We just rolled out the Wikia Search blog a few hours ago. We’re hoping to use it as a vehicle for surfacing the Wikia Search project, but also as a place for the community to discuss the project and web search in general.
Some posts to check out:
Check it out and grab the RSS feed.
Today, CenterNetworks has a post up about Twiddict, whose logo is emblazoned here on the right. Twiddict uses a red cross in their logo, and the Red Cross — yes, the humanitarian organization — demanded that they remove that part of the logo. As a Twiddict founder noted in a blog post, per the Red Cross, “the only third parties allowed to use the red cross emblem in their logo are the ones that have been doing so since before the year 1905.”
That’s true.
It’s also special — really special, in fact. While most corporate marks are protected by copyright and/or trademark, the Red Cross is protected by a specific federal law, 18 U.S.C. 706, which states:
Tags: trademark
One would think that Microsoft’s $240 million investment in Facebook — at a valuation at a ridiculous $15 billion — would give them some fringe benefits. You know, like maybe a preferential app placement, integration of MS Live Search or MSN Messenger, or at least some stickers.
Or… not. As shown by the screenshot above, Facebook does not even list Internet Explorer as a compatable browser. Here’s the page for those of you who would accuse me of playing with Photoshop, as discovered by a friend of mine while using some other browser (and no, not IE).
Firefox? Check. Opera? Check. Safari? Check. Heck, let’s even throw Flock (!!) in there. But IE? Nope. We can’t — we’re keeping it real.
But thanks for that $240,000,000.
Tags: facebook, microsoft, strange stuff
I was not going to post anything about Louis Vuitton beating eBay in a French court — to the tune of $60MM+ in damages — but one of my favorite blogs, Marginal Revolution, posted something on which I commented. My comment is below:
I interned at a women’s accessories manufacturer in their legal department (not one involved in the suit, from what I can tell). Part of our job duties entailed searching through eBay for what we thought were fakes (and typically, it was easy to spot with as little as a day’s training), email eBay via their VERO program, rinse, repeat.
What’s interesting is that the number of pure counterfeiters was very low. What I mean by that is simply that each “counterfeiter” sold, on average, under three or four fake handbags over the course of, say, 3 months. Those who sold multiple counterfeits were easily identified and shut down, unlikely to return anytime soon. So basically, there are no arch criminals who are (a) selling counterfeits (b) on eBay. More likely — and I think this is obvious — there’s a handful of downstream providers who are making and selling these fakes; those fakes end up in then hands of various women across the country; and sooner or later a percentage of them end up on eBay via a number of channels.
But if there are few, if any, eBay sellers whose business is reliant on counterfeits to any appreciable degree. And these eBay sellers are obtaining the bags via tag sales, estate sales, at thrift shops, in association with consignment shops, etc. That is, they’re picking up used bags and making a best (albeit bad) guess as to the validity of the logo on the bag; they are *not* going to Canal Street in NYC and knowingly buying a fake Louis Vuitton handbag (or 50).
So I wonder: is counterfeiting of women’s accessories any worse today than it was pre-eBay? It seems the answer is “not appreciably.” The bags for sale on eBay, by and large, were purchased used. The consumer who originally purchased the bag almost certainly did not calculate or internalize the re-sale value of that bag when purchasing it, so it’s unlikely that the demand for counterfeit handbags went up because of eBay. The person selling the bag on eBay, again, probably isn’t knowingly or appreciably in the counterfeiting business, so that person also has a minimal effect on the demand for counterfeits.
This isn’t to say that, for brands like LV, fakes on eBay are a non-issue — that’s a topic for another day. But the real problem here for the brands isn’t eBay, and that’s pretty clear.
If you want more anecdotal evidence that I’m right, check out this auction for a “vintage Dooney and Bourke handbag”. I have no idea if the bag is legit, but if it is, I doubt the seller knows. The seller is not selling anything else and appears to have sold only stamps/coins beforehand. Most likely, the bag is something she or a friend had lying around and figured could fetch a Hamilton or two, never thinking about the market for fake goods.
