LawLawLaw 2011-11-18

A newsletter by Clock Tower Law Group founder Erik J. Heels about trends in technology, intellectual property (IP) law (patent law, trademark law), baseball, and rock ‘n’ roll.


I, Erik Heels, a lawyer, do hereby swear and affirm that this is my LawLawLaw newsletter: read/subscribe at

LawLawLaw is about technology, law (mostly patents and trademarks), baseball (mostly Red Sox), and music (mostly rock). Besides being an attorney, I’m good at spotting trends, connecting people on social networks, fixing things, solving Rubik’s cube, and a handful of other things.

I try to keep LawLawLaw short (fail), relevant (win), and timely (draw). Did you know that messages must be heard seven times before being acted on? So please forward this to your friends. Please please please please please please. There. My work here is done. Thanks thanks thanks thanks thanks thanks thanks!

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Technology, Law, Baseball, Rock ‘n’ Roll

Client Stuff

Clock Tower Law Group has some wicked cool clients. Here’s what some of them are up to. I mean, here’s up to what some of them are.

  1. The Founding of PatientsLikeMe (2011-07-21)
  2. Is Encryption The Solution To Cloud Computing Security And Privacy? (2011-08-04)
  3. Monetate Raises $15 Million For Realtime Testing And Targeting Platform (2011-08-04)
  4. BuyWithMe Acquires Scoop St., Its Fifth Daily Deals Acquisition This Year (2011-08-16)
  5. CloudSwitch to be Acquired by Verizon to Simplify Secure Cloud Services (2011-08-25)

Tech Stuff

We are now 16 years into the Internet age. Newsweek magazine (remember magazines?) declared 1995 to be the year of the Internet. But we’re still working out the bugs.

Print publications are going away, websites are rushing to be mobile-friendly, music (and everything else) is moving to the cloud.

I wrote about the passing of Steve Jobs separately. I purchased my first iPad the day after he died. Note that Dilbert now refers to desktop PCs as “grandpa boxes.”

  1. Dilbert: Desktop Computers Are Grandpa Boxes (2011-08-03)

  2. Drawing That Explains Why Google+ Doesn’t Suck (2011-08-31)
    Any why Facebook is panicking.
  3. As Yahoo Continues to Struggle, CEO Carol Bartz Is Fired (2011-09-07)
  4. Advice For Startups From A Giant Robot Dinosaur: BE ON FIRE (2011-10-25)
  5. Jess vs. The World: Startup Ipsum (2011-11-01)
    Need filler text for your startup? Here you go.
  6. In the Wake of Estonian FBI Bust, Have You Checked Your DNS Settings? (2011-11-10)

Law Stuff

Even though Internet technology continues to progress, laws continue to struggle to keep up. Rather than adapting, the entertainment industry, in particular, keeps trying to pass bad laws to hold on to broken business models from another era. I think it will take a full generation (30 years, i.e. until 2025) until the old guard lets go of its old ways and starts treating the Internet like a feature instead of a bug.

The patent backlog remains bad but has been getting slightly better lately. See the USPTO patent dashboard (below) for the latest patent and trademark stats.

  1. Patent First Office Action Backlog Dips Below 700,000 (2011-07-12)
  2. USPTO patent dashboard (2011-07-12)
  3. A Harvard Law School Professor Publishes A Study Of UDRP Decisions Involving “Fair Use” & Finds Cases Turn On Nationality (2011-07-20)
  4. Jazon Kottke: Our Broken Patent System (2011-08-04)
  5. Erik J. Heels’s Favorite Techdirt Posts Of The Week (2011-08-20)
  6. Patent Litigation Is For Optimists (2011-09-03)

  7. Post-Bilski Cases Fail To Clearly Define ‘Abstract’ Idea (2011-09-20)
  8. Video On How PROTECT IP Act Breaks The Internet (2011-10-26)

    PROTECT IP Act Breaks The Internet from Fight for the Future on Vimeo.

  9. How To Start A Boston Patent Law Practice (2011-11-08)
    Advice for new Boston patent lawyers.
  10. VP Joe Biden Explains Why SOPA & PROTECT IP Are Anti-American & A Bad Idea (2011-11-15)
  11. The Customer Is Frequently Wrong (2011-11-15)
    Especially when it comes to patents and trademarks.
  12. EU Parliament Warns The US To Stop Censoring The Internet (2011-11-17)

Baseball Stuff

So – I’m going to pretend that September 2011 never happened. The good news is that pitchers and catchers report in about three months!

