Tag: Featured

The Copyright Claims Board is Open for Service. Now We Wait.

section 1201

The small claim tribunal, the Copyright Claims Board, opened its virtual doors yesterday, and by EOD, about a dozen claims were on the docket. A glance at the named defendants reveals a list of commercial users who allegedly infringed protected works, which is no surprise and probably good news.

I say it’s no surprise because, despite the fearmongering about aggressive claims filed against grandmothers everywhere, most copyright owners know that the infringements that matter most tend to be made by commercial users who should know better. And the reason I say that it’s probably good news is that business entity respondents will an important test to see who opts out of participating in the small claim resolution.

It is no secret that the potential flaw with the small-claim alternative is the opt-out provision. Upon receipt of notice that a claim has been filed, the respondent has sixty days to opt out of the proceeding, at which point, the claimant may decide whether to file her complaint in federal court. The opt-out provision was necessary to enact the small claim into law because as a form of alternative dispute resolution, it cannot violate the constitutional rights of respondents to defend themselves in court.

The hope is that enough respondents, perhaps especially commercial entities, will see that federal litigation is a real possibility and that even losing a case at the CCB will be less costly than engaging counsel to draft a defense for a traditional lawsuit. This is a realistic expectation. In simple terms, the idea to create the small claim option was a typical scenario in which a party should have licensed a work (e.g., a photo for $1,000), and the copyright owner expects perhaps $5,000 or less in damages from the alleged infringer.

Those numbers barely cover the cost of a federal claim, which is why independent and small creators fought for over a decade to incorporate a small claim option into the Copyright Act. But respondents can do math, too, and the CCB may fosters quite a few settlements, which is generally what everyone wants. Or perhaps, just maybe, if the CCB is effective enough, users of creative works will get out of the habit of simply grabbing material off the Internet and remember that they’re supposed to pay for it.

From the time the CASE Act was introduced in committee until the day it was signed into law, and beyond, the copyright haters have portrayed the CCB as a body for rubber-stamping $30,000 fines for memes—especially if Grandma shares them. And while it may be foolhardy to make predictions this early, I suspect the copyright haters may be sorely disappointed to see that the majority of CCB claims and resolutions will be mundane. Just freelance workers trying to get paid.

It would hardly be the first time that peanut gallery predicted disaster without cause. But we shall see what comes.

FULL DISCLOSURE

I am now the co-founder of a new venture called RightsClick, a software suite designed to help independent creators manage their copyright portfolios and to take certain DIY enforcement actions. Very soon, the suite will include a CCB tool to facilitate filing and managing a claim. I do not intend to stop writing this blog, and I will make every effort (as I am right now) to be clear whenever a post implicates the interests of RightsClick.

A Good Right to Repair Bill Would Not Break Things

Rep. Mondaire Jones (NY), along with co-sponsor Rep. Victoria Spartz (IN) introduced a bill in February called the Freedom to Repair Act. Seeking to remedy a specific, unintended consequence of one part of the Copyright Act, the bill overreaches so dramatically that it would effectively legalize piracy of creative works. If Congress wants to address unfair practices among certain manufacturers of machines and vehicles, the solution cannot be to remove copyright protections for authors, filmmakers, musicians, and other creators.

We all know that many domestic and commercial products are at least partly controlled by software. It has been years since anyone has taken a car to a mechanic without seeing it hooked up to a computer to obtain diagnostic data about the vehicle’s condition. And because software is protectable by copyright law, consumers of various products complain that manufacturers use enforcement of their copyright rights to maintain monopoly protection over replacement parts and repair processes necessary for maintenance.

