You cannot possibly understand what a safe haven for frauds and con artists the art world has become until you have walked into this trickster’s trap. Murakami, who produces figurines that are sold inexpensively in Japan, as well as very expensive Louis Vuitton handbags and exceedingly expensive paintings and sculptures, is a canny observer of consumer desires. It is easy to appreciate how niftily some of his effects are engineered. . . . His compositions with lots of eyeballs have a freaky dynamism; and his melting and transmogrifying sci-fi humanoids, which mingle Surrealist strategies with a psychedelic Peter Max sensibility, are sporadically diverting. But the work is all shell, all facade, all empty assertion. . . .To the extent that Koons or Murakami can be said to have a style, it is a frozen style, an inert vocabulary.
But is it Murakami’s style that’s the problem, or its lack of reference? At the Brooklyn Museum show, the artist’s private mythology and dilemmas motivated most of the recent work. Listening to the cell-phone messages accompanying several works, I was struck by how often he would bring up his own pedestrian business challenges or moods as direct inspiration for grandiose visions. His exhibit at the Japan Society three years ago consistently referenced the traumas of Hiroshima and Nagasaki, lending much of that work a gravitas and legibility lacking at the Brooklyn show.
(Murakami, Tan Tan Bo Puking)
Murakami’s current work often feels weightless and unmoored, a natural consequence of his failure to emphasize the dark side of an increasingly marketized society. Some may dismiss that theme as excessively didactic or depressing, but they should take a look at Kenneth Tin-Kin Hung (whose video art appeared at another exhibit (Unmonumental) which Perl criticized). Hung’s Because Washington is Hollywood for Ugly People (still below) is frenetic, Rabelaisian, and profane–but strikes me as something (sans annoying soundtrack) that will be essential to those trying to understand contemporary culture and politics decades hence. As Roberta Smith notes, this “brashly beautiful, furious work” is a “hilarious, scarifying portrayal of the nation’s leadership and its machinations around the war in Iraq.”
(Hung, still from Because Washington is Hollywood for Ugly People)
(Admittedly, another NYT reviewer said that Hung’s work recalled a “fever dream of a political blogger,” and a video chock full with references to Mitt Romney, John Edwards (dressed as Tinker Bell), Karl “Turd Blossom” Rove, et al., might seem instantly dated. But we gladly excavate the intricate symbolism of a Bosch, and Hung’s garden of political delights offers lasting insights on how political campaigns spiralled into an inferno of potshots and adspots. The work’s narrative and humor may disguise its craft–but let’s remember that’s the same plaint many critics had against the metaphysical poets.)
On a more inspiring note, Hung’s art/game Gas Zappers makes the fight against global warming seem fun while frankly and frivolously depicting the power and motives of those who stand in its way. Has any artist better reflected Stephen Duncombe’s ideas about the fantastic dimensions of politics?
Seizing upon references high and low, Duncombe makes the case that spectacle can be an ethical and sophisticated means of appealing to, even seducing, the American public. Rather than bemoan the fact that people are obsessed with Paris Hilton and condemn video games like Grand Theft Auto: San Andreas, both of which Duncombe discusses with a mix of awe and critical glee, liberals need to determine why that obsession exists—pop culture as road map into the American mind.
Therefore it’s dangerous for any conscientious fan of contemporary art to ape Perl’s disdain for the logos, flatness, and game-like quality of an ever-more commercial world. To put it bluntly: corporate artifacts like Louis Vuitton bags and Grand Theft Auto are the Madonna (& Child) of the Future. These tropes will be endlessly celebrated, mocked, and otherwise referred to. The question is whether the leading artists doing so are preoccupied with the semiotics of Hello Kitty or blog about low-cost solar panels.
By and large, I am in agreement with Perl’s skepticism about Murakami. With him,
I do not really believe that the educated audience that surveys the work of . . . Murakami at the Brooklyn Museum[] sees some deep meaning in these overblown comic-book heroes and factory-produced baubles. A lot of the visitors . . . have a knowing, ironic look fixed on their faces. They can see that what is presented as art with a universalist message is really just global marketing swill. . . .
