It is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

It was a busy week for copyright news with updates to many of the biggest ongoing copyright cases, including one that looks like it might be speeding to a very quick conclusion and another that may be getting a reprieve.

All in all, there were five stories this week including news from all over the copyright world including our “Weird Story of the Week”.

This week’s stories include:

• SCO Loses Again, Case Closed
• ISOHunt Appeals Injunction
• US Copyright Group Has Some Explaining To Do
• Neil Gaiman and Todd MacFarlane In a Copyright Spat (or two)
• Foo Fighters Sue Realtor Over Guitar Riff
• And Many more…

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

About the Hosts

Jonathan Bailey

Jonathan Bailey (@plagiarismtoday) is the Webmaster and author of Plagiarism Today (Hint: You’re there now) and works as a copyright and plagiarism consultant. Though not an attorney, he has resolved over 700 cases of plagiarism involving his own work and has helped countless others protect their work and develop strategies for making their content work as hard as possible toward their goals.

Patrick O’Keefe

Patrick O’Keefe (@iFroggy) is the owner of the iFroggy Network, a network of websites covering various interests. He’s the author of the book “Managing Online Forums,” a practical guide to managing online communities and social spaces. He maintains a blog about online community management at ManagingCommunities.com and a personal blog at patrickokeefe.com.

1: Stewart Rules: Novell Wins! CASE CLOSED!

First off today, SCO’s legal campaign against Linux is, for all practical purposes, over. The judge in the SCO’s case against Novell has ruled that the case be closed. SCO famously claimed that Linux was an unlawful derivative of its Unix operating system, even suing IBM for allegedly placing the code into Linux, but Novell stepped in claiming that they never sold the copyrights to SCO and SCO had no standing in the lawsuit. A jury ruled in April that Novell was correct and SCO’s last-ditch attempt to have the verdict thrown out was denied, effectively bringing an end to the case. SCO is currently in bankruptcy and will likely be liquidated now that its legal alternatives are exhausted.

2: US Band Sues Over Riff Lift

Next up today, for anyone still actually reading this column, the U.S. band Foo Fighters are suing the real estate firm ReMax in Australia claiming that the company used one of their guitar riffs without permission for a commercial. What makes this case extraordinary is that the lawsuit appears to have stemmed from an off-hand comment on a forum dedicated to the band which noted the similarity, followed by a comment saying that “If FF did know, I highly doubt they would care, and if they did, it would be thrown out of court.” The first part of that statement appears to have been untrue, and the courts in Australia will decide the second. The band is seeking unspecified damages and the case is to be heard in August.

3: 3 More R-J Copyright Suits Filed; Defendant Responds

Finally today, the Las Vegas Review-Journal, through its agent Rightshaven, has filed suit against three more Webmasters for unlawfully using the newspaper’s content. This brings the total sued to 37 though other defendants are responding saying that they were not notified of the infringement, were often unaware and that the potential damages is only in the hundreds of dollars as the content from the newspaper is not registered with the Copyright Office. The defendants are calling this an abuse of the legal system and are seeking to have the cases dismissed.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

1: SCO loses again: Jury Says Novell Owns UNIX SVRX Copyrights

First off today, SCO’s legal campaign against Linux may finally be coming to an end. The company lost a critical court case that found the copyright in UNIX code had stayed with Novell, who sold them the rights to sell the product previously. SCO had claimed that Linux was an unlawful derivative work of its UNIX code and sued IBM as well as major Linux users for infringement. This verdict, which follows an Appeals Court verdict forcing a jury trial on the subject, which in turn followed a judgement in favor of Novell, seems to put an end to those cases and, given the current state of SCO, likely the company as well.

2: New Litigation Campaign Quietly Targets Tens of Thousands of Movie Downloaders

Next up today, an organization called the US Copyright Group has filed over 20,000 lawsuits against alleged file sharers in the United States. The group represents an assortment of independent film makers and has unofficial support from the MPAA and the Independent Film & Television Alliance. The group has filed the 20,000 “John Doe” lawsuits to learn the names of the alleged file sharers and then, according to their statements, demand modest-sized settlments from them to avoid an expensive litigation. Though such campaigns have been done in Europe, where they were met with controversy, this is the first such effort in the U.S.

