Google Goes Generic?*

Legal Blog Watch has a brief post about the threat of the Google trademark passing into common usage, or going generic. There’s nothing Google can do about us regular folks using Google as a verb–“I Googled that guy and he turned out to be a creep”–or as a substitute for the noun “search.” Those are a function of extreme brand penetration. What somewhat more troublesome for Google is generic usage by commercial actors such as the media. The New York Times ran a story this week about how more people are “Googling themselves.” (A pointless pastime with a name like David Randall–there may only be one of me but there are too many of us.) For at least the past couple of years Google has reminded users not to engage in this type of usage, and a well-placed cease and desist letter to The Times or other media outlet will help curb the practice. It may be counterintuitive given the ubiquity of Internet publication, but I think there is less danger of a mark passing into generic usage now than in times past. Companies are more keenly aware of the value of their brands, devote more resources to protecting them, and because of the Internet can track troublesome or infringing uses more readily and come down on malefactors like grim death. It’s the same problem brands like Xerox -one photocopies a document, one does not Xerox it–and Kleenex–as you were about to sneeze when was the last time you shouted “pass me a facial tissue!”–have faced. The key is to manage common usage so it never gets to the point where competitors use the erstwhile brand to describe their own products.

*A lifetime subscription to anyone who identifies the movie title echoed by this tagline.

Today’s pirate is tomorrow’s CEO*

Speaking of piracy, last week David Pogue wrote in the New York Times about The Generational Divide in Copyright Morality. He related how during talks he walks audiences down a continuum of activities that clearly do not infringe copyright at the start and then go over a line where many or most listeners believe the activity does infringe copyright. He tried this talk with an audience of 500 college students. None believed that the activities at the most problematic end of his continuum to infringe copyright. Pogue continues:

Finally, with mock exasperation, I said, “O.K., let’s try one that’s a little less complicated: You want a movie or an album. You don’t want to pay for it. So you download it.”

There it was: the bald-faced, worst-case example, without any nuance or mitigating factors whatsoever.

“Who thinks that might be wrong?”

Two hands out of 500.

He states “to see this vivid demonstration of the generational divide, in person, blew me away.”

I’ve been teaching college students for a decade or so, coinciding with the rise of Napster and era of music-sharing. At the beginning I did not believe it would become a widespread phenomenon. Now, hundreds of conversations later, I don’t see how it will ever go away. I was blown away when a student in my first Internet law course in 2001 baldly stated “I don’t see why I would ever pay for music again for the rest of my life.” Since then our relationship with the music industry has changed irrevocably. There is no going back. The question is what comes next.

*or CFO or corporate lawyer or state prosecutor or professor of ethics

Antigua vs the U.S.

I read about this WTO ruling the other day (In Trade Ruling, Antigua Wins a Right to Piracy) and today a reader sent me a link to another article (Antigua wins modest sanctions in U.S. gambling cases). Briefly, the background is this. Gambling, including Internet gambling, is legal in Antigua. The U.S. prosecuted the owners of Antiguan sites in U.S. courts under the Wire Act sending one, Jay Cohen to prison, for 21 months after he voluntarily returned to the United States. Cohen thought that the U.S. laws didn’t apply to online gambling hosted in Antigua and said to himself “”No judge is going to let this stand.” (See Paul Blustein, “Against All Odds,” The Washington Post, 4-Aug-06 p. D1). Instigated by Cohen upon his release from prison Antigua filed a trade complaint against the U.S. with the World Trade Organization. The U.S. argued that its prosecution of online gambling sites was necessary to protect public morals. Antigua countered that certain types of online gambling–on horse racing and some state lotteries–is legal in the U.S. and that its selective prosecution of Antiguan gambling sites violated the International trade principle of “national treatment,” i.e., the U.S. can’t limit trade in Antigua that is legal in the U.S. If the U.S. wants to prosecute Internet gambling in Antigua then it must ban all Internet gambling in the U.S. The WTO agreed with Antigua’s argument in 2004 and again, although less broadly, on appeal in 2006. The 2006 ruling was marked by simultaneous press releases from the U.S. and Antigua, each claiming “we won!” The question was what the WTO would do to enforce its ruling.

