Things are moving along in the alleged trademark infringement case between local frozen lemonade makers Deb’s Lemonade and much-larger Del’s Lemonade up north. Roanoke Times columnist Dan Casey notes how Deb’s has received some local legal backup, and heavyweights, from the sound of them.
But let’s back up. While I might come across as one part naïf and another part ideologue, I can’t help but see the fatalism in the way our justice system handles IP cases such as this. Sure, Casey is just guessing at how much taking this case to court would cost, but if he’s even half right, then our legal system has a real problem.
When a company has been using a logo for thirty-six years, nine years before another company even files for trademark, it shouldn’t take $100,000 in legal paper-shuffling to decide that such a case is groundless. What would be the consequence of ignoring such legal threats until the case went to trial, and then presenting the evidence to a judge sans any lawyers acting in defense?
Would a judge have nothing of it, find for the plaintiff, and call it a day? In other words, is having a lawyer and spending tens of thousands of dollars the new sine qua non for any chance of a favorable outcome?
Probably not. Alas, when we hear about court cases, we’re apt to hear about dramatic cases because drama sells ad space. In reality, if Deb were to spend a whopping fifty cents on a stamp and mail a letter to the Rhode Island-based law firm making the threats and say simply: “I’m not paying you anything. I’m not discontinuing the use of my logo. And (most importantly) GFY,” I doubt it would spell automatic doom for her company. Tens of thousands in lawyers’ fees, however, just might.
Sure, I get it, she’s getting some free counsel, and good for the law-firm standing up for the little guy. But I grow weary of hearing about such cases because it implies a complete disconnect between average citizens and the law governing them. The day you need a lawyer to use the same logo you’ve been using since Jimmy Carter was president is the day our legal system has failed.
Of course, we do harbor silly ideas when it comes to the efficacy of the legal system. We think that threatening to sue someone is the same as successfully suing someone (far, far from it). We believe that every threat a lawyer makes is valid, and that any violation of the law is worth bringing to trial.
In reality, the Deb’s debacle will likely not even see the inside of a courtroom. The whole thing is far too redolent of the typical pay-up-or-else legal hectoring displayed by all sorts of law firms on behalf of rights-holders. But once the rights-holder finds out how much he’d have to cough up in legal fees to take this to trial, especially when it seems he could easily lose the case, it’s more likely he’ll just shake the proverbial fist and say something like: “I’ll get you next time!” or “You haven’t heard the last of Del’s!”
My sincere hope is that – in the meantime – Deb’s doesn’t lose any sleep or any money over it.
Today I read about a trademark issue right here in my city, as iconic Deb’s Frozen Lemonade comes under fire from a New England competitor, Del’s Lemonade. As you can tell from the column, the two logos are indeed similar, though a lemon isn’t much of a stretch as an icon for those selling lemonade. The similar-sounding names and likened cursive font are enough to raise an eyebrow, but here’s the thing. Deb’s isn’t some mom and pop that opened up in the last year, hoping to cash in on Del’s brand recognition (they have none here) or business model. Deb’s has been around for slightly longer than I have: thirty-six years.
By the letter of the law, this doesn’t invalidate Rhode Island lawyer and Del’s attorney Jeffrey Techentin’s claim, though it does bring into question the claim of being confused for Del’s and benefiting from Del’s business. After all, if it took Del’s attorney 36 years to detect the supposed infringement (and then only because Techentin stumbled upon the Deb’s Facebook page) then it’s highly unlikely there is any confusion or effect.
IP law, of course, is as void of reason as any other set of laws, so common sense will have no place in these proceedings. However, it’s an important exercise to consider exactly how trademark protection is operating here. If the purpose of such protection is to avoid brand confusion or prohibit hacks from cashing in on a brand’s good name, then that protection is rather overstepped (as with – no doubt – many, many other cases).
Mind, it’s likely Del’s doesn’t want Deb’s to take down their signs so much as pay them a settlement. Really, how different is Techentin’s scouring for infringement from the antics of ACS: Law and ASCAP? Not very.
The sad truth is that a small shop like Deb’s doesn’t have the financial might to see this to trial, where possibly some reasonable judge (they exist) would throw this out based solely on the number of years Deb’s has been in operation and the number of miles apart the two establishments operate. It’s even possible local columnist Dan Casey will rouse enough media attention to make Techentin and his client back off (his columns have had surprising effect locally).
At the very least, this will mean I will go out of my way to make sure Del’s never sees a dime of mine if every I find myself summering in New England.
