ExpertPreneurLaw℠ Blog

How Much Infringement is Infringement?

Jay Hollander — Fri, 26 Oct 2007 16:00:00 -0400

ABC News reports of what some might be tempted to call "babyish" behavior when it comes to applying the controversial take down notice provisions of the Digital Millennium Copyright Act.

In its report, ABC tells of a woman who uploaded a home video of her baby dancing to You Tube and had that video removed after You Tube received a take down notice from Universal Music Publishing Group because the song playing in the background, Prince's "Let's Go Crazy", was copyrighted material.

As required by the DMCA, the alleged infringer was notified and, by filing a counter-notice, objected to the take down on the grounds of claimed fair use under the Copyright Act, resulting in its being restored, although not for several weeks.

According to the report, the claimed infringer, with the help of the Electronic Frontier Foundation, has sued for damages and other relief, claiming abuse of the procedure by Universal, since the DMCA requires those serving the take down notice to certify that they have a right to send the notice and that their work is legitimately being infringed.

YouTube's New Copyright Filter Helps and Potentially Hurts

Jay Hollander — Mon, 22 Oct 2007 20:17:32 -0400

As ExpertPreneurs increasingly use Web 2.0 sites like YouTube to both demonstrate their expertise and promote their products and services, they have to be glad to hear that the service's just announced copyright filter will make their job of monitoring for copyright infringing uses of their materials easier.

Yet, as discussed by Fred von Lohmann of the Electronic Frontier Foundation, the partial vaccine to reduce the need for DMCA take down notices and lower the temperature on claims of secondary copyright liability claims against the site may sometimes be worse than the disease.

As the article explains, YouTube's video filter reportedly doesn't allow for the equivalent of DMCA counter-notices when it thinks it's found a match. Instead, the removed video is sent to the copyright holder for review, leaving it to the holder, in the first instance, to decide whether there may be fair use as opposed to infringement.

Considering the divisive climate already in the air over claims of over-aggressive use of the take down notice procedure, ExpertPreneurs, while benefitting when they're the copyright holder, may find themselves wishing for a better method of protecting their own fair use materials from abrupt disappearance.

Von Lohmann's article offers at least two technological fixes that could take a step in the right direction by YouTube even further down the right road and is worth reading.

Technorati Tags: copyright, DMCA, Take Down Notice, You Tube

The Cease and Desist Letter that Won't Go Away

Jay Hollander — Mon, 15 Oct 2007 21:49:46 -0400

Every ExpertPreneur will learn over time that it is a common first step in the case of copyright or trademark infringement, and even for other claims like defamation, to send a cease and desist letter to the alleged wrongdoer in an effort to bring the offending conduct to a quick end.

Such letters are typically sent by attorneys and contain mild or not so mild threats of what will happen unless the terms of the letter are complied with.

In the past, these letters were mostly kept between the parties and their counsel but, with the advent of the Internet in general and Blogs in particular, the stakes have been raised.

Many a cease and desist letter writer has been surprised to see that their letter has not only been rejected, but posted online in an effort to hold the writer and his or her client to public opprobrium.

Now the stakes have been raised again when a law firm that sent a cease and desist letter took the position that the cease and desist letter itself was copyrighted and that publication of it on the Net could subject the recipient to law suit.

To be fair, this law firm has been the subject of so much negative publicity on this issue, I hesitate to name it since it's both easy to find and because I don't like to pile on unnecessarily.

To make a long story, that is still being played out, short, the threatened party obtained the services of consumer watch dog Public Citizen , whose litigation group has dared the law firm to assert its copyright and sue. Time will tell what happens but there is no doubt that the threatening law firm and its client have gotten less than the kind of publicity they would like.

But, for ExpertPreneurs, the lesson is simple. While cease and desist letters have their place and are important weapons for establishing notice to an infringer of their wrongful conduct, it is best to take care before unleashing your lawyers, to take into account the public relations aspects of your actions, and to make sure they're worded in a way that will get you to where you want to go and won't backfire.

Technorati Tags: cease and desist, publicity, defamation, copyright, litigation

Are Bloggers Journalists?

Jay Hollander — Mon, 08 Oct 2007 09:36:40 -0400

In her "Writes like she Talks" Blog, Jill Miller Zimon writes about proposed federal legislation that provides "shield" protections to journalists and whether bloggers would or would not be included.

These "shield" protections deal with privileges afforded to journalists protecting them from having to divulge their resources, among other things.

As the post points out, however, the crucial question is in how to define who a journalist is, for purposes of the law.

For example, would ExpertPreneur bloggers be included if journalism was not their main line of work?

