PGA Joins NHL In Yanking Reporter Credentials Over Use Of Periscope On Golfers Practicing

Well well, this whole anti-Periscope app stuff is certainly becoming a thing. At first it was Hollywood that declared war on the livestreaming app and I said nothing, because I'm pretty sure Hollywood once argued that kittens were piracy-beasts because they might possibly accidentally type "torrent" onto their owners' keyboards whilst trying to get some attention. Then the NHL banned the media's use of Periscope during warmups, but I said nothing because the NHL never misses an opportunity to miss an opportunity when it comes to generating interest in the league. Then the boxing world went after Periscope streams of the Mayweather v. Pacquiao fight, but I said nothing because I honestly wasn't aware that boxing was still a thing nowadays. And now that the PGA has come after my potential Periscoping-golf-enjoyment by threatening to yank journalist credentials, who is left to stand up for me?

Golf reporter Stephanie Wei lost her PGA Tour credentials after she used mobile live-streaming app Periscope to show golfers teeing off in practice at TPC Harding Park last Monday. The tour revoked her access “for the remainder of the season” on Wednesday.

Wei wrote about the incident on her site. She admitted that she had received a warning for Instagramming a video of Tiger Woods’s round at the Phoenix Open earlier this year, but considered this to be a different circumstance since she was filming a practice round that wouldn’t have been televised anyway.

As was the case with the NHL ban of the app, the fact that the streams consisted of footage that was never going to be broadcast apparently didn't matter a lick to the PGA. They simply saw someone using the app and decided to go all Hulk Smash on it. Wei noted that she specifically streamed footage she knew wouldn't make the air because she fully acknowledges that the PGA has broadcasting partners generating a great deal of revenue for golf and that the league would be within its rights to protect all that income. But she then argues that streaming practice sessions that wouldn't make television could only help golf in generating more interest.

The PGA responded with a double-bogey's worth of dumb.

PGA Tour chief marketing officer Ty Votaw didn’t see a difference, telling Golf.com that when Wei posts “unauthorized videos, she’s stealing.”

Putting aside the misuse of the term...stealing what, exactly? There's no consequence here, other than the lost potential to promote the sport and the PGA through streaming that doesn't touch the broadcast footage. What did the PGA have that Wei "stole" from them? To yank the credentials of a reporter over this not only removes potential interest, but it also builds animosity with the press. I would have thought that someone involved in marketing the PGA would know better than this.

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Study: Mismarketing Of Patented Drugs Has Cost Society At Least $380 Billion

Here on Techdirt we've written many times about the problematic nature of drug patents. They are harmful both directly, in terms of the price distortions they cause and seek to spread to new markets, and indirectly, through the lobbying that the pharma industry deploys to strengthen and extend them, notably in trade agreements such as TPP and TAFTA/TTIP.

The standard justification for these patents is that they are needed to provide incentives for costly research and development of new drugs, something that Techdirt has been questioning for many years. A fascinating new paper entitled "Patent Monopolies and the Costs of Mismarketing Drugs" (pdf), by Ravi Katari and Dean Baker at the Center for Economic and Policy Research, explores yet another problem with pharma patents:

in the case of prescription drugs, there are also major costs associated with the enormous asymmetry between the knowledge available to drug companies and the knowledge available to patients and their doctors. As a result of this asymmetry of knowledge, drug companies will often be in a situation to earn large patent rents by concealing information that show their drugs are less effective than they claimed or possibly even harmful.

One way in which drug companies take advantage of this asymmetry is with "off-label" promotion of their drugs. An off-label use of a drug is one which has not been approved by the FDA. While doctors are free to prescribe drugs for off-label uses, drug companies are prohibited from promoting their drugs for off-label uses. If they want to get a drug approved for additional uses then they have to clear a path by seeking FDA approval. However, they routinely avoid this independent assessment by finding ways to promote their drugs for unapproved uses. Promotion of drugs for off-label uses is harmful to the public because it diminishes drug safety regulation, discourages companies from conducting or revealing internal safety studies, and incentivizes them to seek FDA approval for narrow "label use" that is easier to push through the approval process.

The bulk of the paper is concerned with quantifying those costs by looking at five high-profile cases of mismarketing. Here's the final result:

The cumulative costs associated with the increased morbidity and mortality associated with these drugs was $382.4 billion over the 14-year period from 1994–2008. This comes to just over $27 billion a year, an amount that is comparable to what the pharmaceutical industry claims to have been spending on research at the time.

