God fortsättning, alla!

 It appears that the US, according to WikiLeaks cables, is playing a large part in writing other countries' laws - expecially IP laws. The following is a translation from a PiratPariet posting. It can be viewed in its original Swedish here.

A few days before Christmas I received a package with a few telegrams from Wikileaks' vast collection, "which might be of interest to me," an anonymous source. They had been published in part by the SVT in the past.
But it was what had not been published by the SVT that was pure explosive subject matter. It took me four days to understand what I had just been in black and white, and I still have not digested it. In short: every law, every investigation that has been hostile towards the net, youth and civil rights here in Sweden in recent years has been the custom orders by the U.S. government and American business. We suspected that it was so, but had thought it might come a little bit here and there. It was wrong. It was coordinated and the Swedish government had been given a checklist to check off, and is described in diplomatic telegrams as "very cooperative" and "completely caught on."
Since 2006, we claimed that the data storage, police method investigation, investigation that would turn off people from the network (Renfors Inquiry), the political trial and the persecution of The Pirate Bay, IPRED and FRA whole thing is part of a larger whole, a coherent whole that is controlled by American interests. It has allowed conspiracy at the top. Even ridiculous. We have suggested that the U.S. government hunts on the systematic dismantling of civil rights in Europe and elsewhere to American corporate dominance is not at risk, and particularly on copyright and patents.
But suddenly it was there in black and white. So far that officials at the Justice Department have been writing the text of the law to IPRED, officials whom I have named and criticized, has been at the embassy and received instruction.
This will be a bit long newsletter, for I intend to go through the documents in detail. If you do not feel the need to read a lot right now, so enough of this sentence:
Pirate Party was right in everything. The search for common Svensson who share music and movies with each other has been behind the largest dismantling of civil rights in modern times, and American interests have been behind everything.
Please spread this message by all means go: send on to friends, post in forums, on blogs, facebook, twittering about it, etc. Oh, and talk about it too.
For those who want more comments, instead of hard reference point, I recommend Christian Engström's blog post "Foil Hats off to Sweden's puppet government".
In the middle of härvan are diplomatic telegram Stockholm 09-141, which recommends that Sweden is not blacklisted by the U.S. in the so-called Special 301 "list, and explain why. Special 301 is a list that the U.S. puts together each year to single out countries that they consider not to be sufficiently attentive to American industry. A majority of the world's population is listed, including Canada and Spain. Quite hyvens company to be in.
Since the 1980s, the U.S. has aggressively threatened trade sanctions against countries that do not give American companies large enough competitive advantage - this is described in detail in the book Information Feudalism on the TRIPS Agreement and the WTO came to for those who are interested in details. In practical terms, it works so that the professional organizations in the United States goes to the American Economy Ministry, which in turn goes to the U.S. State Department, which goes to the embassies, which in turn talking to governments, including the Swedish, and require legislative changes to benefit the U.S. firms.
It sounds like science fiction, right? But here are the documents. This document is from the copyright industry's trade association IIPA, which mainly consists of the record and film companies. They have listed six requirements in the Swedish government, which is to be found in the linked document:
- Allows you to turn the citizens from the Internet without or awaiting trial (known as "injunctive relief" on the legal language) and for IPRED in a way so that the copyright industry can get the IP addresses.- Prosecute the people behind The Pirate Bay, as far as absolutely possible.- Increase the number of police officers who are just working to hunt down ordinary file-sharers.- Initiate a massive campaign to eradicate file sharing and piracy.- Ensure that the rights holders may obtain damages [from file sharers] quickly and easily.- Abolish budbärarimmuniteten so that ISPs are liable when copyright infringement occurs over their networks, and that such be placed in the transfer itself.
We recognize all this, right? With one exception, so it looks like the checklist that Swedish government has followed. Embassy explains even exemption.
The telegram Stockholm 09-141 reads (in translation), with my comments:
1st Stockholm embassy recommends that Sweden continues to be on the processing list, instead of black list this year. We are aware that trade associations IIPA [copyright industry] and PhRMA [pharmaceutical industry] think differently. We base our recommendation on:
- The progress made by the Swedish government has done in five of the six points that IIPA identified last year and which we gave to the Swedish government;
[Rick's comment: They write straight out that the government has a checklist.]
- The sensitive domestic policies that the government needs to deal with when you look down on file sharing. The government is fighting, with good intentions, against a noisy youth movement and a negative media climate. For example, we want to highlight the risk that the Pirate Party is elected to the European Parliament later this year.
[Rick's note: It is apparently "a vocal youth movement" fighting for basic civil rights.]
2nd We are here through the progress that Sweden has made in the checklist that we gave to the government last year. The Embassy continues to work very constructively with the Swedish Govern, and has good access and good working with officials in decision-making and working levels. It made since last year's survey reinforces the laws to fight against file sharing. The trial of The Pirate Bay is currently in the Stockholm district court. The last day of the trial is March 4, and the award may be expected on or around March 25.
[Rick's note: The embassy says that they have good access to officials. The second telegram name those whom, and that's including the man who wrote the Act to IPRED.]
3rd [...] The Justice Department, which has primary responsibility for these matters, is entirely at our notes and know what is at stake. They fight right now with the Ministry of Industry on the next appropriate steps to crack down on file sharing. Now that IPRED will finally take effect on 1 April, and it soon will be a tingsrättsdom in Pirate-Bay case, then the Department of Justice to give attention to other key issues, notably the question of how ISPs can be held liable [for the that people send in their networks]. [...]
[Rick's comment: it is therefore a clear indication that the Justice Department and Ash are working to eliminate budbärarimmuniteten and make ISPs responsible for what their customers do, so we will have a powerful form of censorship outside the law. This is one of the most serious threats that exist on the Internet's basic principles today. Note also the wording on the Justice Department is in the U.S. in the knee, the questions.]
4th [...] The embassy has provided a list of things to be addressed to the Swedish government in which the U.S. government had hoped to see progress in 2008.
5th Events list under [the so-called] Special 301 Initiative contained recommendations in six areas. Sweden's government has acted, in varying degrees, in five of these areas. A review of this follows in the following paragraphs.
[Here I throw on the section the order a bit, so that we can compare with the checklist from the U.S. copyright industry's trade association IIPA, and I take it as a reference. The numbers in front of the paragraph is therefore in a diplomatic telegram, and then select which piece of text that is referenced. Checklist items taken from the top down in IIPAs list.]
The checklist says:
Allows you to turn the citizens from the Internet without trial or awaiting trial (known as "injunctive relief" on the legal language) and ...
The embassy says:
7th Injunctive relief: the only point of no progress is number two on the list, "injunctive relief". Swedish Government maintains that there are sufficient measures in Swedish legislation, and does not intend to add new bills. (Note that the [copyright] industry's claims to the contrary was supported by Renfors investigation, an investigation that would examine the file-sharing situation. The Swedish Government has announced that it will not proceed with Renfors investigation.)
Rick's comment:
Renfors study was the bill that explicitly wanted to turn the citizens from the network without trial. Its secretary, John Axhamn, lobbying hard right now to introduce censorship outside the law by another of the six points.
The checklist says:
... And before IPRED in a way so that the copyright industry can get the IP addresses.
The embassy says:
8th Implementation of IPRED: The law passed by Parliament on 25 February, and the new legislation takes effect on 1 April 2009. The political sensitivities made the final stage of the bill handling very sensitive to the Alliance Government. Much of the debate and negotiations have taken place in transparency, and individual MPs have come under enormous pressure. A law passed through is therefore a much greater victory for the Swedish government than it might seem. Major changes compared to the original bill:
