Friday, November 15, 2013

Other Legal Podcasts To Check Out

I was going to make this list for a professor at my law school and I decided, why not share it with the world?

Here are the law podcasts I currently listen to. If you want to know about the sports podcasts or tech podcasts I listen to, I made lists for those this past summer (they have changed a bit, but not a ton).


More policy than law, but close enough for this list, I think.

Whether you're a conservative or not, you have to understand that these shows have a conservative bias. That means if you're representing a client, you'll have to think through if what they are saying is actually the law or what conservatives want to be the law. The Federalist Society also has event podcasts, a faculty division podcast and a SCOTUS podcast. If I had time, I'd listen to those too, but I don't have time. In fact, there are a LOT of legal podcasts out there, but I just don't have time to listen to them all!


Actually, I just added this, so I don't have anything to say about it.

Finnegan is one of the largest IP law firms in the world.

This is half law podcast and half commercial for their clients. I've obviously got it in my feeds, but if you're only an occasional podcast listener, I'd suggest finding other feeds.

They probably don't want to be associated with "Intellectual Property," but the whole idea that IP isn't, well, property, seems to be based on some natural law definition of property. Humans invented property and we can make property rights out of whatever we want. Of course, I will have multiple graduate degrees once I finish law school, so maybe the whole philosophical idea of property sits better with me than the general public. From a political perspective, maybe disassociating IP from real property makes sense, but it still seems odd to me. Real property is not without limits. There are easements. There are rules against restricting alienation. If land were some easy thing with no "fair use" or "exhaustion" rights, then we wouldn't need to spend a whole semester on it in law school. There'd be a clinic for learning how to file deeds or something, and that would be it. Obviously, I'm on a soap box, so let me get off of it and say that this is a great show. It's less legal focused now that Karen is no longer at the SFLC and is at the GNOME Foundation, but it's still great and there's still a lot of great legal content.

There's probably not a lot I can say about the podcast without talking about the organization, so I'll just say check them out. They are a great organization.

This is part of TWiT. It probably needs no introduction.

Unfortunately, this is no longer active, but I've still got a ton of content to go through in my feed, so it makes the list for now.

Sports Law (it's true that this has little to do with Music Manumit, but might as well keep them all in one place)

Strictly speaking, this is not a sports law podcast. However, they do delve into sports law issues on occasion. It's worth keeping in your feed if you're interested in policy issues in the beautiful game.

This is great if you're interested in international governance. It's not so great if you're interested in US law.

It doesn't come out often enough for me to have a lot to say about them, but I have listened to every episode and I still have it in my feed, so that should tell you something. username: DouglasAWh. username: douglasawh
stativerse: daw

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Thursday, October 24, 2013

The Rest of this Semester, Next Semester, and Beyond

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Expected Audience: Longtime Followers of the Blog

Well, it's the same title I gave over at Sportazine, but it's not the same content. Presumably, no one cares about TINT or Sports Law here.

The Rest of the Semester
There's about a month and a half left in the semester. I doubt Brian is going to get his trademark podcasts out. Unless I republish or rearrange my upcoming Sports Law and IP post from Sportazine, I doubt I'll be getting up anything else this semester. My courses are Patent Practice, Sports Law, Administrative Procedure, Technology Licensing, Writing for Practice and an Independent Study getting NEF up and running. Now, maybe there's something about copyright licensing from Tech Licensing or maybe there's something somewhere else, but there's nothing obvious. The Copyright Office is part of the Library of Congress, so it's not an executive agency. It's not really worth getting into, but basically I don't know that there's a lot. Now, the PTO handles trademarks and maybe there's something there, but at the end of the day, I probably just don't have time. Aside from classes and the NEF sites, I'm also working on a compilation with blocSonic and Living Libre, which will be out in December.

Next Semester
This is the main reason for me writing. The announcement is that I’ll be living in Baltimore and externing at Johns Hopkins University next semester in their Tech Transfer department. 
I don’t know what that means yet for the Lawcast. I don’t know what I’ll be at liberty to say due to attorney-client privilege, but I’ll bring as much to you as I can. I do know they are interested in having me do some copyright work, so there might be something I can bring to the blog. For now, don't expect anything next semester.

At this point, there's not much to say about beyond. For OSP and Sportazine, I can assume that once I get a job, output will be much like things were before going to law school. However, the Lawcast did not exist until midway through 1L year, so there's no precedent. Of course, I now have other people contributing to OSP and Sportazine, which was not the case before law school. There's still no one else really contributing to the Lawcast, though certainly Nick and Brian have in the past. My hope is that I get someone to write regularly on the Lawcast. If you think that person could be you, please let me know!

