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11/07/2016

PRIVATE ENFORCEMENT OF IP AND OTHER

RIGHTS ON THE INTERNET

ANTHONY J. ROSE

11/07/2016 2

11/07/2016

A CLASSIC (1993)

11/07/2016 3

AN UPDATE (2013)

11/07/2016 4

11/07/2016

CONTRACTS

11/07/2016 5

11/07/2016 6

11/07/2016

11/07/2016 7

THE “TRIPLE WRAPPER” THAT INCREASINGLY REGULATES OUR BEHAVIOR

• 1 - Laws

• 2 - Technological controls

• 3 - Contracts

11/07/2016 8

11/07/2016

JARGON

•Shrinkwraps

•Clickwraps

•Browsewraps 11/07/2016 9

11/07/2016 10

11/07/2016

EBAY’S BROWSEWRAP

11/07/2016 11

11/07/2016 12

11/07/2016

DEFAMATION AND SEC. 230

11/07/2016 13

INTRODUCTION TO DEFAMATION (LIBEL/SLANDER)

• Def’n: A statement that injures someone’s reputation or exposes to public hatred,

contempt, ridicule, shame, disgrace, or

affects business adversely.

• Slander: verbal

• Libel: written (Internet) 11/07/2016 14

11/07/2016

I GOT MAD POWERPOINT SKILZ, YO

User 1 User 2

Website

11/07/2016 15

DILEMMA

•Don’t intervene > unsafe environment for kids

•Do intervene > liable for what you miss 11/07/2016 16

11/07/2016

THE COMMUNICATIONS DECENCY ACT (CDA) OF 1996

PROTECTION FOR GOOD SAMARITAN BLOCKING AND SCREENING OF

OFFENSIVE MATERIAL

47 USC § 230(C)(1)

“No provider or user of an interactive

computer service shall be treated as the

publisher or speaker of any information

provided by another information content

provider.” 11/07/2016 17

KEEPING IT REAL SIMPLE

Websites are not liable

for third party content.*

*mostly

11/07/2016 18

11/07/2016

EXPLICIT LIMITATIONS/EXCEPTIONS; §230(E)

� (1) No effect on criminal law. Nothing in this § shall be

construed to impair the enforcement of § 223 or 231 of this title,

chapter 71 (relating to obscenity) or 110 (relating to sexual

exploitation of children) of title 18, or any other Federal

criminal statute.

�(2) No effect on [federal] intellectual property law.

Nothing in this section shall be construed to limit or

expand any law pertaining to intellectual property.

11/07/2016 19

11/07/2016 20

11/07/2016

11/07/2016 21

JONES V. THEDIRTY.COM

11/07/2016 22

11/07/2016

JONES V. THEDIRTY.COM

• Suit by ex-Bengals cheerleader and ex-high school teacher

• Sued wrong site

• Later charged with having sex w/minor – later engaged

• Now taking LSAT

• Gossip submitted by a site reader; site moderator added his own comment, “Why are high school

teachers freaks in the sack?”

• Suit filed Dec. 2009 11/07/2016 23

JONES V. THEDIRTY.COM

• §230 DENIED: “by reason of the very name of the site, the manner in which it is managed, and the

personal comments of defendant Richie, the

defendants have specifically encouraged

development of what is offensive about the content

of the site”

• Kentucky jury awarded $338,000 in damages.

• On appeal to CTA6… 11/07/2016 24

11/07/2016

JONES V. THEDIRTY.COM

• CTA6: • Reversed. §230 immunity.

• “Although ludicrous, Richie's remarks did not materially contribute to the defamatory content of the posts

appearing on the website. More importantly, the CDA bars

claims lodged against website operators for their editorial

functions, such as the posting of comments concerning third-

party posts, so long as those comments are not themselves

actionable.”

11/07/2016 25

COMPUTER TRESPASS

11/07/2016 26

11/07/2016

11/07/2016 27

11/07/2016 28

11/07/2016

MAYBE IT’S TIME TO BE SUSPICIOUS OF COMPUTERS AGAIN

11/07/2016 29

INDIANA CODE §35-43-2-3(B)

• “A person who knowingly or intentionally accesses: • (1) a computer system;

• (2) a computer network; or

• (3) any part of a computer system or computer network;

• without the consent of the owner of the computer system or computer network, or the consent of the owner's licensee

• commits computer trespass, a Class A misdemeanor.”

