Entrepreneurs embrace net neutrality plan (except Mark Cuban)

Propaganda machines are running full-blast ahead of next week’s landmark vote on net neutrality, so readers should take most “news” about the FCC with a grain of salt. That said, it’s worth noting a new letter in the debate over whether net neutrality will protect entrepreneurs (as supporters claim) or if it will instead damn small business to crushing regulations, as Republican Commissioner Ajit Pai, backed by the telecom industry, is warning.

The letter comes via the advocacy group Engine, and is signed by more than 100 startups and emerging businesses. Many of the names are unfamiliar but some — including Yelp, Etsy, Kickstarter, Tumblr and GitHub – are among America’s favorite new companies.

Their position, in short, is that the FCC’s proposed “Title II” rules, which would forbid ISPs from giving special treatment to some websites over others, is not the regulatory bugbear of Pai’s imagination:

“Any claim that a net neutrality plan based in Title II would somehow burden “small, independent businesses and entrepreneurs with heavy-handed regulations that will push them out of the market” is simply not true,” the letter said. It added, “The threat of ISPs abusing their gatekeeper power to impose tolls and discriminate against competitive companies is the real threat to our future.”

This, of course, is part of a public relations effort but it doesn’t change the fact that all these companies, which are run by sophisticated and successful entrepreneurs, put their names on it.

The entrepreneurs could be lying or maybe they’re deluded. The better bet, though, is that the they genuinely favor rules to prevent the likes of Comcast or Verizon using their power over pipes as a cudgel to demand money or favors.

So are there any bonafide entrepreneurs (as opposed to Pai and the telecom giants) concerned about the regulatory burden of Title II? Well, there’s at least one.

On Wednesday, Dallas Mavericks owner and startup booster Mark Cuban was at it again, railing at a Re/code conference how the FCC will “fuck up everything” with its new rules. (He’s made such rants before).

Normally, it’s worth paying attention to Cuban since he’s bang-on about other issues involving small business, especially patent reform, and has a lot of pull in investment circles.

On this one, though, his concern may be overblown since the FCC has been clear that it’s taking a light touch to Title II and will be using it to prevent internet throttling, while also staying clear of measures like rate regulation or forced access. (One also wonders if Cuban’s F-bombs have anything to do with the fact that he is the chairman of a cable network).

So there you have it. You entrepreneurs out there can join Etsy and all, and run the risk of FCC regulations, or throw your lot in with Cuban and put yourselves at the mercy of the big ISPs.

Here’s the Engine letter, which is short, and has all the companies’ names:

Engine Letter Re FCC

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Katy Perry lawyers try again, file trademark claim for Left Shark

What happens when the unstoppable force of an internet meme meets the immovable object of a celebrity’s lawyers? We could find out as Katy Perry lawyers try anew to claim the flash-in-the-pan phenomenon known as Left Shark.

In the latest turn of fate for Left Shark, who came to fame for his drunken dance during the Super Bowl, Perry’s lawyers have filed for trademarks on “left shark,” “right shark,” “drunk shark” and, inexplicably, “basking shark.”

The new applications come after the lawyers fell on their faces trying to assert copyright claims against Shapeways, a small 3D printing company where model designer Fernando Sosa had been selling a replica of Left Shark.

The problem, as copyright scholars pointed out, was that costumes can’t really be copyrighted and, in any case, there was no evidence the singer owned rights to Left Shark in the first place.

Hence, the new trademark claims. Unlike copyright, which covers artistic works, trademarks are intended to protect brands and denote original ownership. There’s more than one way to own a shark, goes the thinking of Perry’s lawyers.

Left Shark, as it appeared Thursday on Thingiverse.

Left Shark, as it appeared Thursday on Thingiverse.

Alas, they appear set to go 0-for-2 in their intellectual property adventures since, in the words of lawyer Roberto Ledesma, it’s not easy to own an an internet meme.