For those involved in copyright and who understand Digital Rights Management (DRM), it’s no surprise that Apple has historically done all they can to ensure that media is not shared. On one hand, this is understandable. They sell the media, so it’s not in their best interests to make sharing it easy. One could even argue that making sharing nearly impossible was necessary to form deals with record labels.
There have been worse models (Napster mp3 player, I’m talking to you), but I still appreciate the older Lyra’s or digital Walkman’s, where you could just drag and drop songs onto or off of the device. Getting music off an iPod is difficult. For the lay user, it is impossible.
But on the other hand, Apple has worked hard to make the user experience seem friendly, intuitive, and open. Their ads on television or product placement in films never show someone frustrated at being unable to decipher the arcane way in which data comes off an Apple device.
In a speech by the late Steve Jobs, he threw around terms like “rip” and “own” when speaking of the iPod and iTunes, but this is precisely what Apple DOESN’T want. They want you to buy every song from iTunes, have it on a single device, and rebuy the song when the inevitable happens: a new computer, a new iDevice, failed hard drives – whatever. They are a for-profit business, so this makes total sense. It is, however, perpetually frustrating when people buy into the Apple image.
A friend of mine just bought an iPhone. He’s playing by the rules: bought it new, full plan; no jailbreaking or unlocking for this guy. He used to use an iPod Touch, onto which he poured the contents of his extensive CD collection. The laptop through which he did this is long gone: sold or just mothballed after some part failed.
“But the files are on my iPod. I can SEE them on there. I can listen to them,” says my friend. “Why can’t I transfer them onto my iPhone instead of having to rip all of those CDs again?”
I told him the first rule of iPod or iPhone ownership: select “Manage manage music and videos” on the iTunes homescreen. This will make the device work more like a drag and drop device. It isn’t a fix-all, but it’s a zillion orders of magnitude better than “syncing”. Manually managing files, however, wouldn’t help here. You can’t drag files off your iPod and into your iTunes library. You’ll be greeted with nothing but the Ghostbusters logo (minus Slimer).
My friend has a loose idea of what he is and isn’t supposed to do according to the RIAA, saying that he isn’t trying to make a copy of the songs. He’ll move them from one place to another.
Alas, the only answer is for me to step in, avail myself of some third-party program designed to wrench songs away from Apple’s deathgrip, and put them onto the new device. If I didn’t, what would happen would be much grimmer. My friend would again spend countless hours ripping his music. It is ironic that in neither case does Apple lose or gain money. Same for the rights-holders of the music. All that happens is that another consumer butts against the reality of legal digital media: that it is gated and controlled, only leased for specific pathways.
I don’t expect Apple to suddenly discard their DRM tactics, nor for their adverts to be any more honest than a McDonald’s commercial. I’m just hoping that eventually the default reaction to their DRM will not be confusion followed by compliance, but rather a refusal to play the game by Apple’s rules.
An interesting article on TorrentFreak mentions how – despite the entire fourth season of “Arrested Development” appearing on Netflix recently – it was still a popular download on the torrent sites. Not terribly so, but downloaded a good bit nonetheless. Site author Ernesto asks if this means that pirates really are cheap. After all, who can’t cough up $8 for a Netflix subscription or – better yet – share one with a friend and only pony up half that?
He brings up that the number of downloads doesn’t compare with the popularity of cable-only shows, and while it’s difficult to determine what demand would have been if the shows weren’t on Netflix, it’s fair to say it would have been more.
Dropping down into the comments of this story, however, I think reveals some good insight into the pirate mind beyond the reasons Ernesto posits in his article. For one, while Netflix manages to be both cheap and facilitate time-shifting (much like a DVR), space-shifting is limited to devices that have an Internet connection. Too (and I believe this is the big one) Netflix actually maintains the “copy” of the content. When you watch something on Netflix, it’s streaming; you cannot download it to your local device.
Many pirates have long made a habit of archiving because they don’t know when something might disappear. Consider how – admittedly with some notice – Viacom content disappeared from Netflix recently. And when space-shifting, it’s sometimes easier to adapt a pirated copy to, say, an iPod for a long trip than to work out whether you can stream content somehow.
I believe in Netflix, and I applaud their ability to meet what was obviously a need. Were it up to rights-holders, we would have only cable and DVDs. But I do believe that a strong number of downloads of Netflix content is simply pirates wanting copies for themselves and not a reflection of the staunch unwillingness to pay for any content. Many who pirated the content – in other words – are likely also Netflix subscribers. There’s no way to prove this, alas, but just as it’s silly to count raw numbers of copies pirated and multiply that by MSRP to calculate “losses”, it’s equally silly to think no one who pirated the show also had a Netflix subscription (though this is surely the argument pro-copyright articles citing this example will posit).
