The internet’s domain names have become potentially trademarkable following a decision by the US Supreme Court today that Booking.com can in fact be registered with America’s Patent and Trademark Office (PTO) – against officials’ objections.

The near-unanimous decision [PDF] – Justice Stephen Breyer was the sole rebel – went against the PTO’s legal arguments that adding “.com” to a generic term was like adding “company” to a word and so “conveys no additional meaning that would distinguish [one provider’s] services from those of other providers.”

The Supreme Court disagreed; at some length. It agreed with both the district court and the appeals court that “consumers do not in fact perceive the term ‘Booking.com’ that way.” It cited as a key piece of evidence a survey that showed 75 per cent of respondents thought ‘Booking.com’ was a brand name, whereas just 24 per cent believed it was a generic name.

It didn’t help that the PTO hasn’t followed its own argument in the past, with the court noting trademark registration #3,601,346 for Art.com and #2,580,467 for Dating.com. If the decision went against Booking.com, the Supreme Court reasoned, then existing approved trademarks would “be at risk of cancellation.” But it was also scathing in its assessment that “we discern no support for the PTO’s current view in trademark law or policy.”

The same survey that showed 75 per cent of people felt Booking.com was a brand however also revealed that only 33 per cent felt “Washingmachine.com” was a brand whereas 61 per cent though it was generic. And that subjective measurement is likely to prove to be a major headache for the PTO in deciding on what presumably will now be a rush of .com trademark applications.

Source: The internet becomes trademarkable, sort of, with near-unanimous Supreme Court ruling on Booking.com • The Register

A popular website with a comprehensive database of repair manuals for ventilators and other medical devices has received a letter from a medical equipment company saying that its copyrights are being infringed.

Kyle Wiens, CEO of the repair website iFixit—which posts guides on how to repair anything from sewing machines to video game consoles—shared the letter on Twitter Thursday, sent to him by counsel for Steris Corporation, which makes sterilization and other medical equipment.

“It has come to my attention that you have been reproducing certain installation and maintenance manuals relating to our products, documentation which is protected by copyright law,” the letter said. The letter then went on to tell Wiens to remove all Steris copyrighted material from the iFixit website within 10 days of the letter.

As Motherboard reported in March, major manufacturers of medical devices have long made it difficult for their devices to be repaired through third party repair professionals. Manufacturers have often lobbied against right to repair legislation and many medical devices are controlled by artificial “software locks” that allow only those with authorization to make modifications.

As reported by VICE News last week, a repair technician contracted to repair ventilators for hospitals preparing for COVID-19 said he has struggled to get repair parts or manuals from manufacturers when he has made requests to them.

“I’m disappointed that Steris is resorting to legal threats to stop hospitals from having access to information about how to maintain critical sterilization equipment during a pandemic,” Wiens told Motherboard in an email.

Wiens said he got the idea to post service manuals for medical equipment on iFixit when he began seeing stories about ventilator shortages in Italy. When he saw how some people were using 3-D printers to create ventilator replacement valves, he said he was inspired to create the database of medical equipment guides as a way to help.

“No manufacturer should be stopping hospitals from repairing their equipment,” Wiens said. “The best way to ensure patient safety is to make sure that equipment is being maintained regularly using the manufacturer’s recommended procedures. The only way to do that is if hospitals have up to date manuals.”

With regards to the letter sent by Steris, Wiens said iFixit has not removed any material from its website.

“We explained to Steris that what we did is a lawful and protected fair use under the U.S. Copyright act,” Wiens said.

“iFixit is protected by Section 512 of the Digital Millennium Copyright Act, which allows online platforms to host content contributed by users provided they comply with the Act’s requirements, which iFixit does,” a letter to Steris from the Electronic Frontier Foundation on behalf of iFixit said.

Source: A Medical Device Maker Threatens iFixit Over Ventilator Repair Project – VICE

Back in March, the Internet Archive launched its National Emergency Library, a program that made roughly 1.4 million books available to the public without the usual waitlists. But on Wednesday, the organization announced it was ending the program two weeks early after four major publishers decided to sue Internet Archive for copyright infringement.