Get in Touch username: DouglasAWh. username: douglasawh
stativerse: daw

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Monday, August 19, 2013

12. What's Jazz Got To Do With It?


This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: People interested in Jazz and the Law

mp3 audio | ogg audio | torrent

This week on the Lawcast we have something a little bit different. If you want to hear more from Robert, check out The Jazzcast After Party or you can check out when Tom and I had him on the main Music Manumit show. Thanks, as always on the Jazzcast, to Ryno for twiddling the knobs!

The reason it took so long to get this out is that I had to go back and put in some of the tracks because one of the channels dropped out late in the show. I didn't go back and fix the audio when Robert and I were talking because I thought it would take too long, but I didn't think it was fair to the musicians for you not to hear both of their channels, in case they had anything recorded in stereo.

I regret not getting this out sooner, because I think this might be the format of the future. We'll see if I am even able to do the Lawcast next summer. Brian and I discussed a bit about the future of the Lawcast on the last episode, but I go into a bit more detail in the most recent article.

11. Brian Clark Discusses UNH and His Role at the Lawcast

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: Legal Recruiters, Prospective Law Students and UNH/FPLC Alums

mp3 audio | ogg audio | torrent | unedited video

Part of the reason I wanted to do this series is because I see other schools with podcasts (American, Chicago, Harvard, Yale, Virginia, etc.)

Brian has written 8 articles for the Lawcast.

Why don’t you tell us a little about yourself?
political science major in college

What are your plans this upcoming semester for the Lawcast?
part-time externship
Writing for Practice
Admin Pro

Copyright registration takes a while!

Have you thought about whether you’ll stick with the Lawcast after graduation?
Figure it out as you go!

What are some of your longterm goals in the law?
Stay in NH!
Start practicing business litigation and that may take him in into trademarks
public sector first

More specifically, what have you been up to this summer?
Clinic calls, intake interviews
Legal clinic doesn’t do divorces
technology transfer

What do you think of Mary leaving UNH?
Brian was surprised.
Maybe school is trying to branch out a little more.

What do you think of Sports Law as part of IP?

The correct name is the Sports and Entertainment Law Center.

  hard to talk about as much because no Title.
Just very complicated!

I cut out a bit about patents after the discussion about sports law, so if you want to hear a bit more about patents, you'll have to watch the unedited video.

With Life of a Law Student no longer in existence, where do you think is the best place to go for free additional legal materials?
some blogs: not a single source

10. Jessica Coates, Creative Commons Global Network Manager

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: Those interested in CC 4.0.

mp3 audio | ogg audio | torrent | unedited video

I apologize for the echo on my audio. It didn't happen at the beginning of the recording, so I thought maybe it would stop, but it never did once it started. If you watch the video, you'll notice that Jessica isn't wearing headphones, so let that be a lesson to all you would-be podcasters...always wear headphones while producing a show!

On the other hand, at least this time Google didn't decide to cut out Doug's audio while he was typing...because Doug didn't type. That means the show notes aren't that great. If you'd like better show notes in the future, please make sure you donate. Donations are sure to get my attention. Also, I'm always interested in getting additional volunteers to help out with writing, editing and promoting the Lawcast, so just let me know if you'd be willing to put in the time to make great show notes.

Alright, onward...

Here's the show Tom and I did with Jessica back in December. Before that, and actually, before Music Manumit existed, CC came out with the 3.0 license in 2007.

Big things:
  • They've made the language more "plain English"
  • No more porting (well, there will be some)

There are still some countries that have not signed Berne (though TRIPS incorporates "almost all" of Berne): Afghanistan, Angola, Burundi, Cambodia, East Timor, Eritrea, Ethiopia, Iran, Iraq, Kiribati, Kuwait, Maldives, Marshall Islands, Mozambique, Myanmar, Nauru, Palau, Papua New Guinea, San Marino, São Tomé and Príncipe, Seychelles, Sierra Leone, Solomon Islands, Somalia, Taiwan, Turkmenistan, Tuvalu and Uganda.

If you want to get involved int he 4.0 process, the best way to do so at this point is to check out the wiki and get involved in translation.

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Monday, August 5, 2013

Contract Law

This is not legal advice. Leave audio feedback at (512) 686-6329.

So, it seems that my snippets go back further than last semester. I took Contract Law my first semester in law school (as most people do). Anyway, as I recently mentioned over at OSP, there may be a book coming. I want to get as much of this out there so people can help piece together what should be in the book. Obviously, some of these need work, but the community isn't going to be able to help put the book together unless they know what has already been written. So, just like the last post, this is one of those as-is posts. I hope you can gain something from it.

This is the first of a two-part series. The other post will be on the sale of goods, which will apply to merchandise sales. Today will focus on contracts for services. A performance, a "gig", is a service.

Let me first say that Tort Law and Constitutional Law have been my best grades in law school, so if anyone has suggestions to improve this article, I am open to suggestions! Let me also say that that should be a warning to you if you are attempting to make this legal advice. This is not legal advice.

