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Justice

Meet The Corporation That Trademarked ‘Jesus’

Some words and symbols are so commonplace it seems impossible a company could claim exclusive rights to them. Christianity’s central figure might be one of them.

But according to the U.S. Patent And Trademark Office, Jesus Jeans has owned the word “Jesus” since 2007. According to the Wall Street Journal, the Italian company owned by BasicNet has fended off similarly named clothing startups ever since, though it is somewhat more charitable to churches.

The Wall Street Journal’s Jacob Gersham profiles how Jesus Jeans protects its original image:

Before taking on Jesus Surfed, Jesus Jeans objected to “Jesus First,” “Sweet Jesus,” and “Jesus Couture,” among others, which abandoned their trademark efforts. In some cases, when met with resistance, Jesus Jeans warned that it could sue for damages.

Attorneys for Jesus Jeans say they are just trying to protect the value of their brand—no different from Nike’s claim over the winged goddess of victory.

“If somebody—small church or even a big church—wants to use ‘Jesus’ for printing a few T-shirts, we don’t care,” said Domenico Sindico, the general counsel for intellectual property at BasicNet SpA, a publicly traded company based in Turin, Italy, that owns Jesus Jeans and the Kappa sportswear brand.

But when companies like Mr. Anton’s seek to commercialize their products, “that’s a concern,” he said.

It is unlikely that Jesus Jeans actually has a lawful claim to a monopoly on the name “Jesus.” As a federal judge explained in a decision holding that Walmart does not own the trademark to a yellow smiley face, trademarks only cover “distinctive” marks. Thus, a common name like “Jesus” could only be trademarked if it became “associated in the minds of the public with the products or services offered by the proprietor of the mark.” We’re going to go out on a limb and say that when most people hear the name “Jesus,” they associate it with something other than blue jeans.

Nevertheless, for most small businesses, there is little hope of matching larger corporations in intellectual property battles, even when it is over a 2000-year-old figure. The mere threat of an expensive lawsuit can be enough to force small companies to back down.

Economy

Republican Study Committee Flip-Flops On Copyright Reform In 24 Hours

For a brief moment last week, a House Republican group that serves as an idea shop for the party was on record proposing a remarkably far-reaching reform of American copyright law. The memo (PDF), written by a young staffer named Derek Khanna, was released Friday afternoon by the Republican Study Committee and noticed by The American Conservative’s Jordan Bloom.

Khanna’s memo begins by laying out the original constitutional purpose of copyright protection and how the current legal landscape has strayed from it. It then proceeds to challenge several widely-held beliefs about copyright law, including the claims that it promotes the greatest possible levels of productivity and innovation and that it represents free market ideals at work:

[A]ccording to the Constitution, the overriding purpose of the copyright system is to “promote the progress of science and useful arts.” In today’s terminology we may say that the purpose is to lead to maximum productivity and innovation.

This is a major distinction, because most legislative discussions on this topic, particularly during the extension of the copyright term, are not premised upon what is in the public good or what will promote the most productivity and innovation, but rather what the content creators “deserve” or are “entitled to” by virtue of their creation. This lexicon is appropriate in the realm of taxation and sometimes in the realm of trade protection, but it is inappropriate in the realm of patents and copyrights. […]

Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value. We frankly may have no idea how it actually hurts innovation, because we don’t know what isn’t able to be produced as a result of our current system.

But by Saturday afternoon the RSC had pulled the memo, citing an inadequate review process and apologizing for the “oversight.” By then the memo had been saved by other sites and widely praised by the tech and libertarian-leaning quadrants of the blogosphere, many of whom saw the proposal as an opportunity for the GOP to energize young and internet-savvy voters while going after one of the Democrats’ biggest allies and fundraisers. Republicans, for example, were much quicker to abandon SOPA last year when protests against the law kicked into full gear.

