Transcript This is the first slide

Internet Law
Paul B. Keller, Esq.
FISH & NEAVE
1251 Avenue of the Americas
New York, NY 10020
www.fishneave.com
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Freedom Of Speech
U.S. Constitution:
Congress shall make no law . . .
Abridging the freedom of speech, or
of the press, or the right of the
people peaceably to assemble . . . .
First Amendment
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Gov’t Regulation Of Commercial Speech
Commercial Speech - Less 1st Amend. Protection
• Does NOT have protection if the speech is untrue.
• For Example:
• False Advertising
• Misleading Advertising
Gov’t CAN regulate true commercial speech if:
• Gov’t has substantial interest in regulating speech
• Regulation directly advances Gov’t interest
• Regulation is no more extensive than necessary to meet
interest
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Government Regulation Of NonCommercial Speech
• Non-Commercial Speech Has Higher
Protection
• Gov’t Can Regulate if Regulation:
• furthers a compelling governmental interest
• interferes with the expression no more than is
necessary to advance the government’s interest.
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Government Regulation Of On-Line
Obscenity
• Is The Material Entitled to Protection?
The U.S. Supreme Ct.’s Three-Part Test:
• Whether an average person applying “community
standards” would find the work appealing to the
“prurient interests.”
• Whether the work depicts, in a patently offensive
way, conduct prohibited by local law.
• Whether the work, taken as a whole, lacks serious
literary, artistic political or scientific value.
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Government Regulation Of On-Line
Indecency
• Indecency is something Less than
Obscenity
• Gov’t CAN regulate if:
• Gov’t has a compelling interest
• Regulation furthers that compelling interest
• Regulation is the least intrusive manner to further that
compelling interest.
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On-Line Privacy
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On-Line Privacy
What Gets People So Concerned?
Increased Data Creation and Collection
The Globalization of Information and
Communications
Lack of Centralized Control Mechanisms
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On-Line Privacy
Why Do Users Think They’re Entitled To
Privacy On-Line?
The Expectation of Anonymity
The Expectation of Fairness and Control
Over Personal Information
The Expectation of Confidentiality
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On-Line Privacy
Current Legislative Protection:
Children's Online Privacy Protection Act (COPPA):
Protect children's personal information from
collection and misuse by commercial Web sites.
COPPA was designed to ensure that children's ability
to speak, seek out information, and publish would not be
adversely affected.
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On-Line Privacy
Current Legislative Protection:
COPPA (con’t):
After April 21, 2000, COPPA required commercial Web sites
and other online services directed at children 12 and under, or
which collect information regarding users' age, to provide:
1. Parents with notice of their information practices.
2. Obtain parental consent prior to the collection of personal
information from children.
3. Parents with the ability to review and correct information
about their children collected by such services.
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On-Line Privacy
Current Legislative Protection:
Financial Services Modernization Act (November of 1999):
Intended To Require Financial Institutions
To Give Notice and Receive Consent Before
Sharing Customer Information
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On-Line Privacy
Current Legislative Protection:
Financial Services Modernization Act (con’t):
However, in many instances:
• It allows personal information to be shared among affiliated and
unaffiliated companies without the consumer's consent.
• It allows institutions to avoid meeting even the minimum notice
of information practices required under the Act.
• It does not require financial institutions to provide consumers
with access to information about them, even though the law allows it
to be shared.
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On-Line Privacy
Technological Innovations To Protect Privacy
•
Platform for Privacy Preferences Project (P3P)
On June 21, 2000, major Internet companies offered the
first public demonstration of a new generation of Web-browsing
software designed to give users more control over their personal
information online.
•
Proxies and Firewalls
Proxies and firewalls are barriers between a computer and
the Internet. Communications are only allowed under certain
circumstances and certain types of communications can be
blocked entirely.
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On-Line Privacy
Technological Innovations To Protect Privacy
•
The “Anonymizer” Service
Allows you to browse the Internet using an intermediary to
prevent unauthorized parties from gathering your personal
information.
•
Cookies
An Internet "cookie" is a unique piece of text that your
browser saves and sends back to a Web server when you revisit a
Web site.
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Intellectual Property
Patents
Trademarks
Copyrights
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Patents
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What Can Be Patented?
In Diamond v. Chakrabarty (1980),
the U.S. Supreme Court declared
that:
“anything under the sun that is
made by man,” i.e., the product of
human manipulation, is patentable.
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Subject Matter That Is Not Patentable Even
If It’s The Product Of Human Manipulation
U.S. Supreme Court Diamond v. Diehr (1981)
– E=mc2
•
Laws of Nature
– Music
•
Descriptions of
Natural Phenomena
– Alphabets
Abstract Ideas or
Information
– Mathematical Algorithms
•
– DNA Sequences
– Computer Programs
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What Is A Patent?
A government grant to an inventor, to exclude
others from:
• making
• using
• selling
• importing an invention into the U.S. without
the inventor’s permission.
Does NOT include the right to use the invention.
