Global Forum on IP: Report 3

Three weeks ago, following a hearty lunch during the first day of the Global Forum on IP this Kat made her way to the trade mark parallel session, but as she sat down a shadowy realization (picture, left) begun to creep: she knew that as hard as she tried, she could not face another conference session on Google AdWords. After attending about 6 seminars, one of which she herself presented at, how much more could she learn about the CJEU (ECJ) case and would it be any different to what had come before? A cynical voice thundered saying "No, it won't be. Go to the oft-neglected copyright session, instead." So with the voice booming away, she decided that the copyright parallel session would be the best place for her and her report of that balmy Singaporean afternoon is set out below.

Pirate Bay and the Digital Economy Act: Is the time ripe for an overhaul of copyright law?

Although the session had the Digital Economy Act (DEA) in the title very (very) little was said about the actual Act or the fact it was being judicially reviewed. Professor Hughes, the moderator of the session from the Cardozo School of Law, began the session by expounding on the beginnings of ISP liability and peer-to-peer technology culminating in the Napster and Grokster litigation in the US. This litigation was the impetus for the US legislature and courts to examine ISP liability in the US. This issue is still pertinent 10 years later with the extensive litigation that has been seen in the Pirate Bay litigation - whose service was ordered to be cut off by the Danish and Italian courts. The question has now become whether or not ISPs should be involved in graduated responses, and if so what should their level of involvement be in this response.

Jan Rosén, (picture, left) Professor at Stockholm University stated that the UK, like many other countries in the EU, has instruments of graduated response legislation to stop traffic and to ascertain IP addresses of suspected copyright infringers. This has very much been central to the debate on these issues. Professor Rosén asked whether in this growing system of "copyright abolitionism" we have learned something from piracy and the Pirate Bay case. The simple answer, he says, is that copyright has survived and has come out stronger than ever and Professor Rosen cannot see any alternative to this. He does however, note that stopping internet service has deep issues concerning freedom of expression and privacy.

Professor Rosén acknowledged that copyright is a complex area of law and has been so over the years. In recognition of this increasing complexity and in line with what Mr Justice Arnold said earlier in the morning (see report here), Professor Rosen stated that UK copyright should be amended by a new act. The UK Copyright Act, like the Swedish copyright act, is just layer after layer of amendments which it makes it too difficult to understand or interpret.

It may have been sitting under the halogen lights coupled with her jet lag but laden ladenfam tuned out for a bit (picture, right - laden ladenfam warming her whiskers under the lights) and when she looked up again she was staring at a slide entitled ‘Pirate Bays contribution to a contribution…” and that was the end for her for a couple of minutes. She mentally returned to the program when Professor Rosén spoke about whether or not ISPs should benefit from reduced liability due to the social value of their work and business. This argument had been rejected by the the Swedish Court in Pirate Bay. However, the Swedish court did say that liability may be reduced for ISPs because of impassive willfulness due to automation and intense traffic, i.e. being passive and not acting with full responsibility. As laden ladenfam understood it, any kind of ISP service maybe liable for contributory infringement at least according to the Swedish Appeal Court. This may not fall under willfulness, but it could be argued as being grossly negligent in Sweden suggested Professor Rosen.

Professor Ng-Loy Wee Loon of the National University of Singapore stated that Singapore is also looking to a graduated response type legislation. To rightsholders, graduated response mechanisms are just another enforcement measure -they are not actually getting any additional rights. Professor Loon says she can understand why this is an effective means of enforcement of copyright in an area which is ripe with infringement, i.e., the internet. In Singapore there is a separate police force, the IPR Branch in the Criminal Investigation Department, which enforce IP infringement. But a lot of burden is placed on this branch and the tax payers who pay for the enforcement of a private right.


ISPs similarly have a burden by way of their gatekeeping function. But with this burden comes the benefit of safe harbor provisions; the provisions of which in Singapore are similar to the US model (see AmeriKat reports on the Safe Harbor provisions in the DMCA here). Professor Loon questioned how much further copyright enforcement should go in protecting copyright. She thinks there should be a three-strikes law which should be called "balance-balance-and-balance". The RecordTV v MediaCorp TV Singapore (2010) case was cited. The technology involved the ability of any member of the public being able to register with the plaintiff and following registration could use the system to record the TV programs, i.e. time-shifting. This is permitted by the Singapore Copyright Act under section 114. MediaCorp TV Singapore is the main broadcaster in Singapore and produces television programs like documentaries. The issue before the court was the right of communication to the public. When this case went to the Court of Appeal, there were questions about the scope of communication to the public. Where there is a one–to–one translation, i.e., where the streaming of the broadcast is to the user of RecordTV individually, and not to the public, the court looked at the bigger policy picture. Right at the start of the Court of Appeals judgment, the court asked how the court should strike a “just and fair balance” between all the interests of the affected stakeholders, including the interests of consumers, content providers as well as technology and service venders. They said the balance should come down in favor of the wider public interest, and therefore RecordTV’s service did not involve a communication to the public. Professor Yoon says she is not sure about this aspect of the Court of Appeal’s judgment. She believes the court bended over backwards to make this decision make sense in the favor of balance because the parliamentary debate on this issue seemed to indicate that such a case of RecordTV should fall within the definition of communication to the public. Professor Yoon stated that it may not have been the wrong decision, but it was a very alternative route to get there.

The overall point that came out from the two presentations was that from both Singapore and Sweden alike, even when legislatures craft safe harbors for ISPs, if the judge wants to throw the book at an infringement based model or wish to protect an ISP, they will do so regardless of the legislative intent.

Google Book Settlement

The next session discussed the Google Books Settlement. An IPKat favorite and always entertaining speaker, Mr Tilman Lueder, Head of Unit (Copyright) of the European Commission, (picture, left) the moderator of the session, begun by giving background on the Google Book project. Lueder compared the Google Book Search to the EU’s Europeana project which is “falling behind” because, he says, the EU has a strict copyright system without fair use. Mr. Lueder suggested that if we wanted to facilitate large scale digitization we would have to change the laws and could not leave this in the hands of a private party settlement. Meanwhile, he says he is not so sure that this is Europe's only option any more. The European Commission published an impact study on orphan works and there was no forthcoming consensus as the publishers, users, and the like do not seem to speak the same language. One can be excused in thinking, Mr. Lueder continued, that the Google Book Settlement is not so bad – or at least not as difficult as passing legislation.

