The Luck of the Draw

jack of hearts The Luck of the DrawWhen the same cards appeared several times in a row, it merely seemed like lady luck was smiling down from on high. Since part of  gambling’s allure is based on an unpredictable marriage of luck, superstition, calculated odds, and the myth of the unbeatable system, nobody paid much attention when happy go lucky Joe won seven hands in a row. It’s known to happen from time to time, so no one blinked an eye.

But when the players at the baccarat table at the Golden Nugget began seeing the same sequence of cards over and over and over and over and over again, they crossed their hearts and raised their bets – from $10 to $5,000 a hand.

Forty one consecutive winning hands later, they had accumulated more than $1.5 million in winnings, and were surrounded by casino security convinced they had cheated but unable to prove it. In a lawsuit against a Kansas City playing card manufacturer, the casino contends the cards had never been shuffled, despite the manufacturer’s promise that every deck would be pre-shuffled and ready to go.

The Golden Nugget incident was the latest instance of unshuffled cards causing heartache for Atlantic City casinos. Last year, the Trump Taj Mahal used unshuffled baccarat cards for almost four hours before — shocker!! — realizing something was wrong. (Note to self: “Why are all these people winning again?”).

Trump resolved its problems in part by taking a leaf out of the TV show and screaming “You’re fired!!” to nine of its employees. However, given the casino’s substantial losses, its doubtful that giving a handful of unobservant employees a vitriolic savaging was particularly useful or satisfying. Atlantic City may still be a place where dreams are made and hopeless romantics throw their life savings away one silver dollar at a time, but it’s never been much of a place to care about a tongue-lashing.

As for the players themselves, after a few trials and travails and (alleged) unwarranted invasions of their privacy, it looks like they’re keeping the money. Apparently lady luck was smiling down on them after all.

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Hey, Don’t Bogart My Trademark!

 Hey, Dont Bogart My Trademark!It is undisputed that Bogart liked his Burberry trenchcoat.

No, wait, I take that back.

He loved his Burberry trenchcoat.

In fact, he loved it so much that he actually wore the same coat in the two films that still serve as templates for how to bring hardboiled detective noir to the silver screen — Dashiell Hammett’s The Maltese Falcon (1941) and Raymond Chandler’s The Big Sleep (1946).

No surveillance work is required to know that Bogart also threw on his Burberry in Casablanca (1942), To Have and Have Not (1944), Dark Passage (1947), Tokyo Joe (1949) and Sirocco (1951). My sources in IMDB’s research department also tell me that Bogart was hell-bent on wearing his trenchcoat in The Caine Mutiny (1954), but those scenes never made it through the final cut.

Thus, it should come as no surprise to anyone that, when Facebook made Timeline mandatory for Pages last month, some marketing whiz realized how cool it would be to populate Burberry’s timeline with photographs of famous celebrities kitted out in historical Burberry garb. Beginning with candid shots of WWI pilots in leather bomber jackets, the timeline gracefully travels from the golden age of the 20s, rolls through the power years of Hollywood’s original icons, and then proceeds to bombard us with modern day marketing — and ruin the whole effect — just as we were thinking how cool Burberry was.

Given Bogart’s iconic role as Burberry model, it is no surprise to see his face on the timeline along with the likes of Tyrone Power, but unfortunately not everyone thought it was quite as cool as I did. Despite the fact that Burberry had a license to use the photograph of Bogart (i.e., licensed from the movie studios), the trustees of Bogart’s estate got it into their heads that Burberry should have sought permission to use Bogart’s image in this fashion, and sued Burberry in Los Angeles state court for trademark infringement and violation of the right of publicity.

“This is such an incredibly disappointing and disrespectful action by Burberry,” said Stephen Bogart, son of the Hollywood legend.  “Apparently they believe a shoe company can advertise the fact that Brad Pitt wore its brand while jogging down the street, or a beverage company can claim George Clooney drank its product in one of his movies – all without even asking, much less obtaining, the actors’ permission.”

In response, Burberry filed an action for declaratory relief in New York, where the right of publicity does not survive a person’s death (unlike California). The Complaint asserts that Burberry’s use of the photograph is not intended to spark the sale of its products, and is not advertising, but rather part of the history of the men who have worn Burberry since the company’s inception. As defenses go, this is at least plausible (and may constitute fair use), although the counterargument that Burberry’s use of famous icons is intrinsically self-interested is equally compelling. Given the fact that movie stars are routinely paid by designers to sit in the front row at London’s Fashion Week, it’s a sure bet that Burberry keenly appreciates how Bogart’s continued association with  the company enhances its image.

