Why is this such a big deal? There are many types of records FOIA requests don't recovery. I don't get to FOIA the medical records and photos of soldiers killed in battle, nor do I want to. Similarly, what morbid reason does someone have to see a photo of Osama Bin Laden dead?
It sounds most like the folks who want this are either the kind who would have collected dead-gangster trading cards in the 1920s or 1.) think Obama is Kenyan or 2.) think the U.S. orchestrated 9/11 to get Iraq's oil.
As for the DoD's use of Gates to handle the requests being against the law, that's not actually true. The law doesn't require a non-partisan group of folks set up to handle FOIA. Rather, the law requires that an agency publish rules, regulations, and fee schedules for how FOIA requests are handled.
Failure to follow agency rules is potentially a violation of the Administrative Procedures Act (APA), however. But that's a totally different thing (and courts have trended towards being more understanding of agencies in these situations).
Further, the photos may be exempted from FOIA for a number of reasons, including 5 U.S.C. § 552(b)(6), which exempts "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]"
Trademark might go as far as to apply to the individual challenges. I can't speak for Takeshi's Castle (I think I've seen it, but don't remember), but I have seen Wipeout USA and Wipeout UK. Imagine if Wipeout USA didn't license the name from the UK folks but kept almost all the same things.
In that situation there might be claim for trademark infringement and unfair competition. The trademark doesn't even have to be a federally registered trademark for this to be the case.
I think, ultimately, this is a case likely going nowhere unless there is another element such as breach of implied warranty or contract. For example, if the Japanese folks or someone representing them pitched the idea to ABC, ABC declined, and THEN ABC proceeded to copy the ideas there might be a claim.
On copyright, however, there is no claim, and the only way to succeed through copyright is to confuse the court.
The question is less of copyright and more of trademark and trade dress. You can't copyright ideas, nor can you copyright facts. However, it might be possible unfairly compete against another by stealing their schtick.
Frankly, the 'smoking gun' memo speaks to ABC's diligence in checking to see if something needs to be licensed or not. It's not earth-shattering.
The real question is if their intent to use the elements of foreign shows and then redirecting Google searches to ABC equivalents is anti-competitive or unfair competition.
Trademark licensing isn't like copyright or patent licensing
People often don't get that Trademarks are very different from copyrights or patents.
Trademarks are used as source identifiers. Their purpose is to communicate to consumers the source of the product or service they are receiving.
The secondary purpose is protecting a trademark holder's goodwill in its name or product names.
Granting licenses to trademarks creates a problem in sourcing. Overly broad trademark licenses can void the mark's protection.
This is because the mark's holder is no longer the source for the product. No longer being the source means you no longer can ensure the quality and nature of the product. This voids, in essence, the source-identifier purpose of trademark rights.
This is not to say you cannot license a trademark for use by others. It is to say, rather, that these licenses must be carefully entered into.
As people have become more and more confused over trademark law, copyright law, and patent law, legislation and decisions have begun to whittle away at the primacy of source-identification as trademark's purpose, but it is still the main reason trademark law exists.
A simple example of its purpose is the Lanham Act. The Lanham Act is the main body of law governing federal trademark rights; and it is a law governing unfair competition.
One question is whether all of the products allegedly infringing trademark truly do so. I imagine many do not. But, then again, who wants to pay $10k+ in litigation costs to find out if they're a small business?
You cannot acquire a copyright unless you fix a copy of a work of authorship in a tangible medium allowing perception of the work at a later date. This is called fixation and is defined in the Copyright Act of 1976 §§ 101, 102.
In other words, you can't claim copyright of a live radio broadcast unless there was simultaneously recorded.
This is also true for live television: The NFL didn't acquire a copyright in the Jets / Green Bay game yesterday unless it was simultaneously recording the game. (Which it was, so it did.)
Simultaneous recording was less frequent in the 1950s. Considering the only copy we have to the play call from the shot heard round the world is a recording from a listener, not the broadcaster, means it is highly likely the broadcaster didn't acquire a copyright.
Interestingly, the person recording does likely have a copyright in the work. It will be thin in the sense it only covers duplicates of the sound recording, but courts have ruled that even millisecond copies of sound recordings violate copyright.
Of course, back in the 1950s the acquisition of a copyright also required you follow proper filing procedures, so no copyright may have been acquired on those grounds.
Re: Re: If there was any validity to this argument...
WalMart might be liable for many reasons. If WalMart is knowingly facilitating the sale of trademark-infringing merchandise then it is liable.
Further, the way WalMart's supply chain works, it is likely that WalMart has had a significant say in how the product looks and it packaged.