While it is true that using copyright law to extend unreasonable, post-sale control over machines and vehicles can strain copyright’s core purpose to foster creative expression, the Freedom to Repair Act makes no distinction between the creative industry and the world of manufactured goods. Instead, the one-page bill simply upends DMCA Section 1201 of the Copyright Act—the section that prohibits circumventing digital rights management (DRM) tools (a.k.a. technical protection measures) used to prevent unlawful copying or distribution of protected material.[1]

The difficulty of course is that creative works are all converted into code so we can have products like eBooks and enjoy filmed entertainment or music via downloads or streaming services. The same Section 1201 that may be wrongly exploited by certain manufacturers is still predominantly doing the work of ensuring that creative material can be legally commercialized so that the professionals who produce these works are paid for their labor, skills, and expertise.

The Freedom to Repair Act is so broadly written that it would repeal Section 1201 without regard for the diverse range of economic activity it continues to foster. Reps. Jones and Spartz should be reminded that the creative industries contribute about $1.5 trillion to U.S. GDP, and Jones’s state of New York is one of the most vibrant creative markets in the country. If the congressman hopes to craft an effective right to repair bill, his office needs to hear from the many creative professionals in his state alone whose livelihoods increasingly depend on the provisions in Section 1201.

With the vast majority of us consuming most of our media through on-demand digital services, Section 1201 is more relevant than it was in 1998, when it was first adopted to encode material distributed in formats like DVDs. Meanwhile, the market continues to tempt opportunistic ventures hoping to develop new methods and new rationales for circumventing copyright law and exploiting creative works without license. The last thing the creative industries need is for Congress to clear a new path to legalized piracy.

I join those who endorse the spirit of a right to repair initiative, but the Freedom to Repair Act, as written, would allow the exception to overwhelm the rule and cause considerable and needless harm to millions of professionals who work in creative fields. Consequently, the bill is a disservice to the issue it proposes to address because it is justifiably going nowhere on Capitol Hill. If Rep. Jones et al. are serious about a federal right to repair law, they must meet with representatives of the creative industries and work to craft nuanced legislation that targets the issue at hand and does not carelessly fix things that ain’t broken.

[1] It should also be noted that complaints about a right to “jailbreak” various products often blame copyright law where regulations like environmental safety may be the underlying basis for the prohibition.

Photo source by: JGade_DK

Likelihood of Delusion:  Ghost Guns and IP in a World Gone Mad

“Defcad stands against artificial scarcity, intellectual property, copyright, patentable objects, and regulation in all its forms.” – Cody Wilson, Promo Video, 2013 –

In 2012, when this blog was new, I wrote a short piece about Cody Wilson’s vision to combine Second Amendment maximalism with tech-utopianism to ensure that every citizen has even easier access to firearms than we do now. DIY gun production using 3D maker technology was more than a hobby to Wilson, it was a movement he called Defense Distributed. “How do governments behave, if they must one day operate on the assumption that any and every citizen has near instant access to a firearm through the Internet?” he asked.

Now that we must once again “pay the price of freedom” with the blood of slaughtered children, among the 240 mass shootings this year, I looked up Defense Distributed for the first time since that original post to find it fronted by a sleek portfolio of websites. Customers can download CAD designs for guns, purchase starter kits and materials, and even buy a $500 milling machine called the Ghost Gunner. Or visitors can “Join the Fight,” meaning …

LEGIO is Defense Distributed’s technical and legal support fraternity. Legionnaires do more than ‘protect’ the Second Amendment. They fund its direct, material expansion.

Even if the Second Amendment expressed a generalized and unrestricted “right to bear arms,” which it does not, that stated agenda reeks of a familiar hypocrisy which daydreams of anarchy while thriving in the very system it wants to undermine. The answer to Wilson’s dumb question about the “behavior of governments” is that if elected officials ultimately come to fear violence instead of votes, the American Republic will collapse, and his “Legionnaires” can look forward to playing Mad Max for a few weeks before they starve to death.

In a video interview with Reason, Wilson describes himself as post-political, referring to institutions like the American presidency as mere pageantry without any connection to “what is really going on.” Whatever he imagines that might be, Wilson is blissfully unaware of any cognitive dissonance when he characterizes our political and legal system a sham despite his alleged fealty to the Constitution. Even more absurd is that the amendment he proposes to “expand” has only attained its present status by means of brute and undemocratic political force rather than an honest reading of the text or its legislative history.