Internet Archive explained in a blog post that after June 16, it would revert to a controlled digital lending model, in which libraries lend patrons digitized copies of a physical book one at a time. “We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic,” the non-profit said. “However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world.”

By eliminating waitlists, the National Emergency Library program effectively upended how publishers have thus far controlled how libraries distribute ebooks. Under the usual system, publishers sell two-year licenses that cost several times more than what you’d pay if you just bought the book outright. Internet Archive’s program basically made it so any number of people could temporarily download a single ebook an infinite number of times between March 24 and June 30, the original end date for the program.

In their complaint, Hachette, HarperCollins, Penguin Random House, and John Wiley & Sons allege that in addition to violating copyrights, Internet Archive’s free ebook program “grossly exceed legitimate library services” and “constitute willful digital piracy on an industrial scale.”

Before blasting Internet Archive for capitulating, this lawsuit has the ability to tank the organization—probably best known for its Wayback Machine web archiving tool—for good. Publishers could claim up to $150,000 in damages per title. When you multiply that by the 1.4 million works Internet Archive put up for free, the final number could be astronomical, and well beyond the nonprofit’s ability to pay. A win for publishers would put Internet Archive’s other projects at risk.

It appears that publishers aren’t just after Internet Archive’s temporary free ebook initiative. The complaint also contends that controlled digital lending is an “invented theory” and that its rules “have been concocted from whole cloth and continue to get worse.” It also contends that Internet Archive’s “one-to-one conflation of print and ebooks is fundamentally flawed.” Controlled digital lending, however, isn’t unique to Internet Archive. It’s a framework that’s been supported by several libraries over the years, including many university libraries like UC Berkeley Library. Publishers winning this lawsuit may potentially also put the kibosh on the entire controlled digital lending model.

It’s clear that Internet Archive’s decision was intended to appease publishers into dropping the suit. According to Internet Archive, some academic publishers who were initially displeased with the National Emergency Library eventually came around. That said, it’s unclear whether commercial publishers would do the same, as they have everything to gain by strengthening their hold over ebook copyrights.

Source: Internet Archive Ends Free Ebook Program Early

Fed up with the DRM in a General Electric refrigerator that pushed the owner to buy expensive manufacturer-approved replacement water filters, an anonymous hacker went to the trouble of buying a domain name and setting up a website at gefiltergate.com to pen a screed about appliance digital rights restriction management (DRM) and how to bypass it.

The fridge in question required a GE RPWFE refrigerator water filter. It has an RFID chip, which the fridge uses to verify the authenticity of the part. The RPWFE filter costs much more than unapproved filters: about $50 compared to $13.

“Some ******* at GE thought it would be a good idea to include a ******* RFID DRM module in select refrigerators,” the unidentified individual wrote, without using the asterisks we’ve included because online profanity filters are awful.

The Register contacted GE to ask about this, and the American giant’s corporate communications director promptly replied that GE sold its appliance unit to China-based Haier in 2016, which continues to use its brand. Haier did not immediately respond to our inquiry.

The gefiltergate.com website, borrowing from a similar post on another website back in May, explains how to hack your Haier GE-brand fridge by affixing an RFID tag – stripped from a component for bypassing the water filter system – to the RFID sensor.

The GE website suggests that a water filter is a good idea to avoid exposure to unfiltered water and sediment, inadvertently offering a sad commentary on public water infrastructure and government funding priorities. It recommends its RFID water filter because the chip chats with the fridge to report leaks, and will shut off the water supply if a leak is detected.

But the appliance doesn’t require the RFID filter; fridge owners can use the bypass plug, and still get unfiltered water.

“Non-GE filters and counterfeit filters without this technology will not perform the same way in the event of a water leak,” the company’s website explains. “The refrigerator has the option to use a bypass plug should you not want to use a genuine GE Appliances water filter.”

