Transcript Introduction to the Law

Jody Blanke, Professor
Computer Information Systems and Law
Mercer University, Atlanta
Ilani
 Ilani, Rachael and Melissa chip in to buy a copy of
Stieg Larsson’s novel, The Girl Who Kicked the
Hornet’s Nest. They go to a copy center, and make
two photocopies of the book. They draw straws to
see who gets to keep the book and who gets stuck
with the photocopy. The scheme works so well
that they decide to do the same thing with their
Educational Psychology textbook.
Copyright Law
 Article I, Section 8 of the Constitution
 To promote the progress of science and useful arts, by
securing for limited times to authors and inventors the
exclusive right to their respective writings and
discoveries
Copyright Act of 1790
 Applied to books, maps and charts
 Term: 14 years (renewable for 14 years)
Copyright Act of 1976
 Applies to literary works, musical works, dramatic
works, pantomimes and choreographic works,
pictorial, graphic, and sculptural works, motion
pictures and other audiovisual works, sound
recordings, and architectural works
 Term: life of the author plus 50 years
Sonny Bono Copyright Term Extension Act
of 1998
 Extended the term of copyright protection to life of the
author plus 70 years
 Added 20 years of protection to existing works still
protected by copyright
 Eldred v. Ashcroft (2003)
Federal Copyright Interest
 Upon fixation in a tangible medium
 No requirement to file
 Owner has right to reproduce, sell, rent, lease, lend,
perform, display, prepare derivative work
 Subject to some limitations or exceptions
 “Fair use”
Fair Use
 Section 107 of the Copyright Act
 “[T]he fair use of a copyrighted work … for purposes
such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use),
scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a
work in any particular case is a fair use the factors to be
considered shall include—”
Fair Use Factors
 The purpose of the use, e.g., nonprofit educational
reasons
 The nature of the copyrighted work
 The amount and substantiality of the portion used in
relation to the whole
 The effect of the use upon the potential market for or
value of the work
Zack
 Zack buys a copy of the game FIFA 11 Soccer for his
computer. He burns a copy of the CD containing the
game.
Backup Copy
 Copyright law permits one backup copy to be made for
archival purposes (Section 117 of the Copyright Act)
 Can you give your friend the “backup copy”?
License Agreement
 When you “buy” a piece of software, you actually
purchase a license for its use
 Terms can vary greatly from one license to another
 Some permit installation on more than one machine
Melanie
 Melanie's father videotapes the movie The Lion King
from a channel on public airwaves. Also, he borrows a
friend's Lilo and Stitch videotape, and makes a copy of
it on his dual cassette video recorder.
Sony Betamax Case (1984)
 In 1982 several movie and television studios sued Sony
to prevent its manufacture and sale of the Betamax
video tape recorder
 Mr. Rogers testified for the defense
 Supreme Court held that “time-shifting” was a
legitimate, noninfringing fair use
Campbell v. Acuff-Rose Music
(1994)
 2 Live Crew recorded a satirical version of Roy
Orbison’s “Oh, Pretty Woman”
 Supreme Court held that it was a fair use
 The Court focused on the song’s “transformative”
character
 the parody was not a substitute for the original
Charlene
 Charlene makes an audiocassette recording of a radio
broadcast of a Norah Jones album.
Tough One
 Harbinger of things to come
 Transition from an analog to a digital world
Bruce
 Bruce buys a copy of the The Paul Simon Collection
CD, and makes an audiocassette copy for his car and
two CD copies, one for his upstairs CD player and one
for his kitchen CD player.
Audio Home Recording Act of 1992
(AHRA)
 Music industry successfully lobbied against DATs
 perfect copies every time
 Act provides quid pro quo
 industry gets Serial Copy Management System and
blank tape royalty scheme
 consumers get right to make analog or digital recordings
for their private non-commercial use (immune from
infringement)
Digital Technology in the 1990s
 Music industry rocked by:
 greater disk capacity
 compression software (MP3 files)
 Internet
Jaime
 Jaime downloads 23 Elliot Smith songs on her
computer in MP3 format. She burns them onto a CD
to listen to on her portable CD player and in her car.
