"Caveat Emptor" or Why It's [Kind of] Okay For Facebook and Instagram To Steal From You

"If you are not paying for it, you're not the customer; you're the product being sold."

- Meta-Filter user blue_beetle

I had planned on writing about Instagram's massive PR shit-storm this week so I could address the ramifications of its new terms of service; you know, where they basically said to their users "you still own your copyrighted work, but we're going to strip away all the rights surrounding that so we can make money off your work and you can't do anything to stop us." [If you don't know, Instagram proposed that they could sub-license photos you posted in the app to other entities such as advertisers without paying you, the copyright owner]. I ended up not writing about it because the backlash was so big and swift against the social network that they backpedaled, reverting to their old terms of service.  Thus ended the issue in my mind.

Then I had a change of heart because I realized that this was a good time to discuss a topic that I think everyone should be well versed on: caveat emptor, a.k.a. let the buyer beware.  Caveat Emptor has its roots in property law and the idea is pretty simple: you should do the research when you buy something.  If you fail to cross all the "t"s, dot all the "i"s, you don't have any legal recourses when you buy something that turns out to be defective. When you sign a contract, courts presume that both sides know what they're getting themselves into.  That's why you generally can't plead ignorance when a contract screws you over.

So when blue_beetle says "if you are not paying for it, you're not the customer; you're the product being sold" he means that when you sign up for a Facebook or Instagram account, you have to assume that these services want something from you, and you should read their terms of service and find out what you're getting into.  And truth be told, I [mostly] agree with blue_beetle.  Now I certainly don't condone someone profiting off your copyright without giving you a cut.  And I really get up in arms when large corporate copyright holders try to stick it to individual artists who don't have the power or wherewithal to fight back.  That violates everything I stand for.  But people do need to have  certain expectations when they sign a contract with these services - and make no mistake, a Facebook or Instagram account is a legally binding contract.  These services are not charity organizations; they are corporations (or rather, a single large corporation due to Facebook's acquisition of Instagram earlier this year) and the paramount driving force of a corporation is to make lots and lots of $$$.  If that means exploitation of its user base, then so be it.

When Facebook shares your personal information with advertisers, you don't have an expectation of privacy to that information.  After all, you shared it freely and willingly.  And even if you limit which users can see that information with Facebook's privacy settings, your information is never private to Facebook - your contract is with them, not with other Facebook users.  Meanwhile, if Instagram decides they want to license photos you share to advertisers, then can do it simply because you agreed to their terms of service.  Is it ethical?  Not really.  But is it legal?  Unfortunately it is.

I believe that the first step to controlling your artistic destiny is becoming vigilant to the situations you get yourself into. When you post a picture to Facebook or Instagram, you should understand that they will take some level of ownership over that picture.  Despite my many gripes, I will be sticking with Facebook and Instagram for the time being.  I understand that they want something from me and I'm willing to accept that in return for the personal and commercial benefits I derive from using those social networks.

But just because something is legal doesn't mean we have to let them get away with it.  There are other ways to measure success beyond a lawsuit.  For example, exploiting users' copyrighted work as Instagram tried to do this week is pretty bad policy.  We know that because the level of apoplexy that erupted forced Instagram to scurry back into the warm (if financially shallow) embraces of its old policies.   Instagram knows isn't the only photo sharing app out there with neat filters and it learned that if it can't work WITH users instead of against them, well there's always Flickr and Hipstamatic waiting to take your business.  And they'll be much more agreeable to having terms that benefit the user.

Happy Holidays everyone!

[Author's correction: in my post a few weeks ago about the Facebook copyright policy issue, I stated that Facebook can't arbitrarily change its terms of service once you sign them.  While that is generally correct in normal contract situations, that is not how it works with services like these.  Both Facebook and Instagram state in their terms of service that they may materially change their terms at will, and by continuing to have an account with them, you agree to those  new terms.  I think that such terms are probably bad policy as well, but I see nothing legally wrong with them.  If there are any contracts attorneys out there who are willing to educate me otherwise, I'm all ears.  I'd love to hear that such terms violate some law or another.]

Filmmaker-2-Filmmaker: Tip 4 - You Need To Insure Your Gear

A few weeks ago, I was on the phone with my cousin, a freelance photographer living in Los Angeles.  He had been shooting some fashion shots at a client's warehouse and paused to look over some of the slides with the client.  He set his camera on the ground and one of the client's employees accidentally kicked it while walking by.  Luckily, the camera body (worth about $5K retail) remained intact, but the lens was shot to hell. It would cost him $600 to replace and he wasn't sure if he should ask the client to cover that cost.  On the one hand, the client was responsible and my cousin didn't have 600 spare dollars lying around.  On the other hand, my cousin is a freelancer and didn't want to risk losing the client by asking him to pay for the lens.  To add another wrinkle, he needed to get the lens replaced ASAP because he only had the one camera and couldn't book more jobs without it.

We discussed the pros and cons of approaching the client, but in my mind, time and ability to book more jobs was more important, so I told my cuz "file a claim with your insurance company right away."  His response: "I don't have insurance."  D'oh!

With the exception of acting or interpretive dance, every artist needs some form of equipment to do the job.   All art is reliant on it, especially film and photography.  Which is why you absolutely, positively, unequivocally without hesitation need to insure your gear.

