IPTAblog

The Wall Street Journal, Shape of Things to Come: "On Jan. 8, the U.S. Patent and Trademark Office granted Apple Inc. a trademark for the three-dimensional shape of its iPod media player. This was more than a recognition of an innovative product design. It also was Apple's capping piece in a multiyear marketing and legal campaign that pushed intellectual-property rights to new competitive advantage for the company."

US TM registration #3365816: "Color is not claimed as a feature of the mark. The mark consists of the design of a portable and handheld digital electronic media device comprised of a rectangular casing displaying circular and rectangular shapes therein arranged in an aesthetically pleasing manner. The matter shown in broken lines, indicating the location of device connectors, is not part of the mark."

Remember Facebook's Beacon program? That's the program that uses Facebook user's purchase information on partner websites to advertise those websites to the user's social network. Here are a couple of posts on the controversy from David at Inside the Marketer's Studio blog that explain the controversy: Facebook Social Ads Need an Opt-Out

Facebook's About Face on Social Ads (Finally)

A Texas plaintiff filed a class action suit against Blockbuster for violating the Video Privacy Protection Act, U.S.C. § 2710 by releasing customers' video rental records with Facebook.

Complaint in Harris v. Blockbuster

MediaPost reports: Blockbuster Sued For Participating In Facebook's Beacon Program: "A Texas resident has filed a federal lawsuit against Blockbuster for participating in Facebook's Beacon program, which tells members about their friends' e-commerce activity. In the lawsuit, quietly filed last week, Dallas County resident Cathryn Elaine Harris claims that Blockbuster violated the federal Videotape Privacy Protection Act by sharing information about her movie rentals and sales with Facebook without first obtaining her written consent."

And here's a thoughtful analysis from December on applying the VPPA to Beacon from James Grimmelmann, Facebook and the VPPA: Uh-Oh

Would Bruce's right of publicity claim against Microsoft be affected if this video was intended for internal use only, but posted to the public internet by a third party?

J.K. Rowling testified this week in her lawsuit against the publisher of a book version of The Harry Potter Lexicon, Warner Bros. Entertainment Inc. v. RDR Books.

Mark Hamblett, New York law Journal: Harry Potter Author Fights Creator of Lexicon, Calling It 'Wholesale Theft': "In pointed and at times emotional testimony, Rowling employed a sharp tongue to charge that a Michigan publisher borrowed much from her wildly successful works and added nothing when it created a 'lexicon' alphabetically listing characters, places, spells, creatures and objects in the Potter series."

New York Times, Rowling Testifies Against Lexicon Author: "Ms. Rowling argued on Monday in Federal District Court in Manhattan that the proposed encyclopedia — she has read the manuscript — is a copyright infringement and is little more than an alphabetical form of plagiarism. She claims the author has lifted large chunks of her own language without quotation marks. ‘I believe that this book constitutes the wholesale theft of 17 years of my hard work,’ she testified."

Scrivener's Error Beware the Ides of April: "the reporting of the Harry Potter Lexicon case is only making clearer that Warner Brothers' trademark interests, far more than Rowling's copyright interests, are driving the lawsuit. Although Rowling's testimony yesterday was from a copyright holder/creator's perspective, the questions from plaintiffs' counsel — representing her interests — were from a trademark and dilution/disparagement/passing-off perspective, even when put in the formal language of copyright claims.

Derek Bambauer, Info/Law Harry Potter and the Lexicon of Fair Use: "I think the book infringes Rowling’s copyrights, that the use isn’t fair, that the trademark claim is weak, that the plaintiffs will win on the copyright claim, and that this outcome is a good thing."

Tim Wu, Slate.com: J.K. Rowling should lose her copyright lawsuit against the Harry Potter Lexicon: "But Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be 'recast, transformed, or adapted.' But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing. The law has never allowed authors to exercise that much control over public discussion of their creations."

