What does overclaiming look like? Just watch Facebook.

We have a remarkable legal system, but its greatest defect by far is the influence sheer economic weight can have on the outcomes it produces.

Back in October, I praised the lawyer for the site formerly known as Placebook for not easily being bullied, for stating straight out that Facebook’s cease-and-desist letter insisting that Placebook’s name would cause customer confusion with Facebook’s trademark very was “very predatory and not reasonable.’’ Of course, she also said that every company Facebook had asserted such a trademark infringement claim against “has rolled over and died, because no one has $6.9 billion to fight them.”

Sure enough, the client decided that the expense of fighting Facebook, even on a meritorious claim, wasn’t worth it. As Melissa Bell of the Washington Post reports, Placebook cried uncle and is now calling itself TripTrace. And now Facebook has taken “Teachbook, a teacher’s network, to court, for ‘rid[ing] on the coattails of the fame and enormous goodwill of the Facebook trademark.’”

The parody site Lamebook, however, has taken the fight straight to Facebook:

the parody site, Lamebook, however, a more direct course of action seemed the right tack. “The Austin-based Web site filed a complaint in Texas against Facebook, asserting its right to the name ‘Lamebook.’”

Happy Thanksgiving: Arlo Guthrie – Alice’s Restaurant

Steinski: The Motorcade Sped On (for November 22)

Matt Ridley: When ideas have sex

Why hasn’t Girl Talk been sued? My answer, sampled and remixed in a new article

Why hasn’t Greg Gillis, who performs and records as Girl Talk, been sued despite (1) the fact his music consists entirely of recorded samples of other recordings, (2) his high profile and success, and (3) the music industry’s insistence — based on very shaky legal grounds — that no recorded sample can be appropriated without permission?

Well, I’ve been saying it for a long time, and I believe I was the first — Gillis is just too good:

I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis’s argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I’d go after someone I am more likely to beat. Othewise, I’d lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

And now comes Joe Mullin, of paidContent.org explaining Why The Music Industry Isn’t Suing Mashup Star ‘Girl Talk“:

So why hasn’t Gillis been hauled in front of a judge by the music industry? Probably because he’s the most unappealing defendant imaginable. Gillis would be a ready-made hero for copyright reformers; if he were sued, he’d have some of the best copyright lawyers in the country knocking on his door asking to take his case for free.

At the Electronic Frontier Foundation, probably the most well-funded public interest group working in the copyright space, lawyers have made it clear for years that they’re positively eager to litigate a case over music sampling, which they believe is a clear-cut case of fair use.

And I’ve said it before myself. I’d love to represent Gillis in that case should it ever come about.

Be creative? Question Authority. Even the CIA thinks so.

Who would’ve thought that the Central Intelligence Agency — often ridiculed by describing its name as an oxymoron — might have such useful resources on creative thinking and problem solving. A chapter on “Keeping and Open Mind” from The Psychology of Intelligence Analysis, sums up the attitude and mind-set any lawyer and law student must cultivate to address the problems they face, problems that — due to the infinite variety of human experience — cannot be solved by merely finding and applying rules:

Creativity, in the sense of new and useful ideas, is at least as important in intelligence analysis as in any other human endeavor. Procedures to enhance innovative thinking are not new. Creative thinkers have employed them successfully for centuries. The only new elements–and even they may not be new anymore–are the grounding of these procedures in psychological theory to explain how and why they work, and their formalization in systematic creativity programs.

Learning creative problem-solving techniques does not change an analyst’s native-born talents but helps an analyst achieve his or her full potential. Most people have the ability to be more innovative than they themselves realize. The effectiveness of these procedures depends, in large measure, upon the analyst’s motivation, drive, and perseverance in taking the time required for thoughtful analysis despite the pressures of day-to-day duties, mail, and current intelligence reporting.

A questioning attitude is a prerequisite to a successful search for new ideas. Any analyst who is confident that he or she already knows the answer, and that this answer has not changed recently, is unlikely to produce innovative or imaginative work. Another prerequisite to creativity is sufficient strength of character to suggest new ideas to others, possibly at the expense of being rejected or even ridiculed on occasion. “The ideas of creative people often lead them into direct conflict with the trends of their time, and they need the courage to be able to stand alone.”

Steinski talks about the origins of musical mashups

There are legal remedies, and there are other remedies too.

From Mary Elizabeth Williams in Salon, here’s a story of blatant copyright infringement, utter ignorance on the part of the infringer, and the force of non-legal remedies. The culinary magazine Cooks Source lifted a 5-year old article by writer Monica Gaudio entitled “A Tale of Two Tarts,” and, without attribution, republished it. When Gaudio contacted Cooks Source’s editor, the editor responded by claiming “I have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut Woman Magazine. I do know about copyright laws.” The editor than proceeded to demonstrate that she knows very little about copyright laws, claiming that anything posted to the internet is “public domain” and that Gaudio should feel grateful and even consider compensating Cooks Source!

[Y]ou should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. . . . We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!”

But this is not a tale of a lawsuit. It is a tale of far more effective remedies. Gaudio blogged about her experience, the incident began to be noticed, and, in Williams’ words:

[The reactions] snowballed as the collective outrage moved off Gaudio’s LiveJournal page and onto – where else? – Facebook and Twitter. Suddenly the [Cook Source's] Facebook page was accumulating new “fans” like a warm apple pie attracts scoops of vanilla ice cream. Let the hilarious public shaming commence!

As Williams recognizes, these type of remedy may be far more satisfying — not to mention far more effective — than any remedy a lawsuit could obtain:

[W]hat [Guadio] – and all of us who’ve been watching along with her – have received is a different and in many ways greater victory. It tastes mighty sweet.

Innovation comes from remixing what we already have.

I’ve written frequently about the myth that creative genius is the product of solitary inspiration and the ways that myth reinforces notions of intellectual property that, under the pretense of rewarding innovation, in fact stifle innovation by preventing the re-use and remixing of existing ideas, creations, and inventions. In reviewing Steven Johnson‘s Where New Ideas Come From, Paul Crowe makes the point that

Greek philosophers said nothing comes from nothing, a new idea, actually a new anything, is simply a rearrangement or unique new combination of things that already exist. When you think of it that way, coming up with new ideas isn’t about having that mysterious “creative” ability, it might be more about a willingness to try lots of new combinations to see what might work, and, hey, anyone can do that, you just need desire and effort.