THE AUTO COMPANIES
Whose Money are they Using to Oppose Environmental Controls?
As a lifelong Detroiter, the auto companies are like my family. Maybe the grouchy old uncles who you never agree with kind of family, but kin nonetheless. Around here everyone -- factory workers, health care providers, accountants, restaurant owners, dry cleaners -- everyone is part of the "auto industry." And whether you drive American or not, you know that the ongoing survival of the domestic car companies in this country is crucial to our ability to survive--as a state, a community, professionally, individually.
The reports are more than grim -- they're take-your-breath-away scary: Michigan's jobless rate is a whopping 9.6%, tied for the highest in the country(with Rhode Island). And in a country where one in 10 U.S. homeowners was at least one month behind in mortgage payments, Michigan is ranked fifth in the country in home foreclosures. The experts all agree: if the auto companies go under, an economic tsunami is predicted here in Michigan.
What should we do? It seems clear from here that we need to extend a hand to help the auto companies hang on until the national economic credit crisis is successfully resolved --Michigan simply won't survive otherwise.
But in exchange for receiving billions of dollars of federal money, given or loaned, it is fair to expect a quid pro quo: the recipients of federal aid should be required to abandon their entrenched opposition to environmental protections. An industry that opposed the Clean Air Act, and has repeatedly fought increased emission standards, must now agree, at least, not to spend these funds to further these anti-environmental positions.
In particular, it means that if we give or lend money to the auto companies, they must withdraw from their participation in the lengthy, expensive, multi-state litigation brought by the auto industry targeting global warming/emissions laws in California, New Mexico, Rhode Island, and Vermont. The auto companies, along with an extensive list of suppliers, and others in the auto industry, are paying some of the most expensive counsel in the U.S. to pursue their attempts to derail individual states' attempts to beef up emissions standards. Significantly, the EPA under the Obama administration is expected to revise its standards to meet these stricter levels shortly, largely mooting the litigation. Understandably, taxpayers in the states embroiled in the litigation are not happy about subsidizing the auto companies' attempts to subvert their environmental laws. Withdrawing from this litigation will go a long way to showing that the Big 3 are genuine in their commitment to a cleaner environment.
So far, the automakers have refused to consider dropping the litigation. Their refusal, together with certain of their new models, such as the 2009 gas guzzling Jeep Grand Cherokee, which gets 11 mpg in city driving, calls into question the commitment of the auto companies. This defiance of gas mileage goals flouts what should be the bare minimum expectations of the new, not yet introduced, car models. Instead, some of the reviewer's comments (as illustrated by the Detoit News' Scott Burgess) are celebrating the in-your-face defiance signified by the new Jeep:
Gloriously fast, this SUV sucks down more gas than even the EPA thinks: 11 miles per gallon city and 14 mpg highway. Those are under the best conditions. During my test drive of this SRT8, I probably used a gallon just to start it and listen to the specially tuned 6.1-liter Hemi roar at the touch of my toe.
I don't know its carbon footprint, but it's destined to be outlawed in all of the nambypamby states following California's barely legal tailpipe emission laws crafted by people who think their '77 Rabbit diesel is "fun."
No doubt Congress, at the behest of high priced eco-lobbyists, will require Chrysler to retool the SRT8 program into some sort of polar bear rescue team. After all, their magnificent contributions to the automotive world have melted polar ice caps, etc., etc., etc.
...And let's get one thing straight: SUVs did not cause global warming. Fiction writers did.
The state and the country needs the auto companies to survive. But the management needs to recognize that they need us, too, and they owe us the commitment to our environment that reality, and the public, is demanding.
Saturday, December 13, 2008
Wednesday, December 10, 2008
HARRY POTTER
Muggles, Dementors, and The Order of the Court
Harry Potter mania set records on almost every front.
Bleary-eyed children who had never before read a book on their own skipped meals and bedtimes to read straight through the 766 pages of The Order of the Phoenix. Kids in costume trooped through the dark of night to attend midnight bookstore parties where they drank brew from cauldrons and donned cheap round glasses through which they could not focus.
Each successive release of a new Harry Potter book shattered all prior records for presales, eventually selling over 400 million copies worldwide, and distinguishing author J.K. Rowling as the world's only billionaire author.
And recently, in an opinion issued by Judge Robert Patterson, Jr. of the Southern District of New York, a lawsuit brought by Ms. Rowling and Warner Brothers has made what is considered groundbreaking law in the muddy waters of fair use of copyrighted works.
The defendant in the case, Steven Vander Ark, formerly a librarian and middle school media specialist at Byron Center Christian School in Michigan, operated a popular Harry Potter fan site known as "The Harry Potter Lexicon." The online Lexicon incorporated Vander Ark's copious notes from the books, giving fans a descriptive list of spells, characters, creatures, and magical items from the Harry Potter books, along with an A-to-Z index to aid in searching. The Lexicon also included a number of instances of verbatim copying or close paraphrasing of language from the Harry Potter books.