That said, there will always be people unwilling to pay a cent for digital content. But frankly, what is to be gained from that market anyway? If they aren’t willing to pay $8 for all the content on Netflix, it’s unlikely any amount of delivery or access tweaking will get them to open their wallets. At that point, does it really matter if they’re watching Gob perform his magic for free?
I recently attended a writer’s conference where one of the classes was on copyright, a sort of “how to protect yourself” that I had attended the year before. That year, it was put on by an archetypically suave IP lawyer who gave a PowerPoint presentation where every slide bore a copyright icon and was about litigation options for “stolen” IP.
In other words, nothing that any of the largely unpublished writers at the conference need worry about, say, ever.
That’s not to say that my fellow writers didn’t construct valuable prose – just that the market for such writing overwhelmingly pays nothing, occasionally paying in contributor copies or perhaps a crisp ten-dollar bill.
The inevitable question arose: Why would I pay $35 to copyright a story that will only net me $10? The lawyer didn’t have a good answer. He thought that perhaps we could compile a collection and copyright everything annually like a photographer might do, but he wasn’t sure.
People left confused and even more afraid of the tortuous realm of copyright law. Job well done.
The rest of this year’s conference acted in beautiful irony to that vapid presentation. (Full disclosure: I didn’t even bother going to this year’s copyright presentation, as I seriously doubted the presentation – though by a different lawyer – had changed all that much, since it was by the same firm).
From the first night and through the following Saturday, copyright infringement permeated the conference. It began with singing “Happy Birthday” for the student photographer. And then, every PowerPoint presentation except for the lawyer’s was in clear violation of copyright.
The class on how media changes how we write was replete with copyrighted images. Another on refining your book sales pitch offered a fitting metaphor of the publication process (Hope, Trial, Relief, and Disappointment) through showing a full ten minutes from the beginning of Raiders of the Lost Ark. Another presenter offered to email an example of a six-figure book proposal to attendees that his publishing house had given him as a guideline.
All of these things occurred organically. None were malicious or for-profit. All helped the presenters as well as the attendees, and all very much violate copyright. Were someone so inclined, he could report the violations to ASCAP or the publishing house or the company from whom the images came and likely earn the conference creators and/or venue some flak. Likely no more than scary legalese on company letterhead, but enough to kibosh any such activity in the subsequent years.
And who would gain by such enforcement? Would presenters take the time to license clips or songs or images? Of course not. They would simply leave them out of their presentations or offer no presentation at all. They would be reluctant to print anything for handouts, dubious about emailing anything out – perhaps even their own proposals or queries or sample chapters, fearful that they might be violating the conditions of their publishing contracts.
We certainly would never sing happy birthday in chorus, no matter the tacit delight of the blushing teen photographer.
So rights-holders and even licensing organizations would gain nothing by letter-of-the-law obedience to copyright here. But who would lose? Clearly. Everyone else.
There’s some talk amid the copyleft and copyright critics about the Motion Picture Associate of America (MPAA) and how its CEO Chris Dodd indicted the use of the term “thievery” to describe copyright infringement.
As much as I’m a fan of showing the disparity among opinions/statements by any trade organization that has held such an integral role in clinging to old models and criminalizing customers as the MPAA, I only wish that this statement meant something.
In truth, it’s not as if Dodd is now going to foster a more pragmatic approach to the “War on Piracy.” He will not – for instance – decide that the MPAA needs to alter its historical hardliner stance against file-sharing, for instance. Let alone make any suggestion that trade organizations may not be the answer to dealing with infringement to begin with (that is, that they have a poor ROI – which they do).
No, I believe this statement to be one of two things: either a hollow attempt to appear flexible or progressive, or simply an off-the-cuff remark not meant to be taken so literally.
The problem with those who profit from bogeymen is that there can never NOT be a bogeyman. There will never come a day when the RIAA or the MPAA or the USTR will suddenly reveal that – all things considered – everything’s running pretty smoothly. They will not begin any discussion by questioning their own historic logic, wherein they have been wrong over and over and over. They won’t suggest that some great evil is about to befall America’s IP industry and then suggest that they could be wrong: that they’ve been wrong so many times in the past that this is just a guess, and not a very good one at that.
I just don’t want anyone falling into the trap of hoping to please anyone whose paycheck depends on bogeymen, because it is a futile effort. Even if DVD or CD sales suddenly saw a massive upsurge, do you think that the trade organizations would suddenly stop playing Chicken Little? Of course not. They would produce the same horrible threats they always have in order to entice legislators and the general public to tighten the digital belt even further. There is no stasis for men like Dodd or any other trade organization figure. No balance that would suddenly satisfy them and stymie the perpetual doomsaying.