The memo lists several specific examples of the damage done by copyright law: Stifling the DJ and remix markets in the United States, making the creation of public libraries — and in particular Project Gutenberg — more difficult, and penalizing legitimate investigative journalism. It concludes with suggestions for reform such as significantly shortening the length of copyright claims, expanding “fair use” doctrine, and reforming statutory damages. (Those damages can currently rise as high $150,000 per infringement.)

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Alyssa

Daredevil Comes Back to Marvel

Via Deadline, it looks like the rights to Daredevil are going to revert back to Marvel and to Disney after Fox killed an effort to reboot the franchise. The fact that the rights to certain key properties, including the blind Hell’s Kitchen lawyer, the Fantastic Four, and the X-Men are held outside the company has always been one of the challenges to Marvel’s consolidation of its empire, and one of the reasons we saw a Spider-Man reboot this summer. Continuing to make use of the characters is the way outside companies keep their claim on Marvel characters live so the rights and the profits don’t revert back to Marvel and Disney.

I’ll be curious to see what, if anything, Marvel does with Daredevil. I’ve always thought the planned Marvel-ABC television show would be best off in a procedural format, both to lure in audiences who aren’t sold on superhero stories but are willing to test another lawyer, detective, or cop show, and to save money—if you can keep your hero in the office, courtroom, and street, you don’t have to invest quite as much in special effects and major action sequences. Daredevil, like She-Hulk, would be a fine contender for that kind of show, though I’d hope given the current Avengers lineup and Joss Whedon’s involvement with the television show, that they’ll choose a female character instead.

And I continue to think it would be smart of Marvel to develop a lower-budget, grittier run of hero movies, or a cable show that intersects them, a part of the market that’s open now that the adaptation of Brian Michael Bendis’s Powers appears in limbo at FX. With Daredevil back in the fold, you could have an overlapping New York universe that includes him, Luke Cage and Jessica Jones in Harlem, and Doctor Strange down in Greenwich Village. Marvel has always been woven deeply into the fabric of New York. The Avengers are disconnected by virtue of Tony Stark’s globetrotting, Bruce Banner’s time on the run, Black Widow’s missions, and the fact that Hawkeye and Captain America are buried in institutions. A lower-budget franchise, whether on the silver screen or the television, could root a separate set of characters deeply in a place, making their approaches and personalities facets of the city. That kind of storytelling always served the Law & Order franchise well, and with those shows cancelled or in their twilight years, there’s a place for a great new New York crime-solver, as well as for a different sort of superhero story.

Security

FBI Warns Of Foreign Spying On U.S. Tech Companies

United Technologies settled a lawsuit with the U.S. government yesterday, acknowledging making false statements about its illegal export to China of U.S. software. That technology was used in China’s advanced military attack helicopter, the Z-10. “We accept responsibility for these past violations and we deeply regret they occurred,” United Technologies CEO Louis Chenevert said in a statement.

While United Technologies may be committed to avoiding such violations in the future, the FBI says foreign efforts to illegally acquire embargoed U.S. technology isn’t new but is quickly becoming one of the biggest national security problems facing the U.S. C. Frank Figliuzzi, head of the FBI’s counterintelligence division, testified before the intelligence subcommittee of the House homeland security committee on Thursday:

What we’re seeing is that foreign nations and their intelligence services are understanding more than ever before that it’s cheaper to steal our technology than to use their budget resources in this time of economic crisis to develop it themselves.

“The theft of U.S. proprietary technology, including controlled dual-use technology and military-grade equipment, from unwitting U.S. companies is one of the most dangerous threats to national security,” said John P. Woods, assistant director of national security investigations at U.S. Immigration and Customs Enforcement.

Responding to the United Technologies settlement, Andrew Shapiro, assistant secretary of state for political affairs, commented, “[the settlement] sends a clear message: willful violators U.S. arms exports control laws will be pursued and punished.”

The Z-10 is now in production and in use by the People’s Liberation Army of China.

