calling the classes “stationary bike classes” instead of paying up.

The other argument is that the term has become generic (or “genercide” – which is one of my favorite legal words, btw)… which is true, as far as the mental association is concerned. As I explained in my “Copymark my Traderight” post… trademarks are the legal protections for the mental association between a product and the company that makes that product. Companies like Xeros and Band Aid, which are arguably generic terms now, have huge marketing campaigns dedicated to protecting that trademark – thus “Xerox copies ” and “Band Aid brand adhesive bandages”. (Forgive the wiki-links, but I can’t find a link to their marketing materials, which I have seen in person.)  Without that kind of effort, you aren’t taking “reasonable” precautions to defend the mark, and you therefore loose the ability to sue people for using it and can’t force them to license it from you. Which makes what this company is doing is completely backwards…

I’ll be interested in seeing what kind of impact it has, and if the issue come up again. I can’t imagine them having the funds to sustain a global licensing campaign, especially when all the gyms “have” to do is change the name of their programs.

In the mean while: as a fun little game – see how you do with this little web-test for genericized trademarks!

Can you name the brand names that are synonymous with these products?

http://www.sporcle.com/games/Saulmeister/synonymousbrands

(I got 33 out of 44.)

Pax,

“Entertainer at Law”, Esq.

(Trademark as of yet unregistered, but slowly building recognition as a secondary trademark for educational and legal services rendered. Just sayin.)

 

(c) Nicole L. M. Jurkowski 2010

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Traitorware and Chilling Effects

This just in from EFF! (Honestly, I didn’t intend to use just EFF, but they have the best two stories out there on the web right now for the theme of creeping you out…)

Traitorware

https://www.eff.org/deeplinks/2010/12/what-traitorware

This article is a ripe fodder for conspiracy theories… Back in 2005, Sony BMG added a “rootkit” program to their CDs that was supposed to help enforce the Digital Rights Management (DRM) controls for the CD. What it did, however, was install a volatile program on unwitting computers that did much more than expected… “[T]he software also rendered the CD incompatible with many CD-ROM players in PC’s, CD players in cars, and DVD players. Additionally, the software left a back door open on all infected PC’s which would give Sony, or any hacker familiar with the rootkit, control over the PC. And if a consumer should have the temerity to find the rootkit and try to remove the offending drivers, the software would execute code designed to disable the CD drive and trash the PC.”  Safe to say… they got in trouble for their efforts.

So what is this new article talking about? Unsurprisingly, there are new forms of this type of “extra” software or software effects going into our consumer electronics all the time. Check out the article to see what’s up.

Chilling Effects: “Chilling Effects Supporters Fight Back Against Perfect 10 Challenge”

https://www.eff.org/press/archives/2010/12/22

Amicus Brief Rejects Claim That Google’s Forwarding of its Legal Notices to the Online Resource is Copyright Infringement… because Perfect 10 includes its copyrighted adult images on the notifications.

The use of copyrighted works for scholarship or research, like in Chilling Effects, is clearly a fair use of the material and protected under the law,” said EFF Intellectual Property Director Corynne McSherry. ”

For those that don’t know, the site “http://www.chillingeffects.org/ ” works to educate the public on the First Amendment and Intellectual Property Laws that effect internet content. A big part of that is re-posting Copyright Infringement/Takedown notices that are sent to companies on the web.  This whole effort important because if you receive a notice, but are using the content under the fair use provision, then what the company sending the inappropriate notice is doing is creating a “chilling effect” – silencing legal speech by inappropriately threatening to sue. If they took you to court, they would loose…. but you don’t know that. Chilling Effects.org wants to change that.

(c) Nicole L. Mann  2010

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[Latin] Bona Fides

Bona Fides

Academic Latin Pronunciation: Bone-a Fee-deys

Legal Latin Pronunciation: Bone-a Fi-d

 

The New College Latin and English Dictionary says….

* Bon-us, -a, -um; adi good (morality); sound, valid, well-founded (arguments)

* Fid-es, -ei; f Trust, reliance, confidence; trustworthiness, conscientiousness, honest; assurance; word, word of honor; protection, guarantee; false conduct; confirmation, proof (in this case: ablative case)

 

Phrases

* Bona fidei: In good faith

* Bona fides (or ex bona fides): In good faith; really, genuinely

 

Ergo…

 

Bona Fides: “In” (ablative) “sound / valid” “trust / word of honor / guarantee”

 

Used in Latin… the term has many categories. The New College Dictionary has a plethora of phrases with “fidem” and a complimentary verb that mean arguably the same thing, in many situations. However, just like any language that has many, many translations for one simple word, the significance of the world changes with the nuance. With “bona”, the term is related to “good” in a moral or trustworthy sense.

