An Example from Code

No copyrights for fashion, yet the business thrives. Wonder why? Read this NPR bit: Fashion Industry Copes with Designer Knockoffs [via BoingBoing]

Joseph Gioconda is an attorney with Kirkland and Ellis, a firm that represents the French design house Hermes. He’s charged with keeping knockoffs of the company’s bags, scarves and accessories off the street — and the Internet, where a crude copy of a $5,000 Hermes “Birkin” bag might be had for less than $30.

As Karr reports, the risk of confusion is the key legal test of whether a knockoff has crossed the line to forgery. Under U.S. law, a company can’t copyright a design, but it can register elements of that design as trademarks. If the shape of the bag’s flap or the strap across the closure lead a likely Hermes consumer to think the knockoff is genuine, then it’s pretty easy to convince a court that the fake violates Hermes trademarks.

That was the case recently when Hermes sued a retailer who was aggressively pushing a transparent rubber version of the Birkin bag.

But for most of the fashion industry, copying is a way of life. Francesca Sterlacci is head of the fashion design department at New York’s Fashion Institute of Technology. She says it’s expensive and risky to actually create new designs. It’s cheaper and easier to simply knock off successful ones. Typically, Sterlacci says, designers just let the copies go. After all, new designs will come out in a couple of months, and lawsuits are time-consuming, expensive “and you’re never really sure whether or not you’re going to win,” she says.

From bIPlog

A comment from Mary: Hollywood and Piracy; she picks up on a column that asks some pointed questions about the ads you get at the movies these days about how piracy is going to hurt the regular working guy in the industry.

See, that’s what really upsets me. [The narrator in the ad] David’s a working man, just like me. If nothing else, the ad makes that fact abundantly clear. Why does he have to suffer in order to protect the rich producers’ profit margins? If piracy damages the movie industry, then surely the producers (or ‘the money,’ as they’re known out there in California – I learned that in The Player!) would see their earnings drop. How can they fire guys like David? Will the producers start building sets themselves? Will they outsource David’s job to Mexico or the Far East?

But that’s not really why I’m writing to you today. I’m writing because I visited this morning in an effort to buy the first season of The West Wing on DVD. You see, I don’t mind buying DVDs at all. You’d love me, Hollywood — I’ve got like 250 of them!

Anyway, my friends in Europe have really been enjoying the opportunity to relive The West Wing on DVD, and I can hardly wait to pick up a copy myself. But here’s the thing: It’s not available in the United States. That’s right — it’s region-encoded so that I can’t play it on my DVD player at home. And I just found out why we can’t buy it yet: It seems that the show’s producers have made a deal with the Bravo channel — you know, the network where the urbane James Lipton interviews consummate Hollywood actors like Mike Myers – wherein they will delay the release of The West Wing on DVD in North America until November (just in time for the holiday shopping season) and reap big bucks by providing Bravo with exclusive syndication rights in the interim. I heard that Bravo is paying them a million dollars per episode! I guess that’s good for the entertainment industry: The producers will make a killing. I wonder how much of those earnings David will get?

Read the whole thing: Dear Hollywood [pdf]

Architecture, Control and Format — Adobe PDF

Adobe e-doc format under siege

Adobe Systems’ portable document format, long a de facto Internet standard, is under fire from competitors looking to muscle in on the electronic document market.

[…] While PDF is firmly established in the PC world, “I think there’s always the possibility of a real threat,” said Rob Lancaster, an analyst for research firm The Yankee Group. “Adobe is attempting to entrench itself within business applications, extending the capabilities of PDF beyond its typical role as viewing software, and a big part of that appeal rests on the ubiquity of the viewing capability.”

Chuck Meyers, a technology strategist for Adobe’s ePaper division, characterized recent swipes at PDF as acknowledgement of the company’s success in popularizing the format.

[…] “It’s very important to distinguish between printing and online information access,” Nielsen said. “I have no beef at all with PDF as a vehicle to distribute information for printing. The problem is that is exactly what it’s designed for; it’s very page-oriented in the way it packages information. Something that’s designed for printing is not going to be optimized for a computer screen.”