The WTO’s solution, described in these articles, is to allow Antigua to violate U.S. copyright and trademark laws up to a value of $21 million–which of course makes no sense at all. Antigua’s recourse for the U.S. government’s violation of International trade treaties is to pirate $21 million from the pockets of private companies. It’s as if, in an eminent domain case, a court agreed that the city didn’t pay you enough for taking your property and allowed you to loot your neighbor’s property in compensation. The ruling will be impossible to enforce. How should one value acts of piracy? Using the RIAA’s math ($150,000 per incident of copyright infringement) Antigua would even the score by downloading 140 Celine Dion songs that would cost $138.60 on iTunes. As my correspondent said “I just don’t understand why copyright holders would be the ones who are more or less punished because of a Government decision. It seems the WTO thinks two wrongs make a right.”


The most striking difference between Maine and home is the quiet. In mid-summer the lake is quiet, save for the occasional ski boat or song drifting from one of the camps at twilight. In the winter, with snow falling, “quiet” is inadequate. It’s a sound desert. One hears the ice moaning and settling, the hushed “thwumpff” off snow falling from a pine bough, the crack of a log burning in the fireplace. Everyone else left on the morning after Christmas. Working all afternoon at the computer, the only sound the rapid-fire tat-tat-tat of the keyboard, the silence was deafening. I put on a jazz station to fill the void. Now, two days later, the silence is refreshing as the crisp air and comforting as the smell of wood smoke.


I’m in Maine this week with the dogs, enjoying the solitude. I’ve been working most of the day. I needed a break so an hour ago I played fetch with the dogs–this time I threw and they retrieved–and went to the transfer station to get rid of the accumulated trash and recyclables. It’s a short drive and the snow that started earlier this afternoon made it especially picturesque. At the station I dumped the trash in the appropriate bins and chatted with Eric, the affable and quite competent transfer station agent. Eric, as he always does, had biscuits for the dogs and, as he always does, Eric handed them to me for feeding. Cleo and Chelsey don’t distinguish much between biscuits and fingers and in their eagerness they will take in everything attached to an item of food and sort it out later. As I was leaving Eric motioned for me to roll down my window. “Your sticker expires on the 31st. You’ll need a new one for next year.” “Thanks” I said. “Are the town offices open today?” He confirmed they were.

Driving there I noticed the lack of cars. I’d driven about 5 miles and seen no more than ten vehicles, including town trucks sanding the roads. I was savoring the lack of traffic, contrasting it with traffic at home, when I arrived at the town offices. I never mind going there. The ladies who work there–I’ve only seen women behind the counter–have always been helpful and efficient.

“What can I do for you?”

“I need a new Bulky Waste sticker.”

“Where do you live in town?” I gave her the local address. She entered something in a computer and looked at the screen for a while. Then she pulled a map out from under the counter, consulted it, and entered something else in the computer. Then she looked at me. “Who are you?”

“David Randall.” And as soon as she asked the question I knew I had a problem.

“That property is owned by a trust.”

I know that, of course, but I only think about it twice a year when I pay the real estate tax bill. I owned this property originally but four years ago we transferred it to a Qualified Personal Residence Trust–a QPRT. My wife, the estate planning lawyer, knows all about these legal techniques for reducing estate taxes. Owning this property in a QPRT is a good thing for our children when we get deposited in the bins of that great transfer station in the sky, but not a good thing for me today at town hall. Only the trustee has the legal authority to act as the owner, which means that she has to write a letter to town hall on behalf of the trust authorizing the town to issue a Lakes Region Bulky Waste Facility sticker to me so I can take out trash in 2008.

When I need to explain the difference between legal and beneficial ownership I’ll send students to this post. Beneficial ownership means the trash belongs to you; legal ownership means someone else controls what you can do with it.