Security

Is Mitt Romney Profiting Off Chinese Surveillance?

In a Wall Street Journal oped last month, Mitt Romney laid out “how I’ll respond to a China’s rising power” and criticized the Obama administration’s handling of relations with Beijing. Romney warns of a China as a regional hegemon:

The character of the Chinese government — one that marries aspects of the free market with suppression of political and personal freedom — would become a widespread and disquieting norm.

In the op-ed, the former Massachusetts governor also criticized Obama for failing to press Beijing on human rights and intellectual property violations.

While Romney is quick to criticize Beijing and the White House’s management of U.S.-China relations, an examination of the GOP frontrunner’s investments with Bain Capital — a company he co-founded and once led — suggest he has profited from Chinese surveillance of its own citizenry and from companies that have engaged in intellectual property theft.

The New York Times revealed yesterday that a Bain-run fund in which a Romney family blind trust had holdings purchased Uniview Technologies in December, a Chinese company that claims to be the biggest supplier of surveillance cameras to the Chinese government. Uniview produces “infrared antiriot” cameras and software that allow police to share images in real time and provided technology for an emergency command center in Tibet that “provides a solid foundation for the maintenance of social stability and the protection of people’s peaceful life,” according to Uniview’s Web site.

Human rights advocates say that the rapidly growing number of surveillance cameras in Chinese cities are used to intimidate political and religious activists. “There are video cameras all over our monastery, and their only purpose is to make us feel fear,” Loksag, a Tibetan Buddhist monk in Gansu Province told the Times. He said the cameras helped the authorities identify and detain nearly 200 monks who participated in a protest at his monastery in 2008.

Romney has said he has no role in Bain’s operations but a financial disclosure form filed last August showed that his wife, Ann Romney, held a $100,000 to $250,000 investment in the Bain Capital Asia Fund that purchased Uniview.

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Alyssa

Piracy Is A Service Issue

Very smart talk from Gabe Newell of Valve Corporation:

In general, we think there is a fundamental misconception about piracy. Piracy is almost always a service problem and not a pricing problem. For example, if a pirate offers a product anywhere in the world, 24 x 7, purchasable from the convenience of your personal computer, and the legal provider says the product is region-locked, will come to your country 3 months after the US release, and can only be purchased at a brick and mortar store, then the pirate’s service is more valuable. Most DRM solutions diminish the value of the product by either directly restricting a customers use or by creating uncertainty.

Our goal is to create greater service value than pirates, and this has been successful enough for us that piracy is basically a non-issue for our company. For example, prior to entering the Russian market, we were told that Russia was a waste of time because everyone would pirate our products. Russia is now about to become our largest market in Europe.

I understand the entertainment industry’s antsiness about piracy, even if I don’t particularly agree with their approach. And I think that more companies and groups could take a lesson from this lens on the challenge. Even if you’re cracking down on “rogue sites” rather than on individual consumers, spending all your time talking about the evils of piracy sends the message to consumers that your focus is on limiting the way they get to the product, rather than on the product itself, or on improving methods of delivery. And even if I don’t think it’s the main reason people download content they don’t pay for, I think the idea that production companies have the interests of neither consumers nor artists in mind becomes a powerful part of the moral justification that people use to give themselves permission to do so. Focusing more of their public messaging on improving and diversifying delivery mechanisms — and actually doing so — seems like it would do much more to change the culture of consumption than talking about piracy will. And ultimately, it’s that cultural shift is what undid media companies and what they really need to change.

Yglesias

Apple Has A Patent On ‘Slide To Unlock’

Apparently Apple has a patent on this:

Slide to unlock is an excellent idea. Indeed, it’s difficult to see how you could implement a multi-touch smartphone without doing something along these lines. Which is why Android has the functionally equivalent, though in my view somewhat superior, pattern unlock feature. Jerry Hildenbrand seems to think that what’s ridiculous about this patent is that it arguably existed already when Apple was granted the patent. But the real problem here is that it’s contrary to the public interest to ban copying this kind of thing. We want to live in a world where useful new features are rolled out, and then bosses say “we need to find a way to implement that on our product.”

