Amy Harmon wrote an article in today’s NY Times entitled “A Corporate Victory, but One That Raises Public Consciousness.”   One quote stuck out for me:

“In 1998, the [Act] was passed with hardly any debate after heavy lobbying by the Walt Disney Company . . . “

This set off a memory.  With the thanks of Nexis, a colleague, acting on my hazy recollection, was able to pull an article from the February 23, 1995 New York Times entitled “A Rights Movement With Song at Its Heart” (page 13, Section C).

The article described a meeting of a nonprofit group named Amsong, consisting of composers and children of composers, and indicated that it was lobbying Congress on behalf of proposed bills to extend copyright terms.  The president of Amsong, the daughter of Richard Rodgers, indicated that her organization was representing “. . .people who are putting a child through school on one song they wrote.”

The article does not indicate that copyright extension was to the benefit of large entertainment companies.  In fact, the only reference to externalities had the opposite inference: Amsong’s lawyer stated that “as works fell out of copyright, record companies and producers, freed from having to pay royalties, stand to reap a windfall  . . .”  There is no mention of Disney or any other entertainment company in the article, or to the fact that the products of the first era of American mass media, most notably Mickey Mouse, were hurtling towards the public domain.

I remember reading this article in 1995 thinking (1) how brilliant the PR strategy was, as this was the only human face of copyright extension; and (2) how amazingly unanalytical and uncritical the article was.

So is this a corporate victory which raises the NY Times’ Consciousness as well?

Someone registered a domain name which is a one-letter variation of my client’s famous trademark (same fact pattern as the GE case below, different client, this happens a lot).  One of the 3 elements I have to establish to prevail in a UDRP is bad faith.  Because registrants tend not to create written evidence of bad faith, this usually has to be proven using inference.  The most common evidence of bad faith tends to be a pattern of similar behavior on the part of registrant.

The problem is that patterns are getting harder to prove.  One cause is the fragmentation of Whois.  Since the registry/registrar era began, there is no central whois which allows for searching by registrant name (and of course registrants, like the one in this case, give multiple fake names when registering domain names).  In this situation I had to trace back using an admin email address to find a telephone which I Googled.  That revealed a UDRP decision against the “true” registrant in which they registered a typo-version of someone else’s famous trademark. 

But here’s the thing.  If I settle with this registrant, there will be no UDRP decision.  Given that whois will give the date of the transfer as a new “Creation date,” there will be no record that the prior registration ever existed.  The next person that this registrant rips off will have no way of knowing that this guy did the exact same thing to my client.

Which brings me to today’s topic: market solutions for regulatory short-coming.  Snapnames (provider of SnapBack name “back order” services and whose State of the Domain reports I have praised previously), and Dialog (a Thomson Group company), have come up with a WhoWas database containing archival whois data back to 1997.  The service is available both to Dialog subscribers and as an open access credit-card based Web service.  The GC at SnapNames was nice enough to demo the product for me and it worked as advertised.

Personally, I would rather that ICANN press the registry operators to provide access to archives so that it could be easily established whether, on any given day a given domain name existed and who was the registrant, but if the Lord had intended simple solutions to the DNS, He/She wouldn’t have organized ICANN as a not-for-profit California corporation.

This is from National Law Journal’s “The Docket:”

Man says show, movie infringe on his name
A Hot Springs, Mont., man who legally changed his name to Jack Ass in 1997 has filed a lawsuit against Viacom International Inc., the parent company of MTV, producer of the Jackass television show and movie. In his complaint, the plaintiff alleges that he changed his name to Jack Ass and created a character named Andi Ass to raise awareness about the dangers of drinking and driving after his brother Andy was killed in a vehicle accident. He accuses MTV of copyright infringement.
Ass v. Viacom International Inc., No. DV-02-111 (Sanders Co., Mont., Dist. Ct. Nov. 29).
FOR PLAINTIFF: pro se