James Boyle’s New Book ‘The Public Domain’

Yale University Press has just published James Boyle’s new book about the damage being wreaked by intellectual property laws, The Public Domain: Enclosing the Commons of the Mind. Boyle also has a website for the book at ThePublicDomain.org, where the book can be downloaded for free as a PDF (the book is available under a Creative Commons Attribution-Noncommerical-Sharealike license).

According to the web site,

Our music, our culture, our science, and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free, between intellectual property and the public domain. In The Public Domain: Enclosing the Commons of the Mind James Boyle introduces readers to the idea of the public domain and describes how it is being tragically eroded by our current copyright, patent, and trademark laws. In a series of fascinating case studies, Boyle explains why gene sequences, basic business ideas and pairs of musical notes are now owned, why jazz might be illegal if it were invented today, why most of 20th century culture is legally unavailable to us, and why today’s policies would probably have smothered the World Wide Web at its inception.

. . .

With a clear analysis of issues ranging from Thomas Jefferson’s philosophy of innovation to musical sampling, from Internet file sharing and genetic engineering to patented peanut butter sandwiches, this articulate and charming book brings a positive new perspective to important cultural and legal debates, including what Boyle calls the “range wars of the information age”: today’s heated battles over intellectual property. Intellectual property rights have been viewed as geeky, technical and inaccessible. Boyle shows that, as a culture, we can no longer afford the luxury of this kind of willed ignorance.   The “enclosure of the commons of the mind” matters and it matters to all of us. “Boyle has been the godfather of the Free Culture Movement since his extraordinary book, Shamans, Software, and Spleens set the framework for the field a decade ago,” says Lawrence Lessig,  “In this beautifully written and subtly argued book, Boyle has succeeded in resetting that framework, and beginning the work in the next stage of this field. The Public Domain is absolutely crucial to understanding where the debate has been, and where it will go. And Boyle’s work continues to be at the center of that debate.”

Marvel & DC’s Super Powered Trademark

In the latest issue of Reason (not online yet, unfortunately), Matt Welch has an article about his early, misplaced optimism of the role that blogs and amateur journalism would have. If anything, I was even more optimistic than Welch. Take a tool like Google where it is almost trivially easy to track down and fact check any bit of trivia along with blogs and open source CMS systems that reduced the cost of publishing to the entire world to next to nothing, and the result should have been a journalistic renaissance.

Apparently not. The reality is that if a given claim fits a person’s preconceived notion of the world, then most people will not factcheck it. So if you survey a random sample of blogs, I suspect you would find far more misinformation therein than in any comparable sample of traditional media (which is definitely not a compliment to traditional media).

A good example of this involves a series of inaccurates posts on the extremely popular techno-culture weblog Boing! Boing!. A contributor to news aggregation site Digg.Com submitted a link to a Boing! Boing! article about Marvel’s trademark of the word “super hero.”

Another contributor to the Digg site responded that a) Boing! Boing! looked like NASCAR (I counted no less than 20 ads on the front page) and b) that the information on Boing! Boing! was factually incorrect.

The response from other Digg.Com contributors was to mod such comments down with responses largely being variations of, “How could you mod down a Boing! Boing! article?”

But if you look at Boing! Boing!’s post on the trademark issue, it leaves out an important detail,

Marvel Comics: stealing our language

Marvel Comics is continuing in its bid to steal the word “super-hero” from the public domain and put it in a lock-box to which it will control the key. Marvel and DC comics jointly filed a trademark on the word “super-hero.” They use this mark to legally harass indie comic companies that make competing comic books.

First, the trademark at question is for “super hero” and “super heroes.” A number of sites have falsely concluded from Boing! Boing!’s ambiguous post that Marvel and DC have just recently applied for a third trademark for “super-hero” and “super-heroes.” The hyphenated version is so similar to the non-hyphenated mark, that it is almost certainly already covered by the claimed trademark (in the same way that Marvel doesn’t have to trademark “Spider-Mann” to prevent another comic book company from publishing that title about a web slinging wall crawler).

Second, Marvel and DC don’t just claim such a trademark. Trademarks for “super hero” and “super heroes” costumes and toys was granted 40 years ago, and DC and Marvel were jointly granted the trademark for “super hero” and “super heroes” for comic book publishing purposes in the early 1980s. Both trademarks and their history can be freely examined on the USPTO web site.

A little fact checking, please.

Now on the bigger issue, Boing! Boing! is absolutely correct — it is absurd that Marvel and DC were allowed to register such a common term as their trademark. They have used their trademark to enjoin a number of publications that wanted to use “Super Heroes” in the title of the publication, typically leading companies to come up with new titles. For example, if I wanted to create a parody book, “The Secret History of Super Heroes”, Marvel and DC could force me to change the title.

This is ripe for a legal challenge on the grounds that super hero was already sufficiently diluted as a generic term when Marvel and DC registered it and that they’ve done nothing to establish “super hero” as referring exclusively to Marvel or DC properties. Certainly they don’t incorporate it in their logos or any of their publications on a consistent basis.

Marvel and NCSoft Settle Lawsuit Over “City of Heroes”

Not much in the way of details, but late last year Marvel settled its lawsuit against NCSoft, makers of MMORPG “City of Heroes.”

Marvel had sued NCSoft saying the ability of players to make characters that looked very similar to Marvel heroes represented copyright and trademark infringements.