Because here's the thing: your gear is the single biggest investment you will ever make in your work.  And if it gets damaged, your ability to do your job decreases exponentially.  You do have some legal options, but the law is not particularly user friendly, what with all the time and money involved in suing someone... money that you probably don't have lying around waiting to be burned.  And anyway, why sue when insurance is so much cheaper and easier?   Besides, it's not like you have an unassailable right to have the client pay for your damaged gear (unless the client agrees to it in writing which I've never seen in my seven years of producing television). In my experience, insuring your gear is the best way to cover your ass... especially in those early lean years when you really can't afford to piss off a client by demanding he pay for gear he broke.

Truth: early in my freelance career, I had upwards of $15K worth of camera and editing gear insured through a "personal articles policy" with State Farm.  Do you know how much I paid on a monthly basis to have that peace of mind? $10 a month.  And the policy covered theft, loss, and damage (even if I was the responsible party).  Having that coverage was a no-brainer.  And because of it, I never had to jeopardize a relationship with a client over equipment that was damaged, and I never had to cancel a gig because I couldn't afford to replace broken gear.

But let's say you have no insurance and your client smashes your camera to bits.  Let's also assume that your relationship with the client is beyond saving and you're willing to litigate.  From my seat, there are two legal options.  If you can't prove that your client maliciously destroyed your property but he/she is clearly to blame for its demise, you could sue for damages under a simple run-of-the-mill negligence claim.  Even if the damage was done by the client's employee as opposed to the client him/herself, the client will still be liable for it (in tort law, respondeat superior makes the actions of an employee attributable to the employer).

On the other hand, if you have some proof that the client (or the client's employee) willfully and maliciously destroyed your equipment?  You could sue under the intentional tort of trespass to chattels, otherwise known as vandalism.

The problem with litigation, of course, is the cost.  Not just in litigation fees, but in time.  An average lawsuit can take years to litigate and cost tens of thousands of dollars.  It's a serious investment that can get even more serious if you lose.  That's not even mentioning the emotional and creative suckage it causes.  And if you're a small-business owner or struggling artist, do you really want a lawsuit taking up space in your brain when it could be filled with creative stuff instead?  I spoke before about sweating the business stuff, and I think insurance is no.1 or no.2 on the list of smart, cheap things that will help your business in the short and long run.

What You Can and Can't Copyright

A few days ago, I was discussing this whole "Facebook Copyright Notice" ridiculousness and in that post I mentioned that your status updates were copyrightable.  That statement created a small stir (insomuch as I am capable of creating a stir) and since then, people have been asking me about what is and isn't copyrightable.  So I thought I'd quickly address it here.

You can copyright all "original works of authorship fixed in any tangible medium of expression."  U.S. Copyright Law protects, among others," literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture."  The list of works protected under the law is not exhaustive and is wide open to future forms of artistic expression not contemplated by the drafters of the law.  Here's what copyright law does not protect: "facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."  To get a better sense of how that works in the real world, take a look at this picture my wife snapped of me last year.

I'm sitting on the front stoop of my brother's apartment in Boston.  Now, the stoop itself is not copyrightable, nor am I, for that matter.  In fact, every "thing" you see in that photo - from my clothing to the keys I'm holding, to the flower arrangement behind me - none of that is copyrightable because they're all "facts" (they may on the other hand be patent protected, but that's an issue for another time).  However, the photograph containing all those things is copyrightable and is in fact the intellectual property of my wife.  That's because it is her "expression" of those facts and it is fixed in a tangible medium (i.e. photograph). [For the record, the photo was taken with Instagram and like Facebook, does not claim any ownership over content you create with it.  It merely takes a license to use and display your content for as long as you own an Instagram account.]

The same goes for other types of communication, like emails or interviews, that deal heavily in facts and are not often considered to be original works of authorship worthy of copyright protection.  However, generally speaking, both are protectable forms of expression.  While the facts contained within the email or interview are not protected under copyright law, it is the arrangement of those facts in a fixed medium (for an interview, a transcript or tape recording. For an email, well...an email) that gives it expression.  There's a good article here discussing the copyrightable nature of interviews.  I should note that the owner of the copyright to an interview can vary depending on the facts of the case.

If you ever find yourself asking if something you've created is protected by U.S. copyright law, just ask yourself:

1. Did I create this?
2. Is it something that can I show people (if it's digital, it counts.  Your expression need not be printed on paper)?
3. It is an expression of something?

If the answer is yes to all three, then you probably have a work that is protected by U.S. copyright law.  Of course, like everything else in the law, some of this stuff can change depending on the specifics of each individual case.  If you are unsure about whether something you've created is copyrightable, ask an attorney.

One last note: as a rule, there's no size limit placed on the work in order to qualify for copyright protection, which is why your two-line status update qualifies for copyright protection.  However, the smaller your creation becomes, the more you move out of copyright and into trademark territory (for example, a phrase like "You're Fired!" or even single words or names like "Superman" or "iPhone".  Logos and branding are also generally the purview of trademark).  In short, your scatological haiku is protected by copyright, but your friend saying "that's a spicy meatball!" is protected by trademark.

Your Copyrights Are Already Protected on Facebook

I was going to let this story slide, but it seems to be driving everyone into a frenzy - including some very intelligent people whom I respect greatly - so I thought I would take a moment to address it here. If you've been on Facebook anytime in the last week, then you've probably seen your friends posting this notice on their timelines:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...