Contracts are generally a matter of state law, but the US Constitution does address contracts in Article 1, §10. "No State shall...pass any...Law impairing the Obligation of Contracts." From the Constitutional side of things, there are other property rights, but that's not particularly important.
From the copyright side of things, note that you can sign away pretty much everything in the US context.

Many people think a contract must be in writing for it to be enforceable. While there are exceptions (there always are!), ORAL CONTRACTS FOR SERVICES ARE ENFORCEABLE.



Righthaven v. Democratic Underground


A couple pages worth at The Legal Talk Network (none deal directly with gigs or copyright)

Current Issues: Week 5 - Product Development & Private-Public Partnerships (PPP)

This is not legal advice. Leave audio feedback at (512) 686-6329.

Last semester I took a course called Current Issues in International IP. I thought perhaps I'd clean up some of these posts over the course of the summer, but with the summer drawing to a close, I figured I'd either delete the titles or release what I had written as is. This is one of those as-is posts. I hope you can gain something from it.

Technically, this week we are primarily talking about patents in the Current Issues course. Specifically, we read "A Typology of Intellectual Property Management for Public Health Innovation and Access: Design Considerations for Policymakers" by Antony Taubman. I think the private-public partnerships are worth exploring in music as well, and indeed the paper passingly mentions copyright a few times.

Probably the most obvious Private-Public Partnership (PPP) in music is that of music education. People will quibble whether in the US we really have much "public" in music education, at least from a financial point of view. Let me first say, that despite my parents both being music educators (one public, one private), I think math and science education is vastly more important than arts education (that said, studies have shown music improves math skills). Humans innately express themselves. Humans do not innately understand differential equations or the Heisenberg principle. Of course, this week is not about education policy, we already had that discussion and will again when I post my mid-term paper on the subject.

There are, of course, other PPPs in music and some of them are subtle. For example, many arts organizations are 501(c)(3)s and while this is not direct financial stimulus, the tax incentives certainly help promote the arts. Charitable organizations are a particularly interesting application of the "market economy." While the market apparently prefers Justin Bieber (who was #1 on Billboard when I started writing this post), the government allows a separate (not secondary) market for charitable arts organizations.

Of course, the government also "competes" in this market with the various military bands, but charities, such as the Netizen Empowerment Federation, fulfill roles in the US that governments provide in other countries, such as education and arts. I am not an economist and thus I am not going to speak about the market aspects, specifically.

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My username: DouglasAWh. username: douglasawh. douglasawh
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Friday, June 28, 2013

9. Monkey Art and Copyright: Intellectual Property Rights in Works by Nonhuman Creators
Koko: A Talking Gorilla
This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: anyone curious about animals, AI, extraterrestrials and copyright

This week, Doug speaks to Neal Smith, author of "Monkey Art and Copyright: Intellectual Property Rights in Works by Nonhuman Creators."

mp3 audio | ogg audio | torrent | video

Per usual, the sparse show notes are after the break.

Monday, June 17, 2013

8. Alex Owczarczak, Student Judicial Intern Clerk at U.S. Court of Appeals for the Federal Circuit
The Federal Circuit

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: law students and attorneys interested in decision tree analysis

First off, on top of our usual disclaimer, nothing Alex says should be taken as a statement by the U.S. government or the U.S. Court of Appeals.

mp3 audio | ogg audio | torrent | unedited video

Interview notes after the break.

Friday, June 14, 2013

7. NEF Board Member Josiah Barbour
Listen and find out how Tottenham fits in to Music Manumit

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: 
people interested in patent policy and those interest in the Netizen Empowerment Federation

Welcome back to the Music Manumit Lawcast! It's been a while since we've put out a podcast. We should be putting out one a week this summer. They'll be shorter than last summer, and it'll just be Doug and a guest. Also, Brian should be coming out with some shows on trademark law.

mp3 audio | ogg audio | torrent | unedited video

Josh and Doug cover a lot of ground. Expect a more focused show next time, when Doug speaks with Alex Owczarczak.

Show notes after the break

Thursday, May 23, 2013

Personal Income Tax for Creative Common Musicians

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I have a few thoughts on Doug's post about personal income tax consequences for musicians. I think Doug was a bit pessimistic in his interpretation of when musicians are engaged in a separate trade or business, the business of being a musician. A taxpayer is engaged in a trade or business when they are regularly involved with an activity for the purpose of generating profit. See Groetzinger if you're interested in finding out more about what constitutes a trade or business. (Professional gambling can as long as you do it regularly and mean to make a profit.)