• Also: Civil Actions by Crime Victims 34-24-3-1

11/07/2016 30

11/07/2016

CFAA

• 1984 anti-hacking statute

• “Intentionally accessing a computer without authorization or exceeding

authorized access and obtaining

information from a protected computer”

• $5000 minimum for civil actions

11/07/2016 31

COMPUTER FRAUD AND ABUSE ACT, 18 U.S.C. § 1030 (CFAA) RELEVANT OFFENSES

• knowingly accessing a computer without authorization (or exceeding authorized access), and obtaining information from any protected computer [(a)(2)(C)];

• knowingly accessing a protected computer with the intent to defraud and there by obtaining anything of value (5K/yr min.) [(a)(4)];

• knowingly causing the transmission of a program, information, code, or command that causes damage to a protected computer [(a)(5)(A)];

• intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage [(a)(5)(B)];

• intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss [(a)(5)(C)];

11/07/2016 32

11/07/2016

CFAA DEFINITIONS

• “Protected computer” = “which is used in or affecting interstate or foreign commerce or communication”

• any computer connected to the Internet.

• “Damage” = impairment to integrity/availability of data, program, system or information

• “Loss” = reasonable cost to victim, including cost of responding, conducting a damage assessment, and restoring the data/program/system/information to prior condition, and any revenue lost/cost incurred/consequential damages incurred because of interruption of service.

11/07/2016 33

CFAA CIVIL REMEDIES

• (g): Anyone suffering damage or loss can maintain a civil action…

• but only if (c)(4)(A)(i) subsections (I)-(V) are satisfied: • loss of at least $5k/yr • [medical harm] • physical injury • threat to public health/safety • damage to government computer

11/07/2016 34

11/07/2016

11/07/2016 35

LORI DREW

11/07/2016 36

11/07/2016

11/07/2016 37

MYSPACE TERMS OF USE • By using the MySpace Services, you represent and warrant that (a) all

registration information you submit is truthful and accurate; (b) you will maintain

the accuracy of such information; … and (d) your use of the MySpace Services

does not violate any applicable law or regulation.

• The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the MySpace Services. MySpace.com reserves the right to

investigate and take appropriate legal action against anyone who, in

MySpace.com's sole discretion, violates this provision, including without

limitation, removing the offending communication from the MySpace Services

and terminating the Membership of such violators. Prohibited Content includes,

but is not limited to Content that, in the sole discretion of MySpace.com:

• harasses or advocates harassment of another person

• promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous

11/07/2016 38

11/07/2016

MySpace

Mom Victim

11/07/2016 39

11/07/2016 40

11/07/2016

Unregulated by ©

read

sell

give

burn

11/07/2016 41

On the Internet, every

act is a copy.

11/07/2016 42

11/07/2016

11/07/2016 43

ORIGINALITY AND FIXATION

• original works of authorship;

• fixed in a tangible medium of expression.

11/07/2016 44

11/07/2016

WHAT IS NOT PROTECTED?

• Ideas (idea/expression dichotomy)

• Facts

• Procedures

• Processes

• Systems

• Concepts

• Principles

• Discoveries and inventions (patents)

• Trademarks

11/07/2016 45

11/07/2016 46

11/07/2016

EXCLUSIVE RIGHTS

1. reproduction;

2. distribution;

3. public performance (for sound recordings, digital performances only);

4. public display;

5. adaptation (derivative work). 11/07/2016 47

FORMALITIES

•Not required for copyright ownership to vest (as of 3/1/89), but still important. • Registration:

•Required for suit •If timely made, allows collection of statutory damages and attorneys fees.

•Notice: Prevents infringer from claiming innocent infringement.

11/07/2016 48

11/07/2016

11/07/2016 49

DURATION – CURRENT RULES

Copyrights in works created on or after

1.1.1978 endure for

•the author’s life plus 70 years or, •95 years from publication or 120 years from creation, whichever is shorter.

•for works made for hire or anonymous or pseudonymous works

Pre-1923 works are in the public domain. 11/07/2016 50

11/07/2016

INFRINGEMENT

Elements of a direct infringement claim:

• ownership of valid copyright; • unauthorized use of an exclusive right (e.g. reproduction, adaptation, etc.)

