No matter what form of invention you are involved into, you will need either a copyright or a trademark to protect the illegal activities of others on your inventions. A copyright is usually set out to protect intellectual works such as songs or writings while a trademark is used to cover industrial products. In order to get all this done, you will require the services of a lawyer. Whoever you decide to be your legal representative should be very qualified and have all the experience in intellectual property law. Your lawyer should also be able to defend you if there are any legal proceedings in relation to your trademark or copyright. He also has to prepare your file for the application of a patent or copyright and take care of all that is linked to the issuance of the copyright or trademark.
Your legal representative should be well educated on matters relating to patents and copyrights. It will be of added benefit is he or she has a law studies background and has gone through a law school with thorough studies in intellectual property law.
Why is it always required to employ the services of an agent? This is simply because your legal representative is that person who is qualified, has the time and knows all what it takes to get a trademark or copyright and have them registered. He or she will begin the procedure of registering your trademark or copyright from the U.S. Patent & Trademark Office or from the United States Patent & Trademark Office. Keep in mind that this bureau will take care of agents in the same manner as it will do to lawyers and this will be more feasible if the agent is a registered one.
When there is a violation to a trademark or a copyright, a complaint will be lodged at the United States Court of Appeals and this tribunal is found in the Federal Circuit. If the person who breaches the copyright or trademark is found guilty, there will be a pecuniary remedy or an injunction to stop a further breach of the acts. But the option of which remedy to use lies on the copyright or trademark holder. Your attorney should equally make this known to you. Not every copyright or trademark holder will have knowledge of this.
Where Can You Find A Lawyer For This Purpose?
A lot of means are open to you to let you find a lawyer. One of the most appropriate places to search for a lawyer should be the internet. When thinking of the internet, always think about United States Patent & Trademark Office's official website. This site can give you dependable information about available copyright and trademark lawyers.
Before making your selection, make sure that whoever you decide to be your attorney should have a good legal training. It is good that this proposed lawyer should have some accreditation from two or more bar associations. You should be lucky because there are about three thousand accredited copyright and trademark lawyers in the whole or the US and almost seven thousand two hundred acknowledged agents. These numbers are very active in providing some useful services to their clients at the United States Patent & Trademark Office. You should not rely on any name found in this site or from any journal. Your ultimate choice should be based on the experiences that your would-be lawyer possesses. Your can get to know these from feedbacks or recommendations of former clients. You can also meet and talk to your would-be lawyer and asks question to test if he or she has your interests at heart. When you have chosen your lawyer, you must work together with the lawyer in order to realize your dreams. Keep in mind that both of you have a common purpose and this is about getting your copyright or trademark registered.
Discover how to trademark intellectual property and guide on finding property trademark attorney when you visit http://www.howtotrademarkcopyright.com, the top resource portal for how to trademark and copyright.
Sunday, December 28, 2008
Sunday, December 21, 2008
Copyright, Copyrighting and Online Copyright Abuse by Jp Lafferty
Lets start with copyright infringement.
It is easily explained as copying someone else's work without gaining permission first. This includes publishing other peoples work to your web site, newspaper, magazine or even just downloading it to your computer can be seen as copyright infringement. The last is known as a grey area.
Other peoples work means anything created by a person. It can be written content, graphical content, musical content or even html, JavaScript, PHP, CGI, patterns, textures, animations. It is anything tangible that's created by a person. NOTE: A idea cannot be copyrighted due to the fact it is not tangible.
Example....
I have just finished reading a book on how to service my car. The author of the book explains in detail the different ways a person can go about the job. He also details tips and tricks he has learnt over the years that speed up the servicing.
Now after putting into practice what the author wrote I could go and write my own book on how to service my car, right?
Right!
Why? Well the author can only copyright the content of his book (words, pictures... etc) he cannot copyright the practice or idea there in. This can be viewed in many different ways so if your unsure it is always best to at least email the author before taking any action with there material.
The short and sweet way of looking at this is your content no matter what creative medium it falls under is automatically copyrighted to you for the duration of your life. It can only be broken if you decide to give your content away for free (you must state that it is copyright free material) or you die and nobody registers for the copyright to your material.
This leads us to Public Domain material.....
Before 1978 copyright only lasted 27 seven years. These days it lasts the duration of the creators life. Therefor from the minute you create your work it is automatically copyrighted to you. It is still important to state this wherever you decide to publish your material.
Public Domain material has no copyright and can be used in anyway you see fit. Also unless you change it in someway it is still Public Domain. So if you find a book that is in the Public Domain and you start selling it on EBay, there is nothing stopping the people who buy it from selling it themselves. That's why it is important to change the material. Add something to it so it stands out or modernize the language so people can understand the material better. Any changes copyright the "new" book to you.
Anything published before 1928 falls under Public Domain. That is of course unless someone got there first and changed the material in some way. You have to watch out for that. It could get you into trouble.
That's the basics. For a more detailed insight into copyright go to GOV.
Also depending on your country things maybe different so make sure you know where you stand.
Personal Note......
Copyrighting your work is a good thing. You are the sole owner of what you create and so you should be. There is a problem here though. Once your material is published to the web, book, magazine or even TV your leaving your material open to abuse.
This could be viewed as unfortunate but truthfully if it wasn't for copying other peoples HTML code I would have never learned HTML. It was the same for Java Script and Graphic Design. Even writing and game creation were learnt from copying others first.
It is also well known that internet marketers keep something called a Swipe File on there computer. This is where they paste items of interest they find on the web. It is a digital scrapbook basically.
People learn by first copying and then creating. It is the natural order of life to copy others. So if you want to be strict about your copyright that's fine. Just remember how you learnt what you know before you draw a line in the sand.
It is easily explained as copying someone else's work without gaining permission first. This includes publishing other peoples work to your web site, newspaper, magazine or even just downloading it to your computer can be seen as copyright infringement. The last is known as a grey area.
Other peoples work means anything created by a person. It can be written content, graphical content, musical content or even html, JavaScript, PHP, CGI, patterns, textures, animations. It is anything tangible that's created by a person. NOTE: A idea cannot be copyrighted due to the fact it is not tangible.
Example....
I have just finished reading a book on how to service my car. The author of the book explains in detail the different ways a person can go about the job. He also details tips and tricks he has learnt over the years that speed up the servicing.
Now after putting into practice what the author wrote I could go and write my own book on how to service my car, right?
Right!
Why? Well the author can only copyright the content of his book (words, pictures... etc) he cannot copyright the practice or idea there in. This can be viewed in many different ways so if your unsure it is always best to at least email the author before taking any action with there material.
The short and sweet way of looking at this is your content no matter what creative medium it falls under is automatically copyrighted to you for the duration of your life. It can only be broken if you decide to give your content away for free (you must state that it is copyright free material) or you die and nobody registers for the copyright to your material.
This leads us to Public Domain material.....
Before 1978 copyright only lasted 27 seven years. These days it lasts the duration of the creators life. Therefor from the minute you create your work it is automatically copyrighted to you. It is still important to state this wherever you decide to publish your material.
Public Domain material has no copyright and can be used in anyway you see fit. Also unless you change it in someway it is still Public Domain. So if you find a book that is in the Public Domain and you start selling it on EBay, there is nothing stopping the people who buy it from selling it themselves. That's why it is important to change the material. Add something to it so it stands out or modernize the language so people can understand the material better. Any changes copyright the "new" book to you.
Anything published before 1928 falls under Public Domain. That is of course unless someone got there first and changed the material in some way. You have to watch out for that. It could get you into trouble.
That's the basics. For a more detailed insight into copyright go to GOV.
Also depending on your country things maybe different so make sure you know where you stand.
Personal Note......
Copyrighting your work is a good thing. You are the sole owner of what you create and so you should be. There is a problem here though. Once your material is published to the web, book, magazine or even TV your leaving your material open to abuse.
This could be viewed as unfortunate but truthfully if it wasn't for copying other peoples HTML code I would have never learned HTML. It was the same for Java Script and Graphic Design. Even writing and game creation were learnt from copying others first.
It is also well known that internet marketers keep something called a Swipe File on there computer. This is where they paste items of interest they find on the web. It is a digital scrapbook basically.
People learn by first copying and then creating. It is the natural order of life to copy others. So if you want to be strict about your copyright that's fine. Just remember how you learnt what you know before you draw a line in the sand.
Friday, December 19, 2008
Music Copyright Myths and Royalty Free Music
Ever downloaded music from the Internet? Perhaps you wanted to use it in the classroom, or needed it for your website, or to add to a flash movie, or maybe to jazz up a multimedia project. Whatever the end use, more and more of us are frequently turning to the Internet as our one-stop resource for digital music because we know that it is a fast and easy way to get just what we are looking for! Unfortunately, what many of us don't know is that it may not be legal to do so. Downloading music files from the Internet and using them like the music belonged to you means that not only are you infringing upon the copyright, but you are also risking being fined and even being legally prosecuted.The law does not recognize if you are unaware of copyright laws. So, don't put yourself in an illegal situation when it is so easy and affordable to use Royalty Free Music from music production libraries. And don't base your online actions on hearsay.
This article attempts to bust some common myths that abound in the virtual world, and put you on the right side of the law.
Myth 1: It is legal to use any music for 7 seconds
Fact: No. Unlawful use of even a short excerpt from a song is enough to land you in a copyright infringement case. Don't believe anyone who tells you otherwise, unless he is a copyright attorney! Remember, there is nothing like free to use music - not for 30 seconds, not for 7 seconds, not even for the first eight bars! You need a license to use music without landing into trouble.
Myth 2: I bought a music CD, I can use the music on my website since I paid for it.
Fact: Wrong. You bought the CD - not the music! Buying a legitimate CD gives you the right to play the music privately. You definitely need permission from the composer of the music as well as the sound recording company to use the music on the CD as background music for your website.
Myth 3: The composer is dead, his music is no longer under copyright.
Fact: Untrue. The copyright for a music composition lasts for approximately 70 years from the death of the composer. It does not automatically expire with its creator. And even if the composer is dead since a long time - like Mozart for example - you still don't have the right to use someone's interpretation of their music without a license.
Myth 4: It's for a non-profit organization, so I can use any music I want for free.
Fact: False. Your project (website, presentation, video, anything) may be non-profit, but when it becomes available to other people, you are allowing them to hear music they didn't purchase. That is a breach of the copyright law, no matter if you are making money on the project or not.
Myth 5: I can use this music for free because I found it on the Internet.
Fact: Absolutely not. All music found on the internet is under copyright. If you reproduce, perform, or distribute musical compositions and sound recordings without the requisite licensing, you are violating copyright law.
Myth 6: I can use music because the website did not carry a copyright notice.
Fact: Beginning March 1, 1989, it is no longer mandatory to display the copyright notice to protect one's intellectual property, in this case, music.
And if you are still not convinced, consider this: Would you pick up produce from a farm and walk away without leaving money for what you took? Most certainly not! You wouldn't deprive a hard working farmer from his rightful income. Likewise, if you violate copyright law, you deprive a composer of the royalties derived from the purchase of their work. Think about it!
So what is copyright, anyway? When you own the copyright of a piece of work, it means literally that you have the "right to make copies" of that work. By extension you also have the right to license that work to others who want to use it. It is a form of intellectual property law that protects an original piece of work from being pirated and used without permission of its creator
To avoid getting on the wrong side of the law, consider purchasing a legal music license from royalty free music libraries. Whether you are looking for production music for your video or background music for a multimedia presentation, you can choose from literally thousands of royalty free soundtracks. What's more, buying royalty free music online is really easy and affordable.
Stay clear of unauthorized reproduction and distribution of copyrighted music, and keep the copyright police from knocking at your door!
Gilles Arbour (contact me) is one of the owners of www.premiumbeat.com a leading Royalty Free Music Library. Get a FREE music player for your website.
Sunday, December 14, 2008
Ensuring a Fair Deal for Writers: Update to PLR Legislation
At the All Party Writers Group (APWG) meeting in the House of Commons last night Members of both Houses met with eminent writers and senior staff from PLR and the Authors' Licensing & Collecting Society (ALCS) to discuss proposals to amend the Public Lending Right legislation."The growth in audio-books and the emergence of ebooks in libraries ensures a wider audience for the written word which can only be a good thing for our writers," said Jim Parker, Registrar of PLR. "However, the PLR legislation prevents us from paying a rate per loan for these new and emerging formats, and fails to recognise the reality of new models of library delivery that sees partnerships between educational, school and public libraries. "
It is now 30 years since the PLR Act was passed and the market for writers' work has changed considerably since 1979. The original Act dictates that writers be rewarded for the loan of their printed works from public libraries; the reality is that their work now appears in multiple formats and the face of the traditional public library as defined in the Libraries Act of 1965 is also changing.
As well as the primary legislation of the original Act, there is secondary legislation that prescribes how the PLR scheme is administered. It is cumbersome and inflexible and restricts PLR's plans to increase the size and representativeness of the public library sample that provides the loans data on which payments are made.
These discussions explored ways in which the legislation can be rebalanced to give writers a fairer deal by including the different formats that their work appears in, as well as enabling PLR to follow best practice standards for sampling and increasing their cost efficiency. PLR needs to be fit for purpose in the 21st Century.
"Ensuring a fair deal for writers is exactly what the APWG was set up to do," commented Dr Gibson MP, the group's Chairman. "Our aim was to identify a range of solutions to these issues as requested by The Rt Hon Andy Burnham MP, Secretary of State for Culture Media and Sport at our APWG meeting in July. We will then ask Barbara Follett to take these solutions forward at DCMS where her role includes responsibility for PLR."
Writer, ALCS Honorary President and authors' rights campaigner, Maureen Duffy confirmed that: "PLR is an important right and a vital source of income for authors and it is essential that legisalation accurately reflects changes in the use of authors' works in libraries".