In an odd quirk of fate, after news of the lawsuits hit the press, Burberry’s Facebook page went viral, and the company now has 12 million new fans. In some alternative universe, I can hear Sam Spade and Philip Marlowe laughing to themselves as they turn down the brims of their fedoras and fade into the shadows, their trenchcoats blowing behind them like wisps of night.

Update:   Burberry and the Bogart heirs settled their claims confidentially on July 31, 2012.

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Owning Copyright

Who Is Sold 300x214 Owning CopyrightToday the European Court of Justice ruled that software is like a book. Once you buy it, you can lend it, you can resell it, you can light it on fire, you can lose it, you can laugh when it crashes your computer, and you can transfer it electronically. Although the Court was far too recondite to articulate the true implication of their ruling, the upshot really is that – at least in the EU – if you buy software, you “own” it.

What does this mean for practical purposes?

It means you (the European you, anyway) can now resell not only your CDs, DVDs, Sims Games, WoW, and other trifles on eBay, you can also sell: (a) your old version of Adobe Reader Pro; (b) your installation disk for Snow Leopard; (c) the 5-disk Rosetta Stone package you bought when you thought you would learn French; (d) that novel writing program you got for Christmas but could never really get into; (e) your iPod downloads; (f) your e-books; and (f) all the other software whose “clickwrap” licenses forbade you from ever even thinking about transferring it to someone else once you got bored, tired, irritated, or simply upgraded to a system which was no longer compatible with the product.

For those of you who thought you could blithely sell these things anyway (i.e., prior to this ruling), please take note of the fact that you could not. If you did, you did so at your peril.

The current rule in the United States is contrary to the European rule, with the vast majority of the courts to have considered the issue holding that software is something that is “licensed” rather than “owned,” and that the First Sale Doctrine – which provides that copyright holders may only control and impose limits on the “first sale” of their goods – does not apply to software. (See, e.g., Vernor v. Autodesk).

What does the new law mean for intellectual property, apart from the obvious fact that the goal of having uniform copyright laws remains elusive? Well, it could mean that it is now legal for a United States citizen to buy or resell used software in the EU, or that it is legal to download it from an EU server.

Will Oracle sue a U.S. citizen for doing so? Probably.

Will the United States government take the position that the EU rule does not apply to products shipped to the U.S. or downloaded to any U.S. server? Maybe. The federales have been known to get fairly aggressive with offshore companies which may or may not abide by United States copyright laws and may or may not incur liability as a result  (see, e.g.,  Rojadirecta.org and/or Megaupload).

The only sure bet is that the ruling — whether you like it, hate it, agree or disagree —  is going to create turmoil in the market for years to come. So prepare yourself. As the Chinese are wont to say, in chaos lies opportunity.

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First Sale!! First Sale!!

Who buys books1 300x250 First Sale!! First Sale!!The United States Supreme Court is soon to hear the case of Kirtsaeng v. John Wiley & Sons, Inc., which involves the application of the copyright laws to the time-honored American tradition of buying cheap and selling dear.

The facts in Kirtsaeng are straightforward. A foreign graduate student studying mathematics at USC realizes one day that he can buy educational textbooks in his home country – in English – at a fraction of the price the publisher is selling them for in the United States. He decides to capitalize on this price disparity by having his friends and relatives back home buy up a large number of the textbooks for him, which he then proceeds to sell on eBay (to U.S. students) as a means of financing his education. His project succeeds beyond his wildest dreams, and by some accounts (e.g., trial testimony) Kirtsaeng manages to pocket $900,000 before the publisher catches wind of what is going on and files suit to enjoin this gross application of the “buy low, sell high” principle.

The theory behind the publisher’s lawsuit is that Kirtsaeng has violated Section 602(a) of the Copyright Act, which provides in pertinent part that:

Importation into the United States, without the authority of the owner of copyright under this title, of copies . . .  of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies [of the work] [subject to certain exceptions not relevant here].

In essence, Wiley is asserting that it may sell the same textbook in Singapore for $10 that it sells in the United States for $50, and that no enterprising U.S. student should ever be permitted to go buy in bulk in Singapore and give his fellow students a price break. The tension created by the argument is the typical one heard when artificial regional (or international) price barriers have been erected:  i.e., the publisher claims that it is entitled to price as it sees fit in every separate jurisdiction according to what the market will bear, and the end-users claim that this is simple price-gouging. While the argument is not quite as simplistic as that – particularly since Section 109(a) of the Copyright Act allows the owner of a copy “lawfully made under this title” to resell it without the copyright holder’s permission – Wiley’s position has far-reaching implications that it has glossed over, and that we would be foolish to ignore in this increasingly international internet age, where consumers can order virtually anything, from anywhere, at the click of a button.

