Friday, July 24, 2009

Wait, A Reasonable Copyright Holder?

The Associated Press today announced it was going to start using a digital framework of sorts to track when people copy the AP's content without permission.1 This at first sent tremors of "uh-oh" here at Squishy Mind Property until we read further into the article. The program is aimed at stopping those mass aggregators who rip off large amounts of AP content, not little bloggers like us.2 So we breathed a sigh of relief. Granted we at SMP try to cite our sources as best we can and definitely refrain from outright copying, plagiarism, etc.

Technically speaking, the AP is absolutely correct, that anyone who wishes to use their actual stories (the text article the AP created) MUST get a license from the AP.3 The distribution right has been long established to be one of those exclusive rights of a copyright holder.4 The preamble to 106 provides the AP can publish/distribute OR authorize said publication and distribution.5 So all that being said, I have to say that the AP is taking the exact opposite approach the RIAA has used (until recently). But I think part of this may be related to an old Supreme Court case involving the AP.6 In Associated Press v. International News Service,7 the Court found that the "news" itself was not copyrightable, but the expression of the news was.8 In this way, the AP is acting within the Copyright Act and the AP decision. They have all the right to go after the little guy in this case, but so far they are choosing not to and for that, I applaud them as a reasonable party in this current struggle to make sense of the digital domain and the future of copyright law.

1: Debra Weiss, AP to Crack Down on Use of Its Content, ABA JOURNAL, July 24, 2009, available at
2: Id. ("[T]he intent was to deter those who engage in large-scale copying of AP content rather than bloggers who use too many paragraphs from an AP story.").
3: 17 U.S.C. § 106(1), (3) (2006).
4: Id. at 106(3).
5: Id. at § 106.
6: Associated Press v. Int'l News Serv., 248 U.S. 215 (1918).
7: 248 U.S. 215 (1918).
8: Id. at 234-35.

You Gotta Fight, For Your Right, of Priiiiiiiiiivacy

I woke up this morning and checked my Facebook news feed (as usual). Today however, I noticed something that concerned me. A friend of mine had posted a warning on her status about Facebook making use of my pictures and other various actions to create advertisements that my friends see.

I don't know about you, but any arrangement that uses my private information and then requires me to opt-out if I don't want them to is bogus in my mind. First year Contracts I students learn that silence is almost NEVER acquiescence. I'm not really impressed by Facebook's Terms of Use/Service, which suggest that we (the users) are on notice of this practice as it's pretty unclear. Now to be fair, I haven't seen any ads with my friends pictures in them (yet).

The whole reeks of rampant capitalism and an invasion of privacy. Granted, there has to be first be an expectation of privacy and this is the internet. But in my irate defense, I have my personal profile set fairly private. Literally, when people want to friend me, they generally have to e-mail me or ask me in person because I don't show up in search results, I untag myself from a lot of pictures and I generally just don't make it easy for people to find me. This little option seems to not care, which irritates me. As I said before, silence is not acceptance, particularly in a case where a person is going to making money (selling ad space) by using your information.

I did follow my friend's instructions on how to stop Facebook from using this information. I have reposted below:

"Facebook has agreed to let third party advertisers use your posted pictures without your permission. Click on SETTINGS next to where you see the LOGOUT link. Select PRIVACY. Select NEWS FEEDS AND WALL. Select th
e tab that reads FACEBOOK ADS. There is a drop-down box, select NO ONE. Then hit SAVE."

It should ultimately look like this when you are done.

When will Facebook learn to stop trying to get so damn creepy?

All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible

This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property

Monday, July 13, 2009

Doppelgangers Need Tweets Too

So I just heard this interesting little factoid. Apparently there's been an issue lately with imposter tweets in the blogosphere.1

I find this topic interesting on two fronts. There's the subject of personal accounts, like Mr. La Russa,2 Mr. Schuller,3 and even the notable Sarah Palin.4 Then you have to look at the likes of corporations, several of which have come under attack from alleged "insiders" tweeting about the goings on in the company.5

The first set of tweets goes to a right of publicity issue. Does a person have the right to control the public perception and economic exploitation of their person? Sure they do. If they are a celebrity. The common law right of publicity extends to allow a person to exploit their persona.6 Unlike a trademark issue, there's no need to address a likelihood of confusion either, it's a broader right of protection.7 So the question remains, what consitutes 'celebrity'? Well, the answer is there is not really an answer. The best answer is it depends on what you're worth, but even McCarthy is hesitant to draw lines and would extend it a right to anyone.8

The second set goes to an issue we haven't addressed much of late in this blog, trademarks. Trademarks are source designators.9 They tell you where something came from so you, the customer or client can be assured of the quality or you at least know what you are getting. Clearly if you are reading the tweets from someone who you THINK works for ABC-BIG COMPANY, but really isn't, there may be a problem, particularly if the impostor is telling you that ABC puts rubber cement in the bologna you're making your sandwich from.

Ultimately both issues goes to the idea that a person or entity needs to be able to have control over their rights. The big question here, is what the pecuniary gain is from posing as someone you are not. For the cases of Mr. La Russa or Mrs. Palin, the gain is likely not pecuniary, mostly to make a bad name for the individual being impersonated. This crosses more into the area of defamation or libel (since slander is spoken), less of an issue than I'd like to dive into right now. For the companies, one could argue dilution,10 but it's a weak claim. You could most likely argue tarnishment.11 That claim would likely survive a little bit, depending on what the impersonator decided to "tweet" about your company, assuming that ABC was a famous enough company to warrant Federal Trademark Dilution Act protection.12

Overall, there will always be those that try to pose as someone else to make a little money for themselves or to make a bad name for someone else, we should all consider ourselves warned.

1: Companies Cope with Twitter Imposters WALL STREET JOURNAL, June 29, 2009, available at; Kylie Crull, Watch Out for Imposter Tweets, ROCKFORD REGISTER STAR, July 12, 2009, available at; Geoffrey Fowler, Tony La Russa Drops Suit Over Fake Twitter Account, WALL STREET JOURNAL, June 7, 2009, available at; OMG! Imposter Tweets Pretending to be Prominent TV Evangelist Robert Schuller, NY DAILY NEWS, Mar. 26, 2009, available at
2: Fowler, supra note 1.
3: NY DAILY NEWS, supra note 1.
4: Brian Womack & Ian King, Palin's Twitter Impersonators Show Challenge of Tweet Control,, July 8, 2009, available at
5: WALL STREET JOURNAL, supra note 1.
6: Rogers v. Grimaldi, 875 F.2d 994, 1003-04 ("The common law right of publicity, where it has been recognized, grants celebrities an exclusive right to control the commercial value of their names and to prevent others from exploiting them without permission.").
7: Id. at 1004.
10: Id. at § 24:67.
11: See 15 U.S.C. § 1125 (2005).
12: 15 U.S.C. § 1125(c)(2)(A).

All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible

This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property