Doug had some concerns that musicians who release under creative commons may not qualify as engaging in a separate trade or business because they do not profit from the distribution of their music recordings. I would still argue that most musicians would still be engaged in a trade or business despite not charging for their music. I see musicians as offering two categories of goods and services: recorded music and live performance services. I think most musicians who release music under creative commons are giving away their recorded music in order to promote their performance services. Releasing music under creative commons is like a restaurant that gives away free samples. While the restaurant is not trying to make money on those particular samples it is attempting to use those samples to promote its profitable services. The fact that a musician chooses to give away their music should not disqualify him from being treated as engaging in a trade or business for tax purposes.

Musicians still need to meet the regularity and profit motive requirements in order to be treated as being engaged in a trade or business. Doug and I agreed that this is where some musicians might have trouble qualifying as being engaged in a trade or business. An important point to note is that taxpayers can be involved in more than one trade or business so having a day job does not interfere with being considered a musician by trade. However, how much time one spends doing music is certainly relevant. Sporadic practice and infrequent performances might keep some musicians from qualifying as being engaged in a trade or business. I guess the main difference between my view and Doug's view on the subject is on what exactly constitutes a profit motive. I am fairly optimistic, in Groetzinger the court found a professional gambler to be engaged in a trade or business. While many musicians might not profit from their music, I'm pretty sure the probability of making money as a gambler is somewhat lower.

I am generally optimistic that most regular musicians are engaged in a trade or business as long as they have some hope of making money on their music one day.

Tuesday, May 21, 2013

Trans-Pacific Partnership and America's Right to Know

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Ah, SOPA. It's back. At least for this post. If you want to hear my thoughts on SOPA when it was fresh, you can listen at Unfortunately, the Trans-Pacific Partnership is still going strong and it has the possibility to be the new SOPA. We don't know if it will be the new SOPA, but we don't know that it won't.

Below is a full paper I turned in on the TPP.

Tuesday, April 23, 2013

Breif Thoughts on Tax Consequences for Musicians

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Last week in Brian's and my tax class (we don't have all of our classes together, but we happen to have tax together), it was suggested that musicians get a break on tax day. Considering both of my parents are full-time musicians, this struck me as odd. I'd never heard anything about the tax advantages of being a musician. NPR, or at least Patrick Jarenwattananon (what a last name!), seems to be on my side of the the debate on this one. I don't know if this is going to begin another point-counterpoint series for Brian and I. Since finals start next week, I certainly suspect Brian will be taking a break from content for the next two weeks.

I think any sort of tax break musicians might get has to do with the type of musician one is. Taxes changing the development of music has historical precedent. For example, individuals that can support themselves full-time through touring and gigging and do not teach are likely to get the benefits of being a sole proprietorship. If your band, ensemble, orchestra, etc. is incorporated, and you are an employee of that organization, then you aren't going to get the business benefits (though incorporation does have benefits, so don't discount it just due to taxes).

The other thing is that people that own copyrights can get some tax breaks. However, studio musicians generally do not own copyright in their performances.

So, what does this all have to do with Creative Commons?
Potentially, a lot. The tax breaks that musicians theoretically get primarily have to do with being able to prove that music is your business and not your hobby. Unless you are Amanda Palmer or NIN (both of which have released under CC), this is likely going to be tough. If people are interested, I can do another post specifically on hobby losses, but for now, while it pains me to say this, you might be better off (from a tax perspective) releasing under CC, but behind a pay-wall such as you can set up with Bandcamp or Magnatune (and possibly others, we aren't sponsored).

Since the tax code is so mammoth, I'd like to tell people some of the things Brian and I have covered in our tax class to give you some ideas on things we might be able to discuss in the future:

  1. Gross Income
  2. Gains and Losses from Dealings in Property
  3. Gifts and Inheritances
  4. Discharge of Indebtedness
  5. Fringe Benefits
  6. Business and Investment Expense Deductions
  7. Capital Expenditures
  8. Depreciation and Amortization
  9. Deductible Personal Expenses: Casualty and Theft Losses
  10. Other Deductible Personal Expenses: Taxes, Interest, Charitable Gifts, Moving Expenses, and Medical Expenses
  11. The Deduction Hierarchy: Adjusted Gross Income, Taxable Income, the Standard Deduction, and the Personal Exemptions
  12. Timing Rules and Related Principles
  13. Ordinary Tax Rates and Taxplayer Classification
  14. Tax Credits
  15. Capital Gains and Losses
  16. Quasi-Capital Assets
  17. Recapture of Depreciation
  18. Residential Real Estate
  19. Like Kind Exchanges
  20. Involuntary Conversions
  21. Alimony and Support
  22. Personal Injury Recoveries and Punitive Damages
We didn't actually directly cover in dept the The Charitable Contribution Deduction or Hobby Losses, but I think both of those are important for musicians to know about and I'd be prepared to do a post if people are interested.