Since an underlying concern of defining who is included as a journalist deals with comfort that they are abiding by professional ethics and codes of conduct otherwise followed by more mainstream journalists, the answer, as yet, is not clear.

The proposed bill is not the first stab at this subject, but it is the latest, dealing with federal cases.

Prior versions sought to impose "financial gain" and "source of livelihood" requirements in order to be considered a journalist but that language is not yet in the current proposal.

The issue of journalist privilege for bloggers is just one of many shakeups in legal theory made necessary by the increasing prevalence and influence of blogs in today's World.

As an example of what rights and responsibilities ExpertPreneur bloggers may find themselves affected by, this legislation bears watching.

Making Litigation Faster and Cheaper

Jay Hollander — Wed, 03 Oct 2007 18:03:26 -0400

Recently, I posted on the question of where an ExpertPreneur could be sued based on their online activities.

One interesting side issue on this general topic is how to handle disputes amongst expertpreneurs or between they and their customers to avoid the hassles and limitations inherent in having to either sue out of state ( or around the World ) or face lawsuits there as well.

This month’s ABA Journal has an interesting article on the growth of a procedure that’s increasingly being used to bring justice to litigants in their own homes and laptops.

The concept is Online Dispute Resolution or ODR.

ODR differs from private arbitrations, which, by and large, are alternatives to court litigation.

ODR, instead refers to taking advantage of technology to try to reduce costs and speed up resolution of court disputes by using some or all of various web and digital applications to essentially litigate or negotiate long distance.

While you can read more about this field in the article linked above, the important thing for you to think about as an expertpreneur is the degree to which you might wish to build these procedures into your commercial agreements so that your joint venturers and, perhaps, even your customers, would agree to use these time saving and sometimes money saving techniques in the event of any disagreements that lead to litigation.

Technorati Tags: ODR, Online Dispute Resolution, litigation, arbitration

Is Violating Copyright Good for the Economy?

Jay Hollander — Sun, 30 Sep 2007 22:48:33 -0400

On the seemingly inevitable march to greater and greater intellectual property protection, the proverbial pebble in the shoe comes in the form of a recent report from the Computer & Communications Industry Association, which concludes that one sixth of the gross domestic product in our increasingly IP oriented economy is due to activities deemed to be"fair use" under the Copyright laws.

Just as a brief refresher, the concept of "fair use" in copyright is not an entitlement or a right. It is, in short, a defense against claims for copyright infringement where the allegedly unauthorized use is not denied; in fact it is admitted but defended on the notion that the limited infringement is "fair" and, thus, not actionable.

This fair use defense essentially revolves around demonstrations of relatively de minimus infringement, done for a salutary purpose such as education or criticism, in a way which is transformative of the underlying copyrighted work and which, generally, doesn't harm the ability of the copyright holder to economically exploit the copyrighted work.

While the report may make you shake your head in the way it arrives at its conclusion that fair use contributed 4.5 trillion dollars to the economy last year, one can't help but wonder whether, if such a conclusion really gained concensus, the law would be changed to encourage more fair use or, rather to protect existing copyright holders by discouraging it.

Food for thought on Copyright on the Internet

Jay Hollander — Sat, 15 Sep 2007 22:00:00 -0400

All ExpertPreneurs must struggle with the effort, time and money needed to properly police their intellectual property rights on the Web.

But a recent piece by Andrew Glass of Politico.com should give pause to consider a real World perspective on the problem.

While the article is not written with ExpertPreneurs specifically in mind, the lesson in the article is quite instructive for them.

Even as the boundaries of copyright protection, and the claims for them, increase, seemingly exponentially, every day, there is a simple concept that must be applied to intellectual property rights as much as to everything else in life.

Since most ExpertPreneurs have limited time and money, they must determine the commercial value of their individual pieces of intellectual property to determine how much of that time and money they wish to devote to the protection of any particular piece.

This is where having a sound intellectual property protection strategy comes into play. Such a strategy is an indispensable tool for every ExpertPreneur.

An intellectual property strategy begins with a plan for the type of intellectual property you intend on creating and in what formats it will be distributed, e.g. a book, audio, DVD, etc.

Then, the commercial value of the piece, now or in the future, must be assessed, so that the greatest amount of available resources can be devoted to those works that are considered to be the most valuable.

It is important to keep in mind, however, that intellectual property protection is not an all or nothing game. Choosing to prioritize the the amount of resources used to protect certain works is not carte blanche to ignore the rest.

Instead, it should be used as a method to refine your intellectual property protection strategy to give some protection to some of your works, while giving more to the most important.

