Posts Tagged: "copyright"

With the advent and rise of the Internet, digital property rights have become an increasingly hot-topic in the Board rooms and Executive Offices of major companies, particularly those in the hi-tech industry. Much like the information protected under intellectual property rights, digital products provide their creators with certain protections under the law. The problems and legal challenges facing major companies like Yahoo and Facebook will help better define the laws surrounding digital property rights, and likely present opportunities as well as a whole host of new legal questions.

Jerk.com is perhaps the most abusive and offensive website on the Internet. In addition to encouraging the voting on whether people are jerks they allow the most vile commentary to be published. I can’t think of anything else to call this other than cyber bullying. Not only are they engaging in widespread harassment of unsuspecting, innocent and helpless individuals — INCLUDING CHILDREN — but they are also engaged in widespread copyright infringement.

Today I attended the an event on Intellectual Property and the US Economy which was held in the Eisenhower Executive Office Building on the White House grounds. The purpose of the event was to unveil a study — Intellectual Property and the U.S. Economy: Industries in Focus — prepared by the Economics and Statistics Administration and the United States Patent and Trademark Office. The study found that intellectual property intensive industries support at least 40 million jobs in the United States and contribute more than $5 trillion dollars to U.S. gross domestic product (GDP). That is to say that 27.7% of all jobs in the U.S. were either directly or indirectly attributable to IP-intensive industries, and the amount contributed to the U.S. economy represents a staggering 34.8% of GDP.

AP’s common law misappropriation claim has its origins in a remarkably similar suit AP brought against a competing news service almost a century ago. In INS v. AP the Supreme Court, in 1918, enjoined INS, a competing news service, from free-riding on the work product of AP. The misappropriation action was based on INS re-distributing information to its customers which AP had previously released into the public domain. INS was enjoined from using the information for a limited time period while it was hot news (i.e. while it had commercial value as news). The Supreme Court’s decision was based on two rationales: (1) preventing unacceptable conduct in the form of a commercial enterprise free-riding on the investment of time and money by a competitor; and (2) avoiding the resulting ruinous competition that could result from a commercial enterprise free-riding on the efforts of a competitor.

This lawsuit could set a precedent in Israeli copyright laws concerning television formats and could reveal behind-the-scenes industry secrets. The Israeli Copyright Law 2007 does not provide copyright protection for an idea, but only its expression. As for TV formats, Israeli Courts have yet to regulate this issue and have not set a binding precedent in this matter.

Jerk.com is one of those sites on the Internet that is the poster-child for everything wrong with the Internet and the anonymous communications that are so commonplace. The Internet is the refuge for cowards that wouldn’t have the guts to approach someone and say what they really feel to their face. Shrouded in secrecy provided by the Internet anonymous cowards become emboldened to say vile things and stoop to ridiculous lows — even publishing pictures of young children and asking the Internet community to vote on whether the minor is a jerk.

Simply stated, the OPEN Act would be completely and totally ineffectual and, therefore, it must be opposed. There is simply no point in enacting more pointless legislation, we have enough pointless legislation already. Content creators cannot create in a vacuum devoid of economic reality. If you take eyeballs away and/or provide things for free that are supposed to be paid for you are causing injury and making it all the more difficult to be a content creator. Think about it for a second. The content that you most value, is that created by commercial enterprises or people just doing it for free as a hobby in their spare time? If you are honest with yourself we both know the answer.

Yes, I had the audacity to say what is objectively correct. There is no absolute right under the First Amendment to engage in false or misleading speech. Despite the fact that this statement is legally 100% correct you would have thought I was engaging in treasonous behavior. What made it all the more comical was that it was the anarchists who seemed most upset, both in comments on IPWatchdog and in a variety of Twitter and blog articles that sought to paint me as some kind of crazy. You see the anarchists got so upset because the only play in their playbook is to lie and misrepresent in order to pull the wool over the eyes of enough people that they can get their way. That is where America is currently and if you ask me that is wholly unacceptable.