Vander Ark, together with publisher and codefendant RDR Books, were preparing to publish a book form of the Lexicon when they were met with a series of cease-and-desist letters, and ultimately, a complaint and preliminary injunction motion from Rowling's and Warner Brothers' attorneys.
Vander Ark did not dispute that he actually copied portions of Harry Potter books. His defense, however, claimed that, as a reference guide, the Lexicon was protected from claims of copyright infringement on the grounds that it constituted "fair use" of Rowling's work. Many others who were well-schooled in issues of copyright fair use agreed.
The court, however, did not. In a 68-page, meticulously written opinion, the Court noted that the Lexicon went far beyond a mere reference guide, instead featuring a substantial entertainment quality, while containing little analysis or commentary, hallmarks of reference works. Other factors which weigh into the fair use analysis, such as market harm to the copyright owner, were found in Rowling's favor, given her well-documented intentions to introduce her own version of a Harry Potter encyclopedia.
Although the court's opinion has caused a chill among authors of reference works, the court took care to underscore the ongoing vitality of the fair use defense for such works:
"Notwithstanding Rowling’s public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works. The market for reference guides does not become derivative simply because the copyright holder seeks to produce or license one."
The parties have now settled their dispute, the appeal has been withdrawn, and The Lexicon, replete with newly added, substantial sections of commentary and analysis, will be on store shelves in January, 2009.
Muggles, Dementors, and The Order of the Court
Harry Potter mania set records on almost every front.
Bleary-eyed children who had never before read a book on their own skipped meals and bedtimes to read straight through the 766 pages of The Order of the Phoenix. Kids in costume trooped through the dark of night to attend midnight bookstore parties where they drank brew from cauldrons and donned cheap round glasses through which they could not focus.
Each successive release of a new Harry Potter book shattered all prior records for presales, eventually selling over 400 million copies worldwide, and distinguishing author J.K. Rowling as the world's only billionaire author.
And recently, in an opinion issued by Judge Robert Patterson, Jr. of the Southern District of New York, a lawsuit brought by Ms. Rowling and Warner Brothers has made what is considered groundbreaking law in the muddy waters of fair use of copyrighted works.
The defendant in the case, Steven Vander Ark, formerly a librarian and middle school media specialist at Byron Center Christian School in Michigan, operated a popular Harry Potter fan site known as "The Harry Potter Lexicon." The online Lexicon incorporated Vander Ark's copious notes from the books, giving fans a descriptive list of spells, characters, creatures, and magical items from the Harry Potter books, along with an A-to-Z index to aid in searching. The Lexicon also included a number of instances of verbatim copying or close paraphrasing of language from the Harry Potter books.
Vander Ark, together with publisher and codefendant RDR Books, were preparing to publish a book form of the Lexicon when they were met with a series of cease-and-desist letters, and ultimately, a complaint and preliminary injunction motion from Rowling's and Warner Brothers' attorneys.
Vander Ark did not dispute that he actually copied portions of Harry Potter books. His defense, however, claimed that, as a reference guide, the Lexicon was protected from claims of copyright infringement on the grounds that it constituted "fair use" of Rowling's work. Many others who were well-schooled in issues of copyright fair use agreed.
The court, however, did not. In a 68-page, meticulously written opinion, the Court noted that the Lexicon went far beyond a mere reference guide, instead featuring a substantial entertainment quality, while containing little analysis or commentary, hallmarks of reference works. Other factors which weigh into the fair use analysis, such as market harm to the copyright owner, were found in Rowling's favor, given her well-documented intentions to introduce her own version of a Harry Potter encyclopedia.
Although the court's opinion has caused a chill among authors of reference works, the court took care to underscore the ongoing vitality of the fair use defense for such works:
"Notwithstanding Rowling’s public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works. The market for reference guides does not become derivative simply because the copyright holder seeks to produce or license one."
The parties have now settled their dispute, the appeal has been withdrawn, and The Lexicon, replete with newly added, substantial sections of commentary and analysis, will be on store shelves in January, 2009.
Tuesday, December 9, 2008
NOBEL PRIZES
Alfred Nobel's Legacy
Tomorrow when the Nobel Prizes are handed out in Stockholm, Sweden, the world will pay homage to some of the crowning intellectual achievements of our time in chemistry, physics, medicine, literature, and economics. Tomorrow's recipients will be initiated into the legendary fellowship whose members include Albert Einstein, Niels Bohr and Marie Curie .
Most people will give only momentary attention to the groundbreaking accomplishments of the individual recipients. And, more than likely, most will be even more fleeting in their reflection on the benefactor himself -- Alfred Nobel -- inventor, poet, industrialist, pacifist; fluent in Swedish, Russian, French, English and German.
Driven by his inquisitiveness in chemistry, Nobel's research in the controlled detonation of nitroglycerin earned him a patent for dynamite (TNT), one of 350 patents granted him, for an array of inventions that laid the foundation for the industrialization of the modern world, through the blasting of rock, building of canals, and drilling of tunnels. He garnered enormous wealth from more than 90 explosives and munitions factories in 20 countries.
