Category Archives: The Law

Blogging 311 – Collective and Transformed, Copyrightable Expressions as Memes

Harems are memes

It’s actually a very complex topic and I’m not sure I can give it the right treatment right now, without having done all the research I want to. Treat this as an outline I suppose.

But somewhere between the shuffle of the internet, from one viral marketing tool to another, the evolution of Web 2.0, and attention whoring on YouTube or MySpace, there is something going on. Lessig calls it a war, but I think it’s a lot more subtle than that–although it is pretty serious. However, while the war (or whatever you call it) may wage on, there are some players who are the key to understand why it’s an important conflit. Memes are one of them.

For the sake of simplicity, we’ll define and call this construct a “meme” in that it is a icon, like words in a language, that symbolizes and trigger a set of experiences, ideas, and/or emotions. These are powerful currencies that brings us to laughter, to sadness, to help us remember.

1. Memes are powerful, compact, concise devices to invoke elaborate and complex ideas and shared experiences.

As time become increasingly valuable in certain societies and cultures, and as well as the size of our communication devices for mass media shrink over time (not to mention our attention span), it is increasing important to be able to deliver large amount of content over a small area. A picture is worth a thousand words, so they say–that’s why motion pictures and television are powerful? Memes, audio, audiovisual, visual, slogans, simple words, emoticons, or even body language become common methods to express large amount of data over a short time. It’s got the phat pipes, so to speak. And unlike latin or calculus, it is widely disseminated and fast to learn.

2. Increased mobility and intake demands concise and short informational exchanges

In terms of blogging, memes are both the bait and the hook. In some ways it is just another channel to communication and disseminate. Soap box where people can talk back at you. Slashdot is probably the best example. For me, 2ch, 4ch, SA, Wikipedia, Xanga, MySpace, what have you. However the juicy morsels of entertainment and education that draw us to those sites are what memes are made of. Snakes on a Plane? The online craze is unbelievable. Yet that’s what some of us are looking for–good campy movies–to begin with. It just spread like how a meme does.

3. Memes are useful for blogging, blogs create memes.

But speaking of Snakes on a Plane, the obviously stock concept of dangerous creepers in a confined area with a lot of people who can’t leave is hardly copyrightable. In some ways Samuel L. Jackson’s performance involving the various uses of “motherfucking” has more copyrightability (even if it is also not really copyrightable), which is odd. Of course I say this with the disclaimer that don’t take my word for it–the law on the book is fairly settled when it comes to Scene a Faire. Still, it might take a litigation anyways to find out. Can New Line Cinema take on the countless of parodies and references to this cult hit-in-the-making for ages to come? Probably to some success if the money is there. What’s up with the rather high 8.1 IMDB ratings anyways?

4. Memes may use copyrightable or trademarked expressions to get the job done.

5. Derivative claims on memes–not derivative enough too frequently.

If you recall the original flash video for All Your Base Are Belong To Us, you’ll remember a large amount of use of photochopped image ala Photoshop Friday @ SomethingAwful. Parody? Maybe–they’re definitely not making fun of the cultural icons they were using. And you may also recall that’s the reasoning why PA humbled themselves from the Strawberry Shortcake joke they pulled. All these things makes weak, in the context of a fair use defense against copyright infringement, the fair use defense.

And on the topic of Penny Arcade, they’re not a non-profit use per se. I’m not sure if they’ve gone farther with what they’ve had, including PAX and all, but in many ways they’re a profitable entity–enough to subsist Tycho and Gabe’s gaming habits at least. In as much most relevant memes do carry some kind of social value either as criticism, and are often freely traded, they tend to use commercial, copyrighted content that are not news-worthy. There are some that are, such as ones involving 9/11 or the war in Iraq, depending on subject matter.

6. The context in use of memes: commercial, private/public, social criticism, fact/news/fiction. It can affect the fair use defense.

And even though you can’t call AYBABTU a Budweiser ad, or even an ad for an old NES game, it evokes enough of both. What has been transformed? Certainly the images themselves and their contexts, but each of those individual elements were preserved to a sufficient extent that reminds the viewer what they are, to create the juxtaposition necessary for the meme to stick. It’s like noise music in that sometimes you want to preserve the original identity, but it in itself is not the attraction.

7. Transformative nature of memes

There is one big hurdle I think we need to decide, each for yourself. Do you think in today’s mass media society, the pieces of popular culture created and conformed to feed into our feeble minds, belongs to you? Or does it belong to those who created it? Remember, it’s inside your mind.

8. The Lockean balance

9. Redefining the public domain – who owns culture?

I suppose the last question is one that needs to be answered early on. If a movie like Snake on a Plane can be copyrightable, memes would be generally. However what’s the “meme” in SoaP isn’t the film itself, but the shtick and the hype surrounding it.