3: “Copyright Lawsuit filed against you”

Finally today, in a similar vein, scammers are using fake copyright lawsuit emails to spread malware. The email, which contains a threatened lawsuit over copyright infringement appears to come from various law firms but actually links to a contaminated Word file that attempts to install malicious software. They may be spammers and malware-spreaders, but they do have good timing.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

1: High Court Finds Newzbin Liable For Copyright Infringement

First off today, Usenet search service Newzbin was found liable for copyright infringement in a London courtroom yesterday. The company, which had brought in over £1 million ($1.5 million) in 2009, did not actually host infringing content but enabled users to find and download NZB files, the Usenet equivalent to torrent files. The judge ruled that the site did not take adequate steps to prevent infringing uses and even encouraged the behavior by the way it presented results. No word on damages at this time though an injunction is widely expected.

2: SCO Novell Jury Decision Pending

Next up today, the jury is out on the SCO/Novell case, which aims to decide who the copyright holder in the Unix operating system is. A loss in this case for SCO could spell a death kneel for the company as the company has claimed that Linux is an unlawful derivative of Unix and has sued IBM and other companies to that end. However, if Novell turns out to be the copyright holder, those cases come to an end and the company is widely expected to go bankrupt.

3: Warner Bros. Recruits Students to Spy on Pirates

Finally today, a job posting on the Warner Bros. site has caught the eye of those in the copyright field as the company seeks to hire an intern for copyright enforcement, including scanning the Web for infringing material, issuing takedown notices and making trap purchases. The position pays £17,500 ($26,000) but the deadline for application is tomorrow.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

As we bring an end to the year 2009, we close the book not just on one of the most interesting years in copyright but also one of the most interesting decades.

When January 1, 2000 came about there was a great deal of uncertainty about the future of copyright. The DMCA had just became law a few years prior and the lawsuit between the RIAA and Napster was just starting to make headlines. There was clearly a war brewing but no one was sure where it would lead.

The 2000s were the decade of that war. From the opening bell to an ongoing conflict today, the Web grew up to a point where copyright industries could no longer ignore it and they began to fight back as well as embrace it.

It was a decade of copyright conflict, as well as new ideas and new technology. Looking back on it, it is almost impossible to pick the ten biggest stories, especially since history is yet to decide what is most important, but I decided to make a run at it nonetheless.

With that in mind, here is my top ten copyright stories of the past ten years…

10. Apple Sues Psystar

In July of 2008 Apple sued a small Florida-based company called Psystar for copyright infringement. Psystar was the maker of so-called Hackintosh systems, non-Apple computers with OSX pre-installed, which is against Apple’s user license for OSX. Psystar countersued claiming, among other things, copyright misuse.

The two sides engaged in a very bitter lawsuit (technically two lawsuits as there was a separate one for OSX Snow Leopard and Leopard) but the tide quickly turned against Psystar as temporary restraining order barred Psystar from selling its clones and that order was, in turn, recently made permanent.

Psystar and Apple did partially settle their differences but there are question surrounding Psystar’s latest product, Rebel EFI, which allows home users to install OSX on Psystar machines.

Apple hasn’t taken a real stance on this program yet, but other clone makers use a similar process without any intervention from Apple.

9. SCO Tries to Kill Linux

In 2003 SCO sued IBM for $1 billion claiming the company had infringed its copyrights by putting code from its Unix operating system into Linux. These claims, however, have remained largely unproven even after over six years of legal wrangling.

The case, however, has moved like a soap opera. SCO and IBM exchanged their lawsuits and SCO also filed suits against Autozone and DaimlerChrysler, two Linux users. However, Novell eventually jumped in and sued SCO claiming that SCO did not own the rights to the Unix code they were alleging was infringed. According to Novell, who sold SCO the code in a previous deal, SCO did not purchase the rights to the code in the contract.

The district court seemed to agree and, in August 2007, ruled that Novell owned the code in question. The next month, SCO filed for bankruptcy protection.

