You just gotta love Virgin. If not for the sodas, or the mobile service, then maybe even just the name itself sparks interest. Imagine the double entredes and really witty copy their advertising agents can come up with. Take this for example.

Here’s the image source, and there seems to be an interesting discussion over at the comment threads. A bit dated, but still interesting.

Now what could “free … virgin to virgin” mean?

Seems like Virgin is in hot water for stealing photos from Flickr. Here’s he original photo (from here).

Horror of horrors! They flipped the image.

Virgin Mobile is facing a lawsuit for using an image from Flickr of a Dallas teenager without any consent, in its marketing campaign “Are You With Us Or What?”

According to The Dallas Morning News, the photo of Alison Chang flashing a peace sign had appeared in a printed ad with the caption “Dump your pen friend” and was seen in Adelaide, Australia. The Herald Sun also cited that another caption “Free virgin to virgin” was placed in a different ad. -901am

The kid says she felt insulted.

The complaint says the ad caused Alison “to experience and suffer humiliation, severe embarrassment, frustration, grief and general mental anguish damages, all of which, in reasonable probability, will subsist in the future. -Dallas News

If Virgin stole a photo of me and slapped a “virgin” label somewhere I would most definitely feel insulted. Virgin? Most definitely not.

Seriously, Virgin’s PR people need a lesson in intellectual property rights and child welfare rights.

Of course, Google AdWords per se is not illegal. But the very tenets of the AdWords system—which lets advertisers bid for ad space based on keywords—may be in trouble. 901am reports of a recent lawsuit involving Google and a company called American Blind & Wallpaper Factory, Inc. American Blinds argues that Google is infringing on its trademarks by allowing competitors to bid on their keywords (i.e., “American Blinds”). This way, the company’s competitors can get top spot in relevant AdSense ad units, and even in AdWords for search units.

According to Reuters, American Blinds complaint argues that Google’s system violates trademark law by allowing competitors of American Blinds to use Google’s system to buy keyword search terms, such as “American Blind,” which trigger ads from rival companies.

“We spend millions of dollars annually to build brand awareness and cannot stand idle while Google allows our competitors to ride our coattails,” said a statement from Steve Katzman, CEO of American Blind.

Is this reasonable? Well, I’m no lawyer, but if they are using this argument, then perhaps they can also consider the possibility of competitors optimizing for those keywords. Macalua.com says some companies are already using their competitors’ names to optimize for search engine ranking. And they’re succeeding.

But Marc Macalua cites the Google AdWords policies in saying this practice is not acceptable.

Smart Communications Inc. is bringing the telco wars to search. Do a search for “globe visibility” (the product name for Globe Telecom’s flagship 3G/HSDPA mobile broadband service) and you’ll see the Smart 3G Adwords ad in the top PPC spot.

Is this keyword hijacking strategy legal? No, it’s not legal. That’s according to the Google Adwords FAQ:

Google takes allegations of trademark infringement very seriously and, as a courtesy, we’re happy to investigate matters raised by trademark owners. Also, our Terms and Conditions with advertisers prohibit intellectual property infringement by advertisers and make it clear that advertisers are responsible for the keywords they choose to generate advertisements and the text that they choose to use in those advertisements.

But then it’s not easy to monitor each and every AdWords bid to see if it’s potentially infringing on another company’s trademarks or copyrights.

Again, things like these bring up more questions, especially in the light of a changing media landscape, and changing practices and norms in the fields of PR and even law. Google is turning out to be the biggest player of them all, but is still not immune to criticisms and legal liabilities.

So is using a competitor’s keywords or name illegal? Probably, from the perspective of Google’s ToS, yes. But is Google liable when a client uses a competitor’s trade name as keywords? That’s what we have to find out soon.

We’ve come to a point where it’s really, really difficult to come up with anything that’s totally original. It seems the Internet has made information easily accessible at a moment’s notice, and this has made us lazy. At least that’s what some people in the academe think.

A new study looking at “personal essays” written for university admission supports this theory by pointing out repeated examples of plagiarism, where applicants pretty clearly took “personal essays” that were from certain websites and used the ideas and personal experiences in them as their own. One of the most popular, apparently, was an essay about a fascination for chemistry that began with the applicant setting fire to his or her pajamas at age 8. Apparently, that particular scenario happened to 234 individuals… Or, more likely, just one of them, and the rest took the idea from the fact that the essay was posted to a site showing “successful” personal statements. Most of the essays weren’t plagiarized directly—they just built on the idea. -Techdirt

Imagine, an essay on personal experiences, and hundreds of people would share a single particular scenario. Of course, while this might not necessarily be downright plagiarism, this is a sign that a good number of students have gone to building on other people’s work instead of doing something more creative and original.