The question, then, is how to react to a world where marketing, once a tool, has become a climate of opinion. Perl retreats to “art that pursues its own viewpoint,” and commends efforts of the Chinati Foundation and the (original) Barnes Foundation to situate artworks in particular places, for particular audiences, who must make real effort to be physically and mentally present. I’m sure Perl’s leisure and education make such experiences particularly meaningful for him. But I’ve made the pilgrimage to Merion, PA, and I cannot share his sadness at the Barnes Collection’s upcoming move to downtown Philadelphia. We live in a culture of speed, distraction, and pressure. Art can either adapt to that or face the fate of academic poetry, which, while “still mattering,” faces dwindling audiences and relevance.
Hung knows how to make the “road more traveled” fresh and alluring. Though the establishment may bridle at an artist who blogs on cheap food and renewable energy, maybe they should question their own presumptions about the autonomy of the aesthetic sphere. As a new Adorno might say, after Abu Ghraib, apolitical art is suspect.
Nicholas Carr is one of the leading commentators on internet culture, and his article “Is Google Making Us Stupid?” will influence discussion of its effects for a long time. Here’s one conclusion from the piece:
Where does it end? Sergey Brin and Larry Page, the gifted young men who founded Google while pursuing doctoral degrees in computer science at Stanford, speak frequently of their desire to turn their search engine into an artificial intelligence, a HAL-like machine that might be connected directly to our brains. “The ultimate search engine is something as smart as people—or smarter,” Page said in a speech a few years back. “For us, working on search is a way to work on artificial intelligence.” In a 2004 interview with Newsweek, Brin said, “Certainly if you had all the world’s information directly attached to your brain, or an artificial brain that was smarter than your brain, you’d be better off.” . . .
[T]heir easy assumption that we’d all “be better off” if our brains were supplemented, or even replaced, by an artificial intelligence is unsettling. It suggests a belief that intelligence is the output of a mechanical process, a series of discrete steps that can be isolated, measured, and optimized. In Google’s world, the world we enter when we go online, there’s little place for the fuzziness of contemplation. Ambiguity is not an opening for insight but a bug to be fixed. The human brain is just an outdated computer that needs a faster processor and a bigger hard drive.
Genericide is one of the most interesting doctrines in trademark law, and the First Circuit’s recent opinion on Duck Tours should prove interesting to scholars working in the area. Judge Howard of New Hampshire was on the panel, joining an opinion written by Judge Lipez. Lipez could have cited any of a number of pieces on TM law to explain the concept of genericness, but wisely opted for a preternaturally aptly titled piece:
Because they serve primarily to describe products rather than identify their sources, generic terms are incapable of becoming trademarks, at least in connection with the products that they designate. . . . Awarding trademark rights to any user of the term, especially the first user, would harm competitors and consumers alike. Competitors unable to use a common term that describes or designates their product are at a significant disadvantage communicating to potential customers the nature and characteristics of the product. See Vanessa Bowman Pierce, If it Walks like a Duck and Quacks like a Duck, Shouldn’t it be a Duck?: How a “Functional” Approach Ameliorates the Discontinuity Between the “Primary Significance” Tests for Genericness and Secondary Meaning, 37 N.M. L. Rev. 147, 154 (2007).
Fortunately, AFLAC can rest assured that its own mascot is sufficiently fanciful to resist such a judgment.
Google will syndicate the program using its AdSense advertising system to thousands of Web sites that are predetermined to be gathering spots for Mr. MacFarlane’s target audience, typically young men. Instead of placing a static ad on a Web page, Google will place [McFarlane’s show’s] video clip. Advertising will be incorporated into the clips in varying ways. In some cases, there will be “preroll” ads, which ask viewers to sit through a TV-style commercial before getting to the video. Some advertisers may opt for a banner to be placed at the bottom of the video clip or a simple “brought to you by” note at the beginning. . . . “We feel that we have recreated the mass media,” said Kim Malone Scott, director of sales and operations for AdSense. . . .
