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Trademark law basically started out as consumer protection law, but over time has also been turned into a tool for anti-competitive practices. The theory was that consumers should be protected from unscrupulous sellers attempting to pass off their goods as someone else’s. From trademark, we get concepts like false advertising, brand dilution, consumer confusion (…there’s a concept actually called a moron in a hurry, when looking at how likely someone is to be confused), and so on. People can trademark things like logos, phrases, brand names- basically, something that is associated with things sold: goods and services and the sources of those goods and services.

There are registered and unregistered (common law) trademarks. Common law trademarks are more limited then their federally registered counterparts- they’re developed merely by using the trademark commercially, not registered, and usually related to a specific geographical region. They also lack some other statutory protections. For something to act as a trademark, it usually needs to be involved in trade- actual commerce. And not only does it need to be involved in trade, but it needs to be involved in trade in a specific commercial area. Apple Computers (now Apple Inc.), for example, didn’t have to worry too much about competing with the very different company Apple Music (owners of the Beatles catalog) until it got involved with iTunes and the music industry, and then those companies had to work things out because they were competing in the same area. And neither of them should be too concerned with people selling the fruit. Trademark does not have much to do with creativity- that’s largely copyright’s bailiwick- and, in fact, things can at times be trademarked that other people created, even against their wishes.

One of the things about trademark, though, is that unlike copyright and patents there is an obligation for trademark holders to protect their trademarks. Generic terms can’t be trademarked- and once a term has become generic, then it loses its trademark protection (this process is sometimes referred to as trademark erosion). Aspirin. Elevator. Kerosene. Zipper. All of those were once trademarks that have been lost. That’s why trademark holders for Kleenex, Band-Aids and Xeroxes try very hard to make sure that those terms don’t become generic. Even given all that, though, there are limits.

There’s this idea that all uses of a trademark have to be policed. Several years back, Cory Doctorow referred to this as “a fairy tale that trademark lawyers tell their kids at night to reassure them that they’ll have a healthy college fund.” It’s not true for every use. If someone isn’t using the term in a competing commercial space, for example, then the terms does not have to be protected. Trademark holders do not have the right to police others use of the works in other spaces- and there a concept of fair use with trademarks, as well. For example, you can absolutely use trademarks to describe what they’re actually intended to describe. I can use the trademarked name “Games Workshop” to talk about Games Workshop. And beyond all that- and a lot of lawyers who should know better seem to forget this- you don’t have to be a jerk about it when you do decide you need to act.

So, “Space Marines.” Space Marines is a term that has been around for some time in fiction. It’s also a term used by Games Workshop in its miniatures and games lines. Games Workshop does have a registered trademark for space marines for those lines- but although they’ve created fiction involving their space marines, they do not have a registered trademark in the book/ebook space. In this kerfluffle, they contacted Amazon to take down a book that used the term “space marine” in the title. Why? What they seem to be attempting to assert in this situation is that they have common law trademark in the term “space marine” in books and ebooks. Essentially, they appear to be arguing that anyone who thinks “space marines” in fiction should think “Games Workshop.” They seem to be trying to un-genericize the term and create a carved out commercial space for them and then alone, excluding others, which according to their press release is because they have a duty to their shareholders. This is a Bad Thing for many reasons, and the whole event illustrates some of the problems with the system and the law that I alluded to in my last post.

First, of course, there’s the obvious idea that they’re taking a term with a rich history in fiction and attempting to privatize it. There’s a power discrepancy between Games Workshop and the indie author. There’s also the idea that Games Workshop has to be predatory in this manner to appease their shareholders. That’s silly- negative publicity will also hurt their profits. That’s one reason why the controversy is important- people have to show GW and others that this type of behavior isn’t acceptable. And people have reacted. There’ve been author complaints, blost posts, news articles, comments- I even discovered that someone at my school had been a fan of Games Workshop fiction, who has now sworn off of them. That’s bad for everyone.

So far, all GW has done is double down- they’ve reiterated that they were right to do this, and for a time they also deleted and banned people who commented on their Facebook wall about it. They even banned a fellow academic who was only asking for their side of the story. They are allowing comments on their explanation, but they’re sticking to their guns. That’s not good corporate behavior. While their actions might be technically legal, that doesn’t make it right.

