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To me, it seems like something that might infringe on somebody's trademark.

Answer: Although different courts have different tests, the central concept is confusion in the marketplace. The law protects against consumer confusion by ensuring that the marks on the same or similar products or services are sufficiently different. A plaintiff in a trademark infringement case generally must prove 1) it possesses a valid mark; 2) that the defendant used the mark; 3) that the defendant used the mark in commerce, "in connection with the sale, offering for sale, distribution or advertising "of goods and services; and 4) that the defendant used the mark in a manner likely to confuse consumers.

As a result, no trademark infringement occurred. I'm not a lawyer (or, more importantly, a judge), but it seems pretty clear-cut.

It's funny - glad i was able to grab a copy of it to amuse myself.
But enough is enough! Please don't post regarding "parody" and "fair use" if you don't know the actual legal definition.
The bottom line is that this cartoon is NOT a parody by the legal definition ("Strawberry Shortcake" IS a trademarked name) and American Greetings had every right to request that the image be pulled down.
Imagine for a moment that American Greetings had lost a court case regarding the name "Strawberry Shortcake" because it had not demonstrated that it vigorously defended its rights to that name, and that the topic was being discussed on slashdot. The first post in that forum would be "American Greetings should have protected its rights pursuant to the trademarked name. It's their own fault for not being diligent." (do some slashdot research; it shouldn't be too hard to find examples that illustrate this point)
Let's try a bit of consistency for once, instead of jumping on the anti-corporation bandwagon.

...to help understand some of the legal mess the DMCA has created around reverse engineering:
Chilling Effects Clearinghouse's Reverse Engineering FAQ

The German parliament which has just adopted DMCA-style provisions to outlaw the circumvention of technical protection measures that control and curtail the fair use of intellectual property (and only needs the other House's assent for part of the new legislation) makes Germany the third country, following Denmark and Greece, to implement the highly controversial "monstrosity" known as the European Union Copyright Directive 2001/29/EC.

This move, allegedly a "propaganda victory" dubbed "lex Bertelsmann" (after the giant media conglomerate expected to line their corporate pockets under the new laws) in furious disapproval by tech-savvy parts of the news media, makes Germany one of the early adopters setting an unfortunate precedent for further European countries like the UK and France whose citizens, and notably developers like Linux kernel guru Alan Cox, will probably not be spared from similar legislation for much longer either.

Although open-source researchers, cyber-rights activists and even the ruling Social Democrats' very own IT experts as well as hardware manufacturers underlined the severe dangers and inconsistencies of this new and doubtful philosophy extending copyright law to reduce many of the general public's rights to insignificance, in a debate focusing only on academic exemptions from the publishers' power grab, the opposition even tried to tighten the government's bill, ignoring widespread experiences of Chilling Effects such as censorship and assaults on the Freedom to Tinker during the past four years under the EUCD's U.S. counterpart of draconian "bad law and bad policy", the flawed Digital Millennium Copyright Act, another overreaching implementation of the

All hope abandon, as far as Europe is concerned...

...or could these developments still be stopped before setting a bad precedent for further countries such as the UK, which will probably not be spared from similar legislation for much longer either?

While this article assumes that Wednesday's approval by the Committee on Legal Affairs makes adoption of Germany's "DMCA" bill in plenary session on Friday "a mere formality" (as even the opposition's sole regret seems to be that fair use rights should have been curtailed even further), many of you sure wish to recount some experiences of the Chilling Effects from Four Years under the DMCA to the Members of the German Parliament about to repeat most of the DMCA's mistakes in their attempt to implement yet another overreaching implementation of the 1996 WIPO Copyright Treaty, the highly controversial "monstrosity" known as European Copyright Directive 2001/29/EC.

AFAIK Google sends all their DMCA notes to Chilling Effects (example here) and places a note on all links they remove that this is done.

AFAIK Google sends all their DMCA notes to Chilling Effects (example here) and places a note on all links they remove that this is done.

You confuse legal notification with knowledge. The poster already has actual knowledge of the problem thanks to his/her diligence. Had the poster simply stumbled on the problem, it would have to be dealt with.

Details.

