Nordstrom Knocks Off

Knockoffs are everywhere in the fashion world. But it is not everyday you see the same store selling the original AND the knockoff. According to, the shoes above are both at Nordstrom’s:

Have you had your eye on the beautiful Kate Spade ‘Charm’ heels, in all of their sparkly glory, but couldn’t bring yourself to shell out over $300 for them? I noticed that there’s now a knockoff available, and it’s a pretty darn close match, but for less than $100. It’s by Flounce, Nordstrom’s in-house brand. Of course, the original is available at Nordstrom too, and also in gold, silver, and black glitter. Which would you go for?]

The interesting question is who buys the original and who the knockoff. It would also be interesting to know how these are displayed; side by side seems hard to believe, but very close by?

R.I.P. Aaron Swartz

The Internet is on fire today with the news that programming wunderkind and open access activist Aaron Swartz is dead, at the age of 26, and by his own hand.

I (Sprigman) met Aaron back in the mid-2000s at Stanford University. I was a fellow at Stanford’s Center for Internet and Society, and Aaron was doing important work helping to create the architecture for Creative Commons, which was housed right next door to me in Stanford Law School’s basement.  I spent some time hanging out with Aaron, and enjoyed it immensely. He wasn’t a friend, but he was someone I liked and respected. And of course we had a lot of interests in common and Aaron loved to talk . . .

A lot of people have already written lovely, moving tributes to Aaron, including Larry Lessig and Brewster Kahle, two friends that Aaron and I have in common. But I have something to add.  (What I’m about to say is my words alone, not Kal Raustiala’s (with whom I share this blog)).

Aaron’s death is a tragedy. But his death is also a great injustice, for which a specific person must be held accountable. Let me explain . . .

Take a look at Aaron Swartz’s Guerilla Open Access Manifesto. In it, he decries the locking up of academic works in expensive academic journals. He calls on academics to make their work available to the public, not just to elites and universities. And he adds this proviso:

“We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.”

Aaron acted on his convictions. One of his actions involved using MIT’s network to download a huge amount of data from academic repository JSTOR. It is unclear exactly what he planned to do with this material. I suspect he intended to sort out the public domain stuff in the JSTOR archive and release it to the public.

The government’s response was, in a word, insane. Carmen Ortiz (pictured left), currently the U.S. Attorney in Boston, indicted Aaron for violations of the Computer Fraud and Abuse Act, and threatened him with up to 50 years in jail (the original indictment contained charges with a possible maximum totaling about 35 years; a superseding indictment issued in September upped the number of felony counts, and increased the possible maximum penalty). Even though it was clear that Aaron did not intend to profit. Even though JSTOR itself said it had no beef with Aaron and would not pursue a civil suit against him.

The DOJ claims that Aaron “stole” the documents. But that’s complete crap — the documents are available for download to anyone with the proper university credentials. Aaron didn’t steal anything. He used MIT’s network to violate JSTOR’s terms of service — in effect, he checked too many books out of the (electronic) library. So now people go to jail for 50 years for violating online terms of service to download a bunch of academic articles? Are you fucking kidding me?

I strongly suspect that Aaron would have beaten the DOJ in court. I’m sorry we won’t see that day. U.S. Attorney Carmen Ortiz is out of control. She should face some serious consequences for what’s happened here. Starting with removal from her job.

I’m not saying that what Aaron did in the MIT episode was right. I would not have done it (even if I had the hacking skills to get the massive amount of data from JSTOR, which I definitely don’t). I don’t think that Aaron’s more forceful strategies for realizing open access are, on balance, good for the public in the long term. But of course Aaron’s agenda was much broader, and he spent most of his time not hacking into databases, but helping to build the infrastructure and norms that support open access. And in that, I believe that Aaron was right in both theory and practice.

In any event, I would understand if Aaron had been found guilty of trespassing and fined. Or even if he received some sort of minimal jail time . . . although frankly that should have been days, at most. But the government’s indictment was an absolutely bottom-barrel scummy move. Labeling Aaron a felon, and threatening to put him in jail for (in effect) the rest of his life is a move that only a prosecutor with extremely poor judgment and no real knowledge of the issues at stake could contemplate.

Finally, it’s worth noting that the DOJ had some history with Aaron that suggests impure motives. A couple of years ago, Aaron accessed the federal government’s PACER database, which charges very stiff fees for access to public court documents, and he downloaded a huge tranche of data and posted it publicly. Although he violated no laws, the DOJ and FBI gave Aaron a thorough going over. I strongly suspect that when they saw the chance to get even with him, they took it.

Shame on Carmen Ortiz. Shame.

