“The Rise and Fall of Aereo”

Damon Root, in the latest issue of Reason, has an interesting piece explaining the U.S. Supreme Court battle between Aereo, makers of a tiny antenna which allowed subscribers to watch and record TV broadcasts on their mobile phones, and the major American TV networks. 

“Subscribers” might be the key word here. I get the impression that Aereo might have won its case had its device been more like an old-fashioned rabbit-ears antenna, which you paid for once, transmitted nothing and received television signals broadcast for free over the public airwaves.

The Aereo model was found to violate the 1976 Copyright Act, but even some justices who sided with the broadcasters asked pointed questions about how their (ultimately successful) argument could affect cloud computing services. There’s too much here to excerpt, so read the whole thing.

Don’t start making counterfeit Washington Redskins merchandise just yet

In recent years, the campaign against the team’s offensive name has gained considerable momentum, with even Senate Majority Leader Harry Reid publicly speaking out against it:

Despite this, I still think the team should change its name.  And a recent “landmark” decision by the U.S. Trademark Trial and Appeal Board, cancelling trademark registration of the “Redskins” name for its innate offensiveness, is being held up as a major step forward.

Tim Lince at World Trademark Review, however, says the decision is not nearly as big a deal as it seems.  The ruling is stayed pending appeal, and in any event, even if it were upheld the team would still have recourse against unauthorized producers of team merchandise:

Under the assumption that the REDSKINS term is now under no legal protection, hundreds of people on websites, social media and forums are saying, presumably mostly as a joke (but you never know!), that they will now start making unofficial REDSKINS merchandise in the wake of the decision. William McGeveran, associate professor at the University of Minnesota Law School, says he “wouldn’t expect the [trademark] team to police its marks any less aggressively as a result of this decision”, but affirms that “news reports suggesting that counterfeit Redskins jackets will now be legal are just plain wrong”.

WTR covered the original cancellation of the REDSKINS trademarks and subsequent overturning of the decision in 2003 and wrote about the case being dismissed in 2009. As Tim Kelly, partner at Fitzpatrick, Cella, Harper & Scinto LLP, notes, “the decision that the term REDSKINS was disparaging to a ‘substantial composite’ of Native Americans at the time the trademarks were registered is based on substantially the same evidence that was viewed as insufficient in the appeal of a prior proceeding”. Given this, the Washington Redskins’ lawyer Bob Raskopf’s gave a defiant response to yesterday’s decision: “We’ve seen this story before. And just like last time, yesterday’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo. We are confident we will prevail once again.”

For now, the REDSKINS trademark registrations that are the subject of the cancellation proceeding will not be cancelled until the appeals process is exhausted. Kelly adds: “Importantly, the TTAB does not have jurisdiction to prevent the use of the marks it ordered cancelled. As such, the petitioners in the cancellation proceeding will need to seek a court order to prevent the NFL from using the name. An interesting question will be how much deference the courts will give to the decision of the board, an issue that the Supreme Court is already considering taking on, albeit in the context of a likelihood of confusion claim.”


Sommers notes: “Even if a court upholds the cancellation of the registration on appeal, the team will still have so-called ‘common law’ trademark rights arising from its long and consistent commercial use of the name. And those rights are very strong. They include the ability to stop other people from using the mark in a way that appears to be authorised by the team.” However, with media reports declaring that the trademarks are cancelled, readers could interpret that as a free-for-all to capitalise on the REDSKINS brand. Job one for the team’s trademark department, then, is managing that information flow. After all, any spike in infringing activities will mean that the trademark team’s policing burden gets heavier.

Anyone else think it’s no accident that the anti-“Redskins” campaign picked up steam after litigious bully (and bad free-agent picker) Dan Snyder bought the franchise?

What’s going on with the internet today?

Many prominent websites, most notably Wikipedia, are going dark today to protest two ham-handed anti-piracy bills making their way through the United States Congress:

What exactly is blacked out?
The English-language version of Wikipedia is offline and has been replaced with a message related to the anti-piracy legislation going through Congress, SOPA, in the United States. Other language editions of Wikipedia will be unaffected.

Additionally, popular community website Reddit has also gone offline, as well as Boing-Boing and several smaller websites.

