Jack Daniels Gets Chewed Up In Trademark Case Over 'Bad Spaniels' Doggy Chew Toy
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We've seen roughly a zillion trademark disputes and cases in the alcohol industries, but perhaps nothing quite like this. Jack Daniels, the famous liquor company, found itself in a prolonged court battle with VIP Products LLC. At issue? Well, VIP makes a doggy chew toy that is a parody of Jack Daniels' famous whiskey bottle and trade dress. See for yourself. On appeal, the Ninth Circuit held that the district court erred in finding that the Bad Spaniels toy was not an expressive work. The court explained that “[a] work need not be the expressive equal of Anna Karenina or Citizen Kane” to be considered expressive; nor is a work “rendered non-expressive simply because it sold commercially.” VIP Prods., No. 18-16012, at 10 (citations and quotation marks omitted). The court observed that it recently had “little difficulty” concluding that greeting cards containing trademarked phrases were expressive works entitled to First Amendment protection, even though they did not show great “creative artistry.” Id. (quoting Gordon v. Drape Creative, Inc., 909 F.3d 257 (9th Cir. 2018)). Although, the court acknowledged, the Bad Spaniels toy “surely [is] not the equivalent of the Mona Lisa,” it is nevertheless an expressive work. Id.Accordingly, the court held that, as a threshold matter, the Rogers test needed to be applied. Under that test, a trademark infringement plaintiff must show that the defendant’s use of the mark either (1) is “not artistically relevant to the underlying work” or (2) “explicitly misleads consumers as to the source or content of the work.” Id. at 9 (quoting Gordon, 909 F.3d at 265). The Ninth Circuit vacated the district court’s finding of infringement and remanded for a determination, in the first instance, of whether Jack Daniel’s can satisfy either element of the Rogers test. It seems damn near impossible to imagine any scenario in which Jack Daniels manages to satisfy the Rogers test. And the real question is why it felt any of this expensive litigious adventurism was necessary in the first place. How about just having a glass of whiskey and enjoying the homage?
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posted at: 12:00am on 18-Apr-2020
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Book Review: Danny Dunn and the Homework Machine
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We don't often do book reviews here on Techdirt, but since we've been talking about reading books scanned by the Internet Archive,* this one seemed good to discuss because of how it touches on many of the issues discussed here.Of course, it's not actually a new book. Danny Dunn and the Homework Machine, by Jay Williams & Raymond Abrashkin (with illustrations by Ezra Jack Keats), is part of a series of children's novels I read as a kid. I remember liking the books but have no specific memories of any of them, except for this one, which stuck with me for all these years because of a particular point it made. But more on that in a bit.The protagonist in these stories, Danny Dunn, is an eighth grade boy who, with his widowed mother, lives with Professor Bullfinch, an inventor (the mother is his housekeeper). As this particular book highlights, the professor's inventions include a special new kind of computer, which he keeps in his home laboratory. While today it hardly seems remarkable to have a computer in one's house, let alone one that can do everything that this one can, an important thing to remember is that this book was written in 1958, before computers were anywhere nearly as powerful and ubiquitous as they are today. Part of the magic of reading this book is getting a look at that historical snapshot of what the world was like when everything, that we today take for granted, was brand new.As an author's note explains, the story was written with the input of IBM computer engineers, so presumably its description of how the machine would have worked was not entirely fanciful. The authors are deeply grateful to Miss Terry di Senso, who guided us through two of the giant computers of the International Business Machines Corporation, and to Dr. Louis Robinson, Manager of the Mathematics and Applications Department, IBM, for his assistance, information, and painstaking reading of the manuscript. What made the computer innovative, the book explained, were its new kind of switches and use of narrow magnetic tape, which allowed for the computer to be as small as it was. These switches were temperature-sensitive and climate-controlled by a thermostat. Information was recorded in one part of the computer, and programming involved pointing to the memory address where that information could be found and processed.Also of note: instead of punch cards it took voice input (although it typed its output).Of course, the downside of this book being written in the 1950s is the sexism. Throw-away lines about women's roles stand out as gratuitous sour notes. On the other hand, this book introduces a girl character, Irene Miller, who is clearly scientifically gifted and unwilling to be sold short by anyone underestimating her intellect. It's just too bad that the book makes it seem like she was unique to be a girl with such interests and talents. (It was also not okay that another character in the book was openly called "Fatso.")Anyway, the story unfolds with the professor heading out of town and trusting Danny to take care of his machine. Danny has been helping the professor for quite some time and was familiar with its operation, and the professor trusted him to use it in his absence. Danny is a bright kid, but one always looking for shortcuts. As the book opened he was trying to make a mechanical device to help him produce two copies of homework he would only have to write out once, so he and a friend could share the load. Naturally, soon his thoughts turned to getting the computer make short work of his homework too.***CAUTION: SPOILERS BELOW***With the professor away, Danny, with his friends Joe and Irene, set about programming the computer to do their homework for them. After all, what kid wants to do homework? They were very excited by the prospect of the computer sparing them of this drudgery. After three days of them feeding into the computer all the material in their schoolbooks, they were at last ready to program it. What's programming, Joe asks? Danny explains: "Programming is telling the machine exactly what questions you want answered and how you want them answered. In order to do that right, you have to know just what sequences of operation you want the machine to go through. [...] If we want [the computer] to give us the right answers to an arithmetic problem, or a history question, we first have to analyze the operations the machine has to go through, and the order in which it does them. Then we put this down on a piece of paper together with the addresses of all the information or the parts of the machine that will be used to solve the problems. That's programming." It's a children's book, so naturally all goes well with the enterprise and the team is quite pleased with the results. But soon the plot thickens: the school bully figures out that they are getting the computer to do their homework for them and reports them to the teacher. The teacher then comes by the house to meet with Danny's mother. Oh dear, Danny is in trouble But he makes a