Professor Rosén said that this issue was very vast. Now that Google Settlement diminished to only a fraction of its previous incarnation, there is still 50 million works that have been digitized. Something will surely happen with these digitized works. The question is whether we want a global player who has a capacity to offer these large catalogues of works in a private capacity? No collecting society can provide such a big repertoire. A detailed discussion then ensued about the Nordic compulsory licensing system, which this IPKat has such strong views on its un-workability throughout the EU that she unfortuantely automatically stops listening. One could even feel the rest of the audience switch-off as soon as the issue of compulsory licensing was brought up.

Professor Wong stated that she thinks that the Google Book Settlement should be approved. She says that the second version is many ways an improvement on the first especially due to the resolution for the foreign rights owners. Leaving aside the anti-trust issues, she does not believe that dragging the copyright issue to trial would be beneficial. Professor Wong also stated that even though a private company is handling these licences, it may be no bad thing for the US to experience a licensing system. There are some cautions going forward beyond the Google Book Settlement which includes the treatment of orphan works. Professor Wong also stated that it has been frustrating for her that the US legislature has started initiatives dealing with orphan works but they have not gone anywhere. Although not mentioned by name this would include the Shawn Bentley Bill, which this IPKat knows intimately being the subject of her LLM dissertation, which was a good bill but never went anywhere. In addition, proposals for the exemption of Section 108 to the Copyright Act -an exemption for libraries and private individuals - which still has gone nowhere. The Google Book Settlement is one elegant solution in addressing the problem of orphan works.

Professor Hughes (picture, left) from the Cardozo School of Law said the seeds of the Google Book project is that they make money from the Google Book Project, a little fact that Google always seems to forget when promoting the Settlement. Although, doctrinally, there may have been an argument for fair use, politically there is no way there could be fair use. The Statement of Interest from the US government filed in 2008 opposed the first settlement. The Statement of Interest focuses on market dominance of Google. The Department of Justice say they should not achieve anything more than first-mover advantage in scanning the books and then obtaining a licence. The settlement should not do anything more in prolonging market dominance. The recent filing in September 2010 characterized the revised Settlement as a “bridge too far”, which includes the issue of orphan works.

Mr. Lueder asked if orphan work legislation is misguided. The Department of Justice says that the Google Book Settlement is a private agreement substituting for legislation of private rights for members who are not present. This troubles Professor Hughes, and, as readers know ,the AmeriKat greatly (see her post here). Professor Hughes says that the wider issue is what does this project say about the system of publishing in the US as well as the role of libraries. Will we be entirely cutting out the middle-man in all of these processes? Professor Hughes says that if he was a librarian, he would be very concerned about the Google Book Project.

Mr. Lueder says that although we have recognized that we should not have private parties legislate on issues, the difficulty in the orphan works experience in Europe makes such private legislation seem attractive. Professor Hughes says that with the Google Book Settlement in the US we may be seeing a mixture of private settlement with the US Government guiding them in a quasi-legislative role of saying whether the settlement is acceptable or not – the “you are getting warmer, warmer. Nope, now you are colder” game.

Mr Justice Arnold (picture, right), in audience, argued that although Mr. Lueder says that legislation like orphan works is challenging the point surely is to balance the interests and make a judgment as to where that balance lies [a judge would say that, says laden ladenfam]. Why, said Mr Justice Arnold, does there have be a complete consensus on the legislative issue before legislation is made? Mr. Lueder says that every time they try to strike a balance in proposed legislation, they receive pressure from stakeholders and this constantly makes this legislative process challenging. He said that at times the rights holder community is so strong, that they feel that any strike of balance is an attack on their rights and this holds back the balance. Likewise with the other side of the camp, laden ladenfam says.

Admittedly, there was one more session in this afternoon but the AmeriKat, having sat under the halogens and suffering from a mean case of jet lag, stalked up to her hotel room to take a 40 minute Kat nap before dinner.

Google takes it on the Chin

The bigger they are, the harder they fall:
but might there still be a settlement?

In a decision which has attracted much satisfaction, considerable attention and little surprise (at least among many authors, copyright enthusiasts, cynics and Google-bashers on the European side of the Atlantic), Federal Judge Denny Chin rejected the class action settlement which Google had painstakingly reached with a coalition of authors and publishers.  The proposed settlement, the judge felt, would grant Google significant rights to exploit entire books, without permission of the copyright owners,giving the world's most omnipresent corporation a significant advantage over competitors -- rewarding it for engaging in wholesale copying of copyright works without permission [Yes, says Merpel, but isn't that exactly what it was supposed to do?].

The 2009 settlement proposal would have left Google free to create a registry of books [but isn't it doing that anyway?], so long as it paid a paltry US$125 million to those people whose copyright-protected books had been scanned and to locate the authors of scanned books who had not come forward. Google would also have enjoyed what has been described as "immunity from copyright laws, allowing the company to distribute millions of books on the Internet in exchange for sharing the revenue it would generate" (Bloomberg).  laden ladenfam was horrified, at a conference in December 2009, to hear publishers' representatives urging that the $125 million offer -- about the price of three top-class footballers -- should be accepted since (i) it was "the only offer on the table", (ii) there wasn't anyone else around who was going to offer a better deal and (iii) in the current sorry state of the book publishing industry any subsequent offer was likely to be lower, not higher.

One of the things which laden ladenfam found most unpalatable about the settlement was that it required authors to opt out if they didn't like it, rather than getting them to opt in if they did. Judge Chin seems to think so too, so now it's Google which is considering its options.  Hillary Ware (a managing counsel for Google) is reported as saying: "Like many others, we believe this agreement has the potential to open-up access to millions of books that are currently hard to find in the U.S. today".  It does, but so too does the abolition of copyright.  And there are lots of other things that are hard to find in the U.S. today -- a decent cup of truly hot coffee being one of them -- but we don't go around saying that people's personal property rights should be trampled on or subject to opt-outs in order to make it easier for people who have no entitlement to them to gain access to them.

laden ladenfam is fairly confident that this is not the last we've heard of the settlement.  He bets that it will get through eventually --but on a very different basis.  His position has always been that the copyright issues are less of a problem than those of absence of competition, and it is those which will shape the global outcome.

Sources and further reading:
The Authors' Guild et al v Google Inc, 05 Civ. 8136 (DC), 48 pages
The proposed settlement agreement here, 323 pages
Google Book Settlement website here
"GBS Update: the Settlement Is Dead; Long Live the Settlement Negotiations!", Scrivener's Error
"Federal Judge Rejects Google Books Settlement, But Leaves Door Open to Revision", ACS Blog
Giovanna Occhipinti Trigona, "Google book search choices", Journal of Intellectual Property Law & Practice (2011) 6(4): 262-273 (abstract here)
"Defeated Book Settlement 'a Victory for Copyright', The Bookseller.