Let us begin with the basic premise that most Americans like to buy things cheap. We are a nation of coupon clippers and sales shoppers, descending like starving models on Nordstrom the day after Thanksgiving and ruthlessly scouring the Gap for deals at our local mall. Our culture has given rise to Costco, Wal-Mart, and Home Depot, where buying in bulk and do-it-yourself are de facto credos of the enlightened self-enabled. In a nation of consumers, we have a plethora of websites dedicated to finding the best deals on everything, from travel (Expedia) to shoes (Zappos) to golf (Golfnow) to books (Amazon), and on and on as far as the mind can see. If you can conceive of a mechanism by which something can be compared, it is entirely likely that someone has developed a website around the concept. The present economic climate has resulted in the creation of applications such as GasBuddy, so that we can locate the cheapest gas within a five-mile radius, and PriceGrabber, so that we can comparison shop for Barbie dolls, bar mitzvahs and barbeques, among other things.

This is unsurprising, and is nothing more than the simple recognition that capitalism rewards those who understand how to save money. It is a hallmark of industry to be thrifty, to be frugal, and to make the best use of one’s capital. Companies move labor offshore and wealthy Americans travel to Germany to buy BMWs for exactly the same reason:  to save money. And it is no great secret that everyone – rich, poor, or in between – likes to save money.

The case of Kirtsaeng v. Wiley is more than the simple vindication of the right to profit, however; it is more than a dispute over whether Kirtsaeng has unfairly profited at Wiley’s expense, or whether Wiley has artificially inflated prices to increase its own profits. The Supreme Court case concerns the “first-sale” doctrine in copyright law. In simple terms, the doctrine means that you can buy and sell the things you purchase. Even if someone has copyright over some piece of what you own, you can sell it without permission from the copyright holder because the copyright holder can only control the “first-sale.”

To use a classic example, suppose you buy Michael Connelly’s murder mystery, The Drop. Connelly owns the copyright to the book, so you can’t make a copy of it, but you own the book, and can sell your copy (or give it away) to anyone you like. You can donate it to the library, sell it on Amazon’s reseller page, or on eBay, or wander over to your local used bookstore and see if they want to take it off your hands. Since you bought a copy of the book, you can sell your copy to anyone who will pay you for it.

But the first sale rule doesn’t just make it possible to sell your books and other creative works (e.g., CDs, DVDs, art). In 1998, the Supreme Court ruled that the first-sale doctrine applies to any product manufactured and sold in the United States which bears copyrighted material (e.g., a label), even if the first sale by the copyright holder was abroad and the item was imported back into the United States. See Quality King v. L’anza Research Int’l, 523 U.S. 135 (1998).

The proper scope and application of the rule, however, has been in flux since 2010, when an equally divided Supreme Court affirmed the Ninth Circuit’s application of the “first-sale” doctrine in Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982, 990 (9th Cir. 2008). That decision, while not binding outside of the Ninth Circuit, is controversial because the appellate court found that the first sale doctrine did not apply to foreign-made goods, and barred Costco from buying Omega watches in the Philippines as a means of undercutting Omega’s preferred pricing in the United States.

With the Supreme Court’s decision to review Kirtsaeng, we now have the prospect of much-needed clarity, as under the Ninth Circuit’s current interpretation of the first sale doctrine, an argument could be made that you cannot re-sell that car you bought in Germany and imported to the U.S., or that book you bought in Paris when you were trying to get out of the rain, or that CD by your favorite band that you bought legally in the UK but was never released here. The implications for our culture if this is the rule are wide-ranging, as it creates a perverse incentive for manufacturers to take all production offshore, since their permission would have to be sought (and presumably a fee paid) for any re-sale of those commodities we commonly refer to as our own. Without raising the spectre of the boy who cried wolf, this would be an absurd result to impose on the nation, and contrary to our basic notions of what it means to own property – whether it be watches, textbooks, or anything at all.

