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August 06, 2013

Privacy and Notice Considerations for Mobile Tracking in Applications

The Digital Advertising Alliance recently released guidance to provide further direction to companies operating mobile applications. The guidance applies to companies that engage in behavioral targeting, with use of cross app tracking to serve advertisements, app base tracking of geo location data, collection of address book information from social networking accounts, and behavioral tracking on mobile websites. Fundamentally speaking, the guidance remains the same; give notice and choice on mobile devices. 

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Unauthorized Use of the Name or Likeness of an Individual

There are various causes of action under what is commonly referred to as invasion of privacy. The first, false light invasion of privacy, occurs when information is published about a person that is false. Although similar to defamation, it is different because particular statement need not be defamatory but instead embellished, distort, or otherwise alter information in such a way that it amounts to a false light invasion of privacy.

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July 29, 2013

Can I trademark my slogan?

Whether or not an entity can trademark a slogan really depends on how that slogan is to be used. The general principles of trademark law apply in analyzing whether or not the intended or actual use of the slogan constitutes trademark use under the law. At the outset, it is important to understand that a copyright cannot protect a slogan. Therefore, a trademark may be able to do so IF a slogan is used as a source identifier in connection to a particular set of goods or services. Put another way, the slogan must be distinctive, used in interstate commerce, and used as a brand identifier.

To determine whether or not the slogan is distinctive, a trademark attorney can analyze the slogan to ensure that it is not generic or merely descriptive when used in connection with the underlying goods or services. Instead, the slogan must be distinctive, which means that it has either acquired distinctiveness, is arbitrary, or fanciful. Understanding how the slogan will be used will help determine whether or not the slogan is distinctive enough to qualify as a trademark.

The slogan must also be used in interstate commerce as a trademark. Therefore, merely putting it on the front of a t-shirt or some other merely ornamental use does not qualify as a trademark use. It must serve as a source identifier. For example, if used in connection with services, it should be used on a website or other advertising material that confirms that it is a mark. If used in connection with certain goods, such as t-shirts, it must be used on a hang tag, label, or otherwise in such a way that it is clear that it is more than a slogan or phrase without any underlying identification of source for such goods. One looking to protect a slogan would be well served to speak with a trademark attorney who can further advise the proper way to make trademark use of a slogan.

Ultimately, the trademark availability assessment or clearance should be performed on a slogan prior to beginning use or pursuing registration. This will allow a trademark attorney to determine whether or not use of the slogan is likely to subject the entity to claims of trademark infringement, whether or not the slogan is in fact distinctive enough to qualify as a trademark, and provide recommendations as to the likelihood of it being a protectable mark and/or successful trademark registration with the (USPTO) United States Patent and Trademark Office.

July 24, 2013

Motion To Quash Subpoena For IP Address

When an anonymous poster takes action online, an IP address must be used and is associated with that individual poster. In the event that the anonymous poster is engaged in online defamation or copyright infringement, the harmed party must first identify the anonymous poster in order to proceed with a lawsuit. The harmed party, or Plaintiff, will file a lawsuit against a John Doe. We will then seek expedited discovery so as to subpoena information associated with that IP address from the internet service provider, such as a cable company. The internet service provider will then provide notice to the owner of that IP address. That notice will confirm that it will be disclosing the information associated with the Ip address, such as name and address, if a motion to quash is not filed with and granted by the court handling the underlying lawsuit filed by the plaintiff.

Malibu Media, who has been identified in various online sources as a copyright troll, is one such party that regularly deals with anonymous actors online. In particular, Malibu Media is the owner of various adult related copyright works. When such works are allegedly infringed, Malibu Media files a lawsuit against a John Doe, seeks expedited discovery, subpoenas the internet service provider, and then hopefully proceeds with action against an identified person. Some individuals choose to file a motion that quashes a subpoena. One such recent case in the United States District Court for the District of Colorado, as decided on July 14, 2013, the court entertained three reasons why the motion to quash should be granted.