Justice

Appeals Court Holds Corporations Can Patent Genes

The United States Court of Appeals for the Federal Circuit, a specialized court that deals mostly with patent law, held on Friday that biotechnology companies can patent DNA sequences:

The Court of Appeals for the Federal Circuit, which specializes in patent cases, said that Myriad Genetics was entitled to patents on two human genes used to predict if women have an increased risk of getting breast and ovarian cancer.

The court ruled that DNA isolated from the body was eligible for patents because it was “markedly different” in its chemical structure from DNA that exists inside the chromosomes in the body. As a result, the isolated DNA is not simply a product of nature, which would not be eligible for a patent.

The 2-to-1 decision on the gene patenting issue was also a rejection of arguments made by the Obama administration, which had filed a friend of the court brief arguing that isolated DNA should not be patented.

Although this case could potentially be reviewed by the Supreme Court, high Court review of the Federal Circuit’s patent decisions are unusual. The Federal Circuit was created in 1982 as a specialized appeals court that handles all patent appeals brought in any federal court in the nation. Accordingly, the justices frequently defer to the Federal Circuit’s patent decisions because of the court’s particular expertise in this area.

Yglesias

Assessing The Market Price Of Patent Rents

I kind of feel like people throw the word “bubble” around too loosely, and Richard Waters ought to at least consider the possibility that the sky-high valuations of patent-owning firms reflect the real economic value of the legal authority to extort money out of firms with products:

In the month since an auction of patents from the bankrupt Nortel Networks ended with a shockingly high bid of $4.5bn, or five times the initial offer, the favourite game in tech circles has been to find the next big chest of buried gold. [...] As always in tech bubbles, it is the “pure plays” that have drawn the most interest – in this case, the companies set up mainly to exploit the value of pure IP, rather than actually to build things. Shares in InterDigital, which specialises in mobile communications IP, have soared 75 per cent since it said last week that it was looking at putting itself up for sale: with a market value of $3.2bn even before any auction begins. [...] But even that pales in comparison with VirnetX. Despite having only one licensee for its internet security technology and royalties of just $17,000 in its latest quarter, VirnetX’s 14 US and 16 non-US patents pack a punch: with lawsuits out against Cisco, Apple and Avaya, among others, its stock market value has jumped more than fivefold in the past year, to $1.6bn.

It’s possible that this is a bubble. But smartphone sales have, in fact, soared over the past several years and there’s plenty of remaining room for growth. And it turns out that amassing patents and threatening to sue smartphone makers is a viable line of business. It also turns out that selling your patents to smartphone makers in order to let them sue or countersue competitors is a viable line of business. We’re not experiencing an unsustainable bubble in smartphone sales, so I see no reason to think that skyrocketing valuations of smartphone-related patents reflect anything other than a basic market dynamic. It looks like a bubble to some observers because it sounds insane that you could get rich off smartphones without actually selling smartphones or smartphone components to anyone. But the current state of law and policy really is that bad. What we’re getting here is a market test of a portion of the value of the rents created by the Patent And Trademark Office.

Alyssa

The 2012 Candidates On The Arts: Barack Obama

With arts and public broadcast issues percolating on the edge of the race for the 2012 presidential race, I thought it made sense to look at where the declared and prospective candidates for president have stood on arts issues throughout their careers. Their views on everything from arts education to intellectual property rights to support for local artistic traditions say a lot about how they value culture — but also about how they think about the role of government.