It is now a year since the APWG was formed and it held its first AGM before the start of the discussions last night. Amongst writers attending both the AGM and PLR discussions were Simon Brett, Tracey Chevalier, Mavis Cheek, Dame Margaret Drabble, Sir Michael Holroyd, Simon Nye, Mal Peet, Michael Ridpath and Meg Rosoff.
ALCS
ALCS collects fees on behalf of the whole spectrum of UK writers: novelists, film & TV script writers, literary prize winners, poets and playwrights, freelance journalists, translators and adaptors, as well as thousands of professional and academic writers who include nurses, lawyers, teachers, scientists, and college lecturers. All writers are eligible to join ALCS: further details on membership can be found at http://www.alcs.co.uk
The Society collects fees that are difficult, time-consuming or legally impossible for writers and their representatives to claim on an individual basis: money that is nonetheless due to them. Fees collected are distributed to writers twice a year in March and September. Since its inception, ALCS has distributed over GBP170 million to the nation's writers.
PLR
Passed in 1979, the PLR Act recognises the right for authors to receive payment from public funds for the free lending of printed books by the nation's public libraries. Since its inception PLR has distributed over GBP107 million to authors. Each year, PLR distributes its fund to registered authors at a rate per loan. In February 2008 - relating to book loans during the period July 2006-June 2007 - PLR distributed GBP6.66 million to 23,942 authors at a rate per loan of 5.98 pence.
The All Party Writers Group (APWG)
Chaired by Dr Ian Gibson MP, the APWG is a forum for elected Parliamentarians in Westminster to consider and discuss matters of importance to writers. As a focal point for authors' interests, with its links to UK writer organisations, APWG is well placed to draw attention to the current issues facing writers amongst an audience of decision-makers at Westminster and beyond. The affairs of the APWG are administered by ALCS.
Website: http://www.alcs.co.uk
Thursday, December 11, 2008
How To Protect What You Create With A Copyright by Gregg Hall
In the United States there are millions of people every year who create original music, research, or write books and other forms of creative expression. These are covered by the term intellectual property and are given protection under copyright laws. If you are a publisher, writer, or editor it is crucial that you are knowledgeable about copyright issues more than ever. With the Internet there has been an enormous increase in counterfeiting and pirating of books, music, and other intellectual property. A report last year from the World Customs Organization indicated over a half a billion dollars in counterfeit and pirated products were put in the marketplace globally in 2005.
Every business in the United States is susceptible to Intellectual Property theft; small businesses are at an even greater risk. Individual writers and owners of small publications offer a large cache of information for intellectual property thieves to grab, and as I pointed out above, the Internet has made it very easy to do. To guard against this happening to you or your company you need to know what your rights are.
A copyright under U.S. law protects authors of "original works of authorship" fixed in any material medium of expression. This can encompass sounds, notes, words, numbers, pictures, and virtually any other media. Works that are covered under copyright law are diverse and include artistic, architectural, literary, dramatic, audiovisual, and musical. A work does not have to be published to be covered.
According to the copyright law passed in 1976, the owner of a copyright has the exclusive right to distribute, reproduce, perform, and display their work. The rights are transferable by the owner who may license them, sell them, donate them to charity or even leave them to their heirs. According to the law, it is not legal to violate any of these rights, and if the owner of a copyright wins in a claim for copyright infringement, the court may order both preliminary and permanent injunctions barring any and all present and future infringements and may also order the surrender of the offending materials.
Many people think that there is some big process they have to go through in order to obtain a copyright. The fact of the matter is your work is protected by Copyright Law when you create it and it is placed as a copy or recorded the first time. An article you write is protected, as is a song or music whether it is in sheet music, on a CD, or both forms of media. Despite this fact it is still recommended that you register formally with the Copyright Office to establish a public record and give yourself concrete legal protection for any suits filed in court.
A copyright gives you protection for 70 years after your death or if you created the work with another it lasts 70 years after the last surviving author's death. As far as anonymous works and works that were made for hire, the time is extended to as long as 120 years from the date of creation.
Unfortunately there are no international copyrights to guarantee you copyright protection globally, but most countries recognize the Berne Convention on the Protection of Literary and Artistic Works and/or the Universal Copyright Convention. These are the top international copyright agreements for providing foreign authors with copyright protection. If you are in doubt about whether or not a work you have is protected, be sure to consult with a qualified copyright attorney. That is the only way to be absolutely sure you have all the bases covered.
Gregg Hall is an author living in Navarre Beach, Florida. Find more about this as well as copyright attorneys at http://www.focusonip.com/
Every business in the United States is susceptible to Intellectual Property theft; small businesses are at an even greater risk. Individual writers and owners of small publications offer a large cache of information for intellectual property thieves to grab, and as I pointed out above, the Internet has made it very easy to do. To guard against this happening to you or your company you need to know what your rights are.
A copyright under U.S. law protects authors of "original works of authorship" fixed in any material medium of expression. This can encompass sounds, notes, words, numbers, pictures, and virtually any other media. Works that are covered under copyright law are diverse and include artistic, architectural, literary, dramatic, audiovisual, and musical. A work does not have to be published to be covered.
According to the copyright law passed in 1976, the owner of a copyright has the exclusive right to distribute, reproduce, perform, and display their work. The rights are transferable by the owner who may license them, sell them, donate them to charity or even leave them to their heirs. According to the law, it is not legal to violate any of these rights, and if the owner of a copyright wins in a claim for copyright infringement, the court may order both preliminary and permanent injunctions barring any and all present and future infringements and may also order the surrender of the offending materials.
Many people think that there is some big process they have to go through in order to obtain a copyright. The fact of the matter is your work is protected by Copyright Law when you create it and it is placed as a copy or recorded the first time. An article you write is protected, as is a song or music whether it is in sheet music, on a CD, or both forms of media. Despite this fact it is still recommended that you register formally with the Copyright Office to establish a public record and give yourself concrete legal protection for any suits filed in court.
A copyright gives you protection for 70 years after your death or if you created the work with another it lasts 70 years after the last surviving author's death. As far as anonymous works and works that were made for hire, the time is extended to as long as 120 years from the date of creation.
Unfortunately there are no international copyrights to guarantee you copyright protection globally, but most countries recognize the Berne Convention on the Protection of Literary and Artistic Works and/or the Universal Copyright Convention. These are the top international copyright agreements for providing foreign authors with copyright protection. If you are in doubt about whether or not a work you have is protected, be sure to consult with a qualified copyright attorney. That is the only way to be absolutely sure you have all the bases covered.
Gregg Hall is an author living in Navarre Beach, Florida. Find more about this as well as copyright attorneys at http://www.focusonip.com/
Sunday, December 7, 2008
Copyright FAQs - What Exactly is the Significance of the (C) Copyright Symbol?
There are two major international multilateral copyright conventions which operate in the global system. One is the Berne Convention for the Protection of Literary and Artistic Works (Berne) and the Universal Copyright Convention. Most European and Commonwealth countries belong to Berne, however up to recently the US only belonged to the Universal Copyright Convention. In 1989 the US acceded to the Berne Convention.
Under the Universal Copyright Convention, generally speaking, a work by a national or domiciliary of a country that is a member of the Universal Copyright Convention or a work first published in a Universal Copyright Convention country may claim protection under the Convention. If the work bears the notice of copyright in the form and position specified by the Universal Copyright Convention, this notice will satisfy and substitute for any other formalities a Universal Copyright Convention member country would otherwise impose as a condition of copyright. A Universal Copyright Convention notice should consist of the symbol accompanied by the name of the copyright proprietor and the year of first publication of the work. To qualify for copyright protection in countries that are only members of the Universal Copyright Convention, it is necessary that works bear, in a prominent place and from the time of first publication, the copyright symbol - © - together with the name of the owner of the copyright and the year of first publication, for example: © Kaltons Internet and Technology Solicitors 2002.
However, under the Berne Convention, generally, a work first published in a Berne Union is eligible for protection in all Berne member countries. There are no special requirements like affixing the copyright symbol.
Use of the copyright symbol was significant when the US was not a member of the Berne Convention and it would only recognise copyright where the © symbol was used in accordance with the UCC. The UCC has been largely overtaken by the other treaties that do not require any formalities.
However, using the © symbol, while having little legal effect, alerts others that copyright is claimed in the material in question, and removes any argument that the user relied on an implied licence to use the work.
Source: http://www.kaltons.co.uk
Under the Universal Copyright Convention, generally speaking, a work by a national or domiciliary of a country that is a member of the Universal Copyright Convention or a work first published in a Universal Copyright Convention country may claim protection under the Convention. If the work bears the notice of copyright in the form and position specified by the Universal Copyright Convention, this notice will satisfy and substitute for any other formalities a Universal Copyright Convention member country would otherwise impose as a condition of copyright. A Universal Copyright Convention notice should consist of the symbol accompanied by the name of the copyright proprietor and the year of first publication of the work. To qualify for copyright protection in countries that are only members of the Universal Copyright Convention, it is necessary that works bear, in a prominent place and from the time of first publication, the copyright symbol - © - together with the name of the owner of the copyright and the year of first publication, for example: © Kaltons Internet and Technology Solicitors 2002.
However, under the Berne Convention, generally, a work first published in a Berne Union is eligible for protection in all Berne member countries. There are no special requirements like affixing the copyright symbol.
Use of the copyright symbol was significant when the US was not a member of the Berne Convention and it would only recognise copyright where the © symbol was used in accordance with the UCC. The UCC has been largely overtaken by the other treaties that do not require any formalities.
However, using the © symbol, while having little legal effect, alerts others that copyright is claimed in the material in question, and removes any argument that the user relied on an implied licence to use the work.
Source: http://www.kaltons.co.uk
Friday, December 5, 2008
Copyright Office Should Right DMCA Wrongs in Rulemaking
The Electronic Frontier Foundation (EFF) filed three exemption requests with the U.S. Copyright Office today aimed at protecting the important work of video remix artists, iPhone owners, and cell phone recyclers from legal threats under the Digital Millennium Copyright Act (DMCA).
The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. Every three years, the Copyright Office convenes a rulemaking to consider granting exemptions to the DMCA's ban on circumvention to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials.
One proposal filed by EFF is aimed at protecting the video remix culture currently thriving on Internet sites like YouTube. The filing asks for a DMCA exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial works. Hollywood takes the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose.
"Remix is what free speech looks like in the 21st century, which is why thousands of noncommercial remix videos are posted to YouTube every day," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The DMCA wasn't intended to drive fair use underground."
Another proposal requests a DMCA exemption for cell phone "jailbreaking" -- liberating iPhones and other handsets to run applications from sources other than those approved by the phone maker. Hundreds of thousands of iPhone owners have "jailbroken" their iPhones in order to use applications obtained from sources other than Apple's own iTunes "App Store."
"It's not the DMCA's job to force iPhone users to buy only Apple-approved phone applications," said von Lohmann. "The DMCA is supposed to block copyright infringement, not competition."
EFF's third proposal asks for a renewal of an exemption previously granted for unlocking cell phones so that the handsets can be used with any telecommunications carrier. Carriers have threatened cell phone unlockers under the DMCA to protect their anti-competitive business models, even though there is no copyright infringement involved in the unlocking. Instead, the digital locks on cell phones make it harder to resell, reuse, or recycle the handset.
"Millions and millions of Americans replace their cell phones every year. EFF is representing three organizations that are working to make sure the old phones don't end up in the dump, polluting our environment," said EFF Civil Liberties Director Jennifer Granick. " Also, renewing this exemption will continue to help people who want to use their phones while traveling and will promote competition among wireless carriers."
The rulemaking proceeding will accept public comments regarding proposed exemptions until the deadline of February 2, 2009. The Copyright Office will then hold hearings in Washington, DC and California in Spring 2009. The final rulemaking order will be issued in October 2009.
For more on EFF's exemption requests:
http://www.eff.org/issues/dmca-rulemaking
For more on the anti-circumvention rulemaking:
http://www.copyright.gov/1201/
The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. Every three years, the Copyright Office convenes a rulemaking to consider granting exemptions to the DMCA's ban on circumvention to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials.
One proposal filed by EFF is aimed at protecting the video remix culture currently thriving on Internet sites like YouTube. The filing asks for a DMCA exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial works. Hollywood takes the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose.
"Remix is what free speech looks like in the 21st century, which is why thousands of noncommercial remix videos are posted to YouTube every day," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The DMCA wasn't intended to drive fair use underground."
Another proposal requests a DMCA exemption for cell phone "jailbreaking" -- liberating iPhones and other handsets to run applications from sources other than those approved by the phone maker. Hundreds of thousands of iPhone owners have "jailbroken" their iPhones in order to use applications obtained from sources other than Apple's own iTunes "App Store."
"It's not the DMCA's job to force iPhone users to buy only Apple-approved phone applications," said von Lohmann. "The DMCA is supposed to block copyright infringement, not competition."
EFF's third proposal asks for a renewal of an exemption previously granted for unlocking cell phones so that the handsets can be used with any telecommunications carrier. Carriers have threatened cell phone unlockers under the DMCA to protect their anti-competitive business models, even though there is no copyright infringement involved in the unlocking. Instead, the digital locks on cell phones make it harder to resell, reuse, or recycle the handset.
"Millions and millions of Americans replace their cell phones every year. EFF is representing three organizations that are working to make sure the old phones don't end up in the dump, polluting our environment," said EFF Civil Liberties Director Jennifer Granick. " Also, renewing this exemption will continue to help people who want to use their phones while traveling and will promote competition among wireless carriers."