Fortunately, today's intellectual property legal systems afford a great deal of flexibility in how to approach these matters and all ExpertPreneurs would be wise to take this into account in formulating their intellectual property strategy.

Without this type of strategy, no ExpertPreneur can hope to have a systematic method of protecting their valuable works and risks having insufficient legal protections in place to go after infringement when it matters most.

Where can you be sued for your Internet Activities - Part 2

Jay Hollander — Thu, 13 Sep 2007 12:28:00 -0400

In yesterday’s post, I began discussing how and when an ExpertPreneur can be sued in a courts in a state where they don’t live or have an office.

Specifically, I started to write about the concept of “long arm jurisdiction”, allowing courts sitting in other states to assert authority over out of state businesses when they had what were determined to be sufficient contacts with the target state and where the claims arose out of those contacts.

So, in the age of the Internet, what exactly is enough?

Interestingly, cases vary from state to state because the specific wording of a particular state’s statute on the subject and the interpretation of that state’s courts, varies and is often shaded on a case by case basis.

A recent case, interpreting New York’s long arm jurisdiction statute, serves as an example of what is NOT enough – at least in New York.

The case, Best Van Lines, Inc. V. Walker, was a defamation case in which a New York moving company sought to sue an out of state web site owner that posted consumer comments about moving companies for allowing and making allegedly defamatory statements about the company on its website.

The nature of the case is important here because New York’s statute allows long arm jurisdiction when, among other things, the out of state defendant “transacts business” within the state.

Despite claims that the Defendant took specific acts to post and highlight the alleged defamatory statements about the Plaintiff, essentially claiming that the New York Company was carrying on its business without legal compliance and required insured.

Even if defamatory, the New York court held that this was not enough to “transact business” in New York.

And this was true even if people could exchange comments and other information with the website from New York.

What would have been enough?

Other cases point to actual commerce being done through the website, such as the taking and processing of actual orders, so long as the claim is somehow connected to the overall transaction.

For ExpertPreneurs, there are two important lessons.

First, if and when you are sued by an out of state party, one of your first considerations should be to determine that, under the prevailing laws of that state, you are properly under that court’s power.

Second, as a planning tool, keep in mind that the more actual business done from your site, the greater the chances that jurisdiction over you may be found.

Where can you be sued for your Internet activities? - Part 1

Jay Hollander — Wed, 12 Sep 2007 09:30:21 -0400

As a member of Linked In, I learned about a feature the program uses to educate people about one’s capabilities. Members can ask a question and have other members post answers.

When a question came upon within my subject area, I thought I would submit an answer to see if I could be of help. What I didn’t know is that another feature of the program is that , when all the responses are in, one can be designated as the “Best Answer”.

Not knowing about this in advance, I was pleasantly surprised to have been picked and it inspired me to write this post, thinking that there must be a number of ExpertPreneurs who have faced or will face this problem.

Leaving aside specific statutes that deal with specific situations, state courts have always grappled with the question of when and to what extent they can assert their power or authority over people or companies that don’t reside or have offices in their states.

This power is known as personal jurisdiction. Over the years, prior to the Internet, the concept of “long arm jurisdiction” developed.

This concept allowed a state's courts to assert authority over such out of state individuals or businesses when they had both acted to deliberately benefit from the target state, such as by deliberately soliciting or doing business there, and when the claim against them from someone in the target state arose out of their activities there.

The Internet threw a wrinkle into this theory since, by definition, any ExpertPreneur or other business who puts up a web page or blog reaches every state.

So, how do courts determine purposeful activity when web pages passively reaches or makes offers everywhere at the same time?

Answer in tomorrow’s post. Stay tuned.

More on Domain Name Tasting

Jay Hollander — Mon, 10 Sep 2007 08:06:53 -0400

ICANN, the Internet Corporation for Assigned Names and Numbers, recently again called for feedback on the practice known as domain name tasting, previously reported in this Blog.

The practice refers to registrants taking advantage of current registration regulations that allow a five day grace period in which to cancel and avoid paying for registrations, by scooping up domain names, evaluating their ad generating revenue, and throwing underperforming ones back before having to pay for them.

While use of generic domain names increases security threats to the system and slows it down for everyone, ExpertPreneurs should take note of the potential for trademark infringement by those who register lapsed or purloined or typosquatting names, only to run off before their actions may be noticed or acted upon.

For smaller ExpertPreneurs who don't have the resources to monitor or pursue domain tasters that may be infringing on their marks and diverting traffic from their most popular pages, helping raise the pressure on ICANN to curtail the practice can only help.