Tags: trademark
I
I was called for jury duty on Monday. In New York City — and maybe state-wide, I’m not certain — you are expected to serve for the greater of one trial (which can go on for hours or weeks) or two days. How it works:
In my case, I never made it to step two. Three trials were called but the third panel never reached trial; maybe the case settled, maybe the parties went the bench trial verdict, who knows? Just over 100 of the 500 people were called — I was not one of them. In fact, during the two days, I spoke a total of two words to the clerks: “Oops, sorry,” after one noted that I failed to sign my summons.
For 400 of the 500 people in attendance, the experience was mostly the same.
Let’s assume that the average salary (including benefits) of these 400 people is $31,250. That’s probably very low but I’m being overly cautious. Let’s also assume that these 400 people did no work whatsoever for the two days in question. That’s unfair, but the bias is taken care of by the previous downward assumption. Finally, let’s assume that each person is paid for working 5 days a week for 50 weeks/yr — that’s a full-time job (ignoring holidays) and assuming 2 weeks paid vacation. In other words, each person gets paid to do 250 days of work a year.
Those people are getting paid to <i>not</I> work when they are called for jury duty, so the total economic loss is $100,000 for the two days. The math, for those who are so inclined:
400 people * 2 days = 800 people-days
$31,250/person/year divided by 250 = $125 per person-day
800*$125 = $100,000
Assuming this happens weekly, the economic cost of entirely idle would-be jurors exceeds $5 million annually for New York City alone. In the greater scheme of things, it is not all that much, but there should be a way to dramatically reduce that number. The immediate idea? An email/phone blast which notifies an appropriate, randomly selected percentage (in this case, ~50%) of the 500-person pool the night before, informing them that they are excused from service for one year and need not appear — or at least a utilization of the call-in number provided on the summons to reach the same goal.
Tags: law
Today, Michael Arrington made a lot of hay about the AP sending mutliple DMCA takedown notices to the Drudge Retort, a collaborative politics blog. Retort founder Rogers Cadenhead
summarizes the matter. To summarize: Users of the Retort copied small snippets (~50 words) of AP content and linked back to the content. The snippets were there to give an introduction to the full article, and also to spark a conversation hosted at the Retort about the facts being discussed by the article. The AP responded by sending takedown notices to the Retort for seven of these alleged infractions.
In response, Arrington, in his well-commented blog post, calls for a boycott on quoting and/or linking to AP stories. Why? Because in part, he claims, the AP “do[es] not want people quoting their stories, despite the fact that such activity very clearly falls within the fair use exception to copyright law.”
But as a professor of mine used to joke, it is almost axiomatic that, when a lawyer or judge makes a naked assertion that a law or legal theory “obviously”, “clearly”, etc., the matter is anything but clear or obvious. That is not to say that the use of the content on the Retort was not fair, but simply that the question is closer — a lot closer — than Arrington and the parade of commentors suggest. In other words, the AP may be wrong on the law, but they may also be right.
Before I continue, let me make clear that I think the AP is acting uncommonly silly by fighting against this tide — they can’t win, and even if they do, they may be doing themselves more harm than good. But that does not mean they are, legally, out of bounds. With that aside, let us look at the four fair use factors.
17 USC 107 sets four fair use factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The first factor is arguably the most important insofar as fair use jurisprudence is concerned. But over the course of decades of judicial gloss, really has little to do with the “commerical” or “nonprofit” dichotomy. Now, the question focuses more on to whether the use is “transformative”. The Stanford Copyright & Fair Use page asks two questions to help determine if a use is transformative
(a) Has the material you have taken from the original work been transformed by adding new expression or meaning?
(b) Was value added to the original by creating new information, new aesthetics, new insights and understandings?
I can’t imagine either is the case. Contrast the use on the Drudge Retort itself with, ironically, the use on Cadenhead’s wrapup blog post. The latter one discusses the allegedly infringing use in the context of discussing how uncommonly silly the AP is being. The words are given new meaning and new insights are being drawn, as the value of the words is to discuss the validity of the AP’s claim. On the other hand, the original copying of the words lacks transformation — the author was, mostly if not entirely, simply relaying the news as discussed in the AP’s article. That was what the AP was trying to do, to.
In my book, this factor goes to the AP.
Number two — “nature” — deals mostly with whether the copied work is factual in nature. This goes to the Drudge Retort submitter, as the AP is reporting (we hope) the facts of the matters discussed in their articles. Note that this factor not dispositive, as “facts” and “content which is factual in nature” are not synoynms. Facts in and of themselves earn the author no copyright protection, but the expression of facts does deserve protection de jure
I’m going to skip #3 for a bit and turn to #4. So bear with me for a moment.
