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Monday, January 30, 2006

Cache Is King

I've been too slow in highlighting the District of Nevada's recent grant of summary judgment in Google's favor, on the ground there is no copyright infringement involved in the practice of caching pages "as a back-up in case the original page is unavailable." Interestingly and potentially importantly, the court's conclusions are based on findings of lack of direct infringement, presence of an implied license, application of the fair use doctrine, and application of the DMCA's safe harbor provisions (as well as estoppel). Fred von Lohmann thus is right that the reasoning in this decision is poised to have wide ranging effects (unless perhaps it is reversed on appeal).

Far From Mondane

Be sure to include among your Monday reads:

Wednesday, January 25, 2006

I, Sandwich Dominatrix

(Alternate titles: "Pain In The Low Back" and "Better Than A Stick In The Eye-Dialect.")

I had a passing thought this morning about Geoffrey Nunberg, whose takes on the word "blog" I've enjoyed in the past (e.g., I Have Seen the Future, and It Blogs; Prefixed Out). My thought was that someone might want point Mr. Nunberg toward the recent flurry of pro-and-con discussion about the word "blawg." I've been paying scant attention to this discussion — certainly not enough to know what should be included in a collection of pertinent links, so my apologies for not including one. (You might check Technorati's "blawg" and "blawgs" references.) But several people now have pointed me toward Language Log, and related posts there by Mark Liberman (Who let the Blawgs Out?), and, most recently, Benjamim Zimmer (Blawgs, phonolawgically speaking). Since Mr. Nunberg is also one of Language Log's contributors, it would seem my passing thought has (wait for it...) actually come to pass.


  • FlabbergASSted (to use — or coin?? goodness, let's hope not — a sandwich word that refers to a sense of wonder and disbelief so profound it knocks you squarely on your hindquarters) at the volume of mental CPU cycles people can and will allocate to such issues;
  • tickled at the synergy between bags, baggage, and portmanteaux;
  • pleased to learn that while my coinage no doubt will continue to provoke and annoy, at least it will do so with some originality (quoth Mr. Zimmer, "I know of no other sandwich word so dominated by its filling");
  • struck by the fact I've always been most partial to a sandwich's middle; and
  • gratified to hear Mr. Zimmer doesn't consider use of "blawg" to be a cause for alarm. ("Surely context is key.")

If you are among the folks — linguists excluded; it's their job — who might be spending a little too much thought and energy on this borderline microbial issue, please consider channeling your efforts toward something of more tangible benefit to mankind. (Doorknob spam, anyone?)

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Monday, January 23, 2006

Congratulations, Howard Bashman!

As a long-time Bashmaniac, I wanted to send some warm, linky congratulations to Howard Bashman in light of this good news. (And warn Tony Mauro: there might just be a new Sheriff in town).

Carnival Twofer

Don't miss Blawg Review #41, courtesy of Interland general counsel Jonathan B. Wilson, and Carnival of the Capitalists #120, courtesy of the Patent Baristas. As Jonathan says, "I thought it interesting to note the many different ways in which legal blogs (or 'blawgs') come into contact with society and the world." Both are replete with examples.

Today's New Blawg

Here's one I'm ashamed not to have known about earlier; instead, one of Reed Smith's astute PR team recently clued me in. It's the Legal Pad blog, authored and edited by the staff of The Recorder (a California legal newspaper) and Cal Law, both American Lawyer Media productions.

Our PR person would have been remiss had he not pointed me toward this post mentioning comments by my colleague Sonja Weissman, Know Your Opponents by the Cut of Their Hair: "[M]embers of her legal team were careful to schedule barber shop appointments the week before their first court appearance, because every lawyer knows how difficult it is to get your bangs clipped during a trial. So when the plaintiff's attorneys showed up looking a little rough around the edges, Weissman realized her opponents weren't prepared to try their case." This of course leads to the corollary: when you really want to psych out the other side, you show up to the final pre-trial proceedings looking very bedraggled, but being very prepared. Sounds like something Evan Schaeffer or Jeff Lewis could have considerable fun with... (Also, here's a tip for anyone who might be playing this game but unfamiliar with the intricacies of female coiffures: where on a short-haired man you'd scan the neck to gauge the time elapsed since the last cut, with women you'd be better served by finding a way to nonchalantly survey your opponent's roots.)