- The law will not be retroactive. [...]
- The court will make an assessment of proportionality, ie, balancing the elements from the copyright owner to find out the identity behind the internet subscription to privacy aspects of the person. The law says that a certain level of copyright infringement must have occurred to information should be released. In normal circumstances, this would occur when the interference consists of uploading one film or piece of music [...]
- The Act contains text that the government intends to observe and assess how the law is used [...]
Rick's comments:
Here are two things that are worth noting. Firstly, it is clear that the United States and the embassy was behind all the controversial elements of IPRED (part for the release of subscriber information on a voluntary basis in the EU directive). Second, you wary when the government talks about "large-scale file sharers", for this is in black and white what that means: to upload a single movie or song, such as two million Swedes do every day.
Also note the tone of disappointment that the law was not made retroactive.
The checklist says:
Prosecute the people behind The Pirate Bay, as far as absolutely possible.
The embassy says:
12th After the raid on The Pirate Bay on 31 May 2006, as discussed intensively filesharing in Sweden. The media climate was the main purpose, and still is, disadvantageous to the comments made by the defendants and the U.S. government. Raid against The Pirate Bay was presented as the Swedish government had departed for printing from the United States. The sensitivity of the situation made it difficult, if not counterproductive, for the embassy to intervene in the public debate on copyright. Behind the scenes, the embassy has worked well with all stakeholders. After 18 months of investigation, the prosecutor brought charges against four individuals for aiding copyright infringement because of their activity in managing the BitTorrent website The Pirate Bay. The goal is heard right now in the district court in Stockholm, and the last day of the hearing is on 4 March. Judgement is expected on or about March 25, that is before the Special 301 review is completed. Note that we expect the sentence will be appealed to higher courts, meaning that the final verdict will not be known for several years.
Rick's comment:
Even when the raid came on 31 May, so it appeared clear indications that the U.S. had pressed on. It was not to prove. Now it is in black and white on an action list, along with the comment that the Justice Department is fully caught on and are very cooperative.
The embassy also writes home that they have worked behind the scenes with "all stakeholders". Some of these names in other diplomatic telegrams, including target ägarsidan in Pirate Bay trial.
The checklist says:
Increase the number of police officers who are just working to hunt down file-sharers.
The embassy says:
10th Police and prosecutors: there are now two full-time prosecutors dealing with copyright issues. Police officers have been trained, but we understand that they must not give copyright issues some attention. They are back at his regular job in their police district, where there are other priorities. We understand that the prosecutors have indicated that this is a problem for their work - they are stuck with a backlog of old cases without support from the investigating police officers. Prosecutors ask for investigating police officers that are folded full-time to IPR [Copyright issues], today there is no such thing. The Justice Department has repeatedly asked the Commissioner of Police how he plans to rectify these deficiencies. Although the government recognizes the need, so will the budget for next year is unlikely to contain a sharp rise in funding for police, given the economic situation. This is an area where the embassy is working with government and [copyright] industry to illustrate what a profound impact which can be made for additional resources to this area.
The checklist says:
Initiate a massive campaign to eradicate file sharing and piracy.
The embassy says:
11th Educating the public: In the fall of 2008, then sent the Government / Ministry of Justice is the new training materials, primarily targeted at young people, who will distriberas widely in Swedish schools. Justice Ask staff are currently considering the pros and cons of engaging individual ministers in the public debate. Given all the negative attention that came around IPRED Act and the Pirate Bay trial, so the decision has so far been keeping a low profile. Central government recognizes that there is a real risk that the window for the debate was lost several years ago, when leading politicians did not debate. How to put themselves in at this time is a sensitive issue.
Rick's comments:
We criticized this material when it came out. The Justice Department sent out "teaching" with copyright-sided propaganda that school supplies! It had not happened before, and I criticized the material on point after point to be politically biased, only tell half the story, or at times directly wrong. Now we know that it was commissioned by the United States.
Sample text from the material available on in this earlier blog post. It is purely a party statement from the copyright industry that is sent out as even-handed materials.
The checklist says:
Ensure that the rights holders may obtain damages [from file sharers] quickly and easily.
The embassy says:
9th To give police and prosecutors the right to identity behind the IP addresses [Internet service] for individuals suspected of copyright infringement of lower ranking, that is bötesbrott instead of prison crimes: The Justice Department has also worked towards the goal of changing the law so that police and prosecutors can access identities behind IP addresses in cases where the crime that most can be fined, rather than prison. The usual Swedish term for this type of crime is "minor crimes". At the moment, so can law enforcement officials only such information about copyright infringement can lead to imprisonment. Government / Ministry of Justice has agreed to change the law and the amendment was baked in an investigation that would suggest the necessary steps for such a change. The changes were removed recently from the rest of the investigation, and presented in advance of the Minister of Justice Ash late in January 2009. Although the slow legislative process has been disappointing, as the government / Justitedepartementet already agreed on the necessary changes that will enhance the investigative ability of law enforcement officials.
Rick's comments:
This is data storage. This is the so-called "Step 2" of data storage that Beatrice Ask announced last Thursday - when the traffic data storage went from being confined to serious crimes to include bötesbrott as file sharing. It is not an obsolete telegram, but the government is still in the tick of their checklist.
Now, the Parliament may, at least, with hindsight, vote down this job order from foreign power business interests.
The checklist says:
Abolish budbärarimmuniteten so that ISPs are liable when copyright infringement occurs over their networks, and that such be placed in the transfer itself.
The embassy says:
6th Industry Consulting and liability for ISPs: Swedish government held a series of industry meetings in the summer and autumn of 2008, with the explicit objective to discuss a voluntary industry agreement between ISPs and rights holders. Industrial Relations reported that the ISPs were reluctant (they claimed it was impossible) to act this way voluntarily. The first round was completed in autumn 2008. Ministry of Justice are currently working internally to get to a second round with a clear incentive to get to the results, namely, the threat of legislation if an agreement is reached. There is some resistance in the Ministry of Industry against this, and negotiations are under way at senior levels in government offices.
Rick's comments:
This is one of the ugliest ways to destroy the Internet as we know it. If budbärarimmuniteten disappear, if ISPs are held accountable for what their customers are communicating, they will censor the net hard and mercilessly completely outside the law. It's just like the Post would be responsible for what is carried in the mail, or by the telephone company would be liable for aiding and abetting as planned on the phone. They would only allow certain pre-determined, approved and safe things to be said. "Press 1 to say goodbye.". Otherwise, they held themselves accountable for everything that was said.
The concept is completely foreign. The only thing that really helps somewhat against file sharing is killing the entire Internet, and this would be such a measure. Christopher Kullenberg comment in more detail.
Copyright industry lobbying body Netopia working intensively with pressure around this and call it the 'middleman liability' to make it sound positive.
Concluding remarks
So here we have it. Everything in black and white.
This takes, as Christian Engstrom writes, a little time to digest. But now we know that politicians lie, all the time. Everything was simple custom orders to violate Swedish citizens to benefit American industry. Just as we have said since 2006, but not really had evidence that everything is connected like this clearly.
Please forward this to all the way to go.
Talk to you soon again,Rick

