Copyright Office decision supports cell phone jailbreaking, encourages educators and remixers

Regardless of how one feels about the Digital Millenium Copyright Act (DMCA) as a whole, it’s clear that the Copyright Office's recent rulemaking process has appropriately further limited the DMCA's anti-circumvention provision. In February 2009, New Media Rights submitted comments in support of these changes that have now been enacted.

The Office's ruling attempted to clarify the DMCA's prohibition on “circumventing” digital rights management (DRM) and “other technical protection measures” -- a prohibition that, up until now, has given Apple the theoretical right to intimidate iPhone users with “jailbroken” phones with legal action. The Office ruled that this jailbreaking does not constitute violation of the DMCA. Although Apple has never prosecuted any iPhone jailbreaker under the DMCA, Apple did strongly object to any exemption to the anti-circumvention rule. This has led many general interest news sources to label these recent exemptions as a victory specific to iPhone jailbreakers, but the benefits of this particular exception to the DMCA anti-circumvention prohibitions reach a broader class of cell phone users.

In addition to what these new exemptions mean to iPhone and cell phone users generally,  there are a variety of other just-as-important exceptions made that affect educators, video remix artists, video game modders, and the sight-impaired in more practical ways.

Although these exemptions do eliminate the possibility that Apple could prosecute jailbreakers under Copyright law, it does not change the fact that Apple may still disable jailbroken phones with software upgrades.

Owners of jailbroken phones also still run the risk of voiding their warranties. Apple may still have legal recourse against would-be jailbreakers: “The contract between the company and the user forbids jailbreaking. Violating that provision of the contract...would still constitute a breach of contract the company could enforce in court.”

To read the full rulemaking order:
https://www.eff.org/files/filenode/dmca_2009/RM-2008-8.pdf

Or to learn more information about the exemptions contact us or visit these links:
http://www.networkworld.com/community/blog/government-says-dmca-can’t-stop-jailbreaking-?source=NWWNLE_nlt_daily_pm_2010-07-26

http://news.cnet.com/8301-13578_3-20012109-38.html

Photo Credit: Jail by Gìpics

Photo Credit: Jailbreak Aftermath by Thanushyon

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Let the Wookie Win: A Short History of Star Wars Litigation

San Diego Comic Con has arrived again! Although New Media Rights provides assistance to creators and internet users nationally, we are firmly rooted in San Diego and supporting local San Diego arts and culture.

Every year, Comic Con brings Storm Troopers fraternizing with Bounty Hunters back to downtown San Diego, and grown women huddled up in Tauntaun sleeping bags back to the Convention Center’s hallways.

To celebrate Star Wars Day and Comic Con returning to San Diego, and to prove learning about the law can be fun (sometimes), we present to you a short history of Star Wars trademark litigation: two cases in which Lucasfilm took people to court over Star Wars and lost.

 


Star Wars versus Missile Defense

[ Lucasfilm Ltd. v. High Frontier, 622 F.Supp. 931 (D.D.C. 1985) ]

Today, when someone says “Star Wars” you naturally think of the movies, the cartoons, and the lightsaber toys with burning capabilities so powerful they can cause human skin to “burst into flame.” In the mid-1980s though, things may not have been as clear.

In 1983, Ronald Regan launched the Strategic Defense Initiative (SDI) program at the insistence of Lt. General Daniel O. Graham to research and develop a space-based system to defend the United States from nuclear missile attacks. General Graham’s organization, High Frontier, was the think tank that first proposed the idea of using impractical, expensive, cutting-edge technologies to shoot down missiles from space.

SDI researched technologies like space based lasers that could, theoretically, intercept and destroy approaching nuclear missiles. Practically, problems arose when SDI found that shooting a missile with a laser was about as complicated as deflecting a bullet by shooting it with another bullet. It’s even more complicated though, because the bullet SDI was trying to deflect would be shot -- without warning -- from the Soviet Union at 15,000 miles per hour, and the gun SDI intended to deflect the bullet with was in space.

Naturally, a project that experimented with everything from x-ray lasers, to hypervelocity rail guns, to neutral particle beams to shoot down nuclear missiles drew attention from the public. Critics, newspapers, and even General Graham’s High Frontier organization itself began referring to SDI as Star Wars.

For some reason, Lucasfilm took offense to the term Star Wars being used as short-hand for High Frontier’s space-based anti-missile lasers. In 1985, Lucasfilm sued High Frontier for “Trademark Infringement” in hopes that a court would stop the organization as well as deter others from using the name Star Wars when referring to SDI.

Though the court acknowledged that Lucasfilm was in an unfortunate position, the court concluded that trademark law wasn’t violated and High Frontier (and anyone else) had a right to use the term “Star Wars” to refer to space-lasers of any kind.

Trademark Law

Generally, when another organization uses a trademarked term (like Lucasfilm’s term Star Wars) in commerce without permission, then it is considered trademark infringement. Lucasfilm argued that when High Frontier used the term in television commercials supporting SDI, it did just that.

High Frontier and the court saw the situation differently. Trademark laws only prohibit the use of trademarked terms like Star Wars when it’s either placed on commercial products or used to promote someone’s services. Here, all High Frontier or anyone else was doing with the term was communicating the point of view that shooting lasers in space seemed a lot like Star Wars. As the court said, “When politicians, newspapers and the public generally use the phrase Star Wars for convenience, in parody or descriptively to further a communication of their views on SDI,” Lucasfilm has no right to stop them.

