For the record:

  1. With some sadness, and lots of excitement, I report that my assistant, Szelena Gray, is about to become my former assistant, and move to California to take over the lead of Rootstrikers. She has been amazing, which is why the bigger cause needs her more. My new assistant, Ari Borensztein, is a recent Yale grad and musician, looking for a couple years of challenging work. I’m happy to welcome and thank him in advance. He can be reached at a2lessig at pobox dot com.
  2. As is my practice, I am going offline for the balance of the month to spend some time with my family. One big exception this year, but beyond that, I won’t be receiving (and hence won’t be responding) to email. If you need to contact me urgently, email Ari.
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8 Responses to Transitions

  1. Jon says:

    My question is, why didn’t Dastar acknowledge the Crusade TV series in the first place?
    1) it is the polite thing to do
    2) obviously someone would atleast try to sue them

  2. Troy Klyber says:

    One line in the Court’s Dastar opinion jumped out at me as being very helpful in the battle against the anticircumvention measures of the DMCA:

    In sum . . . we conclude that the phrase [“origin of goods”] refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. . . . To hold otherwise would be akin to finding that section 43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft, 537 U.S. 186, 208 (2003).

    Since the application of the anticircumvention provisions of the DMCA to a work available only in an access-protected format “would be akin” to creating a perpetual copyright in that work, then Dastar may provide some guidance. But, it may be many years before this scenario presents itself. *sigh*

  3. Zach says:

    “JUSTICE BREYER took no part in the consideration or decision of this case. “

    Why not?

  4. Ruidh says:

    Breyer’s brother was the judge who origionally heard the case. It was appropriate for him to recuse himself.

  5. Robert Baron says:

    The recent Supreme Court decision in DASTAR CORP. v. TWENTIETH CENTURY FOX FILM CORP would seem to have significant repercussions for both scholars and artists. It defines the distinction between the application of copyright and trademark, specifically noting that no right of attribution is attached to works that have entered the public domain — noting in passing that the right of attribution provided under VARA (The Visual Artist’s Rights Act) only endures until the creator’s death. At the same time, it reserves the use of trademark to identify who is providing trademark goods as opposed to who is the original creator.

    Scholars may find it disquieting to discover that the reproduction of works in the public domain by law need not be identified as the work of their respective authors. For instance, I can now place an image of the Mona Lisa on a website and claim that it is by someone else other than Leonardo; by me, for instance. But is this altogether, bad? In some ways it would seem to clarify the very process of attribution in which scholars engage, without relieving scholars of their obligation to identify works responsibly — an obligation defined not by law, but by the ethics of their profession. It opens a legal door to the process of re-attribution — an activity that seems to inspire is own share of ire.

    Justice Scalia, who wrote the decision, indicates that having to report the creative origins of a work covered by trademark will place an unwieldy burden on the trade of goods, since that requirement of necessity will expand to an obligation to report all the up-stream creators — and will be confusing to customers who don’t really care about that stuff. Specifically, he says: “We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries.”

    Parenthetically, I’ll note that this argument seems to be a variant on one frequently cited to justify the public domain — that it is impossible to report and reward every source and every quote (consciously or not) underlying a current work of creation.

    In addition, one should note that Scalia seems to be taking back some of the harsh rhetoric against the public domain that appeared in Ruth Bader Ginsburg’s decison in the Eldred case. She denied that copyright law created the bargain between copyright holders and users whereby copyright was awarded for a limited time and the public would have unfettered access afterward. (My use of “unfettered” may wrongly describe the nature of the bargain, though many people think of it that way.) He says: “The rights of a patentee or copyright holder are part of a `carefully crafted bargain,’ … under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and with-out attribution.” Having spent a very short time in limbo, the court has now restored the bargain as the foundation of copyright.

    As an art historian, I wonder how this decision might affect the protection of artistic style. Copyright doesn’t protect style — and shouldn’t; but, some creators have used the Lanham Act to justify the protection of style as “trade dress.” Imagine if Picasso claimed that he inventeed Cubism, and nobody else could practice it. If a person can reproduce a public domain work and attribute it (within the bounds of legality) to himself, since style is not protected under copyright, can an artist appropriate the style of a predecessor whose works are not so protected and claim it as his own for the purpose of reserving its exclusive use for himself? The Dastar decision doesn’t seem to have answered every conflict between trademark and copyright.

  6. Joseph Pietro Riolo says:

    Regarding the comment made by Robert Baron…

    Although it is possible for trademark to grant very
    limited protection to one’s style, this does not prevent
    anyone from copying the same style. What the
    copier cannot do is to create a new trade dress using
    the same style in commercial environment that will
    confuse the customers as who is the origin of the
    tangible things.

    Likewise, if I find a very old logo in a book that is
    published before 1923 and that logo is still in use,
    I can still copy the logo that contains copyrightable
    elements to any of my works as long as the logo
    is not displayed in conspicuous places that will confuse
    the customers.

    Unlike patent and copyright, trademark is very
    sensitive to the context that it appears in.

    Joseph Pietro Riolo
    <[email protected]>

    Public domain notice: I put all of my expressions in this
    post in the public domain.

  7. Steve Hebert says:

    in response to “ZACH”,
    Justice Breyer did not participate because his brother served
    on the Ninth Circuit Appeal Court Panel. Judge Florence Cooper decided the District Court case.

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