The rulemaking proceeding will accept public comments regarding proposed exemptions until the deadline of February 2, 2009. The Copyright Office will then hold hearings in Washington, DC and California in Spring 2009. The final rulemaking order will be issued in October 2009.
For more on EFF's exemption requests:
http://www.eff.org/issues/dmca-rulemaking
For more on the anti-circumvention rulemaking:
http://www.copyright.gov/1201/
Sunday, November 30, 2008
Basics on Copyrighting your Photographs by Diana Cooper
This article is intended on providing only the basics about copyrighting your photographs within the United States (at this time of writing, 12-11-07). No legal advice is applied. For more detailed information you can visit www.copyright.gov.
--As of March 1, 1989, copyright has been made automatic. The need to register with the Copyright Office is no longer required to provide protection. Once you create a picture, you own the copyright. A copyright notice (for example, a copyright symbol or watermark) is also no longer required to protect your photographs (excluding older works); however, many photographers continue to use to identify themselves and the date of creation.
--As a general rule, for works created on or after January 1, 1978 the copyright is legally yours throughout your life plus 70 years beyond that unless you decide to pass your rights on to another.
--Before an infringement suit may be filed in court, registration is necessary. Registered works (if registration occurs within 5 years of publication) serve as prima facie evidence (proof) of a valid copyright. Registered works may also be eligible for statutory damages and attorney's fees in successful litigation.
--If someone was to steal your photographs, they can be liable for statutory damages up to $30,000 ($150,000 if willful infringement is proven by the copyright owner) for each work infringed on and may also be liable for attorney's fees incurred by the copyright owner.
--Copyright covers both published and unpublished works.
--To register photographs you will use the Visual Arts form which you can find at http://www.copyright.gov/.
--The current fee is $45 per application. You may register a collection of photos on one application under one title.
--Registration takes effect the day all the required elements in acceptable form are received; however, it takes approximately 4 months to receive your certificate. I suggest sending your application requiring confirmation of delivery since you will not receive acknowledgment from the Copyright Office.
--You will be notified by the Copyright Office via a letter or a telephone call if further information is needed to complete your application.
--If your application is rejected, you will receive a letter explaining why.
--Works created on or after January 1, 1978, are not required to be renewed.
--Online registration is expected in the future.
--Unfortunately a copyright is not protected throughout the world. Not all, but most countries do honor each other's citizens' copyrights. You can find more information regarding this matter at www.copyright.gov/circs/circ38a.pdf.
I hope you find this information helpful but be sure to visit www.copyright.gov before deciding whether or not you should register your photographs.
Diana Cooper specializes in nature and wildlife photography. http://www.dianasphotography.com/ and http://www.cafepress.com/dianasphotos
--As of March 1, 1989, copyright has been made automatic. The need to register with the Copyright Office is no longer required to provide protection. Once you create a picture, you own the copyright. A copyright notice (for example, a copyright symbol or watermark) is also no longer required to protect your photographs (excluding older works); however, many photographers continue to use to identify themselves and the date of creation.
--As a general rule, for works created on or after January 1, 1978 the copyright is legally yours throughout your life plus 70 years beyond that unless you decide to pass your rights on to another.
--Before an infringement suit may be filed in court, registration is necessary. Registered works (if registration occurs within 5 years of publication) serve as prima facie evidence (proof) of a valid copyright. Registered works may also be eligible for statutory damages and attorney's fees in successful litigation.
--If someone was to steal your photographs, they can be liable for statutory damages up to $30,000 ($150,000 if willful infringement is proven by the copyright owner) for each work infringed on and may also be liable for attorney's fees incurred by the copyright owner.
--Copyright covers both published and unpublished works.
--To register photographs you will use the Visual Arts form which you can find at http://www.copyright.gov/.
--The current fee is $45 per application. You may register a collection of photos on one application under one title.
--Registration takes effect the day all the required elements in acceptable form are received; however, it takes approximately 4 months to receive your certificate. I suggest sending your application requiring confirmation of delivery since you will not receive acknowledgment from the Copyright Office.
--You will be notified by the Copyright Office via a letter or a telephone call if further information is needed to complete your application.
--If your application is rejected, you will receive a letter explaining why.
--Works created on or after January 1, 1978, are not required to be renewed.
--Online registration is expected in the future.
--Unfortunately a copyright is not protected throughout the world. Not all, but most countries do honor each other's citizens' copyrights. You can find more information regarding this matter at www.copyright.gov/circs/circ38a.pdf.
I hope you find this information helpful but be sure to visit www.copyright.gov before deciding whether or not you should register your photographs.
Diana Cooper specializes in nature and wildlife photography. http://www.dianasphotography.com/ and http://www.cafepress.com/dianasphotos
Leader Technologies Sues Facebook for Copyright Infringement
Leader Technologies Incorporated of Columbus, Ohio, has filed a patent infringement lawsuit against Facebook, Inc. of Palo Alto, California.
The complaint was filed in the United States District Court for the District of Delaware and alleges that Facebook infringes Leader's U.S. Patent No. 7,139,761 issued by the United States Patent and Trademark Office on November 21, 2006. The '761 Patent generally relates to a method and system for the management and storage of electronic information. Leader seeks damages and an injunction against Facebook for its willful infringement of the '761 Patent.
Leader was founded by Michael McKibben in 1997 and is a pioneer in web-based collaboration platforms. Leader has filed several patent applications, dating back to 2002, that cover its technology. "We have spent a great amount of time and effort in procuring our intellectual property," says Michael McKibben, founder of Leader and named inventor on the '761 Patent, "and have taken the steps necessary to protect our proprietary and inventive ideas."
Leader is represented by the law firms King & Spalding LLP and Potter Anderson & Corroon LLP.
The complaint was filed in the United States District Court for the District of Delaware and alleges that Facebook infringes Leader's U.S. Patent No. 7,139,761 issued by the United States Patent and Trademark Office on November 21, 2006. The '761 Patent generally relates to a method and system for the management and storage of electronic information. Leader seeks damages and an injunction against Facebook for its willful infringement of the '761 Patent.
Leader was founded by Michael McKibben in 1997 and is a pioneer in web-based collaboration platforms. Leader has filed several patent applications, dating back to 2002, that cover its technology. "We have spent a great amount of time and effort in procuring our intellectual property," says Michael McKibben, founder of Leader and named inventor on the '761 Patent, "and have taken the steps necessary to protect our proprietary and inventive ideas."
Leader is represented by the law firms King & Spalding LLP and Potter Anderson & Corroon LLP.
Sunday, November 23, 2008
Where is the Border Between Free Information and Copyright?
This article is intended on providing only the basics about copyrighting your photographs within the United States. No legal advice is applied. For more detailed information you can visit www.copyright.gov.
--As of March 1, 1989, copyright has been made automatic. The need to register with the Copyright Office is no longer required to provide protection. Once you create a picture, you own the copyright. A copyright notice (for example, a copyright symbol or watermark) is also no longer required to protect your photographs (excluding older works); however, many photographers continue to use to identify themselves and the date of creation.
--As a general rule, for works created on or after January 1, 1978 the copyright is legally yours throughout your life plus 70 years beyond that unless you decide to pass your rights on to another.
--Before an infringement suit may be filed in court, registration is necessary. Registered works (if registration occurs within 5 years of publication) serve as prima facie evidence (proof) of a valid copyright. Registered works may also be eligible for statutory damages and attorney's fees in successful litigation.
--If someone was to steal your photographs, they can be liable for statutory damages up to $30,000 ($150,000 if willful infringement is proven by the copyright owner) for each work infringed on and may also be liable for attorney's fees incurred by the copyright owner.
--Copyright covers both published and unpublished works.
--To register photographs you will use the Visual Arts form which you can find at www.copyright.gov.
--The current fee is $45 per application. You may register a collection of photos on one application under one title.
--Registration takes effect the day all the required elements in acceptable form are received; however, it takes approximately 4 months to receive your certificate. I suggest sending your application requiring confirmation of delivery since you will not receive acknowledgment from the Copyright Office.
--You will be notified by the Copyright Office via a letter or a telephone call if further information is needed to complete your application.
--If your application is rejected, you will receive a letter explaining why.
--Works created on or after January 1, 1978, are not required to be renewed.
--Online registration is expected in the future.
--Unfortunately a copyright is not protected throughout the world. Not all, but most countries do honor each other's citizens' copyrights. You can find more information regarding this matter at www.copyright.gov/circs/circ38a.pdf.
I hope you find this information helpful but be sure to visit www.copyright.gov before deciding whether or not you should register your photographs.
About the Author:
Diana Cooper specializes in nature and wildlife photography. http://www.dianasphotography.com and http://www.cafepress.com/dianasphotos
--As of March 1, 1989, copyright has been made automatic. The need to register with the Copyright Office is no longer required to provide protection. Once you create a picture, you own the copyright. A copyright notice (for example, a copyright symbol or watermark) is also no longer required to protect your photographs (excluding older works); however, many photographers continue to use to identify themselves and the date of creation.
--As a general rule, for works created on or after January 1, 1978 the copyright is legally yours throughout your life plus 70 years beyond that unless you decide to pass your rights on to another.
--Before an infringement suit may be filed in court, registration is necessary. Registered works (if registration occurs within 5 years of publication) serve as prima facie evidence (proof) of a valid copyright. Registered works may also be eligible for statutory damages and attorney's fees in successful litigation.
--If someone was to steal your photographs, they can be liable for statutory damages up to $30,000 ($150,000 if willful infringement is proven by the copyright owner) for each work infringed on and may also be liable for attorney's fees incurred by the copyright owner.
--Copyright covers both published and unpublished works.
--To register photographs you will use the Visual Arts form which you can find at www.copyright.gov.
--The current fee is $45 per application. You may register a collection of photos on one application under one title.
--Registration takes effect the day all the required elements in acceptable form are received; however, it takes approximately 4 months to receive your certificate. I suggest sending your application requiring confirmation of delivery since you will not receive acknowledgment from the Copyright Office.
--You will be notified by the Copyright Office via a letter or a telephone call if further information is needed to complete your application.
--If your application is rejected, you will receive a letter explaining why.
--Works created on or after January 1, 1978, are not required to be renewed.
--Online registration is expected in the future.
--Unfortunately a copyright is not protected throughout the world. Not all, but most countries do honor each other's citizens' copyrights. You can find more information regarding this matter at www.copyright.gov/circs/circ38a.pdf.
I hope you find this information helpful but be sure to visit www.copyright.gov before deciding whether or not you should register your photographs.
About the Author:
Diana Cooper specializes in nature and wildlife photography. http://www.dianasphotography.com and http://www.cafepress.com/dianasphotos
Thursday, November 20, 2008
Where is the Border Between Free Information and Copyright?
With the explosion of the global internet and millions of websites begging for content information, there arises the question of just where is the border between free information and copyright? Research today is a snap, or rather, a query set into a browser followed by "enter", and tens or hundreds of thousands, even millions of related information websites appear. Just click and presto, you have information on your screen. But, is it free or is it copyrighted?
For most cases, information on a website is copyrighted. You can scroll down to the footer of most websites and find a copyright notice, or there may be a more visible warning posted. Some even have small banners for protection services like CopyScape on their website pages. Owners can check with this type of service and instantly see if any information contained on their website is appearing elsewhere, and from there they can pursue the copyright issue with offending websites.
There are services available that provide original written material for website content. Care is taken at those sites to check for any text infringements before content is released. This makes sense, because information production involves, time, talent, money, and ideas. It would be very wrong to just steal someone else's work, same as stealing physical property. There are principles involved, unless a person is totally unscrupulous and wants to run the risk of lawsuits and possible fines and/or jail time.
Let's look at definitions to determine where is the border between free information and copyright. Information is of three types: free, open, and copyrighted. Free information is available to be freely used, changed, altered, derived from, and there is no penalty for using it. Open information is available to be used, and free, but it cannot be altered or changed. Copyrighted information is not free and available to use except with specific authorization for use by a licensed or permitted person or business. Authors can post a notice that a copyright work of their own may be reproduced or copied.
Holders of copyrights have monopoly control over their works. Information that is in the public domain is considered free to use however a user wants. If a work has been copyrighted and that term of copyright expires, putting it into the free public domain category, it still can become copyrighted again if the laws change. This would affect all derivitive works from it also.
A copyright is a legal term, marked on works with the copyright symbol, a "c" within a small circle. It can be for a period of time and is important to protect monetary rights of the copyright holder on that work. Usually this refers to creative or written works, but can be to other ideas. It is a term for Constitutional protection in the US for original works published or unpublished, and is honored by many other countries, but not all. Besides the written word, it protects music, songs, computer software and architecture. Before using content, be sure it is free, not copyrighted. Additional copyright information is available online at the US Copyright Office.
For more information on copyright, visit http://www.copyrightmicroblog.com/
For most cases, information on a website is copyrighted. You can scroll down to the footer of most websites and find a copyright notice, or there may be a more visible warning posted. Some even have small banners for protection services like CopyScape on their website pages. Owners can check with this type of service and instantly see if any information contained on their website is appearing elsewhere, and from there they can pursue the copyright issue with offending websites.
There are services available that provide original written material for website content. Care is taken at those sites to check for any text infringements before content is released. This makes sense, because information production involves, time, talent, money, and ideas. It would be very wrong to just steal someone else's work, same as stealing physical property. There are principles involved, unless a person is totally unscrupulous and wants to run the risk of lawsuits and possible fines and/or jail time.
Let's look at definitions to determine where is the border between free information and copyright. Information is of three types: free, open, and copyrighted. Free information is available to be freely used, changed, altered, derived from, and there is no penalty for using it. Open information is available to be used, and free, but it cannot be altered or changed. Copyrighted information is not free and available to use except with specific authorization for use by a licensed or permitted person or business. Authors can post a notice that a copyright work of their own may be reproduced or copied.