First, it fails to allow a reasonable time to comply. Second, it requires excessive travel by a non-party. Third, it requires disclosure of privileged or other protected matter, if no exception or waiver applies. Fourth, subjects a person to undue burden. Those are the only grounds listed under Federal Rule of Civil Procedure 45 as it relates to reasons to quash a subpoena. The John  Doe defendant in the above identified matter sought the courts quashing of the subpoena on three separate basis, including plaintiff's litigation tactics, defendants inability to challenge the courts order permitting early discovery, and defendants First Amendment right to anonymous file sharing. The court considered each of these arguments. It first noted that a plaintiff has a constitutional right to file a lawsuit to engage in discovery to determine if a defendant or someone using a defendants IP address infringed on a protected work so long as the plaintiff had a good faith basis in doing so under Rule 11, which refers to Federal Rules of Civil Procedure and contains sanctions for frivolous or unfounded filings. Despite acknowledging that Malibu Media has been argued to be and identified as a copyright troll, the court recognized that it has the same right as all the other litigants to settle or dismiss its claims before engaging and discovering prior to filing any dispositive motions. Therefore, court declined to quash the subpoena based upon litigation tactics alleged in the motion to quash.

The court also quickly disposed of the defendants argument that the subpoena should be quashed due to defendants inability to challenge the courts order permitting early discovery. The court recognized that the defendants anonymity was the exact reason why the plaintiff sought early discovery and one of the few reasons that early discovery is permitted. Put simply, deemed the argument unreasonable that defendants failure to participate in the process intended to discover his identity could be used as a basis for restricting the subpoena or other discovery.

Finally, the court considered whether the defendants interest in anonymous file sharing justifies quashing the subpoena. While anonymous internet speech, including file sharing, enjoys some protection under the First Amendment, such protection is not absolute, said the court. As a category, copyright infringement is not protected by the First Amendment. That said, courts have recognized that defendants right to remain anonymous must give way to plaintiffs right to use the judicial process to pursue what appear to be meritorious copyright infringement claims. In analyzing the issue, the court considered what are known as The Sony Music Factors, including whether the plaintiff has made a prima facie case for infringement, the specificity of information sought from the internet service provider, a lack of alternative means of obtaining that information, a central need for the information in order to bring the claim, and the expectation of privacy held by the objecting party.

The court first recognized that a prima facie claim of copyright infringement exists because the plaintiff alleged ownership of valid copyright, including a copyright registration with the US Copyright office, as well as original works of authorship in each of the seven films at issue. Second, the information sought from the ISP was specific enough, including defendants name, address, and telephone number. Third, the court recognized that a subpoena is the first step and that no other means are available to identify the defendant. In doing so, the court noted that this information is not guaranteed to produce the identity of the infringer, the court could not identify any other reasonable way of discovering the infringer other by permitting the discovery into the identity of the defendant, who has not disputed that he owns the IP address through the alleged infringement occurred. Fourth, there is a central need for the subpoenaed information. The court recognized that plaintiffs providing an exculpatory evidence request with its complaint demonstrates steps that it may take to get information from the internet subscriber to the alleged infringer, which further weighs in favor of discovery under the fourth factor. Fifth, and finally, the court chose to recognize that a file sharers First Amendment right to anonymity is exceedingly small. It went on to state that, "It is hard to understand just what privacy expectation a file sharing defendant has after essentially opening up his or her computer to the world". Thus, the court found the information sought in the subpoena is both relevant and necessary to the plaintiffs interest in vindicating its valid copyrights through this litigation and the discovery sought did not violate defendants First Amendment right to anonymous file sharing, which is too slight to overcome any such discovery interest.

More and more decisions are being issued throughout the country as it relates to the quashing of subpoenas related to identifying the owner of an IP address in cases involving alleged copyright infringement. A copyright attorney with experience in this area can help advise as to the likelihood of a successful motion to quash, as well as other efforts in the event that you receive notice from an ISP that your identity is to be revealed pursuant to a subpoena.