However, the case isn’t quite dead yet, an appeals court has ruled that the lower court was hasty in making the determination about Novell’s ownership without a trial. As such, that case has been revived and a win by SCO could, at least in theory, bring the other lawsuits back as well.

Confused? Here’s a great timeline of the events on Wikipedia.

8. UMG and Viacom Take On Veoh and YouTube

In 2007, Viacom captured some big headlines by suing Google and YouTube for $1 billion for copyright infringement. However, a similar suit had already been filed by the record label UMG against the much smaller Veoh and that case was much farther along.

The problem was simple. Though the DMCA was not even ten years old, it was already looking antiquated, meant for a Web that was very different, before sites such as YouTube existed. It was unclear if or how the law would apply to them and copyright holders, frustrated by infringement on video sharing sites, decided to sue and let the courts decide.

In UMG’s case though, the court ruled against them, UMG has promised a swift appeal but the case was made clear that the DMCA safe harbor protections, which protect hosts from being held liable for infringements by their users, apply to sites like Veoh.

However, the YouTube case still may turn out differently as Viacom claims to have found evidence that YouTube had actual knowledge of infringing material and may have even uploaded content themselves. As such, the two cases may provide good tests for how far the safe harbor protections go and, through that, could play a major role in determining the kinds of services that available on the Web in the future.

7. Perfect 10 Sues Google

In 2004, adult content producer Perfect 10 sued Google over its relatively new image search engine. At issue was Google’s indexing and creation of thumbnails of unauthorized copies of P10′s images. Though the district court ruled against Google on the issue of thumbnail creation, the Ninth Circuit Court of Appeals, to where the case was appealed, ruled that they were a fair use.

The decision has been a touchstone in recent copyright history and has been the basis for much of the advancements in search engines over the past few years. It is also one of the most-cited copyright rulings as it lays down much of the framework for how fair use applies to the Web and where many of the limits are.

Note: Commenter Åsk Dabitch reminded me I omitted the Kelly v. Arriba Soft in talking about the Perfect 10 Case. The Kelly case was a 2002/2003 one that had many of the same facts but dealt with a much smaller search engine. Though it was the first to rule that thumbnails in a search engine were a fair use, elements of the case, such as in-line linking of images, were batted back to the lower court, which was unable to take the case as Arriba Soft had gone out of business. As such, Perfect 10, which was handled by the same court, has really become the definitive fair use case on this topic.

6. The Google Book Search Saga

In 2005 both the Author’s Guild and the Association of American Publishers sued Google over its book search project, which scans and indexes books from various libraries to make them searchable on the Web and also to display relevant snippets.

However, where the Perfect 10 case highlighted Google’s willingness to fight for fair use for everyone, the Google Book Search lawsuit brought an end to the era of Google as the legal champion as Google sought out a controversial settlement that would give them, and only them, the rights to scan and display books.

The first draft of that settlement, which would allow Google to scan and display in copyright but out-of-print books in exchange for a slice of the revenue, was scuttled earlier this year after the Department of Justice filed objected to elements of it. A revised settlement, which offers greater protection for international authors and for authors who can’t be located, was granted preliminary approval and is being commented upon now.

5. The Pirate Bay Saga

Established in 2003, The Pirate Bay has become one of the decades most interesting and most important copyright stories.

Since their founding, they have been sued repeatedly, had their hosting cut several times, been forced to move the site repeatedly as well, they had their host raided and, most importantly, the four founders were convicted of criminal copyright infringement in a joint criminal and civil trial.

Other bittorrent trackers and file sharing services have come and gone but The Pirate Bay has managed to hang on and is still active today. Through a combination of regular relocations to friendly countries, a shadowy organizational structure and solid technology, The Pirate Bay has been able to repeatedly and deliberately thumb the eye of major content creators and still keep the lights on.

Perhaps even more importantly, The Pirate Bay was the inspiration for The Pirate Party, which recently won two seats in the EU Parliament.

4. Three Strikes

The decade saw the war against file sharing heat up and one of the tools that has been repeatedly mentioned as a possibility for curbing such sharing is “three strikes” laws, which would disconnect file sharers after they received two warnings.

