It’s been a while since anything in my mailbox was as interesting as this. I received this urgent call to action on Monday along with my REI Catalog, one BB&B slick for everyone who has ever lived in the house in the last decade, and a refinancing solicitation (who says mortgage-backed securities are dead).

(This is a completely off-topic blog post, if you haven’t caught on yet. If you’re looking for information about information technology law, intellectual property law, and information on business law for startup companies, you’ve come to the right place, and you’ll find those posts below and by looking in the archives.)

For your holiday consideration — The “The Las Vegas Mob Threatens National Security By Corrupting The Massive Sports Book Market By Fixing Games And Raking In 100 Million Per Month” mailing:

Images of the mailer pages above and below. This reads pretty well. So far, my holiday has involved much dryer fare: I just finished a title on copyright and the public domain and I’m working my way through an ICLE treatise on contract law.

I was reading right along with this, thinking this was maybe an elaborate prank pulled by my ex-boyfriend screenwriter in LA — corruption and fast-paced action, The Untouchables meets Tim Donaghey. I was with him (whoever he is) right up to here: “It was easy to identify the CIA because of the car colors they chose: white for good, black for evil, red for control, green for money, blue for sanity, and yellow for minor sin.” Whoa, X Files. (According to this, I’m apparently sane, which would have been my first choice.)

According to the text of the mailer, Ann Arbor is one of several “elite college” cities that have been selected for ’saturation with this mailing, along with 200,000 Manhattanites who were also recipients.

Is surface mail the new SPAM?
Unlike spam, this mailer cost real money: if the numbers are as reported, $130,000 or more. Obama, McCain, and now Las Vegas Mob / CIA Guy — this is the third time this month someone has incited me to action via the US postal system.

A PDF of the Mob/Sports/CIA mailer is here, and OCR of the Mob/Sports/CIA text from the mailing is here.

Happy Black Friday 2008.

Social media’s social activist moment is officially here. Votereport.com is using Twitter and special applications for the iPhone and Android cell phones, to monitor polling conditions, voting wait times, voter registration problems, and voting machine dysfunction in the US presidential election.

Anyone with a Twitter account, or with an iPhone or Android phone, can participate:

http://twittervotereport.com/spread-the-word/

RDR Books, based in Muskegon, Michigan, won’t be publishing Steven Vander Ark’s much-anticipated “Harry Potter Lexicon.” Not any time soon, and not any time. A US District Court judge in Manhattan has issued a permanent injunction against publication of the work, finding that it infringes copyrights in the popular Harry Potter series of children’s novels.

Harry Potter’s creator J. K. Rowling and her publisher Warner Brothers Entertainment sued RDR and Vander Ark last year to stop publication of the lexicon, claiming that it infringed copyrights in the overwhelmingly popular Harry Potter series of books. Warner Brothers Entertainment, Inc. and J.K. Rowling v. RDR Books et al, (USDC SDNY, Case No. 07-CV-9667). (A copy of the original complaint in the “Harry Potter Lexicon” case can be found here.) US District Court Judge Robert Patterson ruled earlier today that Rowling had proved her case: publication of the “Harry Potter Lexicon” would cause her irreparable harm as a writer.

A lexicon is a glossary or reference work organized like an encyclopedia or dictionary, usually in alphabetical order. In Vander Ark’s case, the “Harry Potter Lexicon” contained entries referencing and defining creatures, characters, place names and spells from the novels, and was a print-based version of his popular website HPL: The Harry Potter Lexicon.

Judge Patterson ruled that the “Harry Potter Lexicon” constituted copyright infringement of Rowling’s works. Even in cases of copyright infringement, a “fair use” defense frequently applies to allow portions of a copyrighted work to be used to facilitate specifically approved purposes — includes educational and teaching use, news reporting, formal literary criticism and inquiry, and parody. The Court found no “fair use” in this case. According to a Yahoo News article, Patterson’s ruled states:

because the Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same and thus deplete the incentive for original authors to create new works.

Stingy minimum damages award speaks volumes
I’m completely underwhelmed by the damages awarded in the case. $750 for each of the seven novels about the boy wizard and $750 each of the two companion books for a total of $6,750. And for good reason: the 1976 Copyright Act now allows for damages of up to $100,000 for each act of infringement. Judge Patterson is certainly sending a message here about the spirit of the law, even if it contradicts his ruling on the letter of the law.

Fair-use reference, or derivative work?
Concordances and lexicons of authors’ works have traditionally been allowed under the fair-use defense to copyright infringement — with some exceptions. But copyright infringement is a highly facts-and-circumstances-dependent legal analysis: discussing copyrighted work and making a “transformative use” of the material is allowed, but cutting and pasting sections of a copyrighted work to assemble them into a reference work arguably could create a “derivative work” under section 101 of the Copyright Act, which is an exclusive right reserved to the copyright owner. Rowling’s lawyers argued against a finding of fair use, stating that the “Harry Potter Lexicon” adds no commentary or criticism, and makes no other transformative use of Rowling’s creation: it “takes too much and does too little.”

Judge Patterson touched upon the distinction between a reference and a derivative work in his ruling.

While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled…. [The] Lexicon [however] appropriates too much of Rowling’s creative work for its purposes as a reference guide.

I’ll be analyzing the ruling in Warner Brothers Entertainment and J.K. Rowling v. RDR Books tonight to see what kind of precedent this decision contains about the boundary between reference and derivative work.