Talismanic Guns and Trademark Infringement

The prevailing misread of 2A, along with the marketing messages of gun manufacturers and the NRA, has etched the idea in many American minds that personal firearm ownership is either literally or symbolically the safeguard of liberty itself. Consequently, it is no surprise that the unlicensed, untraceable ghost gun is seen as an even stronger talisman of “freedom.” Presumably, it is this psychology that inspired Wilson’s design repository division, Defcad, Inc., to appropriate trademarks owned by the gun control advocacy organization Everytown For Gun Safety, whose logo looks like this:

Everytown for Gun Safety

The complaint filed by Everytown accuses Defcad and several anonymous individuals of trademark infringement, citing evidence of unlicensed uses of both character and design marks on various guns and in marketing materials. Clearly meant as a “fuck you” to gun control advocates, Defcad willfully incorporated Everytown’s protected marks in several CAD designs it supplies to customers,[1] and it named selected items in its product line after Everytown’s protected phrases like MOMS DEMAND ACTION FOR GUN SENSE IN AMERICA …

And, of course, some of Defcad’s customers who made these guns taunted Everytown with photos of their wares on social media, achieving the perfect intersection of asshole and technology, proving once again that tech-utopianism is fundamentally sociopathic.I am not especially well versed in trademark law but assume that appropriating a mark to use in the very trade the mark was created to oppose, and sowing confusion in the process, presents a strong claim of infringement. There is no question that Defcad appropriated these marks with the intent to criticize and mock Everytown, which is itself protected speech and seemingly the only plausible defense in this case. But several facts here should militate against finding non-infringement on the basis that Defcad’s uses of the marks are exclusively parodic, satirical, or critical.

Although this suit is at trial in the Second Circuit, the Fourth Circuit offers insight in the case Louis Vuiton Malletier v. Haute Diggity Dog, holding that the latter’s “Chewey Vuiton” dog toys lampooning LV handbags etc. were non-infringing parodies. First, in considering what it calls the PETA test (from PETA v. Doughney), the court states, “A parody must convey two simultaneous — and contradictory — messages: that it is the original, but also that it is not the original and is instead a parody…This second message must not only differentiate the alleged parody from the original but must also communicate some articulable element of satire, ridicule, joking, or amusement,” the opinion states, quoting PETA.

Next, the court applies the three Pizzeria Uno factors (Pizzeria Uno v. Temple), which weighs the likelihood of confusion by 1) considering the market awareness of the mark used; 2) similarity of the allegedly infringing mark(s) to the original(s); and 3) similarity of the products at issue. “It is a matter of common sense that the strength of a famous mark allows consumers immediately to perceive the target of the parody, while simultaneously allowing them to recognize the changes to the mark that make the parody funny or biting,” the opinion states. (Emphasis added.)

The considerations under both tests should disfavor Defcad. Everytown’s marks are not so widely known and recognizable as a major consumer brand; Defcad made no alterations to Everytown’s protected marks; and although there is obvious contradiction between the two missions (rather than products) in this instance, confusion exists because Everytown’s marks could plausibly be used without irony on a firearm.

While researching this topic, I personally experienced the kind of confusion that trademark law is intended to alleviate in the market. Because I was previously unfamiliar with the Everytown organization but aware that many gun rights advocates also preach gun safety, it was not readily apparent that, for instance, this firearm had been sarcastically affixed with trademarks owned by a gun control organization. And, of course, American flag variations are not a clear indication of any party’s point of view.

All the winning parodies cited in LVM v. Haute Vuiton include significant alterations of the marks used, involve products unlikely to be confused with the ones being lampooned, and all generally express good-natured humor. While there is nothing good-natured about Defcad’s use of Everytown’s marks, more germane to the question presented is that there is no clear evidence of parody, or even commentary, that is immediately recognizable to the ordinary consumer who (like me) encounters this product without prior knowledge of the Everytown organization. The less well-known the trademark, the less likely an alleged infringer can claim to parody the mark.