  1. Papi, Adrian, Ellsbury, Beckett named All-Stars (2011-07-04)
  2. Tim Wakefield Wins His 200th Career Game (2011-09-13)
  3. The Legend of Lavarnway (2011-09-28)
  4. Dear 2011 #RedSox: Thanks for a great season. In 2004, zero starts missed due to injury. This year, not so much. Win or lose, we love ya! (2011-09-29)
  5. How the Wild Card Redeemed Baseball (2011-09-29)
  6. Thanks For Everything, Tito. Godspeed. (2011-09-30)
  7. Ellsbury earns AL Comeback Player honors (2011-10-13)
  8. Red Sox choose Cherington as GM (2011-10-13)
  9. Done Deal: Theo Heading to Chicago on ‘Massive’ Five-Year Deal (2011-10-13)
  10. Nothing But Class From Theo (2011-10-23)
  11. Theo backed up his first words (2011-10-24)
  12. 3 Dodgers, 3 Red Sox earn Gold Glove honors (2011-11-02)
  13. Ortiz, Ellsbury, Gonzalez make Red Sox only MLB Team with Three Silver Sluggers (2011-11-03)
  14. Orioles hire Dan Duquette as VP of baseball operations (2011-11-07)
  15. Papelbon agrees to four-year deal with Phillies (2011-11-11)
  16. Godspeed, Dances With Bud Light Box (2011-11-11)
  17. Saying Goodbye to the Red Sox ’04 and ’07 World Series Teams (2011-11-15)

Music Stuff

In a span of three days, iTunes Match (iTunes in the cloud) and Google Music (music in the Google) launched. Let the race to the cloud begin!

  1. Amy Winehouse Found Dead (2011-07-23)
  2. Infographic: The Death Of The Music Industry (2009-08-03)
    It’s been like watching a predictable, avoidable, slow-motion train wreck.
  3. Rolling Stone’s Readers List The 10 Worst Songs Of The 1990s (2011-09-02)
  4. Federal Judge Finds Cloud Music Lockers Do Not Violate Copyrights (2011-09-10)
  5. Chilean Singer Sounds Just Like Eddie Veder (2011-09-23)
  6. How Not To Make Music Social: The Way Spotify And Facebook Did It (2011-09-26)
  7. Listen To 10 Seconds Of Every Hit Song Of The ’70s (2011-11-10)
    This is pure awesome!
  8. Apple Finally Launches iTunes Match, Servers Overwhelmed by Demand (2011-11-14)
  9. How iTunes Match Works and Whether You Should Subscribe (2011-11-14)
  10. No More Beta: Google Music Goes Live (2011-11-17)

Random Stuff

Than goodness for humor. It’s good to have happy diversions in times like these. Enjoy!

  1. Cancer Causes Cell Phones (2011-07-15)
    From the cause-and-effect department.
  2. Government website hacked! (2011-08-01)
    From the hear-what-you-want department.
  3. Drama (2011-08-02)
    From the deniers-gonna-deny department.
    It's the end of the world!
  4. The Best Plan In The World (2011-08-16)
    From the like-it-or-leave-it department.
  5. Angry Rich Startup Guy (2011-10-11)
  6. If You’re Happy And You Know It (2011-11-09)
  7. The Beavis And Butt-Head Soundboard (2011-11-12)
  8. The Best Of Turtlecalls (2011-11-14)
    For $2, Brian Spaeth will call a victim of your choosing and pretend to be a turtle.
  9. Multiple flights (2011-11-15)
    I love architecture. The site is one of my guilty pleasures.
  10. Marching Goose Band (2011-11-16)

The LawLawLaw newsletter, available at, is a publication of Clock Tower Law Group. The opinions in LawLawLaw do not necessarily reflect the opinions of Clock Tower Law Group, its employees, or the author. Feel free to forward this to anyone who might enjoy it. Send content/subscription questions to Thanks!

Erik J. Heels’s Favorite Techdirt Posts Of The Week

from the forest-and-trees dept.

By Erik J. Heels

First published 8/19/2011; Techdirt; publisher: Floor64

Mike Masnick of Techdirt did not ask me why I am a Techdirt fan, but here’s why. Techdirt has (1) good headlines/titles/Tweets (headlines are titles are Tweets, you know), (2) good URLs (no outsourced feeds here), (3) good content, and (4) good cluefulness. This rare combination of goodness makes Techdirt great. Mike has the ability to see both the trees and the forest, providing timely commentary on why stuff is broken and why that brokenness might be part of a larger – often bad – trend. For its insightful commentary on the intersection of law and technology, Techdirt is on my short list of must-read blogs, and you should nominate Techdirt for the ABA’s list of top 100 law-related blogs. And although I link to Techdirt more than I comment on Techdirt, I thank Mike for the opportunity to write about my favorite posts of the week.

So here are my favorite stories (trees) and trends (forest) of the week.

I have noticed that the controversy surrounding a particular flavor of intellectual property (IP) protection is inversely proportional to the duration of the IP rights: (1) Patents generally last 17-20 years and are extremely controversial, (2) copyrights generally last the lifetime of the author plus 90 years and are very controversial, and (3) trademarks last potentially forever and are not very controversial. So I’ll start with trademarks!


