Friday, June 12, 2009

Facebook Username Trademark Madness

As has been well publicized, at midnight EDT tonight Facebook will start accepting requests for personalized usernames. See the facebook blog for more details or click here for the registration page. (This was just announced earlier this week, raising some issues about whether the process is fair and appropriate. See the Duets Blog for commentary.)

The site also has a form that trademark owners can submit to try to prevent others from submitting usernames that incorporate a trademark. (See this article from Tresa Baldas at the National Law Journal for more details.) This process appears to be intended for use by owners of federal trademark registrations, as the form requires a registration number. However at least some users have been able to submit the form by putting "N/A" where it requests the registration number.

I haven't found anything from Facebook indicating how they will deal with requests from users who don't own a federal registration. But since trademark rights arise from use and not registration, it makes sense to go through this process for anyone who has been using a trademark and is concerned about someone else trying to incorporate that mark in a username.

Facebook also has a form for submitting claims of trademark infringement or other intellectual property issues. I bet that form is going to be a popular one on Monday morning.

Sunday, May 31, 2009

iPhone vs. Pre . . . A brewing legal battle or just good competition?

The announcement from Palm this week that the forthcoming Pre device will sync directly with iTunes - the first phone not called an iPhone to do so - has sparked discussion about how Apple will react. While it is not yet clear exactly how this will work, the apparent ability to use the Pre device as a personal music player could be seen as a threat to Apple's dominance in the combination phone/music player market.

It's not surprising that Palm would want the new device to feature this iPod-esque functionality, especially considering the fact that Palm's president Jon Rubinstein is credited with developing the iPod during his tenure at Apple. The question is what can and should Apple do about this? Is the cease and desist letter (or, more likely the complaint) already drafted, as some have suggested? After all, the pre-release hype period has already featured legal posturing by both parties regarding whether the Pre would infringe any of Apple's intellectual property embodied in the iPhone interface.

Setting aside the disputes about the touch-screen and other basics of the iPhone user interface that seem to be incorporated by the Pre, what would be the basis of Apple's claims regarding the iTunes sync feature? That, of course, depends how Palm is accomplishing this functionality. According to Jon Lech Johansen, Palm is likely doing this by having the Pre emulate the specific codes Apple assigns its devices to identify themselves to iTunes. (The Johansen article and the comments that follow are well worth the link.) If Johansen is right, can Apple make out a case that these codes are, in DMCA terms, part of the anti-circumvention package protecting iPods and iTunes? If so, this would seem to provide Apple with a legal basis to attempt to block the Pre's iPod-like sync feature.

Perhaps the more interesting question is the business one - should Apple be upset that the maker of a new device touts the ability to sync media from iTunes as one of its main selling points? Or should it just be flattered that the competition has so clearly acknowledged its dominant position?

Thursday, April 16, 2009

All she wants to do is tax?

Ben Sheffner has a great piece on his Copyrights and Campaigns blog about a video parody of Don Henley's "All she wants to do is dance" courtesy of California state assemblyman Chuck Devore. Devore, who is running for Democrat Barbara Boxer's Senate seat in 2010, uses the combination of "animation," alternate lyrics and stock news footage of Boxer to make painfully clear his opinion of her as a "tax and spend" liberal.

Fair use? Maybe.

Poor taste? Probably.

Entertaining? Definitely.

At any rate, it looks like we could be in for another political season featuring litigation over the use of music and other intellectual property in political campaigns. See Professor Justin Hughes' recent article for a look at how the use of songs by Jackson Browne, the Foo Fighers, Heart and others created controversy (and in the case of Browne, a federal lawsuit) during the 2008 Presidential campaign.

Thursday, April 9, 2009

Trent Reznor interview on Digg Dialogg founder Kevin Rose recently interviewed NIN front man Trent Reznor for the Digg Dialogg series. The interview featured questions submitted by Digg users on topics ranging from future NIN projects to Reznor's favorite video games.

Reznor speaks directly and openly about what is happening in the music industry today and about his recent projects that have been released without a major record label. Some recent NIN music has been made available for free or for purchase directly from the band's web site and their most recent Ghosts I-IV project was the top selling album of 2008 on Amazon's MP3 store. Reznor has much to say about this direct distribution model and what it means for both record labels and artists trying to make a living in the future of the music industry.