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Creative Copyrights

Creative Commons qthomasbower1 Creative Copyrights When Larry Lessig came up with the idea for the Creative Commons, he intended to create an alternative licensing system that would solve the problems with copyright registration in the United States. While admirable, what he did in some respects served to enshrine the current copyright regime as an accepted monolith and forced us to accommodate that system. That is because the Creative Commons copyright starts with a creator being vested with the full rights, powers, and privileges gained by virtue of the existing copyright laws, and then voluntarily divesting himself of some of those rights and privileges — a winnowing away — to grant the end-users a license that is  less restrictive that that envisioned by the current iteration of the Copyright Act.

Many lauded the vision behind the Creative Commons project as Open Source for artists, knowing that creation is built on a foundation of what came before, and if what came before is locked up in a vault for 70 years after the death of its creator then our modern poets, novelists, musicians and artists of all stripes are hampered from using any of their predecessors’ work for a period which encompasses their entire lifetimes. The Creative Commons alternative shed light through the prison window, letting the more liberal of our artists offer their work to be used by others on such liberal terms as “free,” or “free, with attribution,” or “free, but not for commercial use.” In fact, if you can think of a situation in which some bundle of rights is granted to the public in connection with a work, then you can probably find a Creative Commons license somewhere that fits it.

The Creative Commons movement is obviously a close relative of the Copyleft movement, which grants a free license for use on the condition that all derivative work remain free as well (i.e., if you use my stuff for free, then your stuff has to be free too). The idea behind the movements centers on the notion that the public has a paramount interest in access to knowledge and the ability to use that knowledge to further the interests of humanity. While this may sound vaguely pretentious, the notion of the Commons is as old as our society, and is the reason we still have such things as Golden Gate Park, Yellowstone, the Grand Canyon, the Appalachian Trial, public beaches, the National Museum, and other treasures. The Commons includes things that are deemed to be “ours” as a people, and that cannot and should not be appropriated by any person for their own personal use and profit. As with parks, the broad category of “human knowledge” has long been held to belong to us, and not to any corporate entity or oligarch. Thus, you can go to your public library and teach yourself physics from Newtonian first principles (in theory, assuming your library is open anymore), or you can do the same thing online with texts that are in the public domain or through an Open Learning course (like the edX program jointly sponsored by Harvard and MIT).

You might ask why a more relaxed copyright scheme is preferable to what we currently have, since we seem to muddle along well enough with things as they are. Art is being created, after all, books are still being written, choreographers are still indulging their fantasies of becoming the next Martha Graham — so why does Creative Commons matter? The answer to that lies in the question itself — i.e., why should we just muddle along? Why should we change the copyright laws in a way that serves corporate interests at the expense of artists?  When the latest copyright scheme — the Sonny Bono Copyright Extension Act (facetiously known as the Mickey Mouse Protection Act) —  was pushed through Congress and extended copyright by some 20 additional years, the reaction in the intellectual property community was a resounding “What??!!! Are you kidding me??” Copyright was originally intended only to last 14 years as an incentive for creators to continue to create, but of late it has  grown interminably. Its tentacles have stretched until we are forced to bow to such monstrous notions as The Happy Birthday Song being protected by copyright almost 100 years after its creation, generating some $2MM in annual revenue for the heirs of the heirs of the heirs of the original creator. The current version of our copyright laws is not a tool for enabling the transmission of knowledge, or an incentive to spark creative genius, but a weapon to extract fees from users and stifle creativity itself. In a world where 500 years ago the poets already lamented that there was nothing new under the sun, narrowing their rights to exercise poetic license seems plainly absurd.

What Creative Commons attempts to do is to loosen the stranglehold of copyright and give artists some measure of access to work from our current age without being crippled by licensing fees or facing copyright infringement lawsuits for sampling a few bars of music. It seeks to expand the realm of knowledge, rather than contract it. While it is perhaps a stepping stone to progress rather than the real progress I would like to see (i.e., a modification of existing law), it is improvement nonetheless.

It may not be perfect, but we should not deride improvement for not achieving perfection.

88x31 Creative Copyrights
This work by Robert Scott Lawrence is licensed under a Creative Commons Attribution 3.0 Unported License.

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Borrowing Genius

Olivier Hamlet Borrowing GeniusGenerally, no one tries to plagiarize Shakespeare because – among other reasons – getting caught is a foregone conclusion. But occasionally an intemperate, hot-blooded youth will think a little borrowing and re-mixing is simply fair play, and appropriate passages wholesale from the canon that would make your hair stand on end.