Now, Amazon also messed up. Games Workshop sent them a cease-and-desist, and they unnecessarily complied. While there IS a notice-and-takedown provision for taking down copyrighted material, there is no such equivalent for trademarks. They’ve since made the book available again, possibly thanks to some help from EFF. And Spots the Space Marine by MCA Hogarth has received a lot of attention, and portions of sales are donated to the Wounded Warrior Project, so there’s some positives there. Let’s hope Games Workshop learns something, too.

danah boyd: http://www.zephoria.org/thoughts/archives/2013/01/13/aaron-swartz.html

Timothy Burke: http://www.insidehighered.com/views/2013/01/15/essay-role-academe-tragedy-aaron-swartzs-death

Barbara Fister: http://www.insidehighered.com/blogs/library-babel-fish/if-lives-depended-it

Scott Jaschik: http://www.insidehighered.com/news/2013/01/14/academe-reacts-aaron-swartzs-suicide

David Karpf: http://www.shoutingloudly.com/2013/01/14/remembering-aaron-swartz/

Matt Stoller: http://www.nakedcapitalism.com/2013/01/aaron-swartzs-politics.html

Democracy Now: http://www.democracynow.org/2013/1/14/an_incredible_soul_lawrence_lessig_remembers

MIT: http://www.theverge.com/2013/1/13/3873352/mit-announces-internal-investigation-into-its-role-in-aaron-swartz

Remember Aaron: http://www.rememberaaronsw.com/

http://chronicle.com/blogs/ticker/academics-memorialize-aaron-swartz-with-open-access-uploads/54171

Cory Doctorow: http://boingboing.net/2013/01/12/rip-aaron-swartz.html

James Grimmelmann: http://laboratorium.net/archive/2013/01/12/aaron_swartz_was_26

Brewster Kahle: http://blog.archive.org/2013/01/12/aaron-swartz-hero-of-the-open-world-rip/

Jeff Kramer: http://www.jeffkramer.com/2013/01/12/remembering-aaron-swartz/

Lawrence Lessig: http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully

John Schwartz: http://www.nytimes.com/2013/01/13/technology/aaron-swartz-internet-activist-dies-at-26.html?pagewanted=all&_r=0

Christopher Jon Springman: http://www.theknockoffeconomy.com/r-i-p-aaron-swartz/

Alex Stamos: http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/

EFF: https://www.eff.org/deeplinks/2013/01/farewell-aaron-swartz

So, quick break from my self-imposed hiatus to mention the near-worthless Special 301 Report put out annually by the United States Trade Representative. This report has been part of a trend of increasingly using trade pressure to convince countries to come up stronger copyright and related laws. It reads like a special interest wish list; it essentially praises the creation of barriers that are even in excess of what the US imposes on itself (see Spain’s recent actions, lauded in the report, also the result of undue US pressure).

Canadian Professor Michael Geist’s 2010 response is still appropriate- and he’s written another great analysis for this year’s report.

We’re never going to have a real conversation in the political sphere as things stand. We should be talking about relationships between authors, publishers, and distributors in the digital environment. We should be talking about the appropriateness of copyright-related remedies and their impacts on our society. We should be talking about the costs of access to scientific literature. We should be talking about authors’ rights in a meaningful way. Although we’re having those conversations, they’re mostly not initiated by policy makers. Instead, we get junk like this. We get secretive trade treaties where the public and public groups are left out of the discussion entirely. We get an environment where real meaningful dialog is absent.

I was approached by an undergraduate student last week. She had recently received a letter from the RIAA demanding that she pay them a settlement for infringement. They had the names of seven songs, the times when the songs were shared and an IP address associated with the sharing. The organization had apparently issued a subpoena to the University of Texas, as the settlement letter was able to specifically name her with information provided from the University that showed the IP address associated with her EID (UT’s electronic identification) at those times. Here’s the problem.

She didn’t share those files.

You see, she was never able to quite figure out how to connect her laptop- her only computer- to UT’s new restricted secure 802.1x wireless network while on campus. That is not unusual- I’ve provided tech support to several people about that very issue since the implementation of the network.

So, while on campus, she used other people’s laptops to log onto the wireless network. And she frequently left the computer while still being logged in to the network. It’s not difficult to forget to log out- you often have to actively clear the credentials from the computer, and the early automated installers that set up the network didn’t provide an easy way to do so.

If anything, she’s guilty of not following UT’s Acceptable Use Policy. Technically, other people were using her EID. The consequences for that, however, should be far different from the consequences for infringement.

She called the RIAA, and they weren’t interested in her story or any proof she might be able to provide. They told her to settle. She’s contacted UT’s Legal Services, but as the person who might have actually done the sharing is probably also their client, so they have a conflict of interest and couldn’t represent her. She’s contacted other attorneys and all the people that she could think of, but all the while the clock is ticking. She has 10 days. After that, the RIAA takes further action, and the costs go up.

At this point in time it looks like she might have to settle and pay thousands of dollars for infringement that she didn’t commit.

I’ve got a post about the rhetoric of fair use at Collectanea, regarding the CCIA complaint about misleading copyright notices and the response from the Copyright Alliance.

Does it work as intended? I guess that all depends on intent and perspective.

We’re pretty sure that AT&T and other companies (the pipes) are using packet content examination to prioritize and/or degrade certain kinds of traffic (ie, a reason they’re against net neutrality), and they mention that they may perform surveillance of the network in their terms of service. We’ve had reports of Time Warner doing similar things here in Austin. Theoretically, beyond being an egregious breach of privacy (with some pretty terrible implications for important legal protections such as privilege), those actions would seem to me that they would lose their DMCA Safe Harbor protections for online service providers, as they are both inspecting content and directing the way the traffic is being handled based on what’s in those packets. I recently mentioned this to an attorney active in the area, and he waived it off- they don’t care. They’re not the ones being sued, and they’re actively working with the content industries (or in some cases they are the content industries).