I could be wrong. I suppose it’s possible that some MPAA propaganda could begin to excise the word “theft” from the verbiage, and I would be so pleased to see this. But the odds are low.
Just as such organizations have clung so fervently to old distribution and media models, I don’t see them surrendering the “theft is theft” rhetoric anytime soon. Not until there is another catch phrase more egregious, more demeaning, and more effective to apply.
If you’ve been watching the American Idol spin-off show The Voice on NBC then you’ve seen some amazing renditions of popular songs, some across genre, and others creative tributes to someone else’s version (not necessarily the original). What you wont see – even in the live shows – is any discussion of copyright or performance rights.
The Voice has followed in the footsteps of every preceding show with both planned and “spontaneous” performances of pop songs by sidestepping any conspicuous legal barriers inherent in performing licensed music. You might hear the occasional “when clearing this song…” as an introduction to some anecdote, but only once that I can remember in Season Two.
Sure, no one wants to watch a show where they spend half of their time talking copyright, or where a singer wants to perform “When a man loves a woman” but can’t because they couldn’t clear the rights in time, but the consequence is that producing and performing any song at whim seems simple and feasible – as if one need only decide to perform it, and it is there for the taking. What we don’t see is that not a note is played without contractual say-so, certainly in-line not only with the perceived “value” of the song, but also in tandem with what the new version will glean in digital sales. The Voice songs have topped iTunes after each show.
And yet, the verbiage of the “coaches” contradicts this idea. They consistently tell the singers: “You OWNED that song” or “You made that song your own”. When – in reality – not only do the singers have no ownership of the song, they likely have few if any rights to the licensed performance of that song, despite the implicate popularity.
It’s more of the same: where inherently creative derivative works or performances seem naturally to “belong to” the person who did them, but this doesn’t happen. I suppose it’s only good practice for the singers on the show, since – if they go on to deal with people in the music industry thereafter – they had better get used to people getting rich of their talent while they receive little or nothing.
I’m certainly not claiming that The Voice (a very decent show if only because it lacks the infused drama of pretty much every other reality show), is unfair to the contestants. All will be able to cash in on their new popularity, and the winner will receive a record deal and $100,000.
I’m more concerned with how this and so many similar shows portray performances as seamless and natural. How worries over rights are never a factor when choosing a song, but rather the decision is based solely on creative direction. This does a poor job of reflecting the reality of the music industry, and instead showcases a parallel universe where creativity ignores copyright and where artistic license flouts a performance license.
To wit: what’s the deal with Amazon Prime? This three-tiered service costs $80 a year for unlimited streaming, access to their ebook library, and free two-day shipping on some items.
Streaming is certainly a step in the right direction. The more that larger companies continue to license streaming content, the cheaper and broader the selection will become. Compare this with rip-offs like some ISP’s “on-demand” movies that cost $6 apiece. Sure, those films are newer, but for the majority of consumers that are at least partially price sensitive, charging $6 for one streaming session is the same as offering nothing at all (especially for those of us without cable to begin with – a sub-group to which I happily belong).
Prime doesn’t have as many titles as Netflix, but they’re also the new kid on the block. In time, they should build a comparable library. If you’re super-picky, let’s face it: you’re probably reluctant to abandon your cable anyway. But if you’re flexible, you can get much more media for much cheaper with either streaming service.
Skipping to the free shipping: like most services, this is advantageous when used often. If you buy the hell out of media, then it could be a perk of Prime, but that’s not what I’m interested in here.
The most important feature is “access” to the lending library of ebooks. When I read this pitch over quickly, I was immediately impressed. Finally, someone gets it – way to go Amazon! But then the fine print (it wasn’t fine, I have to admit, but it wasn’t exactly bulleted as a feature either). It seems you can only get one ebook loaned per month. This stopped me entirely. What do the huge numbers of available titles really mean when you’ve so completely bottlenecked access?
I understand: few people even finish one title a month; this should be enough, and compared with ebook prices (and considering that ebook sales skirt first-sale doctrine’s right to resale), this is a great deal.
But it’s still fundamentally an approach of exclusion and artificial scarcity. And while they understandably don’t want to give access to unlimited downloads of unlimited titles to everyone on the Net, the Prime model still assumes that the way to do business is to limit what your customers can do. Pick one book out of 100,000? The idea is silly.