Short version: Facebook is not seeking ownership of your copyrighted works, nor is it doing anything with your copyrighted works that you don't already know about. Posting a notice about it doesn't give you any copyright protections than you didn't already have.

Long version: I understand the talismanic purpose of posting something like that. If enough people do it, it functions like a protest against some of Facebook's more heinous sharing strategies; a preemptive strike against a company that seems to change its terms of service on a whim. But posting that notice is not legally binding. Let me state that again so that it is clear and definitive: posting that notice is completely, totally, and unequivocally useless from a legal standpoint. Here's why:

(1) As I've mentioned before, the moment you create a work of artistic expression, it belongs to you. You are the copyright holder and you are never required to declare to anyone that your copyright has attached to those works. By law, it attaches from the moment it is created.  If, however, you have reason to believe that your copyright has been outright stolen by Facebook or as a result of their practices, that's another matter for which you should seek legal representation.

That copyright covers photos, videos, drawings, writings... anything creative that you make. But copyright does not cover facts or ideas. So while your status update may be copyrightable, your relationship status, name, and other biographical information are not. That means Facebook can share that info without your consent. Furthermore, not all the content on your timeline is your copyright. For example, if your friend posts a photo on your timeline, then you are NOT the copyright holder unless you took the photo.

(2) The Facebook terms of service do not claim ownership over your copyrights, and they have not been changed to claim ownership over your copyrights. The Facebook legal terms page clearly states that:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.

Instead, Facebook has a license to use your copyrighted works for as long as you possess a Facebook account, but you can limit how much of your information Facebook shares with advertisers and other users through your use of the privacy settings.  And for the record, that's always been the case.

(3) By creating a Facebook account, you have entered a valid, legally binding contract with Facebook.  As a result, there are two effects. First, you cannot retroactively change the terms of a contract just because you don't like the terms.  In other words, you've agreed to let Facebook license your copyrighted works simply by signing up for an account and you can't rescind that term.  You can't plead ignorance to the terms either because in contract law, it is presumed that both sides know what they're getting into before they sign on the dotted line.

Second, Facebook owes you a duty to live up to their side of the bargain as well.  You've already agreed to let Facebook license your copyrighted materials, so it can't just change its terms of service to say "we now own all the material you previously licensed to us."  To do so would be a breach of contract.

But looking beyond the law for a moment, there seems to be a fear that Facebook can arbitrarily change its terms of service to dupe you into relinquishing your copyrights. Certainly Facebook can change its policy to make users sign away their copyrights but why would it? It would be a massive PR migraine, and considering the IPO debacle, Facebook isn't going to engage in an activity that puts its reputation in further jeopardy. If Facebook were to make a massive change like that to its user agreement, it would only apply to new users who sign up after the change is made, not to any of the one billion existing Facebook users.

(4) The fact that Facebook is publicly traded means nothing and has no bearing on the copyright ownership situation. As far as I can tell, "open capacity entity" isn't an actual thing and therefore doesn't mean anything.  Also, it's the "Berne Convention," not the "Berner Convention."

(5) Your copyrights are already protected, regardless of what Facebook does, but what about your privacy? I've seen a lot of people confusing the copyright issue with the privacy issue, but they're not the same. The copyright issue deals with things that you've already posted to Facebook and whether Facebook's use of your copyrighted works constitutes copyright infringement (it doesn't). Privacy deals with who Facebook can share that information with. I won't get into the privacy issue here except to say that you can't claim a right to privacy when you voluntarily place your copyrighted works  in a public or semi-public place, such as your Facebook profile. [Obviously this is a bigger issue, but since it's not at stake here, I'll save it for another time.]

So once again, don't bother posting a copyright notice on your Facebook timeline. All you're doing is wasting valuable space that could be better filled with kitten videos.

The Avengers and Copyright Reform

In honor of the most shoppingest weekend of the year, I'd like to discuss how The Avengers got me thinking about copyright reform.

You see, following the mammoth success of The Avengers this past summer, Marvel Entertainment (owned by Disney) planned to release a six-film box set just in time for the holidays that contained Blu-rays of The Avengers, Iron Man, Iron Man 2, The Incredible Hulk, Thor, and Captain America. The films would arrive in a package that replicated the metal briefcase used in The Avengers to carry the film's MacGuffin, the "tesseract."  Here's what it looked like:

Unfortunately for Marvel, the release of the box set was put on hold when German luggage manufacturer Rimowa GmbH sued for trademark infringement and trademark dilution, alleging that the silver briefcase for the six-movie collection was too similar to one of its products, and that releasing the box set would hurt its brand.  The good news for consumers is that while it won't be ready for your holiday shopping needs, the set WILL be released in April with new packaging and special features.

When I read Rimowa's complaint, I rolled my eyes at their claim of trademark dilution claim (they may have a good case on the infringement claim... but I won't use this space to weigh the merits of that argument).  "Here we go again" I thought.  "Another instance of one giant company wielding their intellectual property as a weapon against another giant company so they can squeeze out a few more pennies."  Then my next thought was "at least it's Disney getting sued and not some poor struggling artist."