If you are a musician in the US and need tax advice, I encourage you to speak with your local VLA chapter. I'd also be interested in hearing feedback from people in other jurisdictions about the tax consequences of being a musician. I'm hoping, specifically, that friend of the blog Marc, will chime in on whether he knows anything about the tax consequences of gigging in The Netherlands.

Get in Touch

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Monday, April 22, 2013

The Ins and Outs of Copyright Registration

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Expected Audience: Anyone who wants to know the basics of Copyright Registration

Copyright registration is a fairly straight forward and simple process. There are three basic requirements an application, a filing fee, and a deposit. The application is a simple set of forms that can and should be filled out online. (Filling out paper forms requires a higher filing fee, so why would you bother with paper?)

The deposit is a copy of the work to be sent to the copyright office. If the work that is being registered has already been published two copies need to be sent. (One is for the Library of Congress, but the Library of Congress doesn't necessarily keep every copy it is sent.) The copyright office destroys the deposits that are sent in. One interesting rule is that the deposit is supposed to be the best edition of the applicant work. For example an author that publishes a novel in paper and hardback, should send the copyright office a hardback copy of the work. Also, the deposit is not supposed to be electronic, unless the work is published exclusives in an electronic form. A musician that distributes music via MP3 but does not make a CD the musician can send an MP3 version of the musician's work. In class there was some debate about whether a musician who published in both vinyl and CD could meet the best edition requirement with either version or a particular one. The best edition rule is not very well enforced so it was a purely academic argument.

The filing fee is fairly straightforward. It can be paid online via credit card. The copyright office doesn't host the payment services and uses a third party site.

Tuesday, April 16, 2013

Roadmap for Future Trademarks Coverage (instead of Current Issues Week 3)

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Long ago (not actually that long ago in the scheme of things), I skipped Week 3 in the "Current Issues" series before deciding to take that series monthly. Over the summer, I plan to finish up brief summaries of what we covered in the course. There is a lack of doctrinal Trademark podcasts on the web, so I hope at some point to fill that gap. Sure, they speak about trademarks on This Week in Law occasionally, but there's no Life of a Law Student-style podcast on trademarks, and I think there should be. It certainly would have been helpful for me.

Anyway, in week three of International IP we discussed the "Blue Revolution." It is quite fascinating (of course, I say this having a Biology degree and Chemistry minor) but not really appropriate for the Lawcast. Thus, I am going to talk about Trademarks!

What a Herculean task with which I have presented myself (and that's why I skipped it during the actual Week 3). Just to give you some idea of the task, our course book has 1002 pages plus the index and has a 549 update supplement. Upon a couple months of reflection, this is not something that can be done in one post, which is why I am leaving a roadmap for you today. Please let me know if there are specific topics I list that you would prefer I get to sooner rather than later. 
I first want to discuss a few of the details of posts that have already happened here and those that are in the works.  Brian already did a post on trademarks as they relate to band name. I think Brian is going to be bringing you some thoughts about registration this semester (although, considering where we are in the semester, I don't know if that is happening). Additionally, I'm going to come back to geographic indicators in a separate "Current Issues" post.

Between Brian and I, we've basically knocked out a chapter of the book Professor Susan Richey has assigned for us. The chapters, as a guide, are:

  1. Concepts of Trademarks and Unfair Competition
  2. What is a Trademark?
  3. Ownership and Use
  4. Registration of Trademarks
  5. Loss of Trademark Rights
  6. Infringement
  7. False Designation of Origin
  8. Advertising
  9. Dilution
  10. Authors' and Performers' Rights
  11. Internet Domain Names
  12. Trademarks as Speech
  13. Remedies
During week 4 of the current issues series, I wrote an article about domain names, so we can skip that too. The First Amendment is a course I may be taking next semester, so let's skip chapter 12 too. That leaves us, essentially, with:

  1. Concepts of Trademarks and Unfair Competition
  2. What is a Trademark?
  3. Ownership and Use
  4. Loss of Trademark Rights
  5. Infringement
  6. False Designation of Origin
  7. Advertising
  8. Dilution
  9. Remedies
Those will be the 9 topics in the trademarks series. Expect it to look a lot like the copyright series did last semester, only in audio. It may or may not have Brian's involvement. If you can't wait for me to get done with the audio editing, below I've left you places you can find further information on trademarks. Again, please let me know what you think of the roadmap. We'll try to stay flexible!

Additional Resources

Wikipedia Article on Trademarks
USPTO guide for Musicians and Artists

USPTO FAQ about Trademarks
Canadian Copyright and Trademarks
Intellectual Property Office: European & International Trade mark's
CC Licenses and Trademarks: A Guide for Organizational OER Creators and Distributors
Podcasting Legal Guide: Trademark Issues
CC0 and Trademarks (and patents)
What's in a Name: Can Trademarks be Helpful to Free Software Projects?
Karen and Bradly discuss "Some of What You Need to Know About Trademarks"
Other Trademark-related podcasts
ARC Law Group: Trademark Basics

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My username: DouglasAWh. username: douglasawh. douglasawh
I'm on too many social networks to list them all!