As the paper's authors emphasize, this is only a rough figure, and is likely to underestimate the total negative consequences of this kind of rent-seeking behavior, since it is based on only a small subset of drugs, and uses conservative estimates for key quantities. More important than the specific figure are the policy implications. For example, the deliberate mismarketing is only possible because data is kept secret:

If, for example, this research was all in the public domain and carried through by researchers who had no direct financial interest in the sales of a drug, it is unlikely that they would go to elaborate lengths to misrepresent or conceal research findings, or that they would be successful if they tried. In other words, the costs documented here are the result of the incentives provided by patent monopolies in the same way that the research itself is motivated by patent monopolies.

At the very least, that's an argument for requiring that all research data and clinical trial information should be made freely available for others to analyze. The paper also points out that there are implications for TPP and TAFTA/TTIP:

One of the major goals of the United States in these and other trade pacts currently being negotiated is to strengthen patent and related protections for prescription drugs. The justification is that increased patent rents will provide a greater incentive to the pharmaceutical industry, leading to more innovation.

But as the present study shows, strengthening those protections is likely to encourage more rent-seeking behavior, increased mismarketing, and thus unnecessary deaths and greater costs to society -- hardly something to promote through trade agreements. Finally, the new research adds further weight to the argument that we need to find better ways of funding research into new drugs:

The fact that incentives from patent rents lead firms to promote drugs in ways that impose large costs on patients and society should raise additional questions about the desirability of patent protection as a mechanism for financing research. Other mechanisms for financing research have been proposed, such as a prize system or direct public funding. Of course the U.S. government already spends $30.9 billion annually funding biomedical research through grants administered by the National Institutes of Health, so direct public funding is already an integral part of the drug development process. The proposal is to expand this funding and have NIH’s mission extend to the development and testing of drugs. By having all research in the public domain and taking away the patent rents associated with marketed drugs, direct funding would both remove the incentive and hugely lessen the ability to misrepresent research in order to promote drugs for uses that may not be appropriate.

When so many lives and so much money are at stake, it's surely time to look at this idea more closely.

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Appeals Court Says Warrantless Phone Tracking Doesn't Violate 4th Amendment Because 'Third Party Doctrine'

For about a year now, we've been following the Quartavious Davis en banc appeal case, in which Davis's lawyers were challenging the use of historical cell phone location data (not real time GPS info) that was collected without a warrant in order to convict him (technically, they used a 2703(d) order, which is a much lower standard than a warrant, which requires probable cause, rather than "specific and articulable facts that there are reasonable grounds" to believe that the info is "relevant and material to an ongoing criminal investigation"). Given the renewed interest of the Supreme Court (and other courts) in issues related to the 4th Amendment when it meets up with modern technology, this case got a lot of attention in the last few months. The 11th Circuit has now ruled and it isn't going to make 4th Amendment supporters happy. The court ruled that warrantless tracking of your mobile phone location is not an "illegal search" under the 4th Amendment... because of the old (and ridiculous) third party doctrine.

In case you've been living under a rock and not following such things, the third party doctrine basically says you have no expectation of privacy in data that third parties hold on you -- such as... phone records. This doctrine has a lot of problems (going all the way back to the Smith v. Maryland case that is generally cited in support of the doctrine). But, here, the court just runs with it. It spends a few pages restating the ruling in Smith v. Maryland, clearly agreeing with it, and then it drops the hammer:

For starters, like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. Like the security camera surveillance images introduced into evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold....

More importantly, like the bank customer in Miller and the phone customer in Smith, Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.

It dives in a bit deeper on the "expectation of privacy" question and says that no one should have any expectation of privacy in their cell location data, basically saying that you should know that you're giving up such info to a third party who can give it to law enforcement:

We find no reason to conclude that cell phone users lack facts about the functions of cell towers or about telephone providers’ recording cell tower usage.

Thus, no "expectation" of privacy.

It also argues this is no different than the ruling in Smith v. Maryland, because, back then, just having the phone numbers (what that case was about) was the equivalent of also showing location, since in that pre-mobile phone era, a phone number also automatically revealed location since it was tied to an address. As for the public policy reasons why this result is pretty scary concerning the public's privacy, the court says, "Hey, take it up with Congress."

