Radio_Waves.GIF
Colleague Paul Fakler stopped by on his way to the coffee machine to advise that webcasting as we know it may soon be over. Forced by me to expand, Paul advises:
“Although the public version of the decision has not yet been released pending various redactions of sensitive financial information, the newly-formed Copyright Royalty Board has issued its decision setting new rates and terms for webcasters and certain other digital audio services. The news is not good for webcasters. The RIAA and its affiliate SoundExchange have a long history of proposing wildly high royalty rates for the various compulsory licenses provided by the Copyright Act (except, of course, when they are the licensees, e.g., mechanical licenses from song composers). In every prior proceeding, the arbitration panels have rejected that proposal and crafted a rate somewhere between the RIAA proposal and the licensees’ proposals. Until now. In the previous rate setting proceeding (instituted in 2000 with rates set in 2002), RIAA requested a per-play rate of .4 cent for webcasters. The Copyright Arbitration Royalty Board (CARP, under the old system) initially set a rate of .14 cent per play, which was lowered further on appeal to .07 cent. In 2004, the first time the rates were up for reconsideration, the RIAA and webcasters agreed to extend this per-play rate. The parties could not settle when the rates recently came up for reconsideration again, and an rate proceeding commenced. According to the RAIN newsletter the Copyright Royalty Board issued its decision last Friday, and for the first time adopted the record labels’ full proposed per-play rate of .19 cent (phased in from .08 cent from 2006 through 2010). According to the analysis on RAIN, even the retroactively effective rate for 2006, .08 cents per play, works out to over 100% of a typical webcaster’s revenue. It boggles the mind how a supposedly market-rate determination by the Copyright Royalty Board could end up with such a rate that no sane webcaster ever could have agreed to.”
This is a shame. I was hoping that Bose or Tivoli would invent a table radio with WiFi, that would receive every radio station in the world.
Disclosure: Paul represents a client in a proceeding against Sound Exchange.
Other coverage: TechDirt: “RIAA Pushes Through Internet Radio Royalty Rates Designed To Kill Webcasts.

Effective immediately, in addition to my ongoing role at the Schwimmer Mitchell Law Firm (“SML”), I will be Of Counsel to the New York law firm of Moses & Singer LLP (“M&S”). The Schwimmer Mitchell Law firm continues business as usual. And to answer a question several of you have asked, yes, the Trademark Blog will continue, unchanged.
The new relationship will create exciting opportunities for SML clients. Moses & Singer has an active, nationally recognized transactional, litigation and counseling practice in the fields of entertainment and intellectual property law. The firm has long been a key advisor to companies of all sizes and individuals in a variety of industries including television and motion picture; book, periodical and music publishing; recording; electronic media; and the performing arts. My affiliation with M&S will enable me to introduce clients who need such services to a group of experienced, respected and highly responsive lawyers in other practice areas outside the scope of my current practice, including major intellectual property litigation in the copyright and patent areas.
I should point out that any opinions expressed in the Blog are either my own or stolen without attribution, and are not the opinions of Moses and Singer.

San Francisco Chronicle: “NFL Marketers Want ‘Big Game’ Trademark”:
“One way that advertisers who aren’t NFL sponsors typically attach themselves to the Super Bowl is simply to refer to it as “The Big Game.” As in, “Get your flat-screen TV in time for the Big Game.”
What is a generic term for most people becomes a very specific term in the lamp-blacked eyes of the NFL.
But the Big Game also has a very specific application for Stanford University and UC Berkeley, whose annual football game dates back to 1892. It has been known as the Big Game since 1902, according to San Francisco author Ron Fimrite, who is writing a history of Cal football.”
Also, Canada.com weighs in, attributing the story to us.

Lucas Films has a registration for THE DIG, a video game from 1995, used copies of whichI found for sale on eBay and on Vintagegaming.org.
DIGG is an archetypical ‘user content’ website – it is a news and information site listing stories from all over the web, based on voting by Digg members. Perhaps you’ve seen the DIGG THIS button below some blog posts to faciliate selection. I’ve previously discussed attempts to ‘game’ the DIGG system but that’s another story.
Lucas has now filed a Notice of Opposition (not a lawsuit as reported in some places), alleging that registration of DIGG for news services about, among other things, gaming, would be confusingly similar to THE DIG for a video game. Reaction in the blogosphere is pretty much what you’d expect.
Lucas’ Notice of Opposition is here. If you have a good theory as to what Lucas wins if it wins, tell me and I’ll post it. My totally speculative theory, unfettered by actual facts, is that Lucas is keeping its options open for adapting THE DIG into a different property, perhaps a movie, and will want to broaden its coverage. Steven Spielberg reportedly conceived this game and Orson Scott Card wrote the dialogue for it, so why not?