From “Dr Googleberg” to the “Google Book Settlement” - Some news from Germany

Some of laden ladenfam’s readers may have followed the recent intriguing political scandal surrounding former German defence minister and Germany's political superstar Karl Theodor zu Guttenberg (depicted below on the cover of a new biography about his life), who last Tuesday resigned from office following allegations that he had plagiarized large parts of his “summa cum laude” PhD thesis in Law.

Naughtily dubbed “Dr Googleberg” or “Baron cut and paste” by some parts of the German media, zu Guttenberg decided not to use his Phd title after the initial accusations of plagiarism broke, then wrote to his university (Bayreuth) and asked to “return” his PhD, with the university subsequently deciding to take his doctorate away for good. Further investigations at Bayreuth University are still pending.

The whole story has some interesting legal implications as plagiarising a thesis could qualify as “carrying an academic title without authorization” (section 132 German Criminal Code -unlikely to apply since the PhD was bestowed legally initially) as well as ”criminal disloyalty” (section 266 German Criminal Code “Untreue”) since zu Guttenberg allegedly ordered essays from the scientific services of the Bundestag and used them in his thesis without properly referencing this third party work and due to the fact that he should have only used the services for his work as a member of parliament, not for his personal use. Perhaps most importantly, plagiarizing other’s works without referencing them properly could be copyright infringement under section 109 German Copy Right Act (using someone else’s works non-commercially without authorization).

On the right - the thesis in question

For the copyright infringement provisions to apply the law requires that one of the authors of infringed texts filed a complaint with the relevant authorities (provided that the texts that been copied in the thesis were itself “creations” that fell within the ambit of the copyright act), unless there was a heightened damage to the “legal good copyright” so that there could potentially be a public interest in prosecuting this matter. (See here for a discussion of the criminal law implications (in German)).

It appears that none of the allegedly copied authors has so far filed an official complaint with the prosecution authorities and it is now up to the prosecution authorities in Hof, Bavaria to investigate further after zu Guttenberg resigned from all his official posts and as such is no longer covered by the immunity laws. The university of Bayreuth is also conducting further (internal) investigations as does an interesting internet project called "GuttenPlag Wiki", which appears to have established that more than half of the thesis has been copied.

This Kat was in Germany when the story broke initially and was intrigued by the very high approval ratings zu Guttenberg boasted before and after his resignation. It does hence not come as too much of a surprise that - in typical German fashion - the first third party trade mark application for the trade mark “Guttenberg” in classes 9, 14 and 25 [update: the exact goods covered are not yet published on the official register] has been filed at the German Patent and Trade Mark Office.

Merpel now wonders whether Karl Theodor zu Guttenberg may find a new career as the new Paul (see above right and IPKat posts here and here) Knut, Heidi)?

From Dr Googleberg to the ongoing “Google Book Settlement” class action which also affects German authors and right holders. On its website, the German Collection Society “VG Wort” now informs us that it has again written to Judge Denny Chin of the New York District Court in relation to the “Google Book Settlement” case (The Author’s Guild et al v Google, Inc., case no 1: 05-cv-08136 (DC)).

In its letter to the court of 14 February 2011 (which can be retrieved via VG Wort’s website by clicking here (in English)) the German Collection Society requests an extension of the court deadlines for claiming a cash payment by 31 March 2011 and for claiming the complete removal of works by 5 April 2011. The extension of time should be granted in an interim ruling. VG Wort argues that since it was at present uncertain whether a settlement would be approved by the court, “(VG Wort) cannot be expected to incur the heavy administrative costs which would be involved” (...) “in determining the current status of German books under the existing terms of the settlement.” Furthermore, VG Wort also stresses that it was at present still unclear which German works would be covered by the potential settlement. VG Wort had already submitted an amicus-curia brief to the court ahead of the fairness hearing of 18 February 2010 (see Amerikat's report here) in which it had criticised that it was difficult and almost impossible to determine which authors and publishers were affected by the settlement.

Certainly not the last chapter in this matter.

2011 IP Developments Conference: 3

The post-prandial session of this year's IP Round-up conference, organised by CLT, began with a description by David Musker (Jenkins) of the current state of European design law, focusing on the main subject of litigation under Community design law -- the cancellation of registered Community designs.  This presentation finished with David's account of the General Court's decision in Beifa, in which both the Cancellation Division and Board of Appeal of OHIM assumed that the challenge to the registrant's design for a writing device was based on the applicant for cancellation's figurative (two-dimensional) mark and the three-dimensional design.

David followed by introducing a new cancellation case, T-513/09 Baena Grupo v OHIM (available only in Spanish and French), in which it was assumed that the informed users of the two designs represented here -- children -- would distinguish them by relation to their facial expressions rather than by their many similarities.

David concluded with a poll of participants as to whether the vacuum cleaner products of Dyson and Vax (which you can view here) were made to the same design, explaining how the judge in Dyson v Vax approached the comparison between them, factoring in the criterion of functionality and its effect upon design.

"Wake up and smell the copyright!", proclaimed copyright consultant and 1709 Blogger Hugo Cox in his appraisal of the present state of copyright protection and enforcement.  Hugo first subjected the concept of originality to his scrutiny, considering the impact of the ECJ's ruling in Infopaq upon the High Court for England and Wales ruling in Meltwater. Further issues relating to protected subject-matter are awaited in the SAS and Dataco references to the ECJ.

Moving on to infringement and remedies, Hugo reviewed the important decision in Experience Hendrix v Times Newspapers, among others. Observing that actions brought against a large number of alleged defendants were not cost-effective, despite the availability of the Patents County Court, he described the statutory solution to large-scale online infringement via the Digital Economy Act 2010.  The earliest that the British version of "three strikes" can come into force is 2012, and further legislation -- which may not be politically popular -- will be needed for this purpose.

What about suing intermediary websites for "authorising" infringements by creating the impression that acts of copyright infringement are licit?  This issue was raised in the context of Newzbin, a case in which the facts were quite different to those of for example the BitTorrent technology but where some of the same legal concepts might be applicable. Currently two references are before the ECJ as to the extent to which injunctive relief may be available against intermediaries given that, they are under no general duty of monitoring their content, they might reasonably be expected to cease repeating or prevent the occurrence of infringements of which they have  knowledge.

Hugo finished with a short summary of the saga of the Google Book Search, which still awaits a final settlement.  The number of books scanned into Google Book Search now stands at 15 million, and the figure continues to rise.