Media Rights Capital, a boutique production company that has the ability to invest about $400 million a year in movies, television and Internet episodes, thinks it has figured out a sustainable business model with the Google Content Network. Every time someone clicks on one of the syndicated videos, the associated advertiser pays a fee, with shares going to Mr. MacFarlane, Media Rights, Google and the Web site that generated the click.
My question is, as revenue is re-negotiated in the future, how soon will it be before we see headlines like this for video content-providers:
Amazon, the online retailing giant with a fast-rising share of the consumer book market, has adopted the literary equivalent of a nuclear option for rebellious publishers who balk at its demands. In the latest in a series of disputes over the division of revenue from online sales, Amazon has disabled the “buy now with 1 click” icon on its British Web site for hundreds of books published by the British unit of Hachette Livre, from back-list Stephen King novels to, naturally, “The Hachette Guide to French Wine.”
The button allows registered users to purchase titles instantly, with free shipping. Customers can still buy the affected books, but they have to navigate to an open marketplace that links them to third-party sellers of new or used books. And they have to pay for shipping.
I suppose a lot depends on the elasticity of demand for the products involved. What’s the demand for Seth McFarlane (as opposed to other young-male-humor) compared with the demand for backlist Stephen King (as opposed to other frisson-inducers)? My sense is that a sense of information glut ends up increasing the power of intermediaries, as weary consumers begin to opt for whatever’s most available.
And while I’m just speculating here…any bets on whether Amazon’s growing dominance will make a Borders/BN merger more likely? Seems like a move very similar to the XM-Sirius merger, though perhaps the relevant market in the radio case is “bigger” (whatever that means) than the one in books.
If the Naked Cowboy and Mars settle the case and NC grants Mars permission to use the mark (admittedly, that result seems unlikely), can the NC keep his rights in the mark even if he engages in such a “naked” license?
Futurology is often derided as a pastime of trendspotters and luftmenschen. But the recent European Patent Office “Scenarios for the Future” report rehabilitated the genre a bit. I’ve mentioned before that an IP prof has to be a bit of a prognosticator; I’m happy to see Carlin Romano developing the theme (far more eloquently than I could) in this recent review of the Future of Reputation and The Future of the Internet:
Both . . . books, excellent and ultimately upbeat in their separate but related missions, will increase our literacy in their complex yet still intelligible fields. . . .”The best way to predict the future”, the US computer scientist Alan Kay remarked in 1971, “is to invent it.” Pre-emptive description, however, ranks second best. The chief identifying criterion of the future is that it continuously steps back from us, making nothing about it, strictly speaking, true or false.
Both Zittrain and Solove exhibit a common trait of technologically oriented futurists: they tend to assume current values and a wish to preserve them in the face of fresh logistical forces. [Yet] Solove’s examples, such as Jennifer Ringley, the twenty-year-old student who opened her whole life to regular webcam monitoring in 1996 and didn’t shut down until 2004, remind us of truths more explored by Frankfurt School philosophers than American futurists – that technology also changes our values, or at least adjusts them. The iPod, for instance, pressures us to tolerate forms of distraction formerly considered rude, such as the teenager who makes her purchase without removing her earphones.
Both Solove and Zittrain deserve Kierkegaard’s accolade, that to occupy oneself with the future is “an indication of man’s nobility”. Like many “cyberphilosophers”, they are discovering the future in the present with less wonted gloom and doom – and more incisive solutions – than many traditional literary and humanistic pronouncers on the subject.
As someone who has written on the ways new technology can shape values (and believes in the continuing relevance of the Frankfurt School)–I greatly appreciated Romano’s sharp review of these two important books.