11/07/2016 51

REMEDIES

• Injunctions

• Impoundments

• Attorney Fees

• Damages

• Actual

• Statutory ($750 to $30,000; $150K if willful)

• Criminal 11/07/2016 52

11/07/2016

CRIMINAL COPYRIGHT INFRINGEMENT • Any person who willfully infringes a copyright shall be punished … if

the infringement was committed--

• for purposes of commercial advantage or private financial gain;

• by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or

phonorecords of 1 or more copyrighted works, which have a

total retail value of more than $1,000; or

• by the distribution of a work being prepared for commercial distribution, by making it available on a computer network

accessible to members of the public, if such person knew or

should have known that the work was intended for commercial

distribution. 11/07/2016 53

INFRINGERS

Direct

Secondary - Contributory - Vicarious

11/07/2016 54

11/07/2016

CONTRIBUTORY LIABILITY/INFRINGEMENT

• D has actual or constructive knowledge of the infringement;

• D induces, causes or materially contributes to the infringement.

11/07/2016 55

VICARIOUS LIABILITY/INFRINGEMENT

• D has the right and ability to control the infringement;

• D has a direct financial benefit from the infringement.

11/07/2016 56

11/07/2016

�§107: Fair Use

� § 108: Library Copying

� § 109: First-Sale Doctrine

� § 110: Displays and Performances

� § 114: Transmissions of Sound Recordings

� § 115: Compulsory Licenses/Recordings

� § 120: Architectural Works

� § 121: Persons with Disabilities

11/07/2016 57

11/07/2016 58

11/07/2016

§107 FAIR USE DEFENSE

1) Purpose and character of use. - Commercial or non-commercial? - Transformative?

2) Nature of copyrighted work. - Published or unpublished? - Highly creative or fact-based?

3) Amount and substantiality of work used.

4) Market effect. - Actual or potential?

11/07/2016 59

§512 IN A NUTSHELL

11/07/2016 60

11/07/2016

§512(C) SAFE HARBOR – NOTICE AND TAKEDOWN

Meet Threshold Requirements of (i) and (k) 1. Be a “service provider” under (k) 2. Adopt policy for terminating repeat infringers 3. Reasonably implement that policy 4. Communicate that policy to users 5. Accommodate “standard technical measures” of CROs

Lack Knowledge of Infringement 6. Have no actual knowledge of infringement 7. Have no awareness of facts/circumstances that infringement is

apparent (the “red flag test”; 17 U.S.C. § 512(c)(1)(A)(ii).) 8. upon obtaining such knowledge or awareness, act expeditiously to

remove, or disable access to, the material

Have No “Vicarious-Type” Responsibility 9. do not receive a financial benefit directly attributable to the

infringing activity, where you have the right and ability to control such activity

Designate Agent to Receive 512(c)(3) Notices 10. Register agent’s info with Copyright Office 11. Post agent’s contact info on website 12. Expeditiously respond to 512(c)(3) notices 11/07/2016 61

11/07/2016 62

11/07/2016

TRADEMARK

11/07/2016 63

11/07/2016 64

11/07/2016

11/07/2016 65

11/07/2016 66

11/07/2016

WHAT IS A TRADEMARK?

� A device (word, name, phrase, symbol, product shape, logo,

etc.) used by a maker or seller to identify its goods, to

distinguish those goods from those made or sold by another,

and to indicate the maker/seller as the source of those goods.

� Service marks are used on services rather than goods

� 3 principal elements

� Identifies

� Distinguishes

� Indicates source

� Governed by the Lanham Act; 15 U.S.C. 1051+

11/07/2016 67

11/07/2016 68

11/07/2016

GENERICIDE - EXAMPLES

• Cellophane – Originally a TM of DuPont

• Escalator – Originally a TM of Otis Elevator Company

• Kerosene – First used around 1852

• Linoleum – Floor covering

• Pilates exercise system – United States TM formally canceled by court in 2000

• Trampoline – Originally TMed by George Nissen

• Yellow Cab – Taxi company name declared generic in the U.S. in 2007 in a Supreme Court case arising out of Sacramento, California

• Zipper – Originally a TM of B.F. Goodrich

• Source: Wikipedia 11/07/2016 69

GENERICIDE PREVENTION ADS

11/07/2016 70

11/07/2016

CONSUMER CONFUSION

11/07/2016 71

11/07/2016 72

11/07/2016

ADWORDS IN ACTION

11/07/2016 73

PRIVACY

11/07/2016 74

11/07/2016

11/07/2016 75

11/07/2016

11/07/2016 77

3 MOST GENERALLY APPLICABLE INTERNET PRIVACY LAWS

•Federal Trade Commission (FTC) Act

• Electronic Communications Privacy Act (ECPA) (1986)