In Conclusion

Today, a national ballistic missile shield is still about as feasible as an X-Wing’s photon torpedoes or a Y-Wing’s ion cannons. Despite this, High Frontier still lobbies for the government to spend billions on missile defense when some of that money could be used  to defend against real threats, like Imperial Star Destroyers.



Star Wars versus Animated Porn

[ Lucasfilm, Ltd. v. Media Mkt. Group, Ltd., 182 F. Supp. 2d 897, 901 (N.D. Cal. 2002) ]

In the Kevin Smith movie, Zack and Miri Make a Porno, Seth Rogen toys with the idea of making a Star Wars themed adult film. In 2002, Media Marketing Group (MMG) actually produced and distributed an animated, x-rated movie called Star Ballz.

Although I’ve never seen it, the most positive review of Star Ballz on Amazon describes the movie like this: “It's crude, shoddily made, and full of groan-inducing sexual humor. I've seen worse, though.” Apparently Lucasfilm, the creators of Star Wars, hadn’t seen worse.

Lucasfilm sued MMG for copyright infringement, trademark infringement, and trademark dilution and asked the court to enjoin (stop) MMG from manufacturing or selling the movie.

The movie’s two minute G-rated trailer (which is described in the comments as better than the movie itself) takes elements of the original 1977 Star Wars movie and “parodies” them. Lightsabers become, “lightsabers that look like phalluses.” Stormtroopers become “Stormtroopers that look like phalluses.” Darth Vader becomes “Darth Vader with Mickey Mouse ears” oddly enough.

Though the line between parody and blatant cash-in is generally blurred in the real-world, in the eyes of the copyright/trademark law, reusing a movie’s characters to spoof them in pornography is generally protected. That’s why adult video producers have been parodying/cashing in on sci-fi for decades, most recently 2009’s “This Ain’t Star Trek XXX” series.

What sent Lucasfilm to the courthouse was likely the fact that the film was animated and featured children’s television characters (including Sailor Moon and Goku from the Dragon Ball cartoons). Lucasfilm alleged in its complaint to the court that Star Ballz could be marketed to and seen by children.

In January 2002, the court sided with MMG and allowed the company to continue to distribute Star Ballz. The court dismissed Lucasfilm’s copyright and trademark claims.

Lucasfilm’s Trademark Infringement Claim

Generally, trademark law exists to protect consumers from fraud or deception. If someone attempts to place another person’s more famous brand name on his product to trick people into buying his own product, then the owner of the famous name has a case for trademark infringement. Therefore, Lucasfilm’s argued that consumers would be confused by Star Ballz because the name was so confusingly similar to Star Wars and people might think that Lucasfilm actually produced or officially sponsored Star Ballz in some way.

The court disagreed, finding that reasonable consumers wouldn’t confuse a live-action, action-adventure film like Star Wars with an animated, adult film like Starballz. Furthermore, Star Wars and Star Ballz would rarely be sold in the same places so consumers would never see both on the same shelf and be tricked into buying Star Ballz.

Lucasfilm’s Trademark Dilution Claim

“Trademark dilution” occurs when a mark (like Star Ballz) would diminish the ability for a famous mark (like Star Wars) to distinguish itself regardless of whether consumer confusion is likely.  [See 15 U.S.C. § 1127.] Again, the court sided with MMG reasoning that parody is non-commercial use (even when sold as a DVD) and trademark law only governs commercial uses.

In Conclusion

The judge’s farsighted ruling in this case paved the way for subsequent Star Wars related adult movies including Private Gold 81: Porn Wars - Episode 1 and about a half-dozen other films with titles too inappropriate to publish. To this day, Star Wars porn remains a safe, legally-protected way to titillate nerds and separate them from the money they earn at their systems engineer jobs.

 

*all images are promotional images licensed by Lucasfilm for promotional use; therefore, some rights are reserved.

**screen capture from Star Ballz used under fair use principles

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New Media Rights FCC comments on Broadband Legal Framework and the "Third Way"

The following is our introduction, and the entire comments are attached below:

New Media Rights and Utility Consumers’ Action Network hereby submit comments (Commenters will be referred to from here forth as “NMR”)to the Notice of Inquiry (NOI) released June 17, 2010 regarding the proposed frameworks for broadband Internet service.

This inquiry into the framework for broadband internet regulation can have a critical impact on our nation’s media and communications future.  Any such inquiry should be approached with caution, and should be conducted as openly as possible with an emphasis on soliciting input from the diverse interests of the American public.  In the face of the recent Comcast decision correctly questioning the Commission’s tenuous reliance on its ancillary, title jurisdiction to regulate the internet, the Commission is right to consider what, if any, jurisdiction Congress as allowed it to exercise over broadband internet.  If the Commission proceeds to reclassify broadband intern under title II, there are numerous implications for consumer protection as well as the future of the internet as a communications technology.

NMR’s comments draw upon Utility Consumers’ Action Network and New Media Rights’ experience advocating for consumers of broadband internet, as well as in advocating for and defending the rights of diverse creators and speakers who depend on an open and innovative internet.  The FCC has a particular challenge in balancing the need for basic consumer protections with the need to avoid regulatory overreach to ensure an open and free internet. The NOI raises an array of inquiries, and NMR will provide comments on the following inquiries:

Discussion of concerns regarding content level regulation and its affect on the generativity of the internet as well as copyright regulation.

Classification of terrestrial wireless broadband services and its impact on Consumer Protection.