Mike Madison, Madisonian.net: A Fair Use Lexicon: "Over the last decade, copyright owners in many industries dreaded and resisted the prospect that the copying machine that we call ‘the Internet’ might destroy their business models.  Rowling v. RDR Books (the formal title of the Harry Potter case) presents the relatively uncommon situation in which the Internet (i.e., ‘free’) version of the alleged infringement was unobjectionable; hackles were raised and claims were filed only when what was merely digital became (or threatened to become) analog. "

The Los Angeles Times reports that the FCC is waiting to rule on its indecency complaints against broadcast licensees until after the Supreme Court rules on FCC v. Fox, Indecency cases stuck in legal limbo at FCC: "Thousands of viewer and listener complaints about programs are backed up at the Federal Communications Commission, where officials acknowledge the legal limbo has tied their hands. The FCC is reluctant to rule on these cases until the U.S. Supreme Court hands down a decision on indecency standards -- its first in three decades."

In the NY Times, Billy Bragg suggests that the social networking sites that have developed their audiences by hosting music should have to consider paying royalties for that music: The Royalty Scam

In our discussions, we largely ignored the elephant in the room: the issue of whether he ought to consider paying some kind of royalties to the artists. After all, wasn’t he using their music to draw members — and advertising — to his business? Social-networking sites like Bebo argue that they have no money to distribute — their value is their membership. Well, last week Michael Birch realized the value of his membership. I’m sure he’ll be rewarding those technicians and accountants who helped him achieve this success. Perhaps he should also consider the contribution of his artists.

TechCrunch's Michael Arrington suggests that recorded music has no value and that artists should be happy to be able to take advantage of free hosting. These Crazy Musicians Still Think They Should Get Paid For Recorded Music

Recorded music is nothing but marketing material to drive awareness of an artist. Websites that bring that music to listeners are doing artists a favor. In fact, they’re doing them a favor that they should (and will) be paid for. Young artists and songwriters in particular benefit from these services - Until a few years ago they had almost no way to break into the mainstream without getting a label to promote them. Now those walls are being torn down, and Bragg has the audacity to complain about it.

e-consultancy.com (via pho): These crazy bloggers still think they understand the music business "While Bragg makes some interesting points, I disagree with him. Musicians and labels that upload their music to social networks ostensibly know what they're doing and understand that there is no agreement for royalties."

Why shouldn't songwriters and recording artists ally in order to host music only on social networking sites that agree to pay royalties?

At News.com, Anne Broache reports that the FCC will be tracking broadband with more precision and re-defining the lower limits of 'broadband,' FCC approves new method for tracking broadband's reach:

• 200Kbps speeds are no longer considered 'broadband.'
• Broadband service speeds will have to be reported both for uploads and downloads.
• Upload and download speeds will have to be reported in a more specific way.
• ISPs will be required to report numbers of subscribers, and at the census-block level.
• ISPs will not have to report the prices they charge....yet.

The order is not yet available on the Commission's web site, but the minimum speed considered broadband will be now 768 kbps instead of 200.

On Monday, the Supreme Court granted cert and agreed to review the Second Circuit's ruling in Fox v. FCC, 06-1760-ag, that the Commission's policy sanctioning "fleeting expletives" is arbitrary and capricious.

FCC v. Fox Docket.

The Government's Cert Petition asks The Court to review "whether the court of appeals erred in striking down the Federal Communications Commission’s determination that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of 'any obscene, indecent, or profane language,' 18 U.S.C. 1464; see 47 C.F.R. 73.3999, when the expletives are not repeated."

Federal Communications Commission & USA V. Fox Television Stations, Inc. Et Al., No. 07-582 (S.Ct) Reply Brief for Petitioners

Statements by Commissioners Copps and Tate.

Will this result in a decision that proscribes the scope of indecency regulation permissible by the First Amendment? Will the Court take this as an opportunity to promote speech or to promote the Commission's authority to continue to regulate speech that is disfavored by the Commissioners?

The Onion imagines a slightly different standard for defining indecency-- one with which I'm sure no one would have a problem:

FCC Okays Nudity On TV If It's Alyson Hannigan

Today at 2:00 EDT, The Judiciary Committee Antitrust Task Force will hold a Hearing on Net Neutrality and Free Speech on the Internet.

