How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet; Los Angeles Times, June 1, 2017

Art Neill, Los Angeles Times; How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet

"In a recent Times op-ed article, Jonathan Taplin of the USC Annenberg Innovation Lab claimed that an “ambiguous“ fair use definition is emboldening users of new technologies to challenge copyright infringement allegations, including takedown notices. He proposes rewriting fair use to limit reuses of audio or video clips to 30 seconds or less, a standard he mysteriously claims is “widely accepted.”

In fact, this is not a widely accepted standard, and weakening fair use in this way will not address copyright infringement concerns on the Internet. It would hurt the music, film and TV industries as much as it would hurt individual creators...

Fair use is inextricably linked to our 1st Amendment right to free speech. We are careful with fair use because it’s the primary way consumers, creators and innovators share new ideas. It’s a good thing, and it is worth protecting."

The Rise and Fall of Yik Yak, the Anonymous Messaging App; New York Times, May 27, 2017

Valeriya Safronova, New York Times; The Rise and Fall of Yik Yak, the Anonymous Messaging App

"At the end of that year, Mr. Droll and Mr. Buffington laid off 60 percent of their employees, and last month, they shut down the operation, selling off intellectual property and employee contracts to Square Inc., a mobile payment company, for $1 million. A few months earlier, Hive, a college-based chat app with a similar color scheme to Yik Yak’s, popped up in the iTunes and Google Play stores, with Mr. Buffington in one of the screenshots. Whether it was an attempt at reinvention under the Yik Yak umbrella or a side project is unclear, but it is no longer available...

Morgan Hines, who will start her fourth year at Northeastern University in Boston this fall, never encountered nastiness on Yik Yak. “I thought it was funny,” she said. “It formed a lot of camaraderie between students. There would be random shout-outs to things happening on campus, like people who are attractive or being annoying in the library, or a fire alarm going off at 4 a.m.”

But Ms. Hines criticized Yik Yak’s hyper-localization. “Yik Yak was for pockets of people on campus,” she said. “If the fire alarm went off at 4 a.m., it only went off at your building, so no one else will give it a thumbs-up.”

That hyper-localization is also what made the cases of harassment particularly galling. Ms. Musick, one of the plaintiffs, said, “With Yik Yak, in the back of your mind, you know they’re not from around the world or other parts of the state, they’re right there in your classroom, in your dining hall. On a campus with 4,500 students, that’s a pretty small group of people. This isn’t some creepy guy in his mom’s basement in Indiana.”"

Episode 774: Unspeakable Trademark; NPR, Planet Money, May 26, 2017

[Podcast] Jacob Goldstein, Ailsa Chang, NPR, Planet Money; 

Episode 774: Unspeakable Trademark

"Warning: This episode has explicit language, for unavoidable and soon-to-be obvious reasons...

Today on the show, a fight over a band name that turns into a fight about free speech. It goes all the way to the Supreme Court."

Asian-American Rock Band Denied Trademark For ‘Disparaging’ Name; KDKA.com, April 27, 2017

Julie Grant, KDKA.com; 

Asian-American Rock Band Denied Trademark For ‘Disparaging’ Name

"The government’s position is that the trademark registration program and trademarks generally have not historically served as vehicles for expression; they are meant to identify the source. The law is set forth in the Lanham Act which states that registration can be refused if a trademark is disparaging. Dr. Rooksby believes the provision is too arbitrary and will be invalidated by the court.

According to Rooksby, “I think Simon Tam should win the case. They’ve made a compelling argument that this provision of the trademark law is unconstitutional and this is because it’s too arbitrary. How do you apply it? What is something that’s disparaging?”

While the court weighs the arguments, the band has released an EP titled “The Band Who Must Not Be Named.” A decision is expected by the end of June."