Legal and Procedural Considerations Regarding the “Third Way”

 

Read the full comments on our site here

 

Comments from a variety of organizations can be found at these links:

Media Access Project Files Comments for Public Interest and Social Justice Groups Calling for Direct FCC Regulation of Broadband Access

PK Third Way in NOI Comments

Future of Media Coaltion  Comments in the FCC's Broadband Legal Framework Proceedings  

Free Press Urges FCC to Restore Broadband Oversight Authority

 

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YouTube's victory over Viacom reinforces DMCA safe harbor protections for websites

By on

On June 23, Viacom's claim for $1 billion in damages was shot down when the District Court for the Southern District of New York found YouTube and its owner Google not liable for copyright infringement in a much-anticipated decision. The two corporate giants have been at it since 2007, when Viacom joined with other plaintiffs including Paramount Pictures and sued YouTube, claiming that the online video service was legally responsible for copyright infringement when users posted clips of copyrighted material, including The Daily Show and The Colbert Report, owned by plaintiffs.

YouTube argued that it qualified for protection under the DMCA's safe harbor provisions and could not be held liable.  District Judge Louis Stanton granted summary judgment in favor of YouTube, meaning the case didn’t even need to go to trial- Viacom will certainly appeal, but it's often tougher (though not impossible) for a party who has lost on summary judgment to later win on appeal.

The rest of this post will outline the major legal issues in the case and explain how aspects of the decision will affect online service providers and copyright owners.

YouTube Was Protected by the DMCA Safe Harbor

The court found that YouTube did qualify for protection under the DMCA safe harbor provision for Online Service Providers (17 U.S.C. § 512(c)). This provision protects "providers of online services" from secondary liability for copyright infringement by users as long as the OSP follows certain procedures, such as designating an agent to receive complaints and promptly removing infringing material.

First, the court determined that YouTube fit within the statute's definition of an OSP also and noted that users upload over 24 hours of new video to the site every minute of every day. Despite the huge volume of material on the site, YouTube still acted swiftly to remove allegedly infringing material from the site in accordance with DMCA takedown notice procedure. Generally, then, Youtube was much like the standard setting Veoh video service, in that it took the necessary affirmative steps to gain protection under the DMCA.

Did YouTube Have "Actual Knowledge" of Infringement?

A site cannot be protected by the DMCA if it had “actual knowledge” of infringement. Viacom claimed that YouTube had "actual knowledge" of infringing material and was "aware of facts or circumstances from which infringing activity [was] apparent, but failed to do anything about it." YouTube's prompt removal of infringing material plainly demonstrated that they did not fail to act, so this issue turned on the interpretation of "actual knowledge". The court considered two possible meanings: 1) a general awareness that infringements are occurring or, 2) actual and constructive knowledge of specific and identifiable individual infringements.

The court first looked to the legislative history of the DMCA to help interpret the phrases. After examining the language in the Senate and House Committee Reports, the court concluded that the "actual knowledge" and "facts or circumstances" describe knowledge of specific and identifiable infringements of particular items and that "[m]ere knowledge of prevalence of such an activity is not enough." This is very important for heavily user generated content websites, in that simple knowledge that users are making use of the service to engage in infringing activity is not enough to eliminate DMCA protections. It would go against the purpose of the DMCA safe harbors if it were the responsibility of the service provider to discover which particular user posting is infringing. Instead, this court reinforces that the burden of identifying allegedly infringing material rests on the copyright owner, who must notify the service provider of alleged infringing activity.

YouTube Isn't the New Napster

Case law also proved unhelpful to plaintiffs in this case. The differences between YouTube and peer-to-peer file sharing programs such as Napster and Grokster are too vast to apply the holdings of those cases here. Whereas Napster and Grokster were held legally responsible, in part due to lack of monitoring for users' infringement, YouTube designated a DMCA agent to receive copyright complaints and quickly removed infringing material. The DMCA specifically carves out protection for service providers like YouTube, even if they otherwise would be held liable as contributory infringers. The fact that in one day, YouTube was able to remove every single video of the 100,000 that Viacom alleged was infringing in one mass take-down notice was viewed by the court as an example of the efficiency of the DMCA notification regime.

The court also rejected Viacom's additional arguments, including that YouTube could not be entitled to safe harbor protection given under the DMCA to "infringement of copyright by reason of the storage at the direction of a user of material" on a service provider's system or network because the site's replication, transmission, and display of videos was not the same as "storage". The court correctly declined to apply such a narrow definition of the term "storage."

YouTube Acted Fast to Remove Infringing Material

Just as in similar cases against Veoh, this decision placed a lot of emphasis on the defendant's prompt removal of material in response to DMCA notices, which helped in avoiding liability. The continued concern here is for fair use and free speech online. The extra-judicial, out of the courtroom process continues to result in a lot of dolphins being caught in the tuna net, and a lot of bullying and bogus takedown letters being sent and respected, but it is the system we have under the DMCA. At the very least, the Youtube court’s interpretation of the DMCA maintains robust protections for our service providers who provide diverse forums for speech online.

For their part, Viacom and its supporters, including the RIAA, feel that this decision will discourage service providers from taking steps to minimize infringement. It is difficult to see how an opinion that praised the defendants' prompt removal of allegedly infringing material could cause the opposite to happen. That said, content owners retain a strong, outside the courtroom process for getting objectionable reuse of content removed from the internet.

Mostly, however, this ruling upholds the DMCA’s safe harbors as a tangible protection for online service providers and makes clear that it remains the responsibility of copyright owners to identify infringing material online and to notify OSP's, who will continue to best avoid liability by responding promptly to takedown notices. The decision is another victory for OSP's who follow the DMCA procedures closely, and who can now use YouTube as an example of how to ensure DMCA safe harbor protection in the future.