Lawyers do well when they encounter information and ideas outside the world of law. In that spirit I offer this video about the brain. Attention to how the brain works has grown in the law. One might argue that the law requires some conception of what it is to be human, to have intent, to think one way or another.
The video is from TED. It is Prof. Vilayanur Ramachandran giving the talk “A journey to the center of your mind.” He looks at specific conditions affecting the brain and offers some fascinating insights about how the brain functions and at the end a view of creativity that is fascinating. In addition TED delivers again with an excellent example of a good lecture. So watch, learn, and enjoy. (Approx. 24 minutes).
It’s hard to think of two movies conveying American joie de vivre and weltschmerz as well as Ferris Bueller’s Day Off and Requiem for a Dream (respectively). So why not superimpose the music from one on images from the other (in Requiem for a Day Off)?
Like Reese’s Pieces, two great movies that taste great together. Shakes McFadden’s work here reminds me of the growing genre of minimally transformative mashups. Two years ago I mentioned here the Nietzsche Family Circus; now there’s Garfield Minus Garfield, a cartoon “Hamlet Without the Prince” which simply excises Garfield from every frame of Jim Davis’s cartoon strips. Davis himself loves the concept:
“I think it’s the body of work that makes me laugh — the more you read of these strips, the funnier it gets,” Mr. Davis said. As for Garfield himself, “this makes a compelling argument that maybe he doesn’t need to be there. Less is more.”
McFadden masterfully re-cuts Ferris, but doesn’t appear to add much to Clint Mansell’s music (which may well be inspired by Phillip Glass). I suppose Mansell would have a better chance at a copyright infringement suit than the moviemakers. But I still find it bizarre that courts might ask, in the fair use inquiry, whether the video comments on the music (parody), or merely uses it as a convenient platform to make a humorous point (satire). Then again, I always thought the guy in the Numa Numa video was parodying Romanian dance music.
The Hula Hoop, possibly the greatest fad in American history, turns fifty this week. According the AP, Soviet Russia banned the toy “as a symbol of the ‘emptiness of American culture.’” I love the Hula Hoop because of the Coen Brother’s film The Hudsucker Proxy. If you have not seen it, buy or rent it. The acting from Robbins as the bright-eyed corporate dupe to Newman’s grizzled corporate leader to Leigh’s smart, tough writer to all the great supporting roles combine with the great attention to set detail and offer one of my favorite Coen films. The gore and darkness is not present but the fun and fantastic is. Corporate law folks may find the ideas of the proxy and how it works troublesome, but then again this one is not about legal or historic accuracy; it is fiction pure and simple. Nonetheless, the film captures the feel of black white news reels and fads so well that one might think it is the real stuff. If you need further convincing, just check the clip below the fold. It captures the ridiculousness of fads and the way we may wish the past was rather well.
I’m not much of a golf fan, but I’m a huge fan of Tiger Woods, precisely for the reasons that David Brooks summarized the other day: He wins not just because he is a superb athlete, but his mental discipline is overwhelming.
So today’s news is that Tiger will take time off to have reconstructive surgery on his left knee — the one that was ’scoped right after the Masters and that gave him obvious pain during last weekend’s U.S. Open. Why reconstructive surgery? Because he tore his ACL (anterior cruciate ligament) in that knee almost a year ago. Since then, he’s won what — 10 tournaments? 11?, including two majors (the PGA and the U.S. Open). Without a cruciate ligament? In his left knee — the platform for his swing, one that suffers the torque of driving?
I was a competitive athlete for a long time when I was young, but I didn’t learn nearly enough about the mental side of sport until I tore my first ACL nearly 20 years ago. The discipline that I learned during that rehab opened my eyes to what top-level athletes achieve. (Not that I achieved it myself, but I could faintly glimpse it from where I stood.) When Tiger came along, it was easy to grasp immediately what separated him not only from his fellow golfers but from almost all other athletes, in any sport.
Whatever Tiger’s flaws, in my view there is no doubt that he is in the same class (but different sport) as the other member of my warrior pantheon, Michelle Akers, who finished her soccer career while battling Chronic Fatigue Syndrome.