DMCA safe harbor provsion FAQ

The rules are fairly specific about what information is required for a takedown, but also puts some obligation on the ISP to police its own network.

It sounds like they failed to comply sufficiently to obligate you to provide all the information about the subscriber, but does require that you loook into it, and at least clarify that the user has, or thinks he has permission to use the material. IANAL, so this is guessing.

...is located here.

A search of their database shows no hits. Has anyone ran afoul of Serta over their linking policy?

The IDSA wants all emulators to be banned. More on this here.

More bullying by IDSA and Cox.

I'm guessing the IDSA is a games-only version of the BSA.

you may also want to consider posting the letters from the lawyers/companies that are trying to shut you down at the chilling effects site.

Scale, again, becomes an asset.

A technical asset (in some cases), but not a legal one. All the technical superiority in the world doesn't help any if the government decides an entire category of technology is illegal. (Small numbers of dedicated persons can skirt a law, but the majority will have to comply)

The RIAA and MPAA have a demonstrated ability to influence lawmakers. For any clever tricks you can cook up, they can argue that the mere installation of the related software is a circumvention device.
Then you could be hauled to court not for any specific act of copyright infringement, but just for having the ability to do so.

Depending on your interpretation, the present-day DMCA might not support such prosecutions. But if the trends which created the DMCA are not reversed, future laws will "correct that loophole".

Check out http://www.chillingeffects.org.

Since you own this IP address, we request that you immediately do the following:
1) Disable access to the individual who has engaged in the conduct described above; and 2) Terminate any and all accounts that this individual has through you.

Catbeller said:

They are not suing you to win. They are suing you to sue you.

Why would the RIAA/MPAA not use the same tactic against IRC? IRC is not decentralized. It needs servers to run. Not only that, but they would gain the side benefit of shutting down a major avenue of criticism against and communication about their activities.

I would not be even slightly surprised if the RIAA/MPAA were behind the DALnet DDoS attacks, anyway. If it is not them, then it has to be somebody that wants to silence communication. Why would script kiddies want to keep up a sustained attack? I am sure their friends would get bored of them bragging about it for more than a week, and then they would have to find a harder target to get more bragging rights. Long term communications breakdowns do not come from people who are cracking for entertainment. They come from people who want to silence others.

Another substantial element to this new development is that they are not sueing the people supplying the filesharing tools. They are talking about putting people who swap files in Federal Prison. It does not matter how many apps are available, how easy they are to use, or how well they mask your identity. If people are afraid of Federal Prison time, they probably will not use it. The threat of punishment is a deterrent. Look at all the consequences of the DMCA. Most of those are the result of fear about what might happen. If that is not enough, go to ChillingEffects.org to see the effects of cease and desist letters that have never even been exposed to the odor of a courtroom upon legitimate people engaged in legitimate activities.

Conclusion: Bill Clinton has scewed us once again. The law has to be changed.

Miss Selzer is a lawyer for the EFF. She also created the Chilling Effects Clearinghouse. As far as I know, she has no relation to the pest-control website. She was simply interviewed for the story.

She was commenting that most web forums are privately owned, so if this ruling stands, trolls can be kicked off virtually any website. Note, she didn't actually take a stance on the case, she simply suggested she was uncomfortable with it.

Question: What are the limits of trademark rights?
Answer: There are many limits, including: Non-commercial Use
If no income is solicited or earned by using someone else's mark, this use is not normally infringement. Trademark rights protect consumers from purchasing inferior goods because of false labeling. If no goods or services are offered, there is no commercial use. Product Comparison and News Reporting
Even in a commercial use, you can refer to someone else's goods by their trademarked name when comparing them to other products. News reporting is also exempt.

Of course, he's quite understandably mad that after he's spent his own money to help them all these years, they have chosen to rudely crap on him. I do hope that he'll continue to make his list available to the libre software developers, but I'll certainly understand if he doesn't want to support the bus-standard-which-must-not-be-named.

Have you reported this to Chilling Effects?

Search their database for the various notices. You're probably not alone. Others can probably give you advice on where to turn...

Have you reported this to Chilling Effects?

Search their database for the various notices. You're probably not alone. Others can probably give you advice on where to turn...