As you know, I'm a big supporter of intellectual property protection, especially as it pertains to individual artists and creators.  But when the copyright holder is a multinational corporation, my support for protection becomes less absolute.  I don't like bullies and I especially don't like it when giant corporations use their copyrights* to trample over innovation, even if that innovation means some copyrights get infringed.  And to my surprise, a Republican staffer named Derek Khanna agrees with me, writing a policy paper on copyright reform that recently caused a stir.  In the paper, Khanna argues chiefly that our current system of copyright law actually harms the free market, hurts the consumer, and stifles creativity and innovation.  Khanna further argues that the powers to protect intellectual property granted to Congress in the Constitution were designed not solely to benefit the creator.  Rather, they were created to benefit the public, and creator compensation was just a way to fulfill that need.  FYI, the actual text of the Constitution, Article 1, Section 8 reads that Congress shall have the power:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Khanna recommends several fixes, most of which I agree with.  Expanding Fair use protections (basically, allowing more people to use copyrighted material for certain purposes without paying for it), lowering statutory damages (current damages can see you paying upwards of $150K for each infringed work.  Khanna argues that it's un-American to charge someone millions of dollars for downloading a few dozen songs), punishing false copyright claims (I've talked about this issue before), and significantly lowering the length of copyright ownership from "life of author + 70 years" to 14 years, renewable every 14 years while the author is alive.  Khanna's paper proved so controversial that 24 hours after publishing it, his Republican bosses removed the paper and issued a letter stating that the paper hadn't been properly vetted.  Which makes sense after all; the major media companies (who are also the biggest copyright holders in the world) are big political donors.

In the case of Rimowa v. Marvel, the stakes aren't very high for the average consumer.  People will get the box set they want eventually and if they can't wait, they can go out and buy the films individually.  Disney is going to be just fine... maybe a few million bucks poorer, but that's about it. The underlying issue here is larger than whether I can go and buy a cardboard case filled with movies.  It even goes beyond how much power our current copyright law grants to companies that can use those copyrights to bully the small artist and innovator.  The issue really boils down to whether companies have the same rights as individuals.  Should a company get the same rights I get under the law?  While Khanna's paper rarely singles out corporations as the biggest profiteers and abusers under our current copyright law, it's difficult to imagine that he wasn't thinking about them directly while writing it.   In one passage, he says that "Current public policy should create a disincentive for companies to continue their copyright indefinitely..."  The whole point of the paper seems to be this: copyright too often is used as a weapon to harm individual creators.  Disincentivize that by making copyright ownership less profitable for the corporate owner.  I wholeheartedly agree.  Actually, I will agree with and support just about any reform that takes the power out of the hands of the corporate copyright owner and gives it back to the individual creator.  Art should belong to the artist.

And if the end result is that I can get my Avengers box set sooner than later, then that will be a welcome side effect.

* For the record, yes I do know the difference between copyright and trademark.  For the purpose of this post, however, I'm treating them as interchangeable because they protect different types of the same thing... intellectual property.

147 Years Later, Lincoln is Still Relevant

[Author's Note: I discuss what may be considered spoilers below, so if you haven't seen Lincoln, or don't want to wikipedia the events surrounding the 13th Amendment's passage, read no further.]

There are two moments towards the end of Lincoln that made me realize why the film should be shown in every high school civics class.

In the first, Lincoln is surrounded by his advisers and they warn him that passing the 13th Amendment at the expense of a negotiated peace with the south is impossible.  In fact, it is tantamount to political suicide. By this point, however, Lincoln is exhausted from all the jabbering and naysaying and decides to put an end to it.  He doesn't want to hear why they CAN'T pass the Amendment, he wants to hear HOW they can pass the Amendment.  He wants to get his way, come hell or high water.  For only the second time in the film, Honest Abe loses his temper and thunders the most quotable line in the movie: "I am the President of the United States of America! Clothed in immense power!" The room goes silent and the point is clear: there is only one item on the President's legislative agenda that matters, passage of the 13th Amendment.

Shortly after, Lincoln goes to meet with the three negotiators hired by Secretary of State William Seward to get the 22 democratic votes needed in the House of Representatives to pass the Amendment. Lincoln not so subtly discusses with the negotiators - played by John Hawkes, Tim Blake Nelson, and James Spader - exactly how to "convince" these democrats how to vote across party lines in favor of the Amendment. Some of those convincing techniques involve bribery, threats, and favors to lame duck congressmen who weren't reelected (one settles for becoming the postmaster of his county).

Taken together, these scenes perfectly encapsulate the thematic bottom line of Lincoln: that politics is about getting things done, even if it means breaking the law to do it. Certainly the film has a lot more on its mind... bravery, morality, how little our political system has changed over the centuries. But make no mistake, Lincoln wants us to see how the sausage gets made, so to speak, and come away with the realization that lawmaking isn't a zero sum game. Just because your bill is righteous and takes the moral high ground doesn't mean it will pass automatically.  It is okay (and often necessary) to do a little evil in order to do a great good. Lincoln certainly believed that during his political life. The 13th Amendment, the largest progressive restructuring of America's social contract, happened mainly because palms were greased, wheels were dealed, and favors doled out... all at the order of the President of the United States (at one point, the vote on the Amendment is stalled when rumors arise that delegates from the south have come to seek a peace. Lincoln writes a note to be delivered to the Speaker of the House denying that such an event has happened... even though it is in fact true.  Lincoln's aide refuses to deliver the fraudulent note. Lincoln smiles, takes the note, tenderly holds the hand of his aide as if to say "I understand", and then gently hands it to another aide to deliver, who promptly sprints back to the Capitol building to deliver it.)