The fourth factor asks whether the use “deprives the copyright owner of income or undermines a new or potential market for the copyrighted work” per Stanford. This one should be easy — AP, hands down. First, local newspapers often use snippets of AP articles in lieu of the full article — sometimes, as few as 50 words. (If you are in New York, pick up an amNY or Metro near a subway stop. You’ll see 10+ per issue.) Second, the AP could very easily — and probably should — create it’s own Digg/Mixx/Retort/etc. for AP stories.
Unfortunately, some bloggers flip the test on its head, stating that “little quotations posted by bloggers are not stifling demand for the AP’s product. Bloggers are creating demand, not decreasing demand by creating replacement supply.” That is a great point and I would guess that it is also the reason why Arrington et al are rightfully up in arms. But it does not help the Retort’s case as much as my argument above hurts the Retort. The AP would likely argue that the blogger quoted above is simply wrong, and that the Retort’s use does, indeed, stifle demand for the AP’s product. After all, why should the small-town newspaper or other AP subscriber pay for the content that the Retort uses for free? The AP has every right in the world to limit the supply — that’s exactly the point of the monopoly power of copyright. They do so, in theory, to increase revenues. While they may be doing a bad job there, I can’t imagine that the Retort would be able to use that fact as a way to triumph on factor four. So, this one goes to the AP.
So let’s hit the third factor.
The analysis under the third factor is both quantitivative and qualitative. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218 (1985). Harper is not directly on point, but the tenet of law holds — if you use the “heart” of the content, this factor is not going to favor you.
The quantitative analysis helps the Retort — at most, the clips were 79 words long. No argument there. But whether the Retort users took the “heart” of the content is up in the air. Here’s the test I propose: Let’s say that there are two Retort posts dealing with the same story. One copies the AP headline verbatim and adds no other description. The other uses the first 50 words of the article as well. Which does more page views? Which does more click-thrus? Which has more comments? Using these three metrics, we should be able to tell if the user hit the heart. If the latter does more page views and comments but proportionally dramatically fewer clicks, that is good indicator that the “heart” is there on display. After all, why bother reading the whole thing if you already read the good stuff?
My formula may be off — but that’s OK. The point is that the third factor is more in play than we would facially believe. So unless one is willing to adopt a bright-line rule that a quantitatively small uses of content which is factual in nature is an ipso facto fair use, the AP has a claim. It’s not necessarily a winner, and it’s foolish for them to pursue it, sure. But it’s there nonetheless.
Tags: Add new tag, copyright, law, Online Copyright Infringement Liability Limitation Act
On Friday of last week, I went to order a water cooler for our office.
Being a technophile, I tried to do it online first, via Poland Spring. After filling the cart, I go to check out. Delivery information? No problem. Billing information? Uh oh.
Wikia’s billing address is in, apparently, an unrecognized town in an unrecognized state. You, me, and anyone with even a cursory knowledge of the United States would know of the state — it’s one of the better known ones (sorry, Tennessee). Many Americans with an eighth grade degree would, similarly, be familiar with the city. Why Poland Spring’s website did not is anyone’s guess, but nevertheless, I was unable to order a cooler online. So I called their 800 number instead, and was pleasantly surprised at how simple it was. The water cooler, three five-gallon bottles of water, and copious amounts of cups were to be delivered on Monday.
At around 1 PM, the delivery man arrived. At 1:30 PM, our carpet was soaking wet.
I immediately called the 800 number again. The helpful person at Poland Spring — really, their customer service people are great — told me that he’d dispatch the delivery man to come out and check the problem; if the water bottle were defective, he would fix it on the spot (by replacing it), but if the cooler itself had a leak, I’d have to wait a day. And they’d pay to clean our carpet and make whole whatever else was damaged (as of this writing, a stained wall hanging) by the leak. Fair enough.
Until the driver called me, informing me that he was near the tunnel (Lincoln, Holland, Brooklyn Battery, Queens-Midtown, take your pick) and did not want to come in. I explained that he had to — I mean, it may be as something as simple as a cracked bottle. No, he assured me, it was the cooler. “How do you know?” I asked, innocently.