 

 

 

 

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An Introduction to Drumbeat San Diego: A Collaboration of Mozilla Foundation and New Media Rights

Our Mission Statement for Drumbeat San Diego:

This event arises from a realization of the value to our communities that emerges from technologies and information that anyone can use, learn from, or build upon. We want to celebrate and be part of promoting projects, technologies, and services that facilitate participation, allowing anyone to become involved and innovate. This event is one way that we can ensure the internet remains a decentralized, democratic space in which responsibility and control is spread among all users.

Your invite to collaborate with New Media Rights on a San Diego Drumbeat event:

New Media Rights has been working with the Mozilla Foundation's new Drumbeat initiative to envision an event that encourages participation in new media and web openness including Creative Commons and open source software. Drumbeat planning meeting

The event would highlight the ways in which the open Internet, as well as open technological and cultural standards (ie Creative Commons and Open Source licensing), serve as a democratizing force for citizens to speak, artists to share their creativity, and creators of all types to collaborate to improve our world.

The event would aim to bring together a variety of individuals who are interested in creating projects on site during the event and contribute that work to the growing Drumbeat projects. The event would be aimed to include not only software developers (coders), but particularly artists, filmmakers, musicians, citizen journalists, lawyers, and other groups dependent on an open Internet.

We are aiming to develop an event that reaches out to people who are, and as a result of this event, will be, experimenting, inventing, creating, and exploring new media. We seek your input to shape this event and to get individuals in San Diego involved in a meaningful and coordinated way.

While the basic concept of Drumbeat is very participatory (ie the focus is on circular discussions and actual working on projects rather than classroom setting), our event is an open slate and we'd like you to be part of laying the groundwork for what this event could be.

So far, Mozilla Drumbeat expects to have events in New York, Boston, San Diego (that's us!), San Francisco, Philadelphia, Columbus, Chicago, Seattle, Vancouver, and Montreal this year. They have already completed a Germany and Brazil event.

We are part of a global movement that is empowering communities to create new media projects to better the world we live in. We hope that you will be as excited about the opportunity to collaborate and develop idea on this as we are.

Please contact Mera at mera@newmediarights.org or by phone at (619) 591-8870 to learn more about the project and organizing !

 

Conference agenda pages : Please feel free comment and help build these

Drumbeat Project Submission Page

Drumbeat Workshop and Session ideas  !

1. Goal/Outcomes: vision

2. Required Elements

3. Attendee Profile

4. Logistics

5. Communications

6. Miscellaneous

Check out the San Diego Drumbeat Mozilla Wiki !

 

Drumbeat Sign-up

Please sign up in the below form and we will keep you updated on the New Media Rights Drumbeat Event :

    

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Bros Icing Bros - A Case for Copyright Bullying by Overreacting Smirnoff Lawyers

"Smirnoff Ice" by Fernando Ariotti (Released Under Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 Generic )

On the morning of July 16, my bros on Twitter noticed something totally un-chill: BrosIcingBros.com, the epicenter of the icing phenomenon, had been taken down. Instead of user-submitted photos of young brosephs and bro-ettes, on their knees drinking bottles of Smirnoff Ice, the website displayed an unceremonious, one-sentence farewell: "We had a good run Bros..."

In the fallout of BrosIcingBros going offline, with Broutrage at a fever pitch, some facts are still unclear:

1. Why did the site get taken down? Some suggest that Diageo (the holding company with the right to enforce Smirnoff's copyright and trademark) sent the BrosIcingBros' anonymous owner "Joe" a cease and desist letter alleging copyright and trademark infringement. Some suggest that the site is in the process of being sold. The reality might be a little of both: after receiving a cease and desist letter, Joe decided to sell the site rather than dealing with the hassle of defending himself.

2. Did Diageo have a legal right to take the site down? Although dozens have weighed in on the why shutting the site down might be bad business for Smirnoff**, no-one has really answered the big question: can Smirnoff even take down a site like BrosIcingBros.com on the basis of copyright and trademark infringement?

The sources gloss over this question without really answering it. AdAge quoted "Annette Heller, a 30-year St. Louis trademark and copyright lawyer." Heller says:

"I would say there is a case because of disparagement of the product and using the name in association with this game...[BrosIcingBros.com is] using the trademark in a way that disparages the product and exposing Smirnoff to liability." Heller contined to say, "parody does not count as infringement."

This a generalized soundbyte that it really doesn’t answer the question.

At NewMediaRights, we regularly deal with individuals being bullied by large copyright/trademark owners into taking down their sites, even when those sites don't actually violate copyright and trademark law. To bring this practice to light, we wanted to publicly discuss how strong/weak Smirnoff's legal arguments to take down BrosIcingBros.com really are, and whether Smirnoff had good faith when chose to take the site down.

By the end of our analysis, we’ll conclude that

(A) Smirnoff’s arguments for both copyright and trademark infringement are weak at best;

(B) Even though Smirnoff did have good faith in sending a cease and desist letter to BrosIcingBros for some instances of infringement, it was not within reason for Smirnoff to require that the entire site to get taken down.

(C) If BrosIcingBros was, in fact, taken down because of legal problems with Smirnoff, then this is a classic example of a large brand’s legal department overreaching with cease and desist letters and bullying individuals into compliance without sufficient legal arguments to back their claims up.

First Argument: Copyright Infringement
Was the copyright in Smirnoff’s logo infringed by BrosIcingBros?