'It's a lot bigger than the band': The Slants challenge ruling rejecting trademark for their name; Pittsburgh Post-Gazette, April 27, 2017

Paula Reed Ward, Pittsburgh Post-Gazette; 

'It's a lot bigger than the band': The Slants challenge ruling rejecting trademark for their name

[Kip Currier: Fascinating panel discussing Lee v. Tam case and broader issues of trademark law and free speech. The Slants performed after the panel. I spoke with the defendant, Simon Tam, who was a member of the panel and did a masterful job using "story" to make his points, and he insisted that the rest of the band sign the band poster I bought.]

"“I should be able to say what I want to say that my community doesn’t find offensive,” Mr. Tam said. “At the end of the day, it’s a lot bigger than the band.”

On Thursday, Mr. Tam and his bandmates — he describes their music as 80s-inspired synth pop — spoke at a panel discussion at Duquesne University before an evening performance. It’s part of a six-week tour that has hit clubs, law schools, intellectual property workshops and anime conferences.

The tour is to raise awareness of the ongoing court case, Lee v. Tam. In it, the U.S. Patent and Trademark Office appealed a decision by the U.S. Court of Appeals for the Federal Circuit, which found in Mr. Tam’s favor in December 2015.

Mr. Tam’s original trademark application, made in 2009, was rejected because it was found to violate the Lanham Act, which prohibits a trademark if it “consists of matter which may disparage persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute.”"

April 27, 2017 Panel: A Name Worth Fighting For? The Slants, Trademark Law, and Free Expression; Duquesne University, Pittsburgh, Pennsylvania

[Kip Currier: Looking forward to attending this panel--addressing very interesting IP and free speech issues--and hearing the band play afterwards]

A Name Worth Fighting For? The Slants, Trademark Law, and Free Expression

Event Date: 

Thursday, April 27, 2017 - 4:30pm to 7:00pm

Event Location:

• Union Africa Room (3rd Fl.)

Event Audience:

• Alumni
• Current Students
• General Public

Cost: 

$60.00 
$60 or $50 for CLE Program, Reception, and Music

Continuing Legal Education

A Name Worth Fighting For? The Slants, Trademark Law, and Free Expression 

Join Duquesne Law, the Pittsburgh Intellectual Property Association, and the Federal Bar Association’s Pittsburgh chapter for a special program about the rock band that is the subject of a current U.S. Supreme Court case. 

The continuing legal education (CLE) course focuses The Slants, an Asian-American musical group whose trademark application was denied for its use of a term deemed derogatory, and the case Lee v. Tam. 

The program features Simon Tam, the band’s founder and bassist, Hon. Cathy Bissoon of U.S. District Court, Western District of Pennsylvania, and Christine Haight Farley, a law professor from American University. Associate Dean Jacob H Rooksby, an intellectual property professor at Duquesne, will moderate a discussion about trademark law, including whether the band’s choice to claim the name should be protected by the First Amendment.

The CLE will review Section 2(a) of the Lanham Act of 1946, which the U.S. Patent and Trademark Office used to deny the band’s trademark application; the U.S. Court of Appeals for the Federal Circuit’s decision reversing the trademark office’s determination; and freedom of expression issues. 

The U.S. Supreme Court heard oral argument on Lee v. Tam in January. The ongoing legal battle has been covered by the New York Times, NPR, and other media outlets. This CLE will offer insight into the fight by the band’s founder as well as an opportunity to hear the group’s music. A 45-minute concert and light reception will follow the CLE program.

4:30 p.m. – 6 p.m. CLE

6:15 p.m. – 7 p.m. Concert 

Company sued EFF over “Stupid Patent of the Month;” EFF now flips the script; Ars Technica, April 13, 2017

Cyrus Farivar, Ars Technica; 

Company sued EFF over “Stupid Patent of the Month;” EFF now flips the script

"The Electronic Frontier Foundation has sued an Australian company that it previously dubbed as a "classic patent troll" in a June 2016 blog post entitled: "Stupid Patent of the Month: Storage Cabinets on a Computer."

Last year, that company, Global Equity Management (SA) Pty. Ltd. (GEMSA), managed to get an Australian court to order EFF to remove its post—but EFF did not comply. In January 2017, Pasha Mehr, an attorney representing GEMSA, further demanded that the article be removed and that EFF pay $750,000. EFF still did not comply.