That makes it sound as if fridge owners can use water filters from another vendor but that’s not the case – the bypass plug is just to silence the fridge display screen warnings coming from the filtration system’s RFID sensor. “The ID chip on the filter detects when a wrong or non-genuine GE Appliance part is used,” the GE Appliances website states. “If this happens, the dispenser will not work and the display may read ‘Leak Detected.'”

Hence the need to hack the fridge, which is something product owners evidently have been doing for years. The Amazon.com webpage for the bypass plug contains a string of user reviews indicating that customers only purchased the thing for its RFID chip. And complaints abound on discussion site Reddit.

In a phone interview with The Register, Gay Gordon-Byrne, executive director of The Repair Association, said product hacking of this sort is entirely legal, in America at least. The US Copyright Office, she said, included software-enabled appliance repair in its 2018 rulemaking [PDF], and patents are not an issue in this case. And the Magnuson-Moss Warranty Act guarantees that consumers can use parts not from the original manufacturer.

Asked whether such practices generate enough ill-will to make them unprofitable, Gordon-Byrne said they can, pointing to Keurig’s problems selling coffee makers with digital locks, but added that people have to be aware of the problem.

“It generates some ill will but not enough to offset the value of controlling the whole parts market,” she said. “But it’s a stupid, stupid thing to do. There’s no reason to do this.”

Right-to-repair legislation, which aims to ensure consumers have a legal right to repair products where product makers or laws deny that possibility, was being considered in about 20 US states last year. However, Gordon-Byrne said that progress has stalled due to the coronavirus outbreak. She expects repair bills will have to be reintroduced in January next year.

Current US Copyright Office exemptions, she said, should be renewed for 2021 and she expects to lobby for new exemptions for product categories where repairs that require breaking digital locks are still not allowed, like boats, medical equipment, and game consoles.

Source: Someone got so fed up with GE fridge DRM – yes, fridge DRM – they made a whole website on how to bypass it • The Register

The real Space Force may be going down in flames against the fictional Space Force: According to the Hollywood Reporter, the newly founded military branch appears to be losing a trademark battle with the Netflix comedy show of the same name.

Netflix “has outmaneuvered the U.S. government to secure trademark rights to ‘Space Force’ in Europe, Australia, Mexico and elsewhere,” according to the Reporter, while the Air Force—under which the Space Force is organized—simply has a pending application stateside. This mostly has ramifications for merch. Consumers won’t have trouble discerning between the military branch and Space Force when it comes to which one stars Steve Carrell, but they might not be able who is selling a line of Space Force shirts.

The U.S. Patent and Trademark Office relies on a “first-to-use” system when assigning rights, and Netflix has been submitting trademark applications for the Space Force across the globe since the start of 2019. On the other hand, the Air Force filed a trademark application on the basis of intent to use in March 2019, per Law & Crime, and the Space Force didn’t become an actual organization until December 2019. If it comes down to a legal battle, that means Netflix may be able to easily demonstrate it was actually using the Space Force branding first. (Even if Netflix lost the case, it would have a First Amendment right to continue selling Space Force merch on the grounds of satire and parody.)

Source: Space Force Losing Trademark Battle With Netflix’s Space Force

OK, so not only is this silly but the fact that you can apparently actually trademark two words in a row seems absolutely bonkers to me.

In one fell swoop, Facebook may have changed its mind about how the online news media will operate from here on out. Undermining a now age-old assumption, Facebook told Ars Technica on Thursday that embedding from Instagram may not shield news organizations from freely cross-posting on their sites. A spokesperson said:

While our terms allow us to grant a sub-license, we do not grant one for our embeds API. Our platform policies require third parties to have the necessary rights from applicable rights holders.

The dry statement could mean upheaval for online publishing, implying that a news organization (or anyone running a for-profit site) would have to obtain a license for an Instagram post directly from the poster before they can embed it. Some will worry that it bodes a future in which publications retroactively strike every Instagram embed from its archives in order to avoid lawsuits.