WordPress is suggesting users black out their own websites, but is not forcing any blackouts.

Whoa, SOPA? What the heck is that?
SOPA, which stands for the Stop Online Piracy Act, is a piece of legislation in the U.S. House of Representatives. The act is designed to target copyright infringers online through a series of harsh penalties.

In the U.S. Senate, a separate companion bill is called the Protect Intellectual Property Act or PIPA.


…Why do the SOPA opponents say it would turn the Internet into a police state?
Several of the provisions in SOPA force American Internet service providers or ISPs hosting websites to remove a site from the Internet if there’s a claim it’s infringing against copyright, even if it has not been fully proved in court. The argument is that this would make it easy for someone to make false or weak claims to take a website offline while the case makes its way through the courts.

Additionally, it would force ISPs to block non-U.S. websites accused of having infringing material, meaning sites from other countries might not be available in the United States. Opponents say this might destabilize the Internet and allow loopholes for hackers to exploit.

Which sites that I use would this affect?
Most obviously, Wikipedia. There are millions of users who constantly update the site, and sometimes things are posted that might have questionable copyright provenance. If Wikipedia were shut down or blocked every time it was challenged over copyright, the site would likely cease to function.

YouTube would be another site that would be harshly affected by the measures. Since millions of people upload videos to YouTube, sometimes copyrighted material slips through. Currently, this is dealt with by individual videos being taken down after a complaint. Google has stated YouTube probably wouldn’t exist if a SOPA-like law had been in effect in 2004 when the site launched.

Some interpretations of the bill say that sites that even link to other sites accused of infringing might be at risk.

Basically, any site that has a large user-generated component is worried about SOPA.This is the document Wikipedia references when explaining why they are against the bill.

Google has posted an online petition against SOPA and PIPA, which I encourage everyone to sign.  More from the Cato Institute and The Globe and Mail.

Review – The Church of Scientology: A History of a New Religion by Hugh B. Urban

[A version of this review originally appeared at CanadianLawyerMag.com.]
An academic history of the Church of Scientology might not seem relevant to lawyers, unless you’re familiar with the controversial movement’s use of the justice system against its many detractors. Founder L. Ron Hubbard explained his legal philosophy in 1955: “The purpose of the [lawsuit] is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway . . . will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly.”
(I wish I could say I’ve never dealt with lawyers who subscribe to this line of thinking, but that’s another column.)The reclusive Hubbard died in 1986, but Scientology critics should still brace themselves for long, difficult, and expensive defamation actions brought by the organization. Time magazine and its parent company spent millions of dollars in legal fees defending its 1991 cover story “The Thriving Cult of Greed and Power.”  Church lawyers have demanded that Google remove anti-Scientology web sites from its search results. Most notoriously, the venerable Cult Awareness Network was forced into bankruptcy after years of litigation against Scientology — and then its name was purchased by a Scientologist who started up a Hubbard-friendly “New Cult Awareness Network.”
The organization really devoted its energies to a long, brutal legal battle with the Internal Revenue Service, trying to restore its designation as a tax-exempt religious organization. In The Church of Scientology: A History of a New Religion, Ohio State University religious studies professor Hugh Urban notes that Hubbard initially made no effort to claim he had founded a religion, and in fact made several comments disparaging religious belief. Dianetics, the founding text of Scientology (which initially appeared, fittingly enough, as an article in Astounding Science Fiction magazine), was subtitled “The Modern Science of Mental Health,” and the “religion angle” (Hubbard’s words, not mine) was only approached when the IRS started sniffing around.

Suddenly, Scientology buildings were adorned with an eight-pointed cross, Scientologists were sporting clerical collars, and a book of Scientology rites was hastily produced. The U.S. government remained suspicious, however, and things only got worse after “Operation Snow White,” an elaborate intelligence-gathering operation in which Scientologists infiltrated the IRS, was uncovered in 1977.

In 1993, however, Scientology and the American government reached a settlement, in which the church dropped several legal actions in exchange for official recognition as a tax-exempt religion. Now the organization is fighting the same battle in other countries, including Canada.