This is one of the other emerging area of law that is, for the most part, poorly chartered and thought-out. I trace it from the perspective of copyrightable fictional characters (who are some of the best memes themselves, to me). MGM v. Honda is probably the big turning point for it legally, but where does it end?

10. Are memes copyrightable?

I hope this helps you (and me) to focus a bit where the issues are today, and why it is relevant.

Well, why is it relevant? Fanfiction? Doujinshi? AMVs? Even cute little blog posts like Yuribou’s interviews? Why, what about the vibrant fan art or non-fan art that we use, for granted, as avatars, wallpapers, photochopped jokes and e-cards? It all can matter.

And lastly, this is a part of series of entries:


Comic Cosmology or the Future of Doujinshi

YooriStyle

First, that Wired article really needs responding, thx PPP.

Disclaimer aside, the author of that article, Jennifer Granick, is working for Stanford Law School’s Cyber-Law clinic. Did that get me interested? Heh.

I’ve read pieces about doujinshi’s role in the manga-laiden content industry in Japan. I’ve read people shopping for doujinshi in Japan (check out Shingo’s … loot). Now I’ve read the reactionary nudgenudgewinkwink of a law professor’s yaoi doujinshi shopping trip in Tokyo.

Of course, that’s not all. Wired is considered as mainstream press, to me. Doujinshi, however, is not quite a mainstream item even in Japan. It’s the crowning icon of geek fandom, as the semi-annual Comiket is the holy grail of Japanese visual culture fans everywhere. But for us who cares about things like media content cartels and the rights of derivative use of copyrighted works, it’s an anomaly.

Since Suzumiya Haruhi is the top pick for day 3 of Comiket 70, that would make a fine example: Would you allow your fictional creation, the characters, settings, and concept of a juvenile science fiction series to be pasted all over the internet in various form of sexual deviancy? How about the animators and their drawings? The character designers and their designs? The voice actors’ likeness robbed?

Well, I don’t want to know your answer to having your work’s integrity reduced–how about the fact that Shingo spent over $600 on them and a fifth (I didn’t look at his loot pic closely) of the doujinshi he bought ($120) was pornographic, Suzumiya Haruhi doujinshi? Multiply that by, say, 120000 (a rough estimate of attendees on the third day)? Ok I know the numbers are way off and they’re estimates, but it’s still there to make a point: The reality is that in North America, that kind of profit making is not possible; at least not without a big, fat lawsuit attached.

Yet that is just not the case at Comiket, or the doujinshi scene generally. Creators often turn a blind eye to that. The behavior is reinforced when many of the creators themselves are a part of the doujinshi scene. The top two people for the Comiket committee are both professionals in the field; a manga critic and a manga editor for a major publisher. That’s not to mention the number of circles run by people who are professional mangaka, illustrators, designers, animators, etc.

Or the number of “professional” doujinshi circles, for that matter. People can make a living off this? That would be news to me if it didn’t make way too much sense. Even if for the most part doujinshi is inexpensive–usually size of trade paperback comics, and often with some colored pages, each going for about 1000 yen–it also doesn’t take a whole lot to produce one.

And here is where I totally kudos Granick’s second point: a creative environment fosters creative people when they’re allowed to innovate on other people’s intellectual works. It’s a careful distinction I’m making: it’s not about having the bread-cutter and bread so you can invent sliced bread, but being able to use knives, breads, chicken, widgets, and whatever so you can learn how to invent crap as a skill, and being able to make your creation relevant at least to a significant amount of people.

Indie artists and indie comic artists know how hard it is to break in. It’s kind of a serendipitous event that I’m so familiar with Megatokyo, because that could be considered as one of those webcomics that has kinda made it. And how so? It hitched a ride on roads paved by others. At least, if the road construction crew known as Air, Kanon, Martian Successor Nadesico, Bubble Gum Crisis, the concept of shoujo manga, and many other did pass by you, something like Megatokyo might ring a bell.

Indeed, it’s about harvesting that nexus of popular culture in order to web in an audience. It’s totally undeserving, but on the other hand it’s artistic expression at the edge of everything to fill in a vacuum untouchable by the legalities of copyright law and the common practices of copyright IP licensing. Just how do you make a pornographic version of Super Mario Bros crossed with Final Fantasy 7? Yet I’m sure there’s a significant demand for that, you sickos.

