It's hard to answer these types of questions without more facts. But say you have a 14 year old who knowingly downloads the latest blockbuster movie without paying. He had the money and resources to pay, but all his friends do it and it's easy so why not. I have no trouble with the child and/or parents being held accountable. Should it be for thousands of dollars? No. The statutory minimum of $750 for willful infringement works is sufficient. The problem with all this is that it (literally) takes a federal case. That's why I think the six-strikes (or whatever it is) is a better approach. A letter to the parents explaining that someone is using bittorrent to infringe on their internet service is likely to get the job done. Honestly though I spend more time learning and thinking about the theory of copyright than I do on strategies for combating piracy. In general I have no problem with holding those who violate other people's rights responsible for what they've done. No strategy is perfect. That doesn't mean we shouldn't try though.
Re: Re: Re: Re: I think you're wrong about the law on this one.
A mark can cover a related market under the "Aunt Jemima doctrine." In that case, the mark for syrup covered pancake batter, even though Aunt Jemima didn't market batter. Lots of cases cite this principle. You missed the point though. I was correcting you that infringement has to be in the "same" business. It doesn't. It can be a related business. But that's irrelevant here where (I think; I couldn't find the complaint on PACER or Google) the issue is dilution by tarnishment. With dilution, it's almost always (or even always? not sure) the case that the junior user is in a different market. The issue isn't whether a consumer would think that Ben & Jerry's had gotten into the porn business. The issue is whether the porn business using the Ben & Jerry's marks is doing damage to the marks by tarnishing them in the public's mind. As Mike's post indicates, some people don't like the theory. There's lots of ink arguing both sides.
Re: Re: I think you're wrong about the law on this one.
I won't speak for Tim... and I will admit (as I have in the past) that I find the (relatively recent) addition of "dilution" to trademark law as a complete bastardization of the purpose of trademark law.
The idea started with Schechter's article in the Harvard Law Review in 1927 where he argued that distinctiveness was being diluted by a mark's use on unrelated goods, so it's been around for a while. I'm curious though what you mean that it's a "complete bastardization of the purpose of trademark law." Trademark law has more than one purpose. I know you focus on consumer confusion, which is no doubt the main purpose of trademark law, but there's more to it than that.
I'm not sure if you've read Posner's exploration on dilution. It speaks to the economics, so you might enjoy it:
The fundamental purpose of a trademark is to reduce consumer search costs by providing a concise and unequivocal identifier of the particular source of particular goods. The consumer who knows at a glance whose brand he is being asked to buy knows whom to hold responsible if the brand disappoints and whose product to buy in the future if the brand pleases. This in turn gives producers an incentive to maintain high and uniform quality, since otherwise the investment in their trademark may be lost as customers turn away in disappointment from the brand. A successful brand, however, creates an incentive in unsuccessful competitors to pass off their inferior brand as the successful brand by adopting a confusingly similar trademark, in effect appropriating the goodwill created by the producer of the successful brand. The traditional and still central concern of trademark law is to provide remedies against this practice.
Confusion is not a factor here, however, with a minor exception discussed at the end of the opinion. Perryman is not a competing producer of beanbag stuffed animals, *511 and her Web site clearly disclaims any affiliation with Ty. But that does not get her off the hook. The reason is that state and now federal law also provides a remedy against the “dilution” of a trademark, though as noted at the outset of this opinion the federal statute is limited to the subset of “famous” trademarks and to dilutions of them caused by commercial uses that take place in interstate or foreign commerce. “Beanie Babies,” and “Beanies” as the shortened form, are famous trademarks in the ordinary sense of the term: “everybody has heard of them”; they are “truly prominent and renowned,” in the words of Professor McCarthy, 4 McCarthy on Trademarks and Unfair Competition § 24:109, p. 24–234 (2001), as distinguished from having a merely local celebrity. TCPIP Holding Co. v. Haar Communications Inc., 244 F.3d 88, 98–99 (2d Cir.2001). And while both this court and the Third Circuit have held, in opposition to the Second Circuit's TCPIP decision, that “fame,” though it cannot be local, may be limited to “niche” markets, Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 633, 640–41 (7th Cir.1999); Times Mirror Magazines, Inc. v. Las Vegas Sports News, L.L.C., 212 F.3d 157, 164 (3d Cir.2000), this is not a conflict to worry over here; Ty's trademarks are household words. And Perryman's use of these words was commercial in nature and took place in interstate commerce, and doubtless, given the reach of the aptly named World Wide Web, in foreign commerce as well.
