Happy Halloween from DuetsBlog! I write today regarding a scary subject: unregistered intellectual property. The horror! Ask any IP professional about registration, and you’re likely to hear that registration is one of the most important steps in protecting IP. Whether it is a patent, trademark, or copyright, registering IP often provides the IP owner greater rights than if the IP was unregistered. There is sometimes an exception for trade secrets, but that’s for another time…

A scary place for some; credit: Gen. Progress

Registering IP, specifically copyrights, may become even more crucial in the future. One of the most important upcoming U.S. Supreme Court cases this term–which begins in October (coincidental?)–is Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. The appeal addresses the question of whether the creator of an unregistered work may sue for copyright infringement so long as the creator has applied for a copyright on the work, rather than requiring the creator to wait for the Copyright Office to register the work. The dispute comes down to 17 U.S.C. § 411(a), which provides that:

no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

Currently, the Fifth and Ninth Circuit Courts of Appeal have held that creators may sue for infringement as soon as they file the appropriate paperwork and fees for registration. Importantly, the Ninth Circuit encompasses Hollywood, providing greater protection to many of the nation’s creators. I ran into this issue myself on a case in these venues, and thankfully the law in these jurisdictions supported bringing a claim for copyright infringement without awaiting registration.

The Tenth and Eleventh Circuits have held that filing for registration is insufficient; a creator must have obtained preregistration or actual registration to sue for infringement. It’s the stuff of nightmares for procrastinating creators in Wyoming, Utah, Colorado, Kansas, New Mexico, Oklahoma, Alabama, Georgia, and Florida!

But creators around the country, especially in Hollywood, let out a collective shriek when the federal Government filed a brief in support of the Tenth and Eleventh Circuits, arguing that “a copyright-infringement suit may not be filed until the Register of Copyrights has either approved or refused registration of the work.” Beyond the statutory arguments in support of this position, the Government argued that  “although…the registration requirement may temporarily prevent copyright owners from enforcing their rights, that is the intended result of a congressional design to encourage prompt registration for the public benefit.”

Maybe the Government is right; requiring registration will certainly encourage registration. But on the other hand, many small creators either do not have the time or resources to seek registration for every work. However, even in cases in which there is copying, a creator can file an expedited application for registration, which sometimes results in a decision in less than a week.  So perhaps the rule from the Tenth and Eleventh Circuits isn’t that scary after all. A non-expedited application can take months, though. Thus, the rule from the Fifth and Ninth Circuits provides greater protections to creators who may face copying immediately after creating a work and who do not have the ability to file an expedited application. We’ll see what’s in the Supreme Court’s candy bowl this term. To be continued…

Aaron Keller, Managing Principal, Capsule

In a recent meeting, someone dropped a forecast on the table stating that Google was on track, in five years, to become the world’s first trillion dollar company (currently they are $382 B). This is built on a virtual monopoly in the area of online advertising and now growing into a variety of other technologies and platforms. But, most important this is a company build on advertising media.

What do I do with that bit of information? Why do I care? Why would anyone care if Google is getting larger and larger and larger. Is it a good thing? Is it bad? Sergey and Larry seem to be good guys.

Well, I don’t have answers to those questions, but I do have a thought to further the conversation.

When you elevate your perspective to see all the brands in the world, and the businesses where they reside, it changes your perspective. Brands as large as Google, Apple and a longer list of others are designed to serve stakeholders (customers, partners, investors, etc). This isn’t too dissimilar to a government entity. Here are some similarities between a corporation and a government.

>> Both serve diverse audiences and need to keep people happy, active, and safe from harm.

>> Both have incoming revenue (taxes) and outgoing expenses (services).

>> Both have a team that leads and some structure to organize the social hierarchy.

>> Both have a reputation to build and protect with all stakeholders

Now, the corporation may have a mission to conquer and a government may have a mission that closer resembles the need to protect and keep safe. And, governments provide services people don’t want to pay for, but need to in order to have social order. Corporations do this as well, but many at the discretion of the leadership team.

This all leads back to the headline.

What would happen if Apple or Google purchased a small country? Just to be clear, here’s a handful of countries Apple could buy with their profits of $37 billion: Trinidad and Tobago, Paraguay, Honduras, Jamaica, Albania, Iceland, Cyprus and many others all over the world.