Some might say that there is neither rhyme nor reason to the rule of plagiarism when the great Bard himself (whether he be William Shakespeare, Edward de Vere, or some other creature) was among the most liberal of “borrowers” of his time, prone even in the late 1500s to call upon heaven to turn a blind eye to the plotlines and dialogue he took from Italian drama and refashioned into elegiac English pentameter. The gods favored Shakespeare for his genius, just as we favor our own homegrown talents. Even after all these long centuries, love is still blind to the transgressions of those we hold dear.

The question of plagiarism is not nearly as much of a wild goose chase as it was in what some refer to as the Golden Ages of literature. Though those may have been better days (just as we may have seen better days), nowadays we can parse a script for plagiarism with the push of a button, and publishers, universities, scholars and even high schools have now invested in software that vets essays for misappropriations from Wikipedia and the ubiquitous internet. There is even software that catches paraphrasing of plagiarized text, so rewriting passages by changing tense or the names of characters, or slightly modifying the dialogue from a scene will almost invariably be found out sooner or later.

But is this demand for wholly “new” material really too much of a good thing? Artists have always been influenced by what they read and saw, and style and phrasing, plot and dialogue are absorbed almost by osmosis, so the occasional similarity or recreation of a long-forgotten passage is not always conscious plagiarism. And where it is a conscious appropriation, there is nothing necessarily inappropriate in having copied the material.

For example, my recent post, Plagiarizing Shakespeare, takes individual lines from Othello, The Tempest, Merry Wives of Windsor, Cymbeline, The Merchant of Venice, Hamlet, Comedy of Errors, As You Like It, Timon of Athens, and Romeo and Juliet, and rearranges them to do something entirely different with the language. I am not writing a play, or fashioning a poem, but reusing language from 500 years ago to make something new, weaving in transitional phrases and other original content, capping it off with a misquoted line from George Meredith, and creating a pastiche that is something entirely new.

Would this be deemed fair use under a modern copyright analysis? I would argue strongly that it is, for copyright protects the exact phrasing of the work, not a snippet here and a snippet there snatched from random texts and rearranged to suit their new creator. An enterprising artist could create an entirely new play using lines lifted from 100 other plays, and the work would be new, original, his – not copyright infringement.

In this modern day and age of litigiousness we fear to borrow, since our idea of what is fair will not necessarily jibe with that of the copyright holder, or with that of any judge deciding the issue of infringement. But given our penchant for sacrificing the old in favor of the new – indeed, what some would say is a preoccupation with newness at the expense of almost anything else, including virtue – it is unsurprising that some dare to fly where others fear to tread. The re-mixers, samplers, mash-up artists and liberal borrowers are not only a force to be reckoned with but also a force for good. For there can be no doubt that we lose beautiful language, apt turns of phrase and broad flights of fancy if we are obliged to leave them untouched in dusty library tomes, where they will die unseen by a generation that demands that its content be hot off the press, fresh, newborn like Adam on the first day of creation.

Truth be told, borrowing is an essential part of the creative process, transforming the old into the new, making matter out of dust, gold from glitter, a silk purse out of a sow’s ear. We would do well to remember that appropriation is neither misappropriation nor misattribution, but sometimes just another form of genius.

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Shakespeare Veritas

Shakespeare Plagiarism 300x171 Shakespeare VeritasO gracious lady,

Since I received command to do this business I have not slept one wink. If you asked it of me, I could a tale unfold, whose lightest word would harrow up thy soul, freeze thy blood, make thy two eyes, like stars, start from their spheres, thy knotted and combined locks to part and each particular hair to stand on end, like quills upon the fretful porcupine.

At thy instance I ran from pillar to post, crossed channel and ocean wide, and was none the wiser for my travails. Was there ever any man thus beaten out of season, when in the why and the wherefore is neither rhyme nor reason? But love is blind and lovers cannot see the pretty follies that themselves commit. Yes, for a score of kingdoms you could wrangle, and I would call it fair play.

Can one desire too much of a good thing? I would see thee again, though we have seen better days. Put out thy hands, and light me a beacon for home. Send me a sign to come, and not one word more. I cannot bear this parting, so rich in sorrow, so protracted, so delicate, so poor.

The bell hath struck twelve; the minute draws on. Now, hot blooded Gods assist me! I yearn for the haven of thy heart. If thy wits run the wild goose chase, I am done, but thou hast more wits than I, and can see this through to its foregone conclusion. Though it be but a dream, remember in our shipwrecked days there was an hour when eve was left to us, and hushed we sat as lovers to whom time whispered.

Call me home, my lady, that we two can be as one.

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