Leading up to the coffee break, Mark Ridgeway and Jim Ford (Allen & Overy) spoke on intellectual property licensing.  Mark started off by praising data licensing and the means of calculating indices, topics for which the banking sector has a voracious appetite -- and which do have an IP dimension.  If there's a contractual licence, remember that a licensee's acts are bounded by the limits of what is licensed, not by the scope of the IP right itself.  Mark commenced with a review of GlobalCOAL, a recent decision that emphasised precisely this point -- and which is a reminder that an IP licence might even carry post-termination restrictions on the licensee that go beyond the scope of the acts restricted by the IP rights themselves.

Mark then reviewed Butters, which considered the effects of an "anti-deprivation principle" (that there cannot be a valid contract that a man’s property shall remain his until his bankruptcy but that, on the happening of that event, the property goes over to someone else, being taken away from his creditors). The trial court felt that an IP licence could be terminated at the point at which the licensee became insolvent, but the Court of Appeal disagreed.

Taking over, Jim considered the meaning of the word "perpetual" in a software contract in BMS Computer Solutions v AB Agri. According to the Court of Appeal, the word "perpetual" -- taken in its context -- meant "of indefinite term" rather than "forever". Finally, Jim reviewed Oxonica v Neuftec, a patent licence which turned on the meaning of the tiny word "or".  Here, the parties sometimes clearly meant "and" and sometimes "or", depending on its context.

Letter from AmeriKat: End of January Jolly

Yesterday the AmeriKat was stomping up and down Kings Road on a hunt for a new casual outfit. Her journey had started with an idea of a new cocktail dress needing to be instilled in her wardrobe (the AmeriKat uses the word "needing" very liberally). However after a few frustrating attempts, she realized a perfectly fitting, appropriately priced, and pitch-perfect dress was not going to be found that cold winter's afternoon. With the stubborn ideal of a dress still swimming around her head, she begrudgingly walked into one store which never enjoys much success with the AmeriKat. After a few meaningless paces around the retail floor, she was leaving the store when she decided to change her mind and reframe her objective. She stopped, turned around and decided that she was going to find something here and marched down to the sale rack. Assisted by a trusty advisor, low and behold she found the perfect skirt at an amazing price which assisted her in sparkling later that night. It just goes to show that when you are about to give up on something, a little change in one's attitude can make all the difference. (Picture, top left - the AmeriKat hiding in her shopping bag after a long afternoon browsing)

RIAA lawyer to be next US Solicitor General

Another change was announced last week when President Obama (right) nominated Donald Verrilli as the next United States Solicitor General. Verrilli will be filling the shoes left by Justice Elena Kagan who left the post last year when she was appointed to the Supreme Court. Prior to becoming a White House lawyer, Verrilli’s private practice experience at Jenner & Block LLP included representing the Recording Industry Association of American (RIAA) in their on-going battle (or crusade, depends on who you ask) with copyright infringers. He also has represented Hollywood film studios in similar battles. According to the New York Times Verrilli has argued before the Supreme Court 12 times and before the federal appeals and state supreme courts around 35 times.

The US Solicitor General is responsible for determining the US’s legal position in matters that reach the Supreme Court and arguing on behalf of the US Government in cases in which they are a party (which is a hefty task in itself). The Solicitor General also files amicus curiae briefs in cases of federal government interest, such as the Google Book Settlement case (see report here). Former President William Howard Taft and former Supreme Court Justice Thurgood Marshall (the first African American to serve on the Supreme Court bench) also acted as the US Solicitor General.

If Verrilli’s name sounds familiar to IPKat readers, it is because Verrilli (picture, left) has been one of the lead attorneys in two famous copyright battles: Grokster and Viacom v YouTube. The Supreme Court’s famous MGM v Grokster ruling in 2005, unanimously held that operators of peer-to-peer file sharing websites could be sued for contributory copyright infringement for the illegal sharing of copyrighted content on their website. The Viacom v YouTube case, which has now reached the Court of Appeals for the Second Circuit, also involves a claim by Viacom that YouTube should liable for contributory copyright infringement in failing to remove and to prevent the uploading of Viacom’s copyrighted content (see previous reports here). However, Verrilli is known also for acting in cases which pressed for greater rights for prisoners, including methods by which death-row inmates are executed, as well for pro bono clients.

Verrilli takes over from acting solicitor general, Neal Katyal. Katyal, although a top choice for the nomination was considered to be too challenging a choice to get past the now Republican saturated Senate. In 2006 in Hamden v Rumsfeld, the Supreme Court ruled against the Bush administration in their plans to hold military commission trials for Guantanamo Bay detainees. Katyal was part of this legal team. The AmeriKat is sadly not surprised that a lawyer with specialization in the telecommunications and IP, with multi-billion dollar industry clients would be a more palatable choice for some Senate Republicans than a lawyer who won a case against the Bush administration. Americans love nothing more than mixing a bit of politics with their judiciary!

Despite the Amerikat’s general ideological qualms in relation to the Katyal choice, she is excited that the next (hopefully) Solicitor General will be an IP lawyer. This is a further message of the importance of IP to the Obama Administration and the US's economic recovery.

Verrilli will now have to go through the usual confirmation process by the Congress and Senate before he takes office. The AmeriKat will keep you posted on any developments.

Snap! Kodak’s hope for a picture perfect ITC trial is not to be

Last Monday, Eastman Kodak lost the opening round in an US International Trade Commission (ITC) patent battle. Last year following failed negotiations with Apple and Research in Motion (RIM) – the makers of Blackberry – Kodak filed a complaint with the ITC alleging that Apple and RIM infringed their 2001 patent (see previous AmeriKat mention here). The complaint coincided with Kodak filing patent infringement claims against Apple in New York and Texan federal court.

During Monday’s initial recommendation ruling Administrative Law Judge Paul Luckern ruled that Apple’s iPhones and RIM’s Blackberry models did not violate Kodak’s patent. The ITC’s six commissioners now have 4 months to decide to either amend Judge Luckern’s ruling or let it stand. Laura Quatela, Kodak’s chief IP officer stated that the judge’s recommendation represented

“a preliminary step in a process that we are extremely confident will conclude in Kodak’s favor. This very same Kodak patent was upheld by a different ALJ [administrative law judge] at the ITC in our case against LG and Samsung, whose products use the very same Kodak technology to function in the very same manner as similar products from Apple and RIM. What’s more, the attorneys at the ITC’s Office of Unfair Import Investigations, which separately examined this case, agree with Kodak’s interpretation of the patent. We fully expect the ITC Commission will ultimately rule that the patent claim at issue is valid and infringed by Apple and RIM.”

In recent years, Kodak has been attempting to reinvent itself into a digital photography powerhouse, a move which has seen them licence their technology to several companies including Motorola and Nokia. The AmeriKat does not anticipate that the commissioners will come back with anything other than bad news, but as George Will said “The nice part about being a pessimist is that you are constantly being either proven right or pleasantly surprised.”

Catcher in the Rye suit settles

Two years the AmeriKat wrote about the copyright infringement suit brought by JD Salinger against Fredrik Colting, the Swedish author of the unauthorized sequel to Catcher in the Rye - 60 Years Later: Coming Through the Rye -which was subject to an injunction barring its publication in the US, The case reached the 2nd Circuit Court of Appeals. Last week it was reported that the two parties have settled on terms that the book will continue to not be published in the UK, the title will be changed and it is reported that Colting is forbidden from dedicating the book to Salinger. For more details on the settlement please see here.

Sony Ericsson sues over logo

Two weeks ago mobile phone maker Sony Ericsson sued wireless broadband operator Clearwire for allegedly infringing their trade mark logo to the tune of about $150,000 including costs. Sony Ericsson reportedly became aware of Clearwire's intention to use the offending logo and in 2010 wrote to them demanding them to rethink its branding. In May 2010 Clearwire announced it was to begin selling mobile phones under the logo. Sony Ericsson's trade mark is not as widely recognized as it is in Europe. What do readers think? Is Clearwire's logo infringing?

Letter from AmeriKat I: Good Day Sunshine (TMs and ©)

The AmeriKat has been watching the English public embrace the change of the season this week. On Friday she slinked outside for her midday patrol and perched on a bench in Gray's Inn, with the new Vogue in paw. (picture, left - the AmeriKat taking a much needed lunchtime Kat nap) Like spring flowers, once the temperature rises above a certain level the English bloom onto any stretch of grass available to them. A sea of students, solicitors, lawyers and miscellaneous office workers were scattered about in the sections of Gray's Inn grass that was unspoilt by any appearance of shade. Once modest workwear suits, worn by males and females alike, were stripped of any sweaters, cufflinks and buttons to expose as much square footage of skin as possible, laughter was echoing off the Inn's buildings, people were chatting with their neighbors, and a general feeling of calm settled throughout. The AmeriKat even spied some IP barristers from 11 South Square joining in on the emergence of spring. There is something about warmer weather in England that makes the general public a little less guarded than normal, in both physical appearance and mentality, which can only ever be welcome.

Louboutin sees red with Yves Saint Laurent

Someone who has seemed to let their guard down, in least where trade mark infringement claims are concerned, is Yves Saint Laurent who last Thursday was sued in Manhattan federal court by the one and only Christian Louboutin. Louboutin is famous for his footwear recognizable by the casual observer by its trade mark red sole. The story goes that one of Louboutin's customers was wearing an amazing red nail polish on her nails which Louboutin adored. She had the coveted nail color in her bag, took it out and Louboutin painted his first sole with the red nail polish. The violent red-lacquered sole would later become his signature maker's mark and would be granted a US trade mark in 2008 (picture, right - Louboutin's famous heel).

Louboutin is now alleging that since January Yves Saint Laurent America, a subsidiary of the Gucci Group, is selling their shoes with the same red sole in store throughout Manhattan. Louboutin's complaint argues that Yves Saint Laurent's use of the red sole is "likely to cause and is causing confusion, mistake and deception among the relevant purchasing public." Louboutin is claiming for $1 million in damages and an injunction to stop Yves Saint Laurent (picture, left) from manufacturing the shoes. Interestingly, Louboutin apprenticed with Yves Saint Laurent in the late 1980s before setting up his own brand.

The AmeriKat is curious, as any Kat should be, to know what evidence of actual confusion (as stated by the complaint to be occurring) Louboutin has. Unlike in the UK, under section 1114 of the Lanham Act US trade mark owners have to prove that the defendant's use of their mark confused consumers. In the Second Circuit, which includes New York, the factors for the test for confusion is that as laid down in the Polaroid Corp v Polarad Elecs. Corp (1961) case. The AmeriKat sets out these factors below with some comments in laden ladenfam's signature comment red:

1. The strength of the mark, i.e. the red soles - It is somewhat undeniable that Louboutin's red soles have indeed become well-recognized as a trade mark for his shoes in the market.
2. The degree of similarity between the two marks - Identical - in so far as they are both red outersoles
3. The proximity of the products and services - Identical - they are both shoes, being sold in the same stores, probably right next to or near each other
4. The likelihood that the senior user will "bridge the gap" into the junior user's product service line - if there even is a 'gap' it is very likely because they are competitors
5. Evidence of actual confusion between the marks - Always hard to come by, but perhaps Louboutin has some faithful customers who will be able to attest to some initial interest confusion?
6. Whether the Yves Saint Laurent adopted the mark in good faith
7. The quality of the Yves Saint Laurent's products - the AmeriKat would love to see Louboutin allege that YSL's products are of a lesser quality, but the fact that they are not and are side-by-side competitors actually makes it more difficult for YSL to squirm out of this one because there is more chance of there being actual, likely or initial-interest confusion.
8. The sophistication of the parties customers -If someone is in the market for $400-$4,000 shoes, one would think you would pay particular attention in knowing what shoe and from whom you were buying, however again, initial interest confusion may be the savior in this confusion battle.

Confusion, as any trade mark lawyer knows in the US and the UK, is notoriously difficult to prove. However, in the US and now thanks to Arnold J in the UK, initial interest confusion is probably the saving grace for Louboutin. Given that the price points of parties' products are so high and the sophistication of the intended consumers is so developed, any confusion present regarding the origin of the shoes on behalf of the consumer is likely to be remedied prior to purchase. What do readers think? Is this an easy fight for Louboutin or does Yves Saint Laurent have it in the (Neiman Marcus) bag?

Need for Congress to address issues with Google Books lawsuit, Pallante says

The AmeriKat has been quiet about the Google Books Settlement, which some may find unusual considering how much she followed and wrote about the litigation (see previous reports here). In fact she even predicted when District Judge Denny Chin (picture, left) was going to issue his damning judgment (just ask @garethdickson). There is little she wishes to say right now about Judge Chin's judgment other than, in her opinion, it was the correct determination given that the revised settlement seemed even worse than the first and again did not adequately address the issue of orphan works, and Google could have saved itself a lot of bother had it been an "opt-in" class than an "opt-out" (albeit probably not as profitable). However, the issue spotlighted how important the issue of digitization of works is in copyright, be it literary or artistic.

Maria Pallante (picture, right), acting Register of Copyrights, feels the same. Last week she told an event hosted by the US Chamber of Commerce that lawmakers need to address the issue of whether the digitization of literary works should be a benefit for the public or become a profit-making endeavour. As reported by the Dow Jones Newswire, Pallante stated that

"The first issue is really, is mass digitization a national goal that Congress feels legislation is warranted for, and if so, for what beneficiaries."

She also stated that

"It isn't that universal libraries aren't important, but there's a difference between universal libraries and universal bookstores."

With orphan works are back where we started, says the AmeriKat, why can't the US government just once and for all pass a bill like the Shawn Bentley Bill? It would allow for digitization of orphan works, but if and when the owner came forward a reasonable royalty would be payable under statute provided the user undertook a reasonable search. Does it need to be more complicated than this? Of course, the problem encountered is that once that copy is digitized the person who digitized it can arguably exclude other digitized copies of the same book being made - thus some of the arguments against Google in the Google Books case. As long as it is clear that the mere digitization of a literary or artistic orphan work does not mean that the digitizer can exclude others from making their own digitized versions of the work, then such problems should not be encountered. But then again, how can this be done but by legislation?

More in Part II.

Fordham IP Conference 2011: part 2

The next segment of the Fordham programme was devoted to IP in Europe, staring with a presentation from Paul Maier (OHIM), who gave an up-to-the-minute account of the progress of trade mark grant and administration operations in his Office, magisterially dismissing Hugh Hansen's attempts to draw him into saying there was any competition between OHIM and trade mark-granting offices at national level.  Paul also vigorously asserted the need for trade mark examiners and Board of Appeal members to act within the framework of recognised legal guidelines when determining issues such as similarity of marks and likelihood of confusion, notwithstanding the opinion of certain fictional felines that those guidelines were hopelessly overintellectualised and were impossible to explain clearly to businessmen and law students.

Also speaking in this session -- and also taking advantage of the absence of European Commission heavyweights on the panel -- was Silke von Lewinski (Max Planck Institute for IP).  Mentioning the complexity of copyright as a subject, she articulated something which many of us had wondered, which was the observation that the Commission was perhaps less well-endowed with seasoned scholars of copyright law than it may have been in earlier times, and that could be argued that a measure of deep knowledge of the working of the subject might be viewed as an obstacle to progress rather than as a means of achieving it.

There being no patent people speaking, the task of reviewing patent law developments in the European Union was split between David Rosenberg (Glaxo SmithKline) and Tom Vinje (Clifford Chance). There was a consensus that the current failure to achieve a unitary patent litigation system was frustrating but that it was better to take longer and get a technically workable solution than jump ahead to a system which didn't work to optimum effect even if had the supreme advantage of being politically acceptable.

Following an unscheduled mid-session break, the speakers and panel covering IP issues in the US took the platform. The Kat, having been on the previous panel and then being serially detained by friends and questioners on his way to and from the coffee table, was delayed getting back to his coveted front-row seat. He did however have the joy of watching a thoroughly effective mini-movie, shown by John Morton (Director, Immigration and Customs Enforcement), on the all-too-rarely-perceived link in the minds of the US public between illegal copying and the loss of jobs among those working in the legitimate copyright-driven sectors.

This session led to a discussion of Google Book, the legitimacy of the project, whether it was good or bad, whether it was even capable of being stopped and whether anyone else was capable of competing against it. The question was also asked whether legislation, not settlement-plus-litigation, was the better way of sorting out conflicting claims of stakeholders. Panellist Paul Michel observed that there was a Congressional bottleneck here, while Professor Arti K. Rai characterised the ailment as Congressional incompetence.

C.A.I.R.'s Nihad Awad: A Portrait In Anti-Semitism and Terror

Finally an article that takes on the individuals of C.A.I.R. (Council on American-Islamic Relations) and specifically, the head of the organization, Nihad Awad. It's refreshing to see the truth spelled out on the internet as in most places, the propaganda about CAIR continues ... the fact of the matter is that CAIR has become the master of the stealth jihad organizations in America and with the evidence mounting against them and their link to Hamas that was revealed in the Holy Land Foundation trials, we STILL have Congressmen cowtowing to these haters.

From the article at Family Security Matters:

In the past few years, Nihad Awad, head of the Council on American Islamic Relations (CAIR) and other top CAIR leaders have been feted to a dizzying array of non-Muslim defenders in the media, Congress, local law enforcement like Los Angeles County Sheriff Lee Baca (who recently asserted that any attack on CAIR is an attack on all Muslims). Never mind that CAIR was created in 1994 as a Hamas front group but no one paid any attention as CAIR successfully portrayed itself as a “civil rights” group, ready to issue diatribes and calls of racism to anyone who questioned CAIR’s ulterior agenda and modus operandi.

Literally scores of Congressmen, mayors, governors and law enforcement commanders cozied up to CAIR as the new oppressed ethnic minority on the block. This past week, nearly the entire Chicago congressional delegation pledged their support to CAIR.

Attributing masters of deception to the “pro-Israel lobby” by Awad is a thinly disguised euphemism for Jews. Awad’s claim that pro-Israel members of Congress traitorously put Israeli interests ahead of US interests is a blatant age old anti-Semitic variation taken from the notorious anti-Semitic Protocols of the Elders of Zion. Awad's allegations are the same only slightly cryptic posturing about Jews used by the KKK and other racist white supremacist organizations.

The reality is that most Congressmen, like the 63%of Americans who support Israel, do so out of ideological sympathy and convergence of interests.

So, here's my question for Nihad Awad. You are head of an organization that is supposed to be all about bridging the gap between Muslims in America and all other Americans. It's right in your organization's title...."AMERICAN." So why are you so obsessed with Israel, Mr. Awad? Why is an American activist like you speaking incessently about the Palestinians? What do the Palestinians have to do with relations for Muslims here in America? Or is it the fact that you are a jihadi, Mr. Awad? Is it closer to the truth that you are like every two bit jihadi in America and across the world whose life is concerned with destroying the Jews and destroying America and you set up your little cult here in America to try and achieve that politically?

Mr. Awad, you are a spineless coward. We in America are sick of your incessant lawsuits. We're sick of your holier than thou speeches. We're sick of your anti-Semitism. And most of all, we're sick and tired of your lack of respect for the United States of America. You, sir, have come to a Judeo-Christian country that will stay that way and if that bothers you, if you can't wrap your arms around the fact that America will NEVER submit to Islam, then fine...pack your bags, sell your million dollar home and kindly get your ass out of our country.

Nihad Awad of CAIR Unplugged:

Portrait of an Anti-Semite


In the past few years, Nihad Awad, head of the Council on American Islamic Relations (CAIR) and other top CAIR leaders have been feted to a dizzying array of non-Muslim defenders in the media, Congress, local law enforcement like Los Angeles County Sheriff Lee Baca (who recently asserted that any attack on CAIR is an attack on all Muslims). Never mind that CAIR was created in 1994 as a Hamas front group but no one paid any attention as CAIR successfully portrayed itself as a “civil rights” group, ready to issue diatribes and calls of racism to anyone who questioned CAIR’s ulterior agenda and modus operandi.

Literally scores of Congressmen, mayors, governors and law enforcement commanders cozied up to CAIR as the new oppressed ethnic minority on the block. This past week, nearly the entire Chicago congressional delegation pledged their support to CAIR.

Even the NYPD pulled from its anti-terrorism curricula, at the behest of CAIR, the acclaimed documentary called the “Third Jihad” as too conspiratorial and racist in it depictions of radical Islamic fanatics bent on carrying out acts of terrorism. CAIR’s real agenda, already in effect in the Obama Administration, is to sanitize and censor from the American political and governmental vernacular any reference to “radical Islam” under the claim that such a term was racist and that by excising the reference to radical Islam this would ultimately persuade Americans that such a term was fabricated by the “enemies of Islam.” Unfortunately for CAIR, the majority of terrorist plots since 9-11 were carried out by radical Muslims.

Still, CAIR, while portraying itself as a peace loving civil rights group, would unceasingly label any critic of CAIR or of radical Islam as a racist for daring to reveal CAIR’s true agenda. And over time, the New York Times, Washington Post, LA Times, Associated Press, MSNBC and CNN would abet the legitimacy of CAIR by describing it repeatedly as a civil rights group (akin to the mainstream media describing and interviewing former KKK leader David Duke as a “peacemaker”). This also scandalously joins in CAIR’s campaign of calling critics of CAIR or radical Islam “Islamaphobes and racists.”

So the modus operandi of CAIR would be to go on the offensive, aided by the mainstream media, after any official, author or organization that had the audacity to suggest an ulterior illicit agenda of being non patriotic or of harboring a covert radical Islamic agenda to infiltrate this country from within, as was revealed unambiguously in the FBI’s sudden 2005 discovery of hundreds of thousands of secret internal Muslim Brotherhood (MB) documents that revealed secret plans for a “civilizational jihad” that would secretly infiltrate American society from within. According to federal prosecutor Nathan Garret, these documents were the most important national security findings in 50 years. But in what has become a corrupt practice of the mainstream media, most newspapers ignored or paid scant attention to these astounding documents, following the dictates of CAIR or of the Islamist ideologies of the reporters themselves which they had grown to develop.

In the meantime, the gentle sounding Nihad Awad would publicly outreach to Jewish and Christian groups in creating an aura of tolerance.

So imagine my shock when I read Awad’s comments he delivered in 2010 before a joint convention of the Muslim American Society (MAS) — another front for the Muslim Brotherhood whose leaders had called for jihad in Palestine to kill all the Jews—and the Islamic Circle of North America (ICNA), a Jam’at group from southeast Asia that had on its website hadiths to kill all Jews. Both MAS and ICNA have dozens of chapters throughout the US.

He cited as inflammatory comments from a congressional member that "there are too many mosques in this country," a former House speaker saying the United States is experiencing an "Islamic cultural-political offensive designed to undermine and destroy our civilization" and a religious leader who called Islam "wicked" and "evil."

In his speech, which the media typically ignored, Awad started with a series of diatribes against Israel. Among his most inflammatory comments concerning Israel, he said, in discussing negotiations between Israel and the US related to settlement issues:

"Did Israel freeze any settlements? They did not. Not only that, to bring Israel to the table negotiations to talk about more fair solution to the conflict, the United States government begged Israel to stop building settlements. Israel did not. The United States bribed Israel. They gave them billions of dollars and promised to give them arms just to freeze the settlement buildings for 90 days. They came, Israeli delegations came here and they put so many conditions.”

The reality of those negotiations was that Israel had no preconditions with the settlements and rejected the US proposal as being unworkable, yet Awad postured it was the Israelis who “held out” for more US “bribe” money.

Awad continued with this, blaming Israel for the erosion of America's image in the rest of the world:

“They exploited the American generosity with all sorts of (UI word) and other things. I will explain. What's the end result? Nothing. Israel's still position is the same. What's the impact of this stiffness towards the President of the United States and the office of the presidency in the United States? It's really the erosion of the image of this country around the world. Nobody even thinks the administration is interested in talking about the peace process now because of Israel's behavior.”

Contrary to Awad’s efforts to blame Israel for the breakdown in the talks, it was the Palestinian Authority's (PA) refusal to negotiate with Israel (and the refusal of the Palestinians to drop the “right of return”— a policy that meant suicide for Israel) that halted negotiations. Something Awad failed to address.

Awad then began addressing his views toward Jewish control in the US:

"So we in the activist community, yourselves, we always call on the President, on the White House to do things. But there's nothing being done. Why? Because the second power lies with the Congress. Members of Congress compete with each other, whether Democrats or Republicans, to please the Israel lobby, to please Israel. Some of members of Congress are willing to put the interests of Israel ahead of the United States' interests.”

“Why? Because we have to understand what drives members of Congress. Is it values, principles or votes and money and pressure? The pro-Israel lobby has mastered deception, pressure tactics and exploiting the system of giving money to candidates and putting pressure and threatening some candidates with either scandals or what have you. And they managed over many years to have this huge influence on not only members of Congress but those who want to be elected officials in the United States.”

Attributing masters of deception to the “pro-Israel lobby” by Awad is a thinly disguised euphemism for Jews. Awad’s claim that pro-Israel members of Congress traitorously put Israeli interests ahead of US interests is a blatant age old anti-Semitic variation taken from the notorious anti-Semitic Protocols of the Elders of Zion. Awad's allegations are the same only slightly cryptic posturing about Jews used by the KKK and other racist white supremacist organizations.

The reality is that most Congressmen, like the 63%of Americans who support Israel, do so out of ideological sympathy and convergence of interests.

Awad continued to wade into the arena of US Middle East foreign policy concerning Palestinians:

“We cannot change the U.S. foreign policy towards Palestine from the top. It has to start at the bottom. We have to educate others. Before we educate others, we have to educate ourselves. Many of us, those who are Palestinians or Muslims or non-Muslims who believe in justice for the Palestinians they think because they know it is a just cause, they think that this is enough to talk about the issue of Palestine. This is wrong.

“We need to educate ourselves about specifics of this country and how this issue is hurting our government. It's hurting our economy. It's hurting our status in the world. It's hurting our claim to be a just society, liberal society, progressive society that goes to the aid of the weak and the oppressed, when we in fact do everything to the opposite when it comes to the Palestinians.”

“We need to understand the [microphone noise over word] of how this [microphone noise over word] has been misfed and influenced and has been given the wrong information about the Palestinian side.”

For decades, supporters and apologists of Palestinian terrorist organizations such as Hamas and the Palestinian Islamic Jihad (PIJ), including organizations such as CAIR, have blamed Israel and American support for Israel for the “plight” and oppression of Palestinians, justifying the terror committed by those Palestinians against Israel. That terror, itself, is always minimized and justified as “resistance.” Thousands of explosive rockets fired by Hamas and other armed terror groups from Gaza into Israeli civilian residential areas is “resistance.” Suicide bombers on buses and in shopping malls are “resistance” attacks. When Israel responds with defensive measures, it is oppression and occupation. This is yet another example of anti-Israel and anti-American propaganda.

Awad continued exhorting the propaganda line lamenting the supposed futility of seeking redress with the US administration in getting help to the “oppressed” Palestinians:

“Now for the past so many years people spent a lot of time calling the White House and calling Congress and they asked the President to say something, to do something about the bombings of Gaza, the building of settlements, the demolition of homes, the uprooting of olive trees, the deportation of Palestinians and the targeted killings of innocents and the destruction of the Palestinian economy, all of these things. People were told they were right, and they spent a lot of their energy. And what's the result? Nothing.”

In fact, what Awad, as a good propagandist left out, were the facts that Israel had ceased the demolitions of terrorist homes and stopped targeted assassinations for many years, that the Palestinian economies in both the West Bank and Gaza were flourishing and that Palestinians were no longer being deported.

Awad then commented about the US military high command recently wading into the US – Israeli issue:

“There has been a shift in the last year, big shift. The military for the first time, and the military has huge credibility in Washington, D.C., when the Department of Defense comes for any budget request, hardly any member of Congress will say no, because this is for national security, for the first time in the history of the U.S./Israeli relationship, the commanders, the military leaders of the United States, have said that Israel is hurting the United States. And this is [applause over few words] that what goes on in Iraq, the intensity of the fighting in many places, they blame Israel for it, that Israel is instigating this anti-American sentiment because of what Israel does. Israel is putting America in jeopardy. And when the military, the U.S. military says so, people should listen. And now I believe there's a growing movement with the Congress and in the public to distinguish between America's interest and Israel's interest.”

Last year, General David Petraeus did publicly state the Israeli – Palestinian conflict had an adverse effect on US peacemaking in the region, but he and no other US military commander blamed Israel or the US/Israeli relationship for this. In fact, General Petraeus and other senior US military leaders have reinforced the solid defense and security relationship the US shares with Israel. Awad's contention is simply another example of his anti-Israel and even anti-American provocation.

Further, how does Awad's position in this square with his contention that a pro-Israeli Jewish cabal controls Congress and the US Administration? If that were so, the military command would follow lock-step with the supposed directives of the puppet masters. The reality is, there are no such puppet masters.

Awad explains to his audience how he believes they can educate themselves about changing the state of affairs with the “Israeli lobby” exercising so much control over the US Government:

“ But you need to do the following: I would recommend to you to read the following books. Number one - The Israel Lobby by a person John Mearsheimer. He and Professor Stephen Walt, they wrote a strategic paper and book. It's called The Israel Lobby. In that they show that Israel is not as pro-Israel, supporters claim that it is a strategic ally of the United States and that's why the United States has to be on the side of Israel all the time no matter what Israel does. This book is an objective research, first class scholars in political science from the University of Chicago and University of Harvard [sic]. They both prove without any shred of doubt that Israel has been a strategic liability on the United States. And it uses facts. This book uses facts. And they have evidence to show that.”

The Israel Lobby book was such a classic case of anti-Semitic conspiracies that it included the Washington Post and NY Times, hardly friendly to Israel, as part of this Jewish cabal. And, if the "lobby" was so powerful, how did these authors get this book published by Jewish book publishers?

Awad's suggested reading list for his audience continued:

"Another magazine we should subscribe to is The Washington Report on Middle East Affairs. Google it. Subscribe to it. It is written and prepared by mainly former U.S. officials in the Muslim world, in the Middle East. And they love their country. They love the interests of the United States. But also they give you a clear and good analysis of the views and issues and Congress and who's doing what. But also, the most beautiful thing about this magazine is they publish a list of how much the Israel lobby on regular basis gives them contribution to members of Congress and those who run for public office in the United States. Those who like math, those who know how figures work in Washington, D.C., they will know that there is science behind the influence of the pro-Israel lobby, on members of Congress.”

WREMA has been described by the Anti-Defamation League (ADL) and other mainstream Jewish civil rights groups as blatantly anti-Semitic. Having read about 150 of their issues over the past 15 years, nearly every article blames Israel and the “Jewish lobby” for all transgressions committed by radical Muslim states. WREMA's conspiracies about the Jewish lobby fits well into the Protocols of the Elders of Zion fabrication.

Awad offers a conspiratorial explanation of why many US officials support Israel:

"Then, work with candidates for public office, not only members of Congress or the Senate, even at the city council level and at the district level. That's where a lot of investment, the pro-Israel lobby is putting. They take these people to tours to Palestine. They show them the settlements, but they don't show them the refugee camps. They take them to Tel Aviv, but they don't show them Gaza and what Israel has done to Gaza. They don't show them the destruction that Israel has done to the Palestinian life and infrastructure and future…. They take them and they brainwash them. And also they promise them with funds and with votes.”

Even Judge Goldstone has recanted his allegations against Israel. Moreover, it's Hamas which launched thousands of rockets and terrorist attacks from Gaza that precipitated Israeli retaliation, a fact Awad ignores. And why should Israel show visiting officials Gaza? Israel left Gaza and ceded control to the Palestinians. Awad claims Israelis “brainwash” these officials, as though such officials have no ability to render their own judgment and decision-making.

Recently, we saw a report about highly developed parts of Gaza and the West Bank showing how economic development and modernization (hotels, restaurants, shops, well stocked food markets, modern malls) are taking root among significant portions of the Palestinian population, yet this is significantly under-reported because it does not fit the "Israel is the oppressive occupier" theme. Why doesn't Awad and CAIR ever tout these advances of the Palestinians?

In his speech, Awad demonstrated his true background as an anti-Semitic, Israel-hating provocateur who uses his position in CAIR to further a radical Islamist agenda, and that is precisely the reason CAIR exists.