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According to Article I, Section 8 of the United States Constitution, Congress has the power to protect the exclusive rights of “authors and inventors” in order to support scientific and artistic innovation. As such, Congress enacted the Copyright Act under Title 17 of the United States Code outlining the legal framework of copyrights in order to provide legal protection for authors and inventors.

Section 101 of the Copyright Act defines the various terms associated with copyright law. For example, for purposes of the Copyright Act, a “work” constitutes a tangible product when it is initially “fixed in a copy.” Section 102 lists the types of works that the Copyright Act applies to, which include, among others, written, musical, and photographic works. A copyright owner has certain exclusive rights in relation to his or her creation. Under Section 106 of the Copyright Act, copyright owners have the right to reproduce, distribute, perform, and display their works. This implies that non-owners do not have these same rights towards copyrighted material, which generates issues of copyright infringement and unauthorized use of copyrighted material.

Copyright infringement is the violation of a copyright owner’s exclusive rights under the Copyright Act. Sections 501-513 of the Copyright Act outline penalties for copyright infringement, which may include payment for damages, a court order to stop the unauthorized use of copyrighted material (i.e., injunction), and jail time.

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With a growing concern for national security and expanding information sharing networks, the government is making efforts to establish legislation protecting the American cyber community.

Most recently, in February 2012 Congress considered the Cybersecurity Act (“Act”) as a means to provide for information sharing across different industries to establish cybersecurity. The Act also places the burden of monitoring sites and infrastructures on the owners of the sites, rather than any managers hired to maintain the sites.

Congress ultimately has not passed the Act because there is such a divide among politicians regarding the most effective means to establish protection for the American cyber community. See http://articles.cnn.com/2012-08-02/politics/politics_cybersecurity-act_1_cybersecurity-bill-homeland-security-cyberattacks for more information.

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The lawsuit between Apple, Inc. and Samsung Electronics Company, Ltd. over issues of patent infringement finally came to a close with a judgment in Apple’s favor.

The judgment found Samsung guilty of infringing six Apple patents, including the quick search box, structure detection feature, slide-to-unlock, and auto-correct feature. The jury also found that Samsung willfully infringed on several Apple software and hardware patents. This will allow presiding Judge Lucy H. Koh to triple the award of damages if she finds it appropriate. Apple received an award of over $1 billion. Although this falls short of Apple’s $2.5 billion request, it still qualifies as one of the largest awards in an intellectual property case.

Samsung is anticipated to file an appeal. Samsung representatives explain that the verdict threatens to limit consumer options in the market and therefore the verdict should be overturned. Samsung intends to file post-verdict motions to overturn the ruling and seek relief from the judgment.

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Avenues of social media such as YouTube and Facebook allow users to contribute to individual pages with self-generated content that may infringe upon intellectual property rights. Accordingly, as social media continues to thrive, so do potential trademark infringement disputes. In attempting to resolve these disputes, it is helpful to consider strategies that will lead to desirable outcomes for the involved parties.

First, it is important to establish contact with the other side. Initiate communication through the medium that houses the violation to get the other side’s attention. For example, if the violation involves an unauthorized Facebook page, send a message on Facebook regarding the page in question.

As you begin to establish contact, remember that the most aggressive approach is not always the most effective. The offending party will likely ignore a stern cease and desist letter, or alternatively, become defensive, making future interactions more difficult and strained. A cordial and even-toned letter is more likely to generate an effective response and a possible resolution. For example, it is ineffective to immediately send a letter demanding that the opposing party take down the infringing material under the Digital Millennium Copyright Act (“DMCA”). The DMCA criminalizes the improper use of trademark material and allows for parties to issue a “takedown notice” asking the violating party to remove the infringing material from the social medium. Nonetheless, communicating with the other party before taking strong action, allows for the opportunity to gather background information while sustaining the right to proceed with DMCA procedures later. In addition, gathering such information will prevent the possibility of liability for making false claims of infringement under 17 U.S.C. § 512(f).

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The United States District Court in the Northern District of California has issued a preliminary injunction in favor of Apple, Inc. that prevents Samsung Electronics Company, Ltd. from manufacturing or distributing its Galaxy Nexus smartphone in the United States.

A preliminary injunction is a court order that temporarily prevents or requires a certain action until the court has time to reach a judgment in the case. Under the Patent Act, courts “may grant injunctions” in order to maintain equity between parties and protect the rights secured by a patent. Courts may grant a preliminary injunction where the requesting party shows that it is likely to succeed in the case, the party is likely to suffer “immediate and irreparable harm” without a preliminary injunction, a balance of equities weighs in favor of the requesting party, and a preliminary injunction is in the public’s interest.

Apple filed a lawsuit against Samsung for approximately $2.5 billion, alleging that Samsung’s Galaxy Nexus smartphone violates four Apple, Inc. patents, causing injury to iPhone sales. This is one of the largest patent suits of this kind.

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The Digital Millenium Copyright Act (DMCA) contains a “safe harbor” provision that protects internet service providers that feature user-directed content from liability for copyright infringement. In UMG Recordings, Inc. v. Shelter Capital Partners, L.L.C., the Ninth Circuit Court of Appeals reviewed the requirements for “safe harbor” protection, upholding the broad interpretation that “safe harbor” has received from numerous courts in prior decisions.

