Reminds Me of Y2K

Wired Magazine’s Threat Level Blog is having fun with the apparent false alarm over the Conficker virus. A sample:

Threat Level was skeptical last week that Conficker would do anything more than send spam. But since then we’ve become aware of dramatic new evidence that reporting on a doomsday worm is good for page views. So welcome to our Conficker War Room! We’ll track this scourge throughout the day, so check back frequently for the latest updates. . . .

12:15 EDT: Felony conviction against Ted “Series of Tubes” Stevens is being thrown out for prosecutorial misconduct. Coincidence? Conficker hates net neutrality.

12:20 EDT: Reader reports, “I just got a message that said, ‘Windows has encountered a problem and will need to shut down’. OMG!!” . . .

3:05 p.m. EDT: CBC reports that attackers could be preparing a new version of Conficker that’s even worse than this one. Checking with art department about getting deadlier graphic.

3:55 p.m. EDT: You can now pre-order the DVD of 60 Minutes’ report on Conficker, The Internet is Infected. It’s just $15.99 on Amazon.com. Do it now, while the internet is still alive.

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The Obama “Hope” Poster Case — What’s a “Visual Reference”?

(This is the sixth in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

This is a (second) unplanned additional post in my series on the copyright and litigation issues raised by the Obama “Hope” poster case. One of the key fights in the case is going to be over what, exactly, the relationship between the two images above is. Is it the use of a photograph for a transformative purpose, or is it merely plagiarism for commercial benefit?

One hint at how Fairey’s lawyers are going to argue this question is in the complaint‘s use of the phrase “used as a visual reference.” (Compl. ¶¶ 18, 34.) In a previous post, I expressed puzzlement at that phrase, which appeared to me to be just a way of obfuscating the creation process behind the poster. The AP’s lawyers may have been puzzled too, because they did not refer to the term at all in their lengthy counterclaims; instead, they simply referred to Fairey’s “copying.” (Answer ¶ 129.) But I’ve since come across an indication that “reference” may be a technical term in the art world, one that appears to mean the target of an intended visual allusion.

Assuming that’s what it means, I’ve got three quick comments on the use of the term “reference” in the complaint.

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The Obama “Hope” Poster Case — AP Strikes Back

(This is the fifth in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

Today, the AP filed its response to the Fairey complaint—and as I predicted, the AP is asserting counterclaims for copyright infringement. Like Fairey’s complaint, the AP’s counterclaims go well beyond merely stating a cause of action, and attempt to win the battle for positive publicity as well. (Note to my Civ Pro students: Take a look at these pleadings if you want to see skillful examples of what I was talking about when I mentioned complaints that go beyond a “short and plain statement.”) Both sides in this case have their eye not just on the law, but on the ordinary, nonlegal intuitions of the press, the judge, the jury, scholars, and bloggers such as myself. (Indeed, I got a copy of AP’s press release by email. To Fairey’s attorneys: Feel free to reciprocate!)

I have a few quick observations.

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