This is usually a law-and-technology blog, so I’ll close with a law-and-technology note. Tiger will be back, and back in top form, faster than anyone might imagine. ACL reconstruction procedures have evolved at light speed since I had my first in 1989, thanks in no small part to the fact that in my experience, top sports-oriented orthopods often have entrepreneurial streaks, a knack for finding venture and government funding, and a sheaf of patents.
While I was attending the excellent privacy conference Dan Solove and Chris Hoofnagle organized in D.C. a few days ago, it occurred to me that just as one takes driver’s ed. before being able to drive a car, it might make sense to have a required Internet Education class in middle school. Driving is a key way people engage in the economy, and the Internet, especially email and social networking use, is becoming as essential if not more so. Given all the benefits and problems of the Internet from meeting new people and peer production to unfortunate gossiping and dog poop events, it dawned on me that Internet Ed. might fill a gap that appeared as I listened to various people at the conference. [Read more →]
I’m still recovering from yesterday’s amazing sports thriller — not Tiger’s 18th hole birdie to force a U.S. (golf) Open playoff with the man known here in Pittsburgh as “Greensburg’s Rocco Mediate” (his full, official, legal name) — but Turkey’s spectacular come-from-behind 3-2 win over the Czech Republic. (Hats off, by the way, to Czech fans of goalkeeper Petr Čech, whose error led directly to the second Turkish goal, for wearing headgear in support of their hero. Čech suffered a skull fracture in a match 18 months ago and now plays with a soft helmet.)
So it’s all I can do this morning to note three copyright stories in two pages of the New York Times business section, all of which add up to little more than the weary sense that copyright is creaking this morning.
In Canada, the private broadcaster CTV stole a march on CBC and its flagship Hockey Night in Canada program by purchasing the rights to the theme song used on the program for 40 years. A dispute between the composer (and her agent) and CBC had been brewing (NPR’s story last week is particularly entertaining), so in a sense this is nothing out of the ordinary. The affection that Canadians feel for the song, however, apparently cannot be overstated, making me wonder whether the thing should be owned at all. The whole affair reminds me of Professor Robert Brauneis’s recent tour-de-force on the copyright status of Happy Birthday to You. My wonderment is merely rhetorical; there is no reason to doubt the copyright status of the hockey theme.
Mr. [Jim] Kennedy [vice president and strategy director of The A.P.] argued, however, that The Associated Press believes that in some cases, the essence of an article can be encapsulated in very few words.
“As content creators, we firmly believe that everything we create, from video footage all the way down to a structured headline, is creative content that has value,” he said.
But he also said that the association hopes that it will not have to test this theory in court.
I don’t wish a lawsuit on anyone, but in my sunnier moments I think that the A.P. *should* sue someone. This is a copyright question only in form. At long last, we might have an opportunity to correct the mistake that is International News Service v. Associated Press.
I was traveling last week and caught only occasional highlights of the opening round matches in Euro 2008 — the international soccer tournament now happening in Austria and Switzerland. I plugged back into full matches yesterday and was wowed by the Netherlands, who dismantled France 4-1 yesterday to follow an earlier 3-0 thrashing of World Cup holders Italy.
In international soccer, I’m usually a guarded fan, rooting for attractive, attacking play rather than supporting a particular team. (I’ve been seen wearing a Brazil jersey at World Cup matches, but appreciating attractive soccer and samba is usually an easy call.) I’ve been attracted to the Netherlands for many years; I remember watching the 1974 “total football” version of the Oranje, led by Cruyff and Neeskens, lose the Cup final to the West Germans. Beckenbauer has always been my all-time favorite player, but my youth teams for many years were visual carbon copies of the Dutch, with orange jerseys and white shorts and socks.
Is this year for Holland? I’ll jump on their bandwagon. Hup, Holland, Hup!!