•Computer Fraud and Abuse Act (CFAA)

11/07/2016 78

11/07/2016

ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA) (1986)

• The Wiretap Act • interception of private communications while in transit

• Stored Communications Act (SCA) • accessing communications after transmission, now in

storage

• Disclosure to the government of transactional information

• Consent is a defense 11/07/2016 79

INDUSTRY-SPECIFIC REGULATIONS

•Financial: Gramm Leach Bliley Act

•Health: HIPAA

• Video Rental: Video Privacy Protection

Act

•Credit: Fair Credit Reporting Act

11/07/2016 80

11/07/2016

CHILDREN'S ONLINE PRIVACY PROTECTION ACT (COPPA) (2001)

• Applies to commercial websites that market to, or knowingly collect data from,

children12 and under • Notice: obtain verifiable parental consent before collecting, using,

or disclosing data collected from the kids.

• Access: allow the parents to review the data that is collected and restrict future use and collection

• Choice: cannot condition participation upon unnecessary data disclosure.

• Security: use reasonable security procedures. 11/07/2016 81

11/07/2016 82

11/07/2016

RE-IDENTIFICATION

11/07/2016 83

SOCIAL MEDIA

11/07/2016 84

11/07/2016

From: Paul Davis (North America) Sent: Thursday, November 01, 2007 4:54 PM To: Kevin Colvin; Jill Thompson (North America); Kevin Colvin (North America) Subject: RE:

Kevin, Thanks for letting us know--hope everything is ok in New York. (cool wand) Cheers, PCD

Facebook, A Cautionary Tale

11/07/2016 86

11/07/2016

11/07/2016 87

11/07/2016 88

11/07/2016

11/07/2016 89

11/07/2016 90

11/07/2016

MORENO V HANFORD SENTINEL

11/07/2016 91

“ODE TO COALINGA” POSTED TO MORENO’S MYSPACE PAGE

• “Looking back at the people I saw in Coalinga this weekend...I pity them”

• “I don't care much for Coalinga. or the people that reside there or the friends I used to have while being there. In

comparison to my college friends, they are nothing, were

nothing, and remain nothing”

• “I think inside these individuals (and you all know who you are) know they can’t make it in life”

• “That's right ******...envy me because thats all you can do”

• “that is all that you really can do...talk nonsense **** because you are nothing....”

11/07/2016 92

11/07/2016

MORENO V HANFORD SENTINEL

• Moreno’s MySpace page visible by ~300 followers/friends

• Moreno deletes post after 6 days

• But not before one of her “friends” sends the Ode to her former HS principal, who

forwards it to his friend, the local newspaper

editor… 11/07/2016 93

11/07/2016 94

11/07/2016

MORENO V HANFORD SENTINEL

11/07/2016 95

11/07/2016

PRIVATE ENFORCEMENT OF IP AND OTHER

RIGHTS ON THE INTERNET

ANTHONY J. ROSE

11/07/2016 2

11/07/2016

A CLASSIC (1993)

11/07/2016 3

AN UPDATE (2013)

11/07/2016 4

11/07/2016

CONTRACTS

11/07/2016 5

11/07/2016 6

11/07/2016

11/07/2016 7

THE “TRIPLE WRAPPER” THAT INCREASINGLY REGULATES OUR BEHAVIOR

• 1 - Laws

• 2 - Technological controls

• 3 - Contracts

11/07/2016 8

11/07/2016

JARGON

•Shrinkwraps

•Clickwraps

•Browsewraps 11/07/2016 9

11/07/2016 10

11/07/2016

EBAY’S BROWSEWRAP

11/07/2016 11

11/07/2016 12

11/07/2016

DEFAMATION AND SEC. 230

11/07/2016 13

INTRODUCTION TO DEFAMATION (LIBEL/SLANDER)

• Def’n: A statement that injures someone’s reputation or exposes to public hatred,

contempt, ridicule, shame, disgrace, or

affects business adversely.