France, in many ways, has been at the forefront of this debate, passing a three strikes law only to have it declared unconstitutional as it did not allow judicial oversight. However, the government quickly regrouped and passed a new version of the bill with judicial oversight that has a better chance of surviving constitutional challenges.

New Zealand was also in the middle of this debate beginning in late 2008 with its proposals for section 92a of its copyright code, which would have forced ISPs to ban alleged infringers. After a significant amount of protest, that bill was scrapped and a new draft of it offers more oversight.

However, the issue has been raised in countless countries over the years and may be a part of the ongoing ACTA treaty negotiations. Only time will tell on that front.

3. Grokster Sets a New Standard

One of the most-cited copyright cases of all time has been the 1984 case Sony Corp. v. Universal City Studios, better known as the Betamax case. The case found that Sony’s Betamax product, which allowed home users to record movies and TV shows, was infringing as it was “capable of substantial noninfringing uses.”

Many were interested to see how the ruling would apply to file sharing networks, including Grokster, which had been sued by movie studios. However, in its 2005 decision, the Supreme Court punted in the issue and created yet another new test, the inducement test, to see if a product or service “induces” users commit copyright infringement. The court ruled against Grokster, which in turn forced the final closure of the service.

The Grokster ruling is now almost always cited along with Betamax and it created another test that inventors, including Web developers, have to be aware of when creating new products that interact with copyrighted works.

2. The RIAA Lawsuits

In September of 2003 the RIAA sued over 250 alleged files sharers for copyright infringement, marking the first time that individual file sharers had been sued by the organization. Since then, the RIAA has filed tens of thousands of such lawsuits, the majority of which have been settled before ever reaching a courtroom, usually for a few thousand dollars, but two have made it all the way to a verdict, the Joel Tenenbaum case and the Jammie Thomas case.

Though all three of the trials (the Jammie Thomas case was tried twice) were major victories for the RIAA in the court, resulting in large damage awards, the effort has failed to curtail illegal file sharing at all. As a result, the RIAA announced it would stop suing individuals, though it has been finishing up cases already in progress, and focus instead on working with ISPs to cut off file sharers from the Web.

However, as of today, that effort has produced no significant fruit other than offers to pass on infringement notices.

1. Napster Shuts Down

In 2001, as part of a lawsuit by the RIAA (though the Metallica one was far more publicized), Napster was forced to close their doors, after an injunction was filed against them. The lawsuit, which began in 1999, marked the beginning of the public’s awareness of copyright issues on the Web, the shutdown, marked the beginning of the copyright fight.

Though Napster itself would be reincarnated many times, including most recently as a legitimate music service that was purchased by Best Buy, its mark as the first widely-known file sharing network, and first such closure, remains with us today.

Almost any story on this list or that took place in the 2000s can be traced back to this one incident. Its closure paved the way for the slew of file sharing services that came after it, including The Pirate Bay, as well as the new file sharing technologies that have replaced it, including bittorrent.

In many ways, this moment defined the decade.

Honorable Mentions

Really fast, here are a few stories I seriously considered for inclusion but decided against for one reason or another:

1. Radiohead and Trent Reznor Give Away Music – Could be the beginning of new business models for music.
2. Remote DVR Ruled Legal – Cablevision wins its fight to remotely host DVR content.
3. iTunes Store Launches – Another critical business element.
4. DRM Debacles/Death of DRM -Many stories to choose from.
5. Many, Many More…

Bottom Line

The 2000s were a very busy decade for copyright news. The Web grew up a lot during the decade but copyright issues played a very critical role in many of the growing pains it encountered along the way.

My hope for the 10s is that it can be the decade where we stop the fighting and start working on solutions, where copyright holders, users and intermediaries work together to create sustainable business models for the new digital world.

Though it has been an ugly decade for the copyright wars, with the battle lines drawn, it may be easier to start negotiating and finding common ground. It’s obvious that this is an emotional issue that affects people personally and financially very deeply, that makes it all the more important we treat these issues with respect and work with one another to find good answers.

There is no magic bullet, any solution will need a combination of law, technology and business savvy to make it work, but if we are willing to work with one another, it can happen.