Today, the media saturates the American public with all the ups and downs, and ins and outs of our political system. As a result, we feel like we see a lot about how our laws are passed in this country. We understand that politicians vote along the party line and do not cross the aisle unless they are compelled to do so for a moral reason or because they've been "convinced." Lincoln argues this is indeed the case, but maybe that isn't a bad thing. Lincoln and his supporters have no compunction about buying the votes they needed in a flawed and messy system because they knew that the future of the country depends on the Amendment's passage. And while it's easy to get discouraged by the apparent lack of progress in this country, the film argues that America's system of passing and amending laws is painfully slow by design. It prevents zealots from taking over and changing the nation's social, political, and class structure on a whim. Real change takes a magnanimous effort to overcome the significant political inertia that's built up over time.  The result is this: when that change comes, it's here to stay.

Lincoln knew why the 13th Amendment was so important.  Like a canonball to the gut, it signaled that America was finally on the path towards achieving the heart and soul of the Declaration of Independence: "we hold these truths to be self-evident, that all men are created equal." That's a battle we're still fighting today, but at least we're winning it. Even still, Lincoln doesn't shy away from the messiness of that balancing act. In one scene, he discusses the 'slipperiness' of his interpretation of his powers. In yet another scene, he acknowledges to another character that he has no idea what's in store for the country or it's black population after the Amendment passes. But he knows that this is a battle that needed to be fought, and he was going to use every tool in his arsenal (regardless of its legality) to win that battle.

It's a pragmatic view. It's a realistic view. It's a view that understands morality has a place in politics, but should not get in the way of politics. It is completely unromantic and it cuts against the moral righteousness and manifest certainty we are taught about our country. And that's exactly why it should be taught in our schools. We need to have a much more sophisticated understanding of how our government works. Only then can we get our government to truly work for the people. Lincoln is a masterpiece because it doesn't coddle us and give us the 5th grade version of things. It's a masterpiece because it understands that we can still do great things, even when we do them wrongly.

For Best Karma, Don't Torrent Copyrighted Works

When I was 20 years old, I became a thief of movies and music and I never even had to leave my house.  1999 to 20003 were boon years to what I call "stay at home theft" because you could download just about any song, TV show, movie, or computer program by means of peer-to-peer networks like Napster, Imesh, Aimster, and Kazaa. Any piece of copyrighted work was at your fingertips, and it was all free and for the taking.  From a copyright enforcement standpoint, those peer-to-peer networks were insidious: every time one of them died in a lawsuit, another took its place.  And when Limewire, the last of the peer-to-peer networks, finally went down in a hail of fire in 2010, it didn't matter.  It was replaced by a system of online file sharing known as "torrenting."

For the record, I have long since abandoned the practice of file sharing (and I do mean long since.  I haven't downloaded a file without paying for it since 2004).  I do not own a single pirated piece of software, MP3, or movie.  Every single song I had downloaded illegally, I have long since deleted and replaced with legal versions through iTunes.  I stopped it because, as I found work in the entertainment industry, I began to realize that people were putting long dedicated hours into creating something special; they shouldn't be rewarded by having that work stolen.  The file-sharing issue finally hit home when I visited my wife (then my girlfriend) at college and spoke to a friend of hers.  Upon hearing that I worked in the television industry, he proudly announced that he had illegally downloaded entire seasons of One Tree Hill.  My first thought was, "Really?  That's what you spent your time downloading?"  But my second thought was, "If you like it enough to download entire seasons of it (which were readily available on DVD at Best Buy), why don't you support the creators by paying for it?"

I used to think of torrenting as a harmless vice, but it really isn't.  Here are three reasons why:

1. Torrenting is illegal!  That's right, it's not just immoral, it's not just frowned upon, it is against the law to download a file that you didn't pay for through the regular channels of commerce. Torrenting without pay is stealing and is no different from walking into a Best Buy, sticking a DVD under your shirt and then walking out the front door. Even worse, if you're caught you could be liable for fines up to $150,000 for each willfully torrented work, or you could even face jail time.  So ask yourself: is that episode of Gossip Girl really worth it?
2. Torrenting results in the little guy getting ground into dust!  From a policy standpoint, torrenting files without paying for them results in the copyright holders - often large corporations - mercilessly suing file-sharers into oblivion.  Have you heard of Joel Tenenbaum?  He downloaded 31 songs from Kazaa and now owes various record labels $675,000.  I already wrote about how the large copyright holders have so much power that they end up going after people who have a legal right to use their copyright, but when people use copyrights for which they DON'T have legal permission, situations like this happen [short version: thirteen record companies sued Limewire for $75 trillion!! They ultimately settled for $105 million and Limewire went kaput].  Suing a poor kid for $700K is bad policy, even if he broke the law maliciously.  But because torrenting is such a huge problem, this kind of policy ends up being encouraged and even embraced by our lawmakers.  Hell, it's gotten so out of hand that record companies have even sued children and dead people for illegally downloading music.
3. Torrenting is bad for innovation!  When people download copyrighted files without paying, that results in studios and networks (who are literally paralyzed with fear over pirating) greenlighting only proven moneymakers. That's why every band sounds like Nickelback and every movie looks like it was directed by Michael Bay.  Those artists still make money despite the rampant pirating.  Think about it: the smaller something is, the harder it is to gain traction and the harder it is to become profitable.  If that work gets pirated from the outset, then the studios will make less money off an already untested product.  It's just easier to greenlight Transformers 9: Optimus Prime's Colonoscopy because no matter how many people pirate it, it will still make a metric sh*t ton of cash at the box office.  Take a look at this chart.  Eight of the top ten films of 2011 were sequels to established franchises and the other two were comic book adaptations. Ever wonder why most movies these days are sequels, prequels, remakes, reboots, and adaptations?  Established brands means that the studio will make some money, regardless of the pirates.