“It arrived out of something that came out of the internet. What is her claim to ownership of the mark?” said Ledesma, a former trademark examiner, by phone.

He said the Trademark Office may reject the marks on “failure to function” grounds — meaning it doesn’t do what a trademark is supposed to do, which is point to a source of origin. Ledesma says the issue is novel, but similar problems have arisen when people have tried to claim rallying cries like”Boston Strong” or “Je Suis Charlie.”

That doesn’t mean, however, that Perry’s lawyers can’t prevail. Ledesma points out that they may simply use the trademark applications (even if they are doomed) to bully companies like Shapeways and Etsy where artists to sell their wares.

Perhaps it is time for Perry to step in and put her lawyers back in their tanks, and give the money she has been spending on them to a shark protection foundation.

This story was updated at 9:45am ET to correct a misspelling of Roberto Ledesma’s name. Also an earlier version incorrectly suggested that Ledesma said it is not possible to own an internet meme.

Left Shark printer chomps on Katy Perry’s copyright claim

Left Shark rose to internet super-stardom by doing his own thing — and now a man selling models of the Super Bowl shark is doing the same, bucking the Katy Perry lawyer who wants him to stop.

L’affaire Left Shark began last week when a lawyer for the “Roar” singer sent 3D printing service Shapeways a cease-and-desist letter, ordering it to stop the sale of miniature models.

In response, model designer Fernando Sosa took to Twitter to complain, and that’s where the situation started to jump the, well, you know.

Following a Twitter chat with my colleague Mathew Ingram and some copyright folks, Sosa obtained the pro bono services of NYU law professor Christopher Sprigman, who was one of the first to publicly pan Perry’s claims.

3D Left Shark is now available once again, along with some new 3D friends. In a blog post announcing his legal pushback, Sosa wrote:

I’m also resuming the sale of this 3D printed full color desk figurine at a different store front Etsy.com/shop/amznfx along with a couple other characters which include a drunk shark, pink drunk shark, and right shark.

So that’s where we stand. Your move, Katy.

Perry’s lawyer, Steve Plinio of Greenberg Traurig, did not immediately reply to a request for comment, but he appears to face an uphill swim.

As Sosa points out to Plinio in a public letter, the copyright claim suffers from two big flaws: 1) Perry doesn’t appear to own any rights in Left Shark; 2) there may not be any intellectual property rights at all, since costumes can’t usually be copyrighted.

Outside IP experts appear to agree. As professor Rebecca Tushnet, a leading authority on copyright and fan culture, explained by email:

A costume is a useful article, and useful articles aren’t copyrightable unless there are elements that are ‘separable’ from the useful article itself.  For example, anything necessary for a human to fit in the costume (and dance, badly or well) would not be separable. Some costumes may be copyrighted, and I think it’s possible Left Shark could be one of them, but further factual development would be required.

Parker Higgins, a researcher at the Electronic Frontier Foundation, and co-author of a popular IP newsletter, shared the same sentiment.

“I agree with Sprigman on this one: costumes are considered useful articles, so absent a separable design with a claim to it (like a print, usually) it doesn’t get copyright,” Higgins said by email.

It remains to be seen if the all-powerful NFL, which ferociously protects all aspects of its marketing machine, will now try to step in since it could conceivably overcome the ownership problem, which Tushnet describes as “the real sticking point,” and that would prevent Perry from getting into court in the first place.

While the NFL (or someone else) could try to use trademark law to get around the shortcomings on costume copyright, such a tactic would take time, and the Trademark Office might not grant a mark.

In the meantime, Left Shark’s fame continues to grow, and could soon be beyond the bounds of anyone’s intellectual property control.

According to Tushnet, “fair use might well be a significant issue, given the nature of the meme surrounding Left Shark.”

So for now, in the words of my colleague Signe Brewster, “3D print like lawyers aren’t watching, dance like Left Shark.”

Left Shark, as it appeared Thursday on Thingiverse.

Left Shark, as it appeared Thursday on Thingiverse.