What indeed would customers do if allowed unfettered access to the entire collection? Would they suddenly “borrow” hundreds of titles per month and then refuse to buy any? Of course not. And even if they did: what is Amazon selling here? Prime or ebooks? The two needn’t be mutually exclusive, of course, and they wouldn’t be, but perhaps they shouldn’t need to be mutually inclusive either.
But what’s wrong with a more pragmatic model that’s much closer to the way a physical library operates? I love the idea of having unlimited numbers of copies (a bottlenecked which currently affects library ebook loans, alongside horrid DRM schemes), but why have the loan last forever? If someone is a Kindle owning Amazon customer, they likely value their immediate selections rather than their long-term library, especially if it means having higher availability.
Would you rather have any number of books available to you for a limited amount of time, or one book a month for as long as you want it? Most would choose the former, and – importantly – that doesn’t imply that they would stop buying ebooks. I use my local library like crazy, and I can check out a book over and over if I want, but eventually, if it’s a book that I want to read multiple times or one that I need always to have on-hand (or one that I eventually want to give away, though we’re not there yet with legal ebooks services) then I end up buying it.
If they had to restrict access, perhaps the barrier could be connectivity instead of the number of media. Say, Prime allows unfettered access so long as the user is connected, but to have a book available “off-line”, the person might have to buy it. This might sound restrictive, but this is essentially how the successful Steam platform operates. The price of easy shopping, demos, deals, updates, and stability is that you have to be connected. The benny for them is obvious: that they can better know who you are (and thus that you’re supposed to have access).
That said, it would not take long to conjure many more scenarios that beat the pants off of one book per month. It’s still certainly a step in the right direction, but because it employs artificial scarcity, I have to remain critical.
One thing should be clear at the onset: sharing media – embedded or linked to – should not require surrendering your personal data to some third-party application. Facebook makes sharing ridiculously easy. You just paste the URL into your status update, and Facebook even adds a thumbnail image and a synopsis.* For videos, you can even watch the clips inside Facebook. There is no need to abide by the shady terms of some application that supposedly makes sharing easier at the expense of selling out all your friends.
Take an example. Here’s what pops up when you attempt to listen to a music post. Sure, the post LOOKS like you could just play it right within Facebook, and what could be easier? Then you’re presented with yet another access wall, which we’ve come to detest and ignore, simply clicking whatever it demands to move forward. After all, we’ve got Farmville farms to tend to and mafias to run; we can’t be bothered to read pop-ups or even create accounts. We’re just fine using Facebook to bypass nag screens, despite what this means for our own privacy and the privacy of our friends.
Here’s another access wall – this one for Yahoo! News stories. It seems to suggest that to “share the news with your friends” you have to surrender your personal data. I’ve seen other Yahoo! Facebook apps that require even more access, and for what? For a news story that users could just as easily find online and post a link to as share with the Yahoo! app.
Yet another – called SocialCam – requires access to personal data to play a video, even though the scores of embedded YouTube videos all over Facebook fly in the face of such an unnecessary sharing tack.
But notice what it reads at the bottom of each one of these, about posting as you. Isn’t this a little disturbing? Should sharing – an organic and timeless activity – really be coupled with auto-generated, canned opinions about what you’re listening to, or watching, or reading?
Facebook is contrived enough as it is; we don’t need canned updates about whatever media you’re consuming void of any context or users’ actual reason for sharing it.
Because of this, I took a closer look at my own Facebook account, specifically at the apps that were allowed some sort of access. I was surprised to find somewhere around 20 application with some manner of access to my account (and more importantly, my friends’ information). Fewer than half of these did I use on a regular basis. The others I had no doubt carelessly given access many moons ago, and I found that ALL of them had gleaned my updated data no more than a month prior.
So, for that silly little quiz I made a few years back, I’ve been surrendering my own and my friends’ data for countless months.
That sharing or even creating media requires such subjugation is silly. While Facebook is arguably not the freest and certainly not the most anonymous or secure platform for sharing, it does not demand surrendering data to the extent that we’ve been willing to hand it over. We clamor about identity theft and online privacy, but then allow the highest level of access just to view the latest meme pic, falls compilation, or headline news story.
I petition everyone to take a closer look at his/her Facebook settings and to take the few extra seconds necessary to avoid putting shared media behind an unnecessary access wall.
We’re sold out enough by those pushing consumer goods; we don’t need to subject each other to it as well.
I’ve employed a “pay what you want” model, and I’d love to receive some feedback or criticism about the book via the contact form also above.
Thanks so much for reading Piracy Happens, without which I’m certain Pirate Nation would have never been written.