capable defense.His argument largely follows three lines of reasoning to challenge the teacher's assertion that his use of the computer was somehow "unfair." One line foreshadowed the issues we are still having today with uneven access to Internet access and computing technology, and even educational resources generally. It is a significant and pervasive social problem, although from Danny's perspective he was concerned that he couldn't use a computer because other kids didn't have one. "[W]ould you forbid me to get information out of an encyclopedia, if I had one and the other kids didn't?" he asked? Probably not - although it's a problem unto itself that not all kids would even now still not have access to even an educational resource like that.His second argument also questioned the idea that the innovation the computer represented somehow disqualified it from being used. "Everybody uses tools to make his work easier. Why, we don't use inkwells and quill pens in school any more, Miss Arnold. We use fountain pens. Those are tools to make our work easier.""But you can't compare a fountain pen to an electronic brain." "Sure you can. It's just another kind of tool. Lots of kids do their homework on typewriters. In high school and college they teach kids to do some of their homework on slide rules. And scientists use all kinds of computers as tools for their work. So why pick on us? We're just - just going along with the times." And then he made a third point, and it's this point that stuck in my memory all these years - although it didn't really sink in, with him or with me, until the end of the book. Because, while Danny managed to get himself out of trouble with his fine arguing, the story didn't end there. First, Danny's hopes of coasting through the rest of the school year were dashed the next day when the teacher assigned Danny, Joe, and Irene books from the Ninth Grade as the source of their homework assignments. Thus they were forced to spend lots of time programming the computer so that it could spit out what they needed to turn in.Meanwhile, the school bully also wasn't done with tormenting them. In a brief moment when Danny was out of the lab, the bully snuck in, and, in an early example of a rogue attack on a computer, tampered with the machine. Which made for some dreadful moments the next day. The first was when Irene went to read aloud to the class the report on Peru the computer had spat out for her that morning and discovered that the report it had typed was nothing but gibberish. She was therefore forced to adlib the rest of the presentation based on what she could remember from when they'd entered the information into the computer.And then that night the professor returned, this time with important guests from Washington interested in potentially purchasing the machine for government use - but dubious that it could do all that the professor had promised. So when it started printing out gibberish that evening, it was quite a serious problem. Fortunately, Danny realizes that the problem was that the thermostat had been hacked - the bully had removed a bolt so it got stuck on a setting, which had made the switches too cold to operate properly. Once they warmed up everything worked fine again and everyone was impressed - with the computer, and with Danny.But the story closes with Danny coming home from school at the end of the term a few weeks later and sulking. Apparently that third prong of his defense had been right all along: using the computer to complete his homework hadn't been cheating, because he had to know how to do the homework in order to program the machine to do it for him. ("But I *know* these subjects. Gosh, I have to know them so I can program the machine to do them," he had earlier pointed out to the teacher.) And he was crushed to discover that it meant that he and his friends had actually been doing homework "all along" when they got the computer to help them work through the Ninth Grade material.Professor Bullfinch coughed, and said, "I wondered how long it would be before you found that out. Naturally, in order to feed information into the computer you had to know it yourselves. And in order to give the machine the proper instructions for solving problems, you had to know how to solve them yourselves. So, of course, you had to do homework - and plenty of it." And I think that's the idea that always stuck with me from the story, the message that computers were not some separate, magical entity, but rather just extensions of the human masters who made them.And that matters, especially as computers become more sophisticated and more capable of replicating what humans can do.To be fair, the book may have actually sold computers short. For instance, the professor took pains to disabuse Joe of their potential:"The computer can reason [] It can do sums and give information and draw logical conclusions, but it can't create anything. It could give you all the words that rhyme with the moon, for instance, but it couldn't put them together into a poem." On the other hand, even the professor came to reconsider his limited expectations of computers' potential. Inspired by Joe's curiosity, he decided to have his computer produce music. Which it did, but of course only after he'd fed the computer "full instructions for the composition of a sonata, plus information on note relationships and a lot of other technical material." And he still had doubts:Professor Bullfinch shook his head. "No. It never can be Beethoven, Mrs. Dunn. No matter how intelligent the computer is, it is only a machine. It can solve problems in minutes that would take a man months to work out. But behind it there must be a human brain. It can never be a creator of music or of stories, or paintings, or ideas. It cannot even do our homework for us - *we* must do the homework. The machine can only help, as a textbook helps. It can only be a tool, as a typewriter is a tool." The question we're faced with today, with the extraordinary power of computers no longer in doubt, is whether the professor is still right about the subordinate nature of computers, and I think the answer is yes. And that matters today for purposes of accountability, because no matter how sophisticated computers are, they still are dependent on the human masters who program them. They can produce amazing output, but it is human beings who have given them what they need to produce it - whether it be good or bad, for better or for worse. We can't just shrug and blame any unfortunate results on computers as though they were some separate beings. Sophisticated though they may be, they are still just our tools, and the responsibility for how they are used remains with the person who used them. As the professor said of his computer:"It's a wonderful, complex tool, but it has no *mind*. It doesn't know it exists." Perhaps a day may come when artificial intelligence will progress to the point where computers will have attained their own consciousness and stand as equals among their human progenitors. But until that day happens, the lesson of the book still holds.* Note that if you want to ever read this book, even after the coronavirus health crisis is over, you will have to read it at the Internet Archive because it appears that many local libraries have already purged it from their collection.
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posted at: 12:00am on 18-Apr-2020
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