Finally, of course it's a money grab. These folks are in a business that is a fad. The value of their product is as much in its mark, SillyBandz, as it is in the product itself. In fact, it's likely more in its mark than not.
It is not unreasonable for them to not want a competitor to make money based upon the value of their mark. It is also not unreasonable to try and prevent WalMart from facilitating this trading on SillyBandz's goodwill.
The question is whether this palming off is actually occurring. It may not be.
LEGO spent a long time fighting fights like this and it all ended up for naught. Of course, LEGO abused the patent process in doing so. This case seems to be more about trademark.
As the Brits of yesteryear would say, at least they've got the right writ this time.
Re: Importance of competition is relevant to copyright questions
I agree with your Trademark assessment (see my own comment), but I disagree with your copyright comment regarding the idea of 'competition is good.'
The non sequitor "competition is good" is relevant to the question of whether copyright lawsuits are good. Copyright chills competition by providing a monopoly on the expression of an idea or fact. The question is the point at which this monopoly is good for the economy as compared to the point at which it is bad. On one hand, it may encourage new expression. On the other hand, it limits the dissemination of ideas.
Trademark, on the other hand, provides a monopoly on a mark used as a source identifier. This is quite different because the expression itself is not (in theory) monopolized. Rather, it is the identity that is monopolized.
So to say you can't fairly compete by using someone else's copyright begs the question of whether copyright should exist, and whether it provides fair competition to begin with. Conversely, as you pointed out, it isn't really fair trying to pass yourself off as a competitor in order to compete -- you should be required to be honest in your identity.
Competition is good for the economy -- but not when competition seeks to trick the public into thinking they are buying something they are not.
That is why Trademark exists -- it is intended to provide customers with a way to identify the source of the products they buy. If I buy a Coke in a Coke bottle with a Coke logo I know it is from the Coca-Cola Bottlers; not some two-bit sugar-water bottling company down the road. I know what to expect (in theory) because Coke's trademark identifies the source of the soft drink.
Here, Silly Bandz has more of a claim to their Trademark being infringed. That's the basis of the too similar package argument references above. Wal-Mart's Silly Bandz competitor is trying to trade it's bands by misleading customers into thinking they are buying Silly Bandz. This is trading on the goodwill of the SillyBandz mark.
Copyright is more questionable. Copyright protects the expression of ideas or facts, it does not protect the idea or facts themselves. Similarly, it does not protect form -- especially if that form is related to its function. (I cannot, for example, design a chair and seek copyright when the chair's purpose is, well, to be a chair.)
The question is what level of expression exists when it comes to Silly Bandz?
Expression can be charted on a spectrum, with the most unique expression having the most clear protection and the least unique expression having the weakest, or 'thinnest,' protection. (See Feist v. Rural Telephone for the U.S. Supreme Court's take on this; it involved the copying of data from a phonebook.)
Exact copying of the band designs would certainly run afoul of Copyright (unless they are purely functional). Non-exact copying is more problematic.
After all, if I draw a stick figure and you draw a stick figure, I am going to have a hard time arguing my expression is so unique that your 'variant' should be found to be a copy and therefore you owe me royalties.
Trademark has less of these problems. SillyBandz, if they win, will prevail most likely in Trademark, not in Copyright.
I agree that it would be huge for Europe, where the national-based licensing scheme is more problematic than in the U.S. (imagine having to license each copyrighted work in each State), but I do not think the pub will win.
Copyright control is left to each EU member. Most likely the court will pass on the issue by saying this is not a matter of trade because no good or service is being sent across borders. Rather, it is a matter of copyright licensing.
Even so, one can always hope. I lived a year in England and SKY's rates were ridiculous. (Which is why I opted for equally, yet differently ridiculous Virgin cable.)
Actually, the debts owed to companies and most individuals are paid from gross profits rather than net. Net profits are often reserved, on a percentage basis, for bit players. For example, the cousin of the studio head who got an associate producer credit but didn't do anything? Net profit share.
An example of the kind of people who do get screwed are actors, writers, and other talent who didn't understand the system and opted to get paid out of net profits. That's definitely unfortunate.
And insulation isn't an illusion for the hundreds of films each year that actually do lose money, and not in the illusory sense highlighted above.
So, in short, the people getting screwed are the people like the guy in Who Wants To Be A Millionaire or Don Johnson with Nash Bridges. It's wrong that their ignorance of the system was abused and take advantage of by Disney and the TV producer for Nash Bridges.
Even so, the fundamental, underlying structure of these productions serves a purpose. Just because that system is also abused by production companies doesn't mean the confusing accounting system is worthless.
