Wendy Seltzer Puts the NFL on Notice

Berkman fellow (and Brooklyn law prof) Wendy Seltzer is challenging the NFL in an educational video she’s posted to YouTube. The NFL has now twice filed cease-and-desist letters to get the video taken down, and twice YouTube has complied. The content of the video makes the critical and educational nature of Wendy’s posting, plus her claim of fair use, to anyone who actually watches the video. Query as to whether the bots that generate C&Ds, or those who unleash them, actually watch the videos. Fair use should get a good hearing as a result of this exchange, whether through a DMCA 512(f) proceeding or otherwise. Wendy says her clip is “clear fair use,” but there’s no easy way for you to judge for yourself right now, since it’s taken down.

Professor Mary Wong on Intellectual Property Rights and Rhetoric, with Nesson as Interlocutor

Professor Mary Wong of Franklin Pierce Law Center is here today at the Berkman Center. Mary’s talk is a series of provocations about language. She’s taking on the trope of the individual author. She is of the “dualist school,” that there’s a minor, but existing solution to do more with natural rights-type reasoning than the United States utilitarian framework that undergirds our IPR system.

Professor Charles Nesson, the Berkman Center’s founder, who thinks a lot about the rhetorical frame, put it nicely: Mary honed in on both the stability and the fluidity of the rhetoric around intellectual property rights.

The single greatest problem in US law in this area, Charlie says, is that the burden of proof in fair use falls on the person re-using the work, not on the person asserts her or his underlying right.

What could we do, Charlie asks? We could think about universities as a client, and law reform as our tactic. What if we were to take up as a cause a shifting of the burden of proof in the fair use context.

Ethan Zuckerman pushed back on Mary’s suggestion that the Universal Declaration of Human Rights might be a good model in terms of language for reframing of the rhetoric around IPR. It’s a shaky foundation, EZ argues, kind of like trying to build community in Palestine. EZ says that Mary is spending her time in the aspirational zone, not in the real world. What is it that we actually do, EZ wants to know? In universities, we find texts we like and xerox them and give them to students, for instance (not at the Berkman Center, of course, but…). We should work from there and try to get to a legal regime that works, says EZ.

If you’ve missed her talk in real-time, please find it at MediaBerkman.

Launch of LegalForce, Creation of Markets for IP

I got word today of the launch of a new service called LegalForce. They’re creating an online marketplace for patents. They’ve also got something of a community-building idea for stakeholders in the patenting system, it appears. It ‘s a seed-funded company out of Palo Alto. They welcome inquiries from academics who wish to do research on their data set. Jim Moore — who thinks and works extensively on issues related to patents, software, and innovation — is saying very positive things about LegalForce and what its launch means.

This model makes me think of the argument that Kenneth Cukier put forward in The Economist (reg. req’d.) about a year ago, when he described the development of a market in patent rights — in Mr. Cukier’s view, a positive thing, on balance.  A podcast/interview with Mr. Cukier on this argument is still up, and it seems even The Economist is willing to let you have these thoughts for “free.”

What does it mean?  Surely it’s another sign — not unlike the PatentBoard’s section in the Wall Street Journal every Tuesday — that intellectual property rights have become an asset class.

Tom Rubin comes to the Berkman Center and Practical Lawyering class

The chief copyright, trademark and trade secret lawyer for Microsoft, Tom Rubin, has been a consistent contributor to our teaching program at the Berkman Center for the past three years. He’s been enormously generous with his time, meeting with Berkman-related students, faculty and fellows over several years. We’ve learned a great deal from Tom and his colleagues, like Ira Rubinstein and Jason Matusow and Annmarie Levins during their respective visits.

One of the topics for class today (Practical Lawyering in Cyberspace at HLS) is what it took for Tom and his colleagues to arrange for Creative Commons licenses to be built into the next release of Microsoft Office. Tom’s leadership was essential to making this integration possible. The importance of this move is that it enables people to apply Creative Commons licenses very simply to Word documents. As Lawrence Lessig put it at the time of the announcement earlier this year, “This is important to us because a huge amount of creative work is created inside the Office platform. Having a simple way to add Creative Commons licenses obviously helps us spread those licenses much more broadly.”

This class, which I’m co-teaching with my colleagues Jeffrey Cunard and Phil Malone, is a ton of fun to participate in — certainly as one of the teachers, anyway. The idea is to use real-world examples of cyberlaw matters as a means of teaching also the procedure, strategy, and tactics that go into the practice of law in this field. Jeff, who is a partner at Debevoise (and in fact the managing partner of their DC office), seems to have worked on every major matter in our field over the past two decades. Phil was one of the lead lawyers who brought the DOJ’s protracted action against Microsoft (and Tom still talks to Phil when they are at Berkman together!). We’ve also has Scott Harshbarger here in class last week to do the HP case and some of the spyware matters from the perspective of a government lawyer. It’s a highly applied means of teaching and not the usual HLS fare, which has good and challenging aspects to it. But fun, to be sure.