The History of Santa Claus and Other Name Brands

"Most people can agree on what Santa Claus looks like -- jolly, with a red suit and a white beard. But he did not always look that way, and Coca-Cola® advertising actually helped shape this modern-day image of Santa." That is a quote from Coca-Cola's website, from a page titled "Coke Lore".

Indeed, Santa did not always look that way. He did not always appear as a jolly fat man in a red suit, with his trademark red hat with the white poof at the end. In fact, he did not always appear in any "one" way. Instead, as the Coke Lore site explains, Santa's look ranged from "big to small and fat to tall. Santa even appeared as an elf and looked a bit spooky"

According to the Saint Nicholas Center, Alexander Anderson drew Santa for its first Saint Nicholas anniversary dinner on December 6, 1810. See directly above.

Thomas Nast, a civil war cartoonist, drew Santa for Harper's Weekly. It was a far cry from the Santa that Coke created. See directly above.

Maybe the presence of cocaine in Coca-Cola early in the life of the soft drink helped. If the quasi-ownership of Christmas's central character isn't enough, Coca-Cola has remained viable through anti-Semitism. Coke created a brand called Fanta Orange in order to keep up its sales to Nazis during WWII.

Coke's branding genius is not in a league of its own. Listerine began its life as a floor cleaner, an anti-septic, and a treatment for gonorrhea. Then, the branding strategists created the word "halitosis", and sales took off. Kleenex became famous for its ad campaign "Don’t Carry a Cold in Your Pocket", but the tissue brand started by advertising its products ability to remove makeup.

So, brands change, with advertising... The more effective these ads are, the more likely the company is to rebrand itself.

Getting Paid for Every Word You Text...

What if you could make money for each word that people text to eachother on their smart-phones? I think it's possible to monetize the auto-correct spelling feature of these phones. There is a chance that this is already being done however, because of its concealed and very subtle nature.

As a lawyer, I spent precious few of my daily text messages talking about the bar. When I did text the word 'bar', it was often because I wanted to stop studying and have a barbeque. So, I would hit up my friends with a text. I would take out my HTC Hero Droid phone and type in, "Barbeque and Nazi Zombies?". But, on the HTC Hero, as soon as one types in "Barb", the phone gives "Barn" and "BARBRI" as suggestions for the word you are trying to type. Thus reminding me that I had to wake up early the following morning for 4 hours of video-taped classes.

For those of you who don't know BARBRI, it is the name of one of the popular bar study courses - it is a trademark. It is unlikely that BARBRI is aware of Droid's generous execution of its auto-correct software. If BARBRI was aware, it would probably be alright with this use. In fact, BARBRI and other trademark owners would probably pay for Droid's auto-correct to suggest that trademarks are what the phone user "intends" to type into a text.

Imagine if Facebook could expose you to it's brand every time you type "face" into your phone. With my Droid, if you type "face" followed by the letter 'b', 'n', or 'v', one of the suggestions for what you intend to type is indeed "Facebook". Thus, Facebook "owns" the real estate of two letters of the alphabet that aren' even in its name. I'm not sure if Facebook knows of this generous execution of Droid's auto-correct code.

This auto-correct code could be created in such a way as to suggest trademarks based on the trademark owner who paid the most. Every time you type "dont", your phone tells you that you must be typing "Sony", and Droid gets a nickel because you were exposed to the trademark. Well, right now Doird probably doesn't get anything, but it could...

Try typing the word "stood" into a Droid phone. Does the phone ask if you are trying to type its name - "Droid"? My phone does. If you write the code that tells people what they mean to type, then it's easy to play favoritism with yourself.

The code could be written so that if I type Pepsi, it suggests Coca-Cola. At least it could be written that way if Coke were Droid's customer. Otherwise, it should suggest Tab.

Boardwalk Empire - Public Domain At Its Best

So many of us are drawn into alternate realities, often, by television, the
ubiquitous media that permeates the human race. But basic cable hardly offers
what we crave. Enter Home Box Office (HBO).

HBO was responsible for the Sopranos, the show about a New Jersey gangster
and his family, which ended three years ago. It is also responsible for the new
gangster show, Boardwalk Empire. HBO also broadcasts Entourage, the show based
on Mark Wahlberg’s experiences as an up-and-comer. HBO can also claim Oz, Sex
in the City, and Six Feet Under as its own productions.

After watching episodes of each of these shows, it becomes apparent where
the producers can save money without the audience really noticing. Because if
there is one thing you want to avoid as a producer (at least if you are
postured like HBO), it’s the appearance of frugality. Viewers do not want to
watch a show and say, “Wow, they must have done this for very little
money,” because if they did, firms like HBO would hardly be able to
justify their premium on top of cable. In fact, many viewers attain
satisfaction from a show, such as Boardwalk Empire, when they watch the show
and think that everything in it came with a large price tag
All of these shows have the commonality that, if they are successful,
advertising can be sold, product promotions may become common place, and there
is also the holy grail of syndication. These are all ways to save and make money,
but they do not appear (at least no pervasively) until the show has enjoyed
some success. Also, advertising, clothing promotions, and syndication are
usually noticeable, even by the less than discerning viewer. Even Joe Schmoe
knows when he’s seen enough advertisements, when every character drinks a
Coca-Cola with the label showing, or when he is watching a rerun.

