The Necessaries

Tell you what. Imagine the most contrite and sincere apology for my long absence and failure to maintain the blog.

Read that in here.

--Ben D. Manevitz

Hmmm... Technical Difficulties

For those wondering where all the new content is... so am I.

There are two posts that are supposed to be up here that for some reason... aren't. They looked like they were up to me, but there seems to be something a little goofy with the various permissions, etc. on my webspace - that is, I can see the posts, but no one else can.

A draft version of the second one was up for a little while, but I figured out how to take it down, and now I have to just figure out where the real posts went.

I'll play on Sunday. Things should be fixed then.

For those of you who did so, thanks for checking back, and your patience.


--Ben D. Manevitz

Yay! More Pr0n!

First of all, for those of you who don't know, the misspelling above is intentional. I want this site to show up in a results list when the search is "brilliant IP insights" or the like; I'd prefer it lower down when the search is "Disney Pr0n" (Y'know, not misspelled.)

Anyway. The news...

Reuters reports that the Ninth Circuit today lifted the lower court's injunction in the Google v. Perfect-10 case.

Links and analysis (or more likely, links to analysis) to follow. But I wanted in on the news cycle.

--Ben D. Manevitz

The Fashion Cycle - on Speed.

Diane von Furstenberg's suit against Forever 21 was covered in the press and on Counterfeit Chic back in March. There were a few interesting admissions statements in the article about Forever 21 in the NY Times today.

As a litigator, I'm going to give everyone involved in any litigation the secret! the best piece of advice ever! Ready? Here: Shut Up!

In this case, we've got a statement from the defendant('s representative) to the effect that there are no designers employed by Forever 21, “just very savvy designer merchants.” That's not a case-killer, but it's certainly the kind of statement that's going to help the plaintiffs.

Similarly, "Ms. Boisset of Forever 21 said that the company works with many suppliers and does not always know where their ideas originate." First of all, copyright infringement is a strict liability offense. Second, to the extent that a plaintiff will be able to show that in a particular instance Forever 21 was aware of/in contact with/in control of a particular supplier, protestations of ignorance will hurt in front of a jury. (Of course, the odds are that this case won't get to a jury, but still.)

I'm sure Ms. Boissett didn't mean anything bad. But in two quotes - and more than likely in other things she said that weren't reported but were likely recorded by the reporter - she did some damage to Forever 21's case.

--Ben D. Manevitz

PS: As an ancillary matter, I noted an odd shift in tone as the article progressed. The article starts out as almost a puff piece... Hey, look at this cool, generation-bridging, up-and-coming new store! Happy music; major chords; blue skies and puffy white clouds. La-la-la! But by the end of the article you've got gray skies, minor chords, and the looming lawsuit.

You CAN Copyright a Number. But Not As Such.

Back in February, a hacker named Arnezami made public (on the Doom9 forums) the HD-DVD Processing Key. And the Industry-with-an-evil-capital-I is very upset over that.

Basically, the HD-DVD Processing Key is a special number, necessary (but not sufficient) for the decryption and watching of HD-DVD's on your home Linux box. Which seems fairly innocuous - after all, once I buy a disk, by rights I should be able to watch it on any screen in my house. I use the phrase "by rights" on purpose; the question is clearly covered by the first sale doctrine.

But note, however, that once it's been decrypted, it can not only be watched but pulled apart, copied, redistributed, uploaded, downloaded, sideloaded, whatever. So you can understand why the publication of the information might upset players in an industry with a business model built on, you know, not allowing that to happen so much. Even if the information in question is just a very big number.

Now, per Slashdot, which points to Rudd-O, which used to point to Strange Action at a Distance, but that blog's been squashed... the Evil Industry is attempting to stomp out the information. Apparently, (quoting Rudd-O) "the movie industry is threatening Spooky Action at a Distance for publishing that number, specifically with copyright infringement." According to the quote that Rudd-O pulled off of Spooky Action, the threats are premised on the DMCA.

Slashdot, Rudd-O, Spooky Action, and possibly others are all speaking in terms of the DMCA copyright provisions; There is already some hue and cry to the effect that you can't copyright a number! (Even a number with letters in it, as when converted to hex.)