The court also distinguishes this case from the Supreme Court's ruling in US v. Jones from a few years ago, that said that attaching a GPS device to a car could violate the 4th Amendment due to it being a "trespass" (though on the side, some Justices raised concerns about the ongoing collection of location data). Basically the court here said it doesn't matter here, as there's no similar "trespass" situation with the MetroPCS data.

Two of the judges on the panel dissented, and pointed out just how crazy the third party doctrine is in this situation, and how it basically destroys the 4th Amendment:

We are asked to decide whether the government’s actions violated Mr. Davis’s Fourth Amendment rights. The majority says our analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.

In short, those two judges rightly recognize just how problematic the third party doctrine is. In an age where all our info goes to third parties, the 4th Amendment basically goes away. Later, that same dissent notes:

The majority’s blunt application of the third party doctrine threatens to allow the government access to a staggering amount of information that surely must be protected under the Fourth Amendment. Consider the information that Google gets from users of its e-mail and online search functions. According to its website, Google collects information about you (name, e-mail address, telephone number, and credit card data); the things you do online (what videos you watch, what websites you access, and how you view and interact with advertisements); the devices you use (which particular phone or computer you are searching on); and your actual location.... Like in Miller and Smith, Google even offers a legitimate business purpose for such data storage and mining: “Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection.” Id. Under a plain reading of the majority’s rule, by allowing a third-party company access to our e-mail accounts, the websites we visit, and our search-engine history—all for legitimate business purposes—we give up any privacy interest in that information.

And why stop there? Nearly every website collects information about what we do when we visit. So now, under the majority’s rule, the Fourth Amendment allows the government to know from YouTube.com what we watch, or Facebook.com what we post or whom we “friend,” or Amazon.com what we buy, or Wikipedia.com what we research, or Match.com whom we date—all without a warrant. In fact, the government could ask “cloud”-based file-sharing services like Dropbox or Apple’s iCloud for all the files we relinquish to their servers. I am convinced that most internet users would be shocked by this. But as far as I can tell, every argument the government makes in its brief regarding cell site location data applies equally well to e-mail accounts, search-engine histories, shopping-site purchases, cloud-storage files, and the like.

Either way, it's pretty clear this issue is heading to the Supreme Court sooner or later (even possibly with this very case). But, for today, this ruling is a pretty big hit against your privacy.

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Our New IP Czar Gives His First Speech... And It Is Not Encouraging At All

Last summer, when President Obama finally got around to nominating a new IP Czar (technically the "Intellectual Property Enforcement Coordinator" or IPEC), Danny Marti, we were at least moderately hopeful that he didn't come out of the usual copyright maximalist/Hollywood/legacy industry camp. Instead, much of his work had been on the trademark front, and thus we'd hoped that maybe his focus would be more limited to issues around counterfeiting (which are also overblown in terms of actual concern -- but which have less of a free speech concern). After months of Congressional stalling, Marti was finally officially given the job a few weeks ago. And one of the first things he did was go give a speech at a "Creativity Conference" put on by the MPAA and Microsoft (yes, really), in which he appeared to repeat a bunch of horribly misleading, to downright wrong, talking points. In short, as a first impression, Marti is a disaster. Take a look: After kicking off with a weak joke about his job title, he starts right in with the misleading talking points.

Summarizing my job, in the spirit of this conference, I think it's fair to say that the IPEC Office is the Executive branch's "creative conscience."

First of all... what? The role is enforcement, which has nothing whatsoever to do with actual creativity. In the past, with Marti's predecessor, Victoria Espinel, we often wondered why there was an "enforcement coordinator" at all, since the job title itself was so one-sided. If anything, if we were to go by the Constitutional rationale for copyright and patents, the role should be one in which it looks to see how best to "promote the progress of science and the useful arts." And enforcement is often not the best way to do that. In fact, as we've spent years demonstrating, enforcement can often harm the progress of the science and the useful arts. So it's interesting to see Marti suggest that his role is about being a "creative conscience." For a second, I thought that maybe this meant he'd actually consider what was best for creativity -- meaning all creators, not just the few who were lucky enough to be selected by the large legacy gatekeepers. But, no, as you'll quickly learn, by "creative conscience" he actually means "protector of a few legacy gatekeepers who often screw over actual creators."

Part of my job is to make sure that the administration keeps the impact on creativity top of mind when it adopts policies, makes decisions, and takes action.

Again, that's good if we're talking about actual creativity and all creators. But... he's not.

