Stories from the Week that Was – 11/13-11/19/11

Stories from the Week that Was – 11/13-11/19/11

Press Russia on intellectual property: US lawmakers

Criminal Case Glut Impedes Civil Suits

Picking Brand Names in China Is a Business Itself

The Entrepreneurial Generation

The NLRB’s Obsession with Social Media Continues

Viacom so devastated by piracy that CEO gets $50 million raise

Woman decapitated after anti-crime blog, police say

Attorneys seek to auction Righthaven copyrights

Artists Sue CBS, CNET, for Promoting and Profiting from Piracy

SOPA and Protect IP: What Legal Nightmares Are Made of

Number of 90-plus people likely to quadruple by 2050

Are Digital Resale Markets Legal? Should They Be?

“Humanity is acquiring all the right technology for all the wrong reasons.” -R. Buckminster Fuller

Stories from the Week that Was – 10/30-11/5/11

Stories from the Week that Was – 10/30-11/5/11

Protecting Your Online Reputation: 4 Things You Need to Know

Major Book Publisher Files Mass-BitTorrent Lawsuit

Occupy Wall Street applies for trademark

Just how big is 7 billion?

People Who Use Macs At Work Are Richer And More Productive

WIPO IP Facts and Figures 2011

Indiana Lawyers Present: The CASE for Social Media

Kenan Farrell will be speaking at this upcoming seminar, Indiana Lawyers Present: The CASE for Social Media.

“Don’t miss this unique opportunity to learn from Indiana attorneys on how to use social media to generate clients, connect with legal professional, validate your area of expertise, drive website traffic and so much more!”

Social Media Law – Presentation Video

Here’s the video from my July 8, 2011 presentation to the Richmond Social Media Group on social media law:

PCCU Presents Richmond Social July 8, 2011 from Richmond Social on Vimeo.

Thanks to PCCU and Whitewater Community Television for your help!

Businesses, Know thy Facebook Admin

The new Facebook Pages (which I personally think are a nice upgrade) just made the workplace social media equation a little more complicated. Pages now act and feel like personal profiles and your organization’s Page can now post updates directly on other Pages’ Walls. The upgrade could be great for B2B networking, but it also enhances legal risks to Page admins and their organizations.

New Page Example: After logging in and upgrading the Page, I switched my Facebook access over to control of the Vonnegut Library (just click “Use Facebook as Page” under “Account” and it gives you a full list of the pages you admin).

Then I went to Nuvo‘s wall and posted a message. (Thanks Nuvo!) Rather than posting as Kenan Farrell, I’m now able to post as the Vonnegut Library.  For comparison, I also posted an update on Nuvo’s wall the “ol’-fashion” way, by tagging Nuvo in a status update.

While controlling a Page, the Notifications will be your Page’s notifications rather than personal notifications. The Friend tab will be all the folks who’ve “Liked” your Page.

You can see on the right in the image above, under the list of Admins, “Use Facebook as Kenan.” Facebook has made it extremely easy to switch back and forth between personal and business identities.

This upgrade goes a long way toward allowing businesses* to communicate independently of a particular individual’s identity. No longer restricted to their own Walls, Pages can go forth throughout Facebook and spread their unique message. Pages now allow organizations to more directly have a unified, branded voice in Facebook politics:

My caution to businesses…know your Page admins. Don’t give your company’s bullhorn to someone with whom you’ve had no discussion about communication strategy. Make sure they understand what is and isn’t appropriate to be saying on behalf of the company. Make sure they understand proper usage of trademarks, both yours and those of 3rd parties.

Admins must be increasingly mindful of which account they are posting from, especially since it is now so easy to switch back and forth between personal and business accounts (or switch to another unrelated Page account. I manage 8 accounts myself…what might be appropriate for one Page may not be from another). Defamation, privacy and securities lawsuits await the casual admin who makes personal comments from a business Page. FTC and unfair competition lawsuits await those who make business comments from a personal account (e.g. false testimonials, unsolicited endorsements).