Holders of copyrights have monopoly control over their works. Information that is in the public domain is considered free to use however a user wants. If a work has been copyrighted and that term of copyright expires, putting it into the free public domain category, it still can become copyrighted again if the laws change. This would affect all derivitive works from it also.
A copyright is a legal term, marked on works with the copyright symbol, a "c" within a small circle. It can be for a period of time and is important to protect monetary rights of the copyright holder on that work. Usually this refers to creative or written works, but can be to other ideas. It is a term for Constitutional protection in the US for original works published or unpublished, and is honored by many other countries, but not all. Besides the written word, it protects music, songs, computer software and architecture. Before using content, be sure it is free, not copyrighted. Additional copyright information is available online at the US Copyright Office.
For more information on copyright, visit http://www.copyrightmicroblog.com/
Sunday, November 16, 2008
Worthiness Of Copyright Law In Today's Electronic "iWorld"
On October 29th the B.C. Legal Institute challenged two teams to debate the worthiness of copyright law in today's electronic "iWorld". Moderated by Rick Cluff of CBC's Early Edition, the teams' light-hearted arguments focused mainly on the exchange of digital information.
Karen MacDonald, of Smart and Biggar and Professor Joost Blom, from the University of British Columbia, held that copyright law will remain an important issue because artists will continually need to be protected and compensated for their creative works.
While their arguments were strong, they narrowly lost to the team of Tony Wilson of Boughton Law Corporation and Professor Robert Howell, from the University of Victoria, who held that with current laws, publishers win while creators and artists lose, and unsuspecting parents are being turned into "pirates" on the internet as they post pictures of their children dancing to music they haven't licensed.
Teenagers, they argued, are most affected and forced into "piracy" as they experiment with on-line video and music rather than being encouraged to push the envelope of today's cultural mediums.
The first ever Great Debate trophy was presented to Mr. Wilson and Professor Howell. Afterwards Mr. Wilson commented that, "Of course copyright still has its place, I am, after all, a copyright lawyer, but it was fun to examine a world without it. Reviewing old ideas with new perspectives and open minds allows for progression in any world."
Karen MacDonald, of Smart and Biggar and Professor Joost Blom, from the University of British Columbia, held that copyright law will remain an important issue because artists will continually need to be protected and compensated for their creative works.
While their arguments were strong, they narrowly lost to the team of Tony Wilson of Boughton Law Corporation and Professor Robert Howell, from the University of Victoria, who held that with current laws, publishers win while creators and artists lose, and unsuspecting parents are being turned into "pirates" on the internet as they post pictures of their children dancing to music they haven't licensed.
Teenagers, they argued, are most affected and forced into "piracy" as they experiment with on-line video and music rather than being encouraged to push the envelope of today's cultural mediums.
The first ever Great Debate trophy was presented to Mr. Wilson and Professor Howell. Afterwards Mr. Wilson commented that, "Of course copyright still has its place, I am, after all, a copyright lawyer, but it was fun to examine a world without it. Reviewing old ideas with new perspectives and open minds allows for progression in any world."
Thursday, November 13, 2008
Don't be Fooled by the Lack of a Copyright Notice
We are all familiar with copyright notices. They appear on web sites, compact discs, books, virtually everything that is protected by copyright laws.They usually contain the letter "c" inside of a circle with wording such as "All Rights Reserved" following. Even though most everyone is familiar with these notices, there is a great deal of confusion about the purpose of a copyright notice and what the failure to include such a notice may mean to the author of a work. Much of this confusion arises from a relatively recent change in United States Copyright Law.
Under past United States Copyright Law, it was necessary to place the copyright notice on every item containing a protected work. Failure to include a copyright notice on a substantial number of published items could lead to loss of copyright protection. In effect, the work would lapse into the public domain because the failure to include a copyright notice was deemed to be a waiver of copyright protection. About 15 years ago, the United States amended the copyright laws to come into conformance with the Berne Convention on International Copyrights and the laws of many foreign countries. The end result is that failure to include a copyright notice on a published work does not any longer lead to loss of copyright protection.
Even with this change of law, there are still very good reasons to include a copyright notice when you publish a work of original authorship. including the notice asserts to the world that the work is yours and that you intend to enforce your rights. It also helps guard against a defense of innocent infringement or an arguement that the infringement was not intentional. Under the copyright laws, intentional infringement results in much higher statutory penalties.
The end result of this change in law is that it is no longer safe to assume that a work that does not include a copyright notice is not protected under the copyright laws. The copyright laws protect all original works of authorship regardless of whether they contain copyright notices or have been registered with the copyright office. There can be differences in the level of damages available if a notice is not included or a registration has not been affected. Still, misappropriation of a work of original work of authorship is still considered copyright infringements and damages would be recoverable against hte misappropriating party.
Given this fact, it is wise to assume that everything you run across on the Internet is copyright protected. You should refrain from publishing or using these items unless you obtain a license from the author. If you cannot find out who the author is so not assume that they are not out there and will not come after you if you use their material. The inconvenience and potential legal liability are too substantial and could have huge adverse impacts on your business.
About the Author:
Jon Fischer is the owner of the following Legal and Business Sites. Offering legal document packages for online businesses, IT companies, corporate, real estate and estate planning packages.
Visit the following sites:
http://www.e-lawresources.com/
http://www.automated-incorporating.com/
- Incorporation and Bylaws
http://www.technologyforms.com/
Sunday, November 9, 2008
Derek Andrew V. Poof Apparel: No Statutory Damages for Copyright Infringement That Began Pre-registration
Derek Andrew Inc. ("Andrew") and Poof Apparel Corp. ("Poof") are both apparel companies. Andrew's "Twisted Heart" clothing line is sold in high-end department stores; it is identified by a hang tag featuring a trademarked logo that was first developed and used in 2003. Andrew registered the tag with the U.S. Copyright Office on Jun 15, 2005. Poof, which sells clothing to lower-end retail stores, sold some clothing with a hang tag nearly identical to Andrew's tag, except with the word "Poof" in place of the words "Twisted Heart."
Andrew first discovered the infringement on May 9, 2005 and sent Poof a cease and desist letter on May 2005. Poof twice indicated that it would comply with Andrew's demands, but failed to remove the garments with the infringing hang-tag from stores. Andrew filed a lawsuit against Poof for copyright and trademark infringement and Poof defaulted. The court denied Poof's motion to open the default due to Poof's failure to show "good cause."
At the bench trial on damages, the district court determined that, as to the claims brought under the Lanham Act and state laws, disgorgement was the proper remedy and it awarded Andrew $685,307.70, representing Poof's profits from the garments bearing the infringing hang-tag. The court also permanently enjoined Poof from infringing on Andrew's hang-tags. As to the copyright claims, the court awarded Andrew statutory damages, pursuant to 15 U.S.C. sections 504 (a) and (c), of $15,000. Further, based on its determination that this was an "exceptional case," the court awarded Andrew $296,090.50 in attorneys' fees and $6,678.60 in costs. Poof appealed only the statutory damages award and the attorneys' fees award.
Statutory Damages in the Copyright Act and the Limitations of Section 412(2).
A copyright owner can take action to protect his copyright whether or not he has registered that copyright with the U.S. Copyright office. The government wants people to register their copyrights, however. In order to encourage registration, Congress provided registered copyright owners with an added benefit. Section 504 of the U.S. Copyright Act gives registered copyright owners a damages option when they sue for infringement -- they can sue for actual damages or opt for "statutory damages" instead. (Unregistered copyright owners can only sue for actual damages). Statutory damages can range $200 to $150,000, depending on various factors, particularly whether the infringement was willful or unintentional. 17 U.S.C. section 504(c). Because actual damages are so often difficult to prove in copyright infringement cases, registered copyright owners often opt for statutory damages instead.
But the statutory damages option is limited by Section 412(2), which bars recovery of statutory damages for "any infringement of copyright commenced after first publication of the work and before the effective date of registration, unless such registration is made within three months after first publication of the work." 17 U.S.C. section 412(2). The purpose of this provision, of course, is to encourage prompt copyright registration. Court have determined that this section also encourages potential infringers to check the Copyright Office's database before taking action. See, e.g. Johnson v. Jones, 149 F.3d 494, 505 (6th Cir. 1998).
Andrew v. Poof Apparel -- Applying 412(2) to a Case of Ongoing Infringement
In Andrew v. Poof Apparel, the Ninth Circuit addressed a question that had already been addressed by several other circuit courts: How does the court define "commenced" under Section 412(2)? Put another way, does section 412 bar "an award of statutory damages for post-registration infringements when the initial act of infringement occurred prior to the effective copyright registration date"? Andrew v. Poor Apparel, 528 F.3d 696, 700 (9th Cir. 2008)
In the Andrew case, Poof Apparel used the infringing hang-tags both before and after Andrew's registration of the copyright. The District Court had apparently determined that the post-registration hang-tags uses "were separate and distinct infringments from the pre-registration infringment." Id. at 699.
The Ninth Circuit followed the lead of other federal courts[1] and reversed the District Court's finding. The court quoted the following excerpt from Singh v. Famous Overseas Inc., 680 F. Supp. 533, 535 (E.D.N.Y. 1988):
Each separate act of infringement is, of course, an "infringment" within the meaning of the statute, and in a literal sense perhaps such an act might be said to have "commenced" (and ended) on the day of its perpetration [,]... it would be peculiar if not inaccurate to use the word "commenced" to describe a single act. That verb generally presupposes as
a subject some kind of activity that begins at one time and continues or reoccurs thereafter. [2]
The Andrew court determined that the District Court's interpretation would "defeat the dual incentives of section 412" -- namely, to encourage prompt copyright registration and to encourage potential infringers to check the database before acting. 528 F.3d at 700. Accordingly, the court held that "THE FIRST ACT OF INFRINGEMENT in a series of ongoing infringements of the same kind marks the commencement of one continuing infringement under section 412." Id. at 701 (emphasis in original).
The court determined that Poof's pre-registration and post-registration hang-tags were essentially identical, other than being hung on different garments. Because Poof began the infringing activity before the date of registration, which was nearly two years after Andrew's first use, and continued it thereafter, the exception of 412(2) applied and Andrew was not entitled to statutory damages. The court reversed the $15,000 statutory damages award.
The Finding of Willful Infringement Upon Default not Inappropriate
Poof Apparel disputed the award of attorneys' fees on two grounds: (1) Andrew's inability to get statutory damages under the Copyright Act similarly prevented an award of attorneys' fees; and (2) the attorneys' fees award was not appropriate under the Lanham Act.
The court first addressed the propriety of the award, outlining that the Lanham Act does allow for an award of attorneys' fees and costs in "exceptional" cases of trademark infringement, which courts have construed as "malicious, fraudulent, deliberate or willful." 528 F.3d at 702 (citing Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1023( 9th Cir. 2002)). In this case, the complaint expressly alleged willful infringement; the entry of default judgement against Poof Apparel constitutes a determination that those allegations are true. Id. The court's determination of willful infringement was sufficient to support an award of attorneys' fees under this provision of the Lanham Act.
However, the Ninth Circuit did agree with Poof Apparel as to the Copyright Act claim. Because Andrews did not promptly register its copyright so as to qualify for statutory damages, it similarly could not qualify for an award of attorneys' fees under that cause of action. Id.
Because the District Court had not stated which portion of the attorneys' fees award would be attributable to the Lanham Act violation versus the Copyright Act violation, the Circuit Court remanded the issue to the District Court to recalculate the fees award to delete any amounts attributable to the Copyright Act claims.
The Lesson -- Prompt Copyright Registration Helps Complete Brand Protection
The growing line of decisions like Andrew should alert brand owners to the critical need to register all copyrights promptly. Prompt registration puts potential infringers on notice of the owner's rights and claims. More importantly, as Derek Andrew learned, comprehensive brand protection requires both trademark and copyright registration to ensure that the maximum remedies are available to combat infringement.
ENDNOTES
[1] Bouchat v. Bon-Ton Dept. Stores Inc., 506 F.3d 315, 330 (4th Cir. 2007); Troll Co. v. Uneeda Doll Co., 483 F.3d 150, 158 (2nd Cir. 2007); Mason v. Montgomery Data Inc., 741 F. Supp. 1282, 1286 (S.D. Tex. 1990).
[2] The court also referenced the following cases in support of this same proposition: Parfums Givenchy Inc. v. C&C Beauty Sales Inc., 832 F. Supp. 1378, 1394 (C.D. Cal. 1993); Mason v. Montgomery Data Inc., 741 F. Supp. 1282, 1286 (S.D. Tex. 1990).
About the Author:
Ms. Campos is an Associate at http://www.zuberlaw.com/Zuber & Taillieu LLP, where she specializes in entertainment and intellectual property law. She earned a J.D. from Stanford University School of Law, and B.A.'s in History and Ethinicity Race & Migration from Yale University. She graduated both universities with honors.
Andrew first discovered the infringement on May 9, 2005 and sent Poof a cease and desist letter on May 2005. Poof twice indicated that it would comply with Andrew's demands, but failed to remove the garments with the infringing hang-tag from stores. Andrew filed a lawsuit against Poof for copyright and trademark infringement and Poof defaulted. The court denied Poof's motion to open the default due to Poof's failure to show "good cause."
At the bench trial on damages, the district court determined that, as to the claims brought under the Lanham Act and state laws, disgorgement was the proper remedy and it awarded Andrew $685,307.70, representing Poof's profits from the garments bearing the infringing hang-tag. The court also permanently enjoined Poof from infringing on Andrew's hang-tags. As to the copyright claims, the court awarded Andrew statutory damages, pursuant to 15 U.S.C. sections 504 (a) and (c), of $15,000. Further, based on its determination that this was an "exceptional case," the court awarded Andrew $296,090.50 in attorneys' fees and $6,678.60 in costs. Poof appealed only the statutory damages award and the attorneys' fees award.