Nielsen said he’s conducted several studies of Web-surfing behavior that show that improper use of PDF essentially breaks a site.

Declan on Yesterday’s Commerce Hearing

In DMCA war, a fight over privacy

While Wednesday’s hearing didn’t precisely equate America’s major record labels with the pornography industry, the RIAA nevertheless was thrown on the defensive–a rare position for the well-connected trade association to find itself in. Besides winning passage of the DMCA, the RIAA successfully lobbied Congress to enact the No Electronic Theft Act–which makes peer-to-peer piracy a federal felony–and the Copyright Term Extension Act. Two years ago, the RIAA retained Bob Dole, former senator and presidential candidate, and in July picked Mitch Bainwol, former chief of staff to Senate Majority Leader Bill Frist, to be its new chairman.

On Wednesday, RIAA President Cary Sherman was forced to argue that the DMCA’s turbocharged subpoenas cannot be easily exploited by snoops and stalkers. Those are “baseless and desperate arguments,” Sherman said. “The RIAA, the copyright community as a whole–and, more importantly, the members of Congress who crafted the DMCA–would never defend or embrace a procedure that makes it easy for criminals to find victims.”

Even though Brownback and two other senators–Ron Wyden, D-Ore., and Norm Coleman, R-Minn.–criticized the RIAA’s shotgun use of the subpoenas, analysts caution that Washington’s view of the law has not radically shifted.

A Darker Interpretation of the Eolas Result

In A Pyrrhic Patent Victory, Jim Rapoza notes, as have many others, that it is surprising that Microsoft, with all of its resources, was unable to come up with a single bit of prior art to contest the Eolas patent. He has a darker interpretation of this failure:

[T]he real victim of this lawsuit isn’t Microsoft. It’s Macromedia, whose ubiqui- tous Flash technology is at its best when embedded in Web pages. It’s alternative browsers, such as Konqueror, Mozilla, Opera and Safari, which use application plug-ins. It’s developers who create embedded Java applications for Web pages, who will have to develop applications differently. It’s multimedia applications such as RealOne and QuickTime. And it is regular Web users, who may soon find that many of their favorite Web pages will no longer work the way they used to.

[…] This [failure to find prior art] has led to a lot of discussion about why Microsoft, one of the most powerful and richest companies in the world, couldn’t defeat this patent in court. This is tough to figure out. It could be that Microsoft’s stable of high-priced lawyers messed up. Or maybe the judge and jury had no understanding of technology and patents.

A darker theory is that Microsoft didn’t want to employ tactics that would undermine its own shaky patent portfolio. An even more paranoid–yet still plausible–reading of events is that Microsoft wanted to lose. After all, Microsoft spent $150 million to kill Netscape on the Mac. Spending $520 million to damage its Web and multimedia competitors would be a relative bargain.

Microsoft has announced it’s implementing changes to avoid violation of this patent, which will almost certainly reduce the functionality of Internet Explorer. This will be another in a long series of steps that Microsoft has taken that reduce the capabilities of its Web browser.

Microsoft’s eventual goal is to roll many Web capabilities into its applications and operating systems. If the browser ceases to be a place where interactive applications are possible, people may turn to interactive Internet applications that are embedded in Microsoft applications.

More on the Verisign Typo Hijacking Mess

More on the Verisign URL typo hijacking from The Boston Globe (Verisign draws fire over Site Finder service [pdf]), the New York Times (Disputes Erupt Over Service for Poor Internet Typists [pdf]) and Ed Foster (Contract By Typo). Ed, in particular, raises a new aspect of the issue:

Anyone who accidentally goes to an unregistered .com or .net domain is now dumped into VeriSign’s search page, at the bottom of which are links to a privacy policy and a “terms of use” document for the Site Finder site. Reading those documents, you’ll find all the standard disclaimers, including VeriSign’s right to change the agreement whenever it feels like it. The privacy policy piously proclaims that VeriSign will not collect “any personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, or sex life,” although I’m not sure how they would collect that information from a mistyped URL. But they still may — for statistical purposes only of course — track visitors’ IP addresses, what pages they view, and what domains they came from. VeriSign and its third-party partners can also give you a cookie to track click behavior, serve ads, etc.