Here's what it boils down to: when you legitimately purchase copies of movies and music, you're telling the artist that you support her. You put her in a place financially where she can continue generating the stuff you love.  When you steal a movie or piece of music, you're telling the artist that you don't care if she can make a living and you're threatening her ability to continue generating that work.  Help me keep artists working and put a stop to the torrenting.

Why Movie Theaters Suck and How To Fix Them

Today I'm going to discuss something near and dear to my heart, so I hope you'll treat what I'm about to say with the respect and gravitas it deserves... modern movie theaters suck.  Last week my wife and I went to see The Master and these are some of the myriad distractions that prevented me from engaging with the film:

1. The lady sitting behind me kept kicking my seat and futzing with her cell phone.
2. An old man several seats away kept mumbling to himself throughout the film.
3. A middle-aged lady kept shushing the old man to keep quiet, and when the shushing didn't work, she outright yelled at him.
4. That same middle-aged woman left the film after an hour (along with her two companions) never to return.  They made quite a ruckus when leaving.
5. A woman came in 3/4 of the way through the movie and sat in a seat next to me.  She started munching loudly on some snacks that she had smuggled in from home, and shifted in her seat.  She then left the theater after 10 minutes.
6. Halfway through the film, five ushers came in and stood at the entrance crunching on popcorn and talking loudly to each other.

For a long time, movies were my religion and the cineplex was my temple.  I worshipped frequently: with friends, family, and often by myself.  While I noticed the decline in the viewing experience over the years, I kept going because I wanted to give my business to films that needed and deserved my support.  Nowadays, I've largely become a theater expat.  Why?  I don't remember the last time I went to see a movie and didn't have the entire experience ruined by people talking and texting, children yammering at age-inappropriate films, and the relentless stickiness of every surface.  Movie theaters have become a wholly unpleasant way to spend a few hours.  When I go now, it's only for the films that I've been hotly anticipating or that demand a 50 foot screen.  For the rest, my home theater will do quite nicely.  Like me, many of you have stopped going with regularity.  The figures certainly bear that out... despite this summer seeing two films that annihilated the box office (The Avengers and The Dark Knight Rises), summer movie ticket sales have declined by $100 million since 2002 and movie ticket sales as a whole are at their lowest in decades.

There's a great article over at Fast Company that discusses how design is the key to improving the theater experience and increasing ticket sales.  The crux of their argument is that theater owners are trying to compete with home theaters, Netflix, Hulu, Apple TV, and Blu-ray.  That means buying the latest digital projectors, sound systems, and investing in 3D and Imax technologies.  Except, home movie watching isn't competing with theaters for business.  Rather, movie theaters are really in competition with Friday night social venues - such as clubs, restaurants, bars, bowling alleys, etc. - and Fast Company argues that theater owners should be rebuilding the entire movie-going experience around that social engine.  Some of their suggestions are fascinating and could work really well: liquor bars, private viewing boxes for large groups, intimate lounge areas near the actual theater.  One of their most intriguing ideas is to set up a "trailer lounge" where you can gather with your friends in a comfortable seating area and watch the latest trailers and discuss them without fear of being shushed.  [I personally suggest instituting a tiered pricing system and assigned seating...the Arclight Theater in Hollywood does this.]

I applaud this out-of-the-box approach and I sincerely hope that some intrepid theater owner will be willing to embrace these innovative ideas.  For anyone fed up with the state of the modern movie theater, the article is a must read.  But Fast Company only gets at part of the problem.  You see, while the act of "going" to a movie is generally a social activity, the "watching" of the movie is decidedly solitary; after all, you are compelled to sit in silence for two hours. So while theater owners can gussy up the pre- and post-show experiences, the movie-watching experience remains largely unchanged.  And that's precisely the problem: the movie-watching experience has been substantially compromised by strangers bereft of cinema etiquette.  Personally, I don't care if the lobby is nice or that the film is being projected with the latest digital technology.  All the amenities in the world can't make me enjoy a film that I can't hear or see because of inconsiderate theater-goers.   Tim League, owner of the Austin-based Alamo Drafthouse theater, agrees.

A year ago, League earned some fame by ejecting a customer who texted during a movie despite two warnings to stop (because of theater policy, the customer was not refunded her money).  League blogged about that incident here.  The customer was so incensed that she left a voicemail at the Drafthouse, which League turned into a "Don't Talk or Text PSA."  Here it is in all it's hilarious glory.