The new lawsuit, filed in federal court in San Francisco on Wednesday, asks that the American court declare the Australian ruling unenforceable in the US. Why? According to the EFF argument, the Australian ruling runs afoul of free speech protections granted under the United States Constitution—namely, that opinions are protected.

GEMSA attorneys have threatened to take this Australian court order to American search engine companies to deindex the blog post, making the post harder to find online."

U.S. Supreme Court justices fret over offensive trademarks; Reuters, 1/18/17

Andrew Chung, Reuters; 

U.S. Supreme Court justices fret over offensive trademarks

"The justices during the arguments seemed to agree with the band that the government was favoring some trademarks while disapproving others, a kind of discrimination based on viewpoint traditionally forbidden by the First Amendment of the U.S. Constitution, which guarantees free speech.

But the justices appeared to struggle over whether banning offensive slurs is reasonable in the trademark system, which is used to promote commerce.

Conservative Justice Anthony Kennedy asked the band's attorney, John Connell, whether a group of non-Asians using the name The Slants to mock Asians could be denied a trademark. Connell said they could not.

Kennedy questioned whether the trademark system should be considered like a public park "where you can say anything you want.

In rejecting The Slants' trademark, government officials relied on a provision of the 1946 Lanham Act that prevents the registration of marks that may disparage certain people."

In Battle Over Band Name, Supreme Court Considers Free Speech And Trademarks; NPR, 1/18/17

Nina Totenberg, NPR; 

In Battle Over Band Name, Supreme Court Considers Free Speech And Trademarks

""Vagueness means that a law doesn't give enough instruction to citizens on how to follow the law," Shapiro says. "What is disparaging? It depends on the particular trademark examiner you get, or the particular judge."

Tushnet replies that in a program with 500,000 applications for trademark registration each year, there will inevitably be some inconsistencies, just as there are in the judgments made under the other parts of the law. In each case, she observes, if you get turned down for a trademark registration, you can appeal within the agency. If you lose there, you can go to court.

But she adds that the trademark registration system has served the nation well.

"It's a complex system, and if you pull out a chunk of it without extreme care, you're going to upset the rest of the system."

And that, she says, could put the whole trademark system in jeopardy."

SCOTUS To Hear From Band The Slants For Right To Trademark Name; Here & Now, WBUR, 1/17/17

Here & Now, WBUR; 

SCOTUS To Hear From Band The Slants For Right To Trademark Name

"The Asian-American band The Slants will appear before the U.S. Supreme Court on Wednesday to argue for full trademark rights to their name, which is a pejorative.

The Portland band has won its case in the United States Court of Appeals for the Federal Circuit, in which the court ruled that the Patent and Trademark Office and the Department of Justice is infringing on the group's rights to freedom of speech.

Here & Now's Robin Young speaks with Rebecca Tushnet (@rtushnet), professor of law at Georgetown Law School, about the conflict for rights to the name."

It's Copyright Week: Join Us in the Fight for a Better Copyright Law; Electronic Frontier Foundation (EFF), 1/16/17

Kerry Sheehan, Electronic Frontier Foundation (EFF); 

It's Copyright Week: Join Us in the Fight for a Better Copyright Law

"We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation...

Here are this year’s Copyright Week principles:

• Monday: Building and Defending the Public Domain. The public domain is our cultural commons and a crucial resource for innovation and access to knowledge. Copyright policy should strive to promote, and not diminish, a robust, accessible public domain.

• Tuesday: You Bought It, You Own It, You Fix It. Copyright law shouldn't interfere with your freedom to truly own your stuff: to repair it, tinker with it, recycle it, use it on any device, lend it, and then give it away (or re-sell it) when you're done.

• Wednesday: Transparency and Representation. Copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through back room deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially.

• Thursday: 21st Century Creators. Copyright law should account for the interests of all creators, not just those backed by traditional copyright industries. YouTube creators, remixers, fan artists and independent musicians (among others) are all part of the community of creators that encourage cultural progress and innovation.