Now, that’s relatively common stuff on many web sites, but those are generally sites that you voluntarily chose to visit. What you won’t find in the Site Finder terms of use or privacy policy is any way that you can say “no” to this supposed agreement. By “using” the service – in other words, by typing a bad URL – you “agree to be bound by all terms and conditions…” If you don’t like it, “your sole remedy is to discontinue use of the VeriSign services or our site.” And the only way you can keep from using their site is to make sure you never guess wrong or mistype a domain name again.

WordPirates Site

JoHo and an e-mail from Hylton Joliffe point to David Weinberger (I know <G>) and Dan Gillmor’s WordPirates site, part of the ongoing effort to raise the level of the debate around copyright and other issues by trying to upset the way in which the meaning of words is hijacked to support ideas that the word itself do not actually support — intellectual “property”, digital “piracy.”

There’s an interview at Corante, Choosing your weapons in the war of words, on the subject of setting this site up.

Q: Corporations and politicians have always used rhetoric to advance their agendas. What’s different now … why launch this site now?

DW: I’m all for colorful speech, using words in new ways. It’s going to happen anyway, and done well you end up with insights, poetry and jokes.

The paradigmatic pirated word, though, was re-defined knowingly and cynically to achieve a political or commercial end.

Granted, that’s still a mushy definition, and one person’s ‘pirated’ word is another person’s colorful expression. And that’s why anyone can comment on any of the words proposed at Word Pirates. We’re not trying to police the language, declaring some uses out of bounds. We’re simply trying to let people remember what’s been packed into the pirated words, and what’s been lost.

Why launch this site now? Words have always been pirated, but this administration has moved Orwellian language control into its Golden Age.

What used to sound like sophomoric humor has now become everyday: The law that lets people be detained without access to a lawyer is called The USA PATRIOT Act, and they even got it as an acronym. We can only hope they were really drunk when they decided that that was a good idea.

The Culture of Downloading

A look from the school age perspective: Is It Wrong to Share Your Music? (Discuss) [pdf]

“It shouldn’t be illegal,” said 14-year-old Sonya Arndt. “It’s not like I’m selling it.”

“Isn’t it like recording movies?” asked Korbi Blanchard, 13. “They’re making a big thing out of nothing.”

“It’s wrong to be downloading hundreds of songs, but if you only want one or two, it’s not that big a deal,” said 13-year-old Kristina Lee.

When the record industry’s campaign against digital file-sharing yielded lawsuits on Sept. 8 against 261 people – at least one as young as 12 – it struck home with students at Foothill Middle School as news events seldom do.

[…] So Valerie Kriger, a Foothill teacher, chose music downloading as her Friday current events topic.

The teacher attempted to point out that there were problems with file sharing, but she picked a peculiar example, particularly for a class in California’s Silicon Valley

“What I told them was, ‘This is still the law, and if you break the rules, there are consequences. If I choose to go speeding down the freeway at 80 miles an hour, I have to suffer the consequences,’ ” she said. “My point was, ‘Now we’ve read this article, now you know it’s not right.’ ”

It was a distinction that they grasped but did not necessarily believe they should comply with, at least in this case.

And the disturbing blame game, pointing at the computer industry, continues. This is where the real danger lies:

Sonya’s mother, Jill Arndt, said she could understand the children’s confusion. “When we bought our computer, all the downloading was part of the sales pitch,” she said. “Not for a minute did they say, ‘Be careful because some of this stuff is illegal.’ ”

[…] “People don’t know what they’re getting into when they buy a computer,” said Korbi in a conversation after Ms. Kriger’s class. “I think Dell should send out a contract for parents to sign, saying you agree not to use it for illegal purposes. I don’t know how else they’re supposed to get people to stop.”

Recommeded parallel reading: Jessica Litman’s Digital Copyright