Have you reported this to Chilling Effects?

Search their database for the various notices. You're probably not alone. Others can probably give you advice on where to turn...

Here's a nice link with more background on it.

http://www.chillingeffects.org/piracy/notice.cgi?N oticeID=386

"Anybody else automatically assume that it had ended because they found the key?"

While I'm not sure this is probable, I will agree that not posting the legal threat is highly unusual. They need to distribute a copy if only for posting on ChillingEffects.org. Also, my first call would be to the EFF. But I guess some people stick more firmly to their principles than others...

First of all, that's not what I was arguing at all.

Thank you for the clarification -- I definitely misunderstood you originally. You're making a lot more sense now :-).

My example of the derived Neuron class is both a transformation and an elaboration. (The fact that a class that inherits from another class is called a 'derived' class should make it obvious that it is, in fact, a derivation.)

The difficulty to me is that arguments about this can go either way. The term 'derived class' doesn't mean much; it's a technical term, not a legal one.

However, there's a clear comparison between deriving a class and deriving (for example) a universe -- taking someone else's imaginary world and characters, and telling a story using them (possibly adding some of your own). Citing this comparison would tend to support the GPL.

On the other hand, derivation from a class is an explicit use of certain features of the class -- virtual functions, compiler features, and so on, things which are built in to the class for that purpose (even if the author didn't expect them to be used). And _use_ is unaffected by copyright law (I'm not referring to Fair Use, which actually involves copying, not just using).

The pro-GPL comparison above is discussed in literary terms (i.e. no discussion of the GPL, merely of ACTUAL known copyright law as it is applied to things like fan fiction) at Chilling Effect. In summary, I think (IANAL) that the comparison is powerful and would be used in a court of law -- of course, whether it overrode the argument of Mere Use is not clear to me (it definitely doesn't have _anything_ to do with Fair Use; any sane judge would laugh if asked whether using a Free program to make a proprietary one was Fair).

There's a very close analogy to the discussion of the TSR cases; both deal with "derived classes" (although in a different sense of the word "class"), neither one implies distribution of copyrighted material, but in both cases using the "derived" material requires use of the protected material. Reading it doesn't answer questions (as you'd expect from free legal advice), but it perhaps hints at where to look.

My free-of-charge opinion: the GPL clearly requests certain things of users (including developers), and it's clearly morally wrong to disregard the wishes of the author; I would no more take advantage of an alleged flaw in the GPL than I would violate any other license (within reason). HOWEVER, the GPL is _entirely_ vulnerable to legal criticism, and will absolutely NOT provide the protection it's being asked to when attacked by a well-funded opponent.

Any sufficiently well-paid lawyer would give you similar advice. Pay the lawyer well enough, of course, and he'll represent either side, since both are defensible; however, before you've chosen which license you're going to use, you have to be warned about even a _potential_ weakness.

I don't think anyone would reasonably claim that the above example is legal. The final program is very clearly a modified version of the first. It is a clear violation of the GPL. Clever coding and distribution does not change that.

Definitely not moral. Almost certainly legal, specifically because of the extraordinary actions. You can call it an end-run around the license; the person posting it would call it extraordinary efforts to comply with a restrictive license.

-Billy

I knew if I just shut up, someone else would make the point for me. :)

One analytical correction that I only realized recently -- a parody is a derivative work, just a kind that's OK. It's derivative because it uses similar characters or plot elements or whatever. The parody must address and comment on the original in some way; it would not be enough, for example, to parody space shows in general, it has to be Trek specifically if you're going to adopt their material.

Also, you can't use any more material than necessary, and various other provisos spelled out in Campbell v. Acuff-Rose. The basic idea with parody is that you really have to carve out enough space in copyright for free speech to allow criticism and commentary, and maybe a little more. Even if your product clearly did not come from the copyright holder, you still can't get a leg up on their product.

There are some similar rules for trademark. EFF.org and chillingeffects.org have some good materials on this difficult topic that I'm still trying to understand.

I started laughing as soon as I saw their uniforms and ship -- I mean, really. Their problem here is not legal so much as creative.

Here is a typical-sounding C&D sent for what looks like some college kid's fansite. You'd think this sort of this would be irrelevant, but, well...