• Friday: Copyright and Free Speech. Freedom of expression is fundamental to our democratic system. Copyright law should promote, not restrict or suppress free speech.

Every day this week, we’ll be sharing links to blog posts and actions on these topics at https://www.eff.org/copyrightweek and at #CopyrightWeek.

If you’ve followed Copyright Week in past years, you may note that this year, we didn’t designate a specific day to focus on fair use. Fair use—the legal doctrine that permits many important uses of copyrighted works without permission or payment—is critical to the law’s ability to promote creativity, innovation, and freedom of expression. Fair use is a part of each of this year’s principles."

EFF to Supreme Court: Trademarks are Not Government Speech; Electronic Frontier Foundation (EFF), 12/16/16

Daniel Nazer, Electronic Frontier Foundation (EFF); EFF to Supreme Court: Trademarks are Not Government Speech:

"Today, together with the Thomas Jefferson Center for the Protection of Freedom of Expression, EFF submitted an amicus brief in Lee v. Tam. Our brief discusses an unusual but important question: are registered trademarks government expression? It is important to get the dividing line between government and private speech correct. This is because, while the government doesn’t get to control what you say, it does get to control what it says. As we argue in our brief, categorizing registered trademarks as government expression would threaten speech in many other areas.

The case involves a rock band from California called The Slants."

Erasing the Past From Google Search; New York Times, 11/11/16

J.D. Biersdorfer, New York Times; Erasing the Past From Google Search:

"Q. Is there a “right to be forgotten” in the United States? How do you get false or damaging personal information removed from Google search results?"

Here's Why Software Patents Are in Peril After the Intellectual Ventures Ruling; Fortune, 10/3/16

Jeff John Roberts, Fortune; Here's Why Software Patents Are in Peril After the Intellectual Ventures Ruling:

"Software Patents as a Threat to Free Speech

Friday’s ruling is also significant because Judge Mayer eschews the insider baseball language that typically dominates patent law, and addresses patents in the broader context of technology and government monopolies.

Pointing out that intellectual property monopolies can limit free speech, Mayer notes that copyright law has built-in First Amendment protections such as “fair use” and that patent law must include similar safeguards. He suggests that the safeguard comes in the form of a part of the Patent Act, known as “Section 101,” which says some things—including abstract ideas—simply can’t be patented in the first place."

Sci-Hub Controversy Triggers Publishers’ Critique of Librarian; Library Journal, 8/25/16

Lisa Peet, Library Journal; Sci-Hub Controversy Triggers Publishers’ Critique of Librarian:

"“I was surprised that AAP would take the tactic of trying to say ‘don’t talk about Sci-Hub,’ as if ignoring the problem, or not shining light on it, would make it go away,” Joseph told LJ. “That seems kind of a backwards way to approach this issue to me, because what we’re seeing, frankly, is Sci-Hub really growing in popularity.”

Sci-Hub’s various clashes with the world of scholarly publishing, Joseph noted, is helping to raise awareness of the issues surrounding journal access outside the library walls. “It’s not just a library problem…. When researchers are going to the lengths of using an illegal resource to get access, I think it’s really showing institutions that it’s not a departmental problem. It’s an institutional problem.”

And the problem doesn’t only lie within academia, Gardner added. As a member of ALA, he said, it would be unethical for him to promote Sci-Hub’s use given the constraints of the legal system. “But I do think that copyright is far too strong, and that the system is in need of reform. The reason why services like Sci-Hub exist is because we have a copyright system which is too draconian.”

“This is an area where tempers run high, and I think that reasonable people can disagree,” he said. “There are a lot of people, scholars and librarians, who think that using Sci-Hub is civil disobedience and I’m personally very sympathetic to that argument. But it’s also obvious to me that under the current legal system, this is totally illegal.”

Gardner is working on research that he will present at ACRL’s 2017 conference, again using data from the Science survey to examine Sci-Hub’s potential impact on inter-library loan practices."