The important thing is that the legal system in these two cases is working. Production companies taking advantage of less sophisticated parties and, in some cases, outright lying and misleading those parties were found liable for their actions.
My point, however, is that there is a method to the madness. Feel free to dislike the method, or its results, but the method exists nonetheless.
Oh, and for those who think independent and low budget films don't do this -- you're wrong. Small-budget films often have even more creative, maddening, and abusive structures that tend to harm interested parties.
The reality is that making a movie is often a money losing venture. Doesn't mean its not worth it on some level, it's just not typically worth it on the monetary level.
I think the level of trickery and outright, sometimes even recorded, attempt to cook books in order to avoid paying partners is a problem.
Nevertheless, this accounting madness does have a method -- even if that method is taken too far and abused.
For every movie that makes money, there are multiple that lose money. Having a separate corporation or LLC as a production vehicle allows studios to take on risks that otherwise couldn't be done.
These vehicles insulate major studios and their partners from the risk of losses. Many movies simply cannot be made without this insulation.
Also, studios are not necessarily the primary distributors. There is a lot that goes into movie distribution, especially on an international level, and studios don't completely control either vertical or horizontal distribution efforts.
Finally, financing. Studios are often the primary financing partners in a film such as Harry Potter. They should, therefore, be able to recover costs as quickly or more quickly than other partners. This is the way of financing.
The problem comes when someone negotiates a deal for portions of the profit and does not understand the crazy Hollywood account schemes.
Nothing says that you, as a producing partner or someone else with a stake in a movie profit, cannot negotiate to have proceed derived from a percentage of the revenue, or from a proportional first slice of profit, or from some other source.
Another problem occurs, though, when a studio or some other entity elbows out other partners with a stake in the profit by purposely inflating costs. This includes advertising and distribution costs. Sometimes the reported costs have no bearing on the actual costs.
So, in essence, Hollywood accounting trickery is a bit ridiculous, but it does serve a purpose.
More importantly, if you find yourself lucky (or unlucky) enough to be negotiated with a studio on the profits of a film, it is important to know about the terminology and the ways these tricks work. Otherwise, you may think you're getting a percentage of revenue or profits before cost adjustments when, in reality, you're getting only after-cost profits. Which means you got hosed. And, if you see anything, it won't be until the movie's been out on DVD for 5-7 years.
On the post: Once Again, The Freedom Of Information Act Is Proving To Be Just That: An Act
Seriously?
It sounds most like the folks who want this are either the kind who would have collected dead-gangster trading cards in the 1920s or 1.) think Obama is Kenyan or 2.) think the U.S. orchestrated 9/11 to get Iraq's oil.
As for the DoD's use of Gates to handle the requests being against the law, that's not actually true. The law doesn't require a non-partisan group of folks set up to handle FOIA. Rather, the law requires that an agency publish rules, regulations, and fee schedules for how FOIA requests are handled.
Failure to follow agency rules is potentially a violation of the Administrative Procedures Act (APA), however. But that's a totally different thing (and courts have trended towards being more understanding of agencies in these situations).
Further, the photos may be exempted from FOIA for a number of reasons, including 5 U.S.C. § 552(b)(6), which exempts "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]"
For the record, you can read the law here: http://www.law.cornell.edu/uscode/5/usc_sec_05_00000552----000-.html
Wikipedia also has a good treatment of it.
Finally, this whole post seems a bit melodramatic. Then again, I don't think Obama is Kenyan, so maybe it's just my perspective.
On the post: Can 'Reality' Be Copyrighted?
Re: Re: I don't see this as a big deal . . .
In that situation there might be claim for trademark infringement and unfair competition. The trademark doesn't even have to be a federally registered trademark for this to be the case.
I think, ultimately, this is a case likely going nowhere unless there is another element such as breach of implied warranty or contract. For example, if the Japanese folks or someone representing them pitched the idea to ABC, ABC declined, and THEN ABC proceeded to copy the ideas there might be a claim.
On copyright, however, there is no claim, and the only way to succeed through copyright is to confuse the court.
On the post: Can 'Reality' Be Copyrighted?
I don't see this as a big deal . . .
Frankly, the 'smoking gun' memo speaks to ABC's diligence in checking to see if something needs to be licensed or not. It's not earth-shattering.
The real question is if their intent to use the elements of foreign shows and then redirecting Google searches to ABC equivalents is anti-competitive or unfair competition.
On the post: Trademark Law (Once Again) Getting In The Way Of Fan Art
Trademark licensing isn't like copyright or patent licensing
Trademarks are used as source identifiers. Their purpose is to communicate to consumers the source of the product or service they are receiving.