Statutory Damages in the Copyright Act and the Limitations of Section 412(2).
A copyright owner can take action to protect his copyright whether or not he has registered that copyright with the U.S. Copyright office. The government wants people to register their copyrights, however. In order to encourage registration, Congress provided registered copyright owners with an added benefit. Section 504 of the U.S. Copyright Act gives registered copyright owners a damages option when they sue for infringement -- they can sue for actual damages or opt for "statutory damages" instead. (Unregistered copyright owners can only sue for actual damages). Statutory damages can range $200 to $150,000, depending on various factors, particularly whether the infringement was willful or unintentional. 17 U.S.C. section 504(c). Because actual damages are so often difficult to prove in copyright infringement cases, registered copyright owners often opt for statutory damages instead.
But the statutory damages option is limited by Section 412(2), which bars recovery of statutory damages for "any infringement of copyright commenced after first publication of the work and before the effective date of registration, unless such registration is made within three months after first publication of the work." 17 U.S.C. section 412(2). The purpose of this provision, of course, is to encourage prompt copyright registration. Court have determined that this section also encourages potential infringers to check the Copyright Office's database before taking action. See, e.g. Johnson v. Jones, 149 F.3d 494, 505 (6th Cir. 1998).
Andrew v. Poof Apparel -- Applying 412(2) to a Case of Ongoing Infringement
In Andrew v. Poof Apparel, the Ninth Circuit addressed a question that had already been addressed by several other circuit courts: How does the court define "commenced" under Section 412(2)? Put another way, does section 412 bar "an award of statutory damages for post-registration infringements when the initial act of infringement occurred prior to the effective copyright registration date"? Andrew v. Poor Apparel, 528 F.3d 696, 700 (9th Cir. 2008)
In the Andrew case, Poof Apparel used the infringing hang-tags both before and after Andrew's registration of the copyright. The District Court had apparently determined that the post-registration hang-tags uses "were separate and distinct infringments from the pre-registration infringment." Id. at 699.
The Ninth Circuit followed the lead of other federal courts[1] and reversed the District Court's finding. The court quoted the following excerpt from Singh v. Famous Overseas Inc., 680 F. Supp. 533, 535 (E.D.N.Y. 1988):
Each separate act of infringement is, of course, an "infringment" within the meaning of the statute, and in a literal sense perhaps such an act might be said to have "commenced" (and ended) on the day of its perpetration [,]... it would be peculiar if not inaccurate to use the word "commenced" to describe a single act. That verb generally presupposes as
a subject some kind of activity that begins at one time and continues or reoccurs thereafter. [2]
The Andrew court determined that the District Court's interpretation would "defeat the dual incentives of section 412" -- namely, to encourage prompt copyright registration and to encourage potential infringers to check the database before acting. 528 F.3d at 700. Accordingly, the court held that "THE FIRST ACT OF INFRINGEMENT in a series of ongoing infringements of the same kind marks the commencement of one continuing infringement under section 412." Id. at 701 (emphasis in original).
The court determined that Poof's pre-registration and post-registration hang-tags were essentially identical, other than being hung on different garments. Because Poof began the infringing activity before the date of registration, which was nearly two years after Andrew's first use, and continued it thereafter, the exception of 412(2) applied and Andrew was not entitled to statutory damages. The court reversed the $15,000 statutory damages award.
The Finding of Willful Infringement Upon Default not Inappropriate
Poof Apparel disputed the award of attorneys' fees on two grounds: (1) Andrew's inability to get statutory damages under the Copyright Act similarly prevented an award of attorneys' fees; and (2) the attorneys' fees award was not appropriate under the Lanham Act.
The court first addressed the propriety of the award, outlining that the Lanham Act does allow for an award of attorneys' fees and costs in "exceptional" cases of trademark infringement, which courts have construed as "malicious, fraudulent, deliberate or willful." 528 F.3d at 702 (citing Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1023( 9th Cir. 2002)). In this case, the complaint expressly alleged willful infringement; the entry of default judgement against Poof Apparel constitutes a determination that those allegations are true. Id. The court's determination of willful infringement was sufficient to support an award of attorneys' fees under this provision of the Lanham Act.
However, the Ninth Circuit did agree with Poof Apparel as to the Copyright Act claim. Because Andrews did not promptly register its copyright so as to qualify for statutory damages, it similarly could not qualify for an award of attorneys' fees under that cause of action. Id.
Because the District Court had not stated which portion of the attorneys' fees award would be attributable to the Lanham Act violation versus the Copyright Act violation, the Circuit Court remanded the issue to the District Court to recalculate the fees award to delete any amounts attributable to the Copyright Act claims.
The Lesson -- Prompt Copyright Registration Helps Complete Brand Protection
The growing line of decisions like Andrew should alert brand owners to the critical need to register all copyrights promptly. Prompt registration puts potential infringers on notice of the owner's rights and claims. More importantly, as Derek Andrew learned, comprehensive brand protection requires both trademark and copyright registration to ensure that the maximum remedies are available to combat infringement.
ENDNOTES
[1] Bouchat v. Bon-Ton Dept. Stores Inc., 506 F.3d 315, 330 (4th Cir. 2007); Troll Co. v. Uneeda Doll Co., 483 F.3d 150, 158 (2nd Cir. 2007); Mason v. Montgomery Data Inc., 741 F. Supp. 1282, 1286 (S.D. Tex. 1990).
[2] The court also referenced the following cases in support of this same proposition: Parfums Givenchy Inc. v. C&C Beauty Sales Inc., 832 F. Supp. 1378, 1394 (C.D. Cal. 1993); Mason v. Montgomery Data Inc., 741 F. Supp. 1282, 1286 (S.D. Tex. 1990).
About the Author:
Ms. Campos is an Associate at http://www.zuberlaw.com/Zuber & Taillieu LLP, where she specializes in entertainment and intellectual property law. She earned a J.D. from Stanford University School of Law, and B.A.'s in History and Ethinicity Race & Migration from Yale University. She graduated both universities with honors.
Thursday, November 6, 2008
Law of the Student Press Addresses 21st Century Media Issues
In preparation for its 35-year anniversary celebration, the Student Press Law Center has released the third edition of Law of the Student Press, providing an important resource book for student journalists.The Law of the Student Press was first published in 1984 and last updated in 1994, making this the first substantive update in 14 years. The book, which addresses legal issues regarding all forms of media, is authored by the legal staff of the Student Press Law Center and a nationwide team of media law experts.
"Obviously, a lot has transpired over the past 14 years regarding student journalists' rights," said Frank LoMonte, an attorney who is the Executive Director of the Student Press Law Center.
"New court rulings, new statutes, and the emergence of new media have all drastically changed the legal landscape - unfortunately, sometimes not for the better. Law of the Student Press explains what these changes mean and how they impact high school and college journalists, their advisers, and those who have an interest in student journalism. The book can be used for classroom teaching, but it is also meant to be used as a practical reference guide for journalists who need quick answers to legal questions," LoMonte said.
The Student Press Law Center, a nonprofit organization that will mark its 35th anniversary next year, is the authoritative source on student press law. The center is based in the Washington, D.C., area and assists thousands of student journalists nationwide each year through its attorney hotline and its website, www.splc.org.
At 416 pages and 20 chapters, Law of the Student Press addresses issues such as:
Online publishing of off-campus speech, such as comments made on personal websites (MySpace, Facebook, etc.), that is sparking a new generation of free speech litigation.
The latest on how the Supreme Court's Morse v. Frederick case ("Bong Hits 4 Jesus") is impacting student First Amendment rights, and practical tips on responding to a censorship threat.
A step-by-step description of the new copyright electronic filing system, and a detailed discussion about when the use of someone else's online content can safely qualify as a "fair use."
In addition, Law of the Student Press updates traditional media issues such as libel, defamation, invasion of privacy and obscenity. It specifically addresses the different legal standards that may apply between college and high-school media, as well as between public and private schools.
As a benefit to official members of the Student Press Law Center, work is underway to post a Wiki-version of Law of the Student Press in a secured section on the center's Web site, which will be updated as new laws are enacted and court rulings are issued. Members will be given a password to access the site.
Information on ordering Law of the Student Press can be found at http://www.splc.org/losp3.
Sunday, November 2, 2008
Copyright Procedures; Quick and Easy by Lyle Cochran
The digital age of cyber publishing and intellectual property raises many questions about copyrighting. If you have never published anything in your life, you still hold copyrights. If you do publish your work, how do you know your copyrights are in place? Copyrighting is not complicated or difficult, there is a quick and easy way to copyright any creative material you produce.
Copyright law in the United States is extremely generous toward the creators and owners of new works. Legal copyright protection is in effect immediately and automatically upon the creation of any "original work of authorship" that is "fixed in any tangible medium of expression."
In other words, a copyright notice is not necessary for your work to comply with U.S. Copyright law. For example, when authors, webmasters, amateur writers or anyone else submit creative material of any kind for publishing, that creative material is automatically copyrighted. No copyright notice is necessary to be legally binding.
The laws are so generous in fact that the notes or scribbles you mindlessly make while speaking on the phone are considered copyrighted material, even if you wad it up and toss it in the trash at the end of the call. This does not mean that copyrighting should be taken lightly. There are significant legal advantages to using a copyright notice.
Copyrights can also be given away in part or in whole and must be agreed to in writing. The details of this are way beyond the scope of this writing. All authors and publishers have taken part in copyright agreements knowingly or unknowingly.
Quick and Easy Copyrighting:
The conventional copyright notice consists of 3 elements. The the word "copyright" or the copyright symbol, the year, and the name of the copyright owner.
Copyright © 2006 [Your Name or Company]
To comply with current copyright law and to copyright any computer generated creative materials follow this formula. First, add the copyright notice as described above to the end of the document. When you have finished editing, save your document as a file.
Finally, print the complete document with the title or file name and the current date. Set these to be printed in your printer settings or use the header and footer options of your text editor. Optionally you can simply type the title and date along with your copyright notice manually.
For example:
Copyright © 2006 Lyle Cochran
Copyright Procedures, Quick and Easy, July, 19, 2006
The printed hard copy becomes your Master Document. This document should be protected at all cost as it is proof that you are the author of the created material.
Other medium:
If your creative material is on some fixed and tangible medium other than computer, your hand written signature and date is usually enough copyright protection until you can apply for copyright.
Summary:
I know that the procedure outlined here sounds too easy, but it is the procedure recommended by the U. S. Copyright Office. This short procedure is valid and will stand on its own in litigation. Remember that the original date is key and a hard copy adds considerable weight to ownership.
If you wish to make your copyright bullet proof, you can begin copyright procedures online at the United States Copyright Office. ( http://www.copyright.gov/ )
Quotes Resource: http://www.copyright.gov/
About the Author:
Lyle Cochran is a PC technician with over 10 years experience and webmaster of Cheap Computer Solutions, where you can learn the secret to finding cheap computer hardware parts and retailers online. The number one site for cheap computer how-to shopping guides. Download your free Cheap Computer Parts Organizer now.
Copyright law in the United States is extremely generous toward the creators and owners of new works. Legal copyright protection is in effect immediately and automatically upon the creation of any "original work of authorship" that is "fixed in any tangible medium of expression."
In other words, a copyright notice is not necessary for your work to comply with U.S. Copyright law. For example, when authors, webmasters, amateur writers or anyone else submit creative material of any kind for publishing, that creative material is automatically copyrighted. No copyright notice is necessary to be legally binding.
The laws are so generous in fact that the notes or scribbles you mindlessly make while speaking on the phone are considered copyrighted material, even if you wad it up and toss it in the trash at the end of the call. This does not mean that copyrighting should be taken lightly. There are significant legal advantages to using a copyright notice.
Copyrights can also be given away in part or in whole and must be agreed to in writing. The details of this are way beyond the scope of this writing. All authors and publishers have taken part in copyright agreements knowingly or unknowingly.
Quick and Easy Copyrighting:
The conventional copyright notice consists of 3 elements. The the word "copyright" or the copyright symbol, the year, and the name of the copyright owner.
Copyright © 2006 [Your Name or Company]
To comply with current copyright law and to copyright any computer generated creative materials follow this formula. First, add the copyright notice as described above to the end of the document. When you have finished editing, save your document as a file.
Finally, print the complete document with the title or file name and the current date. Set these to be printed in your printer settings or use the header and footer options of your text editor. Optionally you can simply type the title and date along with your copyright notice manually.
For example:
Copyright © 2006 Lyle Cochran
Copyright Procedures, Quick and Easy, July, 19, 2006
The printed hard copy becomes your Master Document. This document should be protected at all cost as it is proof that you are the author of the created material.
Other medium:
If your creative material is on some fixed and tangible medium other than computer, your hand written signature and date is usually enough copyright protection until you can apply for copyright.
Summary:
I know that the procedure outlined here sounds too easy, but it is the procedure recommended by the U. S. Copyright Office. This short procedure is valid and will stand on its own in litigation. Remember that the original date is key and a hard copy adds considerable weight to ownership.
If you wish to make your copyright bullet proof, you can begin copyright procedures online at the United States Copyright Office. ( http://www.copyright.gov/ )
Quotes Resource: http://www.copyright.gov/
About the Author:
Lyle Cochran is a PC technician with over 10 years experience and webmaster of Cheap Computer Solutions, where you can learn the secret to finding cheap computer hardware parts and retailers online. The number one site for cheap computer how-to shopping guides. Download your free Cheap Computer Parts Organizer now.
