In a frighteningly bizarre Orwellian case, a guy who criticized the fact that an organization was trying to trademark the word 'freecycle' got sued for trademark infringement because he used the word in his criticism. The organization even got a lower court to issue a preliminary injunction preventing the guy from 'disparaging' the trademark.

Fortunately, the 9th Circuit Appeals Court freecycled the case back to reality - ruling that not only was there no trademark infringement here, but also declaring that federal law doesn't recognize an action for trademark 'disparagement'.

PDF link to the case here.

Astounding...but not at all surprising.

Patent litigation probably couldn't get more high stakes than a Delaware lawsuit currently unfolding against Intel Corp. Transmeta Corp. has accused the Silicon Valley chip giant of infringing on 10 patents in its hugely successful Pentium products.

Yet rather than battle it out in court, Intel is trying to put the brakes on the proceedings. The company is making use of a relatively new government process, known as inter partes re-examination, that is becoming an increasingly popular way for accused infringers to get patents invalidated. It's far less costly than litigation, and even if the patent is upheld, a stall in court proceedings increases the likelihood of a settlement, patent attorneys say.

Since the inter partes procedure started in 1999, the yearly number of these requests has increased dramatically, and U.S. Patent and Trademark Office statistics show the process is likely to result in the invalidation of patents at issue. In 2006 there were 70 requests, and six months into this year, there have already been 90.

And of the inter partes re-exams that have been completed, the patent claims were invalidated 88 percent of the time, according to the PTO.

Read more about it here.

A potentially important court decision discussed here. The First Amendment has been traditionally rejected as a defense against a copyright infringement. Although the door has only been opened a crack at this point, that may be about to change.

Since nearly all creative works build upon previous works on some level, I would think that the devastating effects on free speech would be obvious when you attempt to take a public domain work and try and reassert copyright protections on it. All of the subsequently created derivative works that were created during the public domain window would presumably have to be repressed and/or destroyed.

It is a well known secret that California-based burger chain In-N-Out has a 'secret' menu that is not displayed or advertised at any of their stores. It allows people to order items that are not found on any of their limited menus.

When you order a 3x3 burger, or "Animal Style" burger, In-N-Out service people will know what you are talking about.

However, I have a problem with a judge ruling that such terms are trademarks owned by In-N-Out. [PDF alert. Hat-tip Courthousenews.com]

Even if In-N-Out actually registered a trademark in such terms, a minimum requirement for trademark protection demands that the mark actually be used in commerce. If you deliberately hide a mark from the public, you should lose trademark protections. (And no, simply referring to the terms on a company website should not count. If you don't use the mark on the product or place of business, there is no mark to protect.)

Although I recognize the legitimacy of trademarks to protect against actual consumer confusion in the marketplace, I think the judge blew it on this one.

Via Courthousenews.com -

ALEXANDRIA, VA. (CN) – An inventor has sued the U.S. Patent and Trademark Office, challenging new regulations that will limit the number of continuations an inventor can file on an original patent. Plaintiff Triantafyllos Tafas has eight patents and 17 patents pending. He asks the Federal Court to enjoin Sections 1.75 and 1.78 of 72 Fed Reg. No. 161, promulgated on Aug. 21, to take effect Nov. 1, claiming they violate the Patent Act and the Constitution. The revised rules “limit the right of a patent applicant to continue prosecution of applications related to a single invention … substantially change the regulatory landscape under which inventors … have traditionally operated, and, once effective, will frustrate the purposes of the U.S. Patent laws by preventing Dr. Tafas and other similarly situated inventors from realizing the full economic potential of their work.”

Courthouse news has posted a copy of the actual complaint here. [PDF file link.

By the way, just how many patents does Adobe claim are contained in its Reader program? Try to count them as the PDF Reader program loads up.]

A great article on why educators are on the wrong side of the copyright wars. It also includes a great analysis on how corporations and private institutions are being deputized to enforce copyright - thus preventing law officials from otherwise having to spend resources that might make them re-think copyright law.

[Hat-tip: Instapundit]

A federal appeals court has issued a ruling this week that makes it more difficult to accuse a company of "willful" patent infringement.

Court opinion here.

News summary here.

Patently-O Patent Blog input here.

It seems that 25% of the population of Los Angeles County consists of "thieves" (at least as some would describe it).

Sample money quotes from the article -

[O]ne in four people in Los Angeles County knowingly bought, copied or downloaded illegal goods in the last year, according to a Gallup Organization survey commissioned by the U.S. Chamber of Commerce and scheduled to be released today.