The secondary purpose is protecting a trademark holder's goodwill in its name or product names.
Granting licenses to trademarks creates a problem in sourcing. Overly broad trademark licenses can void the mark's protection.
This is because the mark's holder is no longer the source for the product. No longer being the source means you no longer can ensure the quality and nature of the product. This voids, in essence, the source-identifier purpose of trademark rights.
This is not to say you cannot license a trademark for use by others. It is to say, rather, that these licenses must be carefully entered into.
As people have become more and more confused over trademark law, copyright law, and patent law, legislation and decisions have begun to whittle away at the primacy of source-identification as trademark's purpose, but it is still the main reason trademark law exists.
A simple example of its purpose is the Lanham Act. The Lanham Act is the main body of law governing federal trademark rights; and it is a law governing unfair competition.
One question is whether all of the products allegedly infringing trademark truly do so. I imagine many do not. But, then again, who wants to pay $10k+ in litigation costs to find out if they're a small business?
On the post: Thank Copyright Infringers For Still Being Able To Hear Great Moments In World Series History
It's probably not piracy
In other words, you can't claim copyright of a live radio broadcast unless there was simultaneously recorded.
This is also true for live television: The NFL didn't acquire a copyright in the Jets / Green Bay game yesterday unless it was simultaneously recording the game. (Which it was, so it did.)
Simultaneous recording was less frequent in the 1950s. Considering the only copy we have to the play call from the shot heard round the world is a recording from a listener, not the broadcaster, means it is highly likely the broadcaster didn't acquire a copyright.
Interestingly, the person recording does likely have a copyright in the work. It will be thin in the sense it only covers duplicates of the sound recording, but courts have ruled that even millisecond copies of sound recordings violate copyright.
Of course, back in the 1950s the acquisition of a copyright also required you follow proper filing procedures, so no copyright may have been acquired on those grounds.
On the post: Elastic Wristband Maker Sues Walmart For Copyright Infringement
Re: Re: If there was any validity to this argument...
Further, the way WalMart's supply chain works, it is likely that WalMart has had a significant say in how the product looks and it packaged.
Finally, of course it's a money grab. These folks are in a business that is a fad. The value of their product is as much in its mark, SillyBandz, as it is in the product itself. In fact, it's likely more in its mark than not.
It is not unreasonable for them to not want a competitor to make money based upon the value of their mark. It is also not unreasonable to try and prevent WalMart from facilitating this trading on SillyBandz's goodwill.
The question is whether this palming off is actually occurring. It may not be.
LEGO spent a long time fighting fights like this and it all ended up for naught. Of course, LEGO abused the patent process in doing so. This case seems to be more about trademark.
As the Brits of yesteryear would say, at least they've got the right writ this time.
On the post: Elastic Wristband Maker Sues Walmart For Copyright Infringement
Re: How about CVS?
But even that packaging is only generic. Most folks don't confuse CVS adhesive strips for Band-Aid brand bandages.
The question is whether the average consumer would confuse these knock-off SillyBandz for the name-brand SillyBandz.
On the post: Elastic Wristband Maker Sues Walmart For Copyright Infringement
Re: Importance of competition is relevant to copyright questions
The non sequitor "competition is good" is relevant to the question of whether copyright lawsuits are good. Copyright chills competition by providing a monopoly on the expression of an idea or fact. The question is the point at which this monopoly is good for the economy as compared to the point at which it is bad. On one hand, it may encourage new expression. On the other hand, it limits the dissemination of ideas.
Trademark, on the other hand, provides a monopoly on a mark used as a source identifier. This is quite different because the expression itself is not (in theory) monopolized. Rather, it is the identity that is monopolized.
So to say you can't fairly compete by using someone else's copyright begs the question of whether copyright should exist, and whether it provides fair competition to begin with. Conversely, as you pointed out, it isn't really fair trying to pass yourself off as a competitor in order to compete -- you should be required to be honest in your identity.
On the post: Elastic Wristband Maker Sues Walmart For Copyright Infringement
Trademark is more appropriate here
That is why Trademark exists -- it is intended to provide customers with a way to identify the source of the products they buy. If I buy a Coke in a Coke bottle with a Coke logo I know it is from the Coca-Cola Bottlers; not some two-bit sugar-water bottling company down the road. I know what to expect (in theory) because Coke's trademark identifies the source of the soft drink.
Here, Silly Bandz has more of a claim to their Trademark being infringed. That's the basis of the too similar package argument references above. Wal-Mart's Silly Bandz competitor is trying to trade it's bands by misleading customers into thinking they are buying Silly Bandz. This is trading on the goodwill of the SillyBandz mark.