Granted, there’s probably no truly original idea anymore these days. Hey, even we bloggers are fond of building on other people’s work, sometimes adding our own two or three lines of opinion and commentary. But there are only those certain times when this is acceptable. And copy other people’s personal experiences as one’s own doesn’t count.

But then some people would rather take a more positive approach.

Jeremy Wagstaff … suggests that perhaps many of the applicants don’t think of it as “plagiarism” but more like wiki-style collaboration. That is, they’ve grown up in an age of internet collaboration where no one person “owns” the content, but that content is an ongoing process of ideas that anyone can participate in. In such a world, the idea of “plagiarism” has little meaning.

The same innovations that have made us lazy are in fact also making us collectively more creative. So since I’m too lazy to create something entirely new, I get help from my peers and build on each other’s work. It’s like asking neighbors for help when building a house. You can only work so fast, and you probably have a limited knowledge of architecture, carpentry, and interior design (and even plumbing!). But if everyone pitches in and builds on ideas contributed by everyone else, you’d have something done by day’s end.

Is there still any original content out there?

Or perhaps the question should be, has there ever been any truly original content not inspired or influenced by other works, in the first place?

In my years of blogging I’ve encountered numerous requests to cite my posts and even to syndicate my blog’s content through RSS. By this I mean actually re-publishing the content I made on other sites (sometimes just the summary from the feed). And most of the time I’ve agreed. Actually, my stuff is already published under Creative Commons by attribution licenses. So people are free to use it as long as it’s for non-commercial purposes. And what do you know, the CC license even states that if explicit permission is granted, users may be free to use the content as they please, as long as this is within the agreement with the creator.

Makes me think about something previously posted here by Franky about why not to use Flickr images on your blog.

Back to flickr. No matter if you link back, credit the photo or rely on Fair Use, sooner or later D’Artagnan, or was it Don Quichote, will show up and create a whole drama in your comments.
...
Imagine the photographer suddenly decides to change the license into “no rights”.

Now those are good points. Licenses can be changed anytime and you might find yourself in hot water for pics that are suddenly illegally used.

I think there’s nothing that cannot be solved by some good ol’ fashioned diplomacy. I’d say go ahead and use Flickr images. To be sure, don’t forget to use the search for CC licensed images that allow republishing, modifications, or even commercial use. But it would be best to both link to the original site, and also to ask permission from the owner of the photo, even if it’s explicitly stated that you may already use the image. For one, you get to have new online contacts. And then you’re assured that the person is allowing you to use his or her content, even if the license changes in the future. Emails make for good paper trail.

You get to cover your arse and make new friends at the same time.

And so it happens. I remember awhile back predicting that Google is bound to get a lot of legal flak for stuff on its most recent big acquisition—YouTube. So a good number of stuff on YouTube is copyrighted material. Not everyone is complaining, though. Some have even banked on getting more popular because of their material on YouTube. Fox doesn’t think so, though. The Blog Herald cites reports that Fox is subpoenaing Google for a YouTuber’s ID.

It looks like Google’s dedication to the privacy of its users will tested once again. Twentyth Century Fox has filed a subpoena against the search engine king in order to reveal the identity of a certain YouTuber who uploaded a certain episode of the show 24 online.

(Digital Bulletin) The subpoena, which was filed by a judge in California on January 18, could spark a heavyweight media collision between 20th Century Fox and Google, which acquired social media site YouTube for $1.65bn last year. It was also issued to lesser-known video-sharing site LiveDigital. […]

The new episodes of ‘24′, which stars Kiefer Sutherland and Elisha Cuthbert, appeared on YouTube on January 8, six days prior to its official January 14 premiere on News Corp-owned broadcaster Fox.

Google has currently suspended the account of the account of the YouTuber, who went by the name of ECOtotal. Google (as usual) has provided no comment over the subpoena, although this latest incident makes one wonder whether or not the search engine king is actually enforcing its copyright policy, something they vowed to do last year in October.

Well, surely that sucks for Fox—to have your material shown on the Internet days before the actual airing! But then again, to some, seeing Elisha Cuthbert makes it all worth it! Long live YouTube!

Flickr is a great tool and very popular, but I have never used a single flickr image on any of my blogs. Why not?
I have read that many stories about flickr images being used on blogs and I wouldn’t think of using a single image. Today I stumbled upon David’s apology after the storm (created by ONE commenter).