Urban’s book raises many thought-provoking questions about the distinction (if any) between a religion and a cult, and why some faiths are officially exempted from the tax system while others are not. Paradoxically, the United States Constitution forbids promotion of religion by the state, yet the state’s revenue agency has the power to determine what is “really” a religion and what is not.

He also illustrates how in recent years, the tables have been turned on Scientology, which now finds itself under attack from decentralized “anonymous” members who organize through the Internet. The church itself has launched many copyright-infringement lawsuits against web sites on which confidential “scriptures” — including the ones about evil intergalactic ruler “Xenu,” famously satirized on South Park — have been posted, but it is practically impossible to stop the viral spread of anti-Scientology material on the web.

The author shies away from taking a clear position on whether, in his opinion, Scientology truly deserves its official recognition. Indeed, Urban tries to remain neutral as to the benefits and/or harm caused by the organization and its practices, and whether its followers and leaders are sincere as to whether Scientology is really a system of religious belief. (The question of whether religious organizations deserve tax-exempt status at all is largely ignored.)

Urban’s history of this controversial movement is a good starting point for authors and academics who wish to review the legal, moral, and theological issues surrounding Scientology. But it might have been an even better book had he not decided to pull so many punches.

Unfortunately, when the subject is Scientology, it’s hard to say whether the author was trying to be fair or whether he wanted to avoid being sued.


Further to my post from earlier this week, about Japan possibly signing the Hague Convention on International Child Abduction, a recent court decision has led to calls for India to sign on as well:

It is reported in India that demands have been raised with the government for it to accede to the Hague Convention on the Civil Aspects of International Child Abduction in order to protect the rights of non-resident Indians. The calls follow a Supreme Court judgment which has affirmed the jurisdiction of Indian courts to deal with disputes of children’s custody even if they are foreign citizens.

The Supreme Court ruled that simply because a foreign court had made an order, it did not mean that Indian courts should put off deciding on the issue. It is said that the judgment has far-reaching implications for Indians living abroad.

The Supreme Court said that the interest and welfare of the child was of primary concern and required a competent court in India to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. [via Family Lore News]

Meanwhile, in the world of Formula One racing, the great Lotus-Renault vs. Lotus-Renault court battle has been decided in favor of Lotus-Renault.

Revenge of the ex-boyfriend

Adele, a British pop star whose music I’d probably care about if I hadn’t given up on pop music around 1999, is being sued by the former boyfriend who allegedly inspired her music:

Adele’s ex-boyfriend is supposedly cheekily claiming for a slice of the profits she made on debut album ‘19’ – because he feels their doomed relationship was the inspiration for a number of the LP’s lovelorn tracks.

…according to the tabs today (May 10) she’s furious that her former partner is trying to claim the credit for her initial success – as well as a cut of the royalties.

She is quoted in The Sun as saying: “For about a week he was calling and was deadly serious about it. Finally, I said ‘Well, you made my life hell, so I lived it and now I deserve it’.”

She added: “He really thought he’d had some input into the creative process by being a prick. I’ll give him the credit – he made me an adult, and put me on the road that I’m travelling.”

Via IDLYITW.  If this is successful, the case of Coulier v. Morrissette should soon be winding its way through the court system.

Who owns “Friday”?

Christopher Bird, at Wise Law Blog, posts about the dispute over who is to blame for who owns last week’s biggest viral video sensation:

…It appears that Ark Music Factory, which produced the song for Ms. Black, and Ms. Black herself (represented through her mother) don’t agree as to who actually owns the copyright in the song. Ms. Black claims that her agreement with Ark gives her 100% ownership of the song; Ark claims that the agreement gives her ownership of the master recording only, but not the song or composition, and that copyright for the song should reside with them as they wrote the lyrics and arranged the music for Ms. Black.


Determining authorship is more difficult than determining the existence of work-for-hire, particularly in this instance. Is Ms. Black the primary author for singing and performing the song? Or is Ark the primary author for having written and arranged it? The legal ground here is, at best, unsteady.