So, how does HBO save money while still convincing the average viewer that
no expense is being spared? By taking advantage of the public domain. The
public domain consists of works that are not protected by copyright or related
rights, and it is free for anyone to use.

For example: in one of the birthday episodes of Entourage, the guys all sing
the song: Happy Birthday. This is an expensive undertaking because Happy
Birthday is under copyright and is owned by AOL Time Warner. The ownership
interest is worth about $2 million per year. Elsewhere
in the same episode, the guys can be seen watching an old black-and-white
movie. The movie is likely in the public domain, meaning that the expensive
license acquired for the right to sing Happy Birthday was offset by the free
license for use of the movie.

In Boardwalk Empire, use of the public domain is more apparent, especially
in its wonderful soundtrack. Boardwalk’s music consists of several songs that
are likely from the public domain: “So Long, Oo Long (How Long You Gonna
Be Gone)”, performed by Seabreeze Park Wurlitzer Band Organ, was written
by Al Bernard in 1920; “Battle Hymn of the Republic”, performed by
Vince Giordano and the Nighthawks, was written by Julia Ward Howe in 1861;
“Tenting On the Old Camp Ground”, performed by Seabreeze Park
Wurlitzer Band Organ, was written by Walter Kittredge in 1863; “Some of These
Days”, performed by Sophie Tucker, was written by Shelton Brooks in 1910; “String
Quartet No. 5 in F Minor” was written by Joseph Haydn in 1772; “By the Waters
of Minnetonka”, performed by Zen Confrey, was published by Thurlow Lieurance in
1913, but he borrowed the melody from an older Indian song; “Good Morning,
Judge” was recorded by Sophie Tucker sometime between 1920 and 1922; “Don’t
Take Away Those Blues” was originally performed by Flo Bert between 1920 and
1928; “An Old Fashioned Garden”, was first performed in the early 1900s by
Olive Kline; “I Never Knew I Had A Wonderful Wife”, performed by Vince Giordano
and the Nighthawks Feat. Stephen De Rosa, was written by Lew Brown and Albert
von Tilzer in 1919; “Fascination”, performed by Craig Duncan, was written by
F.D. Marchetti in 1905 and published in 1932.

Songs published prior to 1923 are presumptively in the public domain,
meaning that you or I could use the same song and make a profit from it. The
songs published well before 1978 are in the public domain if their copyright
protection has lapsed. That doesn’t mean that you can download the songs as
performed by the artists on Boardwalk Empire. But you could use the sheet music
as you wish, which is what the producers of Boardwalk did. The producers of
Boardwalk paid good musicians to perform the public domain songs for use in the
television show. Thus, the producers were able to remove the cost of having to
pay for a license to use the underlying sheet music by taking advantage of the
public domain.

Additionally, any of the publicity rights associated with the characters
represented on Boardwalk are likely free to exploit, as many of the characters
depicted, such as Al Capone, died decades ago. The story for Boardwalk Empire
was lifted from a factual history of New Jersey written by Nelson Johnson,
which was experiencing slow sales at the time, and was likely lifted at a
relatively small cost for that reason. Facts are very similar to works in the
public domain because neither are protected by copyright – copyright protects
not facts or ideas, but the expression thereof. Thus, I submit that the show,
which seems lavish, and really is, is also not as expensive a production as one
would think at first view. Like many shows, it takes advantage of the public
domain. Like few shows, it does it with seamless elegance.

Misunderstanding Intellectual Property

Every Saturday morning, I go to The Bagelry at UNH and meet with other NH lawyers. Two Saturdays ago, I was made aware of an effort by a hotel owner to trademark "Mount Washington" (apparently, I should read the Bar News more often). Of course I asked for elaboration, and I learned that a Florida based company, CNL Financial Group, was trying to get a federal trademark registration after buying the hundred-year-old Mount Washington Hotel. Further, CNL is now trying to get other local businesses to stop using the words "Mount Washington" in a way that truthfully advertises their goods or services.

NH, as a state, likely owns the identifier "Mount Washington" in the same way that Idaho potatoes are from a defined region in Idaho, Champagne (real Champagne) only comes from a defined region in France, real Feta comes only from Greece, etc. The premise of this argument is that when a region of the world is responsible for the quality of the goods or services, that region, and not an individual entity, owns the trademark. Thus, if you own a store in the Mount Washington area, you should be able to affix the name "Mount Washington" to the store's signs as a truthful indicator of source. However, if NH doesn't even try to claim ownership, it is unlikely to be awarded the rights to "Mount Washington".

People also seem to continually conflate the terms patent and trademark. From an Associated Press news post: "Larry Magor, managing director of the hotel [that is claiming exclusive rights to "Mount Washington"], said the company is trying to protect the resort's identity, not patent the name." Of course the company is not trying to patent the name - patents are for inventions and they haven't invented anything. Perhaps having such management is the reason that CNL hasn't asserted its trademark rights already.

The local newspapers covering this issue are not asking the right questions. Fosters said in an article on November 16, 2010 that: "Florida-based CNL Lifestyle Properties said Tuesday it has revised its application for the trademark to say it's just for lodging services, such as a hotel or inn." This quote is misleading because CNL has applied for not one but six trademarks at the US Patent and Trademark Office - none of these has been amended recently. The first application (Serial Number 76690738), which has never been amended, is to be used for retail services, not lodge services. The second application (76690740) is for restaurant services - it was amended two years ago. The third application (76690735) is for entertainment services - it was amended two years ago. The next two applications (76690739 and 76690736) seem to be for the hotel services. The last application (76690733) is for health spa services, and it was last amended two years ago. It seems that Fosters didn't dig enough.

Another local station, WMUR, reported on the topic: "'We're not about trying to put a fence around the name 'Mount Washington' as it could relate to other businesses," said Stephen Rice, senior vice president of CNL. "Those properties have nothing to fear.'" Given the sever applications listed above, it appears that CNL is trying to build a fence around the name "Mount Washington" but the confusing nature of intellectual property allows him to say the opposite, and few people have the wherewithal to dissent.

Most people believe that one cannot have a trademark unless one registers it. This is not true. As soon as you use a mark, like "Mount Washington", you can ask later users of the mark to stop if the later use is likely to be confused with your use. So, considering CNL is claiming in its trademark applications that the mark was first used in 1902, why have they been silent on owning the mark until filing a federal application? Answer: people ascribe too much value to federal applications and registrations and are unwilling to rely on their common law rights. Seems to me that laches may apply in such a way as to bar CNL's assertion of ownership of "Mount Washington".