Special Copyright Podcast

The Berkman Center’s increasingly terrific new media production team has rolled together this special-edition podcast on copyright in the context of teaching and learning. It’s an extension of the work done on the Digital Learning Challenge, led by Prof. Terry Fisher (the first voice you hear on the podcast) and former Berkman fellow, now Prof. William McGeveran, and funded by the Mellon Foundation. The theme of uncertainty in the digital copyright realm is particularly real in the context of using works in teaching and research, despite all manner of reasons why we wouldn’t want that to be so.

A few new firsts at the Berkman Center

Charlie Nesson and his daughter Rebecca Nesson are hosting the Tuesday lunchtime session at the Berkman Center today.

– One first is that this is the first video webcast lunch event. We’ve regularly webcast these lunches audio-only. This week, with the help of Indigo Tabor, we are offering a live feed with video as well as audio. (The real-time webcast is 12:00 – 1:30 p.m. EDT today, Tuesday, Sept. 12, 2006.) So, too, is it being offered in Second Life, where 24 people are tuning in at the moment from Berkman Island, we’re told.

– The other first (actually, I’m certain there are more than two, since Becca and Charlie are involved) is that the class that they are talking about, Cyberone: Law in the Court of Public Opinion, is being taught IN Second Life, a first for Harvard Law School and Harvard Extension School, anyway. If you haven’t seen the promo video for it yet, it’s a must.

It remains to be seen if these firsts will stick. It remains to be seen if these firsts will lead to other good things, as the establishment of Creative Commons by Prof. Lessig or the first podcast series hosted here by a combination of Dave Winer, Chris Lydon, and Bob Doyle. But it’s fun to be sure. Charlie and Becca keep the Berkman Center young and just a bit hip, and the likes of Rodica, Dean, Gene, and John Lester from Linden Labs keep giving things like these experiments life.

(John Bracken called this first first, way before me, and added more about a Berkeley example.)

David Hornik on the Web 2.0 TM Controversy

David Hornik, famous as the VC at August Capital who made some of the first true web 2.0 investments, is actually a lawyer. And a good one. Not to mention a Harvard Law School grad. (Who now teaches at a business school.) He has the go-to post on the web 2.0 trademark controversy, in which a conference promoter (CMP) sent a cease-and-desist letter to an Irish non-profit with a plan to hold a conference using the term “web 2.0” in a manner that CMP believed violated their rights. Equally important, to be sure, is Tim O’Reilly’s summation/apology post (CMP works with O’Reilly on the huge conference with the relevant name.) The NYT piece, by Sara Ivry, is also good.

My view: this issue is another example of IP-law-gone-silly. And I agree with David when he writes:

“… I believe Intellectual Property needs to inform business decisions, not dictate them. Entrepreneurs should never take on risks that they don’t understand and appreciate fully. But that is not to say that entrepreneurs should never take on risk — they should just choose to take on that risk after fully exploring its scope. In some cases that risk is Intellectual Property risk (will my ability to enforce my trademark be diminished by my failure to enforce it in this instance?). In other cases that risk is pure business risk (will my long-time supporters turn on me if I enforce my trademark in this instance?). Or perhaps a mixture of the two.

“I am quite certain that had CMP fully appreciated the potential business risk of sending a Cease and Desist letter to [email protected], they would not have done so. More importantly, I am certain that if Tim O’Reilly had had the opportunity to consider and comment upon the risks of such aggressive trademark enforcement by CMP, he would have urged them to think better of it. But, alas, whoever ultimately made the decision to crack down on the use of the ‘Web 2.0’ service mark (I suspect it was a lawyer, not a business person) did not fully consider the ramifications of doing so and the result of that action have reverberated throughout the blogsphere.”

The big distinction here is between having IP rights (separate conversation: debating the merits of whether the scope and duration of the rights are too big) and seeking to enforce them — in every instance — against others who may possibly be infringing them. That’s where business people should call the shots, not the lawyers. The point is not that you shouldn’t have IP rights, nor that you shouldn’t ever enforce them. It’s that there’s an art to know when to press your case and when to use other tools at your disposal to get your way, whatever that might be — or even to make the decision to look the other way, or to give away your rights to embrace the community’s embrace of something to which you have the rights.

As an aside: likewise, what do you think that the PR firm in the Lance Dutson case in Maine would give for a do-over? Or Diebold? Alas, no mulligans in IP law (and related) enforcement matters.