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Patentability:
Utility Patents - Machine, manufactured article,
composition of matter, or a process
Design Patents - Protects the visual characteristics
of an object
Plant Patents - Newly developed plants
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Patent Term
Utility and plant patents have a term of 20 years
from the date of filing.
Design patents have a term of 14 years from filing.
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Patentability:
Statutory Bases
• Utility
• Novelty
• Non-obviousness
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What Is The Protected Invention?
Starts out with “We claim”, “I claim” or
“What is claimed is” and sets forth
the “Metes and Bounds” of the
intellectual property protection
sought.
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Infringement Analysis
Literal Infringement - Every element of
the claim is found in the accused
product.
Doctrine of Equivalents - Infringement
can still be found where the
difference between the missing
element and the alleged equivalent
are “insubstantial.”
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Contributory Infringement
Infringement liability can extend to
anyone who assists others in
violating the exclusive rights of the
patent holder.
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Trademark Law
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Trademark Law -- What Is It Suppose To Do?
Trademark law provides
the exclusive right to use a mark
that serves to distinguish the
goods and services of one
person from another.
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What is a Trademark?
Any word, name, symbol, or device used
in commerce to identify the source of
goods.
A service mark is similar to a trademark
except that it is used with services.
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Functions of Trademarks
•
•
•
Indicate the origin of a product
Instrument of Advertising
Bank for depositing of consumer
“goodwill”
•
Assurance of a standard of quality
associated with a particular mark
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Building of Goodwill
You know that the TIDE detergent you
use will have certain properties-color,
fragrance, cleaning ability, etc.
You rely on a BIG MAC or WHOPPER
you get at McDONALDS OR
BURGER KING to taste a certain
way and be of a certain quality.
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Generic Marks
A generic term is the common ordinary
name of a good or service and can
never be a trademark.
Examples: corn flakes, basket ball,
automobile, elevator.
Contrast with domain names.
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Descriptive Terms
Descriptive marks describe some aspect
of the product or service with which
the marks are used.
Example: EVERREADY batteries,
INVESTACORP financial services.
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Descriptive Marks as Trademarks
Trademark protection is only extended
to descriptive marks where they have
attained a secondary meaning.
Secondary meaning is attained when a
mark has been used for so long or so
exclusively that they do not convey
simply their literal meaning in the
public mind, but are instantly
associated with one source.
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Suggestive Marks
Merely suggest or hint at some quality,
aspect, or component of the goods or
services with which they are used.
No need to show secondary meaning
for suggestive marks.
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Fanciful or Arbitrary Marks
Such marks are completely unknown
and have been coined for use as a
trademark.
Examples
• KODAK photographic supplies
• CLOROX bleach
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Strongest Level of Protection
• Fanciful or arbitrary marks are the
most distinctive of all marks and
receive the strongest protection.
• Scope of protection often extends
beyond current usage
• No secondary meaning needed.
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Infringement of Trademarks
Likelihood of Confusion Test
• Probable confusion between
marks is necessary.
• Mere possibility of confusion is
not sufficient.
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Loss of Trademark Rights
Abandonment
Licensing Without
Adequate Quality
Control
Failure to Prosecute
Infringers
Mark Becomes
Generic
Examples - Aspirin,
Thermos
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Preventing Trademarks From Becoming Generic
Always use as an adjective
• i.e.-KLEENEX facial tissues
Consider using the word “Brand”
• i.e.-DORITOS Brand Tortilla Chips
• SANKA Brand Decaffeinated Coffee
Never use a trademark as a verb
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Domain Names
Prospector v. Extortionist
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Domain Names
Prospector v. Extortionist
• Registering a Generic Name
• Registering Someone’s Trademark
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Trademarks v. Domain Names
• Administrative Dispute Resolution
Procedures
• Arbitration
• Court of Proper Jurisdiction
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Administrative Dispute Procedures
• Adopted by ICANN - Internet
Corporation for Assigned Names and
Numbers
• Uniform Domain-Name DisputeResolution Policy (“UDRP”)
• UDRP followed by all registrars in
the .com, .net, and .org domains.
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Uniform Domain-Name Dispute Resolution
Policy
The registrar will cancel, suspend, or
transfer a domain name upon proof of
an agreement, court order, or
arbitration hearing.
Administrative remedy for cases
involving abusive registration.
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Approved Dispute Resolution Providers
• WIPO - World Intellectual Property
Organization
• CPR Institute for Dispute Resolution
• Disputes.org/eResolution Consortium
• Additional Providers approval
pending
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Administrative Remedy
All domain name registrants must submit to
an administrative proceeding where a 3rd
party complaint asserts:
1)
Domain name is identical or confusingly
similar to their trademark,
2) Domain name holder has no legitimate
interest in domain name, and
3) Domain name registered/used in bad faith
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Anti-Cybersquatting Consumer Protection Act
of 1999
• Must show bad-faith intent to profit from
the goodwill of the trademark or personal
name of another
• Registered a domain name that is identical
to or confusingly similar to a personal name
or trademark
• No need to show likelihood of confusion
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Problems with Framing
Likelihood of Confusion as to the
source of content
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Trade Dress of Web Pages
No decided cases.