If you’re a Yalie or if you’ve otherwise been keeping score at home, you’ll recognize that this is the fourth consecutive Yale provost to leave the relative comforts of New Haven. Judith Rodin moved on to the presidency of the University of Pennsylvania. Alison Richard became VC of the University of Cambridge. Susan Hockfield took the helm at MIT. And now Andrew Hamilton (who, I must note, is a former member of the Pittsburgh chemistry faculty and who remains a Steelers fan!) is departing for Oxford. While I’m at it, I’ll toss in the fact that former Yale College Dean Richard Brodhead is now the president at Duke.
This parade of successes can’t be an accident. There is something going on at Yale that invites analysis with respect to academic and not-for-profit administration generally. I’ll invite commenters to share what they think the lessons are. (For example, it might be thought that these are simply elite institutions trading on the prestige and credentials of each other and their respective faculties.) But here is a preliminary thought: Among its peer institutions, Yale claims to put an uncommon emphasis on classroom teaching by all of its tenured and tenure-stream faculty (Yale calls them “ladder” faculty, though the university may be trying to move away from that term). Yale has no monopoly on good university teaching, but in recent years especially it appears to have prized good teaching in its administrators. I’ve never met or sat in a classroom with Susan Hockfield. I did sit in classrooms with Judy Rodin (psychology) and Alison Richard (anthropology), and they were both extraordinary teachers. I’ve listened to enough presentations by Andy Hamilton, and I’ve spent enough time talking with him one-to-one, that I can conclude safely that he, too, is a gifted teacher. And almost every Yale College graduate of the last 35 years can attest to Dick Broadhead’s stature in the classroom. I can’t suppose that there is any necessary connection between good teaching and academic leadership or administrative skill. But those two qualities do coincide from time to time, and Yale seems to have mined quite a rich vein in its selection of provosts. In other words, Yale is not only grooming successful academic leaders but it is doing so by paying attention to an overlap between teaching and administration. Are UPenn, Cambridge, Oxford, MIT, and Duke picking up on not (only) the shadow of Rick Levin, administrator and mentor, but also the teaching ethos that characterizes these individuals?
And should other, less elite institutions do the same?
The New York Times reports that Amazon’s Kindle may be the sign of a tipping point for e-books. My previous posts about Kindle have expressed some praise but a fair amount of skepticism too. The device allows for too much control. Zittrain explores this issue as one of perfect enforcement. As my other post noted, the ability to manipulate text at any time poses wild possibilities about what text is and who should control or manipulate it. The Times’ piece points to a perhaps simpler problem: what will happen to the book industry?
The aim of the museum is to serve as a resource for teachers, students, and scholars of IP law, and to preserve an important facet of legal history.
The museum’s collection currently includes some 100 physical artifacts that embody the patents, copyrights, and trademarks fought over in scores of lawsuits. Among the items: a Qualitex green-gold press pad cover, a Stiffel pole lamp, a Festo magnetic rodless cylinder, a Motorola SportsTrax pager, a theatre program for Abie’s Irish Rose, Gary Saderup’s print of the Three Stooges. In addition to the physical objects, there will also be audio specimens and digital images from still more cases.
Today, I am putting the museum online. I’ll roll out one exhibit at a time, debuting each as a post on this blog. The premiere exhibit page shows a dual-spring road sign from TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001). The sign was a generous gift from TrafFix – for which I am very grateful.
I’ve posted enough about George Packer (example here) to make it clear that I’m a fan of him and his work. Over the weekend the San Francisco Chronicle published a long and thoughtful feature on the Packer family - George and his older sister Ann (a bestselling writer in her own right), mother Nancy (writer, former Stanford faculty and longtime Director of the university’s Creative Writing Program), and late father Herb, a beloved and inspiring law professor at Stanford in the late 1950s and 1960s: “Thicker Than Water: From two generations of the Packer family, four very different writers emerged.” An excerpt:
In opera, there is often a moment when the action stops and the singers move downstage. Each unspools a private melody, as if in confidence, and when these confessions intertwine, the audience begins to hear all the shadings of the larger story. This is, in some way, the effect of reading the works of the Packer family.