If Ortiz has a conscience she will resign. If not, then President Obama should remove her.

More Apple v. Samsung

We’ve written a lot about Apple and Samsung over the past few months, and the two tech giants continue to battle it out in courtrooms around the globe. But in the most important venue of all–the market–Samsung is winning.  However, Apple may be gaining, albeit very slowly.

As CNET reports,

Samsung continues to reign over the rest of the mobile-phone industry in the U.S., according to the latest stats from ComScore.

Looking at the three months ending with November, Samsung won 26.9 percent of all mobile subscribers in the U.S., a 1.2 point gain from the prior three-month period. Apple took home second place with 18.5 percent of the market, a gain of 1.4 points.

Samsung continues to wear the crown, but its share hasn’t grown much from a year ago. In contrast, Apple has slowly been rising up the ranks. For the three months ending with November 2011, Samsung’s U.S. mobile share was 25.6 percent. At the same time, Apple was in fourth place with a share of just 11.2 percent.

Samsung has enjoyed huge demand for its Galaxy S3 smartphone. But the iPhone 5 has given Apple a big boost. Some analysts predict higher sales than initially expected, especially since supply of the new iPhone caught up with demand in November.

The other top three mobile players haven’t fared as well, all watching their market share inch down for the three months ending with November 2012. In third place, LG grabbed 18.2 percent of the market, followed by Motorola with 11.2 percent and HTC with 6.3 percent.

Free Copyright Course

The big new thing in the academic world is the MOOC: massive open online course. Several firms have begun offering MOOCs on a range of topics, and elite universities (and some nonelite) are scrambling to figure out whether, and how, to embrace online learning in a serious way.

A lot of these courses have been in the sciences or engineering, but that may start to change.  One harbinger is a new course offered out of Harvard Law School by Terry Fisher, via edX. As this article from Education Week explains,

HLS1x Copyright (affectionately known as CopyrightX) will not be a MOOC. edX is an institution charged with using networked learning experiences to improve learning opportunities on campus and online, and not everything it does has to be full open enrollment. As the announcement of CopyrightX explains:

Enrollment for the course is limited because we believe that high-quality legal education depends, at least in part, upon supervised small-group discussions of difficult issues. Fidelity to that principle requires confining the course to the number of participants that can be supervised effectively by our 21 teaching fellows.

So while not everyone can play this year, the several hundred folks who do get into the course will have an opportunity to have a learning experience very similar to the one offered to students at HLS: lectures and carefully curated readings from a leading expert and discussions facilitated by senior HLS students. You’ll even have to sit for a three hour exam, just like everyone else at HLS, to get your certificate.

As someone who took both IP and Property from Terry Fisher, I can say that he is a terrific teacher. Anyone who can take this course should take it.

Restaurant Copying

The New York Times recently ran a fascinating article about the globalization of restaurants–in particular, the spread of New York-based restaurant and chef brands (such as Mario Batali) to Asia and other emerging economies. The article underscores the far greater value of a brand in a global marketplace. The photo above is of Batali’s new Hong Kong Lupa restaurant, which looks absolutely nothing like the original on Thompson Street (pictured below left).

At the same time, it points out how IP law is a local phenomenon. Nothing stops a savvy entrepreneur in a foreign locale from copying the menu, look, or even name of a well-known New York establishment. As the Times points out:

 Tom Colicchio, whose holdings in the United States include two Craftsteaks, was surprised a few years ago to find out that Mr. Sekhri had named his own Hong Kong restaurant Craftsteak.

“The guy never called me,” he said of Mr. Sekhri. “I never had a conversation with him.”

Mr. Sekhri denies knowing about Mr. Colicchio’s restaurants when he chose the name. Their restaurants “are different,” he said, adding that “we are supported by the trademark and intellectual property laws in Hong Kong. If you register the name, you own that brand, under Hong Kong law.”

Mr. Colicchio said, “We called our trademark people, and they said we’d spend a lot of money but we weren’t going to get anywhere.”

Yet surprisingly, Mr. Colicchio was conciliatory. Mr. Sekhri is “by all accounts good at what he does,” he said. “I’m not bitter, and I wouldn’t be against working with him” on a future project.