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Saturday, April 13, 2013

Public Draft: Trans-Pacific Partnership and Murica's Right to Know

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UPDATE: You can hear me reading a slightly updated draft of the paper over on my SoundCloud page.

I'm going to do something I haven't done before. I'm going to post a draft of a paper I am working on. I've posted on links to the Google Docs version of the paper, but I've never posted here. Part of the reason is because we need content!

I missed the March posting of my first paper because I haven't had time to go back and format. You'll see here what I mean. There are no footnotes. For the footnotes you'll need to click on the GDocs version.

I would love feedback. You'll get credited for your help if you give feedback, just like a couple people did at the end of the last paper. The paper is due May 3rd, 2013. If you find this after that date, look for the final version on the site...the Google Doc should be current either way though.

Tuesday, March 5, 2013

"Current Issues" Series Going Monthly

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I have already made this decision over at, but for the next two months my posts here will be monthly. Between running Netizen Empowerment Federation, midterms and applying for summer fellowships, there is just too much going on right now.

I still think Brian is planning on bringing some posts this semester. We shall see.

In the mean time, Tom and I will still be releasing weekly and in March we are doing some experimental shows, so be sure to give us lots of feedback on whether you like the new format!

Get in Touch

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My username: DouglasAWh. username: douglasawh. douglasawh
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Saturday, February 16, 2013

Top 10 Things You Should Do/Know When Negotiating a License (Part 2 of 2 instead of Week 6 of Current Issues)

This is not legal advice. Leave audio feedback at (512) 686-6329.

As Tom and I have mentioned several times on the main show, if you release your music under Creative Commons, you can always license your work to someone else under a non-CC license. For example, if you release under BY-SA, you can contract with a film producer for them to use your music without the film producer having the release under BY-SA (which they would have to normally do under the ShareAlike provision, aka SA).

1. If at all possible, get a lawyer.

While not technically a member of the attorney guild just yet, you're right to be skeptical of my intentions here. It is, however, the most important of these suggestions. There are a lot of reasons why getting an attorney is important, but I'll give you two of the most important.

First, if the lawyer screws up, you an sue them for malpractice. If you screw up the contract yourself, sue yourself. Let me know how that goes.

Second, the laws are different in different jurisdictions. Copyright might be federal in the US, but occasionally there are circuit splits. You may very well know the New York contract and copyright interpretations, but if the film maker is in California, it's possible California law might apply.

2. Define everything.

Certain words have specific meanings in copyright and contract law, but if you're negotiating on behalf of yourself, you probably don't know those meanings. If you force the other side to get all of the meanings in the contract, at least you aren't being left in the dark about the meaning.

3. Assume you will be going to court later.

While writing things down can have some positives aside from just having something to hand a judge, if you have no intention of ever suing anyone, there's not much reason to spend time negotiating a contract. Just license your work under the WTFPL or CC0 and save everybody the hassle.

4. Don't act like you know what you are doing.

This mostly applies if the other side as a lawyer. Courts generally do not look kindly upon lawyers taking advantage of lay people. It's true that this presupposes that you're going to be in court later, but see #3. If a lawyer knows you don't know contract law, they will have to explain things to you. This is very important. If you do not understand the contract, there is no contract. A contract is a meeting of the minds and if you don't understand, there is no meeting of the minds. It's true that you would have to prove in court that you didn't understand, but if you didn't, this probably won't be hard. If you acted like you knew what you were doing, there is going to be a ton of evidence against you.

5. Assume the worst.

In most cases, the lawyer on the other side is going to be happy you are doing this. Lawyers are by nature pessimistic creatures. Licenses are all about damage control. If you assume the worst, you'll hammer out all the details while negotiating and you'll avoid court later on. But see #3.

6. Understand that most oral contracts are enforceable.

There are plenty of exceptions, like real estate contracts, but most oral contracts are enforceable. If you agree to something on the phone, don't expect to weasel out of it. That said, proving there was an oral contract is often hard.

7. Write it down.

This might be obvious, but you don't want to get in a he-said, she-said battle in court.

8. Make sure the other party knows you license under CC.

For one thing, if you've licensed under CC, you won't be able to give an exclusive license. Now, you might be able to do some things exclusive. For example, you could contract away the right to further sub-license. Again using the example of the film maker where you've released under BY-SA. You could specify that you would not license another film maker for proprietary use. What you could not do is say that your song will never appear in another film, because BY-SA films would still be allowed.