Surely, most of time (flickr) photographers are happy with a link back, many of them will agree when you ask them to use their pictures, but then again if you dare to use the Fair Use policy suddenly you might be confronted with a whole gang of haters.
Is a small error worth the controversy it might result in? Not if you ask me.

Don’t understand me wrong : I respect licenses and copyrights (and will add this one more as disclaimer, just to make sure you got it), but sometimes people just are too shallow as far as I am concerned. And most of time it is not the photographer, but the friend/fan of the image rights owner.
I am sure many photographers are realistic in life and accept that online other habits live.

We have scrapers, grabbers, splogs, image hotlinking and many more of the same.
Do I personally care? No, not really. The people who don’t respect licenses or intellectual property will lose one day or the other anyway.
I do believe in Karma.
Scrape my content, try to make money with, grab my feed, use my images. This is the internet and I know that it will happen sooner or later. Even without me knowing. It just happens. There are many examples of this and it is sad that it happens, but I would never start a vendetta against those poor people. But I digress.

Back to flickr. No matter if you link back, credit the photo or rely on Fair Use, sooner or later D’Artagnan, or was it Don Quichote, will show up and create a whole drama in your comments.

You are such a bad boy!
You used an image without credit!

*yawns*

Imagine the photographer suddenly decides to change the license into “no rights”.
There you are : without knowing it you host illegal content on your site and (depending on the country where your website is hosted/server is located) your hoster might have to suspend your account on a simple DMCA complaint. One email and bingo!.
Er, *poof*. Gone is your blog.
I think I’d rather use an image of a respected photo agency. At least they will first send you a Cease & Desist notice (most of time).
No public scandal.

Or I visit stock.xchng where the image owner specifically uploads pictures to be shared. And specifies if you can use them freely or first need to request permission.
Heck I’d even rather go to Google Images than flickr.

Seriously people, if you are scared that someone might forget to link back or credit you, don’t share. Upload your pictures at iStockphoto and hope they are that great people will pay for.
Get real, probably your pictures have already been shared on torrents sites.

Disclaimer
I do respect and believe in intellectual property. But I am a realist.

WordPress is the best blogging software out there. Ever!

Now that we’ve cleared that, let me tell you about a controversy that my favorite blogging software has been involved in lately. WordPress is going the way of DIGG. Remember our JOAB post before about DIGG founders not wanting you to use “digg” on your site without permission? Well, Matt Mullenweg, one of the founders of WordPress, seems to dislike the idea of people using the WordPress term on their domains.

The WordPress Trademark domain name usage policy was added not long ago to the official WordPress site. The policy basically says you can’t use the name in your domain name without permission.

What isn’t clear is how you can use “WordPress” in your blog title, ads, or other usages while your domain name is something different like “word-press.net” or “wor-dpress.com”. There is a www.word-press.net that makes phpWordPress, whatever that is. The site is really vague about what it does last time I checked. Does that count?

There are also many other sites calling themselves things like make-money-with-wordpress.com and easy-wordpress-blogging.com, or variations thereof, so is WordPress sending these folks cease and desist orders?

If you are using WordPress in your domain name, stop. If you are using WordPress as the official “name” of your company, blog title, or otherwise, but not in the domain name, stay tuned for the official response on that one.

If you are using “WordPress” to name and promote your Plugin or Theme, such as XYZ WordPress Theme or ABC WordPress Plugin, that comes under “adjective” and not a trademark violation as I understand it. It’s using the trademark name as a description. Just don’t name your site “WordPress Plugins” or “WordPress Themes” as that turns the description into a business name, a violation of the trademark.

So there is clearly an issue of fair use and trademarks here, where on one end, people are supposedly free to use a term or a name assuming it’s in good faith, and on the other, people are restricted because someone else owns that name.

What does this mean, then? WordPress is getting even bigger than it is. It’s like Google, which has also recently been having issues with people using the term “google” as a generic verb to denote “searching on the Internet.” Yes, it’s flattering that your name has been incorporated into daily language as a verb. But if people are using that to identify something generic (and yes, even your competition), then that can be bad. Imagine saying “I’m going to google for some information on Yahoo!” That can be bad.

If it’s any consolation, Matt has stated that he’s only against spam blogs and spam sites that use the term WordPress. Others that use it legitimately (say, to identify a plugin for WP, or to offer a service that adds value to WP) are safe. He has also been helping owners of sites with “wordpress” on their URLs to buy new domains that don’t violate the terms of use of WordPress. Still, this is potentially hurtful to those people’s businesses. There’s good name recall and there’s existing readership that might be lost.