 

For legal latin… “bona fides” it refers to legal instruments or promises that have been made “without fraud or deceit” (Black’s Law Dictionary). In this way, the legal community is defining something in the inverse; a “bona fide” document is not “an agreement made in good faith”, but “an agreement that was not made through fraudulent actions or deception”. It may seem like splitting hairs, but for a linguist, there is meaning to the definition.

Alternatively, Black’s Law Dictionary defines the english term “good faith” (used as a noun) as: “A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.” So the definition is given depth and meaning based on the circumstance. (Very much like the latin usage!) This opens the door to relevant “Good Faith” doctrines, including such examples as “Good Faith Bargaining” for Labor Law, “Good Faith Exception” for Criminal Law, “Good Faith Improver” for property law, and even “Good Faith Effort” for government compliance with equal opportunity employment acts.

 

So what does this all mean? 

For most people, “bonafide” is a term that we use in common discourse to mean something is “the real thing” as opposed to a fake. In the latin, it remains a vastly open ended notation of intent by the actor or the trustworthiness of a thing. With modern legal practice, the term of art we know as “bona fides” is many things, depending on the situation: a standard for review, a provable mental state for litigation, a defense to negligence, or an indicator for intent – largely based on an intangible sense of “good”, honesty, and morality. It has taken an intangible notion similar to a “faith in the goodness of humanity” and created a legal doctrine whereby it can be used to describe the trustworthiness of a document or person’s statement or actions.

As a side note, it also seems to be something that would have been key for a community of people who distrusted written contracts as opposed to oral ones. In an oral culture, you shook on an agreement and felt you could trust a person to carry out their end of the bargain. When those terms got put to paper, the humanity was arguably taken out of the equation; “either you perform as we have in the written negotiation, or I’ll sue you for damages and reparation”. Having a “Good Faith” doctrine, then, seems to be our greatest attempt at bringing back in, or at least formally acknowledging, the trust that is implicit in modern legal practice.

Because to be honest, very few people are able to blindly trust another person, especially someone with dissimilar interests. Doing business through lawyers doesn’t help, either. A lawyer is there to tell you your rights and to advocate for your position, some times to the de-valuation of your opponents. However, when there remains a factor of trust and honesty in the process, at least you know you aren’t getting screwed. Well, at least not intentionally.

And I suppose that’s all that really matters.

 

Pax,

Vestra Magistra, Esq.

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eReaders, Part 2

In longstanding tradition of attempting to write an academic, researched article… I’ve been preempted. As if I needed another reason to love the Electronic Frontier Foundation  … they have just published:

2010: E-Book Buyer’s Guide to E-Book Privacy

Deeplink by Cindy Cohn  

This is what they investigated:

* Can they keep track of book searches, either on their website or on the website of other e-book sources?

* Can they monitor what you’re reading and how you’re reading it after purchase and link that information back to you? Can they do that when the e-book is obtained elsewhere?

* Is the device ONLY compatible with books purchased from an associated eBook store?

* Can they keep track of book purchases? Can they track book purchases or acquisitions made from other sources?

* With whom can they share the information collected in non-aggregated form?

* Can they share information outside the company without the customer’s consent?

* Do they lack mechanisms for customers to access, correct, or delete the information?

And here’s what I was gathering, outside of that info…

Which mostly include articles surrounding the IP of the eReaders.

Nook (Barns And Noble)

Yet Another Reminder That You Don’t Own Your Ebooks: B&N Nook Deletes Files, Blames User

Techdirt

Just as Barnes and Noble is updating the Nook, its ebook reader that hasn’t gotten much traction, comes reports that of an upset customer who found that the Nook deleted all of his files, and when he complained to B&N, the company basically told him it was his fault and there was nothing it could do. While B&N was able to restore the ebooks, it could not restore anything else, not from B&N, such as his own documents and notes: I tried to turn my Nook on this morning and it wouldn’t turn on. Finally, it gave me a screen that said it was updating and that I needed to leave it be, so I did. When it had finished updating it had wiped all of the files off of my nook. When I reregister the device, the books from B&N will return, but everything, including documents not from B&N, has been deleted.

When I called technical support (1-800-THE-BOOK) to complain/make sure they were aware of the problem so that it wouldn’t happen to other people, I was informed that this can happen when the device hasn’t been updated in awhile. I asked if this was something they were trying to fix and I was blamed for the fact that everything had been wiped from my device because I had not been studiously updating the device. I asked if he understood how absurdly incompetent this was, my computer, after all, does not delete all my files because I don’t update it for awhile. I was informed that my computer updates everyday, whereas I have apparently not updated my nook in a terribly long unspecified length of time, which was just too long and too many updates for it to handle without deleting all my files.

