Technically Legal

Technology and the law. Done right.

Half of Facebook Stolen!

Facebook is going after Teachbook.com for violating their trademarks. Teachbook is a social networking site for teachers, but you may have already guessed that based on the name, which is precisely why Goliath is going after David in this case. The word “book”, or at least “[something]book.com” has the potential to become synonymous with social networking sites, especially if more somethingbook websites start popping up.

One of Teachbook’s two employees said “We’re trying to understand how Facebook, a multibillion-dollar company, feels this small enterprise in Chicago is any type of threat.” However, that’s not the right defense. Besides the dilution of Facebook’s trademark, Teachbook is a threat because there is the possibility of confusion between the two, and it essentially rides on the coattails of Facebook’s trademark. And despite the claim that books are educational and therefore Teachbook is just two educational words, the most crucial piece is that I doubt they would have named their website Teachbook without Facebook’s trademark already existing.

This follows the amusing trend where portions of words are considered violations of the trademark. Consider the ill-fated Scrabulous, borrowing Scrabble’s first five letters, and the various -opoly games that borrowed too heavily from Monopoly. Each of those is five letters, compared to the four in “book.” I’m curious to see if anyone will be sued for any smaller or more generic portions of trademarks.

2 Comments Posted in: Analysis, Links on August 26, 2010

Episode 64: Big, Scary Design Patents!

Apple gets a couple of scary design patents, AT&T thinks wireless is different, and Oracle sues the Java out of Google.

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

Apple Design Patents

Article (via TUAW)

Patent #s: D621848, D621849

AT&T on Net Neutrality

AT&T’s Statement

Oracle (d/b/a Sun) Sues Google Over Java (N.D.CA, No. 1418106)

Article (via Tech Crunch)

Complaint

Ben and David Lu!! are MIA this week.

2^6

Comments Off Posted in: Podcast on August 23, 2010

Three-way Battle for Hope Becomes Two-way

As we reported back in Episode 53, there’s been a three-way battle over the iconic Obama/Hope poster, with Shepard Fairey battling the Associated Press over whether his use of an AP photograph is fair use, and Manny Garcia battling the AP over whether they had rights to the photograph he took in the first place. However, today, Garcia dropped his suit, claiming a personal and professional toll.

The trial date for the Fairey/AP case has been set for March. (AP reports)

Comments Off Posted in: Links on August 23, 2010

iPhone 4 Jailbreak Released, Bricks to follow?

Less than a week after the Library of Congress released the latest round of DMCA anti-circumvention exemptions, word is out that the iPhone 4 has been jailbroken.  In fact, a new website called “jailbreakme.com” offers a software app to accomplish exactly this.

Apple’s support site continues to state that jailbreaking is a violation of the iOS license agreement.  Perhaps the obvious conclusion is that Apple will continue to include anti-jailbreaking/iOS modification restrictions within the license agreement.   The bottom line:  if you jailbreak your iPhone, you still lose your warranty, and an update push might brick your device.  That’s been the norm for some time, so nothing terribly new here.  Apple remains within their legal rights also, since the DMCA exemptions do not affect contract law.

Despite the tech media’s positive support for the new exemptions, I have not seen a detailed discussion of the limitations of the exemptions (Dominik and I discussed some of them on this week’s podcast in detail).  Based on our reading, the exemptions are not a sweeping authorization for all jailbreaking activities.  Websites that provide “jailbreaking” apps or services, like jailbreakme.com,  may still have legal concerns.

If you read the official release from the US Copyright Office, you might have noted this little quirky sentence in the first paragraph:

“Persons making noninfringing uses of following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking.”

Important here is that the exemptions only apply to § 1201(a)(1) and no other section.  If you read the entire statute, you can see that § 1201(a)(2), which is not exempted, still prohibits the:

“manufactur[ing], import[ing], offer[ing] to the public, provid[ing], or otherwise traffic[king] in any technology, product, service, device, component, or part thereof, that –

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title”

Unfortunately, this means that it is still unlawful to provide an application or service for jailbreaking.  App developers should take notice that they are probably not exempt from these prohibitions, should Apple decide to pursue them in court.  However, based on the 5th Circuit’s latest opinion, there is still some argument that a violation of § 1201(a) does not stand on its own without an underlying infringement of a copyright owner’s exclusive rights.  Still though, I would not consider the 5th Circuit’s opinion on § 1201 to be the ultimate fix.   Be careful when dancing near the lines on these rather complex statutory provisions and don’t forget that an applicable EULA or ToS  may still be enforceable in court.

Comments Off Posted in: Commentary on August 3, 2010

Episode 61: My Dongle Was Circumvented

Library of Congress releases new DMCA anti-circumvention exemptions, 5th Circuit rules in favor of Fair Use under the DMCA’s anti-circumvention provisions, and a few major companies sued for using features in flash cookies.

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

New DMCA Anti-circumvention Exemptions

Read about it on our blog.

U.S. Copyright Office Release

Provisions in DMCA: 17 U.S.C. § 1201

5th Circuit, Section 1201, and MGE v. GE, No. 08-10521 (5th Cir. 2010)

Read about it on Ars Technica

5th Circuit’s Opinion

Flash cookies: Valdez, et al. v. Quntcast, MySpace, Hulu, NBC, ESPN, et. al

Read about it on Ars Technica

Complaint (courtesy of Wired)

In other news, Ben and David Lu!! are traveling around the country and had to miss this week’s recording.  Also, audio quality might be a little poor (some nasty background noise and a few bad audio splices while editing); apologies in advance.

1 Comment Posted in: Podcast on August 2, 2010

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