Will this get messy? Probably not. There’s community value in WordPress. Even my first statement cleared it all up. Don’t we all love WordPress? Well, probably the guys from SixApart or Blogger don’t, but still, WP is the blogging software of choice for a lot of people today.

[tags]wordpress, blogs, blogging, trademark, fair use[/tags]

Managing an online service can be quite complicated. Not only do you have to think of the costs of bandwidth, servers, utilities, and even administrative overhead, you also have to worry about the legal implications. For instance, if you were to run your own blog or website, it would be your responsibility to make sure you do not post illegal or potentially damaging stuff on your site. But if you host millions of people, and let them have the power to put up just about anything they can then you can expect complaints to come left and right.

Take for instance MySpace and YouTube. These pillars of the user-driven content world have been snapped up by the big fish—in this case News Corp. and Google, Inc.—for billions of dollars. These allow multimedia uploads from just about any person who signs up for an account. MySpace was founded on the creators’ love for the indie music scene. YouTube, meanwhile, was designed from ground up for sharing of user-contributed videos (but the tendency is for users to upload television shows and movie clips).

However, with this is the very high likelihood that users will upload their favorite songs and videos that are copyrighted, and this is tantamount to illegal music and video sharing. It’s very easy to just rip all the songs of your entire CD collection into MP3 and upload them to your MySpace account. Before, there was no one stopping you from doing that, and MySpace would only remove your illegally-shared files upon request from the artists (or any authority). But now, we have news that they’re changing that.

MySpace’s policy, like that of YouTube, has been to remove copyrighted material when requested to, but the move to harness Gracenote’s technology marks a more active role in preventing copyright violations. It is tied to the news that MySpace.com will soon start selling songs from unsigned bands, with an eye toward eventually marketing songs from major record companies as well.

MySpace is thinking of banning the upload of copyrighted material outright, even as you upload them. While I think this is a noble effort to curb online piracy, I don’t think it will work in the long run. It seems like MySpace is kissing up to the music industry bigwigs and sacrificing their users in the process. And with user-driven sites like MySpace, it’s all about the users. If you start pissing off your clientèle by starting to become too strict, then you risk losing the best thing about your business, and that is its popularity and the freedom enjoyed by the users.

So can you really prevent copyrighted media from being uploaded and shared online? I’d say yes. But it would be a bit nasty.

[tags]copyright, news, myspace, youtube, video, music, file sharing, mp3, intellectual property[/tags]

We’ve been getting a series of complaint emails from Gawker over our Gaming Blog, in terms of the domain name “Kotaku” and, thus far, no agreement or settlement has been reached. When you look into it, there is some interesting case history in terms of trademarks vs. domain names. To see an excellent legal summary, visit the Harvard Law website.

One good case example, some time ago, was between eToy.com vs. eToys.com as it is, like many of these cases, a David and Goliath story. And, perhaps surprisingly, in most instances- the courts have favored David. If one searches through the Domain Name Handbook Dispute Diaries – most courts have found that the registering of a domain is simply the taking of an opportunity, unless the registrant is falsely posing as the company with a specifically registered trademark. In other words, based on case history, it’s an extremely cumbersome case to prove and the bar is set high.

And this is in the United States, where anti-cybersquatting laws have been passed by Congress and work in conjunction with ICANN’s UDRP. But when one starts getting into the foreign laws and less established TLDs- it becomes a maze almost impossible to unravel.

Let us deal with ICANN’s Domain Name Dispute Resolution Policies-:

The policy provides that all domain name registrants must submit to mandatory administrative proceedings if:

1. the domain name is identical or confusingly similar to a trademark in which the complainant has rights; and

2. the domain name holder has no rights or legitimate interests in the domain name; and

3. the domain name has been registered and is being used in bad faith.

There are four factors in the policy listed as evidence of bad faith registration and use:

1. circumstances indicating that the primary purpose is to sell or transfer the name to the trademark owner or competitor for consideration in excess of direct costs related to the domain name; or

2. history of registration in order to prevent the IP owner from reflecting their mark in a domain name; or

3. registration primarily for the purpose of disrupting the business of a competitor; or

4. intentional attempts to attract users to your site for commercial gain, by creating a likelihood of confusion as to source or endorsement.

