
EFF, CloudFlare Asks Court Not to Force the Internet to Enforce Trademarks - DiabloD3
https://www.eff.org/deeplinks/2015/06/eff-cloudflare-ask-federal-court-not-force-internet-companies-enforce-music-labels
======
rayiner
The EFF is fighting for the right thing here, but it loses credibility when it
mischaracterizes legal procedure to make things look extra-scary.

E.g.

> Often this order is initially drafted by the entertainment companies.

Courts usually _require_ parties making a motion for some relief to submit a
proposed order that has the desired effect. It saves time and makes it clear
to the court exactly what the party is asking it to do.

The article also uses the phrase "secret order" like a million times.
Obviously they're not secret because links are posted right in the article.
What they're talking about is a (temporarily) sealed temporary restraining
order.

15 USC 1116(d)(8) states: "An order under this subsection, together with the
supporting documents, shall be sealed until the person against whom the order
is directed has an opportunity to contest such order, except that any person
against whom such order is issued shall have access to such order and
supporting documents after the seizure has been carried out."

If you read two provisions before that, 15 USC 1116(d)(6), you find why the
order is sealed: "The court shall take appropriate action to _protect the
person against whom an order under this subsection is directed_ from
publicity, by or at the behest of the plaintiff, about such order and any
seizure under such order."

~~~
eli
I noticed this with another EFF post earlier this year. I'm sure this sort of
dire tone plays well on Reddit, but I hope it's not becoming a strategy.

~~~
wmf
Remember when SOPA was "breaking the Internet"? There's nothing new about the
EFF's sky-is-falling rhetoric. It's just activists being activists.

~~~
Karunamon
I'm not sure that's exactly an overblown characterization of SOPA. If you
thought DMCA abuse was bad, SOPA would have ramped it up to insane levels.

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bcg1
"I would encourage you to support any proposal that would result in the
maximum engagement by the MPAA in Internet governance. Of all the things we do
to protect our industry, this one is fundamental. Ron Wheeler put it well when
he said if we’re not there we don’t count."

\-
[https://wikileaks.org/sony/emails/emailid/112456](https://wikileaks.org/sony/emails/emailid/112456)

~~~
contingencies
For context, that was one (US) Sony Pictures and Entertainment (which is
specifically the US wing of Sony dealing with content production and
licensing) executive emailing another in June 2014, as leaked via Wikileaks.
IIRC Sony is not one of the larger studios, so if we learn anything it is that
this degree of scheming is present even in the tiny cutesy wee little
megacorps.

Incidentally, in another of Wikileaks' public interest projects, consider
pledging some cash to uncover TPP @
[https://wikileaks.org/pledge/](https://wikileaks.org/pledge/)

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cbr
Trademarks are generally restricted to a single domain [1], which would mean
that these music companies would only have rights to the Grooveshark mark when
used in a music context. If there's a company out there that sells a product
for grooving pavement that they call "Grooveshark" and sell it on
groovesharkpaving.com then there's no domain overlap, but the court's order
still asks CloudFlare to block them.

[1] Business context, not domain name. So "computers", or "food".

~~~
briandear
You are absolutely correct, however one would need to examine the filing
classes to be sure because if any part of the trademark class includes "xyz
delivered over the Internet," then they could potentially have a claim to any
possible use. However, I would love to start a mountaineering equipment
company called GrooveShark and see what would happen when I file a trademark.
I could potentially then have ISPs block the so-called 'real' GrooveShark for
infringing on my equally valid mark. I could potentially use the case law from
the current case as a legal argument to block the other GrooveShark. That
might be fun.

~~~
jfoutz
k.c seems like a much cooler trademark. you can still take a swing at
grooveshark.com, and if you have any money left, you can head over to
facebook.com

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leereeves
> _the court said that CloudFlare has to block every user with a domain name
> that contains “grooveshark,” no matter who owns the site_

What is the legal basis for this?

"Grooveshark" is long and unique, but by this principle, could King.com shut
down every domain that contains the word "candy"?

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JohnTHaller
They've gone after every game that uses the word 'saga', so they might try to.

~~~
themartorana
As have Zynga with "With Friends" and Scopely with "With Buddies" and
Microsoft with "Windows" or MikeRoweSoft [0]...

You can quickly lose a trademark if you don't actively defend it (weird,
considering patents and copyrights) so companies quickly get over zealous.

That said... For reasons that defy explanation, courts have been known to
uphold trademark protections for common words ("Windows") even though
trademark law explicitly forbids trademarks on common language words and
phrases.

[0]
[https://en.m.wikipedia.org/wiki/Microsoft_vs._MikeRoweSoft](https://en.m.wikipedia.org/wiki/Microsoft_vs._MikeRoweSoft)

~~~
pbhjpbhj
>You can quickly lose a trademark if you don't actively defend it (weird,
considering patents and copyrights) so companies quickly get over zealous. //

It's oft repeated but not true AFAICT. Genericisation can be a problem, but
another company using something as a trademark for a distinct type of
good/service won't make your mark more generic. You lose a registered
trademark by not paying your renewal fee.

