What’s in the water in St. Charles County?

You’ll recall that’s where Lori Drew was was indicted in a cyber bullying case related to the November 2006 suicide of teenager Megan Meier. The case, publicity and resulting legal responses have been a frequent topic here.

Now, another grown-up is facing felony harassment charges for allegedly placing a Craigslist “casual encounters” ad in the name of a teen ge girl. The ad, which included the child’s photo, phone number, and e-mail address, elicited exactly the kind of emails and text messages you might imagine.

Elizabeth Thrasher, 40, allegedly created the fake personal ad after the 17-year-old girl (whose mother is dating Thrasher’s ex) posted about her on MySpace. The charge of harassment seems non-controversial, and its likely to result in a more mundane prosecution than the federal hacking charges that were eventually brought against Drew.

If only the courts could exercise some prior restraint and keep the moms of  St. Charles County, Missouri, from mixing it up with the kids on MySpace.

Twitter’s laissez-faire approach to trademark enforcement may prove to be a liability after all. Numerous firms have set up services using the Twitter mark: Twitterific, Tiny Twitter, Twitterberry, MadTwitter, TwitterFone, Twitterholic, Twitter Karma, TwitterBuzz, Twitterdex, Twitterlocal, TwitterPoster, TwitterCounter.

There’s no sign that Twitter has defended against such use. Even their API agreement fails to lay down requirements of using their trademark.

Blogger Sam Johnston has discovered that Twitter’s application for the “Tweet” mark has been refused by the USPTO. They note that several Twitter related services have already applied for this mark.

Adam Thierer and Berin Szoka at the Tech Liberation Front have outlined a first draft defining what it is to be a cyber-libertarian:

Cyber-libertarians believe true “Internet freedom” is freedom from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest”—an all-too-convenient facade behind which unaccountable elites can impose their will on the rest of us.

I try to close the door to what they’d call “collectivism” by recalling the private underpinnings of this medium. I post files to a private computer, connected to a private network, which others access at their own choosing.  Where does public interest  enter this scenario of files on private machines?

Yes, some regulators would hold that any capability for mass communication, especially one so widely distributed, should be regulated for public good. But the Constitution’s Amendment for freedom of the press seems suited to protect just such communication from the helpful hand of state control.

Eric Goldman at the Technology & Marketing Law blog recounts a hysterically misguided ruling in Colorado, which holds a hospital liable for trademark and copyright infringement because they mention the ranking they received from a health quality website.

You can’t copyright a number
Imagine enjoining rock bands from saying Billboard ranked them #1, because that ranking “#1″ is copyrighted.  Or a publisher being unable to refer to their New York Times books ranking.  

What’s the creative expression captured in a numeric rating? Sorry, there isn’t any. The formula may be a creative expression, but the result is just a number.

You can use trademarks in commercial speech
More preposterously, the judge concluded that in citing the source of the ranking, the hospital mentioned the plaintiff’s trademarked name, and so infringed the mark. This would be like saying  that if I won an Oscar, I couldn’t mention it without the Academy of Motion Picture’s permission.

Anyway, trademarks absolutely may be used in factual commercial statements. Is there an implied endorsement by doing this? Well, yes.  They are rankings after all.

This ruling would blot out substantial portions of speech by mistakenly extending copyright and trademark far beyond their intended purposes. Rather than protecting expression and preventing confusion about the source of goods, the ruling would interrupt efficient and truthful speech.

We love and hate the Blackberries and iPhones that tether us to the world of work.  I remember having just started my first lead-gen campaign, and receiving an auto-update of new business while riding a chair lift. Having grown up around farms, I’m comfortable with work and life having lots of overlap.

That said, the Wall St. Journal covers two wage and hour cases, where hourly employees have sued to get paid for responding to work issues around the clock. As firms try to do “more with less” they may seek to leverage their teams’ personal time with devices that bring the “real-time” internet into family life.

Someday, it will be a symbol of status not to carry a PDA, or to be immersed in the internet. Meanwhile, we’re still adjusting to the fact that along with the lusted-after devices come hours of extra engagement.

U.S. District Court Judge Leonard Davis has issued a permanent injunction that “prohibits Microsoft from selling or importing to the United States any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML.” View details.

In May, a federal jury in Tyler, Texas, ruled that the custom XML tagging features of Word 2003 and Word 2007 infringed on patent held by i4i. That court ordered Microsoft to pay $200 million in the case.

A 50-person law firm with a national practice in asbestos litigation found that the text of its Elder Law website was copied verbatim as the basis for a new site for a firm in another part of the state.  The plaintiff firm, Brayton Purcell, filed suit claiming copyright infringement, false advertising, unfair competition and misappropriation.