Software Copyright Infringement

The unauthorized copying and use of someone else's software amounts to copyright infringement. Companies are ramping up their enforcement efforts as it relates to entities that use their software without the necessary software licenses. Microsoft is one example of that; recently took action against copyright infringers, consistent with their publicized policy of copyright infringement enforcement. In particular, it was reported that Microsoft settled more than 3 thousand copyright infringement matters throughout the world last year alone. While some were in the United States, many of them were overseas. Microsoft views software piracy, counterfeiting, and copyright infringement as a major problem that has long reaching affects upon on not only Microsoft's revenue but also economic growth, innovation, and consumer protection. Microsoft is not the only one that enforces its software rights via copyright infringement lawsuits and settlements.

If you are interested in learning more about software copyright enforcement efforts you should contact a copyright attorney today. Similarily, if you have been alleged to infringe the software copyright license of another , you should immediately speak with a copyright attorney who can identify the loegal and financial liability and advise you of means to defend or settle your matter.

July 19, 2013

Copyright Registration for Computer Programs and Applications

Oftentimes people discover that someone else has copied their website, computer program, or computer application online. They want to take action. However, unless they have registered for copyright protection with the US Copyright Office, they cannot file a lawsuit in federal court. Therefore, pursing copyright registration for computer programs and applications is critically important. In order to do so, however, there are many practical and legal decisions that need to be made in order to provide the broadest protection for a website, computer program, or computer application.

As always, copyright protection extends only to the copyrightable expression embodied in the website, computer program, or computer application. No one person can claim copyright protection for ideas, program logic, algorithms, systems, methods, concepts, or layouts. While other kinds of intellectual property protection may be available for those, copyright protection is not.

Since the registration of a copyright is a prerequisite to filing a lawsuit in federal court for copyright infringement, insuring that the copyright registration is correct typically requires the assistance of a copyright attorney. The copyright attorney can assist you with determining whether or not your computer program contains trade secrets and how the deposit that must accompany any copyright registration can be adjusted accordingly. In addition, a copyright attorney can help you understand whether or not your registration pertains only to your computer program or also to its screen displays. The same holds true for your website if it is providing software online or for your computer application, or app. Finally, a copyright attorney can assist you insuring that all authors and owners of the particular registration have accurately been reflected, and if necessary, agreements have been secured in order to insure that you have the necessary copyright rights in your computer program or other copyrightable item.

Ultimately, copyright registration for computer programs is extremely important. Completing the online application for computer program is one step, but a copyright attorney can insure that you have done what is necessary prior to and after successful registration in order to secure, maintain, and enforce your copyright rights.

Protection of and enforcement of Moral Rights

The issue of moral rights oftentimes comes up when the author of some kind of work assigns or licenses to a third party, who then adapts that work in such a way that the author is unhappy. Moral rights are oftentimes believed to be associated with copyright rights. However, moral rights are separate and distinct from copyright rights. Whether or not the United States affectively recognizes moral rights is not entirely clear based upon existing case law, but it is an area of law that deserves attention especially in light of the questions surrounding moral rights.

Generally speaking, moral rights are comprised of four different rights. These include the right of integrity, the right of attribution, the right of disclosure, and the right to withdraw work from the public. As noted above, the US has not recognized each of these rights to the extent that European countries have. In the event that the United States Court do recognize moral rights, they typically recognize them under the guise of other legal theories, such as unfair competition, invasion of privacy, defamation, and breach of contract. They may even be associated with copyright rights. For example, one of the most publicized cases involving moral rights related to a reliance upon copyright law and unfair competition principles to safeguard the integrity rights of the Monty Python group. In the case of Gilliam v. American Broadcasting Companies Inc from the Second Circuit, the court found that "although the law seeks to vindicate the economic, rather than the personal rights of authors...the economic incentive for artistic...creation...cannot be reconciled with the inability of artists to obtain relief from mutilation or misrepresentation of their work to the public, on which the artists are financially dependent". This court recognized, in the position that has been advanced since, that moral rights are distinct from economic rights. The creator of a work should be able to protect its moral rights in that particular work.