1: Pirate Bay Appeals Postponed Until Next Year

First off today, if you were excited about the upcoming Pirate Bay appeal, it looks like you will have to wait until sometime next year, possibly as late as summer. The appeals trial has been postponed to allow the Swedish Supreme Court time to evaluate allegations of bias against two of the judges involved.

According to defense attorneys, two of the presiding judges members of pro-copyright organizations that could bias them against their clients, who were convicted of assisting copyright infringement earlier this year and sentenced to roughly a year in jail. Similar allegations against the district judge were fruitless for the defense and the appeals court also rejected by the appeals court. This seems to make the chances for success slim.

Still, the trial has been delayed and it doesn’t seem as if either side is going to budge.

2: SCO Fires CEO Darl McBride, Architect of Litigation Strategy

Next up, for those who have been following the multiyear saga between Unix vendor SCO and Linux, today offers a very interesting twist.

According to an SEC filing, the company has fired Darl McBride, the famous and often lampooned CEO of the company who designed the litigation campaign against Linux and was its public face. McBride, along with SCO accused IBM of inserting SCO Unix code into Linux and sued IBM as well as some major Linux using companies.

However, now SCO COO Jeff Hunsaker and CFO Ken Nielsen will take over operations of the company. The change is part of a restructuring plan under bankruptcy protection, which SCO is currently under.

3: Judge Allows EMI to Personally Sue Robertson

Finally today, in the ongoing case of EMI and MP3Tunes, the judge in the case has allowed the label to sue the MPTunes’ founder, Michael Robertson, in addition to suing the company. This came after new testimony from the company’s former president, Emily Richards, which indicated that Robertson had had a direct role in making decisions about the company’s direction.

The lawsuit stems from MP3Tunes’ use of “lockers”, which allow users to stream any music they upload from anywhere they have Web access. According to EMI, this is a violation of their copyright and are suing the company.

Another controversial element of this case is that Richards was reportedly paid up to $10,000 for her testimony, money the label says was to cover legal fees, attorney fees, etc., and that the testimony in June, upon which this decision was made, is different from her unpaid testimony, which was made back in April of last year.

Robertson, however, is no stranger to litigation. The founder of MP3.com, which was forced to pay hundreds of millions in damages over a copyright lawsuit, has been a regular target. However, he has called the attempts to go after his person assets “despicable” and plans to continue fighting the suit.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

1: It’s Baaaack … Appeals Court Resurrects SCO Lawsuit

First off today, we have a zombie infestation. The SCO/Novell case has been brought back from the dead and with it may come SCO’s case against IBM and other parties using Linux.

Years ago, SCO famously claimed that Linux violated SCO’s copyright by including code owned by the company as part of its Unix offering. SCO sued IBM for $1 Billion claiming that the company had put SCO-owned code into the kernel. However, Novell managed to stop those efforts short by winning a summary judgment saying that, even though SCO purchased Unix from them for $149 million, the copyrights did not come with it.

However, now an appeals court judge has overturned that summary judgment. Though no judgment was made on the merits of the claim, it was sent back to the lower court to be decided by a jury trial. There are concerns among many in the Linux community that this lifeline to their lawsuit against Novell could revive the one against IBM and possibly the legal threats against Linux users.

Still, time may be running out for SCO, which has already filed bankruptcy and may be in dire financial straights if its stock prices do not improve.

2: Music Publishers Group Files Copyright Suit

Next up, the National Music Publishers Association has filed a lawsuit against two lyrics sites LiveUniverse Inc., and its owner Brad Greenspan, who was a founder of Myspace, and Motive Force LLC, along with its owner Sean Colombo.

LiveUniverse owns LyricsDownload and Motive Force owns LyricWiki, both of which are sites that allow visitors to locate and read Lyrics online.

Last week we reported that copyright holders had stifled LyricWiki, requiring the site to remove it’s API, which in turn hampered some mobile applications that were using the service. This appears to be the next step in the war against online lyric sites.

3: UK file-sharers to be ‘cut off’

Finally today, efforts by UK rightsholders to deny Web access to repeat file infringers is moving closer to a reality. Though the original “Digital Britain” report called for a 2012 deadline for determining if technological measures were needed, officials are now saying that it is too long to wait and are beefing up their efforts to pass requirements for ISPs to disable accounts on infringers.