If you wanted to codify someone else's use then you could grant them a
license, you don't have to sue them or start infringement proceedings or
whatever. You're free to ignore one infringement and pursue another.

This is like saying you have to prosecute every person who steps on your land
or you lose the right to prosecute trespassers; if you allow a right of way to
be established then yes that's probably not going to help you. But you're
allowed to let someone in to your garden and you're allowed not to sue people
who make incidental incursions.

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smutticus
I don't know why the EFF is praising ICANN for not becoming the Internet's
trademark enforcer. Every new gTLD must deal with the Trademark Clearinghouse.

[https://en.wikipedia.org/wiki/Trademark_Clearinghouse](https://en.wikipedia.org/wiki/Trademark_Clearinghouse)

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rdl
I had no idea there was no concept of "safe harbor" with respect to trademark.
The especially bad part here is while copyright seems to benefit small and
large players alike (while imposing costs on small and large players),
trademark benefits accrue primarily to big players, and costs to small players
and individuals.

~~~
asift
Why do you feel copyright benefits small and large players alike? I agree the
relative advantages of some forms of IP are greater than others, but the
scales seem to be tipped towards large players in most cases.

~~~
briandear
I highly disagree. My little company, iCouch has a registered trademark. With
that protection, we've been able to easily fend off infringement and potential
infringement from some rather large players. If, hypothetically, Apple were to
attempt to use that name, it would instantly destroy our brand value that
we've spent over 5 years building (in the behavioral health tech industry.) a
little guy having IP protection prevents and has prevented getting steamrolled
by a much better funded company. Without that protection we'd have a huge
exposure to our brand being co-opted either intentionally or not by another
company. Copyright and trademark protection is especially valuable for the
little guy; even more so that someone who could 'win' by simply having a
massive marketing budget.

There's an almost visceral opposition to IP protection among some factions on
HN; but imagine if every time you start a company, a competitor instantly
starts using your name. Imagine if every piece of content you create is
instantly cloned by a competitor. You'd never be able to succeed because you'd
have no way to differentiate yourself from the other company of the exact same
name doing the exact same thing as you using your exact code and selling to
your customers using your information. It's kind of like a world with
absolutely zero friction.

~~~
arfar
IANAL, but I know I do know a little bit about this stuff. Don't take this as
legal advice.

I'm sorry to say this, but the Apple scenario you've set out isn't _always_
going to be true. There's a thing called "Reverse Confusion" which says
effectively (in my non-lawery words):

Why should some tiny wee company stop the well established brand reputation of
a larger company? Big company has so much goodwill and reputation under this
mark (from overseas or something like that), they should be able to use it.

On the face of it, it doesn't make much sense, but there's case law around it.
If you're worried about something like that, definitely talk to a lawyer.
Obviously this depends entirely on where you live and your local laws, but
this case has come up in New Zealand very recently (I think it might still be
being tried) with Uber. The taxi company were still able to use their trade
mark, even though someone already had a mark in a vaguely similar domain
before Uber were even around.

here's the first link I found on it if you wanted to read up about it more.

[http://definitions.uslegal.com/r/reverse-confusion-
trademark...](http://definitions.uslegal.com/r/reverse-confusion-trademark/)

~~~
leereeves
From that link:

 _The first user [the smaller company] is virtually always the prevailing
party in any trademark litigation._

 _The doctrine of reverse confusion is intended to enable small, senior users
to protect their trademark rights against junior users whose marks have gained
commercial strength through extensive marketing._

 _reverse confusion can be a powerful weapon in the arsenal of lesser known
companies in terms of protecting their trademark rights and as leverage
against larger users._

~~~
arfar
Sorry, yes you're right. I should've read the link I posted, I just assumed it
would be the same as how its treated in New Zealand. Obviously reverse
confusion is dealt differently in different parts of the world.

Looks like US treats reverse confusion as if it were simply direct confusion.
I'm pretty sure that's not the case where I live.

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istvan__
I would just add a rule into the loadbalancer config, if the request is coming
from the music industry or a government agency redirect them to an empty
website. (I am kidding).

~~~
lugg
I wish you weren't. Seriously, if we can't vote people in to make sane choices
with policies, lock them out.

It might sound stupid, but they would at least have to learn a little bit
about the internet before they made their next move.

~~~
Natsu
If you want to do one better, put up something like "website blocked" as if it
were some overzealous corporate firewall deciding that the site was bad.

With any luck, they'll think it's their own fault.

~~~
istvan__
This is brilliant!!! :)

~~~
Natsu
Bonus points if you have the site blocked under the 'file sharing' category or
something like that :)

~~~
istvan__
I was kinda curious, is it legal to put that picture on your website on your
own?

~~~
Natsu
If you're copying logo or using someone else's trademark from a real firewall
page, that's a bad idea. But it can't be too hard to create a generic 'block'
page that looks similar enough to real ones without using anyone else's images
or logos to be convincing.

~~~
lugg
Just don't use anything federal to try and imitate.. that ends badly pretty
much every time.

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yabatopia
This case is another example that secret court orders have no place in a
democracy. This practice has to stop before it becomes even more widespread in
the USA, the UK and other European countries.