Damian Kulash Lead Vocalist and Guitarist OK Go

Michele Combs
Vice President of Communications
Christian Coalition of America

Rick Carnes
President
Songwriters Guild of America

Caroline Fredrickson
Director
ACLU Washington Legislative Office

Christopher S. Yoo
Professor of Law and Communication and Director
Center for Technology, Innovation, and Competition
University of Pennsylvania Law School

Susan P. Crawford
Visiting Associate Professor of Law
Yale Law School

It will be webcast live (which I will miss while I'm on a plane sxsw-bound.)

After a quiet year on the indecency front, the FCC recently revisited two indecency complaints from programs that aired in 2003 and issued forfeiture orders.

• In re: Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program "NYPD Blue" (FCC 08-55, Feb. 19, 2008)
• In re: Complaints Against Various Licensees Regarding Their Broadcast of the Fox Television Network Program "Married By America" on April 7, 2003 (FCC 08-64, Feb. 22, 2008)

In 2004, the Commission filed its Notice of Apparent Liability In re: Complaints Against Various Licensees Regarding Their Broadcast Of The Fox Television Network Program “Married By America” On April 7, 2003 (FCC 04-242, October 2004). But the NYPD Blue NAL and forfeiture orders were both released in the last month, Notice of Apparent Liability In re: Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program "NYPD Blue" (FCC 08-25, January 25, 2008). In order to get this forfeiture order in before the statute of limitations applied, ABC and the ABC affiliates were given only 17, rather than the usual 30, days to respond.

The NYPD Blue forfeiture ruling finds the Commission not only attempting to find the bounds of indecent depictions of "sexual organs and excretory organs –specifically an adult woman’s buttocks," but once again defending its indecency regulations against contentions that the indecency regulations are inconsistent with the First Amendment.

While the pre-Oscar crowds at Union Square sold out early evening showings of Best Picture nominees No Country for Old Men and There Will Be Blood, the crowd in the theater for U23D was fairly sparse.

Perhaps because it was in a regular theater rather than on the big IMAX screen, but unlike Bob Lefsetz, I found the 3D-ness underwhelming except for a few moments. Overall, the film seemed to be more intimate and less grand than the concert itself. I was disappointed that the camera was generally so close in on the band members and only rarely and ineffectively attempted to convey the size of the show. A couple of times, we looked out at the 60,000-odd people in the stadium from behind Larry's drum set, but it was too brief to get a sense of what it is like standing in front of that many people.

But while the show was great, and worthwhile seeing, even if the 3D was underwhelming, what I found most striking is just how well documented the show was, even without the professional camera crew. When the film showed Bono, the Edge and Adam out towards the audience, you could see many, if not most, of the audience taking photos or video with their cameras or cameraphones. Some of these videos are on the web.

Here are two fan-shot videos of Pride (in the Name of Love) from that show:

And here's the professionally filmed feed:

The Beastie Boys' fan shot concert film, Awesome: I Fuckin' Shot That is probably not a prototype for the future of all concert film, but it is interesting to see how many of the thousands of different impressions of a large concert get fixed and posted online.

And with an event that is broadcast worldwide, like the Academy Awards, the web is a way of seeing that event through different filters. I was dubious about the value of liveblogs of the Oscars. Unlike, say, today's FCC hearings at Harvard, the Oscars are pretty well broadcast. Liveblogging that is usually merely an exercise in self-indulgence.

But if you are writing about the impact of this event on a niche industry, then this kind of reporting adds a different kind of analysis. with his Inside the Marketer's Studio liveblog, David actually did something different, interesting and utlimately useful for his core readers in the search engine marketing field.

While the personal media takes on major events are no substitute for the official media coverage-- clips on YouTube don't compare to a 5-story tall Bono in surround sound-- but combining together enough personal media creates more context that can help to better understand, experience or frame an event.

Reps. Ed Markey (D-MA) and Chip Pickering (R-MS) introduced the Internet Freedom Preservation Act of 2008 (H.R. 5353).

This bill would "establish broadband policy and direct the Federal Communications Commission to conduct a proceeding and public broadband summits to assess competition, consumer protection, and consumer choice issues relating to broadband Internet access services."

It amends the Communications Act of 1934 to include open access principles and establish the importance of the internet for the economy of the US.

1. to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;


2. to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;


3. to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and


4. to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.

Even though there are four principles, these are somewhat broader than former FCC Chairman Michael Powell's four freedoms.