Copyright is more questionable. Copyright protects the expression of ideas or facts, it does not protect the idea or facts themselves. Similarly, it does not protect form -- especially if that form is related to its function. (I cannot, for example, design a chair and seek copyright when the chair's purpose is, well, to be a chair.)
The question is what level of expression exists when it comes to Silly Bandz?
Expression can be charted on a spectrum, with the most unique expression having the most clear protection and the least unique expression having the weakest, or 'thinnest,' protection. (See Feist v. Rural Telephone for the U.S. Supreme Court's take on this; it involved the copying of data from a phonebook.)
Exact copying of the band designs would certainly run afoul of Copyright (unless they are purely functional). Non-exact copying is more problematic.
After all, if I draw a stick figure and you draw a stick figure, I am going to have a hard time arguing my expression is so unique that your 'variant' should be found to be a copy and therefore you owe me royalties.
Trademark has less of these problems. SillyBandz, if they win, will prevail most likely in Trademark, not in Copyright.
On the post: Is It Legal For A UK Pub To Access A Greek Satellite System To Get Cheaper Football Games On TV?
Don't have much hope for the pub owner
Copyright control is left to each EU member. Most likely the court will pass on the issue by saying this is not a matter of trade because no good or service is being sent across borders. Rather, it is a matter of copyright licensing.
Even so, one can always hope. I lived a year in England and SKY's rates were ridiculous. (Which is why I opted for equally, yet differently ridiculous Virgin cable.)
On the post: 'Hollywood Accounting' Losing In The Courts
Re: Re: The tricks do have a purpose
An example of the kind of people who do get screwed are actors, writers, and other talent who didn't understand the system and opted to get paid out of net profits. That's definitely unfortunate.
And insulation isn't an illusion for the hundreds of films each year that actually do lose money, and not in the illusory sense highlighted above.
So, in short, the people getting screwed are the people like the guy in Who Wants To Be A Millionaire or Don Johnson with Nash Bridges. It's wrong that their ignorance of the system was abused and take advantage of by Disney and the TV producer for Nash Bridges.
Even so, the fundamental, underlying structure of these productions serves a purpose. Just because that system is also abused by production companies doesn't mean the confusing accounting system is worthless.
The important thing is that the legal system in these two cases is working. Production companies taking advantage of less sophisticated parties and, in some cases, outright lying and misleading those parties were found liable for their actions.
My point, however, is that there is a method to the madness. Feel free to dislike the method, or its results, but the method exists nonetheless.
Oh, and for those who think independent and low budget films don't do this -- you're wrong. Small-budget films often have even more creative, maddening, and abusive structures that tend to harm interested parties.
The reality is that making a movie is often a money losing venture. Doesn't mean its not worth it on some level, it's just not typically worth it on the monetary level.
On the post: 'Hollywood Accounting' Losing In The Courts
The tricks do have a purpose
Nevertheless, this accounting madness does have a method -- even if that method is taken too far and abused.
For every movie that makes money, there are multiple that lose money. Having a separate corporation or LLC as a production vehicle allows studios to take on risks that otherwise couldn't be done.
These vehicles insulate major studios and their partners from the risk of losses. Many movies simply cannot be made without this insulation.
Also, studios are not necessarily the primary distributors. There is a lot that goes into movie distribution, especially on an international level, and studios don't completely control either vertical or horizontal distribution efforts.
Finally, financing. Studios are often the primary financing partners in a film such as Harry Potter. They should, therefore, be able to recover costs as quickly or more quickly than other partners. This is the way of financing.
The problem comes when someone negotiates a deal for portions of the profit and does not understand the crazy Hollywood account schemes.
Nothing says that you, as a producing partner or someone else with a stake in a movie profit, cannot negotiate to have proceed derived from a percentage of the revenue, or from a proportional first slice of profit, or from some other source.
Another problem occurs, though, when a studio or some other entity elbows out other partners with a stake in the profit by purposely inflating costs. This includes advertising and distribution costs. Sometimes the reported costs have no bearing on the actual costs.
So, in essence, Hollywood accounting trickery is a bit ridiculous, but it does serve a purpose.
More importantly, if you find yourself lucky (or unlucky) enough to be negotiated with a studio on the profits of a film, it is important to know about the terminology and the ways these tricks work. Otherwise, you may think you're getting a percentage of revenue or profits before cost adjustments when, in reality, you're getting only after-cost profits. Which means you got hosed. And, if you see anything, it won't be until the movie's been out on DVD for 5-7 years.
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