BrosIcingBros doesn't use any of Smirnoff's copyrighted work except the Smirnoff logo, and its use of the Smirnoff logo falls squarely within the “Fair Use” doctrine. Generally logos are subject to trademark law as well, but "ornate logo[s] with a great deal of original authorship might qualify for both trademark and copyright protection.”

Is this silver-and-red, ribbony, crown-and-falcony mark original and creative enough to be copyrighted? Probably, yes.

Generally, as soon as a person reproduces or distributes something copyrighted that he does not have permission to reproduce, that person has committed copyright infringement. So yes, BrosIcingBros did display photos that contained the Smirnoff logos, so it did infringe on the logo. The analysis doesn't stop there though.

Even though the logo was used, BrosIcingBros use of the logo is an example of Fair Use.  Though a notoriously grey area of the law, here's an analysis of the use of Smirnoff's logo on BrosIcingBros.

There a few substantial defenses to copyright infringement: "Fair Use" is the most substantial. If a use falls within the fair use defense as interpreted by a judge (the four factors are notoriously malleable), then it is not considered copyright infringement.

To determine whether the website's use of Smirnoff's logo in its photos constituted copyright infringement; lawyers and courts look at four different characteristics:

1. The purpose and character of the use of the logo, (in other words, how much did BrosIcingBros use of the Smirnoff logo transform how the logo is perceived as compared to how Smirnoff uses its own logo?  Was the copying done to create forum for commentary on Smirnoff? Was the use commercial or non-profit educational use?)
 
2. The nature of the copyrighted work; (Was the underlying work fact or fiction, was it published or unpublished?  Works of fiction and those that are unpublished usually lean against a finding of fair use)
 
3. How substantial the use of the logo was (for example, are only small parts of the Smirnoff logo used, or is the entire logo used? Was the logo the focus of the posted photographs or was it simply incidental?)
 
4. The effect of the use upon the potential market for or value of the copyrighted work. (Did BrosIcingBros use of the Smirnoff logo somehow make it less likely that people would pay to see the logo or purchase the bottle that the logo was displayed on?)

After analyzing these factors, BrosIcingBros seems well within the guidelines of fair use.

1. BrosIcingBros significantly transformed the use of the Smirnoff logo from an image to used to advertise malt liquor (as Smirnoff uses it) into an image incidental to showing photos of people getting Iced. Here, the logo is only a reminder that the game is being played with Smirnoff Ice. It's a symbolic reminder that the point of the game is that Smirnoff is not a drink for bros. BrosIcingBros (and Icing itself) is a direct comment on the Smirnoff brand. BrosIcingBros makes its thoughts clear: the drink was foul tasting and feminine. Each post was open to comments from the public, and visitors were allowed to comment on the photos that contained the Smirnoff logo. As the most popular Icing site, it became the most likely forum for people to voice their opinions about Icing as well as the Smirnoff brand itself.  Bros Icing Bros did have google ads, and thus was likely commercial use, but the transformative nature should overwhelm this fact.

2. It's not clear if the underlying work, the logo of Smirnoff, was fact or fiction, and it was published, but this factor is not very helpful to the analysis.

3. The images of the Smirnoff logo were totally incidental to the real focus of the photographs (the icings themselves). When the Smirnoff logo did appearin the photographs, often times the whole logo was not displayed. In some photos, the logo was too small to even recognize. For this factor, a judge considers not only how much was taken of the underlying work, but how much of the downstream, resulting work is constituted by original work.

4. Although BrosIcingBros did make money using Google ads, the website provided a service based on showing photos of people getting iced, not based on providing visitors a glimpse of the Smirnoff logo. Said differently, visitors didn't go to the site with the intention of getting their fix of seeing the Smirnoff logo, they went to the site to see photos of icing. This use doesn’t affect Smirnoff’s ability to publish the logo in design books, or any other market for the image.

Overall, Smirnoff’s copyright claim is fairly weak.

Second Argument: Trademark Claims

1. Did Smirnoff have any trademarks that were infringed?

A. The Smirnoff name: Generally, trademark law protects words,  phrases, and symbols when they're attached to products or services and used for commercial purposes. The names “Smirnoff” as well as the names of their brands like “Smirnoff Ice” and their logos are all protected by trademark law

B. The color and shape of the bottle could potentially be covered under trademark law as "trade dress."

So yes, BrosIcingBros contained the term Smirnoff Ice, the Smirnoff logo, and photographs of the Smirnoff bottle.

Despite the fact that the website used the logo, name, and image of the bottle, it's probably not infringement.

A. The uses of the word Smirnoff are non-commercial: Trademark laws only prohibit the use of trademarked terms like Sminoff Ice when used “in commerce.”  A mark is used “in commerce” only when it’s either placed on goods that will be sold or used to advertise someone’s services. See 15 U.S.C. § 1127.

Here, BrosIcingBros isn't being using the term in connection to a product or service being sold.

In the case of Lucasfilm, Ltd. v. High Frontier, Lucasfilm, the owner of the trademark on the term "Star Wars" objected to the press, politicians, and commentators referring to the SDI missile defense project as "Star Wars." When Lucasfilm sued for trademark infringement and asked a court to prohibit people using of Star Wars to refer to missile defense, the court said that this use weren’t infringement at all.

In that case the court said, “When politicians, newspapers and the public generally use the phrase Star Wars for convenience, in parody or descriptively to further a communication of their views on SDI,” Lucasfilm has no right to stop them.  

There's a good case to argue that BrosIcingBros, uses the Smirnoff name for all three (non-commercial) purposes: convenience, parody, and to descriptively communicate how to play the game of "Icing" as well as comment on great Icings in the photos displayed.