Stand Up for Open Access. Stand Up for Diego.; Electronic Frontier Foundation (EFF), 8/9/16

Ana Acosta and Elliot Harmon, Electronic Frontier Foundation (EFF); Stand Up for Open Access. Stand Up for Diego. :

"The movement for open access is not new, but it seems to be accelerating. Even since we started following Diego’s case in 2014, many parts of the scientific community have begun to fully embrace open access publishing. Dozens of universities have adopted open access policies requiring that university research be made open, either through publishing in open access journals or by archiving papers in institutional repositories. This year’s groundbreaking discovery on gravitational waves—certainly one of the most important scientific discoveries of the decade—was published in an open access journal under a Creative Commons license. Here in the U.S., it’s becoming more and more clear that an open access mandate for federally funded research will be written into law; it’s just a matter of when. The tide is changing, and open access will win.

But for researchers like Diego who face prison time right now, the movement is not accelerating quickly enough. Open access could have saved Diego from the risk of spending years in prison.

Many people reading this remember the tragic story of Aaron Swartz. When Aaron died, he was facing severe penalties for accessing millions of articles via MIT’s computer network without "authorization." Diego’s case differs from Aaron’s in a lot of ways, but in one important way, they’re exactly the same: if all academic research were published openly, neither of them would have been in trouble for anything.

When laws punish intellectual curiosity and scientific research, everyone suffers; not just researchers, but also the people and species who would benefit from their research. Copyright law is supposed to foster innovation, not squash it."

EFF sues US government, saying copyright rules on DRM are unconstitutional; Ars Technica, 7/22/16

Joe Mullin, Ars Technica; EFF sues US government, saying copyright rules on DRM are unconstitutional:

""Section 1201 is a draconian and unnecessary restriction on speech and the time has come to set it aside," writes EFF staff attorney Kit Walsh in a blog post announcing the lawsuit. "The future of cultural participation and software-related research depends on it."

"[C]opyright law shouldn’t be casting a legal shadow over activities as basic as popping the hood of your own car, offering commentary on a shared piece of culture (and helping others do so), and testing security infrastructure," writes EFF's Parker Higgins, in a separate post explaining the effects that Section 1201 has on scholars, artists, and activists. "It’s time for the courts to revisit Section 1201, and fix Congress’s constitutional mistake.""

California's Legislature Wants to Copyright All Government Works; Electronic Frontier Foundation (EFF), 5/13/16

Ernesto Falcon, Electronic Frontier Foundation (EFF); California's Legislature Wants to Copyright All Government Works:

"AB 2880 will give state and local governments dramatic powers to chill speech, stifle open government, and harm the public domain.

The California Assembly Committee on Judiciary recently approved a bill (AB 2880) to grant local and state governments' copyright authority along with other intellectual property rights. At its core, the bill grants state and local government the authority to create, hold, and exert copyrights, including in materials created by the government. For background, the federal Copyright Act prohibits the federal government from claiming copyright in the materials it creates, but is silent on state governments. As a result, states have taken various approaches to copyright law with some granting themselves vast powers and others (such as California) forgoing virtually all copyright authority at least until now.

EFF strongly opposes the bill. Such a broad grant of copyright authority to state and local governments will chill speech, stifle open government, and harm the public domain. It is our hope that the state legislature will scuttle this approach and refrain from covering all taxpayer funded works under a government copyright."

Redskins, and Other Troubling Trademarks; New York Times, 5/4/16

Room for Debate, New York Times; Redskins, and Other Troubling Trademarks:

"The Supreme Court may soon take up two cases in which the government does not want to register trademarks it considers disparaging — for the Washington Redskins football team and an Asian-American band called The Slants. The major federal law on trademarks lets the government deny registration to trademarks that are “immoral, deceptive, or scandalous” or that “disparage.”

Is it a denial of free speech for the government to prohibit registration for such trademarks?"

Adele tells Donald Trump to stop pinching her songs for his campaign; Guardian, 2/1/16

Mark Tran and Amber Jamieson, Guardian; Adele tells Donald Trump to stop pinching her songs for his campaign:

"Was there anything artists could do to make sure someone with completely different political views to them stays away from their music?

“Not really,” said Gordon."