Notably, the Peace Prize is not among the awards given out in Stockholm tomorrow night, the anniversary of Nobel's death. The fanfare of this preeminent presentation is saved, as directed in his will, for a separate commemoration held in Oslo, Norway on the same night.
Alfred Nobel was galvanized to establish The Peace Prize, the original of the distinguished awards, upon learning of an erroneous report in a French newspaper of his own death, rather than that of his brother. The headline synopsized the exposives magnate's life with "Le marchand de la mort est mort" (the merchant of death is dead). Confronted with the devastating realization that his lifetime commitment to promoting peace and world improvement through building and industrialization risked being sullied by the violent use of his inventions, Alfred Nobel committed the riches from his exposives dynasty to the permanent endowment of the Nobel Foundation, including the Peace Prize, the world's most prestigious recognition of commitment to global peace.
http://nobelprize.org/alfred_nobel/
Alfred Nobel's Legacy
Tomorrow when the Nobel Prizes are handed out in Stockholm, Sweden, the world will pay homage to some of the crowning intellectual achievements of our time in chemistry, physics, medicine, literature, and economics. Tomorrow's recipients will be initiated into the legendary fellowship whose members include Albert Einstein, Niels Bohr and Marie Curie .
Most people will give only momentary attention to the groundbreaking accomplishments of the individual recipients. And, more than likely, most will be even more fleeting in their reflection on the benefactor himself -- Alfred Nobel -- inventor, poet, industrialist, pacifist; fluent in Swedish, Russian, French, English and German.
Driven by his inquisitiveness in chemistry, Nobel's research in the controlled detonation of nitroglycerin earned him a patent for dynamite (TNT), one of 350 patents granted him, for an array of inventions that laid the foundation for the industrialization of the modern world, through the blasting of rock, building of canals, and drilling of tunnels. He garnered enormous wealth from more than 90 explosives and munitions factories in 20 countries.
Notably, the Peace Prize is not among the awards given out in Stockholm tomorrow night, the anniversary of Nobel's death. The fanfare of this preeminent presentation is saved, as directed in his will, for a separate commemoration held in Oslo, Norway on the same night.
Alfred Nobel was galvanized to establish The Peace Prize, the original of the distinguished awards, upon learning of an erroneous report in a French newspaper of his own death, rather than that of his brother. The headline synopsized the exposives magnate's life with "Le marchand de la mort est mort" (the merchant of death is dead). Confronted with the devastating realization that his lifetime commitment to promoting peace and world improvement through building and industrialization risked being sullied by the violent use of his inventions, Alfred Nobel committed the riches from his exposives dynasty to the permanent endowment of the Nobel Foundation, including the Peace Prize, the world's most prestigious recognition of commitment to global peace.
http://nobelprize.org/alfred_nobel/
Monday, December 8, 2008
TRADEMARK LAW
Tired O' Big Bullies
Our client runs a truck stop and convenience store, known as Danny's A Big Rig Resort. When we considered applying for a U.S. Trademark Registration for the mark, no amount of clearance searching would have warned us that Big O Tires would have an issue with our client's marks. Look closely--the only similarity is the word "BIG." Turns out Big O also owns a registration for "BIGFOOT" -- a term which also shares...the word "BIG."
Perhaps we might have had some forewarning that we were in for legal harassment if we had done some investigating into the regular, and countless Opposition proceedings filed on behalf of Big O by their trademark counsel, for practically everything and anything containing the word BIG in the mark for automotive or truck related goods (BIG LUG; BIG DAWG; BIGGS; BIG DADDY'S; SERVING A BIG WORLD WITH SMALL TIRES...the list goes on and on). A review of the disposition of these proceedings, in which Big O filed Oppositions against these various applications, reveals a series of default judgments. That's right, Big O wins over and over by having deep pockets, filing expensive litigation, and harassing these Applicants into fleeing from their trademark rights.
When Danny's A Big Rig Resort and its co-pending A Big Rig Resort met a similar fate last winter, we found ourselves facing a similar likely capitulation by our client, who, like most small business owners in hard times, are not inclined to devote precious resources to defend their title in a trademark registration dispute. And unlike attorneys working on The Innocence Project devoting their time to freeing wrongly convicted men on death row, the causes we take up are not celebres, and I know my own time is usually too scarce to donate to trademark causes.
But something here called for justice -- so my partner and I threw our own resources into our winning position. Our summary judgment motion in the TTAB Opposition brought against our client by Big O Tires relied on our firm conviction that the use in common of the word "BIG" is insufficient to establish a likelihood of confusion. In relying on a handful of prior Lanham Act cases which focused exclusively on the dissimilarity of the marks, we took the risky position that conceded all relevant issues except similarity of the marks.
Justice prevailed: in a decision this month the Board held that there is no confusing similarity just because both marks contain the word "Big." Big O has finally lost -- to one of the only opponents to bring the case to a legal disposition. Although the case has not been designated as precedential, we plan to make it a decision Big O will have to wrestle with for a long time, as we send it out as ammunition to all of Big O's unfortunate TTAB adversaries. See discussion.
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