On one hand, it’s good news for professional photographers and artists who would otherwise be paid for the use of their work embedded on a personal website. Photographers like the ones who separately sued Mashable and Newsweek for embedding their Instagram posts, both after they explicitly declined to license the images to the respective publications. On the other hand, this might be the last gasp for Instagram commentary, the bread of the news, the spice of the tea blogs.

Source: Did Instagram Just Say It’s Rewriting Online Copyright?

Today, member companies [Note only four members – ed] of the Association of American Publishers (AAP) filed a copyright infringement lawsuit against Internet Archive (“IA”) in the United States District Court for the Southern District of New York. The suit asks the Court to enjoin IA’s mass scanning, public display, and distribution of entire literary works, which it offers to the public at large through global-facing businesses coined “Open Library” and “National Emergency Library,” accessible at both openlibrary.org and archive.org. IA has brazenly reproduced some 1.3 million bootleg scans of print books, including recent works, commercial fiction and non-fiction, thrillers, and children’s books.

The plaintiffs—Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House—publish many of the world’s preeminent authors, including winners of the Pulitzer Prize, National Book Award, Newbery Medal, Man Booker Prize, Caldecott Medal and Nobel Prize.

Despite the self-serving library branding of its operations, IA’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace. IA scans books from cover to cover, posts complete digital files to its website, and solicits users to access them for free by signing up for Internet Archive Accounts. The sheer scale of IA’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world. IA publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.

Source: Publishers File Suit Against Internet Archive for Systematic Mass Scanning and Distribution of Literary Works – AAP

This is book publishers filing against a library. Copyright has gone nuts.

The lawsuit was filed in Federal court in New York City by Penguin Random House, Hachette Book Group, John Wiley & Sons, and HarperCollins Publishers.

The complaint notes that these four publishers are all members of the Association of American Publishers (AAP). AAP was one of 40 signatories, including the NWU, of a joint Appeal from the Victims of Controlled Digital Lending issued in 2019. Two of the four publishers bringing the lawsuit are US subsidiaries of European parent companies (Hachette Livre, which is part of the Lagardère Publishing group, and Bertelsmann) that are affiliated with the Federation of European Publishers (FEP), which also co-signed the Appeal.

The court complaint, however, was brought only by the four named publishers, and not as a class action. At least as originally filed, neither AAP, FEP, nor any authors or organizations of authors are parties to the lawsuit. The NWU had no advance knowledge whatsoever regarding this lawsuit.

Source: Publishers Sue the Internet Archive for Scanning Books (National Writers Union)

Obviously though a large group of self serving copyright vampires is congratulating the serving monkeys for killing off culture in favor of money in their collective pockets.

There are a variety of opinions concerning the Internet Archive’s National Emergency Library in response to the pandemic. I’ve made it clear in multiple posts why I believe the freakout from some publishers and authors is misguided, and that the details of the program are very different than those crying about it have led you to believe. If you don’t trust my analysis and want to whine about how I’m biased, I’d at least suggest reading a fairly balanced review of the issues by the Congressional Research Service.

However, Kyle Courtney, the Copyright Advisor for Harvard University, has a truly masterful post highlighting not just why the NEL makes sense, but just how problematic it is that many — including the US Copyright Office — seem to want to move to a world of permission and licensing for culture that has never required such things in the past.

Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural intuitions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.

What’s really set Courtney off is that the Copyright Office has come out, in response to the NEL, to suggest that the solution to any such concerns raised by books being locked up by the pandemic must be more licensing:

The ultimate example of this licensing culture gone wild is captured in a recent U.S. Copyright Office letter. Note that this letter is not a legally binding document. It is the opinion of an office under the control of the Library of Congress, that is tasked among other missions, with advising Congress when they ask copyright questions, as in this case.

Senator Tom Udall asked the Copyright Office to give its legal analysis of the NEL and similar library efforts, and it did so… badly.