Amazon got in a lot of hot water years ago for deleting copies of an ebook. You would think Barnes & Noble would know better than to do the same.

Kobo (Borders) $149.99

This, from Kobo’s website…

? – How do I buy books for my Kobo eReader?

Simply click on the Store button in the Borders eBook Desktop App to search or browse our extensive catalog of titles. Once you have purchased your books, ensure your library is up to date by clicking “Update Library.” All your purchased books should appear in your library. Ready to transfer to your eReader? Connect your eReader to your computer and click “Sync.” When the syncing process is complete, eject and unplug your eReader and your books will be waiting for you on the device. You can also use the Desktop App to load eBooks purchased from other vendors, provided that they support Reader® Mobile Technology from Adobe Systems Inc.

? – Can I read the ebooks in my Kobo eReader library on other devices?

Absolutely. The Kobo reading service allows you to read your eBooks across multiple platforms, including your Kobo eReader, select smartphones, and your computer, using the free Borders Apps available for those platforms. You can also download the ePub versions of your purchased books and load them on to any eReader that supports Reader® Mobile Technology from Adobe Systems Inc.

? – How do I load documents to my Kobo eReader?

You can add your own PDF documents to your Kobo eReader by connecting your eReader to your PC or laptop using the supplied USB cable. The eReader will become available as a removable storage device. Drag-and-drop your PDF files onto the eReader. If you have an external SD card (up to 4 GB), you can load PDFs on that, insert it into your eReader and your eReader will automatically detect new content.

? – Can I share the eBooks in my library?

The license type determines whether or not you can share eBooks. Many eBook products sold have a “Single Reader” license. This means only you (and your immediate family) may view the eBook.

[And additionally…]  eBooks supporting Reader® Mobile Technology from Adobe Systems can be shared with up to 6 devices authorized to the same account. For more information regarding Adobe Reader® technology, please visit: http://www.adobe.com/products/digitaleditions/faq/#section-2. This Kobo eReader contains Reader® Mobile software under license from Adobe Systems Incorporated, Copyright © 1995-2010 Adobe Systems Incorporated. All rights reserved. Adobe and Reader are trademarks of Adobe Systems Incorporated.

Account Requirement: You’ll need a Borders.com account to purchase and sync eBooks with your eReader.

Kindle (Amazon)

Kindle To Let You Lend Books, Just Like A Real Book… Except Not

from Techdirt by Mike Masnick

Apparently, Amazon is adding a feature to the Kindle that will let you “lend” books to other Kindle users. Of course, it sounds quite like the ridiculously limited lending found on the Barnes & Noble Nook ebook reader as well. You see, when you “lend” the book, you can’t read it yourself… “just like a real book.” But, um, you can only lend it to other Kindle users, just like a real book (oh, no actually). And, you can only lend it for 14 days, just like a real book (oh, no actually). And… you can only lend it out once, just like a real book (oh, no actually). It really makes me wonder how incredibly soul-deadening it must be to be a developer working on products like this where you’re focused on limiting what the technology allows.

Irony: Book About Recording Industry’s Mishandling Of Digital Priced Higher As Ebook Than Physical Book

from Techdirt by Mike Masnick

A few weeks back, we noted that book publishers apparently simply did not learn from the mistakes of the recording industry — specifically pointing to DRM and (more importantly) the fact that they’ve started pricing ebooks higher than physical books. Now, in a moment of supreme irony, Copycense (who has been highlighting various ebooks priced over corresponding physical books) is noting that Steve Knopper’s excellent book Appetite for Self-Destruction (subtitled “The Spectacular Crash of the Record Industry in the Digital Age”) is one of those books. Indeed, Amazon shows the ebook priced at $17.99, while the paperback is $11.53 from Amazon (and available new from others at $7.50 or used at $4.42).

If you go to the ebook page itself, Amazon clearly states, “This price was set by the publisher” (a clear response to complaints about the rapidly rising price of ebooks lately). It kinda makes you wonder if the decision makers at Simon and Schuster even read the book they’re pricing? They might want to crack open a used copy of the paperback (it’s cheaper) to learn why not understanding digital, and therefore thinking you can price digital things super high, is not the smartest move…

Enjoy!

Pax,

aTtorney, Esq.

 

(c) Nicole L. M. Jurkowski 2010

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eReaders, Part 1

Readers are huge this season, and arguably a very progressive way to go about having an extensive collection of books. They’re also a cool digital toy that is apparently on the hot list for kids 6-12. (I’m not kidding! ) But when everyone is comparing the specs for the devises… I’m more interested in how the readers interact with the Copyright law.

