I would be fine with the Boing piece if it had read "they aren't <b>just</b> words (or symbols or designs) owned by companies." This would have allowed them to make the broader argument about the social good of branding without, as you say, making a muddle of things.

Major League Baseball apparently agreed some time ago to someone registering the trade-mark for the Washington Nationals and now they are in exactly the same bind due to the Expos now being in their second season under that name. I see the guy who registered Web 2.0 in no different spot. He saw the market coming before anyone else did and made the proper move. So he gets a cut of conferences (the trade) using that slogan (the mark) - pay up. For heavens sake, it is not like someone registered the term Jesus Christ in 100 BC asking Rome for a cut. "Web 2.0" is just a branding by a bunch of gurus and they are ticked off that someone else beat them to the punch.

I agree completely. I also thought it was nonsense for a group of lawyers to take advantage of Research In Motion's failure to patent some of their product and thereby claim copyright to technology they had no hand in developing (if I have a) understood what that lawsuit was about, and b) with a caveat about muddling patents, copyrighted materials, trademarks and brands).

I really know nothing about the RIM case.

Wikipedia knows something, however. There is that problem with registration based intellectual property like patents and trademarks which is the rush to register first but that is supposed to be tempered by the searches of registries that form part of the approval process. But the nonsense would not be due to the lawyers but the business clients of the lawyers who would instruct them to go after their competition in this way. Note that RIM sued as well as was sued if wikipedia is to be trusted.

I actuall had a trademark and copyright prof expalin at the beginning of the year that the area was perhaps even more boring than wills and trusts...and the way he taught it it was.

The problem with most appraoches to IP in general is that the good being protected is somewhat intangible and the social benefit to extending such protection is difficult to grasp. After all, Dickens wrote in the sure knowledge that his work would be pirated weeks after British publication. (And, interestingly, made his money in North America by "touring" rather as bands are now.) The idea that creators will stop creating if copyright is radically revised for the digital age is a bit of a stretch.

Sadly, to really get trademarks you have to understand "passing off" and that concept in the hands of 19th century lawyers became virtually unintelligble in anything other than a purely legal context.

I think you are quite right in calling Boing Boing on faulty legal analysis and, yes, it does make reform more difficult when people begin to confuse the situation that is with the situation which they would like to see.

However, the problem with IP in general is that it is grounded in a world of things where copying something - book, mark, invention - was tough. There was a physical barrier to playing the system. People's presses were seized. Now that hurdle is about an inch and a half tall. (My five year old wonders at the fact that I will go and buy a used copy of a piece of software I need rather than just grabbing a pirated copy off the net: "What's the difference Daddy?" And he does have a point.)

Add to this the fact major economic players have no interest at all in IP reform, except in the sense of extending copyrights to perpetuity and making it illegal for me to modify hardware which I have bought and think I might own, and the prospects for serious change are roughly zero.

What is not changed formally and which is unenforceable practically is going to become dead law rather quickly. Or, probably, dead law at the consumer level. Corporations and governments will still have enough to lose that they will be leary of IP breaches and vunerable to first claiments; but consumers are going to increasingly disregard the threats and the contracts of adhesion festooning their garage door openers and inkjet cartridges. They will hack and mod and crack and just plain steal IP because there is no serious physical impediment to doing so.

This is not so much reform as collapse. However, my prof had it about right: politically IP is snore inducing. AS much as anything most politicians would like nothing better than to serve their term of office without a single amendment to the Copyright Act or Trademark Act darkening their in box.

Say someone was sampling dialogue from crap horror movies and sticking them in pop songs... Skinny Puppy used to do this with nobody batting an eye but I am not clear on where the law - and precedent - has gone since the late '80s. K-Fed was recently criticized by Thomas Dolby for an uncredited/no permission sample of a sample of a Dolby pop song. I think Dolby's complaint was more about K-Fed's vulgarity than the fact of someone using a sample of his work...

Ah,yes. The dead law defence. Plaintiffs with interests quake at the sight of it in documents filed with the courts. Judges lay down before it quivering.<p>My understanding is quite the opposite, that there is respect for it in the sampling community, that little packets of cash go floating back and forth and that Rick James is very much a fan of "You Can't Touch This" if only for the revenue stream. And does anyone actually think anything that is supposedly mashed up is any good? Name one thing.

Potatoes.

CM's got you on potatoes. Also, sweet potatoes especially with, say, cinnamon and a little maple syrup or brown sugar.

But seriously, can I rip-off horror movies or what?

Potatoes. That is what it comes to, I suppose. I wonder what the copyright in film is?<blockquote class="smalltext">11.1 Except for cinematographic works in which the arrangement or acting form or the combination of incidents represented give the work a dramatic character, copyright in a cinematographic work or a compilation of cinematographic works shall subsist<blockquote>

(a) for the remainder of the calendar year of the first publication of the cinematographic work or of the compilation, and for a period of fifty years following the end of that calendar year; or<p>

(b) if the cinematographic work or compilation is not published before the expiration of fifty years following the end of the calendar year of its making, for the remainder of that calendar year and for a period of fifty years following the end of that calendar year.</blockquote></blockquote>So under 11.1(a) of the <i>Copyright Act</i> pre-1956 horror and sci-fi movies are fair game it would seem to me.

Neat! I expect for the more recent stuff management types know which forms to fill in.

And <i>sweet</i> potatoes.

Whereas this is an entirely reasonable thing to do: prove the law applies as you want it to apply.

I always look forward to such excitements as prosecutions for blasphemey.

I was considering starting <i>A Good Blasphemy Blog</i> the other day myself...

No, that really is how trademark works in Canada. Reading the statute is insufficient (as is skimming a Wikipedia article). Jurisprudence, like today's Canadian Supreme Court verdict on trademark is critical to understanding the role of trademark in law. It's also useful to educate yourself on the history of trademark as it has been applied first as common-law consumer-protection verdicts, then with the early stautory trademark laws that cropped up globally in the seventies.

I think we have to have a link to the ruling rather than a Boingy fellow traveller's take on the ruling, Cory, but thank you for providing that notice - let's have a look. Here is the text of the ruling - hey, note the newly nicely designed SCC webpages.<p>It is quite correct to say that before an interest will arise in trade-mark there will be an inquiry into the nature of the trade and whether there is need for the avoidance of market place confusion within that trade. The lawyers favorite cheat the headnote refers to this when it states:<blockquote class="smalltext">...the difference between the appellant’s luxury champagne and the respondents’ mid‑priced women’s wear is significant. While some trade‑marks transcend the wares, services and businesses with which they were originally associated, no witness in this case suggested that the VEUVE CLICQUOT mark would be associated by ordinary consumers with mid‑priced women’s clothing.</blockquote>Because of this, trade-mark is confirmed again to be inappliable beyond "the trade" in question. So has it ever been under trade-mark law and nothing new comes out of this ruling in that respect. <p>But so too is not diminished the property interest that the respective trademark holders possess as a result of the ruling. The wine maker can still sell the trademark for value as can the women's wear shop. Trade-mark always provides this to their owners as well. That is how Canadian trade-mark law works - like any registered interest with value in the marketplace. Seeing as trademarks have been around and part of the law since the Bass beer registration in the 1870s, I really have no idea about your hanging comment as to eduction but I'll let you finish your thought.

But just so we are <i>really</i> clear - I am with Cory McBoing on Captain Copyright. Good Lord! Who the hell authorized a Federal education program based on intellectual property right disputes?

Yet, the wizards at the Boing Legal Division strikes again. Type "asshat" again, kids - it really is funnier every time.