Ah, but what about frivilous law suits and spurious DMCA ceast and desist letters. You don't see how that might have a chilling effect on speech?

Before anyone stars foaming at the mouth about use of the Dow name (and even the look of their corporate page, which I didn't see the specific mention of) take a look at the following links:

http://www.business2.com/articles/web/0,1653,9452, 00.html

http://supct.law.cornell.edu/supct/html/92-1292.ZS .html

http://www.chillingeffects.org/protest/

http://overlawyered.com/topics/silicon.html

If someone ever sends me a C&D letter, I'm going to say no.

I don't know what I'd do, except for one thing:
Post the "Cease and Desist" to my page immediately

That brings the opponent out in the open, something that can only work to advance justice (or what? IANAL!)

I'd probably also submit it to chillingeffects.org. This is a truly cool place for information on this topic. Go there.

I received a DMCA-formatted cease and desist from ALS Scan over a stupid fake picture that I copied from stileproject.com. It was a modified pr0n picture that had been edited in a humorous way. Nothing happened, but the email was accepted by Chilling Effects. You can view it here. Needless to say, I am much more careful about what I post on my site, and urge others to be, as well. What I don't understand is why they didn't go after stileproject.com - a site that makes money off these things. I was just a college student running a stupid blog that got 20 hits a day from my friends. Oh well, DMCA sucks.

A helpful site is the EFF-affilliated Chilling Effects.

The thing is the DMCA did curtail "fair use," by the back door as you say. It was just a sacrifice the industry was willing to make. :)

It's only illegal (pay attention, this is the important part) to provide anyone else with tools or information that will allow them to do so!

I'm not so sure even self-help, which would work for few of us anyway, is permitted. The weird thing about the DMCA is that whereas it specifically disavows any curtailment of fair use, it also fails to provide adequate exceptions to the anti-circumvention measures. See this FAQ. It could be said this is a back door attack, or more likely sloppy legislative drafting. That's what I would argue to a court, and I'm sure has been, that Congress goofed and it's clear intent to preserve fair use should override its implicit repeal in the anti-circumvention section. That's a tough argument though, and would leave the court in the position of creating new language for the anti-circumvention checklist. They're going to leave that to Congress, I think, and anyway the courts should not be in the lawmaking business so broadly.

Fair use is mostly not a constitutional question. The problems would come, IMHO, when it runs up against the First Amendment, and that would about to near evisceration of fair use, itself a mere statute.

You are incorrrect there was no federal speed limit. There was, enforced via the Spending Clause. Yes, there is no Speeding Clause (who would have anticipated one, and it would have been thought a state matter anyway), but this exercise of power is valid. Believe me, a wide spectrum of laws are rooted in this power, it's nothing novel.

More to the point, the federal gov't was up front about what it was doing. Yes, people debated endlessly whether this was appropriate policy. I imagine it was challenged constitutionally. Note that the rule was defeated politically.

The rest is just policy. And the game's not over becuase (1) the courts have not finished deciding what all those clauses in the DMCA mean (e.g., "showing that the prohibition has a substantial adverse effect on noninfringing uses of a particular class of works") -- which in the 2600 case was kind of untenable, IMHO ... that's opinion!); (2) Congress is aware that people are upset by the incursion into fair use. Re the partricularly draconian CBPTPA (rolls off the tongue, doesn't it?) see here.

I'm not trying to contradict you in every way I can -- you are right in law and principle in general -- rather this is an area of law that interests me. From my inexpert opinion, the EFF has some good evenhanded orientation materials on the content, litigation, and public opinion fight of these different initiatives.

Finally, boycott is possible and perhaps morally compelled. For example, a LOT of people are used to the idea of ripping their own music CD's, and will go WTF when they realize that's gone. Civil disobedience is a possible, too, but I think too many people are simply stealing for their own convenience. Those who commit civil disobedience must be prepared to go to jail for it. Is fair use a good enough reason for a felony conviction? Between CD and lobbying Congress, the latter is the better choice for me. I mean, this is so far about entertainment and only one form of it.