Now, first and foremost, it's very likely that the threat was not based on the copyright provisions in the DMCA but rather on the anti-circumvention provisions. And that should be the end of this discussion.

But it's worth taking a step back for a minute, and addressing the question of copyrighting a number. Because you actually CAN copyright a number. Just not if you're trying to protect it qua number.

That is, if I figure out some awesome new method for figuring out the next huge Mersenne prime, and then write that up in an article, then under copyright law: I can NOT protect the method I describe; I can protect the article in its particular expression, unless the method is only describable in a limited number of ways, in which case I can't; and I can NOT protect the number itself. Anyone else can come along and point out that the Nth Mersenne prime is 12457...whatever, and I can't stop them. And if they want to represent that number in Hex, it becomes a string of numbers and letters, and I still can't stop them.

HOWEVER. I can protect a number when it's not a number. I remember years ago someone wrote a poem that was made up of fictional personalized license plates. Which would look just like a long hex number, except it's not a number qua number. Or the line from Shakespeare: "2B, R not 2B" On its own, probably too short for copyright protection, but not by dint of its being essentially a string of letters.

I would even claim that if someone wrote an abstract poem, consisting of nothing but a string of numbers and letters that would sound "right" when read aloud in sequence, that would be protected under copyright.

On a more technical level, every document saved on your computer is, in a very real sense, nothing more than a number. It's stored as a series of bits and bytes which the computer generally translates as words or images; but there's nothing that obligates computers to do so. Just for fun, take a small image (it has to be small so as not to overwhelm your computer) and open it in a text editor (Notepad or the not-Windows equivalent). It's a bunch of gobbledygook, but it's something.

(Just a brief nostalgia moment: I remember the heady days of Usenet, when big files were broken up and posted as long, apparently meaningless text files full of hex codes that you'd concatenate and then rename to have your image or music or document or whatever.)

The point is, you can protect a number, in some circumstances. In the instant case, the number is probably being used qua number - it's the answer to a math problem and so is probably not protected under copyright. But then, I reiterate, copyright probably isn't the issue here; the threats are probably being made under the DMCA anti-circumvention provisions.

As importantly, though, what you also can't do to a nubmer is to make it go away by wishing it so. Back in the Summer of 1995, when I worked for the EFF, I helped out (in a one-L summer intern kind of way) with the Bernstein crypto export case.

In that case, I recall, the algorithm in question could, with some rejiggering, be represented as a string of numbers a few lines long. A few times - most often in the spirit of sincere legal analysis and only sometimes in the spirit of stick-it-to-the-man humor - the question would come up as to what the law would (and should) be if, instead of seeking to "export" the source code and an academic paper about the algorithm in question someone had just put it on a t-shirt and flown out of the country wearing it.

Of course, those conversations took place back in the day when if you wanted something a little more professional than using a Sharpie on your Hanes, there were some fixed costs involved. Now we have cafepress. Plus ca change, plus c'est le meme chose. Some young clever has even registered the number as a domain name, and has a nascent blog there.

So, as a copyright question - not protected. And as a practical matter - not protectable any more. I didn't go into the trade secret question, but that's also not going to work to keep the number out of the public's grubby mitts.; Arnezami apparently figured out the code by looking at disks, not by gaining improper access to guarded information.

My first instinct under the anticircumvention provisions is that release and propagation of the number is problematic, but as I write these words, I'm less and less convinced. I'll have to think about it some more... maybe even post a follow-up. It'll come down to the question of whether or not the Processing Key is an "access control" as used by the statute.

And looking at the broader question of copyrighting numbers...

You can copyright a number. Just not this one.

--Ben D. Manevitz

Update: Lots of good coverage out there. Only one link to me, but them's the wages of sin. Or in this case the wages of toiling in obscurity. In any event, I found particularly heartening the coverage at EFF Deep Links, that makes clear that it is, in fact, an anti-circumvention claim, and not a copyright one.

Also - tagging is a very cool and excellent innovation in the blog world. For those of you who don't check the tags on posts you read, it might be worthwhile to check the tags on this one at least. I got it from Slashdot, and I'm guessing I'm not the only one.

