I studied three
entertainment law podcasts this week to enhance my knowledge of the
topic. When you finish reading this, I encourage you to listen to the
same podcasts to enhance your basic understanding of the subjects
discussed here. The first podcast is
session 5: "Tackling Intellectual Property Law in Cyberspace" from the
9th Annual CIPLIT Symposium. The presenters were Rose Hagan from
Google, Ann M. Bartow from The University of South Carolina, Greg
Vetter from The University of Houston and Sonia Katyal from Fordham
University.
Rose
Hagan spoke about her role at Google and defending it from lawsuits
that arise from emerging Internet related legal issues. At the time,
Google was facing 8 lawsuits and had already been involved in several
others. Individuals, companies, and trademark holders were asserting
their rights, and attempting to establish precedents for Internet law.
Google is often involved in these cases simply because it is a major
player in Internet advertising. Google sells advertising space based on
terms advertisers select by picking keywords. While Google doesn't
create the ads for advertisers, it needs to establish standards within
the emerging law and common sense. She stated that Google has no desire
to infringe on trademark owners rights because they also spend a great
deal of time and money protecting Google's rights and image. Google
has policies for keyword and advertisement text. It based these on the
countries where the ads are created and the relevant national laws
governing trademarks, intellectual property, commerce, and Internet
advertising. and ran and the laws that effect them. She cited cases
such as Tiffany v. Ebay and a case involving 1-800-Contacts. Most of
the issues she discussed involved advertisers attempting to gain unfair
advantage by manipulating Internet marketing options. If a company
used my companies keyword, property, and branding to bring customers to
their site instead of mine and to sell similar or counterfeit items,
then I would need to assert my legal rights to protect my business.
Ann
M. Bartow sounded as though she was on the verge of a breakdown as she
rapidly moved through her presentation. She stated that "Intellectual
prestige is not a trademark problem". She provided examples of
designers or companies suing others if a product looked similar to one
of their own. They may sue over a style they are using. She believes
that these styles, stitching patterns, etc. are not unique enough to be
protected and I agree. Some of her examples were of a designer suing
another over what they claimed was a similar design but really was
re-imaged by both designers from a previous designer's work. It is not
unique enough to be protected. Other designers and
companies do not want others to be selling items with common themes to
their own because they do not want their brand to be damaged because a
store that is not as elite selling it makes it less "special". This
is the "intellectual prestige" she mentioned. For "intellectual
prestige" to be proven it better be a unique and truly original
concept.
Greg
Vetter spoke about patent law. He focused his talk on software arts
and claims law. His insights into patents are interesting. It made me
realize that I'd never he happy engaged in patent work but it is
valuable information. You may be thinking, "I am not an inventor, so
why does this matter to me?" I thought the same but as he spoke I
understood. I'll never be spoken about in the same breath as Edison,
Tesla, or Ford either but some of his talk applied to my Internet-based
business. If your company creates patents for some of its concepts,
branding or materials you must have a clear and unbroken history of
ownership based on filing and maintaining proper legal documents.
The
final speaker for the podcast was Sonia Katyal. The most interesting
part of her talk was discussing intellectual property law vs. digital
technology. She believes that freedom of speech, public domain, and
digital technology moves fast enough that it changes the facts on the
ground. I disliked her talk; she seems to relish the idea of destroying
copyright owners rights. She believes testing these laws and
destroying or minimizing the rights of property holders is a good
thing. She seems to have a love for outlaws, activists, and criminals.
While Napster and similar sites helped to popularize the online music
distribution market eventually became a benefit to the consumer, the
right holders, and the companies who invested in the creation of the
work, what she endorses hurts all. She wants to dance around in the
shadows that the corrupt and criminals use to justify their unethical
actions. Sonia Katyal should understand that if people like her and the
Internet outlaws she attempts to glorify continue to steal and devalue
the creations of others and profit can no longer be made then the
creators will simply stop creating new work until certain that their
rights are protected. The protection that people like Sonia Katyal
attempt to provide to the outlaws makes the world a less safe, less
fair, less positive, and less ethical place. These outlaws makes the
world a worse place. I wonder if she found herself isolated with
outlaws in the real world instead of in the safety of academia if she
would still attempt to lionize them? I doubt it but she would probably
then attempt to justify their behavior by explaining how society turned
them into outlaws rather then understanding that individuals are
responsible for their own behavior and to follow the laws of society
instead of attempting to break them.