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Saturday, January 21, 2006

Stipulated Seal Tossing

Good for Adam Curry, who plans to take a tabloid to court for its unlicensed commercial use of some of his Flickr pics, among other things. Go get 'em Adam, and if you're looking for some UK based cetaceans I'll be happy to help hook you up.

Wednesday, January 18, 2006

Feed For All

John Palfrey's post RSS and Copyright, Circa 2006 revisits the implied license issue regarding feeds, and Shelley Powers, per usual, asks good questions. (If you disagree with my take and/or can formulate a "yes" or "no," answer for her, get over there and leave a comment.) Related:

[Update:] Shelley adds more great links, and I have more to say over there.

Tuesday, January 17, 2006

If Nothing Else, Go Because You Love The URL

The Law and Policy Institutions Guide ( published its inaugural newsletter yesterday, which features an interview with lawyer/author Scott Turow. Some of it reads like a judicial confirmation hearing (albeit with a nominee from a different administration): "Perhaps I am wrong about the Constitution, but I doubt it. I think this will be remembered as a shameful period, in which we allowed Osama Bin Laden to diminish our freedoms, a victory he never deserved." There's a feed if you'd like to subscribe. (I'm on the site's advisory board.)

Monday, January 16, 2006

ABA Panel, Who Owns The News?

Last Friday I paid a visit to the ABA Forum on Communications Law's 11th Annual Conference in La Quinta, California. The conference had an incredible roster of speakers (brochure; PDF), but I went out just for the panel called "Who Owns The News? Attempts by sports organizations and entertainers to control coverage." I got there by a circuitous and eminently loosely joined route: Jeff Jarvis was initially slotted to talk about the impact of ubiquitous networked technologies and citizens' media on efforts to control news coverage. Jeff had to bow out for some reason, but he referred attorney and moderator Barbara Wall to JD Lasica, who also couldn't make it, but suggested Barbara get in touch with me. I spoke with Barbara about a week before the event, and learned that though she'd been able to line up plenty of lawyers to add their $.02 to the panel, she was hoping to find a nonlawyer expert on citizens' media issues to add his or her perspective to the mix. I put Barbara in touch with Dan Gillmor, who graciously rejiggered his schedule so he could attend. It's a rare thing when a panel at an ABA conference comes together with the aid of three of my respected friends and long-time Bag and Baggage blogrollees. What's more, I've worked as appellate counsel with one of the other panelists, Marty Singer. With all these planetary forces aligning, I clearly needed to go. Barbara also wanted me to take a few moments during the presentation to talk about blogging from D: All Things Digital a few years ago, which I was happy to do.

In addition to Barbara, Dan, and Marty, the panel was comprised of George Gabel, who has challenged restrictions on reporters at PGA and other professional sports events; Dale Cohen, senior counsel of the Chicago Tribune, who has negotiated terms with Major League Baseball for journalists; David Quinto, who represents the Academy of Motion Picture Arts and Sciences; and Debbie Spander, Vice President of Business and Legal Affairs for Comedy Central/MTV Networks, and a Board member of the Sports Lawyers Association.