Veoh is an online service, launched in 2005, that allows users to upload and share videos, view other users’ videos, and view authorized content from copyright holders. During the upload process, Veoh’s software applies various automated processes to make video files available to users via streaming in a common, accessible format. Veoh’s revenue comes from advertising, but access to all of its content remains free of charge. Users who wish to upload content must agree to Veoh’s terms of use, which prohibit uploading copyrighted content without permission. Veoh also uses filtering software to prevent uploading of infringing content.

UMG Recordings is one of the world’s largest music publishers. Its activities include music production, music distribution, and music video production. It owns an extensive catalog of copyrights. Veoh concedes that users were able to access and download content copyrighted by UMG, despite its efforts to prevent copyright infringement. Veoh has removed material alleged to be infringing on UMG copyrights, based on notices from the Recording Industry Association of America (RIAA).

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The list of generic top-level domains (gTLD’s), such as “.com” or “.edu,” has changed very little over the history of the internet, until recently. Between January and May of 2012, the Internet Corporation for Assigned Names and Numbers (ICANN) accepted applications for new gTLD’s. It reportedly received more than two thousand applications, many of which may go live by the start of 2013, after review by ICANN. Trademark owners should be aware of their rights, in the event that someone else attempts to register an infringing gTLD.

ICANN recognizes several different types of top-level domains, and the most well-known, and widely available, TLD’s are the generic TLD’s. Seven original gTLD’s became available in the 1980’s, .com, .edu, .gov, .int, .mil, .net, and .org. Three of these, .com, .net, and .org, have been available to registrants with no restrictions. ICANN added new gTLD’s over the years, such as .biz, .info, and the recently-added .xxx, making a current total of twenty-two. In June 2011, ICANN took an unprecedented step of allowing applications for new gTLD’s beginning in 2012. The application process requires filing a complicated packet of materials and a non-refundable fee of $185,000 payable to ICANN.

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The internet and social media have allowed people, businesses, and brands to communicate and interact more than ever before. As much benefit as that brings, it also brings significant risks to the reputation of both people and brands. The internet allows people to post using a pseudonym, or to appropriate someone else’s name. The appropriated name could be that of a prominent individual or (“public figure”), but online “persona hijacking” can affect anyone.

Generally, the motive of most persona hijacking is profit or fraud. Someone may appropriate the name or likeness of a famous person to profit from public goodwill towards that person. It could include setting up social media accounts, e-mail addresses, or websites using the person’s name, or some other effort to spoof the person’s identity. For a person who is not famous, persona hijacking may serve a function much like identity theft, using that person’s credentials to obtain, for example, fraudulent credit.

In some cases, the purpose of persona hijacking is to submit a person’s name to criticism or parody. The line between legitimate commentary and unlawful harassment, however, can be very fine, and parody can easily become a “false light” portrayal of a person. Use of a person’s name or likeness for the purpose of criticism or parody may, in certain limited circumstances, be protected by the First Amendment. In other cases, it may constitute unlawful infringement of a person’s trademark rights or right of publicity.

A person who uses their own name in commerce, usually someone prominent in business or entertainment, may obtain trademark protection. This generally prohibits others from using the name commercially. For most people, the right of publicity prohibits use of their name or likeness without their consent, especially for commercial purposes. The Fair Use doctrine, however, may allow use of a name or likeness for legitimate criticism or parody, where it is clear that the work is not originating from the person being appropriated.

You can take several steps to protect yourself from online persona hijacking:

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We have submitted a petition to ask Congress to review and modify section 230 of the Communications Decency Act in order to limit the protection granted to interactive online services, such as news websites, blogs, forums, and listservs. Also, Congress should set new policies and procedures for interactive online services to confirm the true identity of their users and members. This confirmation of a user’s or member’s true identity promotes protection against bogus statements made against innocent individuals and prevents the victimization of businesses.

This petition should be signed because consumers and businesses are facing various problems such as defamation, harassment, or retaliation by anonymous users on interactive online services without recourse and protection. Unfortunately, section 230 of the Communications Decency Act grants broad immunity to interactive online services. By doing so, such immunity tilts the scale of justice and creates an unreasonable result for innocent individuals who are being targeted by anonymous users and have no remedy for protection.

Please visit this link, review and sign it if you are willing to support our request for change in legislation.

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In general, small businesses are often a labor of love for their owners. They require a massive commitment of time and energy to build, nurture, and grow, but along the way, small businesses can get caught in a wide variety of legal quagmires. Understanding these risks, and knowing how to prepare for and mitigate them, is key to avoiding time- and resource-consuming legal disputes that can hinder or even ruin a business. Legal risks of small businesses could fit into seven very broad categories:

1. Maintaining a Safe and Secure Premises: Brick and mortar businesses may encounter claims from customers or others injured by an unsafe condition on business property, such as a broken step or a spilled substance on the ground. Regular maintenance of the premises, along with liability insurance, can mitigate this risk.

2. Consumer Complaints: Businesses that do not promptly respond to customer complaints about products or services may encounter legal claims. Customers should receive prompt responses to reasonable complaints or concerns.  All advertising and marketing materials must accurately portray the company’s products or services in order to avoid deceptive trade practice claims.  Robust quality control may help a business avoid putting faulty or defective products into the marketplace. This can help companies avoid product liability claims.

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