On the other hand, we have Google/YouTube et al. (the servers), who are being sued, do care about the safe harbors and rely heavily on those protections. Naturally, those protections are actively being worked against by both lobbying efforts and actions in the courts, as content industries jump on lawsuits challenging their safe harbor status.

And then we have an example of where the Safe Harbor “works” but not in a way that’s particularly satisfactory: Wendy Seltzer’s NFL/YouTube posting. She posted it. The NFL sent a cease-and-desist. It got taken down. She counter-notified. It got put back up. Then *the NFL sent another cease-and-desist.* So apparently content owners can apparently just continue sending cease-and-desist forms, leading to a ridiculous cycle of adding and removing content until someone gives up or some other type of harassment or similar lawsuit begins. She counter-notified. It got put back up. *sigh*

So, do the safe harbor protections work as intended? We know that DMCA notifications are being used, sometimes properly and sometimes improperly. So do they protect legitimate interests? Sure. Do they hurt legitimate interests? Sure. Do people have an incentive to comply with the DMCA requirements? You would think so- but the network service providers don’t seem to care. Those safe harbor protections are better than nothing, and vital for some server services- but they don’t adequately protect the public interest in the use of copyrighted material.

The results of the Viacom/Google suit- if not settled- will be telling.

And now, the NFL is using property rights and contracts to severely limit news. Again, legally permissible- but certainly in poor form.

I wrote recently about AT&T’s commitment to filtering technologies. Via it’s helpdesk, Time Warner has apparently announced that it’s now using packet shaping technologies. So much for the Net Neutrality debate.

“Packet shaping” technology has been implemented for newsgroup applications, regardless of the provider, and all peer-to-peer networks and certain other high bandwidth applications not necessarily limited to audio, video, and voice over IP telephony. Road Runner reserves the right to implement network management tools for other applications in the future.

There are certainly issues with free speech here. No, it’s not the government blocking speech, but I don’t find that less worrying in the least. Quite the contrary.

1) Commercial entities blocking or degrading speech is incredibly problematic, particularly with the lack of real competition (if you’re a free market person). The choice of a single cable company or a single phone company isn’t really that much of a choice. I’m sure anyone can think of ways in which the implementation of these technologies could potentially to do harm. Here are a couple: degrading the ability to transmit a message- where already restrictive digital technologies backed by law (like banning the use of anti-circumvention tools that block legitimate uses via the DMCA) and corporate policy (like search engines blocking content in China, or filtering technologies blocking content in libraries) have had some serious impacts on fair uses, copyright exemptions, and basic access to information. Another is the potential for anti-competitive behavior, when ISPs have the ability to degrade the performance of rivals. These concerns are more obvious with the movement of ISPs into the content arena, where they now feel they have a right to police content (like AT&T from the earlier message). Furthermore, it’s easy to predict that in order to get content from other members of the entertainment industry they might be required to implement some of these technologies.

2) How long is it going to be before there’s legislation attempting to use packet shaping technologies? These technologies presumably base their packet shaping routers on information taken from the packets themselves (beyond just monitoring bandwidth). When is someone going to propose to filter for content or technologies that some members of the government don’t like (pornography, P2P, encrypted traffic, name it)? Think about members of Congress that want universities to act on the perceived P2P problem- and the universities have have already started blocking P2P traffic.

I wonder- does the use of packet examining technologies remove the DMCA safe harbor protections for Online Service Providers?

Traffic shaping technologies have been around previous to this, and aren’t always a bad thing- there are certainly arguments for applying traffic shaping to worms and systematic denial of service attacks- but the potential for abuse definitely needs to be considered as they’re growing in popularity, implementation, and possibly effect. I’m going to be trying to figure out if these are new or different uses of the technologies.

Update: An update based on a question I received. There are many kinds of software applications that might affect the traffic that gets to your computer. Here are a couple.

1) Content Filtering technologies. People can use this term to mean different things. There’s Net Nanny or other forms of censorware (yes, my use of that term indicates where I stand on most implementations of that software). In that situation, filtering is based on content but usually implemented at a local level (think business or school). When I’m referring to filtering software in this case, I’m usually referring to that.

Some people also describe a firewall, anti-spyware, or anti-virus software that blocks unwanted traffic as filters, and there’s also use of the term to describe moving data streams from one application to another.

2) Traffic shaping /packet shaping technologies, which can throttle traffic (potentially affecting performance) or block traffic entirely. These technologies could be monitoring bandwidth, protocols on the network (http, ftp, udp,etc.), or could be examining packets themselves. These are often implemented at the edges of a network, such as where traffic enters or leaves a local network. One of the concerns I have is the harm in the use of these technologies to filter or degrade based on content.