Thursday, April 16, 1998

Thu Apr 16, 1998 09:36:00 AM moderator_joseph_l:Test: Welcome! We are discussing the idea of respect and integrity for creative works on-line. Please join the discussion at any time.

Thu Apr 16, 1998 09:55:19 AM moderator_joseph_l:hi bob, how are you?

Thu Apr 16, 1998 09:55:25 AM bob_p:It seems to be working

Thu Apr 16, 1998 09:55:42 AM bob_p:Doin' fine. How are you?

Thu Apr 16, 1998 09:55:56 AM moderator_joseph_l:pretty good, thanks.

Thu Apr 16, 1998 09:56:18 AM moderator_joseph_l:where are you logging in from?

Thu Apr 16, 1998 09:57:03 AM bob_p:I've been spending way to much time on this class. It's been fascinating

Thu Apr 16, 1998 09:57:17 AM bob_p:I'm in Austin, Texas, USA. How about you?

Thu Apr 16, 1998 09:57:49 AM moderator_joseph_l:cambridge, MA, USA. glad to hear you are finding this class interesting.

Thu Apr 16, 1998 09:58:30 AM bob_p:Oh yeh, very interesting. I love Cambridge. I really enjoy walking along the Charles early in the morning.

Thu Apr 16, 1998 09:59:24 AM moderator_joseph_l:I hear austin is really nice too, though I've never been

Thu Apr 16, 1998 10:00:06 AM bob_p:Austin is very nice. Very different from Cambridge/Boston area. The air feels different in the morning.

Thu Apr 16, 1998 10:01:06 AM moderator_joseph_l:so what do you think about this latest module?

Thu Apr 16, 1998 10:02:34 AM bob_p:It's been interesting watching peoples reaction to attitudes on the net. I think most of the more legal oriented people are having a hard time understanding a culture based on creating win-win cooperation rather than on laws.

Thu Apr 16, 1998 10:03:06 AM moderator_joseph_l:yeah, i think you are right ...

Thu Apr 16, 1998 10:03:54 AM moderator_joseph_l:i think legally trained people are a bit more pessimistic about the possibility of cooperation

Thu Apr 16, 1998 10:04:11 AM moderator_joseph_l:since they (we) typically deal with conflict

Thu Apr 16, 1998 10:04:22 AM bob_p:They also don't seem to understand that a couple of people can shut down a companies access to the net in a way that originates outside of the country the company is in and in a way that is virtually untraceable. In world where everyone is armed, you learn to be polite.

Thu Apr 16, 1998 10:04:53 AM moderator_joseph_l:that's interesting. how would they go about doing that?

Thu Apr 16, 1998 10:05:59 AM bob_p:Denial of service attack, ping storms, or just straight hacking, using trap doors and trojan programs set in by other hackers.

Thu Apr 16, 1998 10:07:10 AM bob_p:You can download attack code for most OSes from hundreds of sites on the net.

Thu Apr 16, 1998 10:07:31 AM moderator_joseph_l:ah. so what did you think about the "distorted barbie" example in this week's hypo?

Thu Apr 16, 1998 10:08:26 AM robert_y:I was looking through the citations, but don't recall seeing a case where the use of the trademark name alone must be defended...

Thu Apr 16, 1998 10:08:27 AM bob_p:I think it was being used for social commentary and/or parody and therefore qualifies as "fair use."

Thu Apr 16, 1998 10:09:05 AM bob_p:What do you think?

Thu Apr 16, 1998 10:09:25 AM moderator_joseph_l:it does look a lot like fair use to me . . .

Thu Apr 16, 1998 10:09:53 AM moderator_joseph_l:but i also wonder whether there are limits ...

Thu Apr 16, 1998 10:10:10 AM robert_y:So why do people like Coke claim they have to snuff out every use of the name or run the risk of losing it?

Thu Apr 16, 1998 10:10:31 AM moderator_joseph_l:for example, what if the artist sold ads on his site, or sold copies of the distorted Barbie's for big bucks? same result?

Thu Apr 16, 1998 10:10:52 AM moderator_joseph_l:robert: tm owners do have to protect their marks from becoming generic, ...

Thu Apr 16, 1998 10:11:12 AM bob_p:I think that "Barbie" as gone beyond being a product and has become a social icon. I believe that shuld make it easier for people to get away with using "Barbie" in art and social commentary than it is to use other copyright images.