The Office responded with a letter revealing their recommendation was not going to be the guidance document to “help libraries, authors, and online outlets,” but, ultimately, called for more licensing. It also continued a common misunderstanding of an important case, Capitol Records, LLC v. ReDigi Inc., 910 F. 3d 649 (2d Cir 2018).

We’ve written about the Redigi case a few times, but as Courtney details, the anti-internet, pro-extreme copyright folks have embraced it to mean much more than it actually means (we’ll get back that shortly). Courtney points out that the Copyright Office seems to view everything through a single lens: “licensing” (i.e., permission). So while the letter applauds more licensing, that’s really just a celebration of greater permission when none is necessary. And through that lens the Copyright Office seems to think that the NEL isn’t really necessary because publishers have been choosing to make some of their books more widely available (via still restrictive licensing). But, as Courtney explains, libraries aren’t supposed to need permission:

Here’s the problem though: these vendors and publishers are not libraries. The law does not treat them the same. Vendors must must ask permission, they must license, this is their business model. Libraries are special creatures of copyright. Libraries have a legally authorized mandate granted by Congress to complete their mission to provide access to materials. They put many of these in copyright exemptions for libraries in the Copyright Act itself.

The Copyright Office missed this critical difference completely when it said digital, temporary, or emergency libraries should “seek permission from authors or publishers prior” to the use. I think think this is flat-out wrong. And I have heard this in multiple settings over the last few months: somehow it has crept into our dialog that libraries should have always sought a license to lend books, even digital books, exactly like the vendors and publishers who sought permission first. Again, this is fundamentally wrong.

Let me make this clear: Libraries do not need a license to loan books. What libraries do (give access to their acquired collections of acquired books) is not illegal. And libraries generally do not need to license or contract before sharing these legally acquired works, digital or not. Additionally, libraries, and their users, can make (and do make) many uses of these works under the law including interlibrary loan, reserves, preservation, fair use, and more!

[…]

Source: Libraries Have Never Needed Permission To Lend Books, And The Move To Change That Is A Big Problem | Techdirt

For those of us of a certain age, MTV defined culture. It was where we learned about not just music, but wider pop culture. Of course, MTV lost its cultural place atop the mountaintop with the rise of the internet, but that doesn’t mean that it wasn’t a key source of culture in the 1980s. Historically, the way that society preserves and remembers culture is to share it and spread it around. This is actually how culture is created. Yet copyright is the opposite of that. Copyright is about locking up content and denying the ability to create shared culture around it. And the best evidence of this is the fact that someone (it is not entirely clear who…) with the power to do so, demanded that the Internet Archive take down a bunch of old MTV videos that were uploaded.

So, The Internet Archive had someone upload a few hundred hours of MTV recordings. VJs, Commercials, and of course Music Videos, from the 1980s. Today, it was asked to be taken down by someone who could ask for that and it’s down. pic.twitter.com/tZ7Ka2sGMy

— Jason Scott (@textfiles) May 9, 2020

From a purely legal standpoint, it seems quite likely that whoever issued the takedown did have a legal leg to stand on. The real question, however, should be whether or not they have a moral or cultural leg to stand on. After all, if the entire point of copyright — as per the Constitution — is to encourage “the progress” then how does taking these old clips down do anything to support that goal?

There are a number of other points worth mentioning to demonstrate how crazy this whole thing is, starting with the fact that MTV itself knew how important it was to build on cultural touchstones in that its whole logo/image was built off a public domain image from just a few years earlier. The moon landing was in 1969, and MTV launched in 1981. Imagine if this image had been locked up under copyright?