A reviewer for Grammophone puts a Liszt CD performed by the last pianist Joyce Hatto, into iTunes. ITunes identifies it as Liszt alright, but somebody else as the performer. And the uncovering of a high profile incident of plagiarism in concert music had begun.
The rest of the Hatto story in text form via Stereophile here, and as a NPR podcast featuring some the non-Hatto works in question here.

MercuryNews.com: “Sex.com hijacker pleads poverty after fleeing to Mexico“:
“A man who siphoned millions of dollars from a pornography Web site and fled to Mexico cried poor Monday and asked a judge to erase the $65 million he owes the rightful owner of Sex.com.
Stephen Michael Cohen was released from prison in December so he could surrender assets to Gary Kremen, the online entrepreneur who registered the domain name in 1994. But Cohen told U.S. District Court Judge James Ware that he’s jobless and broke.”

Carl Oppedahl practices trademark and patent law from beautiful offices perched in the Rockies, and from that vantage point, he monitors the online infrastructure of the PTO. He maintains a listserv concerned with the Madrid Protocol (subscribe here) and posted the following, presenting interesting statistics on ETEAS, paper filings and Madrid (reprinted with permission):
“Today a client of our firm asked me “How long does it take for my USPTO applications to show up in TESS?” I did some searching to see how long it takes these days.
Used to be it averaged two weeks for an e-filed case and almost three weeks for a paper-filed case to turn up in TESS. Back in those days, a case would turn up in TARR several days before it would turn up in TESS. So a persistent searcher who wished to try very hard to learn about the most recently filed cases would do so by searching TARR, not TESS (plugging in successive serial numbers until the most recent case had been found).
Summary: These days it seems to average just under a week for an e-filed case to get into TESS. And TARR and TESS match, in the sense that anything that is in TARR is also in TESS; there is not a delay with things turning up in TARR first and then only later in TESS.
Paper-filed cases take about a week and a half to get into TESS and TARR.
Madrid cases get into TESS and TARR essentially instantly, meaning they get into TESS and TARR the same day that WIPO communicates them to USPTO.
Details: Here are some actual search results carried out today (the 25th, a Sunday). I looked for e-filed US trademark applications (1(a) and 1(b)). I looked for paper-filed US trademark applications (1(a) and 1(b)). And I looked for Madrid Protocol applications (66(a)). In each case my goal was to find the most recently filed case. I defined this as the highest-numbered serial number in each series (77, 76, and 79 respectively).
The most recent records to enter TESS and TARR were Madrid Protocol records. The highest-numbered “79” case (Madrid Protocol) was 79034226. This is a case which WIPO communicated to USPTO on February 22, 2007 (this past Thursday). Its US filing date was January 8, 2007, meaning that the time between January 8, 2007 and February 22, 2007 were spent at the Office of Origin (in this case, Sweden) and at the International Bureau. USPTO loaded this case into the USPTO databases on the same day that WIPO communicated it to USPTO.
The next previous day on which Madrid applications got communicated to USPTO was February 15, 2007, exactly a week earlier. I did not pursue this further, but the impression I get is that may be WIPO communicates Madrid cases to USPTO once a week, on Thursdays. If so, then sometimes (as today) the most recent records entered into TESS and TARR are Madrid records, but on other days of the week it might happen that the most recent records entered would be e-filed 1(a) and 1(b) cases.
The second most recent category of cases loaded into TESS and TARR (as of today) were the e-filed cases. The most recently e-filed case to be entered into TESS and TARR was a case that was e-filed at 23:58:34 EST, about a minute and a half before midnight Eastern Time on February 20, 2007 (this past Tuesday). This was application number 77112022.
The remaining category is, of course, the paper-filed cases. The most recently filed paper application to turn up in TESS and TARR was application number 76672824, filed February 16, 2007. So it took about a week and a half for that case to find its way into TESS and TARR.
What fraction of these cases were paper-filed, e-filed, or Madrid?
Of the 1(a) and 1(b) cases (US origin cases) that were filed February 16, 2007, the answer is that just over 95 percent were e-filed and just under 5 percent were paper-filed. This was on a day that there were 1182 US-origin cases filed. On that day, of the 1182 cases filed, 52 were paper-filed and 1130 were e-filed.
At around the same time, a weekly data load from WIPO amounted to 215 cases. This suggests that the workload of the USPTO trademark law offices is lately averaging maybe ten percent Madrid work and maybe ninety percent non-Madrid work.”