This case may be analogous to the Concord Coach, where the world's finest horse-drawn coaches were allowed exclusive rights to call themselves by the name Concord. The argument is that the Mount Washington Hotel offers services which are superior to other hotels in the area, and those "other hotels" should not get a free ride on the Mount Washington Hotel's expenditure of time and money in making its name. The only way for the Mount Washington Hotel to stop others from free-riding is to assert ownership in the mark.

16-bit, Silver Screen, or Lyrics... A Race to Register.

Who owns the phrase: "It's on like Donkey Kong"? Is it the maker of the video game which takes its namesake directly from the quoted phrase? Is it the giant gorilla that dominated the pre-video game era? Or is it the rapper that popularized the phrase in its entirety?

Donkey Kong was originally a game where the player would control Mario, bringing the Italian plumber up a series of ladders and ramps. The player would also have to jump and hammer the barrels thrown by Donkey Kong, an evil Princess kidnapping gorilla. Since its inception, the game has evolved into several spin-offs. Nintendo released Donkey Kong in 1981.

The chain of title of King Kong's intellectual property is well described in Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F. 2d 112, (2nd Cir. 1984): "Universal, a giant in the entertainment industry, maintains that it owns the trademark in the name, character and story of "King Kong." The King Kong character and story, of course, need no introduction. Universal traces its ownership of the trademark from RKO General's (RKO) efforts to exploit the goodwill created by its 1933 film classic of the same name. It asserts that RKO's commercial use of the name and character of King Kong created the trademark; that the rights to the trademark were passed from RKO to Richard Cooper, son and heir of King Kong creator Merian Cooper, pursuant to a judgment resulting from a claim brought by Richard Cooper against RKO alleging that RKO had exceeded the license originally granted by Merian Cooper to make the original King Kong motion picture; and that Richard Cooper subsequently transferred to Universal for consideration the rights he obtained from RKO."

The phrase, "It's on like Donkey Kong" was used by Ice Cube on his acclaimed 'The Predator' album. The first tercet of his song, 'Now I Gotta Wet'cha' reads, "It's on like Donkey Kong. You wanted that fast buck, now I gotta light that ass up." The album came out in 1992.

On November 9, 2010, Nintendo filed a trademark application for "It's on like Donkey Kong". One can find the application in a search at USPTO.GOV. The application is filed under Section 1B of the Lanham Act (Trademark Act), which means that it is not based on use of the phrase in selling anything. However, trademark law allows one to register a trademark with a mere intent to use that mark, as opposed to actually using the mark to sell video games in interstate commerce (Section 1A). Thus, Nintendo, although it claims the phrase has been used to describe its games, isn't willing to swear on it.

On November 21, Nintendo will be releasing Donkey Kong Country Returns and actually using the phrase in commerce in its likely pervasive ad campaign. After that date, Nintendo is likely to amend its trademark application to amend use, effectively converting the 1B (non-use based) application to a 1A (use based) application. The importance of the distinction between 1B and 1A filing bases is that only that latter will have any real commercial viability. An application wherein use is never alleged (the trademark is never used in commerce) can only remain an application for a total of three years. But, twelve days is all Nintendo needed to be first in line for federal protection of the phrase, "It's on like Donkey Kong". This protection would preclude Universal Studios and Ice Cube from making any video games using the same famous phrase.

They’re Coming to Get You, Barbara. You Didn’t Reserve Your Rights.

In 1968, George Romero finished his film “Night of the Living Dead.” While first theatrical distribution of the movie was taking place, the title of the movie was changed from “Night of the Flesh Eaters” to “Night of the Living Dead” soon before theatrical release. In the process of changing the title of the film, the Walter Reade Organization (in charge of the theatrical distribution) neglected to add the notorious (c).

Thus, the film was released theatrically in 1968 without a claim to copyright. Under the applicable law of the time, the owner of a copyright lost all rights to a work if he did not affirmatively claim copyright in the work’s initial publication, so the movie immediately lapsed into the public domain. Since this time, the movie has been one of the most downloaded feature length movies extant in the public domain.

This draconian law of forfeiture led the motion picture and music industries to lobby Congress for greater copyright protection during contemplation of the Copyright Act of 1976 and, eventually, accession of the United States into the Berne Convention in 1989. The result of this extensive lobbying effort caused a great change in the paradigm of copyright. Where every work was presumptively unprotected before  (because a work would lapse into the public domain absent an affirmative claim to copyright), after the accession to the Berne Convention by the US, works were presumptively protected.

Indeed, the Berne Convention obligates countries to abandon requirements of formalities in gaining copyright protection for their works. Having no formalities means that copyright protection attaches to a particular work as soon as a work is created. No formalities also means that no paperwork needs to be filled out to maintain copyright protection. In the current state of the law, a copyright holder need not claim copyright or maintain copyright, he only needs to create. Upon creation of a protectable work, copyright attaches and remains for the life of the author plus 70 years.

In order to be in compliance with the Berne Convention, the US was required to remove all formalities form its copyright law. As the word “formalities” includes those applicable to securing copyright and to maintaining copyright, the norms of copyright registration and copyright renewal after a specified term were removed. Thus, as soon as a creative work is created, it is protected irrespective of whether it is registered; renewal is now automatic. The end result of these new laws is that any and all creative works are protected for 70 years after the death of the author.

One of the major flaws of these new laws is that permission is now presumed to be required to use a work, as copyright attaches at the creation of a work, not to any formal requirement. Also, the public domain will not grow significantly until 2018. However, in celebration of the public domain and some of its pioneers, like Eric Eldred, I am screening Night of the Living Dead at my school this Friday.

A Taste of Their Own Medicine...

I don’t know if I am the only person to have seen an analogy between Amanda Knox’s trial in Italy and the Sacco and Vanzetti trial in New York in the 1920s. It seems like Italy paid us back for what we did to their nationals so many years ago.  Not that I think Amanda Knox is innocent, but I think there were problems with her trial. Apparently though, this is not the only recent event to set the world’s Karmic realignment straight.

We have all noticed, and hopefully not been subject to, the Recording Industry Association of America’s (RIAA) unscrupulous pursuit of filesharers and other infringers.  The Recording Industry has, almost without equivocation, gone after non-commercial downloaders for the maximum awards of damages available under the Copyright Act.  This pursuit has been one-way only, at least in America; which brings me to my analogy.