Sunday, October 26, 2008
Copyright Controversy on YouTube Creates Unlikely 'Guitar Heroes'
A legal dispute between two major record labels and an upstart guitar duo has helped redefine how music is now taught around the world.It began two years ago when laid-back surfer Tim Gilberg and San Diego garage band rocker David Taub caught the ire of two major record labels after teaching viewers how to play popular songs on the video website YouTube.
Teaching favorite songs in a fun, easy-to-learn style that attracted a large worldwide audience, the pair was forced to remove more than 100 videos from their YouTube channel because of the Digital Millennium Copyright Act (DMCA), a United States copyright law.
Not to be deterred, Gilberg and Taub, who had grown their collaboration from a garage studio lark to the creation of Next Level Guitar Inc., decided to form partnerships with the publishers rather than do battle in the sometimes gray area of copyright law. Gilberg procured licensing rights to reproduce many of the hit songs found in the popular Guitar Hero(R) & RockBand(R) games in DVD format.
"Even though we felt teaching popular songs for free on YouTube would benefit the original artists, a few labels felt otherwise," said Gilberg. "Moving forward in the last year, though, we have produced over 200 additional free guitar lessons for our YouTube fans, all copyright-free."
The guitar lesson DVDs include some of the most popular songs requested by guitar students. They include: "Sweet Home Alabama" and "Free Bird" by Lynyrd Skynyrd, "Black Magic Woman," "La Grange" by ZZ Top, "Barracuda," "Detroit Rock City" by KISS, "Smoke on The Water," "Dust in the Wind," by Kansas, "You Really Got Me," "More Than a Feeling" by Boston, "American Pie," and "I Don't Wanna Miss a Thing" (a No. 1 smash by Aerosmith).
Taub and Gilberg's innovative approach to teaching popular guitar songs is a perfect fit for the growing number of visually orientated video gamers.
No music theory is needed to play Billboard Top 40 guitar hits. By using multiple camera angles, along with simple, step-by-step guidance from the instructors, even beginning guitar students quickly gain the ability to strum their favorite tunes.
When Guitar Hero(R) & RockBand(R) game fanatics decide to make the jump to real instruments, they now have a less expensive, more effective path than traditional instruction. NextLevelGuitar.com, is the ultimate online destination for guitar lessons and guitar lesson DVDs. NextLevelGuitar.com allows students to choose from a broad spectrum of guitar styles, including rock, blues, jazz, metal, fingerstyle and reggae.
Website: Next Level Guitar (http://www.nextlevelguitar.com/)
Friday, October 24, 2008
Cambridge University Press to Deliver Copyright Permissions Online
Cambridge Journals, a division of Cambridge University Press, has selected Copyright Clearance Center's Rightslink®, the most widely used online content licensing service, to provide its readers a fast and easy way to obtain copyright permissions to share and distribute published materials directly from content pages online.
Cambridge University Press, founded in 1534, is one of the world's largest and most respected academic publishers. Cambridge publishes more than 230 journals and 2,500 new books each year.
Rightslink will help Cambridge's Rights and Permissions team better manage the growing quantity and complexity of permissions requests. By automating many of the standard processes and identifying those requests that need personal attention, Rightslink helps improve customer service and satisfaction. Cambridge customers can access Rightslink and order permissions directly from "Cambridge Journals Online", the company's publishing and delivery platform. Most licenses will be processed and granted immediately.
"Rightslink will play a significant role in our customer service strategy in this area," said Simon Ross, Director, Cambridge Journals. "It allows customers to get permissions faster and relieves our staff from processing and managing the high-volume of standard requests we receive. This will allow them to focus on expediting the higher-revenue requests. Of course we are anticipating increased permissions revenues, and we expect to see the benefit from Rightslink immediately."
Cambridge joins a growing list of the world's leading publishers that have selected Rightslink for online permissions and reprint ordering. These include the University of Chicago Press, Elsevier, Oxford University Press, Nature Publishing Group, Springer and Taylor & Francis.
"Publishers have found that Rightslink helps them to grow revenue, improve customer service and increase operational efficiencies," said Bob Weiner, Senior Vice President of Licensing at CCC. "Content users also are very drawn to the service as it dramatically simplifies the permission and reprint process. In short, making the process faster and easier for the customer increases revenue."
Cambridge University Press, founded in 1534, is one of the world's largest and most respected academic publishers. Cambridge publishes more than 230 journals and 2,500 new books each year.
Rightslink will help Cambridge's Rights and Permissions team better manage the growing quantity and complexity of permissions requests. By automating many of the standard processes and identifying those requests that need personal attention, Rightslink helps improve customer service and satisfaction. Cambridge customers can access Rightslink and order permissions directly from "Cambridge Journals Online", the company's publishing and delivery platform. Most licenses will be processed and granted immediately.
"Rightslink will play a significant role in our customer service strategy in this area," said Simon Ross, Director, Cambridge Journals. "It allows customers to get permissions faster and relieves our staff from processing and managing the high-volume of standard requests we receive. This will allow them to focus on expediting the higher-revenue requests. Of course we are anticipating increased permissions revenues, and we expect to see the benefit from Rightslink immediately."
Cambridge joins a growing list of the world's leading publishers that have selected Rightslink for online permissions and reprint ordering. These include the University of Chicago Press, Elsevier, Oxford University Press, Nature Publishing Group, Springer and Taylor & Francis.
"Publishers have found that Rightslink helps them to grow revenue, improve customer service and increase operational efficiencies," said Bob Weiner, Senior Vice President of Licensing at CCC. "Content users also are very drawn to the service as it dramatically simplifies the permission and reprint process. In short, making the process faster and easier for the customer increases revenue."
Sunday, October 19, 2008
Yoko Ono Withdraws Suit Against EXPELLED
In the most recent court action involving the controversial movie Expelled: No Intelligence Allowed featuring Ben Stein, Yoko Ono and EMI Records have both withdrawn all claims filed against the filmmakers, Premise Media.
Days after the film opened in April, two lawsuits were filed to have the movie pulled from theaters because it uses and critiques 15 seconds of the John Lennon song Imagine. The filmmakers argued that the use of the song was protected by the fair use doctrine.
"This legal action was about more than our film Expelled," noted producer John Sullivan. "What was really at stake was our basic right as Americans to free speech. While this was personally challenging, it was a fight worth going to the mat on because of the gravity of the issue."
In June, the U.S. District Court for the Southern District of New York in Manhattan denied the preliminary injunction claim from John Lennon's widow Yoko Ono which alleged that the use of the song clip violated federal copyright and trademark law.
Then on August 13, 2008, the New York State Court in Manhattan similarly denied EMI Records' and Capitol Records' attempt to enjoin the distribution of EXPELLED based on the claim that the film violated their sound recording rights. As with the Federal opinion, the State court also concluded that Premise Media was likely to prevail in court based on the Fair Use Doctrine.
After the Federal and State courts denied the preliminary injunction attempts against the film, the plaintiffs filed for dismissal.
Premise Media was defended by The Stanford Law School's Fair Use Project and Locke, Lord, Bissell & Liddell. "We're very pleased that all plaintiffs withdrew their claims," said Anthony Falzone, executive director of the Fair Use Project and lead counsel on the case. He added: "We think it was clear from the beginning that Premise had every right to use the ‘Imagine' clip, and we're happy we've vindicated that. The right to use copyrighted material to criticize it is essential to free speech and public debate, and that's what was at stake here."
"I'm gratified the attempts to silence our film were unsuccessful, and I want to thank everyone who worked so hard to defend our integrity and preserve the free speech rights of filmmakers," said Logan Craft, chairman and executive producer of Premise Media.
For the filmmakers the news comes just in time as Expelled will be released on DVD by Vivendi Entertainment October 21, 2008. It will be available on DVD and Blue-Ray where ever DVDs are sold.
Days after the film opened in April, two lawsuits were filed to have the movie pulled from theaters because it uses and critiques 15 seconds of the John Lennon song Imagine. The filmmakers argued that the use of the song was protected by the fair use doctrine.
"This legal action was about more than our film Expelled," noted producer John Sullivan. "What was really at stake was our basic right as Americans to free speech. While this was personally challenging, it was a fight worth going to the mat on because of the gravity of the issue."
In June, the U.S. District Court for the Southern District of New York in Manhattan denied the preliminary injunction claim from John Lennon's widow Yoko Ono which alleged that the use of the song clip violated federal copyright and trademark law.
Then on August 13, 2008, the New York State Court in Manhattan similarly denied EMI Records' and Capitol Records' attempt to enjoin the distribution of EXPELLED based on the claim that the film violated their sound recording rights. As with the Federal opinion, the State court also concluded that Premise Media was likely to prevail in court based on the Fair Use Doctrine.
After the Federal and State courts denied the preliminary injunction attempts against the film, the plaintiffs filed for dismissal.
Premise Media was defended by The Stanford Law School's Fair Use Project and Locke, Lord, Bissell & Liddell. "We're very pleased that all plaintiffs withdrew their claims," said Anthony Falzone, executive director of the Fair Use Project and lead counsel on the case. He added: "We think it was clear from the beginning that Premise had every right to use the ‘Imagine' clip, and we're happy we've vindicated that. The right to use copyrighted material to criticize it is essential to free speech and public debate, and that's what was at stake here."
"I'm gratified the attempts to silence our film were unsuccessful, and I want to thank everyone who worked so hard to defend our integrity and preserve the free speech rights of filmmakers," said Logan Craft, chairman and executive producer of Premise Media.
For the filmmakers the news comes just in time as Expelled will be released on DVD by Vivendi Entertainment October 21, 2008. It will be available on DVD and Blue-Ray where ever DVDs are sold.
Friday, October 17, 2008
Knowing and Understanding Copyrights
Copyright infringement and patent infringement are not quite the same thing, although they are based on the same principle, don't steal what isn't yours. Copyright infringement refers to not stealing someone else artistic or intellectual property, such as writings or music while patent infringement refers to refraining from stealing an actual product that doesn't belong to you.
The U.S. Copyright Office is responsible for holding onto the records of everything that has been copyrighted to help ensure that an individual's artistic or intellectual property remains their own. However, it is not legally necessary to register a copyrighted material with the office.
It is sufficient to place the copyright icon in front of a copyright statement and is adequate protection for copyright laws. However, it is still more secure to register copyrighted material with the U.S. Copyright Office.
Copyright infringement is the theft of written, artistic, or intellectually produced material. Copyright infringement differs from patent infringement only in the actual material, which can make determining copyright infringement and patent infringement easier to detect.
In business, it is not so unheard of for advertisement media to be copied, thus becoming a copyright infringement. However, there is a difference between stealing the advertising media which creates the copyright infringement and stealing the icon or symbol used to create consumer recognition which is then a trademark violation.
Patented material, such as the product, is the only avenue which a patent infringement can occur. Why is this important? Because from conception to marketing, to advertising, all the way down to the jingle used in the television or radio campaign, stealing any part of the product, the advertising, the logo, the writing, the product enhancement, or any other related idea as it applies to any particular patented or copyrighted material can mean the end of a company.
These various rules can become confusing and even a little hard to wade through when there are numerous people working on any given project. Thus, enlisting the help of a Copyright attorney may be the only way to make sure all of the potential bases are covered.
A copyright attorney can be influential in preventing copyright infringement via advertisement or other written avenue, such as products that are written materials.
Bearing in mind that all printed materials are typically copyrighted, even if they have failed to register with the copyright office, a copyright attorney can still effectively guide a copy writer from accidentally becoming guilty of copyright infringement.
In most cases, any large company or media of copyrighted materials that are likely to be used beyond basic small press use will be registered with the copyright office, as registering with the U.S.
Copyright Office is a failsafe against copyright infringement. Thus, if a small time writer claims against a big company an explicit use of copyrighted material, but the large company registered with the Office, the small time writer can hold no claim even if they copyrighted their own material, simply because the large company registered with the Office.
While a copyright attorney is likely required to determine the exact definition of the laws as they apply to any given case, the likelihood of being held accountable for a copyright infringement that was not registered with the U.S. Copyright Office, and they granted a copyright, there really is no case, regardless of how talented the copyright attorney may be.
The bottom line is still pretty basic, despite the variation in copyright infringement and patent infringement. Hiring a patent or otherwise known as copyright attorney from the beginning of any substantial project is the best protection against being accused of any type of copyright infringement.
Registering a copyright with the copyright office protects the copyrighted material against theft. All of these simple and basic steps should be taken by any company who intends to market a product, whether they anticipate being a small company of local distribution or a large company with global potential.
By registering copyrighted material with them and by hiring a copyright attorney to oversee the basic laws are covered, any company with a marketing plan will know they are protected under copyright infringement laws as well as patent infringement laws.
Without the assistance of a copyright attorney or patent attorney, a business is playing with the potential of an accidental copyright infringement or patent infringement. It is much safer to cover all the bases and protect the company and the brainchild behind the fabulous ideas that can launch a company into the land of happy returns.
About the Author:
Nick Johnson represents individuals or companies with cases involving patent infringement. Find more information at http://www.toppatentinfringementattorneys.com/ or http://www.toppatentinfringementlawyers.com/ . Call 1-888-311-5522 to receive a free case evaluation
The U.S. Copyright Office is responsible for holding onto the records of everything that has been copyrighted to help ensure that an individual's artistic or intellectual property remains their own. However, it is not legally necessary to register a copyrighted material with the office.
It is sufficient to place the copyright icon in front of a copyright statement and is adequate protection for copyright laws. However, it is still more secure to register copyrighted material with the U.S. Copyright Office.
Copyright infringement is the theft of written, artistic, or intellectually produced material. Copyright infringement differs from patent infringement only in the actual material, which can make determining copyright infringement and patent infringement easier to detect.