The second podcast
deals in Trademark Protections. The first presenter was Marc
Trachtenberg. His presentation was entitled "Protecting Your Marks In
and From the New Top Level Domains". The panel discussed the Internet
being the gateway to billions of people who go online to purchase
products via mobile devices or computers. This is why protecting your
marks is vital because selling online may be a companies main or only
source of revenue. His talk mentioned activities such as cybersquatting
and typosquatting. Cybersquatting is the illegal practice of
registering potential domain names before the proper rights owner can
and attempting to force the company who wishes to register the name to
pay for the right to do so. The case of Panavision v. Dennis Toeppen is
one of the most famous cybersquatting cases. Typosquatting is when
someone registers and operates a name very similar to a registered
domain name in an attempt to trick Internet users to visiting their
sites by mistake. They will add an extra letter and make the sites look
similar. An example of this is Bank of America's web site is
www.bankofamerica.com. A typosquatter would register it as something
like, www.banksofamerica.com. How many of you would easily pick up on
the difference after having done a keyword search the typosquatters site
came up first in the search and then led you to a site that looks
exactly like the Bank of America site? They may steal your banking
information, money, address book, place spyware, malware, and worse on
your computer.
Can
your business survive the credibility hit if someone did this to your
business and your customers were tricked into visiting a mirror site
that damaged them? The podcast made it clear that you need to register
your domain on as many of the web domains as possible. There are two
categories the generic TLDs (.com, .org, etc.) and country-specific
TLDs (.us, .uk, .asia, .ca, etc.) and it can be expensive to register
with all of them. It is best to register your mark with as many as you
can even if you never attend to use them but the annual fee's can be
prohibitive. It is less expensive to be proactive then reactive because
brand abusing is growing at least 28% per year according to the
presenters data. Marc Tractenberg states that, "With evolving law and
technology you can never plan for every eventuality." He advises to
select a distinct domain name to protect the company and save money in
advertising. If you pick a domain name that is common you will spend
too much in advertising fees directing users to your site.
They
discussed the IP Clearing House and met with concerns of the audience.
It is viewed as a tool to reduce the cost and administrative burden on
mark owners.
The third podcast is "IT/Contractual Aspects of New Top Level Domains."
It is related to the previous podcast that I discussed. The
commentators wisely point out that the policies, registrations, and
procedures are geared more towards good people, who act in good faith.
They are classified as "Good Actors". The governments, companies, and
others who govern the Internet believed that everyone would obey the law
on the Internet. What law? Which countries law? With what authority
could they be penalized and is there a penalty? There was not much law
and it is foolish to expect all people to act ethically without
potential enforceable consequences. The panel called these people "Bad
players". A consumer must be able to trust a companies web site and
overall web presence. This podcast spent time speaking about how to set
up a more significant governing body to eliminate the most severe
Internet liability and criminal issues. These issues can destroy a
business.
The three podcast reinforce common sense business practices that existed even before the Internet:
1)
Do everything legally possible to protect your business from the
start. This includes filing all proper copyright and trademark
registrations, filing proper paperwork with all relevant governing
bodies and verifying that you have eliminated potential liabilities. It
is always less expensive to protect yourself proactively then it is to
fight legal battles to regain your rights. The legal fee's or issue
created by a attack on or loss of rights can destroy a company.
2)
Develop a strong and adaptable business plan. Technology and the laws
that govern it are changing rapidly. A significant source of revenue
for your company can disappear quickly but a new one may likely replace
it, be wise enough to see these happening and position your company to
thrive during the transition.
3)
Your clients must be able to trust you! If they don't trust you on the
Internet they will not be spending their money on your site. Your
information needs to be accurate and your web sites must be secure,
especially if accepting payments.
4)
If you are unwilling to stay current on the laws that impact your
business then it is vital to hire qualified counsel who is and annually
reviews your business. A change in a law can hurt your business but it
may provide increased opportunities. You need to be aware of both to
maximize your companies position in the marketplace. It is best if you
are remaining current on the law because it is less expensive and even
the best lawyer will not know as much about your business as you do.
5)
Constantly look for new opportunity. Opportunity may exist in your
greatest failures. Almost always in life and business you can create
opportunity if you are adaptable, creative, understand people's needs
and desires, and are willing to do the work necessary to ensure
success.
Copyright for Photo1 belongs to @britannica.com
Copyright for Photo2 belongs to @lasvegasnevadadui.com
Copyright for Photo3 belongs to @forbes.com
Feel free to insert your favorite "clean" lawyer jokes in the comment section.