• Slander: verbal

• Libel: written (Internet) 11/07/2016 14

11/07/2016

I GOT MAD POWERPOINT SKILZ, YO

User 1 User 2

Website

11/07/2016 15

DILEMMA

•Don’t intervene > unsafe environment for kids

•Do intervene > liable for what you miss 11/07/2016 16

11/07/2016

THE COMMUNICATIONS DECENCY ACT (CDA) OF 1996

PROTECTION FOR GOOD SAMARITAN BLOCKING AND SCREENING OF

OFFENSIVE MATERIAL

47 USC § 230(C)(1)

“No provider or user of an interactive

computer service shall be treated as the

publisher or speaker of any information

provided by another information content

provider.” 11/07/2016 17

KEEPING IT REAL SIMPLE

Websites are not liable

for third party content.*

*mostly

11/07/2016 18

11/07/2016

EXPLICIT LIMITATIONS/EXCEPTIONS; §230(E)

� (1) No effect on criminal law. Nothing in this § shall be

construed to impair the enforcement of § 223 or 231 of this title,

chapter 71 (relating to obscenity) or 110 (relating to sexual

exploitation of children) of title 18, or any other Federal

criminal statute.

�(2) No effect on [federal] intellectual property law.

Nothing in this section shall be construed to limit or

expand any law pertaining to intellectual property.

11/07/2016 19

11/07/2016 20

11/07/2016

11/07/2016 21

JONES V. THEDIRTY.COM

11/07/2016 22

11/07/2016

JONES V. THEDIRTY.COM

• Suit by ex-Bengals cheerleader and ex-high school teacher

• Sued wrong site

• Later charged with having sex w/minor – later engaged

• Now taking LSAT

• Gossip submitted by a site reader; site moderator added his own comment, “Why are high school

teachers freaks in the sack?”

• Suit filed Dec. 2009 11/07/2016 23

JONES V. THEDIRTY.COM

• §230 DENIED: “by reason of the very name of the site, the manner in which it is managed, and the

personal comments of defendant Richie, the

defendants have specifically encouraged

development of what is offensive about the content

of the site”

• Kentucky jury awarded $338,000 in damages.

• On appeal to CTA6… 11/07/2016 24

11/07/2016

JONES V. THEDIRTY.COM

• CTA6: • Reversed. §230 immunity.

• “Although ludicrous, Richie's remarks did not materially contribute to the defamatory content of the posts

appearing on the website. More importantly, the CDA bars

claims lodged against website operators for their editorial

functions, such as the posting of comments concerning third-

party posts, so long as those comments are not themselves

actionable.”

11/07/2016 25

COMPUTER TRESPASS

11/07/2016 26

11/07/2016

11/07/2016 27

11/07/2016 28

11/07/2016

MAYBE IT’S TIME TO BE SUSPICIOUS OF COMPUTERS AGAIN

11/07/2016 29

INDIANA CODE §35-43-2-3(B)

• “A person who knowingly or intentionally accesses: • (1) a computer system;

• (2) a computer network; or

• (3) any part of a computer system or computer network;

• without the consent of the owner of the computer system or computer network, or the consent of the owner's licensee

• commits computer trespass, a Class A misdemeanor.”

• Also: Civil Actions by Crime Victims 34-24-3-1

11/07/2016 30

11/07/2016

CFAA

• 1984 anti-hacking statute

• “Intentionally accessing a computer without authorization or exceeding

authorized access and obtaining

information from a protected computer”

• $5000 minimum for civil actions

11/07/2016 31

COMPUTER FRAUD AND ABUSE ACT, 18 U.S.C. § 1030 (CFAA) RELEVANT OFFENSES

• knowingly accessing a computer without authorization (or exceeding authorized access), and obtaining information from any protected computer [(a)(2)(C)];

• knowingly accessing a protected computer with the intent to defraud and there by obtaining anything of value (5K/yr min.) [(a)(4)];

• knowingly causing the transmission of a program, information, code, or command that causes damage to a protected computer [(a)(5)(A)];

• intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage [(a)(5)(B)];

• intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss [(a)(5)(C)];

11/07/2016 32

11/07/2016

CFAA DEFINITIONS

• “Protected computer” = “which is used in or affecting interstate or foreign commerce or communication”

• any computer connected to the Internet.

• “Damage” = impairment to integrity/availability of data, program, system or information

11/07/2016 33

CFAA CIVIL REMEDIES

• (g): Anyone suffering damage or loss can maintain a civil action…

• but only if (c)(4)(A)(i) subsections (I)-(V) are satisfied: • loss of at least $5k/yr • [medical harm] • physical injury • threat to public health/safety • damage to government computer

11/07/2016 34

11/07/2016

11/07/2016 35

LORI DREW

11/07/2016 36

11/07/2016

11/07/2016 37

MYSPACE TERMS OF USE • By using the MySpace Services, you represent and warrant that (a) all

registration information you submit is truthful and accurate; (b) you will maintain

the accuracy of such information; … and (d) your use of the MySpace Services

does not violate any applicable law or regulation.