RIAA v. Diamond Multimedia (1999)
 The RIAA alleged that the Rio MP3 violated the AHRA
of 1992
 The court found that the Rio was not a “digital audio
recording device”
 The court held that the Rio’s “space-shifting” was
entirely consistent with the AHRA’s main purpose –
the facilitation of personal use
A&M Records v. Napster (2001)
 Enjoined Napster from facilitating the distribution of
copyrighted works
 Rejected fair use defense
 not “time-shifting” or “space-shifting”
 New peer-to-peer networks arise and take its place,
e.g., Kazaa, Limewire
Adam
 Adam buys a copy of the Inglourious Basterds DVD.
He makes an extra copy of it, keeps the copy for
himself, and mails the original home for his father.
Digital Millennium Copyright Act of
1998
 Criminal prohibition against circumventing any
technological measure that controls access to a
copyrighted work
 DVDs contain such measure
 some CDs now contain anti-copying code
Stacie
 For Stacie's twelfth grade project on "Multimedia
Today," she collects a variety of text, art, photos, audio
and video from CDs, DVDs and the Web, and compiles
them onto a CD. She gets an A+ on the project.
Stacie’s Future
 College?
 Prison?
Patent Law
 Article I, Section 8 of the Constitution
 To promote the progress of science and useful arts, by
securing for limited times to authors and inventors the
exclusive right to their respective writings and
discoveries
Protection
 Patents protect the underlying idea
 whereas copyrights protect only an expression (of an
idea)
 e.g., Thomas Edison v. Joe Schmoe
 Patents last for 20 years (from date of filing)
 Patents protect from independent creation
 copyrights do not
 U.S. protects first to invent, not first to file
§ 101 Subject Matter
 Invention must be new and useful
 process
 machine
 manufacture, or
 composition of matter
 Can include “anything under the sun that is made
by man.”
 Cannot include laws of nature, scientific
principles, mathematical formulas
§ 102 Novelty
 Cannot get a patent if
 the inventor did not himself invent the subject matter
 the invention was known or used by others in the U.S. or
patented or described in a printed publication
anywhere, or
 the invention was in public use or on sale in the U.S.
more than one year prior to filing
§ 103 Nonobviousness
 The differences between the invention and the prior
art must not have been obvious at the time of
invention to a person having ordinary skill in the art
 e.g., cable ties
Sword or Shield
 Patents can be used offensively or defensively
 may be held like a trump card
 e.g., Amazon v. Barnes & Noble
 Patent holders may get greedy
 e.g., Compton’s Media, British Telecom
Opening of the Floodgates
 Software patents
 Business method patents
 State Street Bank & Trust (1998)
Trademark Law
 Combination of federal and state law
 Authority of federal law derives from regulation of
interstate commerce
 Authority of state law derives from regulation of
intrastate commerce
Protects Dual Interests
 Protects trademark owner’s interest in brand name
value and good will
 Protects consumers from confusion
Trademarks can be …
 words
 Coca Cola
 phrases
 “Have it your way”
 symbols
 sounds
586
 Intel learned that you cannot trademark numbers
themselves
 Pentium can be trademarked
 You can trademark
 7-Up
 Three-peat
Generics
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Dixie Cups
Frisbee
Hi-Liter
Kitty Litter
Kleenex
Magic Marker
Ping-Pong
Popsicle
Scotch Tape
Sheetrock
TV Dinners
Wiffle Ball
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Cellophane
Corn Flakes
Dry Ice
Lanolin
Mimeograph
Monopoly
Pogo Stick
Raisin Bran
Shredded Wheat
Thermos
Toll House
Trampoline
Strength of Protection
1.
Fanciful
e.g., Kodak, Atari, Exxon
2.
