The Trademark Blog

Michael Carrier and Greg Lastowka: "Against Cyberproperty"

Ever since cyberproperty burst onto the legal scene a decade ago, courts and scholars have assumed that it is inevitable. This Article shows that it is not. Scholars have examined one element of the link between cyberproperty and property in asking whether cyberspace is the correct model for websites and e-mail servers. But remarkably, they have neglected the other property foundations of cyberproperty.

This Article shows that none of the primary theories supporting property - Locke's labor theory, Hegel's personhood rationale, and utilitarianism - justifies cyberproperty. It demonstrates that the concept lacks property's limits. And it finds that existing statutory prohibitions against spam, electronic invasion, and copyright infringement are more narrowly targeted and less likely to quash competition and speech. The Article concludes that the time has come to abandon cyberproperty.

Posted by Marty at 07:50 PM | Permalink

The Dozier Internet Law Firm came in for recent criticism of copyright mis-use when claiming that posting of its cease and desist letters were barred by copyright. Greg Beck has done some more digging and points us to Dozier's User Agreement. You can't link to it but it's interesting.

Posted by Marty at 08:19 PM | Permalink

Prof Lessig: "On the Texas Suit Against Virgin and Creative Commons."

"Slashdot has an entry about a lawsuit filed this week by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult. He posted it to Flickr under a CC-Attribution license. The parents of the minor are complaining that Virgin violated their daughter's right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer is also a plaintiff. He is complaining that Creative Commons failed "to adequately educate and warn him ... of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use." (Count V of the complaint)."

Posted by Marty at 10:33 AM | Permalink

American REd Cross press release: "American Red Cross Defends USe of Emblem and Mission."

Posted by Marty at 11:28 AM | Permalink

Prof Patry: "Forum Selection Clauses: The 2d Disses The 7th":

"Many commercial contracts have forum selection clauses, including those whose subject matter is intellectual property. In an attempt to overcome common law hostility to such clauses (based on a fear that they "ousted" courts of jurisdiction), the Supreme Court has encouraged enforcement of properly constituted and agreed-to clauses that place jurisdiction in foreign courts over the parties' disputes. (Whether those courts will agree to be so roped into the dispute is a different matter)."

Posted by Marty at 01:10 PM | Permalink

Deborah Wilcox: "Making Deals With Evolving Technologies In Mind" (drafting pointers re anticipating changing circumstances).

Posted by Marty at 10:01 AM | Permalink

Volokh and comment thread on clickwraps and browsewraps and IP rights.

Posted by Marty at 10:46 AM | Permalink

A student at USC has put together 'The Small Print Project,' a collection of electronic contracts of adhesion, with commentary. The purpose of the project is:

" . . . to document experiences — both good and bad — presented by the millions of EULAs (End User Licensing Agreements) as they are both designed and encountered, knowingly or otherwise. This project will only last 8 weeks or so as an academic endeavor, however, this site is designed with the hopes of fostering discussion, suggestion, exposition and implementation of EULAs (electronic and otherwise) in an effort to help define, describe and mediate the nature of agreements in the digital age."

and, perversely, to serve as a forms file. HT Boing Boing.

I'm reminded of the time I reviewed a contract with an inexpertly drafted cross-indemnification clause. As far as I could discern, in the event of dispute, each side paid the other side's legal fees. True story.

Posted by Marty at 12:42 PM | Permalink

Legal Tags discusses the license agreement that comes with genetically modified kittens.

Posted by Marty at 11:41 AM | Permalink

Brinks Hofer: 'Fifth Circuit Rules That Inconclusive Trademark Settlement Is Crackers' (Parties terminate trademark infringement action pursuant to entered agreement - settlement agreement lacked essential terms of a trademark license and held unenforceable agreement to agree).

Posted by Marty at 07:47 PM | Permalink

This case is a must-read, and I would venture that it is a must-teach, in contract drafting classes, from now on.

Read the whole thing, but if you are in a rush, reading the portion of the original agreement between Apple Corp and Apple Computers, particularly clause 4.3, and then read paragraphs 81 to 105 of the decision, for the key as to how the Court interpreted clause 4.3, which said that Apple Computer could use the logo to transmit music, but it couldn't use it to sell CDs.

Apple Corp v. Apple Compueter, [2006] EWHC 996 (ch) (08 May 2006).

Posted by Marty at 04:14 PM | Permalink