9. Don't forget about trademarks and trade secrets.

If a film maker is licensing your music, it's unlikely that you'll be potentially revealing any trade secrets. If the film is a documentary though, particularly one where certain individuals are portrayed in a negative light, they may not want you telling anybody about that. While this is really their issue and not your issue, just because the other person doesn't have a case doesn't mean you won't get a threatening letter. Additionally, if you violate their community norms, they may lambaste you which could tarnish your career if it's a popular film maker. If you are coming from a community, like CC, that values sharing, you might not think of this. Just be aware that if you are dealing with a non-CC film maker, they may not feel the same about sharing as you.

10. Ask for help.

Help is available from organizations like Volunteer Lawyers for the Arts. They don't appear to have affiliates in all 50 states, but many states and a few countries have affiliates. If you are in a state that doesn't have a VLA, ask me and I'll see if I can help you find someone.

It's true I probably could have folded this into #1. However, you are always supposed to start and end strong, and I really cannot emphasize how complicated the law is. This is why you should choose CC if you haven't already!

Remember, contract law is different in different parts of the USA and of course in different parts of the world, so see #1!

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Got Questions? (Part 1 of 2 instead of Current Issues Week 6)

This is not legal advice. Leave audio feedback at (512) 686-6329.

For the time being, I'm skipping Week 5. I'll come back to it. Part 2 should be out shortly, but I figured Part 1 and Part 2 were different enough to deserve two posts.

In this post, we'll take care of some housekeeping for my Copyright Licensing course so you have some sense of things you might want me to cover in the future.

This week in my Current Issues in International IP course we are talking about drug patents. I didn't really think I could spin that for the music world (though as always, if there is an outcry for the topic, I can do a post on my personal blog or try to make it music-related), so I thought I would bring you an update on what is going on in my Copyright Licensing course. Unlike all of my courses last semester, and all of my other courses this semester, this is a 2-credit course rather than a 3-credit course. I give you this information so you can compare the depth of material to that of the substantive copyright course information Brian and I brought you last semester.

The Creative Commons licenses are of course copyright licenses, or more specifically, public copyright licenses. Unfortunately, this is not the type of copyright license we have focused on in class. We have focused on negotiations. It's a good skill to have, so I'm not regretting taking the class. It's just unfortunate that I'll need to do an independent study to learn more about public licenses. I've discussed doing that. More on that when it is final.

You aren't here to read about my course selection though, are you? We're about halfway through the semester, but if you have questions you'd like me to answer, here is a list of what we have covered so far and what we will cover in the rest of the course:

Basic Copyright Licensing Principles, including:
(a) “Assignments” vs. “Licenses”;
(b) Exclusive vs. Non-Exclusive Licenses;
(c) Works for Hire & Independent Contractors

The Anatomy of a License: Basic Licensing Provisions & Drafting Language

The Anatomy of a License (Part 2); In-Class Exercise #1 Part 1 (initial discussion)
In-Class Exercise #1 Part 2: Redraft & Review

Getting the Deal Through (Part 1): from Term Sheet to Final Agreement (a “walk through” an actual scenario from initial client meeting to final agreement)

Getting the Deal Through (Part 2): the License (a “walk through” the final license from Week 8)

The Statutory Copyright Licensing Scheme: How it Works (an overview of the compulsory licensing schemes under the US Copyright Act)

Licensing in the Music Industry (review of a typical music licensing arrangement)

In-Class Exercise #2 Part 1: Team-Based Negotiation & Initial Drafting
In-Class Exercise #2 Part 2: Final Draft & Discussion

Final Team Exercise #1
Final Team Exercise #2

So, what have I learned in six weeks of class? Probably more than I can express in words. We have primarily been going over a couple of contracts and discussing them. We have also been practicing our negotiation skills. If anyone wants me to post my sparse verbatim notes from the class, I certainly can. For now though, stay tuned for Part 2, which will be a Top 10 list. People love top 10 lists, right?

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Tuesday, February 5, 2013

Current Issues: Week 4 - Domain Names

This is not legal advice. Leave audio feedback at (512) 686-6329.

For those of you following along, you'll notice that I skipped Week 3. This is because for Week 3 I started working on an Introduction to Trademarks rather than the science oriented topic that we discussed in Week 3. Considering we are only three weeks into class, I just didn't feel prepared to write the article. It will come out at some point though. Now, on to this week's topic...

This week is a reasonably special week in the current issues course for two reasons:
1. I was one of the two leads for the week.
2. Our guest speaker was a UNH professor (this will happen twice during the semester. Even more to the point, it is the professor that teaches this very class. So, not really a guest speaker. The Seattle prof that teaches the other half of the class has already given her talk.

I think this is going to happen a lot in the class, but as I mentioned in the education talk, these topics are just not in the wheelhouse of many of the students. We spent much of our hour-long Tuesday discussion talking about background issues, rather than the issue at hand, which was ostensibly trademarks in domain names. This is not really a criticism of the class. forming the appropriate prerequisites for the course would be impossible. I just point out that it is incumbent upon students in the class to pick topics for which they are best suited.