Arbitrary
e.g., Apple, Amazon
3.
Suggestive
4.
e.g., Compaq, Dairy Queen
Descriptive (must acquire a secondary meaning) e.g.,
Computerland, Ben & Jerrys
5.
Generic
e.g., aspirin, elevator
Trademark Infringement
 “Likelihood of confusion” standard
 Court looks at factors like
 similarity of goods
 sophistication of consumers
 length of time that mark has been used
 wrongful intent
Lexus/Lexis
 Mead Data Corp. sued Toyota in 1989
 Toyota won
 court found little chance of confusion
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perspective luxury car buyer won’t come home with a legal
database instead
and vice versa
Trademark Dilution
 Federal Trademark Dilution Act of 1996
 prior to 1996, 28 states had anti-dilution laws
 Under the Trademark Dilution Revision Act of 2006,
must show
 “famous” mark – as "widely recognized by the general
consuming public of the United States”
 “likelihood of dilution”
Microsoft Sandwich Shoppe
 Makes a great sandwich
 Becomes very popular
 “Let’s go to Microsoft”
 dilution by blurring
 But after the very unfortunate e-coli incident
 dilution by tarnishment
Lexus/Lexis Revisited
 Would there be infringement today?
 Would there be dilution today?
Web Domain Names
 New frontier for trademark law
 Early “entrepreneurs” registered
 www.mtv.com
 www.abc.com
 Today we call them cybersquatters
www.delta.com 1996
www.delta.com April 2000
www.delta.com August 2000
www.delta.com October 2000
www.nissan.com 1996
www.nissan.com 1999
www.nissan.com 2006
www.google.com
www.froogle.com 2004
www.booble.com 2004
www.booble.com 2005
Contested Domain Names
 www.playboyxxx.com
 www.asianplayboy.com
 www.lucentsucks.com
 www.amazom.com
Trade Secret Law
 Restatement (First) of Torts §757
 A trade secret may consist of any formula, pattern,
device or compilation of information which is used in
one's business, and which gives him an opportunity to
obtain an advantage over competitors who do not know
or use it. It may be a formula for a chemical compound, a
process of manufacturing, treating or preserving
material, a pattern for a machine or other device, or a list
of customers.
The Coke Formula
“This Coca-Cola formula appears to be the original formula to
Coca-Cola. An author named Mark Pendergrast wrote a book
about Coca-Cola entitled For God, Country and Coca-Cola. In
writing this book he was able to interview just about anybody he
wanted within Coca-Cola, and was also granted access to the
vast archives of Coca-Cola.”
http://www.sodamuseum.bigstep.com/generic.jhtml?pid=10
Factors Used to Determine Whether There
is a Trade Secret
 The extent to which the information is known outside of its
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owner's business
The extent to which it is known by employees and others
involved in its owner's business
The extent of measures taken by the owner to guard the
secrecy of the information
The value of the information to its owner and to its
competitors
The amount of effort or money expended by its owner in
developing the information
The ease or difficulty with which the information could be
properly acquired or duplicated by others.
Uniform Trade Secrets Act
 "Trade secret" means information, including a
formula, pattern, compilation, program, device,
method, technique, or process, that:
(i) derives independent economic value, actual or
potential, from not being generally known to, and not
being readily ascertainable by proper means by, other
persons who can obtain economic value from its
disclosure or use, and
(ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Georgia UTSA
 "Trade secret" means information, without regard
to form, including, but not limited to, technical or
nontechnical data, a formula, a pattern, a
compilation, a program, a device, a method, a
technique, a drawing, a process, financial data,
financial plans, product plans, or a list of actual or
potential customers or suppliers which is not
commonly known by or available to the public and
which information:
U.S. v. Joya Williams
 Administrative assistant at Coca-Cola convicted of
theft of trade secrets and sentenced to 8 years
 http://news.corporate.findlaw.com/ap/f/66/05-23-
2007/b874000bc0ef22ff.html