Lists, official and unofficial

This morning, before the 2:00 PM release of the official Mitchell Report on use of performance-enhancing substances in baseball, an email circulated with a purported list of dirty players. Some of the names on the unofficial list did not appear in the Mitchell Report, including Jason Varitek, Nomar Garciappara, Johnny Damon, Carl Everett, Rich Garces, Trot Nixon, Jose Offerman, and Julian Tavarez. A global search of current and former Red Sox on the unofficial list reveals that of its 77 names at least eight–over ten percent–of the players do not appear in Mitchell’s report. (ESPN prepared a list of those named in the official report.)

What’s up with that? Who propagated this unofficial list? How many others does it name erroneously? It’s hard to understand how this list could be so wrong if it was assembled in good faith, which suggests it wasn’t. So what’s the story?

Law’s toll

I’ve posted about the legal profession a few times in the past year, focusing on economics for the most part. The personal cost of a legal career does not received the same attention, which is why I recommend Even Lawyers Get the Blues: Opening Up About Depression from yesterday’s Wall Street Journal (subscription required). The money quotation:

That lawyers are among the most miserable of men — and women — is well-known. Some 19% of lawyers suffer depression at any given time, compared with 6.7% of the population as a whole . . . one in five lawyers is a problem drinker, twice the national rate. Escalating billable-hours quotas fuel chronic overload, and the ceaseless deadlines and adversarial nature of the work feed anxiety. Some 19% of associate attorneys quit law firms every year, research shows.

Networking for $

A few days after Mark Zuckerberg apologized for how Facebook handled the rollout of its Beacon and Social Ads programs–“We’ve made a lot of mistakes building this feature, but we’ve made even more with how we’ve handled them. We simply did a bad job with this release, and I apologize for it” (Wall Street Journal)–Facebook ads are in the news again. Using a service called Weblo Facebook members are placing ads on their own profile pages, their value determined “based on variables like how many friends they have in their social networks, and, thus, how many people will likely see ads on their pages.” Facebook’s terms of use prohibit such ads because, according to its chief privacy officer, “Facebook does not want people‚Äôs profile pages to become cluttered.” That’s disingenuous. My modest Facebook profile page, which features little personal information, no news feed, one photo, and few message, contains nine separate content panes. One would barely notice if it contained an ad or two.

This isn’t about clutter and page design. As the Beacon and Social Ad programs demonstrate, Facebook wants to convert the wealth of users’ personal information into ad revenue for its own coffers. This is the conflict inherent in social networking sites: the site owner provides the platform, the users provide all of the content, so who has the right to the economic benefit in the aggregate content? There would be no content without the users, but the total value of the individual browsing histories and purchasing choices of 1,000,000 users is far less valuable than the aggregate of that information. Only Facebook is in the position to obtain the maximum value from that aggregated information. Facebook could share revenue with those users who choose to share their information and reduce the incentive for individual ads. It should start by being honest about the issue these ads raise.

Science 101

Following a discussion of employment law this week a student sent me this article: Biologist fired for beliefs, suit says. Woods Hole Oceanographic Institute fired postdoctoral researcher Nathaniel Abraham from his position in the biology lab because he believes “that the Bible presents a true account of human creation.” Abraham was hired to work on a project that “studies how aquatic animals respond to chemical contaminants by examining ‘. . . mechanisms from a comparative/evolutionary perspective,'” did not inform anyone that he does not believe the fundamental tenets of evolution underlying the research, and was fired when he disclosed this fact.

Is belief in evolution a bona fide occupational qualification for this position? Woods Hole fired him because of his religious beliefs, yet his beliefs are fundamentally incompatible with his job responsibilities. How could he even take such a job? It would be like an adherent to Christian Science–which treats illness through prayer rather than medicine–being trained as an oncologist. The article puts it this way: “‘A flight school hiring instructors wouldn’t ask whether they accepted that the earth was spherical; they would assume it. Similarly, Woods Hole would have assumed that someone hired to work in developmental biology would accept that evolution occurred. It’s part and parcel of the science these days.'”