But what is “dilution”? There are (at least) three possibilities relevant to this case, each defined by a different underlying concern. First, there is concern that consumer search costs will rise if a trademark becomes associated with a variety of unrelated products. Suppose an upscale restaurant calls itself “Tiffany.” There is little danger that the consuming public will think it's dealing with a branch of the Tiffany jewelry store if it patronizes this restaurant. But when consumers next see the name “Tiffany” they may think about both the restaurant and the jewelry store, and if so the efficacy of the name as an identifier of the store will be diminished. Consumers will have to think harder—incur as it were a higher imagination cost—to recognize the name as the name of the store. Exxon Corp. v. Exxene Corp., 696 F.2d 544, 549–50 (7th Cir.1982); cf. Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1031 (2d Cir.1989) (“The [legislative] history [of New York's antidilution statute] disclosed a need for legislation to prevent such ‘hypothetical anomalies' as ‘Dupont shoes, Buick aspirin tablets, Schlitz varnish, Kodak pianos, Bulova gowns' ”); 4 McCarthy on Trademarks and Unfair Competition, supra, § 24:68, pp. 24–120 to 24–121. So “blurring” is one form of dilution.
Now suppose that the “restaurant” that adopts the name “Tiffany” is actually a striptease joint. Again, and indeed even more certainly than in the previous case, consumers will not think the striptease joint under common ownership with the jewelry store. But because of the inveterate tendency of the human mind to proceed by association, every time they think of the word “Tiffany” their image of the fancy jewelry store will be tarnished by the association of the word with the strip joint. Hormel Foods Corp. v. Jim Henson Productions, Inc., 73 F.3d 497, 507 (2d Cir.1996); 4 McCarthy on Trademarks and Unfair Competition, supra, § 24:95, pp. 24–195, 24–198. So “tarnishment” is a second form of dilution. Analytically it is a subset of blurring, since it reduces the distinctness of the trademark as a signifier of the trademarked product or service. *512
Third, and most far-reaching in its implications for the scope of the concept of dilution, there is a possible concern with situations in which, though there is neither blurring nor tarnishment, someone is still taking a free ride on the investment of the trademark owner in the trademark. Suppose the “Tiffany” restaurant in our first hypothetical example is located in Kuala Lumpur and though the people who patronize it (it is upscale) have heard of the Tiffany jewelry store, none of them is ever going to buy anything there, so that the efficacy of the trademark as an identifier will not be impaired. If appropriation of Tiffany's aura is nevertheless forbidden by an expansive concept of dilution, the benefits of the jewelry store's investment in creating a famous name will be, as economists say, “internalized”—that is, Tiffany will realize the full benefits of the investment rather than sharing those benefits with others—and as a result the amount of investing in creating a prestigious name will rise.
Ty Inc. v. Perryman, 306 F.3d 509, 510-12 (7th Cir. 2002) (emphasis added).
But... even so, I fail to see how this has even a slightly dilutionary effect on Ben & Jerry's. Is someone somehow going to think less of Ben & Jerry's ice cream because of this? I can't see how that's likely at all. It doesn't "tarnish" the brand. It's a parody, a joke.
It tarnishes the brand by associating pornography with it. I don't blame Ben & Jerry's for not wanting to be associated with hardcore porn. And the First Amendment argument is less forceful when the alleged infringer is clearly just riding on their coattails for commercial purposes. This isn't core, protected speech.. They aren't making a statement about Ben & Jerry's. They're trying to trade off of Ben & Jerry's goodwill at the expense of Ben & Jerry's goodwill.
Sorry you feel that way. If you want to give me a simple yes or no question, I'll give you a yes or no. I tried to answer your questions as best I could. I'm not sure what you want me to say.
I knew what I was doing when I was 14. I think you'd have to determine if the child knew what they were doing was wrong. If so, they (or their parents) should be responsible.
Re: Re: I think you're wrong about the law on this one.
It doesn't have to be the exact same business. It can be related. I think the argument here is tarnishment, which has nothing to do with consumer confusion.
Re: Re: I think you're wrong about the law on this one.