Warner Brothers Entertainment, Inc. and J.K. Rowling v. RDR Books et al, (USDC SDNY, Case No. 07-CV-9667).

See Ruling of September 8, 2008 - Warner Brothers Entertainment and J.K. Rowling v. RDR Books et al (the “Harry Potter Lexicon” case) for a copy of the decision in PDF.

You can download a copy of the judge’s Opinion and Order in Warner Brothers Entertainment and J.K. Rowling v. RDR Books here at Arborlaw (PDF).

Many thanks to Dineen Pashoukos Wasylik for pulling this down off PACER.

New snooping device can snarf phone numbers, data, call logs and text messages off Motorola and Samsung phones
Think twice before leaving your Motorola or Samsung cell phone on the table in a public place, or in the pocket of your coat. Or leaving your cell phone anywhere, for that matter.

CNet News reported yesterday that a new device dubbed the “Cellular Seizure Investigation Stick” (CSI Stick) from Paraben, a digital forensics company, allows a user to download all data stored in a cell phone by attaching the stick to the phone and sliding the switch. The device has a port on one end to connect into the cell phone’s charger port. Ports that match the Motorola and Samsung phones are currently available. The other end of the CSI Stick features a USB port which connects the CSI Stick to a computer for analysis of the cell phone’s data contents.

Your Attorney Says: Ya Better Watch Out
A cell phone owner’s phonebooks, call logs, text messages, photos and movies can be retrieved within a few seconds using the technology. A copy of all memory contents takes considerably longer (the product website states “this process can take many hours to complete.”) The device comes with a portable power adapter that connects to the USB port while the user is downloading the data.

Priced on the product’s website at $199, Paraben’s CSI Stick is a bargain-basement intelligence gathering tool. Want to catch your spouse cheating? Slip that cell phone off the charger for a few minutes early in the morning before the alarm goes off.  Want to find out what that competitor of yours is planning? Hang out at the same place he eats breakfast every morning and wait for nature to call — there will be trade secrets galore to be ferreted out from the CEO’s communications.

Cell phones are increasingly becoming the platform of choice to integrate data — newer models touch all business applications. The security risks are obvious and have been well-known for years: most experts consider the cell phone to be a completely unsecured device. Yet even the most security-aware businesses are full of executives who need cell phones and fill them with all kinds of sensitive business and personal data.

Compliance Department: How Will You Deal With Your Cell Phone Security Risk?
I’m predicting that mid-size businesses up through Fortune 100 companies will be adding this to the growing stack of risk management issues.

I couldn’t resist picking up this little gem from the excellent blog Staring at Strangers by Jennifer J. Rose and David Leffler (thanks David for correcting me!):

Lynne G. Beresford, commissioner for trademarks in the Patent and Trademark Office, stated that 85% of the trademark office’s 390 examining attorneys work primarily from home.

To my mind, this makes the Patent and Trademark Office one of the most progressive and family-friendly employers out there — hat tip to Commissioner Beresford.

http://staringatstrangers.typepad.com/staring_at_strangers/2008/09/eight-five-perc.html

Google is threatening to do to venture capital funding what it has done to the search, browser, applications software, advertising and publishing worlds: turn the status quo upside down. The company has been quietly making relatively small investments in the $500K range in promising technology startups since 2Q 2007 — and then typically buys the most promising companies while the technology and resources are still relatively cheap — beating the traditional venture capital industry to the punch and leapfrogging the traditional model, which involves closely working with a target and supervising development and growth in order to ensure the success necessary to reap early investor multiples. The company’s confirmation that it is actively exploring a formally-organized venture capital fund has created new headlines and has left venture capital companies wondering where they will invest their new rounds of cash.

What Dot Com bust?
In Internet Years, 2001 is the equivalent of the Silent Generation — everyone who was there is grateful that today is not yesterday — and everyone younger doesn’t remember why it was so bad. Google’s efforts come at the time when the venture capital industry has finally regrouped, and refunded after a several-years slump, flush with cash and ready to push investment into small technology startups with renewed vigor. Investments in venture funds topped $1.3 billion in the first half of 2007, up 30% from a year earlier. Venture capital funds are not so happy about the Google development: one partner at a large VC firm says the purchase of startups not long after making a small investment “very inconsistent with the venture community’s strategy” of providing guidance and making several rounds of investments.

The pool is definitely getting more crowded: according to the Wall Street Journal, Google is only the latest technology giant to seed startups with a venture capital arm, following Intel, Motorola, Comcast, and Disney’s Steamboat Ventures.

The king is dead, long live the king
Industry commentators point out that the venture capital model has seemed dead for a while now — Google may just be adding some nails to the coffin. Back in 2005, Paul Graham was ahead of the curve in describing what he calls the “venture capital squeeze”:

deals now want less and less money, because it’s getting so cheap to start a startup. The four causes: open source, which makes software free; Moore’s law, which makes hardware geometrically closer to free; the Web, which makes promotion free if you’re good; and better languages, which make development a lot cheaper.

According to Graham, Sarbanes-Oxley and other burdens of public company structure have made acquisition the preferred route for most startups to achieve success. Taking a small investment from a large company like Google allows the innovative engine of a startup company to be what it wants to be: a tightly-knit group of technology innovators who can keep working the way they like and focus on leveraging their creativity to explore and develop different alternative implementations of their core technology, rather than turning some part of their attention to transitioning to commercial product implementation.