I'm also responsible for helping marshal the federal government's resources to help combat violations of intellectual property. Put simply, my office is dedicated to the protection of the American intellectual property system that helps drive our national economy.

And there we go, right off the tracks. He is focused on protecting the existing system -- even when it is shown to harm creativity, free expression and innovation. That's a problem. Maybe he didn't really mean that? Nope, he means it:

Let there be no mistake and no misunderstanding. Intellectual property is an integral part of the US economy. We're speaking of the spark of genius and the ideas behind transformative inventions, the artistry that goes into books, music and film. The trade secrets that preserve a company's market edge. Or the brands that distinguish our companies and their goods and services.

Already, he's making the cardinal sin of talking about intellectual property that we were just discussing: conflating the "property" piece with the underlying aspect of it. The spark of genius is not intellectual property. The ideas are not intellectual property. The artistry is not intellectual property. The brands are not intellectual property. The specific copyright, patents and trademarks may be property-like entities, but those are not the same thing as the underlying content, inventions or brands. As we noted in our piece about confusing those things, when you do that, your policy suggestions are going to be really, really bad. And you're going to make really silly statements like Marti does next:

Intellectual property helps create marketplaces that help drive economies, domestically and internationally. For example, the "core copyright industries" -- those whose primary purpose is to create, produce, distribute, or exhibit copyrighted materials -- added more than $1 trillion to gross domestic product and created and supported millions of jobs.

That's not true. We've gone through these numbers in the past, and shown how they're simply misleading and no one should be using them to make a serious point. They very broadly define the "core copyright industries" such that any industry that gets copyrights is determined to exist only because of copyright law. And that includes software firms that thrive on giving away services for free and that don't actually rely on their copyrights for anything. Besides, if you want to compare apples to apples, the IIPA who does the study that Marti is relying on, has shown that the "core copyright industry" isn't contributing nearly as much to the economy or economic growth as the internet economy is, and the internet economy is frequently held back by bad copyright laws.

Intellectual property-based industries are among the U.S.'s strongest exporters.

Well, sure, that's true if you argue that any company with a brand is an "intellectual property-based business," but that kind of thinking takes you down the path of arguing that grocery stores are an intellectual property miracle that only exist thanks to trademark law. And that's plainly ridiculous.

Overall, IP industries accounted for over 60% -- Six Zero -- of US exports.

Yes, but no one actually believes any of that is because of intellectual property laws, unless you conflate those laws with the underlying things, like brands.

The recorded music, motion picture, television and video, and software publishing businesses, for example, contributed to sales in foreign markets exceeding $156 billion dollars.

And how much of that is because of copyright law -- and how much of it is because it's content that people find valuable enough to purchase? Marti just ignores the distinction and lumps it all in because of copyright. Also, note, for someone who claims he's focused entirely on being the "creative conscience," his actual focus appears to be almost entirely on the commercial side of the creative ledger.

That is why it's so important to understand and protect IP, to foster legitimate trade, and to open foreign markets to US creative content.

That last one is a "I work for the President and need to give my shout out to the TPP and TTIP agreements" talking point. But, really, what did he say before that shows why it's "so important to understand and protect IP"? Frankly, I don't see anything. He talked a lot about big numbers, but nowhere did he show why strong intellectual property laws made those things possible. And nowhere did he consider that, maybe (just maybe) weaker IP laws may have actually enabled larger markets, or more creativity. That kind of thinking doesn't even enter the equation, which is kind of odd if you're positioning yourself as the "creative conscience."

Does he consider how strong copyright is being used to ban books, steal money from artists, shut down innovative services for creators and expose critics? Does he consider how strong patent laws are being used to stifle innovation and make the technology that creators use much more expensive? What kind of "creative conscience" is he?

Does he mention the importance of fair use in enabling creativity? Is he at all concerned about the lack of fair use in these trade agreements that supposedly will "open foreign markets" while stifling free expression?

Without understanding these things, for him to just automatically leap to the claim that we have to "protect" the existing system, it's difficult to take Marti seriously. He appears to be repeating talking points with no understanding at all of the underlying nuances.

The timing of today's event is fitting. Sunday is World Intellectual Property Day -- a global celebration of the role of intellectual property, of innovation, of creativity, in our daily lives.