To paraphase his response: “I noticed a problem with one of the tubes.”
To quote the rest: “I figured I’d chance it.”
More amused than angry — how ridiculous! — I called Poland Spring again. End result: a new water cooler was on its way for tomorrow, and we were now given three months of free service. Plus a replacement water bottle for the one now almost entirely soaked into our blue carpeting.
By noon today, the water cooler delivery man had returned with another water cooler. He had left the extra bottle on the truck and promised to return ten minutes later with it; he failed to fulfill that promise. Worse, within thirty minutes, the cooler started making loud banging noises, as if a mouse had crawled into the machine and started to play pinball inside it. Growing pains, we figured (or rather, hoped in willful ignorance), until a co-worker filled his cup using the cold water tap.
Out came water so hot that his cup began to melt.
Back to the phones with Poland Spring, and cooler number three is on its way tomorrow. So is the carpet cleaner and two new bottles of water to replace those destroyed or otherwise lost via not one but two errant coolers.
Hopefully, this will be my only post — ever — about water coolers.
Tags: strange stuff
Barry Ritholtz has a post up highlighting the below image by Erik J. Heels which sums up copyright law rather well.
The flash card view is a good overview (although obviously incomplete), and Ritholtz’s overview is mostly accurate. I think I’ll be showing people that “flash card” from here on out.
What kind of person buys this t-shirt? I mean, other than the graduate him or herself?
Don’t get me wrong, I’m sure it’s an inspiring story, and makes for great television or what have you.
Estimated # of sales: 2.
Tags: strange stuff, t-shirt of the day
When you have a hammer, everything looks like a nail. — unknown (at least to me!)
A real-life example, from Twitter of all places.
Sarah Perez (of ReadWriteWeb fame) sends a “tweet”, asking:
hmmm. used a pic in a post & have no idea where it came from-downloaded it ages ago,trying to relocate,see if it’s CC,can’t find-what to do?
I replied, claiming it was an orphan work (of course!). Sarah clarified:
I never used it before-just saved it from the net ’cause it looked handy. no idea when,where,etc
So, to recap:
If you re-read the text of the bill floated by Senator Leahy, the image seems like it is on its way to being an orphan work. If Sarah makes a “reasonable and appropriate search” and jumps through some other minor statutory hoops, it sounds like she is safe from statutory damages.
That seems wrong, doesn’t it? At some point, Sarah found the image online, and we can reasonably assume that there is a good chance that at that time, she was able to identify the author of the work. But for her decision to not record the author’s name/contact info at that time, the work is now an orphan? That can’t be right. And indeed, if you do a blogsearch on “orphan works”, you’ll see that the photo-blog community is up in arms over the legislation, probably because of examples like the above.
If Leahy’s bill were to become law, hopefully the judicial gloss atop the legislation would require that the failure of the user to know the owner’s identity be measured against the “reasonable person” standard as is common in American jurisprudence. That is, would a “reasonable person” — a misnomer, typically defined as the most unreasonably careful and polite person on the planet — have acted in such a fashion? Factors will probably include the amount of time that has passed since the item (or its rights) were originally procured; whether there was some change of ownership, etc. And if the user were not “reasonable” (again, a loaded word), they do not gain the immunity from statutory damages that Leahy’s bill would provide.
If that does not happen, then the legislation as-written is rather awful. How could the author protect his or her right to statutory damages? A few ways, all of which are cumbersome or interfere with the work itself:
None of those are realistic beyond what makes sense already. In other words, artists should sign their work if they are able, but oftentimes, the publisher does not want the artists name on a photograph (for good reason), so demanding attribution on the artwork itself would hamper the ability to sell right to the work. Registering with the Copyright Office is a long process and a costly one in volume; the reason that one receives copyright over their works in a fixed, tangible medium automatically was part of the copyright reforms originally due to this cost. And assigning liability for downstream use of artwork in the rights assignment contract? Well, if you were the publisher, would you take on that liability? I’d not.
It’s easy to see why photogs are up in arms over this, and the reason is simple: Congress was intellectually lazy. Looking to the courts to define “orphan work” is unfortunate, but if the legislation passes, hopefully they will define it correctly.
Tags: copyright, law, orphan works, publishing
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From the Wikia Search Blog: