From The Register…

Dell’s grip on a “cloud computing” trademark may not be as solid as it first seemed.

The US Patent Office has canceled its “notice of allowance” on the Round Rock computer vendor’s attempt to master the popular IT buzzword. Passing the “allowance” step in the trademark process had meant that opponents could no longer object to Dell’s claims. But Dell’s trademark application was updated yesterday to show the case has now “returned to examination.”

It would seem someone working for the USPTO was stuck by thunderbolt of rationality…

Not before time.

According to The Register,

Dell is attempting to trademark the tech industry’s favourite buzzword – “cloud computing”.

The Round Rock, Texas firm is trying to gain control of the ubiquitous term according to a document filed on the US Patent and Trademark Office’s website.

Dell’s application has already reached the so-called “notice of allowance” stage, whereby a company is granted “written notification from the USPTO that a specific mark has survived the opposition period… and has consequently been allowed for registration”.

In other words, Dell has very quietly pushed its trademarking application past the phase where opponents of its move can have any say in the process.

But that doesn’t mean Dell now owns the term “cloud computing”, which, according to a quick search on Google News has been used nearly 3,500 times in the past week alone. The USPTO notes: “Receiving a notice of allowance is another step on the way to registration.”

“Cloud computing” is basically a catch-all term used widely among CEOs – from Ballmer to Jobs and everyone inbetween – who are increasingly preoccupied with pushing their products and services online; or, as they prefer it, up into the cloud. So if Dell successfully snatches the trademark, its usage could be somewhat curtailed.

Well, well. Hear this.

Here’s the scenario: internationally known heavy metal band with long history in the business invites music critics in London to listen to six tracks off the band’s forthcoming album. Those critics then write reviews based on what they’ve heard. Despite the total lack of any non-disclosure agreements and the fact that the band must have known what it was doing, its management then contacted the blogs in question and asked them to take down the reviews.

Actually, “asked” may be a polite way of putting it. The music blog Blinded by the Hype contacted The Quietus, one of the blogs that had run a review, wondering what had happened to the piece. The answer, from editor Luke Turner, was clear. “The Quietus kept our article up the longest and, as no nondisclosure agreement had been signed,” he wrote, “[we were] not prepared to remove it merely due to the demands of Metallica’s management. We only removed the article earlier today to protect the professional interests of the writer concerned.”

I’ve never knowingly listened to anything by Metallica, but I remember well how aggressive they were in the Napster era. They’re old-style control freaks.

Revision3 is an Internet television network that creates and produces a variety of popular niche shows like Diggnation and The GigaOm Show which are distributed using BitTorrent. Over the Memorial Day weekend, Revision3 was slammed by a Denial-of-Service attack which overwhelmed the company’s servers and disabled both its video service and internal networks for more than three days. The culprit was MediaDefender, an outfit that describes itself as “the leading provider of anti-piracy solutions in the emerging Internet-Piracy-Prevention industry,” which, working on behalf of clients like the record and movie industries, has a history of launching DoS attacks on sites allegedly distributing copyright content.

That’s the background. GMSV continues the story

In a post today, Jim Louderback of Revision3, tells the technical tale as entertainingly as a mystery story, complete with disturbing discoveries, and it’s worth a complete read. But the capsule version is that MediaDefender had been secretly using a backdoor to inject thousands of bogus files into Revision3’s BitTorrent tracking system as part of its pirate hunting efforts, and when Revision3 found and closed the door, not knowing how it was being used, MediaDefender’s system responded with the scorched-earth attack that shut down a legitimate business. “It’s as if McGruff the Crime Dog snuck into our basement, enlisted an army of cellar rats to eat up all of our cheese, and then burned the house down when we finally locked him out – instead of just knocking on the front door to tell us the window was open,” says Louderback. Even more galling — MediaDefender admitted responsibility freely and apologized, not for misusing Revision3’s system in the first place, but for the misbehavior of its thwarted server. Being that DoS attacks are a crime in the U.S. under a variety of statutes, Louderback has called in the FBI and is also getting much encouragement to file a civil suit.

Yep. I’d contribute to a fund that would pay for it.

Jim Lounderback’s admirably restrained post is worth reading in full. It ends:

All I want, for Revision3, is to get our weekend back – both the countless hours spent by our heroic tech staff attempting to unravel the mess, and the revenue, traffic and entertainment that we didn’t deliver.

If it can happen to Revision3, it could happen to your business too. We’re simply in the business of delivering entertainment and information – that’s not life or death stuff. But what if MediaDefender discovers a tracker inside a hospital, fire department or 911 center? If it happened to us, it could happen to them too. In my opinion, Media Defender practices risky business, and needs to overhaul how it operates. Because in this country, as far as I know, we’re still innocent until proven guilty – not drawn, quartered and executed simply because someone thinks you’re an outlaw.

In a way, this is an old story. At its core is the content owners’ fanatical intolerance of any technology that might adversely impact on their business models. The fact that BitTorrent (and P2P generally) happens to be a strategically important technology for society (it is, after all, what enables us to harness the power of all those PCs connected to the Net — what Clay Shirky called ‘the dark matter of the Internet’) doesn’t matter to them. They’re the spiritual heirs of the men who wanted to ban the telephone because it enabled their wives to speak to men to whom they hadn’t been properly introduced. They seek to persuade legislators that all P2P technology is evil, by definition — their definition. I remember how, many years ago, Larry Lessig arrived in his office in Stanford to find that the university’s network police had disconnected his computer from the network. Why? Because they had discovered that he was using P2P software. The fact that Larry used P2P technology to distribute copies of his writings — to which he, and he alone, owned the copyright — had never occurred to them.

Christopher Caldwell wrote a great FT column about J.K. Rowling’s legal action to resist fair use of her work. Excerpt:

The gravamen of Ms Rowling’s and Warner Brothers’ argument is clear. Mr Vander Ark’s book “is not a reference book or scholarly critique”, they claim, and it lacks “any originality or invention”. Ms Rowling has praised Mr Vander Ark’s website, but calls the book that will draw from it “wholesale theft”. Her attorneys note that “Ms Rowling has allowed fans and scholars wide latitude to comment on, critique, and even create ‘fan fiction’ and art based on her stories”. But of course, nobody in a free country requires authors’ permission to comment on or critique their work.

Lawyers at Stanford University Law School’s Fair Use Project, who are defending Mr Vander Ark pro bono, sought to show in three days of testimony this week that the Lexicon constitutes “fair use” of Ms Rowling’s work. It is a reference guide, of the sort that is familiar (and indispensable) to anyone who has taken a deeper interest in Balzac, Proust, Faulkner or Star Trek.

Ms Rowling “appears to claim a monopoly on the right to publish literary reference guides and other non-academic research relating to her own fiction”, according to Mr Vander Ark’s lawyer. Joe Nocera, The New York Times business writer, puts it even more bluntly. He has called Ms Rowling a “copyright hog”.

Whether the lexicon violates “fair use” depends, according to US legal experts, on whether it is “transformative” or whether it just cribs from Ms Rowling’s plot and prose. Much of the testimony missed this issue.

Ms Rowling dwelt on her own plans to publish a Potter encyclopaedia, which is neither here nor there. Literary critics cannot be kept from writing about, let us say, the novels of Philip Roth on the grounds that Mr Roth swears he wants to publish a book called What My Novels Mean. The fact that Mr Vander Ark would profit from his lexicon is a red herring, too. Provided he is within the boundaries of “fair use”, there is nothing illegitimate about his profiting from his work, any more than it is illegitimate that book reviewers be paid if they cite the books they review.

Ms Rowling also demeaned the quality of Mr Vander Ark’s book, which is legally irrelevant. Apparently some puns she was particularly proud of, including a “double allusion” in the name Remus Lupin, went over his head. She came off as condescending (“It’s very difficult for someone who is not a writer to understand”), self-involved (the suit, she said, “has really decimated the demands of my creative work for the last month”) and mean.

Good, robust piece. Right on.

Well, well. The Digger may have had his way with the WSJ, but he’s come unstuck in the UK. From The Register…

An independent appeals panel has overturned a heavily-criticised decision to hand control of the myspace.co.uk domain to Rupert Murdoch’s Fox Interactive Media.

Nominet’s Dispute Resolution Service (DRS), had ruled in favour of MySpace in January, despite the domain having been registered by a small British ISP six years before the US social network was founded.

Barring any possible further High Court action by MySpace accusing TWS of “passing off”, the judgement, released on Thursday last week and passed to The Register today, means control of the address remains with Stockport’s Total Web Solutions (TWS).

TWS managing director Paul Fallon said: “We refused to be bullied by one of the largest media organisations in the world. This has been a very stressful case for a legitimate medium sized ISP to have to take on – but we had to defend our reputation and to stand up for what was right.”

A MySpace representative did not return a call requesting comment.

TWS originally registered myspace.co.uk in August 1997 to provide its clients with a cheap and easy-to-use homepage and email address in the early days of the web. It also registered bigspace.co.uk for the same purpose. 18 TWS customers still use @myspace.co.uk email addresses.

Bully for Mr Fallon!