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.