B. There's no infringement because the use of the Smirnoff name and logo is nominative.

Like the fair use concept in copyright, “nominative use” gives people a fairly wide defense to trademark infringement claims.

Someone can refer to another's trademark without permission if the following three circumstances are in place:

1. The service in question must be one not readily identifiable without use of the trademark (i.e. if there's no other way to identify what is occurring in the photograph other than referring to Smirnoff)

This seems like a slam dunk in favor of the BrosIcingBros.com website and against the Smirnoff legal team. BrosIcingBros uses the term Smirnoff to describe the game of Icing itself as well as comment on what's going on in the photos on the site. Since some of the photographs clearly contain bottles of Smirnoff Ice, and the game is based on the fact that Smirnoff Ice bottles are being traded back and forth, it would be nearly impossible to talk about the game and describe what’s happening in the photos without using the name Smirnoff at some point in the discussion.

2. The user uses only so much of the mark or marks as is reasonably necessary to identify the product or service (in other words, the Smirnoff trademarks are only used as much as necessary to tell the story)

Smirnoff is only referred to when needed to describe the game, comment on the photos, or comment on the Smirnoff drinks themselves. The site doesn't use the mark egregiously. They're not attempting to the steal Google searches of visitors looking to find more information about Smirnoff or purchase Smirnoff.

Yes, there are certain parts of the site that use the Smirnoff logo unnecessarily:  particularly in the “rules section” where the site uses Smirnoff bottle bullet points. Overall though, those transgressions should, at best for Smirnoff, warrant takedown requests specific to those offensives and not a wholesale takedown of the website (such cease and desist requests would still be suspect).

3. The user must do nothing that would, in conjunction with the mark, to suggest sponsorship or endorsement by the trademark holder.

Yes, consumers may be confused into believing that Smirnoff is somehow associated with creating the site. Since the beginning of the Icing phenomenon, some have assumed Smirnoff has been behind it as a viral marketing campaign.

Regardless, this test specifically looks at whether the person who used the trademark did anything to suggest sponsorship and endorsement, and it's clear that the site did not. The site didn't make any representations as to being sponsored by Smirnoff. The way the site belittled the drink only adds to the fact that people won’t think Smirnoff officially sponsored the site.

In conclusion, the owners of BrosIcingBros were probably unfairly intimidated into being taking their site down

Having not seen the actual cease and desist letter sent to the website, it's difficult to determine how strong Smirnoff's case for taking down the website really is. However, as seen above, Smirnoff's most likely arguments against the BrosIcingBros website are weak at best. While Smirnoff's lawyers might have had good faith in opposing some parts of the BrosIcingBros website, it's unlikely that the whole site should have been taken down.

This is just one law student's take on the subject, and reasonable legal minds may disagree (that's the reason lawyers have jobs). So in the end, things are still about as unclear as a bro's vision after several back-to-back icings.

What is troublesome, however, is that anonymous "Joe"-Bro, along with everyone who used and enjoyed the site has had their rights to free speech reined in because of questionable allegations of copyright/trademark infringement. When lawyers attempt to limit speech, commentators shouldn't stand idly by and take it at face-value when anyone uses the legal process to stifle the 1st Amendment.

Behind the facade of fratty binge drinking, Icing is this ultra-creative, social phenomenon that's adding a welcome piece of the absurd into the real world. Take it out of the frats and dress it up with some pretension and Icing could be considered performance art.

If you're an individual or group, and you feel like you've been bullied into taking down your content, you can contact NewMediaRights for assistance at art@newmediarights.org or by phone at 619-591-8870

* Photo credit: "Smirnoff Ice" by Flickr user Fernando Ariotti (Released Under Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 Generic )

** Twitter users like @bearsurprise demanded a boycott of Smirnoff products until Diageo allows the site back up.

*** Photo credit: "fuzzy copyright" by Flickr user PugnoM (Attribution-Noncommercial 2.0 Generic )

*****Photo credit: "Commercial VehicKle" by Flickr user HeyThereSpaceman. (Attribution-Noncommercial-Share Alike 2.0 Generic )

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FCC gets an earful at Stanford public hearing on the need for diversity

Last week we wrote to you about the FCC's media ownership hearing in Stanford.

Here is the schedule of who spoke and the different panels http://www.rbr.com/media-news/24245.html

The Stanford Daily wrote that what "would benefit a discussion on media ownership is a consideration of when media innovations provide witness to, give voice to, inform, or assist communities and individuals in need, and what motivates those innovations." Many people spoke up saying they would like more diversity in their media. This included a woman from a peace organization called the "Raging Grannies", who sing about the harms of cross-ownership and media consolidation. Others who spoke up were Tracy Rosenburg of Media Alliance, who has written a couple of excellent articles on the opportunity of this hearing, but which often produces underwelming results.

Many public voices spoke up about the pending Comcast-NBC merger as a negative move towards more multi-platform consolidation.

 

FCC Fields Media Ownership Questions At Stanford Workshop source: Benton Foundation

F.C.C Begins Review of Regulations of Media Ownership  source: NYT

Sue Wilson's first hand account at the hearing : A Funny Thing Happened at Stanford's FCC Hearing

FCC seeks imput on new media ownership rules source: San Francisco Bay Guardian

Media Minutes report of the FCC hearing 

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FCC coming to Stanford University. Tell the FCC what you think about media consolidation and the future of journalism.

Please see the following from our friends at Free Press regarding the upcoming FCC meeting on media consolidation in Stanford, California. If you or someone you know will be in the area please share this with them.