The case you cited cites a bunch of cases where the alleged parody was stopped:
When presented with such circumstances, courts have found that trademark owners have suffered harm despite the fact that redressing such harm entailed some residual impact on the rights of expression of commercial actors. See, e.g., Dallas Cowboys Cheerleaders v. Pussycat Cinema, Ltd., 604 F.2d 200 (plaintiff's mark damaged by unauthorized use in content and promotion of a pornographic film); Chemical Corp. of America v. Anheuser-Busch, Inc., 306 F.2d 433 (5th Cir.1962), cert. denied, 372 U.S. 965, 83 S.Ct. 1089, 10 L.Ed.2d 129 (1963) (floor wax and insecticide maker's slogan, “Where there's life, there's bugs,” harmed strength of defendant's slogan, “Where there's life, there's Bud.”); *32 Original Appalachian Artworks, Inc. v. Topps Chewing Gum, 642 F.Supp. 1031 (N.D.Ga.1986) (merchandiser of “Garbage Pail Kids” stickers and products injured owner of Cabbage Patch Kids mark); D.C. Comics, Inc. v. Unlimited Monkey Business, 598 F.Supp. 110 (N.D.Ga.1984) (holder of Superman and Wonder Woman trademarks damaged by unauthorized use of marks by singing telegram franchisor); General Electric Co. v. Alumpa Coal Co., 205 U.S.P.Q. (BNA) 1036 (D.Mass.1979) (“Genital Electric” monogram on underpants and T-shirts harmful to plaintiff's trademark); Gucci Shops, Inc. v. R.H. Macy & Co., 446 F.Supp. 838 (S.D.N.Y.1977) (defendant's diaper bag labelled “Gucchi Goo” held to injure Gucci's mark); Coca-Cola Co. v. Gemini Rising, Inc., 346 F.Supp. 1183 (E.D.N.Y.1972) (enjoining the merchandise of “Enjoy Cocaine” posters bearing logo similar to plaintiff's mark).
And then the court explains why the L.L. Bean case was inapposite:
While the cases cited above might appear at first glance to be factually analogous to the instant one, they are distinguishable for two reasons. First, they all involved unauthorized commercial uses of another's trademark. Second, none of those cases involved a defendant using a plaintiff's trademark as a vehicle for an editorial or artistic parody. In contrast to the cases cited, the instant defendant used plaintiff's mark solely for noncommercial purposes. Appellant's parody constitutes an editorial or artistic, rather than a commercial, use of plaintiff's mark. The article was labelled as “humor” and “parody” in the magazine's table of contents section; it took up two pages in a one-hundred-page issue; neither the article nor appellant's trademark was featured on the front or back cover of the magazine. Drake did not use Bean's mark to identify or promote goods or services to consumers; it never intended to market the “products” displayed in the parody.
Neither of those two things applies here. This case is more like the list of cites where the court shut down the use than it is like the case you cited where there was indeed parody. Here we have (1) commercial use, and (2) they aren't using the mark as a vehicle to make a comment about Ben & Jerry's.
I think the tarnishment argument is a winner, as did the judge who shut it down ex parte.
If copyright were important to artists then wouldn't they choose to have the copyright every time? I mean, if it's so important to the majority of artists, why wouldn't they forgo the cash?
I think you answered your own question. For some it's more valuable, and for others it's not. If I were advising someone, I'd have to look at what is right for them. It's not one size fits all.
It seems to me that copyright works for those artists who are already successful, those artists who are the in the minority.
I think it works for some up and comers too, such as those who sell their music online or those who sign deals with labels. And for some it doesn't work. I understand full well that the internet is the great disintermediater. You may think I'm a maximalist, but I think I'm a realist. That said, copyright brings us all great works that we all love. So do people who don't use copyright. If you like the copyrighted stuff, pay for it if it's for sale. If you like the free stuff, don't. I'm really a simple person.
But copyright is given to successful artists, non-successful artists, non-artists, pretty much everyone at this point and I wonder if that's the best way to handle it.
Your very post is likely copyrighted. So what? No one has to pursue the copyright business model if they don't want to. If the alternative models are better, then those will take over. Change takes time. Techdirt is focused on radical change, and disappointed by anything else. Slow and steady wins the race. Fact is, much of the content we all enjoy comes from the copyright business model. When the alternative stuff is better than the copyrighted stuff, people will want that. But right now that's not happening. There's some cool alternative stuff happening, but the copyrighted stuff is great too. We all love copyrighted works, whether we admit it or not. I spend thousands of dollars a year of entertainment that's copyrighted. I'm glad my money goes to those who create the content I enjoy.
I wonder if that's where the disconnect is coming from, for those who love/like copyright to those who hate/dislike copyright to those who stopped even caring about copyright.
I like copyright 'cause I think it just makes sense to give the person who spent the time, energy, talent, and money to create something I enjoy a marketable right to that creation. I think copyright markets thrive and do wonderful things that most people love. Piracy thwarts that model. I think the disconnect comes from those who think copyright does nothing good, only to then make the conscious decision to pirate copyrighted works. If the copyrighted stuff is so bad, why do so many do (what I hope) they wouldn't do otherwise and "steal" it? I just don't get the simultaneous demonization of copyright while then loving the things it brings us. A rightholder who exercises his rights against those who violate them has done nothing wrong. Don't blame the rightholder or the system, blame the pirate.