In business, it is not so unheard of for advertisement media to be copied, thus becoming a copyright infringement. However, there is a difference between stealing the advertising media which creates the copyright infringement and stealing the icon or symbol used to create consumer recognition which is then a trademark violation.
Patented material, such as the product, is the only avenue which a patent infringement can occur. Why is this important? Because from conception to marketing, to advertising, all the way down to the jingle used in the television or radio campaign, stealing any part of the product, the advertising, the logo, the writing, the product enhancement, or any other related idea as it applies to any particular patented or copyrighted material can mean the end of a company.
These various rules can become confusing and even a little hard to wade through when there are numerous people working on any given project. Thus, enlisting the help of a Copyright attorney may be the only way to make sure all of the potential bases are covered.
A copyright attorney can be influential in preventing copyright infringement via advertisement or other written avenue, such as products that are written materials.
Bearing in mind that all printed materials are typically copyrighted, even if they have failed to register with the copyright office, a copyright attorney can still effectively guide a copy writer from accidentally becoming guilty of copyright infringement.
In most cases, any large company or media of copyrighted materials that are likely to be used beyond basic small press use will be registered with the copyright office, as registering with the U.S.
Copyright Office is a failsafe against copyright infringement. Thus, if a small time writer claims against a big company an explicit use of copyrighted material, but the large company registered with the Office, the small time writer can hold no claim even if they copyrighted their own material, simply because the large company registered with the Office.
While a copyright attorney is likely required to determine the exact definition of the laws as they apply to any given case, the likelihood of being held accountable for a copyright infringement that was not registered with the U.S. Copyright Office, and they granted a copyright, there really is no case, regardless of how talented the copyright attorney may be.
The bottom line is still pretty basic, despite the variation in copyright infringement and patent infringement. Hiring a patent or otherwise known as copyright attorney from the beginning of any substantial project is the best protection against being accused of any type of copyright infringement.
Registering a copyright with the copyright office protects the copyrighted material against theft. All of these simple and basic steps should be taken by any company who intends to market a product, whether they anticipate being a small company of local distribution or a large company with global potential.
By registering copyrighted material with them and by hiring a copyright attorney to oversee the basic laws are covered, any company with a marketing plan will know they are protected under copyright infringement laws as well as patent infringement laws.
Without the assistance of a copyright attorney or patent attorney, a business is playing with the potential of an accidental copyright infringement or patent infringement. It is much safer to cover all the bases and protect the company and the brainchild behind the fabulous ideas that can launch a company into the land of happy returns.
About the Author:
Nick Johnson represents individuals or companies with cases involving patent infringement. Find more information at http://www.toppatentinfringementattorneys.com/ or http://www.toppatentinfringementlawyers.com/ . Call 1-888-311-5522 to receive a free case evaluation
Sunday, October 12, 2008
Learn About Copyright Law for Free
Picture Archive Council of America (PACA) is calling on those in the creative community to spread the word about protecting the rights of image creators through copyright education. In support of this effort PACA developed the Jane Kinne Copyright Education Program, which can be streamed online or ordered on DVD. The free one-hour presentation provides a thorough review of copyright law in the United States and how it applies to the use of imagery in advertising, the news media and fine art.Copyright law is a pivotal topic in our Nation's Capitol today and one that affects everyone in the creative process from agency owners and buyers to photographers and art departments. However, it has been a somewhat overlooked point of emphasis in the training of employees throughout the industry. This oversight cannot continue to persist in light of new technologies and laws that challenge the long-standing interpretations
"Ignorance of the law is no excuse when using an image without proper consent," said Nancy Wolff, PACA's legal counsel and an expert on copyright law. "Understanding copyright law is essential for anyone working in the field of photography. This program provides the creative community with invaluable information in regards to what is protected by copyright and understanding often misused terms such as the ‘fair use' doctrine."
Moreover what may be appropriate for use in some instances might be completely illegal under different circumstances. In today's world everyone from business owners and executives to department managers and entry level staff must understand basic copyright regulations to avoid liability for themselves.
The PACA Copyright Education video includes real-world cases with images and detailed explanations of how the parties viewed the claimed infringements and how the courts assessed them. It is an outstanding tool for training staff members and, when appropriate, clients as well. Wolff created the presentation using laymen's language that can be clearly presented during internal staff trainings and executive meetings.
Wolff examines what copyright law protects and for how long, what is fair use, what is and what is not infringement, and explains how the Digital Millennium Copyright Act can be used to ask ISP's to remove infringing works from the Internet. PACA encourages creative professionals and all organizations involved with the use or creation of images to watch this lecture about copyright law.
Visit PACA's website for more information on Jane Kinne Copyright Education Program. You can stream the copyright presentation or quickly download the PowerPoint presentation from this page. Either way this lecture will undoubtedly be a valuable addition to any curriculum.
Friday, October 10, 2008
Fake Popup Warnings Fool Internet Users
A new study by researchers at North Carolina State University shows that most Internet users are unable to distinguish genuine popup warnings messages from false ones – even after repeated mistakes. The fake ones were designed to trick users into downloading harmful software.
"This study demonstrates how easy it is to fool people on the Web," says study co-author Dr. Michael S. Wogalter, professor of psychology at NC State. The study examined the responses of undergraduate students to real and fake warning messages while they did a series of search tasks on a personal computer connected to the Internet. The real warning messages simulated local Windows operating system warnings, whereas fake messages were popup messages emanating from an exterior source via the Internet.
The physical differences between the real and the fake messages were subtle, and most participants did not discern them. Participants were fooled by the fake messages 63 percent of the time, hitting the "OK" button in the message box when it appeared on the screen despite being told that some of what they would be seeing would be false.
The ways people responded could potentially open them up to malevolent software, such as spyware or a computer virus, Wogalter says. Safer options, such as simply closing the message box, were infrequently chosen. The study was led by psychology graduate student David Sharek and co-authored by undergraduate Cameron Swofford.
Wogalter notes that companies and other credible entities may want to incorporate additional unique features into the real messages to allow people to differentiate between genuine warning messages and fake popups. However, he says, "I don't know if you could develop a legitimate message that could not be duplicated and used illegitimately."
Wogalter says the results of the study highlight the need to educate Internet users to be cautious. "Be suspicious when things pop up," Wogalter says. "Don't click OK – close the box instead."
The study was published Sept. 22 in Proceedings of Human Factors and Ergonomics Society.
"This study demonstrates how easy it is to fool people on the Web," says study co-author Dr. Michael S. Wogalter, professor of psychology at NC State. The study examined the responses of undergraduate students to real and fake warning messages while they did a series of search tasks on a personal computer connected to the Internet. The real warning messages simulated local Windows operating system warnings, whereas fake messages were popup messages emanating from an exterior source via the Internet.
The physical differences between the real and the fake messages were subtle, and most participants did not discern them. Participants were fooled by the fake messages 63 percent of the time, hitting the "OK" button in the message box when it appeared on the screen despite being told that some of what they would be seeing would be false.
The ways people responded could potentially open them up to malevolent software, such as spyware or a computer virus, Wogalter says. Safer options, such as simply closing the message box, were infrequently chosen. The study was led by psychology graduate student David Sharek and co-authored by undergraduate Cameron Swofford.
Wogalter notes that companies and other credible entities may want to incorporate additional unique features into the real messages to allow people to differentiate between genuine warning messages and fake popups. However, he says, "I don't know if you could develop a legitimate message that could not be duplicated and used illegitimately."
Wogalter says the results of the study highlight the need to educate Internet users to be cautious. "Be suspicious when things pop up," Wogalter says. "Don't click OK – close the box instead."
The study was published Sept. 22 in Proceedings of Human Factors and Ergonomics Society.
Thursday, October 9, 2008
Plagiarism Checkers Fights Growing Plagiarism Problem On College Campuses
The Internet has made cheating and plagiarism easier than ever before. College students from around the country can share files with little effort or cost -- all under the school's radar. With millions of research papers and academic journals available to be copied, college professors can't possibly check everything. A plagiarism detector has become a necessity in colleges and universities across the country."Our one-of-a-kind plagiarism checking software is a must for any college or university. Papers are sent to us and then automatically scanned against published works, blogs, message boards and our own database of academic, legal, medical and institutional texts. Our unique and patented 'Synonym & Sentence Structure check' means we're able to check for intentional and unintentional similarities. With this software, students won't be able to change just a few words and submit the work as their own," said Jennie Williams, CEO of Plagiarism-Checkers, Inc. (www.checkforplagiarism.net/).
Surveys show that academic cheating begins in high school and continues into college. Most students are never caught and don't consider cheating to be a big deal. Eight out of ten college students have admitted to cheating at least once during their college career, according to a Gallup poll. Those students go on to the workforce and plagiarism then becomes a problem that affects corporate America, as well as universities.
"We know that the best plagiarism checker doesn't do schools or companies any good if it is not affordable. Our program stands above our competition because it's affordable and available to corporations and individuals instead of just schools. We offer scanning software in English, Spanish, German, French and Italian so even foreign language classes are covered with the Check For Plagiarism program making our program fully customizable. We're not out to punish students, instead we're trying to encourage them to think for themselves and excel," said Williams.
Sunday, October 5, 2008
AIPA Supports Copyright Amentdment Bill
The Advertising and Illustrative Photographers Association (AIPA) fully supports Minister Judith Tizard's Copyright Amendment Bill which seeks to repeal Section 21(3) of the New Zealand Copyright Act (also known as the Commissioning Rule).
The removal of this outdated and unnecessary piece of legislation will be of significant benefit to the entire creative sector. It will bring the New Zealand copyright act further in line with international convention and the copyright laws of our major trading partners.
At present the Commissioning Rule causes confusion and uncertainty for copyright commissioners and creators alike, as it selectively penalises certain types of copyright authors (such as photographers and other visual artists) for no logical reason. This amendment will therefore help clarify and simplify the current copyright law.
As has been shown in the United States, the United Kingdom, and Australia (where similar legislation has been repealed in 1976, 1988, and 1998 respectively) the amendment will result in a far more balanced and fair commissioning environment. This in turn will encourage more of our top photographers to stay in New Zealand, rather than head overseas to live and work in countries where their intellectual property rights are respected.
Furthermore, the repeal of the Commissioning Rule will result in more intellectual property being kept in New Zealand, under the ownership of New Zealanders, and for the financial and cultural benefit of our nation as a whole.
For many years New Zealand professional photographers have been calling for equality. Regardless of whether an individual is a writer or an illustrator, a musician or a designer, an architect or a photographer, all creators deserve to be treated equally under law. We believe this is a basic human right. Finally, with the repeal of the Commissioning Rule, the Government will make this basic right a reality in New Zealand.
The removal of this outdated and unnecessary piece of legislation will be of significant benefit to the entire creative sector. It will bring the New Zealand copyright act further in line with international convention and the copyright laws of our major trading partners.
At present the Commissioning Rule causes confusion and uncertainty for copyright commissioners and creators alike, as it selectively penalises certain types of copyright authors (such as photographers and other visual artists) for no logical reason. This amendment will therefore help clarify and simplify the current copyright law.
As has been shown in the United States, the United Kingdom, and Australia (where similar legislation has been repealed in 1976, 1988, and 1998 respectively) the amendment will result in a far more balanced and fair commissioning environment. This in turn will encourage more of our top photographers to stay in New Zealand, rather than head overseas to live and work in countries where their intellectual property rights are respected.
Furthermore, the repeal of the Commissioning Rule will result in more intellectual property being kept in New Zealand, under the ownership of New Zealanders, and for the financial and cultural benefit of our nation as a whole.
For many years New Zealand professional photographers have been calling for equality. Regardless of whether an individual is a writer or an illustrator, a musician or a designer, an architect or a photographer, all creators deserve to be treated equally under law. We believe this is a basic human right. Finally, with the repeal of the Commissioning Rule, the Government will make this basic right a reality in New Zealand.
Thursday, October 2, 2008
Careerbuilder Target of New Work-at-Home Email Scam
The UAB (University of Alabama at Birmingham) Spam Data Mine reports that CareerBuilder.com, a reputable job search and employment company, has joined the list of brands targeted by a criminal who is stealing login credentials to their site by claiming to have a new Digital Certificate said to protect customers. UAB’s Spam Data Mine collects millions of e-mail messages used to provide investigators with spam intelligence and determine new attack methods.
Researchers at the UAB Spam Data Mine have received more than 400 copies of the spam in the past 24 hours. The CareerBuilder.com malware was especially interesting, said Gary Warner, Director of Research in Computer Forensics.
"We've seen a long list of banks abused by this malware promising better security with Digital Certificates, but this is the first employment company targeted for this criminal’s scam," Warner said. "By stealing CareerBuilder credentials the criminals will be able to make more believable job offers, and will be able to know who is actively seeking a job. They already have login credentials for banking sites, but they need to recruit more ‘Money Mules,’ which is what investigators call the victims who are tricked into sending the money out of the country.
Warner’s investigations, which he describes in his blog, CyberCrime & Doing Time, http://garwarner.blogspot.com/, have revealed that the same criminals stealing these CareerBuilder accounts are attempting to convince desperate job seekers to work as financial assistants. In fact, these financial assistants receive a commission for receiving stolen funds into their personal bank accounts and then transferring the funds to the criminals via Western Union or Money Gram.
Warner calls that "a sign that money laundering may be part of their new job."
Warner and his team of researchers have been tracking this malware family since May. The current campaign also links to work-at-home scams being hosted on the same IP addresses as the CareerBuilder malware.
Researchers at the UAB Spam Data Mine have received more than 400 copies of the spam in the past 24 hours. The CareerBuilder.com malware was especially interesting, said Gary Warner, Director of Research in Computer Forensics.