Ultimately, whether or not the author of a book, the creator of a piece of visual artwork, or other copyright owner may be able to claim moral rights is not entirely clear. That said, identifying when a moral rights issue may exist and determining enforcement efforts related to those moral rights can be a critical piece of any dispute, copyright or otherwise. Therefore, speaking with a copyright attorney who has experience with moral rights can help.

It is worth noting that the Visual Artists Rights Act of 1990 (VARA), set forth in 17 US 106a, is the first federal copyright legislation to grant protection to moral rights. However, VARA is limited to works of art that meet certain requirements. Whether or not VARA will lead to additional legislation beyond paintings, drawings, prints, sculptures, or still photographic images, remains to be seen.

 

Publishing Agreement Copyright Concerns

When an author decides to publish a book or some other kind of publication, a publisher will often require what is regularly known as a publishing agreement. A publishing agreement is a contract between the publisher and the author. It contains important terms relating to ownership of the copyright, payment, and other terms and conditions. Understanding your rights as either a writer or publisher is critically important before entering into a publishing agreement.

One of the most important aspects of the publishing agreement is an understanding as to the ownership of the copyright. Keep in mind there is what is known as a "bundle of rights" associated with the copyright. Therefore, one may be able to grant, or otherwise assign, certain rights while maintaining others. Typically, a publishing agreement will have the author grant the right to publish and/or reproduce the publication. However, it is critically important to determine whether or not the right to prepare derivative works, or otherwise adapt or modify, and other copyright rights, are to be transferred from the author to the publisher. It is also important to understand whether or not certain exclusive rights will be assigned under the agreement.

Payment terms are also disclosed in a publishing agreement. Typically, royalties are paid by the publisher to the author, with an opportunity for an advancement on royalties in certain cases. Regardless, understanding what the payment structure is becomes important, especially where rights beyond mere publication. For example, such as its adaptation into a movie or otherwise, occurs.

Finally, understanding what rights the publisher has to alter the author's work, sometimes known as moral rights, is also important. The publishing agreement should set forth who is to make revisions, how they are to be improved, and when proofs are to ultimately be finalized into a completed manuscript/book/or other publication.

Both parties should consider whether or not the provision dealing with a reversion of rights is necessary. For example, in the event that the publisher does not fulfill its obligations and publish the books within a certain amount of time, rights may revert to the author so that he/she may pursue alternative publication. The same may be said if the author fails to provide the required manuscript by a certain date. Time is of the essence, provisions are also considered for these same reasons.

Ultimately, since the publishing agreement is the contract that governs the relationship between an author and publisher, both would be well served to speak with a copyright attorney with experience in publishing agreements and other publication issues that could arise in that context.

July 12, 2013

Copyright Damages Risked By Use of Torrent Sites

There's plenty of commentary on the internet about copyright trolls, with entities such as Malibu Media being on the receiving end of that identifier. Malibu Media is a company that owns copyright rights to various pornographic works and have been active in filing copyright infringement lawsuits against defendants throughout the United States, including in the eastern district of Michigan and the western district of Michigan, for the unauthorized downloading and viewing of their works. In particular, Malibu Media files a complaint against a John Doe since they do not have the name of the person associated with the particular IP address. They then get expedited discovery from the court and subpoena the provider of that IP address, such as Comcast. The owner of the IP address is then provided notice by Comcast that their identity will be revealed if they do not quash the subpoena or otherwise resolve the matter with Malibu Media.