Is it? Really? No, "World Intellectual Property Day" is a celebration of the legacy gatekeepers that take the copyrights of actual creative people, and push for expanding those laws with no thoughts towards the actual impact on creativity. And the creativity "in our daily lives" is frequently done without the use of intellectual property laws -- and, all too frequently, conflicts with those laws.

This year's theme is "Get Up, Stand Up. For Music" invoking Bob Marley and Peter Tosh's tune, to illustrate how song can serve as a call to action.... Bob Marley's song serves as an endearing, international anthem for human rights. Let us tap into this spirit, this call to action, to speak up for artistic communities, the world over.

Right. Like, remember that time that Bob Marley's family tried to reclaim the copyrights to two of his albums, including "Burnin'" where "Get Up, Stand Up" first was released? And remember how Universal Music fought that and won, so that Universal Music got to keep the copyright, as opposed to the Marley family? Thank goodness Universal still holds the copyright, or perhaps they would have had to pay Marley's family for the right to use that theme for this year's "World Intellectual Property Day," right?

Yes, ladies and gentlemen, Danny Marti is the US's "creative conscience"... for the giant multinational corporations against the actual creative folks out there. And, really, whose brilliant idea was it to use Jamaican music as a call for stronger IP laws -- when anyone even remotely familiar with the history of popular Jamaican music, knows that it involved rampant copying and remixing of others' songs, no concern about copyright at all (until foreign record labels jumped in and started divvying up the pie) and near endless creativity from that ability to remix and try new things. That's not exactly a ringing endorsement for stronger copyright laws.

And, again, if we're speaking up for "artistic communities, the world over," how about those who are being blocked from creating new works due to overbearing copyright laws? How about those who are being sued for having a song that has a similar feel to another song? Do they count?

Let us stand up for art. Let us stand up for the artist. Let us stand up to respect the artist's right to make a living off of his or her artistic labor.

Yes, unless you're Bob Marley's family. Then let us stand up for Universal Music's right to go to court to block the Marley family from that right! Or, unless you're a remix artist creating wonderful new songs by building on the works of the past.

Also, where in the constitution does it say that anyone has a "right to make a living off of his or her artistic labor?" I have many friends who "labor" quite hard in making music, but don't make livings from it. Should I send them to Marti to solve that? Will he "marshal the federal government" to make sure they make a living?

Because this is another nefarious myth. You have no "right" to make a living from your labor. People might just not value it enough to pay for it. Or you might not be offering it in a format that people will pay. What about my friends who were journalists over at GigaOm, which recently went out of business? They were creating many written words, and laboring very hard at it. But the company went out of business. But if we believe they have "a right to make a living" from their creative labor, shouldn't they be guaranteed a living? Everyone knows that's crazy. So why do we repeat the myth when it comes to music? Most musicians -- in fact, nearly every musician -- has never "made a living" off of their music. Only a very few have. And it's not because they had a "right" to make a living.

And let us stand up to forcefully reject those who believe that the theft of one's creative output is somehow acceptable. It is not.

Of course, we're back to the misleading use of "theft." Do we consider what UMG did to Bob Marley's estate "theft"? Someone should ask Marti. Does he consider Pharrell and Robin Thicke writing a song with a similar "feel" to a Marvin Gaye song as "theft"? Does he consider a woman posting a 30-second video of her child dancing to a Prince song "theft"? Does he consider artists like Kutiman as theft? Does he consider artists like Led Zeppelin and Bob Dylan -- many of whose greatest works where near note-for-note replicas of others' songs -- engaged in theft?

Because any honest discussion of creativity and intellectual property laws has to be able to take into account all of these situations, and the word "theft" doesn't really cut it -- which is also why that's not what the law says. You'd think that the guy whose role is to help enforce the law would understand that copying a song isn't "theft." It's worrisome that he does not.

When we speak of the role of creativity in our lives, we're also speaking about human expression, building communities. The sharing of stories -- whether through print, music or film -- brings people together, fosters discussion, builds bridges and helps create common identity.

Of course, if that "discussion" or "common identity" strays too far, such as in creating a derivative work, that may be seen as infringement (or in Marti's world "theft") and thus he will "marshal the forces of the federal government" to bring you down. All in an effort to protect the glorious markets of the creative conscience.

Our digital lives have only helped to accelerate these discussions, bringing people together and bringing their stories closer.

And, because of that, the US government has been actively shutting down websites where those discussions happen and pushing for laws to throw the operators of the websites in jail.

