Articles Posted in Intellectual Property

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Imagine that you were sued for copyright infringement, yet above all odds, you managed to prevail on the merits. Your case went up to the Supreme Court, it found for you, and you have emerged successful. Yet, you are stuck footing the bill to defend yourself against a claim that was in your favor all along.  How will you get out if it? Isn’t there a section of the Copyright Act, specifically written to encourage meritorious claims to better define copyright laws? Shouldn’t the prevailing party be entitled to its attorney’s fees? This scenario has played out in front of the Supreme Court, and decided on this past summer in Kirtsaeng II.

Can’t Kirtsaeng collect his legal fees?

In its ruling, the high court came back with a resounding “maybe.”  After Kirtsaeng’s first case relieved him from liability due to his resale of books falling under the First-Sale Doctrine, he had attempted to recoup his fees.  However, the appellate court declared that he could not get the fees back, as in that circuit, the fees could not be reimbursed so long as the other side had a reasonable claim. Other circuits also had general presumptions against awarding fees to the defending party if they had prevailed, thus there was some disagreement over what constitutes a prevailing party. Yet, when the court ruled in favor of Kirtsaeng here, the result was less a resounding “yes” and more of a clarification for the lower court. The high court unanimously determined the Fogerty standards were too wide (fees are awarded case-by-case and the courts must keep in mind the mounting of a meritorious case). In determining the meritorious aspect, Fogerty listed factors like frivolousness, motivation, and reasonableness. Yet, in the Second Circuit’s rulings, it placed too much focus on the reasonableness of the claims, resulting in the clarification.   In general, the court has discretion to award attorney’s fees to the prevailing party under 17 U.S.C. 505.

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Given the internet is a multi-faceted environment, how can someone monitor his or her copyrighted content on the web? The internet has been called the “wild west” and yields limited regulations requiring lots of research, practice, and guidance to properly navigate its pathways.  While self-tracking mechanisms can work in limited circumstances, however they may be imperfect solutions in the long run.  Ultimately, Google may have figured out the answer, but the implementation tends to go above and beyond what is asked of it through the Digital Millennium Copyright Act, and falls short of what society could hope for monitoring copyright infringements.  So, what is a content identification system? How does it work? What is it applied to and can it help protect your copyrights?

What is YouTube’s Content ID?

It appears that Google is the entity that has figured out how to solve the issue of identifying and flagging copyrighted content for the original owners. Yet, it comes with a caveat. What YouTube does is with clips of copyrighted content.  So, in reality it determines certain patterns and aspects. This makes it incredibly useful in flagging songs, music, and film footage, which are items that YouTube deals with on a regular basis.  This means that in any flagging online, a company can automatically issue some action, take downs, placing advertising on it, or otherwise dealing with an infringing party.  Yet, this requires that any entity taking part in this program has submitted the work to Google for YouTube’s Content ID system. Noticeably, the Content ID system does not consider any fair use defenses that carve out exceptions to copyright infringement.  Instead, it just looks to see if there is a match before taking one of the pre-determined actions. This limits the utility of the system, dependent on the Lenz ruling, and any future developments regarding fair use principles and the duties of online service providers under the Digital Millennium Copyright Act.

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Now, that we know that Content ID exists, shouldn’t all online companies be held to that standard? As it currently stands, the law posits “not quite.”  So, what standards are they held to? Surely, online content providers must take some reasonable measure to protect the copyrights of others.  If not, certainly, a company must have some knowledge of copyright laws? At least enough to know that uploading the original works of third parties without consent constitutes copyright infringement.  Or, at least the company must have knowledgeable employees who appreciate the Digital Millennium Copyright Act’s guidelines?

What is required under the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act (DMCA) comes with a safe harbor provision that protects online service providers from liability.  To avoid liability for any copyright infringement, online service providers are required to take down content as soon as they have knowledge of the alleged infringing activity. This last part is important, as it effectively gives purpose to the safe harbor. If an entity can be charged for the violation of its users without any actual knowledge, then it has the potential to stymie the general purpose of the internet.  However, what is not clear is how a company should gain knowledge of the allegedly infringing materials, and that was the heart of the dispute between Capitol Records, LLC and Vimeo.

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We have discussed protecting someone’s image using the right of publicity, right to privacy, and the privacy laws that protect biometrics. Yet, images are first and foremost images.  So, certain rights exist for the protection of images. Firstly, it includes copyright laws. An ongoing trend is how individuals, famous and otherwise, use the Digital Millennium Copyright Act (DMCA) to demand takedowns and manage photographs. While this is still moderately controversial, it begs several questions. For example, what is required to use these claims to protect images? Why might someone use the DMCA takedown demand instead of one of the other methods of protecting images? How is this controversial if it allows individuals to protect privacy?

How would the DMCA work?

The DMCA allows individuals to issue “takedowns” to internet hosting services and to websites to remove copyrighted materials. The first hurdle is to yield actual copyright over the photograph. To be eligible, the work must be a type of copyrightable work (e.g., photograph, sound, written word), written by a human author and either created or arranged with a minimum amount of originality and creativity. In most cases, this might include, a “selfie” or a similar picture that has been taken by you. It’s worth noting that this is something that only applies within the United States, and the other elements to register a copyright, like creativity, are relatively easy to meet.

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For any business entrepreneur, intellectual property is key.  How will a business build value if not through protecting its valuable assets? Thus, intellectual property is something that needs to be protected. This is the purpose of trademark law, which allows to register and protect trademarks.  So, what types of marks can be registered? What is the registration process? Why register at all? Is it really needed to protect your marks?

What’s eligible for registration?