The panel was enlightening for me, as I don't practice media law per se but it's becoming clear that if your focus is technology law, media related issues are increasingly part of the package. (See, for example, CNN Presents: Undercover in the Secret State, a fascinating look at how cell phones and small digital cameras are used to thwart media and communications controls imposed by North Korea's totalitarian government. Also much in the news over the last year: Apple v. Does.) So, it was quite interesting to hear George Gabel describe his run-ins on behalf of clients with the PGA, NFL, and Southeastern Conference, all of which have conditioned press credentials on restricted use of logos and trademarks, and event photos and video. Though not mentioned by the panel, I found this related discussion while looking up panelist Dale Cohen, and it sets the stage quite well: Who owns the news: The perils of sports credentialing. Mr. Gabel pointed out an irony of the logo/mark restrictions: namely, the reason the public is familiar with a sports organization's logos and marks is because they have been appeared in the media. Debbie Spander mentioned that sports organizations are concerned about, and media outlets generally agree to honor, the "sports news windows" — i.e., no video is broadcast by a competing network until the event is off the air. She also said the cost of licensing clips runs roughly $5,000 - $7,000 per minute. New means of distribution (e.g., wireless via cell phones) inevitably trigger a slew of new agreements and associated fees. Dale Cohen was involved in an early case (1996) concerning sports news on cellular networks.

In negotiating with the Southeastern Conference, Mr. Gabel was successfully able to invoke the 1st Amendment since publicly funded universities were involved. In combating PGA credentialing restrictions concerning the Masters golf tournament, the principal argument urged was antitrust — i.e., the PGA had a monopoly in championship level golf, and was using the monopoly to control the market in real time scores. Both the district court and 11th Circuit rejected this theory. (More on this from the Sports Law Blog: 01/07/04; 04/05/04.)

On the entertainment side, panelist David Quinto talked about media and other restrictions related to the Oscars. They're similar in nature to the sports restrictions: the media is prevented from using screen grabs, or video while the show is in progress. Mr. Quinto said 1,600 people were credentialed to be within the security perimeter at last year's show. He said the Academy doesn't try to control the content of the reporting, but intstead the timing and volume of the clips used. The Academy wants clips from the show to be used only to report about the show, and not for other purposes.

(About all I could think of as Mr. Quinto was saying this was his client might be in for a surprise this year regarding when, where, and how clips are used — given that the host is Jon Stewart, someone whose fans are accustomed to making somewhat more expanded use of his work.)

Marty Singer described how it is now commonplace for celebrities to impose contractual terms on the content of television appearances and press interviews of all kinds. These include restrictions on what can be asked and used. He told a story about an agreement struck by one of his celebrity clients, who was asked to attend a friend's wedding as a guest. The celebrity had the couple agree their guest owned the copyright to all the wedding photos and video, in order to control the use of the images.

Dan Gillmor summed up the other panelists' comments as disheartening and ultimately futile. When everyone can commit an act of journalism, restrictions on the professional media will be circumvented by ordinary people with commonplace technology. Dan mentioned he'd been taking cell phone pictures of the audience during the talk, and described the ease of posting them. (I was snapping away as well, though not terribly effectively.) He referred to how the Giants' baseball park in San Francisco is blanketed in WiFi; blogging from the stands is quite common. We talked about how attendees (including me) with blogs at the first D: All Things Digital reported from the conference in an unrestricted manner, and while Dan's press credential conditions prevented him from doing the same, he could (and did) link to the other coverage. I was also reminded of the theme for this year's PC Forum: "Erosion of Power: Users in Charge."

The panel ran out of time just as David Quinto was saying it is "illegal" to link to infringing material. They needed a bit more time so Barbara could have had him expand on this, I'm not sure if he was positing an MGM v. Grokster-type liability or something else. (Whatever he had in mind, it was giving Dan Gillmor a bad case of the eyerolls.)

All in all, I was impressed and glad the ABA was paying attention to these issues, and am happy to have the opportunity to commit yet another little act of journalism by blogging the fact.