That's kind of silly since the answer depends on a bunch of facts that you haven't given me. Am I a successful artist? Do I have a lot of bargaining power? Am I just trying to get some cash to feed my family? Or am I well off and I can easily forgo the sale. How valuable is the copyright? Would I make more money from the work or the copyright?
I can't answer a hypothetical like that without more information. The answer I can give is that I'd look at the facts and try and determine whether the $1,000 for the work itself was worth more than the copyright.
Take a famous author like Rowling. She'd be better off having the copyright in her next book than in having $1,000 for the original manuscript. The copyright is worth way more. But then take an unknown artist. The $1,000 is probably worth more than the copyright.
If you ever want to have an open and honest discussion with me, I'm more than happy to address your questions head on to the best of my ability. I've nothing to hide.
If you want to make a point. Make it. Let's talk about that point, and if you don't think I understand the point because I'm incapable, then let's talk about that. But what's the point of repeating the same quote? Name one specific point I am unable to understand. You are accomplishing nothing by posting that quote. You have proved nothing. Man up and have a discussion with me.
What is your intent once you get this ethereal answer that you want so badly?
My intent is to ascertain Mike's answer. I want to know what parts of copyright he thinks are "good." I honestly want to know if there are any such parts, and if so, what he thinks should be done to enforce those parts. As far as I can tell, he hates it all and is just too ashamed to admit it directly.
You keep making up negative traits that you apply to Mike and other people that aren't even true.
I don't think I'm making up negative traits. I think Mike is fundamentally dishonest, overzealous, and unreasonable. He's also a smart guy who I think knows what he's doing.
Why are you so invested in what one person on the internet thinks?
I find him fascinating. I truly am hoping that one day he'll just open up and have a normal conversation. I've never seen him do it with any detractors, so I doubt it'll happen. I just want him to be open, human, and awesome.
Is it that pivotal to your existence that Mike answer your loaded question and be measured by your obviously prejudgemental metrics?
I want to have an honest discussion. He's the loudest copyright critic I know, I care about copyright, so here I am. I'm really all surface.
You must have a sad life if you put so much energy and emotion into one random person on the internet. Find a real hobby.
And now you're just insulting me. If you want to have an open and honest discussion, I'm game. But if you're going to insult me, it's you that needs to find something better to do.
Perhaps some animal porn might be up your alley?
I don't think I'd be into it. Saw a donkey show once in Mexico. I wouldn't recommend it.
Cute. How does my salary depend upon copyright? It doesn't. If you disagree with a point I've made, say why. But saying I'm unable to understand your point because I make money from copyright (which I don't) makes little sense. I love differing points of view. I welcome dissent and honest debate.
Yes, I do. I have lots of family and friends in the military and government, and they all are open and honest people who do the right thing and see that others do too. I don't really understand your point. Duty and honor means the world to them. He could have reported the crimes he thought he had evidence of. Did he not even try to follow protocol? Or did he download hundreds of thousands of classified documents, knowing that it was a crime, and then publish them for all to see?
I want every person who has access to classified materials to follow the rules or else pay the price. Nothing excuses what he (allegedly) did. If he had evidence of criminal acts, he should have reported them appropriately.
Nonsense. There are protocols for reporting suspected criminal acts. And those protocols don't include becoming a criminal yourself and betraying your nation by releasing hundreds of thousands of classified materials. I hope they make an example of him.
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Re: Re: I think you're wrong about the law on this one.
The idea started with Schechter's article in the Harvard Law Review in 1927 where he argued that distinctiveness was being diluted by a mark's use on unrelated goods, so it's been around for a while. I'm curious though what you mean that it's a "complete bastardization of the purpose of trademark law." Trademark law has more than one purpose. I know you focus on consumer confusion, which is no doubt the main purpose of trademark law, but there's more to it than that.
I'm not sure if you've read Posner's exploration on dilution. It speaks to the economics, so you might enjoy it:Ty Inc. v. Perryman, 306 F.3d 509, 510-12 (7th Cir. 2002) (emphasis added).
But... even so, I fail to see how this has even a slightly dilutionary effect on Ben & Jerry's. Is someone somehow going to think less of Ben & Jerry's ice cream because of this? I can't see how that's likely at all. It doesn't "tarnish" the brand. It's a parody, a joke.