[youtube http://www.youtube.com/watch?v=1L3eeC2lJZs&w=560&h=315]

League has hit upon exactly the right strategy for making the movie-watching experience better (and thus more appealing to customers): TOSS THE BUMS OUT!   It is so simple, so affordable, and so effective that I can't believe no one has implemented it in any meaningful way.  In the golden age of cinema, theaters employed uniformed ushers to patrol the theater and remove the riff-raff.  Most theaters don't do that anymore and I can't figure out why.  After all, there's virtually no legal downside.  Businesses can't discriminate on the basis of race, gender, disability, age, etc., but they can generally pick and choose with whom they wish to do business.  Furthermore, businesses are allowed to expel customers from their property for just about any reason.  When you go to a movie, you are being invited onto private property.  Such an invitation is revocable anytime by the business owner because your presence on the property is a privilege, not a right... even if you paid to be there.

Theater chains must know that if they were sued by expelled theater goers they would almost certainly be judgment proof.  So if there's no fear of a lawsuit, why don't they just kick out unruly patrons?  Are they afraid of bad press?  Are they afraid of physical confrontations?  In my opinion, it's most likely inertia combined with a deep-seated apathy; once they have your money, they don't care if you have a pleasant experience.  In fact, some chains, namely Regal and Imax, are doubling down on the bad experience angle by creating "texting friendly theaters"!!  League has spoken out about that here.  He writes that

"By introducing screenings where people are free to text during the movie, you will be creating unhappy customers at every single session.  It really boils down to the undeniable fact that texting in a movie theater is rude, selfish, and adversely affects everyone within view of your glowing device.  The only answer to this debate is taking a hard line.  Texting and talking can not be allowed in movie theaters.  Our spaces are sacred spaces for movie fans... To me, the leniency towards talking and texting is a greater threat to our industry."

I agree with that sentiment and I think most of you agree with it too.  There's a reason why theater ticket sales are down, and I wager it's mostly because going to the movies has become intolerable.  If the theaters don't care about my experience, then why should I pay for that experience?  In response to the rude texter who he ejected, Tim League wrote,  "you may be free to text in all the other theaters... but here at our 'little crappy ass theater,' you are not.  Why you may ask?  Well, we actually do give a f*$k."  I think that more amenities, features, and radical design makeovers will definitely help to increase ticket sales, but undoubtedly the future of the movie theater industry will rest on whether theater owners start giving an old-fashioned f*$k.

Lululemon is Literally Suing The Pants Off Calvin Klein: Intellectual Property Upheaval in The Fashion Industry

It will come as a surprise to no one that I don't know thing one about fashion or the fashion industry.  In fact, I recently suggested to my wife that she start a blog called "Things I Make My Husband Wear" that would chronicle her efforts to teach me about the importance of clothing and turn me from someone who looks like  a shiftless farmhand into a professional adult.  Time will tell if she decides to take on this monumental endeavor.

But even I know when something strange is afoot at the Circle K*, and the month of September has seen the rumblings of a shift in the way the fashion industry operates, as designers scramble to protect their work in ways that have historically been off-limits.  A few weeks ago, my friend Lauren sent me this link explaining how popular yoga-pant trafficker Lululemon is suing Calvin Klein for infringing its patent by copying its "Astro" pant design; specifically, the lawsuit alleges that Calvin Klein ripped off the Astro's waistband as well as two other design elements.

Here are the pants in question:

The lawsuit is surprising, since copycatting in the fashion design industry is so generally accepted.  In the fashion world, suing a copycat over patent infringement is uncommon because design patents are so hard to obtain in the first place and even harder to protect.  There are two kinds of patents: Design patents which protect "original and ornamental design" and utility patents which are far more common and protect physical inventions that possess some level of usefulness. [Copyright law doesn't apply here since copyright protects forms of expression, whereas patent law protects items that are functional.]  So why are design patents so hard to get in the fashion world?  According to attorney Adrian Pruetz, "[i]t's very hard to come up with something that's new and that hasn't just been part of the clothing vernacular."  After all, everyone wear some variation of pants, shirts, and shoes, and finding something unique is difficult because the history of clothing design extends back for over a thousand years.

The copycatting has gotten so out of control that NY Senator Chuck Schumer sponsored a bill** that would provide some intellectual property protections for designers.  The bill, which just passed out of the Senate Judiciary Committee last week, would aim to protect fashion designs that are unique, distinguishable, non-trivial, and non-utilitarian.  Schumer, of course, has some selfish reasons for sponsoring this bill: New York is considered by many to be the nation's fashion capital, employing over 200,000 people in the industry, so this bill is as much about protecting jobs as it is about protecting patentable innovation.

Enough of the news, here's my take: I'm all for the Schumer bill and any reasonable patent protections for fashion designers in general.  A running theme in this blog is my support for protecting the work of artists, and I see no reason to deviate from that now.  But some people have argued that design patents are more trouble than they're worth and should be limited or even abolished.  Ilse Metchek, President of the California Fashion Association, says "[t]his whole notion that you'd grant a patent to anyone who adds a seam or two to a waistband is quite problematic. It's only going to create more litigation, and that's hardly something the fashion industry needs more of."  I can see her concern.  Clothes are a necessity of life and if you permit designers to repeatedly sue other designers for infringement, you affect not just other fashion houses, but literally everyone.  Clothes would become much more expensive and only the companies who could afford to withstand lawsuits would survive.  That would stifle artistic expression and innovation.  Bad medicine indeed.