Even though in a room of techies my specialty is certainly not going to be high-level Internet routing (perhaps lnxwalt will give his opinion in a follow-up article on Open Source Playground), I think I did a good job picking this topic. For example, I brought up that recently the UN tried to take over the Internet. Considering this is a "current issues" course, I thought it important to do so, rather than get stuck in the trademark morass.

To an extent, the ITU take-over is old news because it just didn't pass, but I think this is an issue likely to come up in the future and thus worth thinking about. Whether you think this is a good idea or not mostly depends on if you trust western governments over a joint east-west partnership. While I don't agree with western governments on everything, I do think they have it right on the Internet. I think ceding more power to Russia and China in the Internet space would be a bad thing. China already seems to do a reasonable job censoring the Internet.

Another reoccurring theme in the course, at least as it relates to the Lawcast, which was not a problem last semester,  is the question of what it has to do with music.

The answer really is that no one really knows because no one really knows how all of these new gTLDs is going to work. However, we can think about some potential issues and advantages for Creative Commons music.

.music TLD

Interestingly, .music apparently already exists (or existed in the past?). However, it appears that if it once existed, maybe it doesn't anymore (or is just for sale)? Anyway, it seems clear that it is up for sale in some sense. CNN lists 8 different bidders for the .music tld. None of them are the Far Further group that reported is bidding for the tld though. While the article has a date from this past summer, I can't find one on the CNN list. As anticipated, the page information says the CNN page was last modified when I accessed it. Thanks.

The potential problem for .music is admittedly very tinfoil-haty. If a major label gets .music and it becomes the standard, how will Creative Commons music compete? There are obviously a lot of objections to this critique. What is to say SoundCloud, Jamendo, BandCamp, Free Music Archive and other places where people can now find CC music will move over? What is their incentive to move over? The follow-up question is whether they are competing on equal footing now. How much, if at all, does this change things? Does the fact that they might set apart in some way increase their cool factor?

Equally impossible to answer is the possible benefits CC music could reap from this. Let's imagine that whomever gets .music licenses out the sites at a reasonable price. Let's say Jamendo either moves or has a mirror The benefit here is that people know they are getting music before even poking around on the Jamendo site. Sites like and don't really see a benefit because music is in the name.

.creativecommons TLD

There is currently no application for registration of .creativecommons, but what if someone other than the organization we know as CC decided to buy the mark? At 15 char*, I'm not sure there should be much concern for this, but it really highlights the problem at which Professor Wong is getting.

If Creative Commons were bought and used by a traditional copyright licensing organization, where you pay to play, it might change the discourse around CC like the Linux kernel did around GNU. Some individuals still fight for GNU/Linux, but it is a genie long out of the bottle. The term "open source" has a similar problem with people using "open source" to mean freeware, because, obviously, they don't know what "source" is (presumably because they have never seen computer code).

The upside might be more positive here. For one, it's a half-million** dollar publicity stunt if nothing else. I doubt this is the best use of half a million dollars if CC can get their hands on it, but pet projects often get money. Would Mark Cuban have donated half a mil to the EFF without their new Defend Innovation project? So someone with a penchant for the dramatic, not unlike Mark Cuban, would just need to think this was a good way to make a splash.

I'm certainly not arguing that it is the best use of the money, but let's assume for a moment that this happens. One of the problems people currently have is finding Creative Commons music. Obviously you can go to Jamendo or Free Music Archive and find some, but there are also a ton of netlabels out there such as Quote Unquote Records and StoneAge Records that don't participate in those ecosystems.

Even if we do come up with a .creativecommons to make us one big, happy family, where do we draw the line? Free Music Archive isn't just CC, it also has their own license. Even at Music Manumit, we occasionally, play public domain or Art Libre material.

These sorts of decisions about how .music or .creativecommons might work are really outside the realm of law. That does not, however, mean we shouldn't think about them. Either way, it's an exciting world ahead of us!

On Thursday I'll get the opportunity to speak with Professor Wong again about the issue, so if you think there are questions, I should ask her, please let me know!

*Although there are some long ones, like NORTHWESTERNMUTUAL, which comes in at 18 char. I'm just not convinced people really want to type that much in. I guess if all they have to type is .northwesternmutual, then perhaps. It actually potentially saves char in this case. My point is simply that the longer it is, the less likely you are to bump into someone else.

** While the fee is $185k, ICANN also looks at the ability to run a network and the cost needed to prove to ICANN you can do that has been estimated at between $.5 and $1 mil.

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My username: DouglasAWh. username: douglasawh. douglasawh
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Help Doug get through law school! Buy him a book or food!