Although previous studies have documented piracy's toll on the Los Angeles economy, the U.S. Chamber report is the first to focus on the attitudes and behavior of consumers here who knowingly buy fake goods, including bootleg movies, illegally copied CDs, knockoff handbags and counterfeit auto parts.

"The study confirmed what we already knew: That the buying of these products is widespread and is viewed as a victimless crime," said Caroline Joiner, executive director of the chamber's global anti-counterfeiting and piracy initiative.

The 25% piracy rate of Los Angeles County residents surveyed in May and June was slightly higher than the 20% nationwide rate the chamber found last year.

…

Justin Hughes, a law professor and piracy expert at Cardozo School of Law in New York, said Los Angeles might have a higher rate of counterfeiting than other cities because of the high volume of goods flowing through the ports of Los Angeles and Long Beach. But, he added, the latest data reflect broad consumer behavior.

"Most Americans do understand copyright and trademark laws, but it's a bit like speeding laws," Hughes said. "We know they are there, and they're a good thing, but we usually find ourselves going five to 10 miles over the speed limit."

In terms of trying to objectively describe the way many currently perceive their relationship with intellectual property, Professor Hughes' "speed limit" analogy seems to be a fair one. However, it leaves out a crucial component - the direct relationship between the perceived fairness/appropriateness of the law and the incidence of those who will ignore it.

For instance, let us assume that a federally mandated speed limit was increased to 80 mph in the U.S. Would people still continue to go "five to 10 miles over the speed limit"? Surely many would, but it is fair to assume that the overall amount of speeding scofflaws would drastically increase decrease as the overall speed limit increases - and vice versa. If the federally mandated speed limit was instead capped at only 45 mph, then surely the incidence of speeding would increase (not just in terms of the overall number of drivers who would ignore the law, but also in terms of the level of contempt for it. Speeders would likely start averaging 10 to 15 miles over the speed limit, instead of the more casual 5 to 10). They may continue to speed more often and with more vigor, even though they might end up confessing to pollsters that on a purely abstract level, a stricter enforcement of speed limits would be a good thing for society.

There would be a simple reason for this dynamic - many people of perfectly good character would inherently perceive a 45-mile-an-hour speed limit as an abuse of federal authority that would hamper our quality of life well out of proportion to any potential social good such as safety/environmental concerns or energy conservation. Obviously, the definition of a fair and proper speed limit is partially dictated by the state of technology and infrastructure (i.e., the conditions of our road and highway systems, how advanced current automobile engineering and safety features are in any given era, etc.).

So let's bring the analogy back to intellectual property. If we were to analogize the strictness of current intellectual property laws to the speed limit, what would the federally enforced speed limit be today?

I'd argue that it is only about 35-miles-per-hour; a quite unreasonable restriction that hampers human progress to a level far out of proportion to any potential goods that IP legal schemes might have to offer. This too is partially dictated by the current state of our technology and infrastructure (i.e., the Internet, digital technology, how communication has evolved with new media, etc.). That is real the reason why more and more people are simply choosing to ignore the current state of the law and are rightfully guilt free about the situation.

But none of this is preventing the L.A. establishment from lining up to do the bidding of the IP lobby. As the Daily News reports -

The findings were expected to be discussed at the Westin Bonaventure hotel in downtown Los Angeles this morning at a U.S. Chamber of Commerce workshop expected to be attended by several legislators, city council members and local officials, including Mayor Antonio Villaraigosa and City Attorney Rocky Delgadillo.

You don't suppose that the "workshop" might convince local legislatures to help fight for sensible IP reform, do you? Nah. Didn't think so. We all know how these "workshops" play out and what the real goals are here: Creating an even harsher IP environment in order to hang on to the status quo business models for politically connected businesses. One that may very well turn an even higher percentage of the population into "thieves" and "pirates" in their eyes.

It seems that authorities with the U.S. border and custom enforcement have no problem issuing border passes to drug smugglers coming to the U.S.

But when it comes to cracking down on people playing unauthorized copies of video games, they are all over that serious transgression big time commando-style.

Certainly shows where the priorities of law enforcement are these days. Curiouser and curiouser...

Four federal inmates were indicted Tuesday on allegations that they copyrighted their names, then demanded millions of dollars from prison officials for using the names without authorization.

More details here.

The American legal community bears quite a bit of responsibility for this. For well over the last decade, they have encouraged and nutured a legal culture that rewards copyright abuse. Federal inmates take their cues from the world around them. Copyright law offered them a "get rich quick" extortion scheme. The sad part is that similar tales happen all of the time. But other people don't get indicted simply because they don't happen to direct their copyright extortion schemes towards federal prison officials.

I've said it before and I'll say it again - IP lawyers are the ambulance chasers of the 21st Century.