Now where books are concerned – some people, like myself, highly enjoy the physical experience of owning books – the smell, the touch, and the library one collects over a life time. However, others put more value in the ability to access to a large number of potential reading material at any point in time, and/or to not have an enormous library of physical books. (In effect: to do to books what the walkman, CD player and the MP3 player have done for music.) And we all know how important value  is when attempting to get someone to purchase merchandise.

So with that in mind, I am interested in investigating how the top eReader companies are addressing this need – especially where the licensing and use is concerned for consumers. I’ve heard plenty of rumors about various eReader users loosing entire libraries of content for X reason, and Y company being unable to help them recover the data or say that it’s their fault for not backing up the device, etc. I’ve also heard (substantiated) rumors that the Kindle has a “book sharing” system, where you can lend books to other Kindles – which means that there is value in possessing a pseudo-physical piece of property.

All of these concerns, in my opinion, come from the reality that eReader users put both physical and non-physical value in the same devise. Consumers want:
(1) the value of an electronic library which can be electronically stored, backed up, and recovered should something happen to the physical device, and

(2) the value of a physical device which can trade the non-physical, licensed books like they are real property. (Talk about a double edged sword!)

As I see it, the first situation (1) should be dealt with by the company providing the device in the form of customer support. If you have a proprietary eReader, where by you can only download books from that point source, you arguably have an account with that point source that has a record of your purchases. If you loose the file, for whatever reason (other than some how permanently giving the file to another user (another physical/non-physical paradox)), you should arguably be able to download new copies of the books you have already purchased because they will have a record of that sale. If you have an open eReader, where you can put any book from any point source on your device, then it would lend itself to a more traditional situation – you have to back up the files so that you don’t loose them. This second option is more like a traditional, physical book purchase; if you loose your physical book, then it’s gone.

The second situation (2) is something more of a problem because it starts to play foul with what we lawyers know as the First Sale Doctrine  – and the rest of the world knows as the secondary market of used books. The First Sale Doctrine means that you cannot be sued by a publisher for selling a book you bought at Borders from them to a friend. The reality with eReaders is that they are “licensing” copies and to you, which means they are selling you the right to own a copy. It is very similar to a software license with it’s End User License Agreement  that restricts you from re-selling software that you have previously used. (Plenty of current legal cases to go with that thought – but unless I turn this into a legal article to be published academically, y’all won’t care so much.)

The eReader’s problem is that they are both treating eBooks as being licensed (they can only be used on proprietary eReaders (the license is only for the Nook, say) or  they are treating the eBook as having some hint of real property by allowing you to “lend” it to other users. Now granted, the companies licensing these books could very well be including the ability to “lend” in the license, but we all know that if you give a mouse a cookie, they’re going to want a glass of milk. It is very easy to imagine consumers demanding a secondary digital market for books – which despite being extremely hard to pull off in my opinion, could theoretically be viable. But that’s slightly beyond the point of this post.

What I’m actually looking into with the eReaders is what they are licensing (digital rights in books, either exclusively or non-exclusively) and how they are attempting to control what is on the reader (proprietary DRM or other controls). There’s also the fact that all throughout this intro I haven’t mentioned that the readers are still a middle man – the digital rights to the books are licensed to the store, either exclusively or not, and if the store provides the reader, then the store can still claim some modicum of control over the digital rights to the book (you can’t reproduce it or sell it to others, etc.). It’s a whole chain of “I sell X Store the digital rights and the ability to license those rights to Y consumer. X Store can then limit Y consumer from using the book on Z reader through DRM (digital rights management)” –  in a worst case scenario. In a better picture – “X store get the digital rights and sells it to Y consumer in a format that be read on all readers”.

Wow – even my head is spinning, now.

So in an effort to provide some sort of guidance to people buying eReaders this gift-giving season…
I am investigating the legal aspect of the three big readers: Nook (Barns and Noble), Kobo (Borders), and Kindle (Amazon). I’m also going to look into Apple’s iBook appication for the iPad – but that seems to be a slightly different market, as I doubt someone would by a $500 eReader. (They would by a $500 mini-computer with an eReader application, though – so I’ll check). And yes, I know there are many other eReaders out there, but for the purpose of this thought experiment I want to focus on the groups that already sell a majority of the hard copy books in the mass market.

So here’s what I’m looking for:

* What is in the license for the copyright of the books purchased? (Digital Rights)

* Storage and the ability retrieve “lost” books (Digital Copy Value, Customer Support)

* The Ability to trade books with other users. (Hard Copy Value, Secondary Accessibility)

* The Ability to buy and read eBooks from multiple sources. (Non-Proprietary market)

* The effect of DRM on eBooks (Proprietary mark)

* … and anything else that comes up that I didn’t expect.
And I’ll get back to y’all soon with what I find… This is going to take some digging through fine-print

Pax,
aTtorney, Esq.

 

(c) Nicole L. M. Jurkowski 2010

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