In applying for a trademark registration, the material generally consists of a mark, some sort of drawing or another non-conventional mark. For example, the McDonald’s “Golden Arches,” the Apple logo, or even a single color, under certain circumstances can be registered.  While there used to be restrictions on the manner of the mark in regards to immoral, deceptive, or scandalous marks, it has recently been placed into question on constitutional grounds.  As such, offensive names are more likely to be approved now, although, there has not been a final decision in some cases.

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In the future, drones may be a commonplace since businesses are using drones for commercial purposes, and individuals are flying drones as a hobby. You may wonder about your privacy with all those eyes in the sky. Drones that can go about, without giving you a way to stop them. As shooting a drone out of the sky is generally frowned upon, what could you do to protect your privacy and your legal rights? With all that information on drones, what you can do, where you can fly, what about the laws that protect you from drones? What protects your privacy? What protects your business?

How to protect your privacy from drones?

In protecting privacy, there are a few aspects that have been mentioned earlier.  Namely the FAA requirements to register and display a drone’s registration. Following that, it is encouraged to report any improper use of a drone. Given that a drone’s registration number must be on the drone, it does mean if a drone is infringing on your privacy, then you can report it to local law enforcement agencies.

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Where are the limits of copyright?  Copyright in general is limited to those new and original works, fixed in a tangible medium.  In regards to computer programs, they are also considered literary works for the purposes of copyright law, and so, it could be argued that the language of a system could be granted copyright protections.  However, what happens when it is not simply a computer program, but the language the programs use that is subject to copyright? Can a language be subject to copyright protection?  Does it matter what the language is used for?

Oracle v. Google: API as a Copyrightable Language

Our first example is the ongoing Oracle v. Google case.  As it stands currently, Google has lost, pending the results of the remanded decision later this month regarding any fair use defenses.  This has resulted in the copyright being granted to Oracle for Java’s API (i.e., Application Programming Interface), which is a computer code that allows programs to talk to one another, like the share button on this blog post’s page, allowing a person to link this post to Twitter or Facebook.  Those codes were provided by Twitter/Facebook, and allow the browser to “talk” to another application.

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Trademarks and branding are an important part of any business organization.  They build the organization’s reputation in providing a product or service.  In late January, the Fine Brothers, had made an attempt to begin a new business venture in licensing their trademarks and intellectual property to create a larger media congregation called “React World.”  The brothers had built a business on producing videos showing the reactions of different subsets of the population, from children to the elderly.  In doing so, they would monetize the videos through sponsorship and advertisement.  To ensure their ability to monetize and license their intellectual property, they applied for trademarks for the words “React,” “Kids React,” and other derivatives.  This prompted a backlash by individuals, fearing that the actions by the Fine Brothers would be used to curtail their activities on the web.  The sheer magnitude from this backlash led to the Fine Brothers withdrawing their application from the process and cancelling their plans.

Notwithstanding the public backlash, the Fine Brothers would likely have their application approved and pushed beyond the public contest phase if they had only waited a little while longer.  The public contest phase is exactly where the Fine Brothers managed to fail.  If they had not brought attention to their trademarking efforts, it would have likely passed through the process.

In general, in the trademark application process, after the trademark examiner tentatively approves a mark, there is a 30-day period to file an opposition. This is open to all individuals that may be harmed by the mark, not just those with similar marks.  As such, the public was able to protest the granting of the “React” trademark.  When seeking a trademark application, the sort of public outcry that occurred in response to the “React” trademark should be avoided.  The 30-day period, while it would be available to the public, did not need to be publicized as with the Fine Brothers.  In filing a trademark that may garner some public opposition, there is no need to draw further attention to it.  If the brothers had not withdrawn their application, this type of opposition would have been heard by the Trademark Trial and Appeal Board, and overcome by the Fine Brothers.

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Trademarks are a vital part of how your business is branded and how you appeal to clients and consumers.  What about those trademarks that push the boundaries on what is socially acceptable?  Generally, the government may not protect those marks that are beyond what is socially acceptable.  What is socially acceptable now?  Can the same standards apply and restrict what you can trademark?  To what extent can you push the boundaries in your branding?

How did the court rule in In Re Tam?

In recent times, the United States Patent and Trademark Office (USPTO) has ceded the restrictions on demeaning and offensive marks.  This is in response to the recent “Slants” case, where Simon Tam, a musician, filed a trademark application for his band’s name “The Slants.”  His trademark application was then denied under Section 2(a) of the Lanham Act.  This section prohibits the use of immoral, deceptive, or scandalous marks that may disparage living or dead people.  This section is infamous for the reason why the Washington Redskins trademark was cancelled.  However, Mr. Tam contested the refusal of his trademark, claiming that he wanted to take back the word “Slants” for his band, resting his argument on the First Amendment.  In doing so, through a long legal battle, the Federal Circuit eventually found for Tam, in an en banc hearing, stating that Section 2(a) violated his First Amendment right.  Furthermore, while the ruling had only applied to the disparaging part of the section, the USPTO ceded that the “scandalous and immoral” aspects of the legislation were likely to be unenforceable for similar reasons.

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In general, trademarks are marks that are associated with a particular brand. Examples of trademarks include the golden arches for McDonald’s and the mermaid for Starbucks. Trademarks are important to businesses because they distinguish the business from its competitors. Businesses use these marks in marketing to gain consumer attention. Once a consumer is familiar with a brand, has developed a positive opinion on it, then he or she is more likely to buy products from the brand.

However, when a particular business becomes successful, competitors will often try to emulate the business’s model and possibly engage in deceptive practices. A common practice is trademark infringement. Trademark infringement is when a business takes another business’s trademark and creates a similar mark. What the infringing business is banking on is consumer confusion. It is hoping that consumers will be under the impression that the infringing business is associated, or possibly, even be the business that actually holds the mark. The infringing business is then taking away sales from the authorized trademark holder.

Dangers of Online Trademark Infringement

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