This was pretty clearly a defeat for Marvel given that a press release from NCSoft announcing the settlement said,

The parties’ settlement allows them all to continue to develop and sell exciting and innovative products, but does not reduce the players’ ability to express their creativity in making and playing original and exciting characters. Therefore, no changes to City of Heroes or City of Villains’ character creation engine are part of the settlement.

I’ve actually been playing a bit of CoH ever since I kicked my WoW addiction. It is a pretty good game, though not nearly as compelling or enjoyable as WoW was.

At least when I play, I rarely see rip-offs of DC or Marvel characters. That’d be pretty boring anyway. Currently I’m playing The CandiMan. After all, who can stop criminals in their tracks? The CandiMan can!


Marvel vs. City of Heroes lawsuit settled. GameWinners.Com, December 15, 2005.

Lego Loses Canadian Trademark Lawsuit — Thank Goodness

The other day I mentioned Lego’s longstanding financial problems and why I think it has had such problems earning profits. One thing I left out was Lego’s focus on silly lawsuits. All other things being equal, a company that decides to deal with its competitors in the legal arena rather than the marketplace is a company that has completely lost its direction.

Lego’s trademark lawsuit against rival Mega Bloks was especially egregious. Lego’s patents on its plastic bricks began running out in the 1970s — in Canada it lost its patent protection in 1988.

Rather than try to out-compete Mega Bloks and other competitors, however, Lego has tried to exclude them from the marketplace with ridiculous trademark lawsuits. Since its patent has run out, Lego has claimed that it has a trademark on the look and feel of its plastic bricks, and that any companies that make plastic bricks compatible with Legos are violating that trademark.

The Canadian Supreme Court unanimously rejected this bizarre line of reasoning, correctly noting that,

Trademark law should not be used to perpetuate monopoly rights enjoyed under now-expired patents.

. . .

The fact is . . . that the monopoly on the bricks is over, and Mega Bloks and Lego bricks may be interchangeable in the bins of the playrooms of the nation — dragons, castles and knights may be designed with them, without any distinction.

Unlike the privately-held Lego, which is bleeding money, the publicly traded Mega Bloks recently posted a $20.4 million profit in the 3rd quarter of 2005. On the other hand, the general view among plastic brick aficionados is that Lego bricks are much higher quality and Mega Bloks are, in general, cheap Lego knock offs.

Also some of the stories referenced here incorrectly state that Mega Bloks bricks are not compatible with Legos. Mega Bloks, like Lego, manufactures a number of different sized bricks, and its “Micro” bricks are, in fact, compatible with standard Legos.


Mega Bloks wins SCOC ruling on Lego trademark. CBC News, November 17, 2005.

Lego can’t block toy maker Mega Bloks, says Supreme Court of Canada. Allan Swift, Canadian Press, November 17, 2005.

Lego Wants Trademark in “Look and Feel” of Plastic Bricks

The New York Times had an interesting article about how the Lego Corporation tries to bully other companies that make interlocking plastic bricks that compete with Lego.

Lego’s main patent on its interlocking plastic bricks expired in 1978, and a number of companies have produced competing products since then. Lego has taken a creative if bizarre approach — since it no longer has a patent in interlocking plastic bricks, its attempted to get trademarks in the image of an interlocking plastic brick. According to The New York Times,

Without any major patents, Lego shifted toward trademark and copyright laws to protect its market. In particular, Lego has tried in many countries to register the appearance of a standard Lego brick with eight studs on top as a trademark.

While Mr. [Poul Hartvig] Nielsen [Lego’s chief counsel] accepts the concept that patents are only supposed to give inventors limited protection from competition, he insisted that Mr. [Ole Kirk] Christiansen [Lego’s founder] designed his bricks with “eye appeal,” which is still covered by copyright and design laws.

So far that argument has won in China, but been rejected by European courts. Lets hope this is a non-starter in the United States.


Building a Legal Case, Block by Block.

‘City of Heroes’ Maker Files Motion to Dismiss Marvel Lawsuit

NC Soft, makers of MMORPG ‘City of Heroes’, has filed a motion to dismiss Marvel’s lawsuit claiming the game is one big copyright/trademark violation factory, since the game’s character creation system allows players to create characters similar to Marvel (or DC or any other superhero property) characters.

NC Soft’s motion, among other things, argues that,

Kids with wandering imaginations have long decorates school notebooks with pictures of fantastic and supernatural beings of their own design. The ingenuity of individuals, as expressed through the creation of characters incorporating timeless themes of mythology, patriotism, “good,” and “evil,” has been a source of entertainment in the form of role-playing games for ages. In the face of technology that enables individuals to engage in such activities in a virtual, on-line context, Marvel Enterprises, Inc. and Marvel characters, Inc. (collectively, “Marvel”) have taken the unprecedented step of attempting to appropriate for themselves the world of fantasy-based characters, based upon alleged rights in works purportedly embodied in four comic books.

. . .

City of Heroes is a tool that encourages originality, not slavish copying. It allows young and old to exercise their imaginations to create super-powered beings and send them off to interact with the creations of other individuals in a virtual world called Paragon City. If it should be banned, then so should the #2 pencil, the Lego block, modeling clay, and anything else that allows one to give form to ideas. In Marvel’s view of the world, if people should play online games with super heroes, they must only play with licensed Marvel characters, and imagination shall be damned. Marvel’s attempt to monopolize online “hero” games and quash creativity has no basis, and its complaint should be dismissed.


NC Soft Files Motion to Dismiss Marvel Suit. Newsarama.Com, Undated.