The nodnodwinkwink is really just that: America’s content producers and distributors: drop it already. You’re never going to reap where you are never going to sow, so why not let freedom of speech reign? Why not let culture develop like culture does? It fosters creativity! If you worry about integrity, you can still make a point out of that–Japan’s doujin scene is very good about that kind of ethical codes (unlike English-language fansubbers, sadly)! Besides I think any sensible individual knows to keep their Melfoy x Harry Potter yaoi somewhere where the sun don’t shine, and we can just tar & feather those insensible ones anyways.

Second, the future of Comiket.

Talking to a friend who talked to some of the Comiket committee people makes me understand that Comiket itself is just like any other convention structure that you’d expect. Considering the sheer size and the kind of obsessive behavior they have to combat, they actually have quite a tough time. On one hand, the recent years of Comiket had the local riot squad and FD handy at the event, just in case something breaks out; that’s not to mention the scores of security people they hire and the medical people. On the other hand they have to combat things like crime because the overnighters (people who camps out at the Big Sight from the day before) are usually loaded with cash (well, that goes for all the Comiket shoppers), attracting gangsters. Not to mention it’s just a big pain in the ass to anyone who lives near Tokyo Big Sight and the surrounding transit system.

But troubles aside, it’s still the pinnacle and heart of the Japanese doujinshi scene. While doujinshi and the like are sold all year round, in stores as well as in other cons and market gatherings, there’s already that legendary aura around this event. It’s still the de facto commercial end of operations, drawing clubs, circles, veterans and nubz alike. If someone were to pull a calculator and did a net revenue thing, it would yield an impressive number. Even with the fact that the doujinshi scene gets away with rubbing copyright law, it’s becoming a large enough of a thing to worry some corporate interests.

And of course, there’s just a problem with its sheer size. It’s hard to run a con that huge. Otakon capped its attendence in knowing that to run a con that’s even bigger it would require some significant change in its costs, characteristic, venue, and/or organization. From its humble beginning, Comiket went from 750 attendees to its fire-hazardous mass today. The real attendence is sketchy since they’re tallied on a per-day basis, to form a total of 420000 for C70 this past weekend. Obviously a lot of people went on more than 1 day, so there’s a lot of double or triple counting.

Still, one must contemplate the eventual end of Comiket. I’m in no place to guess how it will end and why, but it can’t go on forever. Has it already gone Red Giant? Will it go dwarf or nova next? These are exciting times indeed.


Casulties of War

Hanabi is copyrighted, but sad gothloli in france is probably patented, too.

Last week, the potentially landmark lawsuit LabCorp v. Metabolite got dropped from the US Supreme Court. The three dissents were hell bent on kicking patentability back a notch, and I am with them. However I think everyone who is actually practicing patent law would prefer to let the sleeping beast sleep for some more.

But I guess we shouldn’t speak too fast. In the mid-to-late 1900s we’ve had some serious caselaw over what is obvious in respect to what can be patented. Needless to say it’s a big, grey mucky area that no one can say for sure all the time. As a subscriber of the future curve theory of social and scientific progress, I feel like a war profiteer, going into this industry during such a time of unrest. Indeed times have changed, will our jurisprudence remain?


Nothing Is Obvious

Patentable Subject Matter

It’s just Patently-O, but this and this bothers me.

Seriously, though. Is it really lawyers and judges’ place to make this kind of decision? I really don’t think so, simply because I respect what patents are ultimately trying to do.

Ok, it’s a little dated, but hey.


Killing them softly with his sweet opinion♪

Adjudicator Ciel

This past Monday, the landmark patent law case, eBay v. MercExchange, was decided by the US Supreme Court. You can find the complete slip opinion here. Many other patent law blogs summarized the issue to its extremities and fine grain details, but you can look at it as one of the key battles between so-called patent trolls and big tech corporations in summary.

Surprisingly the Supreme Court came out with a fairly centrist opinion but ruled in favor of eBay (kind of) to vacate the appeals court decision. One of the axioms of the US Supreme Court in the mess that is patent law today was that each Supreme Court opinion messes with the overall structure, harming rather than helping patent litigators, prosecutors, investors and inventors. Why is that? It’s hard to say in short but it might have to do with making laws in the vacuum.

Thankfully this opinion isn’t likely to alter the landscape of law too much. While weakening what injunctions are for patent infringers today, the opinion seemed more corrective than authoritative. The normal elements of injunctive relief is still fully available as they were for decades, and at the discretion of the trial court. The two concurring opinions were very informative and Chief Justice Robert’s opinion re-nailed the opinion of the court:

“The decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.”

The standards, on that note, are:

“(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. “

The surprise is just how the Supreme Court justices couched their positions. It seemed that this is one thing that the various justices tend to agree with, given its unanimous decision with two heavily-joined concurrences. Probably slightly less than exciting, overall, was this case given the hype it had. And all is good.