The two-person defendant firm, San Diego-based Recordon & Recordon, argued that it hired a company to construct its website, and that it was unaware that the content was stolen from a competitor without its knowledge.

They further argued that the case had been filed in the wrong jurisdiction, as the firm doesn’t maintain offices or staff within the jurisdiction of the 9th Circuit Court. Without a business nexus in Southern California, they claimed, the case should have been originally filed in Northern California.

The court ruled that since very few competitors exist in Elder Law, the copied site had been “expressly aimed” to compete with the plaintiff firm.

As glad as I am to see plagiarizing law firms held accountable, I must admit that dissenting Judge Stephen Reinhardt has a valid point:

“… express aiming” in these circumstances leaves every website operator vulnerable to the possibility “he will be hailed into far-away courts based upon allegations of intellectual property infringement, if he happens to know where the alleged owner of the property rights resides,” Reinhardt noted “[d]ue process and basic principles of fairness prohibit such an expansive exercise of personal jurisdiction.”

What if the facts were the same, but the companies were within different national boundaries? Would mere knowledge of a competitor create a sufficient nexus for the website owner to be tried in a foreign court?

Though the original verdict may have been from the wrong court, it was the right decision. Recordon & Recordon was found “one-third responsible for the copyright violation” and ordered to pay $24,000 in statutory damages and nearly $37,000 in fees and costs.

The boundless enthusiasm for social media seems to be running into a need for commercial affirmation. I was struck that the most powerful theme on the formal agenda at Podcamp Boston 4 this weekend was measurement and making the business case for social media:

• How do we measure the impact of social media?–Marta Kagan.
• Can you measure social media interactions in a meaningful way–Wayne Kurtzman.
• How do we prove that all this social media effort is worth it?–Justin Whitaker.
• Why bother with social media? (return on assets)–Todd Van Hoosear.
• How do we measure SM engagement – Elizabeth Hannan
• Are you falling for false metrics online and not measuring real ROI? –Leslie Poston

Meanwhile, I’m sitting with about thirty attendees discussing the noticeably heightened narcissism apparent at the event. My take is that this year, social media became a tool of the famous. Those who are “web famous” are now on a spectrum that includes Oprah and the President. And newbies at Podcamp aren’t here just to learn how to enter the conversation, but also to hire, network and upwardly increment their follower count.

One of the Twitter luminaries in attendance spoke about his energy for 24/7 media engagement. He talked about how his kids don’t play with rockets or chemistry sets, and how that generation is missing something. But when our work increasingly becomes our hobbies and dreams, it’s the adults who need to play.

The best moment of the day was pulling out a Frisbee on the grounds of UMass Boston’s Harborside campus and hucking it into the ocean breeze. It felt like a necessary and disruptive act to clear the standard of self-abandonment to social media.

I love the spectacle of people bringing their art and sense of fun to a weekend of enthused community. The commercial track has arrived, and at some level the balance of community, technical, creative, and fun is finding a new level.

That said, there’s still tremendous personal benefit from this community. Fifteen years ago, the Boston Computer Society had its mega-meetings with 100 speakers on varied tech topics at UMass. Today Podcamp, SEMPO, NESEM, MITX, and others are filling a space similar to what that 30,000-member organization did in its day. And it’s still fun to be in the mix.

Fun memory: An organized discussion on “What is Success?” led by Avrom Honig, the young man who created the wonderful video blog of his grandmother passing on her cooking secrets, Feed Me Bubbe.

Perhaps success is loving your creation and others through the labor.

Tip of the hat to Useful Arts co-conspirator, Brandon Lovested, who joined in this year’s fun. Read the thoughts of other attendees by following Twitter hash tag: #pcb4.

Recently, Starbucks made news by announcing the opening of three coffee stores in Seattle that exhibit no corporate branding.

Referred to as “15th Ave. Coffee & Tea,” the new properties feature Starbucks coffee and teas as well as beer, wine, and ice cream, but are devoid of the familiar green-and-black logo. The look and feel of the stores is quite different from Starbucks’s usual interior design formula, and is being described as “European mercantile,” whatever that means.

The aim is to emulate the local coffee shop, complete with annoying music, inane poetry, and “social responsibility efforts” tailored to the locale of each store (perhaps like People for Uninformed Protesting).

I use the word “emulate” precisely because the concept is intrinsically non-genuine; Starbucks isn’t fooling anyone. But is that its purpose?

Starbucks is what it is: a predictable customer experience throughout the world. This is a major key to its success just as much as consistency was to the success of McDonald’s. Whether you are in Kapa’a, Kauai, Hawaii, or in Leicester Square, London, you can expect your strong Venti cup of coffee, or your Chai Tea Latte, with all the permutations of foam, heat, and probably isotopes of your favorite elements.

So why is one of the strongest brands in 20 years un-branding?

Continued