The Canadian Recording Industry has recently been sued for infringement (irony) in a class action. Specifically, the defendants in this case are the four main members of the Canadian Recording Industry: Sony BMG Canada, Warner Music Canada, EMI Canada, and Universal Music Canada.

The infringement stems from the Canadian Recording Industry’s practices on its compilation releases. When the above named record labels decide to release a compilation CD (think of “NOW That’s What I Call Music”, only the Canadian version), there are many songs they include in the release but don’t clear the rights to. Thus, when many songs are put onto these compilations, the labels simply place them on a “pending” list – as in “the right to use these songs has not been granted, but hopefully will be in the future.”

According to the Toronto Star, the plaintiffs are asking for $60 billion. That should teach the Recording Industry of Canada an equal but opposite lesson to the lesson the RIAA has “taught” to people like Joel Tennenbaum, Jammie Thomas, and the like. I will keep an eye on this one for any interested readers…

In the Immortal Words of Gary Gilmore and NIKE, “[Just] Do It.”

“Just do it.” This is one of the world’s most famous trademarks, and any reader will know that products bearing the phrase are NIKE products. However, not many people know where this phrase comes from.
The phrase, “Just do it,” was thought up by the advertising agency, Wieden and Kennedy. Wieden and Kennedy is an independent ad agency, started in 1982. It is located in Portland, Oregon, and is famous for its work for NIKE. Dan Wieden, one of the founders of Wieden and Kennedy, credits an interesting source for the creation of the phrase, “Just do it.”
On a not so unrelated note, a man was executed in Utah last Friday morning. Ronnie Lee Gardner was executed by firing squad on Friday, June 18, 2010. When asked if he had any last words, he replied, “I do not. No.” Does anyone think that the last words of a condemned murderer are ripe grounds for trademark goodwill? In Ronnie Lee’s case, perhaps not. But Utah’s death row is the source of the NIKE trademarked phrase, “Just do it.”
In 1972, the Supreme Court ruled that the death penalty was unconstitutional. In 1976, the Supreme Court reinstated the death penalty in a case called Gregg v. Georgia, and Utah immediately wanted to put down one of its inmates who had very recently been convicted of armed robbery and murder. This man’s name was Gary Gilmore, and he would be the first to die under the reinstated death penalty.

Gilmore murdered a gas station employee and a hotel manager. The murders took place after car thefts, assault, and robbery. Growing up, he struggled. His mother and father told him that he was illegitimate, and that he was actually the son of Harry Houdini. His father earned a living selling advertising space in magazines, perhaps helping to secure Gilmore’s place as the source of a world famous trademark.
On January 17, 1977, Gilmore was executed by firing squad. He requested that, following his execution, his eyes be used in corneal transplants. It is rumored that Gilmore’s uncle smuggled some Jack Daniels whiskey into the prison for Gilmore to imbibe prior to execution.
After Gilmore was shot by the firing squad, his brother reported that five holes were left in the body, rather than four. Thus, the firing squad did not have the traditional “blank” loaded into one of the guns. In the memoirs of the brother, titled Shot in the Heart, “the state of Utah, apparently, had taken no chances on the morning that it put my brother to death.” When Gilmore was asked for his final words, he said, “Let’s do it.”
This phrase became famous in pop culture. Gilmore’s life (and death) became the basis for a movie, where Gilmore was played by Tommy Lee Jones. Gilmore inspired one of Jack Nicholson’s performances, in a movie called The Postman Always Rings Twice. An episode of Saturday Night Live featured a skit with a Christmas song satire called, “Let’s Kill Gary Gilmore for Christmas.” Gilmore inspired a UK top twenty hit, called “Gary Gilmore’s Eyes.” In a deleted scene of an episode of Seinfeld, Jerry says, “Well, in the immortal words of Gary Gilmore, ‘Let’s do it.’” In an episode of the television show Roseanne, Darlene is asked if she is ready to get married, and she says the same thing that Seinfeld said, quoting Gilmore.
While this list of references to Gilmore is not exhaustive, it is certainly highlighted by Wieden and Kennedy’s use of the phrase, “Let’s do it,” when crafting NIKE’s “Just do it.” Gary Gilmore, the convicted murderer and armed robber, who gave away his corneas, got drunk before getting shot, and was lucid enough immediately before being shot to use a very catchy phrase, would live on in the goodwill of NIKE.
When an article about Gilmore’s death caught the eye of Dan Wieden, he changed the contours of the phrase slightly, and it became, “Just do it.” Thus, a condemned man, who was drunk, who donated his eyes, and was in a rush to just do it (i.e., be shot by five bullets), inspired Dan Wieden to create NIKE’s famous trademarked phrase. One of the most popular phrases in the world has a dark pedigree that seems to have faded over time. The “goodwill” attached to the phrase is likely worth billions.

European Parliament Votes to Lower ACTA Opacity

Social networking is great. How else would a third-year law student become “friends” with a member of European Parliament (MEP) if not for Facebook?
An MEP from Scotland happens to be my Facebook friend. After Nick Sarkozy implemented his “three-strikes” laws in France, the Scottish MEP made his voice heard, which caught my attention. He, along with many other MEPs, believed that one’s internet access should not be terminated unless there was a prior judicial ruling – in contrast to Sarkozy’s laws, which allow termination of internet access at the administrative level. This was around the time that ThePirateBay was shut down, and its founders sentenced to prison and ordered to pay damages. The MEP even had a web page advocating his position, with links to his Facebook page. Naturally, I clicked on his Facebook page and added him as a friend.
Now for the topic of this post: the Anti-Counterfeiting Trade Agreement (ACTA) – a far reaching and secretly negotiated treaty that may soon come into effect. This treaty, lobbied heavily by the motion picture industries and recording industries, has vast potential when it comes to reducing civil liberties. For example, the ACTA may subject you to searches of your laptop’s hard disk contents before any international flight (also applicable to iPhones, mp3 players, phones, and anything else that is arguably a computer). Or, imagine if Comcast could terminate your internet access permanently without a court of law having to say you did anything wrong (which is the state of affairs in France thanks to Sarkozy).
This treaty has been under secret negotiations since 2008. On March 10, 2010 however, the European Parliament voted for “maximum transparency”, among other things. My Facebook friend sent me the debrief from his group staff member:

“with an overwhelming majority of 633 : 13 : 16, the ACTA resolution was carried. The key Par 3 on transparency was carried even with 651 : 3 : 16 votes.
This overwhelming majority had been our Green political objective from the beginning, and we achieved it. However, it has not been easy, and it is to be seen whether this unity will hold in the upcoming months of the political struggle on the contents of ACTA and the (transparent or opaque) way it is negotiated.
Nightly backdoor deals and strange demands for separate and split votes had made the outcome of the vote doubtful until virtually the last minute. Many of our Green MEPs had to intervene on many fronts at strange hours; thanks to them all, wholeheartedly. They made that the first victory on ACTA is ours.
On the controversial issues, we obtained a sufficient majority:
- against EPP/ECR, the second part of Para 2 on the democratic legitimacy of the of the EU engagement in the ACTA negotiations was carried with 363 : 292 : 5
- our Amendment (together with ALDE) critizising the “calculated choice of the ACTA parties” to negotiate outside the frameworks of WIPO or WTO, was caried by the narrow margin of 331 : 326 : 8 (sorry, no RCV avaliable on this)
- our key amendment (together with SD) calling to continue ACTA negotiations but limit it on just the issue of Counterfeiting of Trademarks or Geographical Indications (hence cutting the entire dimension of copyrights and patents out of the ACTA negotiations) was carried with a large majority of 513 : 129 : 17. This is arguably the most important content message of the entire resolution, on which we need to build in the coming months. It was equally the paragraph on which the nightly skirmishes had focussed
- our amendment together with SD, ALDE and GUE to guarantee access to legitimate, affordable and safe medicinal products, including generics and innovatives, was carried by a grand majority of 573 : 60 : 22, proving again that the 5 year old EP unity on TRIPS and Health still holds.
Moreover, a GUE amendment was carrie calling on ACTA negotiators to establish a clause that no individual can be cut off of the Internet without a prior court case (346 : 306 : 12). This is important in the follow-up to the Telecom Package (though in the frame of the ACTA resolution the point is slightly out of frame, since we have the resolution say that ACTA should not have any clause on “three Strikes” in the first place.
As soon as RCVs are available, we will give you a more detailed picture about the contested items.”

In other words, European Parliament voted for transparency, voted to limit the ACTA negotiations to Trademarks and Geographical Indications, and voted in favor of establishing a clause in the ACTA so that no individual can be cut off of the Internet without a prior court case.
This is not the final word on the issue of the ACTA negotiations. The effect of this vote is basically a statement of the position of Parliament. They have expressed their wishes in the context of the ACTA, but do not have absolute legislative authority in the European Community, and even less authority when the rest of the prospective signatories to the ACTA (those situated outside of the European Community, like the US) are considered. The European Parliament and the Council of the European Union together form the bicameral legislative branch of the European Community, thus requiring the Council to approve the votes before the positions voted for may become effective. However, there has been talk of the European Parliament bringing a complaint to the European Court of Justice in the event that its resolutions do not carry their intended weight.
In summation, European Parliament has taken a position on transparency of the negotiations – it wants the negotiations to continue with maximum transparency. European Parliament also took a stand against laws like Sarkozy’s – it does not want a user’s Internet access to be terminated without a prior judicial ruling. Finally, the Parliament voted to limit the negotiations of the ACTA to trademarks and geographical indications.

An Idea to Extend Back End Video Game Sales

I am writing this post because I currently do not have the wherewithal to implement a system like the one I am about to propose. Instead, I seek to explain the system so that perhaps someone will implement it. To illustrate the system, I will be using the example of the video game Call of Duty: World at War. For those of you in the audience who have never heard of/played the game, I will explain the generalities of my proposition as well as the specific way it would work with World at War. I believe that this system would be beneficial to the developers, publishers, producers, and distributors of video games, as well as the end users.
When the video game, Call of Duty: World at War first came out, all kinds of sales records were broken. Although some of the novelty of the game had worn off after the launch date of the title – as is true with most games – the sales were spurred by release of new maps that players could manipulate. Additionally, players of the game found out that, when the “Campaign” mode in the game was completed, a mini-game would be unlocked. That mini-game is called “Nazi Zombies”, and many of us are quite aware of its existence.
The inclusion of the new maps and the “Nazi Zombies” mini-game effectively prolonged the commercial viability of the game. Purchasers of Call of Duty were likely to at least try the mini-game, “Nazi Zombies”. Those people who tried the mini-game and liked it were potential purchasers of all the new maps that were released for it. Thus, the inclusion of the mini-game meant that at least some of the end users would download the extra maps.
For those of you who have not played “Nazi Zombies”, it is a first person shooter game set in the same place and time as the full version “Campaign” (ie World War II in the European and Pacific Theaters) of World at War.  In “Nazi Zombies”, players are placed within a bounded area and wave after wave of dead Nazis or Japanese soldiers turned zombies attack from the surrounding area. The players have to fend off the zombies with weapons from the “Campaign” mode which can be purchased using points earned while the player runs through the structure. The player earns points by injuring and killing zombies which can be used as money to purchase weapons and other items in the map.
The point of the inclusion of such mini-games with their full-version counterparts is that sales increase, whether those sales are of the full version game or are back-end sales. Some people (like me for example) have purchased copies of the game primarily for the “Nazi Zombie” mini-game, and then pay more to download the extra maps.  These back end sales are easier to make than new sales; if I sell you a video game for $60, you are more likely to buy a $10 map pack for that game than you are to buy another $60 game – you are already invested and are willing to improve upon that investment before you are willing to invest in something entirely new.
This is the major premise on which my proposed licensing system is based: the more “stuff” included with a video game that can be used to leverage more profit from the end users, the better. But, as of now, there is a limit on what types of “stuff” is included with video games.
Minor premise: If this “stuff” is released at intervals (rather than all at once) in such a way as to give end users piecemeal access, commercial viability of the game can be maximized. In the context of my example with World at War: the game was popular, so it sold well, but the popularity declined in time; the inclusion of Nazi Zombies helped stimulate the popularity, but popularity still declined over time; the inclusion of downloadable map-packs helped stimulate popularity as well, but when end users lose interest in the gameplay of a given video game, map packs only help marginally.
Thus, a typical owner of World at War purchases the game for $60, then coughs up even more money on the back end in order to get the slick new maps (required to play online). In other words, if the end user likes the “stuff” that comes with a video game, he or she is likely to buy all of the incidentals – the back end sales –  and he or she will be satisfied paying money for what is effectively a greater freedom in using the video game.
So, if another extra could be included with games like Call of Duty, wouldn’t commercial viability be further increased? And if commercial viability could be increased, while at the same time adding value from an end user’s perspective, why not release the extra? I believe that there is at least one kind of extra which may still be released – modifications, or mods.
Mods “can include new items, weapons, characters, enemies, models, textures, levels, story lines, music, and game modes.” Right now, mods are only created by developers – “Nazi Zombies” is such a developer created mod. But, back “in the day,” mods created by end users were abundant. In fact, one of the most popular first person shooters of all time, “Counterstrike,” was a mod created by an end user, but which later became a commercial developer-backed mod of the full version game of Half Life.
This could be accomplished in a number of ways. The rights holders of the video games could open up the source code for a fee – so called open source software, or the rights holders could merely allow owners of copies of the games to modify the gameplay, a la Half Life: Counterstrike – again for a fee. Either way, freeing up the end users rights to the video game’s code would create a community for any game that could be modified to create new gameplay. The developers, publishers, producers, and distributors of the game could charge a reasonable fee for freeing up rights to modify the game, and assuming the provision of greater rights gives the game more playability, the commercial viability of the full version game will be increased.
Allowing the end user of a video game to modify its content spurs creativity on behalf of video game fans. End users could modify games so that players could interact in different levels or maps, like in Duke Nukem 3-D. In fact, Duke Nukem 3-D came with a “build engine” that would allow users of the game to create their own maps, complete with new textures and 2-and-a-half-D “sprites”. New textures and characters can be added to a game. New game types, like those in “Counterstrike”, can be added. Weapon characteristics, character types, armor types, and any other configurable piece of code in the game is prospectively subject to a mod, like the PC game Tribes.
When each video game extra costs between $9 and $10 on the back end, selling twice as many due to something as simple as including an interesting mini-game or map pack is a lucrative prospect indeed (at least for the developers, publishers, producers, and distributors). Back end sales are also beneficial to end users to the extent that the video games are decent and the extras sold on the back end somehow improve upon this decency.
These days, rights holders can lock up their content pretty well. They have DRM and the DMCA and plenty of lawyers who do not care who they sue. But, what is the point with locking up the content of a video game that is losing its commercial viability merely because its content is locked up? If users were able to manipulate the code of a game, amateur creators would be allowed to hone their skills in creating modifications of existing games. All parties involved would be benefited; the developers, publishers, producers, and distributors all benefit from a longer commercial life of the video game, and end users benefit from increased playability of video games in which they invest.
Assuming such modifications are made during a time when commercial viability of the original is in decline, the market for the original is likely to be helped, rather than harmed.
The task of freeing up the rights to these video games could be accomplished by allowing users of whatever platform the video game is released on – XBOX 360, PS3, WII, or computer – to download a patch to free up the rights, or simply to download the source code of the game.
Let’s bring back the mods…