MTV knows that creativity comes from building on the past; it created its most iconic moon landing imagery on top of public domain government videos and photographs. Another big company pulling up the ladder behind it https://t.co/9pamGhNAbb

— Parker Higgins (@xor) May 10, 2020

This also demonstrates a separate point we’ve been making for years, which is that the actual commercial value of a piece of work locked up behind copyright, tends not to be that long, and yet we locked it up for basically a century for no good reason at all. In the earliest copyright times in the US, copyright initially was for 14 years, which could be renewed for another 14 if the copyright holder felt it was worth it. A maximum of 28 years would mean that most of the uploaded clips would now be in the public domain if we had kept those terms. And, as we’ve pointed out repeatedly, back when copyright was 28 years, renewable for another 28 years, very few works were renewed, suggesting that the vast majority of copyright holders did not see any reason to retain their copyright beyond 28 years (indeed, the numbers suggest many would have been fine with significantly shorter copyright terms):

Yet, today copyright automatically lasts beyond most of our lifetimes. And, for what purpose? Right now, MTV is not particularly culturally relevant. You’d think that someone might jump at the chance to get renewed interest in MTV’s past cultural relevance, but the belief that copyright means we must lock up culture seems to prevail over common sense.

Taking down these cultural touchstones may have been perfectly legal, but all it’s really done is help demonstrate the many, many problems of today’s copyright law and how it destroys, rather than enhances, culture.

Source: Copyright Making Sure That MTV Remains An Irrelevant Relic, Rather Than A Cultural Icon | Techdirt

Much of the fun of internet drama comes from its frivolousness, but sometimes an online shitfest points to something bigger. Last week, the AI-powered furry art site thisfursonadoesnotexist did just that, igniting a fandom firestorm while also highlighting an important debate about digital art. Trained on more than 55,000 images pulled (without permission) from a furry art forum, the algorithm was a simple case of art theft to some. For others, it was a chance to break out the popcorn. But legal scholars who spoke with Gizmodo said the conflict raises thorny questions about ownership in the age of AI—questions that may ultimately have to be answered in court.

Arfa, the programmer behind thisfursonadoesnotexist, says he used the same GAN (generative adversarial network) architecture behind the site thispersondoesnotexist to generate around 186,000 furry portraits. When he posted the project on Twitter last Wednesday, dozens of commenters rushed to weigh in. While many were fascinated by the project, some in the furry community objected to Arfa’s unauthorized use of art from the furry forum e621.net as training data. At least one person tried (and failed) to find proof that the algorithm was copying images from e621.net outright. And within days, the entire site was slapped with a DMCA copyright infringement complaint. (The company whose name the DMCA was issued in, according to Arfa, denied filing the notice and requested it be withdrawn.)

[…]

The creator of thisfursonadoesnotexist thinks it would’ve been impossible to contact all the artists involved. Arfa told Gizmodo that he scraped 200,000 images that were then narrowed down to a 55,000-image training set representing approximately 10,000 different artists—creators who may go by different names now or have left the fandom entirely. According to Arfa, he’s more than willing to take an image down from thisfursonadoesnotexist if it clearly copies an original character, but he says he has yet to see credible evidence of that.

In defense of the AI’s originality, the site has produced a collection of mushier fursonas whose delirious weirdness inspired a flurry of memes. “Some of these have designs that are so… specific? Holistic?” a commenter on Hacker News wrote, linking to a fursona with a tail sticking out of her head and an adorably half-formed feline mouse. Do these Cronenberg-esque misfit furries, with their wild-eyed gazes, scream “LOVE ME”or “SAVE ME”? The art world adores liminality—that’s value added right there.

Furry artists aren’t alone in facing the dilemma of digital manipulation. Just last month, Jay Z filed DMCA takedown notices against a YouTuber who used speech synthesis software to make his voice read the Book of Genesis and cover Billy Joel’s “We Didn’t Start the Fire.” While experts explained to Gizmodo that Jay Z’s issue isn’t copyright, since copyright doesn’t cover speech patterns, both incidents suggest a future where machine learning art is widespread, even commonplace. In such a future, can an artist’s original work be used as training material? If so, to what end? (In Jay Z’s case, YouTube ultimately allowed the videos to stand.)

Source: The Internet Furry Drama Raising Big Questions About Artificial Intelligence