FRIDAY – FCC at STANFORD UNIVERSITY
 
The FCC is coming to Stanford on Friday, May 21st, for a public hearing on the impact media consolidation and tech innovation has had on journalism. This is part of their 2010 review of media ownership laws. You probably remember that during the Bush administration the FCC relaxed media ownership laws – particularly the 30 year-old newspaper/broadcast cross-ownership ban (a move we have shown will hurt newsroom jobs and lead to less local news)
 
Even though President Obama has opposed media consolidation, Big Media has been beating down the door at the FCC. They are pushing the Obama FCC to go even farther than the Bush FCC and dramatically relax media ownership laws, letting absentee Big Media giants control even more local media.
 
This fight is coming to Stanford on Friday, and we need to turn out a crowd to show the FCC the public still cares about media consolidation.
 
What: Media Ownership Public Hearing
When: May 21, 2010,10:00 a.m. to 5:00 p.m. (the public comment section is at 11:45 and 3:30)
Where: Stanford University, Dinkelspiel Auditorium, 471 Lagunita Drive, Stanford, CA
*This event is free

 
The public hearing on Friday will have time for local communities to weigh in on these issues. We need to be sure the public interest is strongly represented or the only people they will hear from are giant companies.
 
Please share this broadly with others.
 
Some of the panelists include Tim Westergren, Founder of Pandora Music, Eddy W. Hartenstein, Publisher and CEO, Los Angeles Times, Jim Joyce, President, National Association of Broadcast Employees and Technicians, and Vice President, Communications Workers of America and Alan Mutter, Publisher, Reflections of a Newsosaur, and Tiffiniy Ying Cheng, Co-Founder, Participatory Culture Foundation. The full agenda is here: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-298195A1.pdf
 

If you have questions or want to help with turnout – please contact me:
 
 
Josh Stearns
Program Manager
Free Press :: www.freepress.net
SaveTheNews :: www.savethenews.org
Twitter: @jcstearns
Phone: 413.585.1533 ext. 204

For more commentary on this FCC meeting from Executive Director of the Media Alliance, Tracy Rosenburg:

Big Media and the FCC Roadshow: Controling the Message both Online and Offline

FCC Meeting in Stanford- May 21st- on Media Ownership

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A citizen's update to Net Neutrality and an Open Internet

"Internet Forever"  by Flickr user HotDiggityDogs  under Creative Commons Attribution-Noncommercial-Sharealike 2.0 license.There was a great deal of speculation and uncertainty at the beginning of May as to what action, if any, FCC Chairman Julius Genachowski would take to extend FCC's power to regulate Net Neutrality. In early April of this year, the Federal Court of Appeals for the DC Circuit decided that the FCC did not have the power to implement Net Neutrality rules because regulating cable broadband was not within their responsibilities. Some believed that reclassifying cable broadband as a Title 2 service would be the solution, and encouraged the FCC to do this. Others, like Comcast favored Title 1 classification, which they felt would "not cast a regulatory cloud that would chill investment and innovation by ISP's".

On May 6th Genachowski came out with a "third way" stating that the FCC would go forward with reclassifying just the "transmission component" of broadband, regulating the flow of data not the data itself.

So how did we get here? Before we get to a rundown of what that means and how we have gotten to this point, lets catch up on the ever growing history of an open internet :

Back in the day..

From the inception of the Internet lawmakers have taken measures to make sure the Internet was open and non-discriminatory towards users. Lawmakers understood that a certain amount of protection would safeguard the internet from becoming a monopolized medium, like cable for instance.

In 2005 the FCC came out with a statement of principles that consumers should be able to access the content and applications of their choice as well as attaching the devices of your choice. In 2008 Free Press and Public Knowledge requested an investigation at the FCC into Comcast's blocking of vs. Comcast case was brought to the FCC because peer-to-peer applications. Peer-to-peer is how large files are transferred between users. Comcast was caught interfering with the internet, the argument was that internet users should be able to access the internet in a nondiscriminatory fashion, as the FCC had previously articulated in its principles. 

After the FCC confirmed that Comcast had violated FCC principles on "internet freedom", Comcast brought the FCC to the Federal Court of Appeals saying that they didn't have the regulatory power to regulate the internet. Comcast argued that the FCC doesn't have the regulatory power to regulate the internet, and that Congress should bestow that right, because cable broadband is not a Title 2 service (Title 2 governs "telecommunications services" such as voice service on your mobile phone). Broadband internet had been labeled a Title 1 service in 2002 under a Bush-administration led FCC Commission. Being excluded Title 2 means Broadband has been excluded from having to comply with a number of requirements and rules for Title 2 services. Comcast won the case against the FCC in April, which led to another wave of grassroots organizing around reclassifying internet as a Title 2 service.

Tides turn..

On May 3rd Washington Post reported that FCC sources believed that Chairman Julius Genachowski would leave broadband services unregulated. Many people called the FCC and continued to sign petitions demanding open internet protections. On Thursday, Chairman Genachowski decided that he would go forward with the administration's Net Neutrality promises and implement what Genachowski calls a "third way".

Harold Feld, Legal Director at Public Knowledge is calling "Title 2-lite". Here is Harold Feld's video summing up the FCC decision on May 6th, 2010.

Essentially, the Commissioner decided he would invoke some of the ability to regulate that Title 2 allows and "forbear" or hold back on using other aspects.

This gives Net Neutrality (a free, open, and competitive internet) a chance, because it shows that the FCC is willing to work on protecting the Internet to remain open and not just let the ISP's make of it what they will. At the same time it may tailor the FCC's power narrowly enough to help avoid concerns of excessive government interference in the Internet.