Which is why the Schumer bill is a good start: its patent protections are very limited and would only extend to designs that are extremely unique and distinguishable.  Furthermore, the protection would only last for three years from the date of publication, would provide certain liability limitations (such as no liability for someone who copies a design for home use only), and would force plaintiffs to plead detailed facts in their initial complaints in order to limit frivolous lawsuits.  Designs that predate the bill's enactment would not be eligible for protection and would thus be public domain.  The entire bill smacks of reasonableness, which frankly means that everyone will hate it.  But the bill is designed around an industry that is built on copying others and it recognizes that reality.  In my opinion, it's a good way to let people protect their work, while still allowing room for copying designs not unique enough for protection.

As for the Lululemon/ Calvin Klein row, I won't debate the merits of the case here since I haven't seen the court documents. I will say that Lululemon is clearly making a stand here against Calvin Klein, Gap, and any other retail chain that threatens its business. I have no dog in this fight, but there are plenty in the fashion industry that do.  It should be interesting to see what happens.

* Sixty quatloos to the person who gets this reference.  Please state your answer in the comments section below.

** Thank you to my lovely wife for pointing out the existence of this bill!

Microsoft And The Amazing Technicolor Trade Dress Infringement

"Good artists copy.  Great artists steal." - Steve Jobs

By that logic, the boys in Redmond are pretty great.  A few weeks ago, I was walking through the Prudential Center in Boston and came across the newly opened Microsoft Retail Store.  If you've seen one, then you probably thought the same thing I did: they totally ripped off the Apple Store!  Here's a picture I took the other day:

And for comparison's sake, here's a picture of the Apple Store I worked at three years ago:

Aside from the visual similarities to the store exteriors, both include well-lit, spartan layouts with wooden tables featuring hands-on product displays.  Both stores are divided by product type: MP3 players, smart phones, tablets, laptops, desktops, accessories. They both feature Genius bars where customers can get immediate tech assistance.  Employees in both stores wear brightly colored T-shirts and lanyards, and walk around with touchscreen tablets to ring up customers.  While Microsoft's store is generally more colorful inside, the design language is obviously Apple's.

"Why hasn't Apple sued them into oblivion?" I thought.  [I must admit a little bias and outrage since I'm a rabid Apple partisan]. The resemblance between the stores was uncanny.  Curiosity compelled me to look into it and this is what I found: Microsoft can get away with ripping off Apple because no one is walking into a Microsoft Store to buy Apple products.

You see, U.S. Trademark Law protects something called "trade dress" which is defined as "the total image or overall design or appearance of a product or its packaging."  Trade dress also includes design and layout of a retail space or restaurant.  In an effort to protect its store designs from theft, Apple registered those designs with the United States Patent and Trademark Office (USPTO).  This past May, the USPTO approved Apple's registration; you can see those documents here.  In response, Microsoft filed an objection to that registration, claiming that Apple's store designs aren't distinct enough to be protectable (so we may actually see a fight over this issue soon).

The distinctiveness issue aside, you can understand why Apple would want to prevent Microsoft from using its store designs.  But if Apple sues Microsoft for trade dress infringement, Apple will lose.  That's because Apple can only prevail by showing, among other things, that the Microsoft Store is so similar that people are likely to get confused and walk in thinking it's an Apple Store.  Frankly, that's a losing argument for the following reason.

In a trade dress infringement case, courts can weigh a variety of factors on the confusion issue, including the relationship between the brands in the minds of the consumers.  In this case, Apple and Microsoft are two of the largest corporations in the world (Apple just passed Microsoft as the world's biggest company as measured by stock market value).  Both companies were founded by men who are/were world-famous geniuses.  People are aware that the two companies are in direct competition with one another and know the Apple logo the same way they recognize the Disney logo, the Coca-Cola logo, or the Superman emblem.  Apple is the world leader in electronics sales, specifically when it comes to the iPod (which revolutionized the MP3 player market) and touchscreen devices like the iPad and iPhone - Last quarter alone, Apple sold 17 million iPads and 2 million iPhone 5's... and the phone hasn't even been released yet!  These devices are synonymous with Apple.  Furthermore, Apple's entire line of notebooks and desktops contain the same well-known design scheme, aluminum casing with black accents and a glowing Apple logo.  By the same token, the public recognizes Microsoft's logo from daily use, since 95% of the world's computers run its Windows operating system.  Nearly every business in the world uses Microsoft Word and Excel.  Microsoft is also the creator of the Xbox 360, one of the most successful video game consoles of all time.

If someone did walk into a Microsoft Store looking for an Apple product, they would immediately discover that they were in the wrong place due to the absence of Apple's logo and dearth of Apple products.  Based on these facts, I think Apple is in no danger of losing sales to Microsoft just because the stores look the same.  That is, after all, the whole point of suing for trade dress infringement... that someone has purposely confused the customer in order to draw sales away from the trade dress owner.

In short, the public knows who Apple and Microsoft are, and no one's mistaking one for the other.  Because the likelihood of confusion between the stores is negligible, it's no shock that Apple hasn't commenced a lawsuit against Microsoft.  Microsoft made its retail store plans public back in 2009, and while I wouldn't completely rule out a legal fight over this at some point, I think Apple knows it doesn't have much of a leg to stand on.

[Author's Note: I dramatically over-simplified the trade dress analysis for a few reasons.  First, for the sake of brevity; second, because it can get extremely convoluted and you probably don't care that much; and third, because at the end of the day I truly believe that this case would hinge on the confusion issue.  Of course, if there are any trademark lawyers out there who take issue with my analysis, please feel free to tell me why I got it wrong!]