The bill requests a report from the FCC about broadband network providers. The information the bill specifically requests is (language somewhat simplified to be less precise, but easier to read. See the original text of the bill for the precise language):

(A) whether broadband network providers refrain from blocking, thwarting, or unreasonably interfering with the ability of consumers to--
(i) access, use, send, receive, or offer lawful content, applications, or services
(ii) use lawful applications and services of their choice; and
(iii) attach or connect their choice of legal devices, provided such devices do not harm the network;
(B) whether broadband network providers add charges for quality of service, or other similar additional fees or surcharges, to certain Internet applications and service providers, and whether such pricing conflicts with the policies [set out earlier in this bill]
(C) whether broadband network providers offer to consumers parental filters, spam filters and similar consumer services;
(D) practices by which network providers manage or prioritize network traffic, including prioritization for emergency communications, and whether and in what instances such practices may be consistent with such policies of the United States;
(E) with respect to content, applications, and services--
(i) the historic economic benefits of an open platform;
(ii) the relationship between competition in the broadband Internet access market and an open platform; and
(iii) the policy choices and results of global competitors with respect to access competition and an open platform;
(F) whether the need for enforceable rules governing openness, consumer rights, and consumer protections or prohibiting unreasonable discrimination is lessened if a broadband network provider provides significantly high bandwidth speeds to consumers; and
(G) the potential of policies promoting openness in spectrum allocation, universal service programs, and video franchising to expand innovation through protection from unreasonable interference by network owners of an open marketplace for speech and commerce in content, applications, and services.

Finally, the bill would require the FCC to hold at least 8 broadband summits in geographically diverse locations around the US.

Rep. Markey's press release: Internet Freedom Law Will Keep Internet Open For Future Innovators: "The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered. H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers. Internet freedom generally embodies the notion that consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to unreasonably discriminatory practices by broadband network providers."

Howard Feld, The Markey-Pickering "Net Neutrality" Bill: Grinding Out One More First Down In The Internet Freedom Bowl: "This is a good bill — probably the best that can get through in the current Congress. It advances the ball forward in a substantial way, and would make a good law if passed. It doesn't solve all the problems, but it doesn't pretend to do so either. It deliberate lines things up for the next step — assuming we get that far."

Derek Slater, Rep. Markey’s new net neutrality legislation: "Net neutrality is too often painted as just about particular companies’ competing interests, but that’s missing the point. Rather, net neutrality and broadband policy are — and should be — about what’s ultimately best for people, in terms of economic growth as well as the social benefit of empowering individuals to speak, create, and engage one another online using the wide panoply of innovations available to them. In other words, broadband policy should come from the bottom up."

The Wall Street Journal, Officials Step Up Net-Neutrality Efforts: "Big broadband companies are headed for a clash with Washington over whether consumers have a right to get as much as they want from the Internet, as fast as they want it, without paying extra for the privilege." Maybe this is better framed as whether the broadband providers have an obligation to disclose how they restrict customers' use of the internet and whether the public interest should require providers to offer access that does not discriminate against content, source or protocol.

In November, Comcast was found to be blocking and degrading certain P2P and groupware network protocols. The issue with Comcast is not that it is imposing limits on users' bandwidth, but that it imposes those limits on the use of certain protocols and applications while failing to disclose that the limits exist and the extent of those limits.

Vuze, a online video provider whose software uses the BitTorrent P2P protocol to distribute content filed a complaint with the FCC about these practices Petition to Establish Rules Governing Network Management Practices by Broadband Network Operators. Free Press and Public Knowledge also filed a Formal Complaint against Comcast for Secretly Degrading P2P Applications and a Petition for Declaratory Ruling.

The Commission sought Comments for Declaratory Ruling Regarding Internet Management Policies and Comments on Petition for Rulemaking to Establish Rules Governing Network Management Practices by Broadband Network Operators.

The FCC has received more than 28,000 comments. Here is Comcast's comment. Some of the other recent comments include Verizon and Verizon Wireless, Qwest,
Time Warner Cable, RIAA, American Library Association and CDT.

The FCC is planning on holding a hearing on February 26 in Cambridge, MA on Broadband Network Management Practices.