A quotation from George:
“So many writers grew up in tortured isolation, in revolt against their families. I and my sister were in a house where writing was considered the worthiest thing you could try to do.”
And on Nancy:
One of her students was Michael Cunningham, author of “The Hours,” who has called her course in short-story writing the turning point of his life.
Cunningham wrote a profile of her for Stanford magazine in 1995, and cited the continuing influence of what he calls “Packerisms.” His favorite: “Being brilliant is not enough. You’ve got to have something else. You’ve got to have a moral center out of which the art radiates.”
Of her influence on her own kids, she deflects pride with humor. “They must have thought it looked easy,” she says. On the glass-topped coffee table is a copy of her son’s new play- she was in the audience when it opened off-Broadway in March - and her daughter’s latest novel.
She holds up that book, evidence of what good writing can do: “There’s life on the page. You read it, and it’s not your experience, but it expands your experience,” she says.
“You know, they used to be my children. Now I’m their mother.”
A little over a week ago, Judge Richard Jones of the Western District of Washington (Seattle) denied motions by software developer Autodesk for dismissal or summary judgment in its favor in a lawsuit brought by Timothy Vernor, who sells and re-sells things on eBay — including packages of AutoCAD, Autodesk’s flagship product.
Autodesk repeatedly sent DMCA takedown notices to eBay to stop Vernor’s sales. Vernor filed a declaratory judgment action seeking to confirm the lawfulness of his sales. Autodesk asked the judge to toss Vernor’s claims, on the ground that any authentic AutoCAD packages in Vernor’s possession were merely licensed by Autodesk, not sold. Vernor, therefore, could not rely on the first sale doctrine in the Copyright Act, under Section 109. Section 109 exempts “owners” of lawful copies from liability for infringing the distribution right when those “owners” distribute (e.g., re-sell) those copies. Judge Jones, parsing Ninth Circuit authority that is less than clear, disagreed with Autodesk. The original acquiror of the AutoCAD packages was not a “licensee,” rather than an owner. The original transactions were sales, with contractual restrictions. Vernor, in short, is in the clear. The full opinion is here.
The short version of these cases is: What do you own — if anything — when you pay for a digital something? When you pay for a digital something encoded on a physical something? What if those somethings are encoded with labels that say, in effect, “Even though you paid for this, you don’t own it”? If those labels are legally significant, then Section 109 and the first sale doctrine kick in only in those situations where the “seller” (or “licensor”) does not use one. Take a look at this collection of labels, and consider whether they are or should be sufficient to limit the application of Section 109. Is it a license merely because a record company (or software company) claims that it is? Can record companies use copyright law and licensing labels to limit consumer sales of things that they own?
Most of the time, consumers don’t “assent” to these notices in a way that creates a contract. Judge Jones suggests that even if there is a contract, the seller’s remedy is a suit for breach of contract — and damages — rather than a suit for copyright infringement, an injunction, and the ability to rely on DMCA takedown notices. Over at Bill Patry’s blog, where he posted a reaction to Vernorthat I think is basically right, Vernor commenters defend licensing on two standard, related grounds: “digital is different,” and “the software industry needs to license to support business models based on price discrimination.” I agree only in part with the first, and many folks wonder what becomes of copyright law as a whole if the business model justification is all there is.
We may find out whether that justification has limits. Vernor is far from the last word on the meaning and implications of the first sale doctrine in the 21st century.
Regular madisonian readers (and a few others) know that I’m fascinated by legal “things.” I’m hardly alone. Sherry Turkle at MIT is the editor of a forthcoming book called “Falling for Science: Objects in Mind” (order it here), and in an excerpt from her contribution published online in today’s Chronicle of Higher Education Review she writes:[Read more →]
Nicholas Carr is one of the leading commentators on internet culture, and his article “