Going forward, the Commissioner states that the FCC will be looking for comments on this proposed “third way,” and the future of the internet continues to be up for discussion.

 

Photo sources:

"Internet Forever"  by Flickr user HotDiggityDogs under Creative Commons Attribution-Noncommercial-Sharealike 2.0 license.

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New Media Rights files comments in FCC Future of Media proceeding

May 10, 2010
FOR IMMEDIATE RELEASE
Contact: Art Neill, Executive Director, New Media Rights, (619) 591-8870

New Media Rights Files Comments in FCC's Future of Media Proceeding

San Diego, California- On Friday May 7th, 2010 New Media Rights submitted comments in the FCC's Future of Media proceeding.  New Media Rights' comments to the Commission draw directly on our experience providing one-to-one pro bono legal assistance as well as a free public media studio to creators of all types.  Our work has given us the opportunity to engage with a wide variety of media makers, advocates and citizens.  These comments are also intended to supplement a conversation held between New Media Rights, Free Press, Main Street Project, People's Production House, The Transmission Project and Mountain Area Information Network with the FCC's Steve Waldman on Thursday May 6th, 2010.

Our comments to the Commission include these topics:

1. Rebuilding of the San Diego and national media landscape to encourage participatory, citizen involved media that helps local communities identify and meet local challenges

2. Potential legal reforms and legislative abstention that can effect the media landscape

3. The role of the link economy and information middlemen, which are critical to future of finding and filtering through news and information

4. Government data availability and usage of public media

5. What types of Journalism are most in Jeopardy?

6. The role of Public vs. commercial media, and the possibilities of government subsidies

7. Should there be changes to Public Broadcasting Act? Are there examples from other countries to consider?

8. The future of public access channels (PEGs).

9. How foundations are supporting local news and journalism

10. User generated Journalism

11. Ensuring a free and open internet as well as universal broadband access

12. The role of mobile devices, their effect on the flow of communication, culture, and speech, and how they differ from previous information distribution media

 

Here are some excerpts:

 

Rebuilding of the San Diego and national media landscape to encourage participatory citizen involved media that helps local communities identify and meet local challenges

Particularly missing from our media landscape is investigative and analysis journalism regarding local issues.

Positive signs do exist, however. There are many individuals, community and nonprofits trying to address the gap in news and information, and reinvent media in San Diego

Some of these, such as VoiceofSanDiego.org, have received significant attention, but many other experiments are taking place in San Diego. These include:

  • East County Magazine which is a startup that gets significant traffic and provides basic news and info to East county in an entirely Internet based format,
  • Organizations like the New Media Rights, our local public libraries, and the SD Media Arts Center who play a role in local media through digital storytelling and training

 

Potential legal reforms and legislative abstention that can effect the media landscape

Never has the overlap between copyright law and our society's ability to communicate been so clear.

As is clear from a cursory visit to social media websites, the fair use doctrine is implicated daily in citizen media, yet it is a notoriously nebulous doctrine. Many of the creators we meet are speaking back and commenting on their culture and society in one way or another. We support proposals such as that of Public Knowledge and others regarding fair use reform, including any proposals that acknowledge and account for fair use as it exists today. Particularly, we support efforts to protect:

  • incidental uses of content
  • non-consumptive uses of content, which have been defined as uses that “do not directly trade on the underlying creative and expressive purpose of the work being used."
  • personal, noncommercial uses of content

We also encourage Congress to provide stronger punishment for frivolous complaints and bullying on the internet that result in content and speech being taken down. We have assisted creators and new media outlets that have been the victims of repeated frivolous abuses of the DMCA takedown procedures. Service providers typically

 

Government data availability and usage of public media

The ease of access to government data is critical. Government agencies should strive to make data available in easily accessible, open formats so that citizens, businesses, and non-profits can then repurpose it to the benefit of the public. As discussed, public use of basic facts and information is critical to development of vibrant and diverse voices, and governments are only scratching the surface of the possibilities.

The positive externalities of making data accessible and easy for citizens to reuse are tremendous. A few positive examples of Government entities making their data accessible enough to enable innovative uses in new media include:  

 

  • The Library of Congress and numerous public libraries and universities, which have made many photos in their archives available through flickr (http://www.flickr.com/commons/)
  • Social media websites such as www.OpenCongress.org that are built around accessible legislative information.

 

The role of mobile devices, and how they differ from previous information distribution media

The Commission should take steps to ensure that consumers have equal access to information through whatever means consumers choose to connect. The easiest way would be to ensure mobile devices maintain open connections to the internet for individuals to receive news and information through whatever information source they choose. A more complicated route could involve setting a standard for app development, allowing apps to work across various mobile operating systems, or placing restrictions on unreasonable app blocking. The Commission in considering how to approach regulating the industries involved needs to consider the relationship between the content creators and the access providers and the extent to which access providers are also content creators. As the number of consumers accessing news and information through mobile devices continues to increase, the Commission must be prepared to ensure that the industries involved do not unfairly restrict access.  This proceeding can at least be a starting point for the Commission to review the state of the mobile devices and their affect on the flow of news, information, culture, and speech.

 

The full comments are downloadable here and on Scribd

 

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Other group and organizations Future of Media Comments:

20 Media Action Grassroots Network (MAG-Net) Organizations comments

National Hispanic Media Coalition comments

Free Community Media comments

National Federation of Community Broadcasters

 

FCC Future of Media website

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