WoW is more interesting than Spiderman 4

Recently, Sam Raimi, Kirsten Dunst, and Tobey Maguire pulled out of the upcoming Spiderman 4 movie. The movie, to begin shooting in February, was scrapped when the director, Raimi, pulled out, citing scheduling problems as well as problems with the script. It seems that Maguire and Dunst followed the director (Raimi) in his abandonment of the production. Sony Pictures is none too happy, but has planned for this contingency.

Spiderman 4 will still be released, but will likely be a “reboot” written by James Vanderbilt. It will be a story of a high-school Peter Parker and Mary Jane. It will be interesting to see how the time line works out, considering that Pete was bitten by a radioactive spider pretty late in high-school. Vanderbilt has worked on such blockbusters (insert sarcasm here) as Darkness Falls, Basic, The Rundown, Zodiac, X-Men Origins: Wolverine, and The Losers.

Raimi will instead be working on the movie adaptation of the game World of Warcraft. More precisely, Raimi will be working on a movie to take place in the Warcraft universe. Rumor has it that the movie will be produced by Legendary Pictures, the studio that brought us The Dark Night and 300.

I think that the Spiderman franchise has been slowly weakening since the second movie came out. The third movie was pretty bad, I thought, and Raimi is capable of much better.

Whatever happens, it will be interesting to see if Bruce Campbell (star of the Evil Dead trilogy) will have a cameo in the World of Warcraft movie, as he had in each of the Spiderman movies.

One Way to Pay Off the National Debt

On January 5, 2010, a company called CYBERsitter LLC, a Santa Barbara software company, sued the People’s Republic of China, two Chinese software makers – Zhendzhou Jinhui Computer System Engineering Ltd. and Beijing Dazheng Human Language Technology Academy Ltd., and seven major computer manufacturers – Sony, Lenovo, Toshiba, ACER, ASUSTeK Computer, and Haier – for misappropriation of trade secrets, unfair competition, copyright infringement and conspiracy.

The bottom line of the complaint is a request for $2.2 billion in actual damages. What is odd is that CYBERsitter is not asking for statutory damages – the type of damages that the usual copyright plaintiffs elect (for more info, GOOGLE “Joel Tenenbaum” or “Jammie-Rasset Thomas”). Instead, the Santa Barbara plaintiff arrived at its figure for actual damages by multiplying the cost of its infringed program ($39.95) by the number of infringing copies (around 56.5 million) – $2.2 billion.

As a side note (assuming CYBERsitter is eligible), if CYBERsitter elected to recover statutory damages, it would be able to collect somewhere between $11.3 billion ($200 per infringement) and $8.475 trillion ($30,000 per infringement). Why CYBERsitter would choose to recover less is beyond this author (unless CYBERsitter is ineligible). Considering our national debt is around $12.3 trillion, CYBERsitter could really do us all a solid favor by suing for statutory damages.

CYBERsitter is an internet filtering program that keeps net surfers from accessing certain websites.

This is one of the largest (non-frivolous) copyright suits that this author knows about, and it comes in the wake of the Chinese government’s attempted mandate of internet censorship. Last year, China decided that by July 1, 2009, all computers in the country would need to include a program called Green Dam. Before that critical date; however, some researchers from the University of Michigan discovered that the Green Dam program used approximately 3000 lines of code from the CYBERsitter program, and did so without the consent of the rights holders.

Green Dam was required to perform functions very similar to those of CYBERsitter, namely filtering. But China’s filters would not be limited to pornography and obscene material.

It was discovered (by the University of Michigan) that the program censored not just internet pornography and obscene material (China’s stated purpose for the inclusion of the Green Dam program), but also politically relevant content. Thus, a household in China would be blocked from viewing articles about the Tiananmen Square massacre, Tibet, the Falun Gong religious group, or one of around 6500 other politically oriented keywords. Not just material of a pornographic or obscene nature, like with CYBERsitter.

The backlash caused by the unveiling (by the University of Michigan) of the sovereign’s infringement as well its subversion of its own stated purpose has caused China to renege on its commitment to country-wide censorship of the internet. Thus, the Chinese government’s mandate of internet censorship software in all computers within the country did not meet its deadline of July 1, 2009.

If you are interested, check out the complaint or CYBERsitter’s press release.