What do you think?
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Who Owns What?
Facts: in 1996, Brookfield attempted to register the domain
name “moviebuff.com,” but learned that a West Coast had
already done so, but had not yet used it. Brookfield registered
its mark, “MovieBuff” with the USPTO in 1997, and began
using it on its website, “Moviebuffonline.com. In 1998, West
Coast began began using its moviebuff.com domain name.
Brookfield sued for infringement of its “MovieBuff”
trademark.
Issue: Whether registering the name “Moviebuff.com” domain,
without actual use, is sufficient for trademark protection.
Decision: No. Commercial use, under trademark law requires
the domain name to be available to the public. Brookfield
Comm., Inc. v. West Coast Ent’t Corp. (1999)
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Copyright Law
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What is a Copyright?
A copyright protects the original
expression of an idea, thought, or
concept.
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Requisites For Copyright Protection
1) Originality
2) Expression
3) Fixation
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Originality
Very low threshold
Compare to Patents
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Expression Protected
The underlying idea, thought, or
concept is not protected.
The names and numbers in a telephone
book are not protected. Feist
Publications, Inc. v. Rural Telephone
Service Co., 111 S. Ct. 1282 (1991)
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Fixation
• Fixed in a tangible medium of
expression.
• Sufficiently permanent or stable to
permit it to be perceived, reproduced,
or otherwise communicated for a
period of more than transitory
duration.
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Categories of Protected Works
• Literary works
• Musical works
• Dramatic works
• Choreographic
works
• Graphic and
Sculpture works
• Audiovisual works
• Sound Recordings
• Architectural works
• Computer programs
• Compilations of
works and derivative
works
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Copyright Owners Rights
•
•
•
•
•
Reproduce
Prepare derivative works
Distribute
Perform publicly
Display
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Term of Copyright
Life of the author plus 70 years
Why do copyrights have a longer term
than patents?
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Copyright Registration
No longer required but provides the
following benefits:
• Prerequisite to suing for infringement
• Statutory damages & attorney fees
• Proof of validity: Prima facia evidence of
copyright validity if registered within 5
years of the first publication
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Copyright Infringement
Must show:
• Ownership of the copyright
• Unauthorized Copying
Independent creation is a DEFENSE
to copyright infringement.
Compare to Patent Infringement
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Proving Copying
•
The infringer had access to the
work and
•
The two works are substantially
similar
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Innocent Infringement and Fair Use
Innocent infringement - defense based on
“good-faith” belief that conduct does not
constitute infringement based upon
omission of a copyright notice.
Fair Use - defendant claims a privilege to
use the copyrighted materials.
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Fair Use Factors
• Type of use (Commercial, nonprofit, or
educational)
• Nature of Copyright Work
(factual or creative)
• Portion of copyright used in relation to the
whole copyright work, and
• Effect on value of the copyright work
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Copyright Law
On-Line Issues
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Digital Millenium Copyright Act of 1998
• Prohibits products or services designed to
circumvent technological measures to
protect copyrighted works.
• Prohibits falsification of copyright
management information
• Limits service provider liability
• Permits copying a computer program in the
course of maintenance or repair.
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Limited Service Provider Liability
No copyright liability for:
• Passive transmission of infringing material
between users.
• Temporary and intermediate storage of
infringing material during transmission.
• Storage on service providers system by users.
• Links to sights containing infringing
material.
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Specific Internet Copyright Issues
Text
Fan pages
Graphics
Sports broadcasts
Digital Watermarks
Browsing
Sounds
Linking
Software
Caching
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TEXT & GRAPHICS
• Text -- Same as in print. (Copying +
Similar)
• Graphics -- Not very interesting
• Usually no issue of copyrightability
• No question that copies have been made
• Access to Original and substantial
similarity is not difficult to prove
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Recording Industry Association of America v.
Napster, Inc.
What did Napster Do?
• Software provides an “index” of users
having certain MP3 files on their computer
• Permits Napster users to exchange MP3
files automatically without further
assistance from Napster.
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Napster’s Arguments
That It Does Not Infringe
Substantial Non-infringing Use.
Fits under “home recording”
exception.
Fair use - Non-commercial
copying of digital music files by
consumers.
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Music Industry’s Arguments
That Napster Does Infringe
Napster Knows and is capable of
preventing infringement by its
users.
Not Fair Use because activities are
substantial and prevent users from
purchasing authorized copies.
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Napster’s
Current Status
• Lower court granted preliminary
injunction, and Appeals Court affirmed,
requiring Napster to shut down until the
outcome of a trial on the merits.
• Currently,
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Software
Copying incident to reverse engineering
of copyrighted software is a fair use.
Sega v. Accolade, 977 F.2d 1510 (9th Cir.
1992).
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