And in order to further that, we must strive to build not only an open internet, but a safe, secure and stable one.

In other words, not really an open internet. But one that is limited and controlled by multinational gatekeepers. Either way... I feel that we're rapidly approaching the administration's favorite buzzword. I know it's coming, I just know it... and...

One way the administration is seeking to do just that is by fostering multistakeholder processes in which all participants in the ecosystem -- government, the private sector, and civil society -- can play a role in encouraging positive internet behavior and marginalizing anti-social and, indeed, criminal behavior.

Multistakeholder! Bingo! What do I win? Oh, someone now arguing that rather than encouraging freedom of expression and an open internet, we should try to look for ways to stamp out "anti-social behavior" online. Hmm. Anti-social behavior? Wouldn't that bar songs like "Get Up, Stand Up" that could be seen as "anti-social" in encouraging the public to stand up for their own rights when they are being taken away from them by their government? Rights like freedom of expression?

Protecting and advancing a community starts with action by its members. We need to stand up for what is good and reject what is unfair.

I think freedom of expression is good. I think shutting down websites that were blogging about music is unfair. I think that supporting programs for site blocking, that take down free speech, is unfair. I think a system that prioritizes the ability of large multinationals to block innovation is "unfair." Yet, these all seem to be things that IPEC supports.

Stakeholder responsibility will create an environment conducive to creativity.

Let me translate this for you: "Search engines should start censoring sites that the MPAA dubs "unfair" because they challenge the MPAA's business model."

It will benefit those who make a living producing creative works.

Unless, like Dan Bull (who makes his living producing creative works), you relied on sites like Megaupload to distribute those works and the US government shut it down.

It will benefit those who enjoy those works.

Unless you no longer have access to them, thanks to US courts censoring them.

Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity. This bears repeating. Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity.

How? This is a serious question, but I'd like someone to answer it, because history doesn't come even remotely close to supporting that claim as can be seen by Marti's next ridiculous statement:

The desire to tell stories to even wider audiences in even more vivid ways, has a long chain of technological innovation, creating new industries along the way. From printing, to radio, to film and television, and now, of course, the internet economy.

And each and every single one of those was decried initially by the legacy forces -- the gatekeepers who controlled the previous industries. The printing press was in a time before copyright, but obviously shook the very foundations of society by helping to break it out from Church control. The radio resulted in a massive legal fight as the record labels tried to kill it in its early days. The film industry moved to Hollywood to avoid enforcement of the patents of Thomas Edison, and often relied on copyrighting the innovations of others in the industry. When television came along, the film industry also freaked out and tried to hamper it -- especially innovations like the VCR. And, of course, the internet. We've had lawsuits against search engines, video platforms, MP3 players, book indexes and more. If we "respected" IP in the terms of the legacy gatekeepers, we'd have none of those innovations.

Look, I get it: Marti's very job description basically says that he needs to take on the role of propping up the interests of the legacy gatekeepers. But, at the very least, his predecessor, Victoria Espinel, seemed willing to recognize that there was a lot more to what was going on than the one-sided version of history presented by those gatekeepers. Espinel was at least open to the idea that too much IP could create more problems than good things. Marti shows no sign of this recognition, and seems so thoroughly bought into a single world view of intellectual property that he didn't even realize just how ridiculous it was for anyone in the "intellectual property" world to cite Bob Marley as a good example of supporting creators.

So go on, Marti, "Get Up, Stand Up!" but recognize that what you're standing up for, is not for the "creative conscience" or for creators themselves, but those who seek to be gatekeepers on that creativity.

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1000-Year-Old Village Told To Stop Using Name Because Of Trademark Claim From Hotel Chain Founded There

Techdirt has covered its fair share of idiotic legal threats over trademarks, but the following example is spectacular even for a field that has many superb examples of corporate bullying. It concerns the village of Copthorne (population 5,000), in the English county of West Sussex. It's rather well established: it's been around for a thousand years, and is mentioned in the Domesday Book, which was compiled in 1086. Recently, though, its village association was threatened with legal action for using the name 'Copthorne' on its Web site, as the Plymouth Herald newspaper reports:

A residents' association in the village of Copthorne was threatened with legal action by a multinational hotel chain founded there -- for using the name Copthorne.

Brand protection officers acting on behalf of Copthorne Hotels, which has a large hotel in Plymouth, wrote to the small local group -- saying it was infringing its trademark.