1. Where In Trademark Law Does It Say It’s Okay To Trademark A Town Name ‘For The Good Of The Community’? (2011-08-15).

Sturgis Motorcycle Rally Inc. (SMRi) trademarked “Sturgis” (a town in South Dakota) and then tried to stop “unauthorized providers” from selling Sturgis souvenirs. The Sturgis trademark application at issue took over ten years to register (about one year is average), surviving an opposition along the way. The file is 373 pages long! In short, the applicant was able to successfully argue that the geographically descriptive mark “Sturgis” should be accepted as a trademark under the theory of “acquired distinctiveness,” which states that otherwise descriptive marks can be registered if they have been used for five years in connection with the goods and services on the trademark application. If you Google “Sturgis,” you will discover that the word is synonymous with the annual motorcycle rally, not with the town where the rally is held. In other words, the Sturgis motorcycle rally is more important, trademark-wise, then Sturgis, SD. This is a good example of how the law, even when applied accurately, does not always produce a fair result. It seems to me that any retailers in Sturgis should be able to sell Sturgis-related products, but the law says otherwise.

2. Waffle House Says Rap Song Called Waffle House Violates Its Trademark (2011-08-17).

This is a case of Waffle House (the restaurant) cluelessly over-reaching with the trademark rights it does own to try to stop something it doesn’t like. That’s not what trademark law is for. There are registered Waffle House trademarks for restaurant services and mugs and clothing. But not for rap music. See how that works? Waffle House (the restaurant) gets to stop other restaurants from calling themselves “Waffle House.” But it does not “own” the phrase “Waffle House” and get to dictate to the world how or whether to use it.

Which is why Mike Doughty can sing a song called “Busting Up a Starbucks.”

But even that song appears as “Busting Up a Starbuxxx” on iTunes. Hmm.

Censorship, Civil Liberties, And The Cluetrain

As George W. Bush infamously said on 1999-05-22, when trying to justify censoring the parody website, “There ought to be limits to freedom.” It seems, unfortunately, that America agrees with you, W.

3. Police Try To Bring Wiretapping Charges Against Woman Who Filmed Them Beating A Man (2011-08-15).

Does this headline sound like it’s coming from North Korea or from the United States? I wonder if government agencies and law enforcement personnel are more stupid today than in pre-Internet times. Or if the Internet just shines a brighter light on their stupidity. Either way, less stupid, please.

4. FCC Investigating Whether BART Cell Service Shut Off Was A Violation Of Federal Law (2011-08-16).

Good that the FCC is investigating the Orwellian decision by BART to shut off cell service over rumored protests about BART. Bad that BART even considered this option in the first place! North Korea or United States?

5. New Research: Internet Censorship To Stop Protests… Actually Increases Protests (2011-08-17).

This is what happens when governments try to censor free speech. The censorship itself becomes news, and the speech spreads. Can you say Streisand Effect?

6. Police Say They Can Detain Photographers If Their Photographs Have ‘No Apparent Esthetic Value’ (2011-08-16).

Stories like this make me think that maybe the 9/11 terrorists are winning. Only when our liberties return to pre-9/11 status will freedom have the upper hand. I think that the police who enforced this rule have “no apparent law enforcement value.” Unless you consider security theatre valuable.


7. Google Spends $12.5 Billion To Buy Motorola Mobility… And Its Patents (2011-08-15).

8. What Google Gets With Motorola Mobility (2011-08-16).

9. Motorola Deal Showing Massive Loss To Innovation Caused By Patents (2011-08-17).

The big tech story of the week was Google’s purchase of Motorola. Or was it Motorola Mobility? (Same? Different?) Or Motorola Mobility’s patents? I think the only Motorola device I’ve ever knowingly used is my sucky cable box. So I was having a hard time caring about this deal. When commentators started suggesting that the deal was a patent play, it started to make more sense to me. I teach and practice patent law, and I believe in the ideals of the patent law system. But to say that the current patent law regime is broken is an understatement. Most patents are a waste of money. Modern patent laws were never designed to allow for non-producing non-inventors (i.e. patent trolls) to extract revenues from those actually adding value to society. What worries me most about the Google/Motorola deal is that I don’t believe that Google believes in “don’t be evil.”


10. NY Yankees: It’s Insulting To Call Us The Evil Empire… But It’s Also Trademark Infringement (2011-08-18).

I’m also ending with trademarks. Baseball trademarks! It seems that The New York Yankees (aka The Evil Empire, at least in Red Sox Nation) are opposing a trademark for Baseball’s Evil Empire (misspelled as “Baseballs Evil Empire” in the application). You know, because the Yankees are evil! Bwah-ha-ha! (See “Streisand Effect” above.) I love it when the jokes write themselves.

I am a diehard Red Sox fan (sorry, Mike). And if Suck The Red Fox (a not-so-subtle Spoonerism for “F*ck The Red Sox”) can be registered as a trademark, then I have no problem with Baseball’s Evil Empire! Go Red Sox! And Dear Yankees, here’s a lesson for you from your friends at Google: Don’t be evil!

Erik J. Heels is an MIT engineer; trademark, domain name, and patent lawyer; Red Sox fan; and music lover. He blogs about technology, law, baseball, and rock ‘n’ roll at