Likewise, with protected phrases like “Moms Demand Action,” most of us are aware that there are moms who demand gun control and moms who demand more guns in every hand. Hence, the defendants are not clearly expressing a parody that is recognizable to a market outside a Venn diagram that encompasses substantial awareness of both Everytown and Defcad’s ghost guns. To a majority of observers, I suspect these appropriations create significant confusion, and a finding for Defcad would seem anathema to the purpose of trademark law.

EFF Defends Anonymity of the Doe Defendants

Whether Defcad’s individual customers (e.g., Yeezy in the tweet pictured above) should be named defendants in this suit is a fair question, but if DIY truly means joint manufacture of a product, does this not imply some shared liability with the commercial provider of the materials? (And with firearms, this raises a number of questions more complicated than trademark infringement.)

Because the individuals who posted mocking photos at Everytown on social media are anonymous, Everytown asked the court to order these parties unmasked during the discovery phase—a request apparently granted by the district court. On this matter alone, the Electronic Frontier Foundation filed a motion asking leave to file an amicus brief in response to “the district court’s failure to meaningfully analyze and consider the First Amendment rights of anonymous online speakers targeted by Plaintiff’s discovery order.”

Without overtly defending Defcad, or taking a position on Everytown’s underlying infringement claim, the EFF states that “the Doe defendants appear to be using the mark in question for expressive purposes.” The EFF asks the court to apply a “robust First Amendment” analysis prior to allowing the identification of the anonymous speakers, and it bolsters its argument with the underlying principle that trademarks may be used without license for criticism, parody, and other forms of protected speech.

While the EFF is correct in general, and should probably be allowed to file a brief, several factors in addition to those discussed above weigh against the speech concerns raised. First, removing the veil of anonymity does not necessarily chill the speech right of the individual, and such a claim appears weak in this instance. A court should consider how essential anonymity may be to expressing the speech at issue, and here, it is implausible to the point of absurdity to argue that anonymity is necessary to express scorn for gun control.

Second, recognizing the fact that sock puppets and bots are often used on social platforms to extend the reach of a particular message (something the EFF knows well), the plaintiff here has a right to know the identities of the individuals or entities allegedly infringing its trademarks. For all Everytown knows, these social accounts may be owned and controlled by Defcad itself. There is simply no reason to believe that behind every avatar is a unique, human citizen engaged in speech protected by the First Amendment.

Third, if Defcad’s defenses are likely to fail on the merits, this should weigh against the Doe defendants’ right to anonymity in a case where they have jointly manufactured and promoted products which are permanently engraved with Plaintiff’s marks. The Doe defendants’ right to criticize Everytown or gun control is without question, but they have limitless options for expressing that view without engaging in or facilitating trademark infringements that sow the kind of confusion discussed above.

Just as it was no surprise that crypto would be a currency of choice for criminal activity, the low-cost, untraceable ghost gun offers the criminal anonymity in his choice of weapons. In a statement issued by the White House, 20,000 suspected ghost guns were recovered in criminal investigations last year— “a ten-fold increase from 2016.” In response to both federal and state authorities promising to ban ghost guns, Wilson predicts that laws and regulations will be ineffectual against the disintermediated inevitability of open access to the materials and tools that he and his competitors provide.

It would be funny, if it were not tragic, to watch John Perry Barlow’s chickens come home to roost and to discover that they are all armed with deadly weapons. Is anyone truly surprised that Wilson’s dream of an unregulated militia is a logical consequence of opposition to “artificial scarcity, intellectual property, and all forms of regulation?” Strange that it started with music piracy and now it’s guns. Strange. But not at all unexpected.

[1] And based on the attitude expressed by DD, it seems likely that at least some of the designs are infringing copyrights.