• The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the MySpace Services. MySpace.com reserves the right to

investigate and take appropriate legal action against anyone who, in

MySpace.com's sole discretion, violates this provision, including without

limitation, removing the offending communication from the MySpace Services

and terminating the Membership of such violators. Prohibited Content includes,

but is not limited to Content that, in the sole discretion of MySpace.com:

• harasses or advocates harassment of another person

• promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous

11/07/2016 38

11/07/2016

MySpace

Mom Victim

11/07/2016 39

11/07/2016 40

11/07/2016

read

sell

give

burn

11/07/2016 41

On the Internet, every

act is a copy.

11/07/2016 42

11/07/2016

11/07/2016 43

ORIGINALITY AND FIXATION

• original works of authorship;

• fixed in a tangible medium of expression.

11/07/2016 44

11/07/2016

WHAT IS NOT PROTECTED?

• Ideas (idea/expression dichotomy)

• Facts

• Procedures

• Processes

• Systems

• Concepts

• Principles

• Discoveries and inventions (patents)

• Trademarks

11/07/2016 45

11/07/2016 46

11/07/2016

EXCLUSIVE RIGHTS

1. reproduction;

2. distribution;

3. public performance (for sound recordings, digital performances only);

4. public display;

5. adaptation (derivative work). 11/07/2016 47

FORMALITIES

•Not required for copyright ownership to vest (as of 3/1/89), but still important. • Registration:

•Required for suit •If timely made, allows collection of statutory damages and attorneys fees.

•Notice: Prevents infringer from claiming innocent infringement.

11/07/2016 48

11/07/2016

11/07/2016 49

DURATION – CURRENT RULES

Copyrights in works created on or after

1.1.1978 endure for

•the author’s life plus 70 years or, •95 years from publication or 120 years from creation, whichever is shorter.

•for works made for hire or anonymous or pseudonymous works

Pre-1923 works are in the public domain. 11/07/2016 50

11/07/2016

INFRINGEMENT

Elements of a direct infringement claim:

• ownership of valid copyright; • unauthorized use of an exclusive right (e.g. reproduction, adaptation, etc.)

11/07/2016 51

REMEDIES

• Injunctions

• Impoundments

• Attorney Fees

• Damages

• Actual

• Statutory ($750 to $30,000; $150K if willful)

• Criminal 11/07/2016 52

11/07/2016

CRIMINAL COPYRIGHT INFRINGEMENT • Any person who willfully infringes a copyright shall be punished … if

the infringement was committed--

• for purposes of commercial advantage or private financial gain;

• by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or

phonorecords of 1 or more copyrighted works, which have a

total retail value of more than $1,000; or

• by the distribution of a work being prepared for commercial distribution, by making it available on a computer network

accessible to members of the public, if such person knew or

should have known that the work was intended for commercial

distribution. 11/07/2016 53

INFRINGERS

Direct

Secondary - Contributory - Vicarious

11/07/2016 54

11/07/2016

CONTRIBUTORY LIABILITY/INFRINGEMENT

• D has actual or constructive knowledge of the infringement;

• D induces, causes or materially contributes to the infringement.

11/07/2016 55

VICARIOUS LIABILITY/INFRINGEMENT

• D has the right and ability to control the infringement;

• D has a direct financial benefit from the infringement.

11/07/2016 56

11/07/2016

�§107: Fair Use

� § 108: Library Copying

� § 109: First-Sale Doctrine

� § 110: Displays and Performances

� § 114: Transmissions of Sound Recordings

� § 115: Compulsory Licenses/Recordings

� § 120: Architectural Works

� § 121: Persons with Disabilities

11/07/2016 57

11/07/2016 58

11/07/2016

§107 FAIR USE DEFENSE

1) Purpose and character of use. - Commercial or non-commercial? - Transformative?

2) Nature of copyrighted work. - Published or unpublished? - Highly creative or fact-based?

3) Amount and substantiality of work used.

4) Market effect. - Actual or potential?