Once this person is provided notice, they have several options. First, they may determine that they did not violate any copyright and work with a copyright attorney to defend the lawsuit. Second, they may choose to fight the subpoena in hopes of the plaintiff not wishing to proceed further, although this is a risky endeavor. Third, they may try and resolve the matter without having their identity revealed. Copyright attorneys are available to assist in any one of these options. However, it is important for the person who is alleged to have infringed on others' copyright to understand what damages might be available under the copyright act. In particular 17USC504 provides the remedies in damages available for any copyright infringement. While a copyright owner, who has successfully registered their copyright will always threaten the $150,000 per infringement, known as the statutory maximum, that amount is not the only amount available. In fact, the Copyright Act specifically allows for damages between $750 and $30,000 as the court considers just, especially where there's no willful behavior on behalf of the alleged infringer. Tellingly, however, there is also the ability for the court, within its discretion, to reduce the award of statutory damages to as little as $200 per infringement. The fact of the matter is that there are cases that have interpreted the various provisions and can provide insight into which amount may be applicable to a given factual situation. If you have received a subpoena and could be at risk of statutory damages, you would be well served to speak with a copyright attorney who can assist you in determining your likely liability and financial exposure. Understanding what is at risk may help you to make an informed decision in the event you wish to settle or spend resources defending or otherwise tempting to quash the subpoena in the underlying matter.

Regardless, copyright infringement lawsuits by copyright owners do not appear to be slowing down. Therefore, you would be well served to understand, via a copyright attorney or on your own, what is at risk.

How to Address Copyright Infringement on the Internet

Almost every single day a prospective or existing client calls and asks how they are to address copyright infringement on the Internet. The answer to the question requires an analysis of what truly is at issue with the copyright infringement. This begins by identifying what the copyright at issue is. For example, is it a photograph, language or other written content, or a video? Once the specific kind of copyright is identified, it is critically important to find out who owns that copyright. While typically the creator of any kind of work is the owner of the copyright, employment issues and work-for-hire doctrines may reveal a different answer. Nonetheless, in order to understand how one is to address copyright infringement on the Internet must begin with confirmation as to ownership of a valid and existing copyright.

Assuming that the work at issue qualifies as a copyright, regardless of if its registered or not, the next step in the analysis is to identify who is making the unlawful use of that copyright. Given that the Internet is available in countries beyond the United States, we first try to determine whether or not we are dealing with a United States entity. There are various ways to confirm this. For example, we can look to domain name registration information, website server hosting information, and other company information to determine whether or not the alleged unlawful user of the copyright is located within the United States. This is important because the DMCA (Digital Millennium Copyright Act) may be an avenue through which a takedown notice can be sent if in fact we are dealing with a United States entity. Alternatively, if we are dealing with an entity located outside of the United States, we need to determine which laws apply to the same. For example, China is a signatory to the Berne Convention and thus allows various ways to address copyright infringement under Chinese and US law alike.

Having identified a copyright, and determined the identity and location of the alleged infringer, a copyright attorney will now advise the client as to its options. While a cease and desist letter is typically a starting point for copyright infringement on the Internet, there may be additional actions that can go with that notice letter. For example, as noted above, a takedown notice via the digital millennium copyright act may also accompany, although separately, any cease and desist letter to an alleged infringer. This will ensure that the web post also provides notice to the alleged infringer and may even extradite the removal of the infringing work if the alleged infringer does not cooperate. Besides letters, it is also important to determine whether a copyright infringer lawsuit can be filed.  In making this determination, it is important to factor in the considerations of the alleged infringers extent of liability, the likelihood of success, the likelihood of collectability, and related factors. Once advised by a copyright lawyer, the client can decide whether or not they wish to pursue a copyright infringement lawsuit.

Ultimately, addressing copyright infringement on the Internet begins with active monitoring of one’s copyrighted content. Knowing how your copyrighted material is being used and by whom allows you to more effectively address instances of copyright infringement on the Internet. Should you identify such infringing activity, you should contact a copyright lawyer who can work through the steps outlined in this post and ultimately address your copyright infringement on the Internet.

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