Thu Apr 16, 1998 10:11:19 AM moderator_joseph_l:but this need does seem, as you suggest, often overstated

Thu Apr 16, 1998 10:12:14 AM bob_p:An artist has a right to make a living. If he incorporates Barbie dolls or Buicks what difference does it make?

Thu Apr 16, 1998 10:12:48 AM robert_y:In the "distorted" case, it was more of a commentary than an attempt at genericizing (a word? :)

Thu Apr 16, 1998 10:13:01 AM bob_p:If I buy a barbie doll, I own it, I can sell it. If I hack it up first, why does that affect my right to sell it?

Thu Apr 16, 1998 10:13:14 AM moderator_joseph_l:it doesn't ...

Thu Apr 16, 1998 10:13:35 AM moderator_joseph_l:once you buy a physical copy, you can do whatever you want with it ...

Thu Apr 16, 1998 10:13:45 AM bob_p:If I take a picture of the Barbie doll, do I own the picture? Or does Mattel?

Thu Apr 16, 1998 10:13:55 AM moderator_joseph_l:but under copyright law, you can't make additional copies of it

Thu Apr 16, 1998 10:14:22 AM bob_p:A picture of a doll is not a doll.

Thu Apr 16, 1998 10:14:24 AM moderator_joseph_l:so, if you take a picture of Barbie, that is making a copy of the image, and could well be infringement, unless subject to fair use, etc.

Thu Apr 16, 1998 10:15:05 AM bob_p:BTW, how does Mattel claim a copyright on Barbie? I would think that as a physical Item it would be exempt from copy right. It would be coverd by a design patent.

Thu Apr 16, 1998 10:15:36 AM moderator_joseph_l:copyright applies to sculptural works as well, not only print

Thu Apr 16, 1998 10:15:55 AM bob_p:Ahh, that makes sense.

Thu Apr 16, 1998 10:17:02 AM moderator_joseph_l:what if I used pictures of barbie on my sexually explicit web site. should mattel be able to stop me?

Thu Apr 16, 1998 10:17:32 AM moderator_joseph_l: (e.g. pictures of barbie dressed in leather, etc.)

Thu Apr 16, 1998 10:18:12 AM bob_p:Well... considering that Barbie was originally designed as a street walker doll targetted at adult men in Germany... I'd say no...

Thu Apr 16, 1998 10:18:45 AM robert_y:What was the outcome of the dispute between Mattel and The Body Shop (where they used a "plump" doll)?

Thu Apr 16, 1998 10:19:05 AM bob_p:But, yes, I think that damages the value of Barbie as a product sold to little girls in the US and so Mattel has a right to protect itself from that kind of use of their copyright material

Thu Apr 16, 1998 10:19:26 AM moderator_joseph_l:hmmm. i've seen the body shop ads, but i don't know how it turned out. do you?

Thu Apr 16, 1998 10:20:16 AM moderator_joseph_l:but how is that different from the distorted barbie? doesn't that damage the value of Barbie?

Thu Apr 16, 1998 10:20:35 AM robert_y:No, I just thought it would be similar in concept: A distortion of the image Mattel wants to give with their doll...

Thu Apr 16, 1998 10:21:53 AM robert_y:My understanding of the Trademark was that the company had to fight EVERY use of it (more)

Thu Apr 16, 1998 10:22:17 AM robert_y:hence these "big company" vs. Mom-and-pop suits you read about all the time.

Thu Apr 16, 1998 10:22:43 AM moderator_joseph_l:i've generally been pretty suspicious about that justification ...

Thu Apr 16, 1998 10:23:23 AM robert_y:Hey, I'm not the lawyer... :)

Thu Apr 16, 1998 10:23:45 AM moderator_joseph_l: (heheh) ... the big company saying, i don't like this either but i am forced to by the law ...

Thu Apr 16, 1998 10:24:05 AM moderator_joseph_l:but then again, if i represented Mattel, im not sure i would want to take any risks

Thu Apr 16, 1998 10:24:50 AM bob_p:I'm curious, just how often, and for how long, can company threaten to sue you, without actually taking any action, before there threats become harrassment?

Thu Apr 16, 1998 10:25:14 AM moderator_joseph_l:as far as I know, there really is no limit ...

Thu Apr 16, 1998 10:25:31 AM robert_y:That's what I'm referring to - their response has been that "we MUST" do this or we will dilute the value or lose our own right to use the name...