Now that we’ve run through the Republicans, it’s time to look at how one last candidate approaches arts policy: the incumbent President Barack Obama. Obama didn’t take on arts issues much during his tenure in the Illinois state Senate, but as a candidate and as president, he’s pursued a fairly wide-ranging arts policy that’s met with mixed success because of the pressures of the recession. I’m not including a discussion of internal changes by the National Endowment for the Arts here, though I’m a fan of the Our Town program, because I want to focus on the things that Obama’s made significant priorities:

2008: In his presidential campaign platform, Obama supported the Artist-Museum Partnership Act, which would have let artists deduct the full market value of works they donated to charity on their taxes, rather than just deducting the cost of the materials that went into the work. He also committed to expanding cultural diplomacy through public-private partnerships and to make it easier for foreign artists to get visas to come to the U.S.; to increase funding for the National Endowment for the Arts; and to add block grant funding that would support arts education through the Education Department (he cited the Mozart effect in stump speeches). At the time, this was considered one of the more comprehensive platforms a candidate had ever offered on the arts. The question is, how well did he live up to it?

2009: The stimulus bill Obama worked out with Congress included $50 million in arts funding, including $20 million in funding that went directly to state governments. The National Endowment for the Arts was supposed to use the funding specifically to bolster arts non-profits that saw their budgets shrink in the recession. In the normal budget process, the NEA got its highest budget in 16 years, $167.5 million, and the Education Department got $38.166 million for its Arts in Education program.

When Obama adjusted restrictions on travel to and from Cuba, he made it easier for cultural programs to take Americans to Cuba and for Cuban artists to make it to the United States.

But the administration’s cultural efforts became a minor political kerfuffle when the NEA’s Yosi Sergant encouraged artists to work with the Corporation for Public Service on projects that would highlight the administration’s public service efforts. Sergant eventually left the NEA.

2010: Obama made good on his cultural diplomacy promises in a number of ways, allocating $1 million to help visual artists create public art works in 15 countries as pat of a new smART Power program; increasing the State Department’s cultural diplomacy budget 40 percent in 2010 to $11.75 million; sending Stanford professor Clayborne Carson to Israel to put on a production based on Martin Luther King, Jr.’s writing.

At the same time, he proposed consolidating grants programs for education, leaving some advocates worried that arts programs would have to compete against science and literacy programs for funds. And the administration proposed cutting NEA funding by $6 million in is fiscal 2011 budget, both moves that drew criticism from arts advocates.

This year, U.S. Intellectual Property Enforcement Coordinator Victoria Espinel presented Obama and Congress with the first national strategy on intellectual property law and copyright violation, which includes improved interagency cooperation, targeting of websites that distribute pirated material, and better economic analysis of the impact of intellectual property law and violations on American firms. That same year, at the Export-Import Bank, Obama gave a speech in which he promised vigorous IP protection: “Our single greatest asset is the innovation and the ingenuity and creativity of the American people…It is essential to our prosperity and it will only become more so in this century. But it’s only a competitive advantage if our companies know that someone else can’t just steal that idea and duplicate it with cheaper inputs and labor.”

2011: An Obama-commissioned study argued that creative classwork has an “unambiguous place in the curriculum,” though it acknowledged that there needs to be more research to quantify the impact of arts education on achievement. Education Secretary Arne Duncan’s made the case for keeping arts education even in a recession throughout his tenure in the administration.

And on the copyright front, the Obama administration helped broker the deal that got Internet Service Providers to start providing warnings to users who are caught downloading content illegally.

It’s clear the president and his wife enjoy the arts, and they’ve hosted lots of cultural events at the White House — though his stance on copyright allies him more with content producers than with consumers. Obama has called for tax reform, and it would be interesting to see, if comprehensive efforts happen, if he includes artists’ tax credits, the one item in his 2008 platform that he hasn’t really addressed while in office. Whoever the Republican candidate is in 2012 is, they may be able to rally support by attacking the existence of the NEA (it’s dubious any of them would break with him on IP issues), but it remains to be seen if any of them will match Obama for a sense that arts policy isn’t just a matter of funding.

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