As that notes, the hotel chain took its name from the village where it was founded. But there's no sign of gratitude for that in the threatening letter the residents' association received from Millennium & Copthorne International Limited (MCIL), which owns 33 hotels around the world:

It has come to our attention that you have registered, without MCIL's permission or authorization, the domain name [copthornevillage.org], which includes a protected trademark of MCIL. This unauthorized use of MCIL's intellectual property falsely suggests MCIL's association with or endorsement of your website and is likely to cause confusion in the minds of the public that the website is associated with or connected to MCIL and the products and services offered by Millennium Hotels & Resorts. As a result, substantial damage is likely to occur to the goodwill and reputation of these trademarks.

We require that you immediately disable all content hosted at copthornevillage.org and allow the domain name to expire. Please confirm by return that you have done so within five (5) working days of the date of this letter.

After the village group sent off a "strongly-worded letter" mentioning its millennial history, that threat was rescinded. Millennium and Copthorne communications advisor Peter Krijgsman is quoted by the Plymouth Herald as saying:

"I can now confirm the 'cease and desist' letter sent to the Copthorne Village Association was sent in error in the course of an exercise carried out by Mark Monitor, a brand monitoring/protection agency.

"Mark Monitor will be contacting the administrator of the Copthorne Village Association website to explain this and to apologise for any inconvenience."

The "sent in error in the course of an exercise" excuse sounds rather unlikely; this is surely yet another example of legal threats being fired off without even looking at the facts of the case, something that happens all-too-often in the world of trademarks. At least the company concerned admitted the error and apologized -- something that by contrast happens all-too-rarely.

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The Virgin Group Disputes Trademark Application Of Tiny Olive Oil Company Vasse Virgin Because Of Course They Did

The Virgin Group, headed up by Richard Branson, has something of a reputation for being promiscuous when it comes to trademark disputes over the word "Virgin." At times, it seems like whatever lawyers are working for Virgin actually think that any business using the word needs a bit of slapping around, even when there is essentially zero chance of customer confusion. In one case, in which Virgin had targeted a small jeans maker called I Am Not A Virgin out of NYC, the founder of that company quipped in a video whether or not Branson would think that people walking by "Extra Virgin Olive Oil" would be confused into thinking that Virgin Group had something to do with it.

Hahahahahaha... Oh, shit. It turns out Branson does think that's the case. Well, sort of.

[Virgin Group] believes customers might get confused and associate Vasse Virgin products with its renowned global brand. The local company has 23 staff and produces olive oil-based food, soap and skin-care products. Co-owner Edwina Scherini said Vasse Virgin recently tried to register a logo using the same name since 2009.

"The Virgin Group has objected to the application, claiming the right to exclusive use of the word 'virgin'," she said.

Yes, a tiny Autralian olive oil company is now in a trademark dispute with the Virgin Group and we all have to watch what we say from now on, lest we give Mr. Branson any ideas. Now Virgin Group claims on the record that the two companies do indeed compete with one another within relevant industries that would be covered by the trademark, but I can't for the life of me figure out where that's the case. Looking through some information on what Virgin makes, I don't find foodstuffs or olive oil making the list. Regardless, I find it fairly unlikely that anyone is going to confuse Vasse Virgin's oils with something created by the enormous Virgin Group, considering there are no common features in the logos or the marks themselves, beyond the use of the word Virgin. Couple that with Virgin's reputation for being overly protective, and this seems to reek of a legal department with too much time on its hands.

But Virgin says this has nothing to do with olive oil. It's about transportation services contained in the application.

Virgin Group Asia Pacific brand public relations and digital communications manager Elizabeth Gain said the trademark application "covers a very broad range of goods and services, some of which fall squarely into the core activities of the Virgin Group, in particular transportation services".

"Our concerns do not relate to use of the name in connection with olive oil products," she said.

If that were the case, the whole dispute could be easily dismissed with Vasse Virgin assuring everyone that they didn't have enough time in between making olive oil containers to create an international airline. That doesn't seem to be the case, though, as the demands from Virgin Group have been numerous.

Mrs Scherini said lawyers for the two companies have discussed the matter since 2013.

"Vasse Virgin agreed to a number of demands, apart from one that we felt may have the capacity to cause serious damage to our business in the future," she said. Mrs Scherini said the process had been "extremely stressful" emotionally and financially.

Branson and his team bullying a small, unrelated business through trademark? I am so shocked!

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