Regardless of whether you agree with what Reznor has to say, to me there are two pretty amazing things going on here. First, you have someone who experienced a very successful career in the "old world" music industry now following a completely different business model. Of course NIN is not the only established act to try this type of distribution (Radiohead, Prince) but the Reznor interview makes clear that this is not a publicity stunt but rather a working model for how to bring art and commerce together.

Second, not only is an artist like Reznor willing to try something different, but he's also telling about how he does it and plans to do it going forward. This too has the feel of something far different than publicity or promotion. It's more like an open-source, collaborative effort to both entertain and interact, to teach and to learn. Kudos to Reznor for sharing and to Rose for giving him the platform.

Thursday, March 12, 2009

How Marshall Mathers (almost) changed the music business.

Had the recent jury verdict in the case filed by Eminem's production company gone the other way, many believe we could have been looking at a very different digital music landscape.

The case challenged the way digital copies of artists songs are treated when calculating royalties and could have paved the way for other artists to receive millions of dollars more from their record labels. While more recent contracts clarify how these transactions are treated for royalty purposes, contracts that pre-date the onset of digitial download services such as iTunes were typically silent on the issue. FBT Productions, the producers who first signed Eminem, argued that digital downloads should be treated as licenses rather than distributions. Had the Eminem camp been successful, this earlier generation of contracts would have been subject to a new interpretation that could ultimately have led to record companies owing millions of dollars to artists. Such a victory would have created waves felt throughout the industry.

Given that the jury determined that the digital downloads were not licenses of the work, but in fact distributions as the record labels have long contended, does this go back to being a non-issue in the industry? Will labels, artists and other stakeholders now accept that this new form of content delivery is really not all that different from old-fashioned transactions in which a physical product changed hands?

Perhaps for purposes of calculating royalties that will be the case, but then again the finer points of that have already been worked out for record contracts going forward. The real question is have any of the main players in the music industry begun to give serious consideration to how music will be consumed and enjoyed in the years to come? A fight over how to treat digital downloads may seem like a big deal now, but it may pale in comparison to how the world of music is changing every day. Slim Shady may have lost this battle, but the eventual winner of the war is far from certain.

Wednesday, March 4, 2009

Mark Zuckerberg meet John Key

What do the CEO of Facebook and the Prime Minister of New Zealand have in common? They both recently learned firsthand about the growing power of social networks.

Zuckerberg's Facebook recently adopted new terms of service and in the process rankled users and caught the attention of bloggers, web media and internet users everywhere, despite the fact that the new terms were not all that different from those of some other popular networks. The new terms, adopted quietly and without public announcement, appeared to assert ownership of content posted by users of the Facebook service. After news of the change surfaced and spread like wild fire through media outlets, blogs, Twitter and Facebook itself, Zuckerberg posted a letter attempting to explain the changes. That explanation served only as fresh grist for the mill of public opinion being shaped by the technorati, prompting millions of new blog posts, tweets and Facebook status updates. One day later, Facebook announced that it was reverting to its previous terms of service.

In New Zealand, a new law aimed at cracking down on internet piracy received a similarly rude response from the citizens of the internet world. The law, which was slated to go into effect on February 28, would have required ISPs to terminate internet access on the basis of three accusations of infringement. A series of protests organized by the Creative Freedom Foundation called on bloggers, web sites and social media participants to take steps such as replacing their home pages, avatars and photos with blackout screens to call attention to the new law. Sure enough, before the week of protests were over, Prime Minister John Key announced that implementation of the new law had been delayed and that it would likely eventually be suspended entirely.

In both instances, once the pressure of fast growing social media was brought to bear, change happened fast. Neither the founder of the world's most popular social networking site nor the most powerful man in New Zealand could resist the tide of public opinion once these issues caught fire in the disruptive, irreverent and unapologetic online world.

I guess the only question left now is whether Mark Zuckerberg and John Key will become Facebook friends as a result of their new shared experiences.