It tarnishes the brand by associating pornography with it. I don't blame Ben & Jerry's for not wanting to be associated with hardcore porn. And the First Amendment argument is less forceful when the alleged infringer is clearly just riding on their coattails for commercial purposes. This isn't core, protected speech.. They aren't making a statement about Ben & Jerry's. They're trying to trade off of Ben & Jerry's goodwill at the expense of Ben & Jerry's goodwill.
On the post: Is The Tide Turning On Bad Copyright Laws?
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On the post: Is The Tide Turning On Bad Copyright Laws?
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On the post: Poor Ben & Jerry Must Have Had A Rough Adolescence If They Think Ice Cream Can Be Confused With Porn
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I think the tarnishment argument is a winner, as did the judge who shut it down ex parte.
On the post: Is The Tide Turning On Bad Copyright Laws?
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I think you answered your own question. For some it's more valuable, and for others it's not. If I were advising someone, I'd have to look at what is right for them. It's not one size fits all.
It seems to me that copyright works for those artists who are already successful, those artists who are the in the minority.
I think it works for some up and comers too, such as those who sell their music online or those who sign deals with labels. And for some it doesn't work. I understand full well that the internet is the great disintermediater. You may think I'm a maximalist, but I think I'm a realist. That said, copyright brings us all great works that we all love. So do people who don't use copyright. If you like the copyrighted stuff, pay for it if it's for sale. If you like the free stuff, don't. I'm really a simple person.
But copyright is given to successful artists, non-successful artists, non-artists, pretty much everyone at this point and I wonder if that's the best way to handle it.
Your very post is likely copyrighted. So what? No one has to pursue the copyright business model if they don't want to. If the alternative models are better, then those will take over. Change takes time. Techdirt is focused on radical change, and disappointed by anything else. Slow and steady wins the race. Fact is, much of the content we all enjoy comes from the copyright business model. When the alternative stuff is better than the copyrighted stuff, people will want that. But right now that's not happening. There's some cool alternative stuff happening, but the copyrighted stuff is great too. We all love copyrighted works, whether we admit it or not. I spend thousands of dollars a year of entertainment that's copyrighted. I'm glad my money goes to those who create the content I enjoy.
I wonder if that's where the disconnect is coming from, for those who love/like copyright to those who hate/dislike copyright to those who stopped even caring about copyright.
I like copyright 'cause I think it just makes sense to give the person who spent the time, energy, talent, and money to create something I enjoy a marketable right to that creation. I think copyright markets thrive and do wonderful things that most people love. Piracy thwarts that model. I think the disconnect comes from those who think copyright does nothing good, only to then make the conscious decision to pirate copyrighted works. If the copyrighted stuff is so bad, why do so many do (what I hope) they wouldn't do otherwise and "steal" it? I just don't get the simultaneous demonization of copyright while then loving the things it brings us. A rightholder who exercises his rights against those who violate them has done nothing wrong. Don't blame the rightholder or the system, blame the pirate.
On the post: Is The Tide Turning On Bad Copyright Laws?
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I can't answer a hypothetical like that without more information. The answer I can give is that I'd look at the facts and try and determine whether the $1,000 for the work itself was worth more than the copyright.
Take a famous author like Rowling. She'd be better off having the copyright in her next book than in having $1,000 for the original manuscript. The copyright is worth way more. But then take an unknown artist. The $1,000 is probably worth more than the copyright.
What do think the answer should be?
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Do you have any cite for the notion that he tried to report things but was thwarted?
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My intent is to ascertain Mike's answer. I want to know what parts of copyright he thinks are "good." I honestly want to know if there are any such parts, and if so, what he thinks should be done to enforce those parts. As far as I can tell, he hates it all and is just too ashamed to admit it directly.
You keep making up negative traits that you apply to Mike and other people that aren't even true.
I don't think I'm making up negative traits. I think Mike is fundamentally dishonest, overzealous, and unreasonable. He's also a smart guy who I think knows what he's doing.
Why are you so invested in what one person on the internet thinks?
I find him fascinating. I truly am hoping that one day he'll just open up and have a normal conversation. I've never seen him do it with any detractors, so I doubt it'll happen. I just want him to be open, human, and awesome.
Is it that pivotal to your existence that Mike answer your loaded question and be measured by your obviously prejudgemental metrics?
I want to have an honest discussion. He's the loudest copyright critic I know, I care about copyright, so here I am. I'm really all surface.
You must have a sad life if you put so much energy and emotion into one random person on the internet. Find a real hobby.
And now you're just insulting me. If you want to have an open and honest discussion, I'm game. But if you're going to insult me, it's you that needs to find something better to do.
Perhaps some animal porn might be up your alley?
I don't think I'd be into it. Saw a donkey show once in Mexico. I wouldn't recommend it.
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