This is, of course, a very controversial approach and one that has caused a great deal of protest in France, South Korea, Australia and New Zealand, countries where similar laws have either been proposed or passed.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

We also have updates to several cases including Madonna’s new album, the Irate Gamer gets parodied and Hulu comes back to YouTube.

Finally, in weird copyright news, there is a debate about whether or not PostSecret is having their rights violated by NBC, visual evidence why Linux is cooler than Windows and conclusive proof that there is no honor among thieves.

Remember, as usual, this week’s linkroll is a “raw” link list. Some stories are duplicated, some do not point to their original sources and some may not be accurate. A great deal of refining goes into producing the show notes for the Copyright 2.0 Show.

Finally, there was an issue with the feed for this site over the past week. For those of you that are getting this entry along with the previous five or more, I apologize. There is a bug in WordPress 2.5 that causes the feed to break when a site uses fancy permalinks. The fix is easy, but it has to be done by hand. For more information, see this link on the WordPress Forums.

The feed should function normally now. Thank you for your patience.

What do the following have in common: Ubuntu, Firefox, OpenOffice.org, WordPress and osCommerce.

The answer is that, in addition to all being open source projects, they are also all trademarks, registered and protected.

Of course, in recent years, trademarks have become very pervasive. Even Digg, which licenses all user-posted content into the public domain, adamantly protects its trademark, shutting down sites that have similar names.

While there is nothing wrong with having and protecting a trademark, it is a good business move, what is different is that, traditionally, only enterprise open source projects such as Red Hat have taken advantage of trademark protection. Community projects rarely, if ever, applied for or enforced trademarks. Though using another open source’s project name was considered bad form, as with the Firebird/Firefox mix up, legal protection was rarely sought after or necessary.

However, the injection of trademark into the open source movement is a sign of a larger trend when it comes to intellectual property. A sign that copyrights and patents may be losing some of their prominence while trademark, their often-forgotten brother, may be stepping into the light for his time to shine.

Background

According to Harvard Law School, a trademark is “a word, symbol, or phrase, used to identify a particular manufacturer or seller’s products and distinguish them from the products of another.”

Unlike copyright, trademark is not designed to prevent copying or public display, but rather, confusion in the marketplace. The standard for trademark infringement is simply “likelihood of confusion” and that is determined on a set of variables including.

1. the strength of the mark
2. the proximity of the goods
3. the similarity of the marks
4. evidence of actual confusion
5. the similarity of marketing channels used
6. the degree of caution exercised by the typical purchaser
7. the defendant’s intent

In short, you can not use a trademark in a way that is likely to cause confusion as to the source of the product or service. Delta Faucets and Delta Airlines can coexist because they are two very different fields but if one attempts to found another computer company named Apple, they will likely find themselves in a courtroom very quickly.

Also unlike copyright, trademarks have to be defended in order to remain valid. Registering for a copyright means defending it actively. This is why Mozilla has a robust trademark policy and you can not use WordPress in a domain name without approval.

This trend toward stronger trademark protection, however, is bound to affect open source and the Web in general.

Impacting Open Source

A trademark is, fundamentally, an intellectual property right. Having a trademark gives you protections over an intangible creation the same as a copyright gives you protections over creative expressions and patents over inventions.

Since all intellectual property law is interconnected, it is inevitable that a greater push in one area will impact others. Since open source and other copyleft projects eschew many of their copyright protections, trademark becomes a way to retain control over their work when, otherwise, they would have almost none.

For example, under the terms of the GNU General Public License, I would be perfectly free to take the Firefox code and create my own browser based upon it, so long as the new browser was licensed under the same terms. However, with Mozilla’s trademark policy, I could not call this new browser “PT Mozilla” or “Jonathan’s Firefox”. Even non-official builds of Firefox itself have to carry different names and icons to avoid trademark infringement.

This means that any new browser I create would require a whole new name, whole new marketing and a whole new brand. Though some have been successful at doing just that, most notably Flock with Firefox and gOS with Ubunutu, the vast majority are not. The uphill battle is just too great and the mother project usually just absorbs any worthwhile code from the lesser-known fork.

