The human brain, with its billions of neurons and trillions of neural pathways, is thought to be able to process terabytes worth of information. Impressive as that might be, our brains cannot intuitively distinguish between health and wellness advertising containing scientifically proven efficacy claims and advertising that isn’t actually backed by sound medical research. The Federal Trade Commission (FTC), aware of this limitation, requires that all health claims be supported by competent and reliable scientific evidence.
Unfortunately, that’s where the popular brain training company Lumosity seems to have, if you’ll pardon the expression, had a brain fart.
It’s that most wonderful time of the year again, when kids are jingle belling and everyone’s telling you to be of good cheer. And sure, they’ll be parties for hosting and much mistletoeing, but they’ll be some grousing too—and not just over having to allow eccentric relatives access to your home and hearth. This kind of complaining has to do with the perception, right or wrong, that the true meaning of Christmas is getting buried beneath all the glitz, glamor and excess of the modern holiday season. For more on this topic, look no further than the latest scandalto rock the White House.
Arguments over the traditional theological and modern secular versions of Christmas have raged for a long time. But no matter how you view this hap-happiest time of the year, there really isn’t much debate that, for better or worse, the imagery that’s come to define the contemporary Christmas experience is derived as much from the formidable capitalist forces of mid-20th century America as it is from anything existing at the time of the birth of Christ.
Three of the most famous characters associated with Christmas, after all, have their roots in modern American consumer culture. Two of the three were actually conceived by Madison Avenue pitchmen. And when characters get created to shill products, even ones that have become beloved Christmas icons, it raises all sorts of trademark, copyright and other intellectual property issues. So before you fill up the stockings and deck the halls this year, let’s take a moment to consider who actually owns the properties we traditionally associate with Christmas.
Cord-cutting is a term thrown around so loosely these days that it’s become a well-worn noun, used in jest to describe the growing, technologically astute consumer class credited with bringing about the reversal in cable TV’s dominance. “Cord-cutters,” in addition to claiming responsibility for flagging cable TV subscription growth, and for being the source of sleepless nights for many a cable exec, are increasingly coming to represent a lifestyle choice—one championed by a generation of bold, resourceful young consumers who’ve never known a world without the Internet.
That choice: to refuse to pay for content they don’t want and never asked for.
There’s a common belief among the public that copying other people’s songs, videos, pictures or stories—online or off—without their permission, results in one of only two possible outcomes: illegal copyright infringement orfair use.
It’s understandable.
The copyright alarmists, most of them rights owners, would have you believe that most copying falls under the illegal heading, and that infringement is a rampant problem that must be dealt with swiftly and harshly. The fair use crowd, meanwhile, which hails primarily from theacademic, scholarlyandnon-profitcommunities, advocates for a broad interpretation of fair use principles.
Both sides lay equal claim to the causes of progress and innovation in support of their policy arguments. And they spend such considerable time and resources making these arguments, that those of us less familiar with copyright law could be forgiven for thinking it’s an either/or question: using copyrighted material is either fair use, or its illegal.
Case in point: the recentLenz v. Universal Musicdecision, a seven year court battle (yes, seven years) over whether Universal Music impermissibly ordered the removal of an Internet video posted by a mother showing her baby bouncing to the beat of “Let’s Go Crazy,” a song by the artist currently known asPrince. The basis for the suit was a claim that Universal did not meet its good faith requirement to consider fair use before demanding the video be taken down—an argument the 9th Circuit Court of Appeals agreed with. (In other words, a win for thefair use crowd.)
Here’s the video that caused the whole sordid affair:
Lost in all this fair use debate, however, is the fact that, while it’s a powerful tool for countering improper claims of copyright infringement, fair use isn’t the only defense against overzealous rights holders who may be tempted to cross the line into suppressing constitutionally protected expression. In reality, it’s only one of many.
Under U.S. copyright law, the defenses available to would-be infringement are like an onion. Fair use sits at the core of that onion, as the last line of defense. But before it’s even considered, the outer layers must be pierced first.
So here, in broad terms, is a layer-by-layer guide to the copyright infringement defenses.
In a few weeks, the Federal Reserve’s Open Market Committee (FOMC) will meet to decide whether to raise short term interest rates for the first time since 2006; a decision that could have wide-ranging implications, not only for the stock market and the broader economy of this country, but for a world economy that, many believe, is showing signs of turning over.
The fact that the Federal Reserve is contemplating such a move comes as a surprise to exactly no one. For the better part of a year, even causal market observers have been anticipating a rate hike; with everyone from retired pensioners to veteran money managers hanging on the Fed’s every word. This heightened state of awareness owes to the fact that the Fed’s zero interest rate policy (ZIRP), has been widely credited with helping pull the U.S. economy back from the brink of collapse, and with bringing about the sustained stock market advances we’ve witnessed since the spring of 2009. The fear is that a rising interest rate environment will slam the brakes on, and even reverse, that progress.
There’s even a name for this interest rate mania: FedWatch. And if you care to, you can see what the experts arecalculating the oddsof a rate hike to be in real time. Or you can visit theFed statement tracker to try and divine the Reserve Board’s thoughts from its last eighty or so official statements—each one conveniently marked up to show how it differed from the last. Whatever you call the current obsession with basis points, it has put the Federal Reserve Board of Governors under an intense public spotlight; one that only glows brighter and hotter the longer it keeps the federal funds rate at zero.
All this incessant debate, speculation and grousing over the words of five enigmatic economists deliberating inside a secretive Washington enclave, represents a degree of scrutiny unparalleled for a body of unelected appointees.
Aereo, the company responsible for putting thefear of God in the big four television networks, and for giving every IP attorney from New York to L.A. reason to re-read the Copyright Act’s Transmit Clause, is back in the news.
In case you missed last year’sSupreme Court decision, Aereo’s over-the-air streaming television service was ruled to be in violation of the Copyright Act, essentially starting the countdown on the company’s remaining time as a going concern. However, at the time of that verdict, the technology behind Aereo appeared to have legitimate value, and many predicted that an opportunistic buyer would eventually capitalize on that value. Now, it seems, that time has come.
Returning to our long-running question of what constitutes commercial speech in the modern era (i.e. the era of advertising masquerading as “content”), we turn our attention to recent happenings over at the Federal Trade Commission (FTC), that august institution tasked with protecting we the people from all things false, deceptive and misleading in advertising. The FTC recently became the latest organization to publicly grapple with the question of where the line between First Amendment protected non-commercial speech, and regulation-vulnerable commercial speech exists. For a look back at how the Supreme Court hasdealt with the subject, and more recent Seventh CircuitandNinth Circuitinterpretations, follow the links.
It doesn’t seem like that long ago that trademarking was only something you did if you were a business trying to prevent customers from confusing you with your competition; when trademarks were something to differentiate your products from would-be imitators. But that hasn’t been the case for a while. Nowadays, anyone who utters a simple word or phrase, or becomes associated with a reference that gets a modicum of play on the Internet seems hell-bent on securing rights to restrict others from using it. The world, it would seem, has gone trademark crazy. When exactly did this happen? At what point did society become so obsessed with a body of law whose oft-forgotten roots lie in protecting consumers from deception?
Who knows. But thanks to a flurry of high-profile celebrity trademark applications this year, 2015 might just go down as the year that trademarks officially went mainstream. So what happens when pop-culture and trademarks collide? Some pretty amusing Patent and Trademark Office (PTO) applications—that’s what. Here’s a small sampling of some noteworthy trademark activity over the last six months. Some of which, you just can’t make up.
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