We must find reasonable ways to stop infringement of intellectual property on the Internet. Such a solution must be fair to the victim of the infringement. It must uphold the principles of the Constitution of the United States. And it must not break the Internet. SOPA and PIPA may not be perfect implementations of such protection, but they meet all of these requirements. There may be better strategies that can be reached through measured and thoughtful debate, but not through excessive hyperbole and misrepresentation.

As for the particulars of SOPA, perhaps there are some who are against the legislation for valid, thoughtful reasons and would like to see something better. That, however, seems to be the substantial minority. Those who are against SOPA seem to want to protect online piracy as if they are entitled to access the creative works of others for free. In economic terms those who steal intellectual property are freeloaders. These freeloaders are just like the many non-productive members of society who only take and give nothing back, expecting those of us who are productive to pick up the tab for them. There are certainly people in society who need and deserve help, and we should be there to help them, but by any fair estimate the entitlement mentality is running amok. No one “needs and deserves” free access to the latest blockbuster movie the opened just yesterday in theaters.

To all those who can read the Constitution it has to be clear that the Supreme Court’s decision in Golan v. Holder is absurd. It is a ridiculous decision that lacks intellectual honesty and defies common sense. Further, the facts of this case provide ample ground for the suspicions of many who wonder why it is that the United States is so interested in losing its identity and compromising Constitutional principles in order to facilitate some ill conceived plan to join the world community. Simply stated, treaties and international law cannot trump the Constitution. With all due respect to the six Justices who ruled in favor of stripping works from the public domain, the Constitution does not support this decision and any attempts to argue to the contrary are insulting and show a contemptuous understanding of the history and role of intellectual property in America.

On November 9, 2011, the United States District Court for the Eastern District of California, per Senior Judge Terry J. Hatter, Jr., granted Costco a summary judgment victory due to the fact that Omega engaged in copyright misuse. Yes, the plot thickened. The district court originally granted summary judgment to Costco on the basis of the first sale doctrine, which was overturned by the Ninth Circuit and then affirmed by the Supreme Court in the tie decision, or non-decision of December 2010. That meant that the case would proceed because the first sale doctrine summary judgment victory was erased. But not so fast! Judge Hatter had other ideas!

Of course, these lists never give any love to the small or mid-size firms that provide high quality legal work at a reasonable cost to clients. But that is only one of the things that will raise some eyebrows. U.S. News included Howrey LLP in the top tier for intellectual property litigation and the firm dissolved on March 15, 2011, hardly 10 weeks into 2011. So how exactly does that qualify Howrey, a firm that no longer exists, for top tier ranking? That alone will cause some to scratch their heads and wonder exactly what U.S. New was thinking.

As an aside, and somewhat related to the boring concept, is the idea that intellectual property practitioners are all basement-dwelling nerds. OK, maybe we’re a little nerdy in some ways, but I swear I do not live in a basement, my summer reading did not include the cheat guide to World of Warcraft, and I have NEVER been to Comicon. So what if I have the blueprints to the Millennium Falcon on my office wall and my favorite TV show is “How it’s Made”? You gotta admit some of the stuff we get to do and see in our professional lives is pretty freaking cool. The seediest infringement cases. The bleedingest edge of technology. The next rival to the power of McDonald’s logo or Coca-Cola trade secret. I wear my nerd moniker proudly.

Changes were made in the copyright laws of the United States in order to ensure that what David LaMacchia did would be criminal in the future. Nevertheless, those changes to the copyright laws did not put an end to piracy on the Internet, nor could they have been realistically expected to do so. Corporations, entrepreneurs, artists and creators have lobbied the United States Congress for changes in the law to help them protect their copyrighted works, but they have also increasingly relied upon technological measures to protect their copyrighted works. While there is no legal requirement that a copyright holder take steps to secure or sequester material in order to avail themselves of the protection offered by U.S. copyright laws, there is no prohibition against copyright owners seeking to use technological means to preserve their rights. Prudence dictates content creators continually monitor to see if there is ongoing infringement, take steps to make such infringement more difficut and do whatever can be done to address infringement when (not if) it is discovered.