Again, I'm not sure evn your own cracking is OK, and even if it is almost none of us will have access to the tools. I really wouldn't want to ask others to break the law and risk serious legal trouble to help me, even if they're willing. That's probably their civil disobedience choice to make, unless they're profiting, in which case they're mostly garden-variety criminals.

The LoC survey deadline comes up in a few days, there's a place to start.

There are several ways to circumvent this. Most of them would eventually land you in court. You could claim that only Congress has the power to make laws and only the Executive branch may enforce them. You could make claims about fair use and the betamax case and time-shifting and undue burdons on the marketplace, &c, &c, &c.

BUT WE'RE GEEKS.

Go get a generic radio scanner from your local Radio Shack, Fry's, or other gadget store, and send the stream to your computer. Go to SourceForge and start a project that 'interprets arbitrary radio waveforms as though they were arbitrary DTV and HDTV signals'. Provide and establish primary uses such as 'Enabling consumers to view DTV and HTDV on devices that the Industry is unwilling to support.'

Perfectly legal, ethical, and cheap. See how well it worked for DeCSS?

Sure you'll go to jail, 100 or so people will have their lives ruined for it, but its worth it, right?

Right?

Anybody?

Hmmm... Sounds like some chilling effects

Frob.

Funny, but untrue. If you're interested, take a look at the Anticircumvention FAQ.

Possible intention is pretty weak, you're right. But the infringement inquiry is case-by-case, and complex.

Besides, how serious is Apple? A lot of times the lawyers will send out a C&D just to be cautious and establish a paper trail.

See also the Chilling Effects Weather Report: Bargain Shoppers Chilled by Retailers' DMCA Threats, where we dissect the DMCA safe harbor provision and potential legal claims and responses.

Read up.

Yes -- but now the "certain area" of many formeely small or local businesses can be national or international. The internet is partly to blame (and to credit -- this erasure of borders is a good thing in many ways, albeit not for restaurants), as anyone can do business anywhere and thus maintain a "presence" everywhere, plus "globalization," whatever that is exactly. So you get a lot of businesses stepping on each other's toes.

I doubt the people who originally drew up trademark law envisioned all this. But the more immediate problem is big guy v. little guy. If your trade in "specific type of business in a specific area," someone else can't trademark and usurp you, although they may limit your effort to expand. So if the facts related re the restaurant are accurate, the latecomer Olympic people had no claim, but their superior financial and legal resources may have made that irrelevant. On the merits, it is also hard to imagine consumers would be confused as to the separate identities of the two entities, or that the restaurant would "dilute" the mark of the Olympics, and so on. On the other hand, maybe the restaurant simply thought it could get away with a name change and lost.

And so it goes. These things pop up a million times. I'm still learning this stuff. A resource you might enjoy is The Chilling Effects Clearinghouse, which addresses trademark and much more with a free speech focus.

The distinction is that this is not "Fan Fiction, Copyright, Domain Names and Trademarks, Anonymous Speech, and Defamation.

of notifying www.chillingeffects.org when they got a censorship demand? Government censorship shouldn't be treated differently from Scientology censorship.

Hope you are comfortable with 10% of the money you pay Earthlink going to the Church of Scientology. Yes, the same bunch who have basically declared war on the Internet and got this informational site booted off of Google. Thought you would like to know...

Parody is a protected form of speech. Get legal advice, but most likely the cease and desist letters don't have much legal footing. From the Chilling Effects website:

Even though the Constitution guarantees freedom of expression, trademark and copyright owners have rights, that may or may not be violated by the name or content of a web site you have dedicated to protest, criticism or parody.

... on another page ...

Question: What is "parody"?

Answer: The courts have defined the word parody in the context of an Internet site. Here's what some of the cases have to say: A "parody" is a "simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark's owner." A parody must "convey two simultaneous--and contradictory--messages: that it is the original, but also that it is not the original and is instead a parody. To the extent that an alleged parody conveys only the first message, "it is...vulnerable under trademark law, since the customer will be confused." While a parody necessarily must engender some intial confusion, an effective parody will diminish the risk of consumer confusion "by conveying [only] just enough of the original design to allow the consumer to appreciate the point of parody."