If any of these apply, then the registration is in bad faith. However, if the domain name holder has a legitimate interest, then a trademark holder will not win under the UDRP. The policy lists 3 factors as evidence of legitimate interests:

1. use or demonstrable preparations to use the name in a bona fide offering of goods or services before notification of dispute; or

2. if the entity or person was commonly known by the name even if it has no trademark rights; or

3. legitimate, noncommercial or fair use of domain name without intent to misleadingly divert consumers or tarnish the mark at issue.

But here is the problem as pointed out by Harvard Law....

There is some question regarding the enforceability of the registrar agreements both inside and outside the United States. These agreements could be considered contracts of adhesion since registrants have no other options for registering a name in a gTLD.

In our case, the name “Kotaku” is actually in honor of a 17th/18th Century Japanese artist and we do have declared interests outside of the US. For example, see our Japan Blog and major Japanese website. Does a US trademark supercede a Japanese trademark or patent?

Furthermore, the UDRP requires not only that the domain name was registered in bad faith, but that it is being used in bad faith as well. Nowhere in our Gaming Blog do we claim to be Kotaku.com or anything to do with the “brand” developed under that trademark, by Gawker.

The fact is that, as “Goliath“, Gawker had ample opportunity to register the .net version of Kotaku.com. That they chose not to is their own oversight. It should not be incumbent on us, “David”, to lie down and be trampled on- just to protect the interests of those who have been remiss in their online business strategies. Are they seriously saying that by registering a trademark in the US, this gives them an immediate right to all ICANN domain names for that name? What a bargain that would make all trademark registrations!

By caving into demands that are beyond reasonable, one would open the door for corporations to be able to impose trademarks on a huge amount of words/phrases that might be otherwise considered as “generic” or part of the “public domain”. Should Johnsons have a trademark right over all ICANN domains for “Baby Shampoo“? The mind boggles…

This is not in any of our interests. Don’t the Goliaths have enough advantages already in the online marketplace?

And so, while we may lose this particular battle..it will not be without a fight.

[tags]gawker,kotaku,domain name disputes,icann,udrp,cybersquatting,etoys,harvard,gaming,japan[/tags]

The Recording Industry Association of America (RIAA) is the epitome of the copyright police in the western world. Imagine having the tenacity to uphold copyright strictly even if it meant suing 90-year old grandmas and 13-year old schoolgirls for downloading music free online (even if it’s sometimes not their fault). Imagine employing bully tactics even to the extent of suing a family that doesn’t even own a computer!

The RIAA has been hailed as the music mafia. But they’re here to stay, and it’s quite hard to fight the 900 pound gorilla with brawn. It seems, though, that the RIAA is flinching from its original stance that all free music downloads are bad. They’re finally willing to admit that people who share music online must be great music fans and probably a great market, too!

[I]t’s almost funny to see the Wall Street Journal with an article about how record labels are finally admitting that file sharing is a way to market to the biggest music fans (found via Broadband Reports). While it’s laughable that it would take the industry this long to even venture to admit what was obvious to most everyone else, it is a tiny step in the right direction. Combined with the recent admissions that DRM can be annoying, that you can make money without DRM and that you have to compete with free content, it seems like the entertainment industry is finally starting to put together all the little pieces that lots of other folks tried to tell them seven years ago.

And this is rightly so. I would tend to think the RIAA is still living in the stone age with how it views business. What can we expect from the same kind of people who opposed VCRs due to fears of movie piracy (that was the RIAA’s cousin, the MPAA)?

In fact, many in the music and recording industry—particularly the independent artists—are now turning to alternative business models, which take into consideration the popularty of online music sharing. Remember MySpace? This social networking site, which was bought by News Corp for a whopping $580 million (not as whopping as Google’s $1.65 billion purchase of YouTube, but still a big amount!) last year, started out as a place for new, unsigned bands to share their music. And it has proven to be popular. MySpace is said to be the site with the most traffic lately. And it would make sense for people in the music business to market their stuff on such a site. After all, if you’re a relatively unknown band, what chances do you have in competing with the big names that have contracts with the big record labels using the traditional methods?

As for the business model? I think free is the operative word here. While a lot of people would be willing to pay 99 cents per tune, a helluva lot more would be going for something free. And just how can one earn from free? Easy. There are ads and sponsorhips. And for artists, I think making one’s work available online would be a great marketing tool for getting signed on to gigs, concerts and other potentially revenue-generating activities.

Sure, a lot of sites that offer legal music downloads are popular—like iTunes and Yahoo! Music. But I think pretty soon, the world will be seeing free legal music downloads as the norm.

[tags]copyright, DRM, RIAA, music, downloading[/tags]