Thu Apr 16, 1998 10:25:53 AM moderator_joseph_l:companies often send out threatening letters and can sit back and wait, or never file suit

Thu Apr 16, 1998 10:26:40 AM moderator_joseph_l:the costs of litigating a case make even the threat of litigation very serious for any individual or small company

Thu Apr 16, 1998 10:26:58 AM bob_p:Yeah, I know. I've been getting threatened off and on for 2 years now.

Thu Apr 16, 1998 10:27:28 AM robert_y:So they assume the threat of costs alone will case the opponent to fold?

Thu Apr 16, 1998 10:27:52 AM bob_p:Yep, that's what they assume. It usually works.

Thu Apr 16, 1998 10:28:14 AM moderator_joseph_l:let's talk about the Gary Larson example for a little bit ...

Thu Apr 16, 1998 10:28:25 AM moderator_joseph_l:his Far Side cartoons are immensely popular on the net ...

Thu Apr 16, 1998 10:28:45 AM moderator_joseph_l:and he wrote a letter asking his numerous fans to refrain from putting them on their home pages ...

Thu Apr 16, 1998 10:29:03 AM moderator_joseph_l:saying that he considers the cartoons his "children" ...

Thu Apr 16, 1998 10:29:08 AM bob_p:What is there to discuss? They belong to him. He has a right to protect them. He has a right to all the revenue they generate.

Thu Apr 16, 1998 10:30:15 AM robert_y:He's also someone with a strong, early net presence, so one could argue confusion within the artists medium...

Thu Apr 16, 1998 10:30:50 AM bob_p:Robert, I don't understand what you just said. Please elaborate?

Thu Apr 16, 1998 10:31:27 AM robert_y:Maybe I'm confusing him with another cartoonist, but I though he had his own site on the web some time ago...

Thu Apr 16, 1998 10:32:49 AM bob_p:Not that I've ever seen. Which is not proof of non-existence.

Thu Apr 16, 1998 10:33:28 AM robert_y:Hmm... That would dull my argument, wouldn't it? :)

Thu Apr 16, 1998 10:34:09 AM moderator_joseph_l:what about purely personal uses? should I be entitled to put one of his cartoons on my personal home page, if I find it particularly appropriate?

Thu Apr 16, 1998 10:34:26 AM moderator_joseph_l: (the web equivalent to sticking it on my fridge?)

Thu Apr 16, 1998 10:34:37 AM bob_p:Just checked AltaVista, more that 23000 mentions of +Gary +Larson but no official page is in the top 10.

Thu Apr 16, 1998 10:36:24 AM robert_y:Maybe it's because they're images to start with, but I see the ownership issue as far clearer here...

Thu Apr 16, 1998 10:37:47 AM robert_y: (to bob_p) Probably my mistake - I think I was confusing him with Scott Adams..

Thu Apr 16, 1998 10:37:55 AM bob_p:Yep, I agree. For me it's the fact that Barbie has become a social Icon. Nobody would base art on Midge or the generic 12 inch fashion dolls they sell on the shelf next to Barbie.

Thu Apr 16, 1998 10:38:44 AM moderator_joseph_l:what if I created a page called "the distorted Far Side" (a bit redundant, i know) ...

Thu Apr 16, 1998 10:38:50 AM bob_p:Yeah, I visit the Dilbert site frequently. Our intranet home page even has a direct link.

Thu Apr 16, 1998 10:39:15 AM moderator_joseph_l:and post distorted far side cartoons, with bland and pleasant captions ...

Thu Apr 16, 1998 10:39:35 AM moderator_joseph_l:and justify this as social commentary. same result?

Thu Apr 16, 1998 10:40:16 AM robert_y:One would assume the site would die out of it's own lack of interest :)

Thu Apr 16, 1998 10:40:33 AM moderator_joseph_l:i better keep my day job, eh? :)

Thu Apr 16, 1998 10:40:33 AM bob_p:I can see that you could create "art" that was a parody of Far Side cartoons, or that was even based on distortions of far side cartoons. I think those would be "fair use" too.

Thu Apr 16, 1998 10:41:37 AM moderator_joseph_l:so it's the nature of the use that matters then?

Thu Apr 16, 1998 10:42:25 AM robert_y:Well, yes. Just posting a picture with no change or commentary doesn't have any (obvious) unique effort contributed.