#include

The UDRP has no built-in appeal process. One go-round is all you get. On the other hand, Paragraph 4, Section K says the UDRP doesn't negate your rights to use regular courts. That's pretty much just stating the obvious: ICANN isn't really a government, you know.

In that ICANN lacks an army or a police force of its own, national governments have a fair amount of authority. While they can't neccessarily make ICANN do what they want, they can exert legal control over registrants, registrars, and registries within their jurisdictions.

So the Egyptian government would have potential authority about any case involving an Egyptian resident (as complainant or respondent), and a lot of control over the .eg top-level domain. (Worth noting: Most of the ccTLDs aren't using ICANN rules for domain disputes yet. ICANN is trying to get everyone on board with the UDRP, which many ccTLD operators see as an American powerplay.)

In the United States, the Anti-Cybersquatting Protection Act lays out the laws about domain disputes, and can be used to challenge UDRP decisions in court. Since the com, net, org, and biz registries are US-based, U.S. courts are now the main venue of appeal for UDRP decisions.

However, the modchips themselves are clearly violating the DMCA, as they reverse engineered the XBOX to bypass copyright protection, reading the DMCA that is word for word what it makes illegal.

Now the question is; is it legal for you to install a modchip, which bypasses copyright protection? I think we have now entered a gray area.

-Jon

(note: I completely disagree with the DMCA, it's already got me into far too much trouble

Exactly. Much of my decision to go to law school (I'm starting next year) was based on what I learned here on Slashdot about the infringement on our rights by the wealthy and powerful. And I picked my school because it runs The Berkman Center, which is partially responsible for both creative commons and chilling effects. I'll be able to start working on what I care about as soon as September rolls around. Few other professions afford you that opportunity.

IANAL, but as a university, it is possible that you are immune from liability. According to the FAQ at Chilling Effects (last question), educational institutions have broader safe harbor provisions than ordinary ISPs.

On the other hand, if you're dealing with a typical p2p user, that safe harbor provision probably won't apply.

But it is sometimes better NOT to keep records of activities of questionable legality.

IANAL, but ignorance can be bliss. My understanding is that under the DCMA's Safe Harbor provisions OSPs can't be found liable for copyright infringement of which they are unaware. There are certain steps you need to take to cover yourself, but most of them boil down to informing your users about these policies and removing questionable content once you've been notified of a breach.

Incidentally, I am sure many teachers consider the free Internet access as part of their overall employment package. You could earn yourself a lot of enmity preventing them from engaging in legal activities online. Why should you do the RIAA's dirty work???

But it is sometimes better NOT to keep records of activities of questionable legality.

IANAL, but ignorance can be bliss. My understanding is that under the DCMA's Safe Harbor provisions OSPs can't be found liable for copyright infringement of which they are unaware. There are certain steps you need to take to cover yourself, but most of them boil down to informing your users about these policies and removing questionable content once you've been notified of a breach.

Incidentally, I am sure many teachers consider the free Internet access as part of their overall employment package. You could earn yourself a lot of enmity preventing them from engaging in legal activities online. Why should you do the RIAA's dirty work???

ATM, however, nothing bars a good old fashioned C & D letter hinting at something in the DMCA or any other arcane law.

Good thing our senators and representatives are looking out for us. This is a clear violation of DMCA, and it's a good thing that guy stayed anonymous.

From http://www.chillingeffects.org/reverse/


The DMCA contains a limited exception to the ban on circumvention, which permits reverse engineering of the technology by specific classes of people for limited purposes [17 USC 1201(f)]. The exception allows reverse engineering of computer programs if the reverse engineer lawfully obtains the program, seeks permission from the copyright owner, only uses the results of their efforts to create an interoperable computer program and does not publish the results


Can you say "lobbying"?

The most recent complaint given to Google from the COS deals with Googles own Usenet archive. The process of transferring the burden over to the original web site owner works for web pages. What about the potential for copyrighted material in Google's own Usenet archive? Do they have to contact the original author of the messages which in turn would have to file a counter complaint to keep it in the archive?

This whole thing seems to be going in the direction of the MS case, abortions rights, and campaign finance reform. A lot of time and money put into both ends but nothing coming out. The winner will be the one that had largest resource pool.