“How Copyright Protection Makes Books Vanish”

Last spring The Atlantic ran a story with the provocative subtitle replicated above. It highlights a striking graph from law professor Paul Heald, illustrating some of the downsides of copyright protection for book access:

Amazon pub domain.png

Here’s an excerpt from The Atlantic, which in turns quotes Heald on the significance of this data. All very interesting, if preliminary:

The above chart shows a distribution of 2500 newly printed fiction books selected at random from Amazon’s warehouses. What’s so crazy is that there are just as many from the last decade as from the decade between 1910 and 1920. Why? Because beginning in 1923, most titles are copyrighted. Books from before 1923 tend to be in the public domain, and the result is that Amazon carries them — lots of them. The chart comes from University of Illinois law professor Paul Heald. In a talk at the University of Canterbury in March 16, he explained how he made it and what it shows. He said:

This is super exciting, interesting preliminary data, I think. I had one of my students write a computer program that would crawl through and pull 2,500 fiction titles at random. … The findings are absolutely fascinating.

We broke these out by decade. … You would expect that if you can crawl through Amazon looking at only new books and only books sold by Amazon — so these are not used books, these are not sold by Amazon associates, this is what’s in Amazon’s warehouses — of course, the biggest number of books is from the decade 2000-2010. That’s what you’d expect; they’re more recent, more popular. Drops off really quickly for books in the 1990s, 1980s, 1970s, ’60, 1950, 1940, 1930 — here’s the point in time where books start falling in the public domain. Suddenly it goes up and up and up. There’s as many books [that] Amazon is selling brand new right now from the 1900s to 1910 as from the 2000s to 2010. You go all the way back to 1850 — there’s twice as many books from the 1850s being sold on Amazon right now as the 1950s. So this sort of confirms the notion that there’s some sort of positive public-domain effect …

Heald says that the numbers would be even more dramatic if you controlled for the number of books published in those years, because there are likely far more books published in 1950 than in 1850.

Apple v. Samsung — judge refuses to block Samsung smartphones from market

Having won a $1.05 billion jury verdict against Samsung, Apple sought to have the court issue an order blocking a number of Samsung smartphones from the U.S. market. Today, Judge Koh refused Apple’s request. Judge Koh noted Samsung’s claim that it has modified its phones in a way that “works around” Apple’s patents (i.e., by providing the same or similar functionality, such as “pinch-to-zoom”, but in a manner not claimed in Apple’s utility patents). And in any event, in the judge’s view, Apple had not presented sufficient evidence to prove that its patented features drove consumer demand for Samsung’s phones. Absent such evidence, Judge Koh stated, Apple’s remedies for Samsung’s patent infringement would be limited to money damages.  Here’s a nugget from her decision denying Apple’s request for an injunction:

“The phones at issue in this case contain a broad range of features, only a small fraction of which are covered by Apple’s patents. [. . .] Though Apple does have some interest in retaining certain features as exclusive to Apple, it does not follow that entire products must be forever banned from the market because they incorporate, among their myriad features, a few narrow protected functions.”

So, what happens next?  In the short term, more fighting. Apple is asking the judge to increase the jury’s damages award, while Samsung is looking to have it reduced or thrown out altogether. And still to come is a second Apple U.S. lawsuit against Samsung, aimed at some newer phones it says infringe Apple patents. And there are multiple lawsuits abroad.

In the longer term, the question is whether Apple and Samsung can make a deal, as Apple recently did with giant Taiwanese smartphone maker HTC.

But here’s the most important part — as Apple wins court victories, Samsung is winning in the marketplace. Samsung recently overtook Apple as the world’s top smartphone maker. In the third quarter of 2012, Samsung sold 55 million smartphones worldwide to Apple’s 23.6 million, which gave Samsung 32.5 percent of the market versus Apple’s 14 percent.

Has Samsung been slowed by its courtroom woes? Not yet.

Google vs. Belgium

We’ve noted the battle between Google and European newspapers, who don’t like Google News and think its aggregation service is hurting their business. In Belgium, it appears that a solution has been found, at least for now:

Google has settled a long-running dispute with Belgian newspapers over copyright complaints. The case dates back to 2006 when a group of publishers sued Google claiming the use of headlines and snippets of Belgian newspaper articles in Google New amounted to copyright infringement, and so did providing links to cached copies of articles in its web search results. After some back and forth, a Belgian court sided with publishers, Google lost its appeal and in September 2011 it removed all links to compy with the ruling.

Since then the two parties had engaged in talks to reach the “most reasonable” solution and now they’ve dropped all litigation under a new deal. In short, Google isn’t admitting to copyright infringement and says it isn’t paying publishers for their content, but rather will collaborate with them on a range of initiatives to increase their revenue. That includes purchasing millions of dollars of advertising space in the papers, integrating Google services into the publishers’ content, and assisting with distribution on mobile devices.

Google will start referencing Belgian newpapers in its news aggregation service again, but cached content on web searches is still off limits. The company is also paying all the legal fees for Belgian papers, signaling it had the losing hand in this arrangement despite framing it as a win-win.