Double-plus Un-infringe-ful

In your intrepid adventurer's last missive, I made the overproud claim that Bill Patry, in looking at the small controversy about the Apple-1984-Obama-Clinton ad "just plain misses the point." On reread of Professor Patry's post, I want to back off of that claim for a bit - he mentions what I think is the critical issue, but doesn't give it much emphasis.

(Note, the YouTube link above points to a copy of the mash-up ad; I couldn't find the original, apparently posted by Phil de Vellis, a/k/a ParkRidge47. YouTube also has the original Apple superbowl ad.)

Briefly, the owner of the rights in George Orwell's 1984 (Rosenblum Productions, Inc.) is "monitoring closely" what it claims is the infringement of its copyright by the ad linked above. Analysis on the web - including the weight of Professor Patry's post - tends to look at fair use and political speech questions.

But what's being missed is the more important question: WHAT INFRINGEMENT? Or more to the point, where is the substantial similarity to protected elements of the IP in question?

I was in high school in 1984, so you can imagine that it was a big deal to read the book and write all sorts of insipid essays. But I hadn't read the book since then so I hit the local public library and took it out and read it. Okay, skimmed it. But still.

There's nothing in the ad - either ad - that copies protectible elements from the book. There's no scene of trudging, bemasked drones, no ubiquitous gasmasks, no tube-sidewalks (which actually remind me more of Paris' Charles de Gaulle airport than anything. The book has the ubiquitous screens that the commercial(s) ha(s/ve), and the talking head, and you could make an argument for the whole unitard thing... but not really.

Clearly, whoever owns the rights in the original ad would have some sort of claim against the mash-up. And you could do a fair use analysis in that context.

(Frustrating side-note: there's already the annoying buzz of "Parody!" defense. If this ever comes to a head, I'm publicly begging the lawyers for Mr de Vellis to eschew that claim. It's not a parody. Remember, parody is where an author thinks, "hey, wouldn't it be a funny commentary on Barney if the apparently friendly giant purple dinosaur was actually - or also - a minion of Hell." Satire is if that author thinks, "hey, wouldn't it be a funny commentary on the state of the world if the selfsame dinosaur was being consulted by George W. Bush.")

In all fairness, Rosenblum apparently has rights in a Richard Burton film (warning: obnoxious rollover ad), which I haven't seen. And an opera, and videos, etc. (Per the press release.) I haven't seen those either. But assuming those materials hew sufficiently close to the line set by the book, the copying - or rather the lack thereof - will be the same.

This, folks, is a very good example of the idea-expression dichotomy at work. Orwell's book is a dystopian vision of the near future including an oppressive government, invasive surveillance, and ubiquitous propaganda. That's the idea.

There are a lot of elements within the book that are protected by copyright. Winston Smith, the image of and slogans of Big Brother, that amazing bit after Winston and Julia have made love for the first time, where the thrush sings. That's the expression.

The expression is protected by copyright. The idea is not.

Even though the ad does, at the end, explicitly point to the book to describe the atmosphere it's trying to evoke... there's still nothing in the ad that copies protectable elements of the book.

Which, I guess, is why Rosenblum is only "monitoring closely" and not "filing an action." Because some lawyer, somewhere, has probably done the analysis for them. The analysis that goes, "Sorry, guys. You got a pizza with nothin."

--Ben D. Manevitz

PS: Back in 1984 Rosenblum sent a C&D letter to Apple about the ad and "The commercial never aired on television again." (Per the Rosenblum press release.) Assuming the commercial really was pulled from broadcast, I deeply and sincerely hope that the C&D was not considered in that decision. I'm a little worried, this time, that Rosenblum might simply go with a DMCA take-down notice, a la the NFL.

Long Hiatus. (m'I woN - wards)

So the hiatus went a little long; I've got no real excuse, just that things got a little hectic.

There's some balance in the fact that these posts are relatively long; I'm not trying to for three or five posts a day, more like one or maybe two a week, hopefully with some insight.

So my overlong hiatus really only amounts to one (or maybe two) missed posts. Which, I know, is one or two too many, but still.

The bigger problem is that I end up with a backlog of things to write about, and I'm going to have to just skip some of them.

Also, I want to give a shout-out to Fran, who gave me a little poke in the bum on this.

--Ben

PS: "Now I'm" backwards, less 'wards' = "Now I'm back"