Blawg Review #33 has been posted over at Overlawyered. While I didn’t submit anything this week, I have been following one of the controversies posted about, namely the name change by Pajamas Media to Open Source Media. In relevant part, the quote is as follows:
Taking second place in interblog buzz is the IP sticky wicket that awaited the former Pajamas Media (discussed by Blawg Review here) when shortly before launching it decided to switch to the more dignified monicker of Open Source Media. Turned out there was already a well-known public radio show by the name of Open Source which hadn’t been consulted even though it occupied such URLs as opensourcemedia.net. Ann Althouse has been merciless (here, here and here) in needling the OSM organizers, while Prof. Bainbridge piles on with a law and economics analysis of OSM’s market.
This is a good example of why it pays to do a trademark knockout search before publicly announcing your new company name…
UPDATED TO ADD: The name will be changed back to Pajamas Media. Here’s a link to the company’s explanation of what happened. A good object lesson: don’t blindly follow advice from a marketing presentation without checking with a trademark attorney to see if the name is available.
Mark Russinovich, over at Sysinternals, has declared victory over the rootkit embedded in the CD’s Sony has distributed. And, as Bruce Schneier points out in his excellent analysis, Mark has reason to be happy. It’s David v. Goliath.
However, it’s not a total victory.
There are untold numbers of machines still infected with the Sony Rootkit, a lurking security flaw waiting to be exploited. A recall of the discs will not uninstall the software. At best, Sony will get back the unsold discs, plus a very small percentage of those in the wild.
Further, Sony’s own attempt to remove it leaves another security hole, an ActiveX control that can be exploited, too.
It will take years before the lawsuits play themselves out. As news of what Sony has done to consumers spreads beyond techies, I fully expect more lawsuits to be filed. In the next few days, I will look further at some of the legal theories propounded, including trespass to chattels. Not to mention, of course, Sony’s own potential liability under copyright for including the LAME MP3 encoder in the DRM software without complying with the terms of its license. What irony, Sony’s software to protect its copyrighted content may itself be in violation of the copyright of others.
Whether others will learn from Sony’s public relations nightmare has yet to be seen.