What this results in is that most of there is no incentive to fork off new versions of a product as the chance of success if very low. Once a project has gotten established, reached a point where it warrants a trademark and has burned itself into the public mind, it can almost prevent competition. There will be no “Firefox +” or “WordPress Lite” without permission from their owners.

Perhaps even worse is that, should the company behind the mark close down, it takes up to five years before the mark is available again for public use. That is, of course, assuming that the trademark isn’t simply sold and another company, perhaps one with less interest in the product.

Though rampant forking has been one of the biggest problems with open source technology, trademark law is prone to many of the same abuses and problems as both copyright and patent. Relying on trademark to make open source profitable and sustainable may open it up to many of the same problems as a reliance on other intellectual property.

This isn’t to say it shouldn’t be done or that it is a bad idea, just that every business plan has risks, especially new ones.

Trademark As a Business Model

What we’ve seen over the past few years is the rise of trademark as a business model. You create, or have your users create, large amounts of copyrightable content, give the content away for free, often giving up many rights to the work and then leverage your brand name to make money.

It’s a system that has been used repeatedly with a great deal of success on the Web. Many sites, including this one, have followed that principle and made it work.

Open source projects have begun to use it as well. You can get a free WordPress blog on any number of sites, but most still choose to get one from WordPress.com. The strong brand name and reputation make it an preferred choice. That type of preference, generally, comes from a combination of a good product, successful marketing and diligent trademark enforcement.

Indeed, without trademark protection and enforcement, it is unlikely that many open source companies would have a business model at all. If anyone could make and distribute their own Firefox browser, we’d have little reason to go to Mozilla and download their version, complete with Google links that put money into the foundation.

While this can be said about many businesses, traditional, open source or otherwise, it can’t be denied that open source companies, along with millions of Web sites, are more dependent on trademark than most companies were 20 years ago. With the digital age copyright has slipped in importance while trademark protection has grown.

This isn’t to say that copyright does not have an important role (otherwise this would be the swan song for this site) but that role is more geared toward enforcing the trademark, registered or unregistered. Copyright, as a business model, is no longer a matter of simply targeting illegal copying (unless your organization ends in AA) but in protecting your corporate identity by targeting plagiarists, spammers and those try to sell works commercially.

In a few decades, trademark may replace copyright as a cornerstone of intellectual property, that is, if it hasn’t done so already.

Conclusions

Copyright is not going anywhere. It is going to remain an important intellectual property right for a very long time to come. However, the role it plays is shifting and how it relates to other forms of intellectual property, especially when looked at from a purely practical standpoint, is going to change.

Personally, I am glad that these companies and their products have registered and enforced trademarks. It means that they are taken more seriously as businesses, helps them focus their community’s energy and, I feel, has improved the quality of the products. The same can also be said for most Web sites and content producers that have gone down this path.

When Creative Commons protects its trademark, you know things can not be too bad.

The one request that I would make is that those in the open source and copyleft movement show more understanding for those who do choose to strictly enforce their copyrights. I may often disagree with their decisions, but it is their choice. Not only is copyright necessary for the GPL, Creative Commons and other open source licenses to be valid and enforceable, but many of the stars in the industry are making their living off of another intellectual property right, namely trademark. Sadly, most of the criticisms hurled at copyright enforcement can be said about trademark just as easily.

Intellectual property isn’t the enemy, it is how it is used. Any law, including trademark, copyright and patent can be abused. What is important is that we are responsible citizens. Those without good business models will die off soon enough. Those who find the right balance will thrive.

In the end, that will determine who is right and who is wrong. The law of the jungle has always been more vicious than the law of the land.

All totaled, the show had sixteen stories, including the following:

• Creationist Go DMCA Crazy
• Prince and the Village Threaten Lawsuits
• SCO Goes Bankrupt
• RIAA Suffers a Pair of Setbacks
• Autodesk Ignores Right of First Sale
• And Many more…

You can download the MP3 file here. Those interested in subscribing to the show can do so via this feed.

Show Notes

[audio:http://www.plagiarismtoday.com/audio/copyright20eps24.mp3]