"We've seen a long list of banks abused by this malware promising better security with Digital Certificates, but this is the first employment company targeted for this criminal’s scam," Warner said. "By stealing CareerBuilder credentials the criminals will be able to make more believable job offers, and will be able to know who is actively seeking a job. They already have login credentials for banking sites, but they need to recruit more ‘Money Mules,’ which is what investigators call the victims who are tricked into sending the money out of the country.
Warner’s investigations, which he describes in his blog, CyberCrime & Doing Time, http://garwarner.blogspot.com/, have revealed that the same criminals stealing these CareerBuilder accounts are attempting to convince desperate job seekers to work as financial assistants. In fact, these financial assistants receive a commission for receiving stolen funds into their personal bank accounts and then transferring the funds to the criminals via Western Union or Money Gram.
Warner calls that "a sign that money laundering may be part of their new job."
Warner and his team of researchers have been tracking this malware family since May. The current campaign also links to work-at-home scams being hosted on the same IP addresses as the CareerBuilder malware.
Sunday, September 28, 2008
New Online Course Offers Guide to Online Media Law for Bloggers and Others
The Poynter Institute's News University is launching a new e-learning course on media law designed specifically for individuals and journalists engaged in online publishing. Online Media Law: The Basics for Bloggers and Other Online Publishers addresses defamation, privacy and copyright - three important areas of media law that affect bloggers and others who are reporting on events in their communities and helping to hold those in power accountable (www.newsu.org/onlinemedialaw).
"Many people are using online publishing as a way to participate in the democratic process by reporting on local, regional and national events. This course allows NewsU to broaden its reach and bring educational opportunities to those who may not have a journalism background, as well as to experienced journalists who are launching their own blogs," said Howard Finberg, director of interactive learning at The Poynter Institute. NewsU is funded by a grant from the John S. and James L. Knight Foundation and Poynter.
Online Media Law, which is being offered free to registered users of NewsU, was co-authored by David Ardia, Director of the Citizen Media Law Project, and Geanne Rosenberg, Chair of the Department of Journalism and the Writing Professions at City University of New York's Baruch College and author of the Top Ten Rules to Limit Legal Risk .
The course was developed in partnership with the Media Bloggers Association with contributions from the Citizen Media Law Project, which is jointly affiliated with Harvard Law School's Berkman Center for Internet & Society and the Center for Citizen Media; City University of New York's Graduate School of Journalism and Baruch College; and Media/Professional Insurance.
The course, which includes games and learning exercises, is designed to help participants understand their legal rights and responsibilities associated with their online publishing activities so they can protect themselves against lawsuits. The online course also provides resources to help bloggers and others improve the accuracy and quality of their reporting.
"Many people are using online publishing as a way to participate in the democratic process by reporting on local, regional and national events. This course allows NewsU to broaden its reach and bring educational opportunities to those who may not have a journalism background, as well as to experienced journalists who are launching their own blogs," said Howard Finberg, director of interactive learning at The Poynter Institute. NewsU is funded by a grant from the John S. and James L. Knight Foundation and Poynter.
Online Media Law, which is being offered free to registered users of NewsU, was co-authored by David Ardia, Director of the Citizen Media Law Project, and Geanne Rosenberg, Chair of the Department of Journalism and the Writing Professions at City University of New York's Baruch College and author of the Top Ten Rules to Limit Legal Risk .
The course was developed in partnership with the Media Bloggers Association with contributions from the Citizen Media Law Project, which is jointly affiliated with Harvard Law School's Berkman Center for Internet & Society and the Center for Citizen Media; City University of New York's Graduate School of Journalism and Baruch College; and Media/Professional Insurance.
The course, which includes games and learning exercises, is designed to help participants understand their legal rights and responsibilities associated with their online publishing activities so they can protect themselves against lawsuits. The online course also provides resources to help bloggers and others improve the accuracy and quality of their reporting.
Saturday, September 27, 2008
ICT Industry Moves To Address Copyright Confusion
"A deeply flawed law that undermines fundamental rights and simply will not work."
That is what the telecommunications industry, internet service providers, user groups, internet advocates and IT professionals think of parts of the recently passed Copyright (New Technologies) Amendment Act.
The TCF is today announcing steps to create a Code of Practice to guide ISPs and internet users through a legislative minefield created by section 92A of the Copyright Act.
"Section 92A has achieved one thing, and one thing only", TCF CEO Ralph Chivers said today, "uniting the ICT sector and others who will be affected in an unprecedented show of solidarity against it".
"While we recognise that the Act has introduced a number of positive measures, some hastily inserted last-minute changes have placed an unacceptable burden on internet service providers and have the potential to significantly undermine the legal rights of internet users", Mr Chivers said.
Section 92A, when it is brought into force, will require ISPs to "reasonably implement" a policy to disconnect "in appropriate circumstances" the internet services of users who have repeatedly downloaded or uploaded infringing music, movies, games and other copyright material.
"The Act gives no guidance on what 'reasonably implement' or 'in appropriate circumstances' mean," Mr Chivers said. "This leaves the door wide open to those who seek disconnection of an alleged repeat infringer based on flimsy evidence, or worse, allegations alone."
"Identifying repeat offenders will not be easy. A complex data matching exercise will be required, and even then it will not always be clear who the real offender is, particularly when an internet account is used by a family, a business or a school. The potential for an alleged offender to be denied natural justice is significant. For these reasons, a court order backed up by solid evidence would normally be required before taking such invasive action."
"Businesses support the need to protect intellectual property, and we are sympathetic to the significant problems the music, movie and gaming industries face. However, balance is the key. Protecting one person's interests at the expense of others is completely inappropriate," Chivers said.
InternetNZ Executive Director Keith Davidson agrees. "The potential for infringement of human rights is a significant concern to us. Arguably one of the great benefits of the Internet has been the strengthening of human rights and the development of democratic freedoms around the world. However, this law change has the potential for Internet users to have their service disconnected on very weak grounds, undermining the fundamental right of 'innocent until proven guilty'."
"Rights holders and the industry need to work together, to find more pragmatic solutions. We need to preserve the service providers' obligations to offer unencumbered access to the Internet for their customers but at the same time find ways to adequately protect copyright," Davidson said.
Internet Service Providers Association President Jamie Baddeley likened the situation to putting private security guards in to quell a riot without body armour. "The worst aspect of this law is that it provides no protection to ISPs who try and implement the law's requirements in good faith. They are exposed to legal risk from their customers if they act, and to legal risk from copyright holders if they do not. They are caught in the middle without any form of legal protection and will be required to go through a costly and complex process to solve a problem that is not of their making," Mr Baddeley said. "This has the potential to put some of our smaller innovative members out of business - undoing a lot of the great work the government has previously done to develop a more competitive environment."
"It is unacceptable that Parliament has placed the burden of sorting out this mess on ISPs," TUANZ CEO Ernie Newman said. "ISPs in New Zealand are socially responsible; it's not their job to interpret and enforce vague laws, particularly when they interfere with their customers' rights. Worse still, the definition of ISP in the Act captures schools, universities, and libraries – in fact just about anyone who provides internet access to someone else. The loose language Parliament has included in the legislation will require an army of lawyers to interpret, at the expense of ISPs and ultimately, their customers."
"The New Zealand Computer Society strongly supports protection of Intellectual Property, but this isn't the way to do it", NZCS's Chief Executive Paul Matthews added. "You could use the same flawed justification that underpins this law to force The Warehouse to ban someone from shopping there for their food and clothes just because they are accused of copying a few DVDs that they have bought. Yes, copyright infringement is wrong, but it needs to be proven first and the penalty kept in proportion. Termination of all internet access in this day and age of online education, social networking and electronic services is a huge penalty," Matthews said. "This is simply bad law whichever way you look at it."
Cheryl Horo from Women in Technology pointed to the value of solving the underlying issues. "Ultimately it is in all of our interests to ensure that artists, as with our technology businesses, receive a fair return on their investments. New Zealand's film, music and gaming industries are increasingly dependent on advanced information technology - it is in all of our interests to help these sectors grow and develop. Education will play an important role in progressing this issue."
Recognising the difficulties created by s92A, the TCF is developing a Code of Practice aimed at providing a consistent and workable approach to meeting the requirements of the Act.
"We are grateful for the early work done on this issue by InternetNZ," Mr Chivers said. "We will build on this work to create an industry code that has wide buy-in, so that users are appropriately protected and ISPs are able to continue providing services without unnecessary legal risk."
"The TCF will continue to consult widely as we develop the Code, including with copyright holder groups. We accept that copyright infringement is a problem and we will do our part to ensure it is appropriately managed," Chivers said.
"In our view, it makes sense to delay the introduction of section 92A to give time for the Code to be developed. In our discussions with copyright holders and government we have stressed the need to find a better way of managing this problem – section 92A as it stands simply won't cut it. Regardless, it will be the responsibility of the next Parliament to repair the problems caused by this deeply flawed legislation."
That is what the telecommunications industry, internet service providers, user groups, internet advocates and IT professionals think of parts of the recently passed Copyright (New Technologies) Amendment Act.
The TCF is today announcing steps to create a Code of Practice to guide ISPs and internet users through a legislative minefield created by section 92A of the Copyright Act.
"Section 92A has achieved one thing, and one thing only", TCF CEO Ralph Chivers said today, "uniting the ICT sector and others who will be affected in an unprecedented show of solidarity against it".
"While we recognise that the Act has introduced a number of positive measures, some hastily inserted last-minute changes have placed an unacceptable burden on internet service providers and have the potential to significantly undermine the legal rights of internet users", Mr Chivers said.
Section 92A, when it is brought into force, will require ISPs to "reasonably implement" a policy to disconnect "in appropriate circumstances" the internet services of users who have repeatedly downloaded or uploaded infringing music, movies, games and other copyright material.
"The Act gives no guidance on what 'reasonably implement' or 'in appropriate circumstances' mean," Mr Chivers said. "This leaves the door wide open to those who seek disconnection of an alleged repeat infringer based on flimsy evidence, or worse, allegations alone."
"Identifying repeat offenders will not be easy. A complex data matching exercise will be required, and even then it will not always be clear who the real offender is, particularly when an internet account is used by a family, a business or a school. The potential for an alleged offender to be denied natural justice is significant. For these reasons, a court order backed up by solid evidence would normally be required before taking such invasive action."
"Businesses support the need to protect intellectual property, and we are sympathetic to the significant problems the music, movie and gaming industries face. However, balance is the key. Protecting one person's interests at the expense of others is completely inappropriate," Chivers said.
InternetNZ Executive Director Keith Davidson agrees. "The potential for infringement of human rights is a significant concern to us. Arguably one of the great benefits of the Internet has been the strengthening of human rights and the development of democratic freedoms around the world. However, this law change has the potential for Internet users to have their service disconnected on very weak grounds, undermining the fundamental right of 'innocent until proven guilty'."
"Rights holders and the industry need to work together, to find more pragmatic solutions. We need to preserve the service providers' obligations to offer unencumbered access to the Internet for their customers but at the same time find ways to adequately protect copyright," Davidson said.
Internet Service Providers Association President Jamie Baddeley likened the situation to putting private security guards in to quell a riot without body armour. "The worst aspect of this law is that it provides no protection to ISPs who try and implement the law's requirements in good faith. They are exposed to legal risk from their customers if they act, and to legal risk from copyright holders if they do not. They are caught in the middle without any form of legal protection and will be required to go through a costly and complex process to solve a problem that is not of their making," Mr Baddeley said. "This has the potential to put some of our smaller innovative members out of business - undoing a lot of the great work the government has previously done to develop a more competitive environment."
"It is unacceptable that Parliament has placed the burden of sorting out this mess on ISPs," TUANZ CEO Ernie Newman said. "ISPs in New Zealand are socially responsible; it's not their job to interpret and enforce vague laws, particularly when they interfere with their customers' rights. Worse still, the definition of ISP in the Act captures schools, universities, and libraries – in fact just about anyone who provides internet access to someone else. The loose language Parliament has included in the legislation will require an army of lawyers to interpret, at the expense of ISPs and ultimately, their customers."
"The New Zealand Computer Society strongly supports protection of Intellectual Property, but this isn't the way to do it", NZCS's Chief Executive Paul Matthews added. "You could use the same flawed justification that underpins this law to force The Warehouse to ban someone from shopping there for their food and clothes just because they are accused of copying a few DVDs that they have bought. Yes, copyright infringement is wrong, but it needs to be proven first and the penalty kept in proportion. Termination of all internet access in this day and age of online education, social networking and electronic services is a huge penalty," Matthews said. "This is simply bad law whichever way you look at it."
Cheryl Horo from Women in Technology pointed to the value of solving the underlying issues. "Ultimately it is in all of our interests to ensure that artists, as with our technology businesses, receive a fair return on their investments. New Zealand's film, music and gaming industries are increasingly dependent on advanced information technology - it is in all of our interests to help these sectors grow and develop. Education will play an important role in progressing this issue."
Recognising the difficulties created by s92A, the TCF is developing a Code of Practice aimed at providing a consistent and workable approach to meeting the requirements of the Act.
"We are grateful for the early work done on this issue by InternetNZ," Mr Chivers said. "We will build on this work to create an industry code that has wide buy-in, so that users are appropriately protected and ISPs are able to continue providing services without unnecessary legal risk."
"The TCF will continue to consult widely as we develop the Code, including with copyright holder groups. We accept that copyright infringement is a problem and we will do our part to ensure it is appropriately managed," Chivers said.
"In our view, it makes sense to delay the introduction of section 92A to give time for the Code to be developed. In our discussions with copyright holders and government we have stressed the need to find a better way of managing this problem – section 92A as it stands simply won't cut it. Regardless, it will be the responsibility of the next Parliament to repair the problems caused by this deeply flawed legislation."
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