Thu Apr 16, 1998 10:43:47 AM moderator_joseph_l:im curious: do either of you know whether technical mechanisms can be used to prevent people from digitally altering images posted on the web?

Thu Apr 16, 1998 10:43:52 AM bob_p:Isn't that the basis of the "fair use" doctrine? Social parody is specifically mentioned as a "fair use"

Thu Apr 16, 1998 10:45:14 AM robert_y:There is no such mechanism. There are digital watermarks so I can trace the origin, but nothing to stop you from altering it...

Thu Apr 16, 1998 10:45:15 AM moderator_joseph_l:yes, that is a basis. there is also a sense in which personal, non-commercial uses may be considered fair use (e.g. taking a picture of a barbie doll for your own use). does a personal home page fall within this category? or is it different?

Thu Apr 16, 1998 10:46:02 AM robert_y:I think any reasonable person would find it to be different.

Thu Apr 16, 1998 10:46:28 AM moderator_joseph_l:why?

Thu Apr 16, 1998 10:46:55 AM robert_y:In a word, access.

Thu Apr 16, 1998 10:47:14 AM bob_p:You can get close with cryptographic envelopes. But, once it is on your display you can copy it and modify it.

Thu Apr 16, 1998 10:47:33 AM robert_y:A home page is like placing a billboard in front of your house...

Thu Apr 16, 1998 10:49:38 AM robert_y:you have no control over who is going to see it, it's far from "personal" use, etc.

Thu Apr 16, 1998 10:50:43 AM moderator_joseph_l:that distinction makes sense to me. . .

Thu Apr 16, 1998 10:50:55 AM bob_p:What about a photo of my Daughters barbie doll collection sitting in front of her 3 story barbie doll house with Ken at the wheel of the barbie mini-van?

Thu Apr 16, 1998 10:51:49 AM bob_p:The collection and arrangement are hers. Why can't she show people pictures of it?

Thu Apr 16, 1998 10:52:08 AM moderator_joseph_l:interesting hypo. is it posted on your home page?

Thu Apr 16, 1998 10:53:07 AM bob_p:Nope, I'm paranoid enough that my kids don't have home pages.

Thu Apr 16, 1998 10:53:24 AM moderator_joseph_l:good idea. in physical space, it would almost certainly be fair use ...

Thu Apr 16, 1998 10:53:26 AM robert_y:I suppose I'd have to see how it was presented. Are the Barbies in suggestive poses? :)

Thu Apr 16, 1998 10:53:46 AM moderator_joseph_l:the question is whether that changes at all if you post it on line.

Thu Apr 16, 1998 10:54:24 AM moderator_joseph_l:does the world-wide nature of the internet make this kind of personal use effectively impossible on-line?

Thu Apr 16, 1998 10:54:45 AM bob_p:Actually, when she turned 12 she sold the house and the min-van, kept the yacht, and has been making intersting distorted barbies. I found one with 2 heads and a built in machine gun the other day... I worry about her sometimes.

Thu Apr 16, 1998 10:55:21 AM moderator_joseph_l:sounds like she may have a career in social commentary :)

Thu Apr 16, 1998 10:55:50 AM robert_y:Like I said (half seriously), I'd have to see how they were presented. As part of a "this is my life" presentation, it sounds like it should be OK.

Thu Apr 16, 1998 10:55:55 AM bob_p:I think we have a problem of thinking of identity and existence as a local phenomena. With the web we have to think of ourselves existing globally.

Thu Apr 16, 1998 10:58:13 AM bob_p:In the past my scrapbook HAD to be a local phenomena. Now, it is by default a global phenomena. Most people think of their home pages as being like their scrapbooks. They will be very shocked when Mattel threatens them wit a suit for displaying a photograph of their barbie collection. Even if they use barby for a sex toy.

Thu Apr 16, 1998 10:58:56 AM moderator_joseph_l:but is it possible to have an intermediate position? i.e. communities within the web? or is (does it have to be) global when anything is put on the net?

Thu Apr 16, 1998 10:59:32 AM robert_y:Hopefully, it will remain global.

Thu Apr 16, 1998 10:59:54 AM robert_y:Sorry to do this, I've gotta run. See ya next week!

Thu Apr 16, 1998 11:00:07 AM moderator_joseph_l:yep. looks like we are out of time. good discussion guys.