How would Apple design a country? What would a Google country look like? Would these captains of industry be better at running a medium size country than many of the horrid dictators we see in the world today?

What do you think?

– James Mahoney, Razor’s Edge Communications

“Brand” and “branding” are the current darlings of the fashionista class. They’re rapidly driving those terms into the realm of cliché by busily associating them with practically everything you can think of.

But in the midst of branding’s 15 minutes of fame, a potentially crippling challenge faces the non-brand that we have come to rely on: the Internet.

The US Department of Commerce announced in March that it will not renew the contract that gives it oversight of some core functions of the Internet Corporation for Assigned Names and Numbers (ICANN). Thus, the US will relinquish control over key technical elements of the Internet’s infrastructure.

For those unaware of ICANN’s role, it maintains the root-zone filenames and addresses that are the bedrock enablers of the Internet as we know it. Since the beginning, these have been controlled and maintained by a multi-stakeholder, worldwide community of developers, engineers, and network administrators.

Instead, the Administration thinks that this control should be Balkanized among a “world body” of governments and other interested parties, who chafe at the current US role.

Bad idea. In fact, very bad.

It will enable a government to control the flow of information and expression not only within its own borders, but also beyond them because control of root-zone filenames and addresses effectively means control of the Internet and what can flow across it. We have already glimpsed harbingers of this in governmental firewalls and adverse action taken to stifle opposing views and alternative news sources.

Despite its flaws, the US is still seen as that “shining city on a hill” by much of the world’s population. Our country remains the epitome of opportunity and freedom, even in the face of perceived shortcomings in the expression of those ideals.

Until very recently, the opportunity and freedom that the US embodies could be seen only dimly from afar—a beacon unreachable by the vast majority, which made it an unattainable desire.

The Internet changed all this. It is the reachable embodiment of all of the positive virtues that the US represents. For the first time in history, a nation has created something that puts its ideals and possibilities within reach of the majority of the world. And the rules of that medium, such as they are, are firmly linked to those inspiring notions of freedom and opportunity for every voice able to tap into it.

This is why the status quo of US oversight of the Internet, specifically the ICANN functions, is in the best interest of the world’s peoples. Relinquishing it to a “world body” likely dominated by governments, jeopardizes the everyday person’s ability to experience the beginnings of freedom and opportunity, and to be inspired to bring that virtual capability into the reality of their own country.

As the US is the shining city on a hill, so the independence of the Internet, guarded by US stewardship, is the shining possibility in the world’s living rooms. It is too impactful a force for progress to abdicate.



File:Minneapolis seal.gif   File:StPaulSeal.png

An open call for change. Change where it counts, in brands.

Don’t read this if you have a closed mind and can’t imagine a different future beyond tomorrow. You know who you are, this will make you cringe and we don’t need that on our conscience.

For the remaining, take a minute to consider that a city government and a business are fairly similar. They have income, expenses and they provide services to a specific audience. They employ people and should be governed by the same natural economics that exist for all organizations (for profit, government or not-for-profit).

Now consider the Twin Cities (Minneapolis and St. Paul) as two similar organizations. They have a fair amount of duplication, providing similar services, having similar roles, similar physical proximity, similar missions, etc. Yet, to this day they are separate operating organizations.

Yes. The suggestion here is a merger of cities and a merger of brands. Minneapolis and St. Paul.

  Thumbnail for version as of 18:22, 21 November 2008 

If you need examples, look to Budapest (Buda and Pest) and New York merging with Brooklyn. If you’re wondering why there are no other modern examples, welcome to my world of wonderment.

Now, before your head starts to move back and forth, this doesn’t mean we eliminate half the jobs. Though if you’ve been through a merger, there are efficiencies to be found in duplicate roles. It does mean someone has to figure out the brand strategy behind two merged brands. You could treat it like the two are still separate, but run them from one back office, creating the efficiencies of one government while still having two cities. Look to Byerly’s and Lunds as a great example of how this could be accomplished. Or merge them in under an existing brand name (Twin Cities) would also be a good option. The last two options would be a new name entirely, which would be an interesting challenge if we involved voters in the naming decision. Lastly some smerging of the two names (Minnstpauleapolis) which would certainly not be our suggestion.

Whatever the strategy, the savings would be tremendous. This isn’t savings to the organization, but rather savings to each citizen of these two great cities. If they were two businesses a merger would have occurred long ago.

 —Aaron Keller, Capsule