An interesting precedent exists, however, in Janky v. Lake County Convention and Visitors Bureau. In 2009, an Indiana doo-wop group named Stormy Weather performed a song called “Lake County, Indiana” which was used by a local tourism agency for promotional purposes. One of the members of the group, Cheryl Janky, who wrote the song, sued them for using the song without her permission. The agency’s defense was that another member of the band, who had contributed to the writing of the song, had issued them a nonexclusive license for its use. The U.S. Seventh Circuit Court of Appeal found that this second bandmember was a “joint author” and therefore had the right to issue the license.

Janky is relevant to the Black situation because many of the Black family’s complaints lie with the profit Ark Music has been making from the work – ringtones, for example – which the Black family has apparently not received a share thereof. If Black and Ark were found to be co-authors of the song, they would co-own it. This is likely why Ark’s representatives have been stating that Black “didn’t even write a lyric.”


Dueling Lotuses

Casual viewers of last weekend’s Australian Grand Prix may have wondered why there were two competing race teams, both running cars powered by Renault engines, named “Lotus.”   Formula One reporter Joe Saward has a blog post, far too long to excerpt, which explains the whole mess.

Long story short: the Lotus car company and the Lotus F1 team have been completely separate entities since 1990, when Colin Chapman’s descendants sold the race team, which went bankrupt in 1994, at which time the “Team Lotus” name was purchased by David Hunt.  A Malaysian-owned race team entered F1 in 2010 and made a deal with the Lotus car company (Group Lotus, now owned by another Malaysian company, Proton) to use the historic name.  Group Lotus withdrew its licence at the end of the season, and subsequently made arrangements to sponsor the more successful Renault team.

But then the team that was known as Lotus, which stood to lose millions in TV revenues if it changed its name, made a deal with Hunt to use the “Team Lotus” name. Oh, yeah, they’d already made arrangements to use Renault engines for 2011, and both teams also planned to run cars in black and gold livery, like the legendary John Player Special-sponsored Lotus F1 cars of the 1970s and 1980s, before the newer team backed down.

Everybody got that?  The matter is now before the High Court in London, and just to make things even more confusing, Hunt now says Team Lotus is breaching its contract, and Team Lotus may respond by suing him for defamation  Too bad most Formula One races aren’t this interesting.

The late, great Ayrton Senna drives a Lotus to his first F1 victory at Estoril, Portugal, in 1985:

Target targeted

With its recent purchase of Zellers leases, Target – every Canadian’s first stop on cross-border shopping trips – plans to move into the Canadian market.  Unfortunately, the company may have to leave its brand name back home, because someone up here is already using it:

Fairweather Ltd. has filed a $250-million Federal Court lawsuit against American discount retailer Target, which recently announced Canadian expansion plans.

In documents filed Monday, Fairweather is seeking an injunction to prevent the U.S. company from using the Target name in Canada. The American discount retailer announced last week it plans to open roughly 150 stores in Canada, after it bought the lease interests of more than 220 Zellers locations across the country.

Fairweather, owned by retailing mogul Isaac Benitah, claims it has owned the rights to the Target name in Canada for more than a decade, when it bought the rights to that brand and others from now-defunct retailer Dylex Ltd.


The documents say Fairweather has been operating a Toronto clothing store under Target Apparel since at least 2005. There are also locations in Sudbury, Ont., and Nanaimo, B.C., and more store openings are planned in Surrey, B.C., and elsewhere.

This isn’t the first time the two companies have had legal altercations. Their clashes go back to 2001, when the U.S. chain first took issue of Benitah’s use of Target.

The Federal Court of Appeal ruled in Benitah’s favour in 2007, before the U.S. retailer tried again in 2010, in a case that is ongoing.

There is precedent for an American corporation not being able to use its iconic brand name in Canada – for years, the world’s most famous cigarette brand wasn’t available in Canada, because another company registered the “Marlboro” name before Philip Morris got around to it.   (The whole, tangled story is explained in this Federal Court decision.)

I suspect this will be settled by the old “back a truckload of money into the other guy’s driveway” method, but if Target (the American one) isn’t successful, look for the new stores to feature some other, token brand name – and the company’s iconic logo plastered all over the place.

(Related: a 1972 Time magazine article explaining why the “Esso” name – still used on gas stations all over the world, except in the United States – was replaced with “Exxon” down there.  Canadian travelers to the U.S. will notice that the stations are identical in all but name.)