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Saturday, January 14, 2006

Breaking Out The Big Chickens

Our two-year old son is getting to an age (or stage; or state of mind) where sleep, in his opinion, is more and more optional. He wants to party party party, play play play, all all night and all all day. (I'm thinking of just dispensing with all the intermediate education and sending him straight to college. Or the third year of law school.) Thank goodness for Julie Aigner-Clark, creator of Baby Einstein, who had the foresight to life-savingly include among the bonus features on the Baby McDonald DVD a sequence where the sun sets and the barn animal puppets can stave off sleep no longer. No matter how much we read, have a bath, warm milk, lullabies, and soft music, these days it's inevitably (and only) the snoring rooster who has the Sandman on speed dial.

Friday, January 13, 2006

Recommendations For Forum On Communications Law Visitors

This morning I paid a (too brief) visit to the annual conference of the ABA's Forum on Communications Law, specifically for the panel called "Who Owns The News? Attempts by Sports Organizations and Entertainers to Control Coverage," featuring Dan Gillmor and others. (For a bit of context, see J. Craig Williams' recent topical post.) The panel was both interesting and informative, and I took some notes I'll try to blog over the weekend. But I wanted to put up this quick post for any of the conference's attendees who may drop by in the meantime (I contributed a related anecdote, and a good number of folks asked for Bag and Baggage's address), to point them toward the best two resources I know concerning the impact of disruptive technologies on the media and entertainment industries. The first is Dan Gillmor's book, We The Media. The second is JD Lasica's book, Darknet. Reading both would provide unbeatable background and insight on the topics the panel covered today.

This (pretty awful, sorry) photo was of course posted just as the panel was discussing efforts to control distribution of photos.

Monday, January 09, 2006

I Get It (And It Rocks)

The 1/2/06 edition of Dave Winer's Morning Coffee Notes (MP3) is Dave's talk with John Palfrey, in which the mysteries of John's Top Ten Sources project are revealed and explained. Basically, it's an edited aggregator, a participatory version of something like "Like a mutual fund...," said Dave, and aha! Now I get it. Explore around, there's some great stuff there (and obviously much more to come). Ernie, you should edit their page on New Orleans blogs and/or podcasts.

Definitely topical today: Top Ten Sources on Supreme Court Nominations. And I'll be checking back with the Top Ten Sources on Motherhood, IP Law, Google, and Identity, among other things I'm sure.

39 Forever

Today's New Blawg

Wow, just discovered CopyCense (via Genie Tyburski). Comprehensive and good, definitely blawgrolling that one.

Sunday, January 08, 2006

Bill Murray On The Bag And Baggage Podcast

Back in September, Bill Murray (senior fellow with the USC Annenberg School Center for the Digital Future, former Co-Chief Operating Officer of the Motion Picture Association, and principal of William Murray & Associates) was on the panel I moderated for the ABTL's program on the MGM v. Grokster decision. I thought Bill had a unique perspective and interesting insights, and was eager to pick up the threads from our talk in a subsequent podcast. He kindly agreed, and the show is now available as The Bag and Baggage Podcast, #16.

Wednesday, January 04, 2006

Unintended Consequences Indeed

Better Bad News (0:46-0:50): "That Grokster decision is causing trouble for weapons manufacturers." Heh.

I Second That Full Motion

I agree with Neil Squillante about the key role mobile video will come to play in our lives. I'm looking forward to making his grandma's Eggplant Fritatta (M4V) too. Neil: give us a feed (no pun intended) and keep this stuff coming! (Hint to all aspiring portable videogogs: if it doesn't have a feed, the odds of it making it to my iPod are slim to none...)

Common New Year

Just read the great news that Creative Commons exceeded its '05 fundraising goal: "Current status: $344,887.00 donated; Goal: $225,000 by Dec 31, 2005"

From The Inbox, Etc.

Monday, January 02, 2006

Before The Storm

Text alternative
Monterey, 12/23/05

Oyez To That

Welcome back, Article III Groupie! A fine note on which to start the new year, as is Blawg Review #38.

Creative Commons LicenseUnless otherwise expressly stated, all original material of whatever nature created by Denise M. Howell and included in the Bag and Baggage weblog and any related pages, including the weblog's archives, is licensed under a Creative Commons License.