11/07/2016 59

§512 IN A NUTSHELL

11/07/2016 60

11/07/2016

§512(C) SAFE HARBOR – NOTICE AND TAKEDOWN

Lack Knowledge of Infringement 6. Have no actual knowledge of infringement 7. Have no awareness of facts/circumstances that infringement is

apparent (the “red flag test”; 17 U.S.C. § 512(c)(1)(A)(ii).) 8. upon obtaining such knowledge or awareness, act expeditiously to

remove, or disable access to, the material

Have No “Vicarious-Type” Responsibility 9. do not receive a financial benefit directly attributable to the

infringing activity, where you have the right and ability to control such activity

Designate Agent to Receive 512(c)(3) Notices 10. Register agent’s info with Copyright Office 11. Post agent’s contact info on website 12. Expeditiously respond to 512(c)(3) notices 11/07/2016 61

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TRADEMARK

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WHAT IS A TRADEMARK?

� A device (word, name, phrase, symbol, product shape, logo,

etc.) used by a maker or seller to identify its goods, to

distinguish those goods from those made or sold by another,

and to indicate the maker/seller as the source of those goods.

� Service marks are used on services rather than goods

� 3 principal elements

� Identifies

� Distinguishes

� Indicates source

� Governed by the Lanham Act; 15 U.S.C. 1051+

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GENERICIDE - EXAMPLES

• Cellophane – Originally a TM of DuPont

• Escalator – Originally a TM of Otis Elevator Company

• Kerosene – First used around 1852

• Linoleum – Floor covering

• Pilates exercise system – United States TM formally canceled by court in 2000

• Trampoline – Originally TMed by George Nissen

• Yellow Cab – Taxi company name declared generic in the U.S. in 2007 in a Supreme Court case arising out of Sacramento, California

• Zipper – Originally a TM of B.F. Goodrich

• Source: Wikipedia 11/07/2016 69

GENERICIDE PREVENTION ADS

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CONSUMER CONFUSION

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ADWORDS IN ACTION

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PRIVACY

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3 MOST GENERALLY APPLICABLE INTERNET PRIVACY LAWS

•Federal Trade Commission (FTC) Act

• Electronic Communications Privacy Act (ECPA) (1986)

•Computer Fraud and Abuse Act (CFAA)

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11/07/2016

ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA) (1986)

• The Wiretap Act • interception of private communications while in transit

• Stored Communications Act (SCA) • accessing communications after transmission, now in

storage

• Disclosure to the government of transactional information

• Consent is a defense 11/07/2016 79

INDUSTRY-SPECIFIC REGULATIONS

•Financial: Gramm Leach Bliley Act

•Health: HIPAA

• Video Rental: Video Privacy Protection

Act

•Credit: Fair Credit Reporting Act

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CHILDREN'S ONLINE PRIVACY PROTECTION ACT (COPPA) (2001)

• Applies to commercial websites that market to, or knowingly collect data from,

children12 and under • Notice: obtain verifiable parental consent before collecting, using,

or disclosing data collected from the kids.

• Access: allow the parents to review the data that is collected and restrict future use and collection

• Choice: cannot condition participation upon unnecessary data disclosure.

• Security: use reasonable security procedures. 11/07/2016 81

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RE-IDENTIFICATION

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SOCIAL MEDIA

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From: Paul Davis (North America) Sent: Thursday, November 01, 2007 4:54 PM To: Kevin Colvin; Jill Thompson (North America); Kevin Colvin (North America) Subject: RE:

Kevin, Thanks for letting us know--hope everything is ok in New York. (cool wand) Cheers, PCD

Facebook, A Cautionary Tale

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11/07/2016

MORENO V HANFORD SENTINEL

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“ODE TO COALINGA” POSTED TO MORENO’S MYSPACE PAGE

• “Looking back at the people I saw in Coalinga this weekend...I pity them”

• “I don't care much for Coalinga. or the people that reside there or the friends I used to have while being there. In

comparison to my college friends, they are nothing, were

nothing, and remain nothing”

• “I think inside these individuals (and you all know who you are) know they can’t make it in life”

• “That's right ******...envy me because thats all you can do”

• “that is all that you really can do...talk nonsense **** because you are nothing....”

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11/07/2016

MORENO V HANFORD SENTINEL

• Moreno’s MySpace page visible by ~300 followers/friends

• Moreno deletes post after 6 days

• But not before one of her “friends” sends the Ode to her former HS principal, who

forwards it to his friend, the local newspaper

editor… 11/07/2016 93

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MORENO V HANFORD SENTINEL

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