Related note: be sure to have a CEO, owner or some other key employee listed as an Admin. With all the recent news about companies losing their domain names to wayward IT staff, you want to be sure you have a stake in your organization’s Facebook Page.

What do you think of the new Facebook Pages? A business communications boon or a legal minefield?

(*I use the term “business” broadly above. Read it to include most anybody who has a Page they’re using to promote a product or service.)

Indiana Copyright Litigation Update – Truth Publishing Company Inc. v. Kristopher C. Campbell

Truth Publishing Company Inc. v. Kristopher C. Campbell

Plaintiff operates a daily newspaper called THE ELKHART TRUTH in Elkhart, Indiana. Defendant publishes a periodical called I.C.U. (Indiana Criminals Uncovered) MUG SHOTS. I.C.U. MUG SHOTS apparently copies news stories relating to crime and arrests directly from Plaintiff’s paper and sells the reprints for $1.50 a copy in Elkhart.

I can see why The Elkhart Truth would get tired of sending out its reporters to dig up info only to have another local paper photocopy their stories and republish. But, on some levels, isn’t Defendant doing a public service by helping spread information about criminals? Defendant certainly considered the copyright issues, as he included the following disclaimer:

“The information provided by Indiana Criminal Uncovered (ICU) Mugshots is of public record in accordance with Indiana Code 5-14-3-5. The information relates only to arrest, bookings, and preliminary charges. It does not address guilty pleas, convictions, or criminal sentences. All persons in this publication are innocent until provent guilty”

Whether the disclaimer can protect him will be determined by this lawsuit.

Defendant is running the old-school equivalent of a criminal law blog, which of course requires a little money for printing and distribution. Defendant is correct that mug shots and arrest records are public information. However, it appeared that Defendant copied the articles directly and distributed the reprints in the same geographic market, Elkhart.

While it’s likely that some people may not buy the Truth if they can get crime news from Defendant, there is apparently a wholly separate market of people who want crime stories but not the rest of the news content contained in a regular issue of the Truth. If so, Defendant may be able to continue to serve this audience, but will probably want to do more of his own fact-finding and reporting.

Court Case Number: 3:11-cv-00017-JD-CAN
File Date: Thursday, January 13, 2011
Plaintiff: Truth Publishing Company Inc.
Plaintiff Counsel: Steven M. Badger of Bose McKinney & Evans LLP
Defendant: Kristopher C. Campbell
Cause: Copyright Infringement
Court: Northern District of Indiana
Judge: Judge Jon E. DeGuilio
Referred To: Magistrate Judge Christopher A. Nuechterlein

Superhero Law Debated on New Blog

There’s a fun new blog, Law and the Multiverse, that applies real world law to comic book scenarios. In their words:

If there’s one thing comic book nerds like doing it’s over-thinking the smallest details.  Here we turn our attention to the hypothetical legal ramifications of comic book tropes, characters, and powers.  Just a few examples: Are mutants a protected class?  Who foots the bill when a hero damages property while fighting a villain?  What happens legally when a character comes back from the dead?

The blog touches on many different areas of law, including intellectual property. Here is an excerpt:

In the real world comic book characters and their likenesses have been made into toys, video games, movies, television shows, lunchboxes, bed sheets, and innumerable other things. All of these secondary uses are mediated through intellectual property rights, particularly copyright and trademark rights. But if Superman were a real person, how might the situation be different? Could just anyone slap his image or iconic S shield on a lunchbox? What about uses that suggest that Superman endorses a product or service? (“Try Metropolis Brewery Beer, the choice of the Man of Steel!”) Or worse, what about revealing a superhero’s secret identity?

Their latest post explores a favorite topic of the Indiana Intellectual Property Blog, privacy rights:

From a superhero’s point of view, the main issues here are intrusion into his or her secret identity and secret headquarters, if applicable.  The latter case is squarely within the scope of the tort (physical intrusion into a home or office is a classic example of the tort), so let’s focus on the issue of secret identity.  In particular, does a superhero’s secret identity fall under the scope of the second element?  And when we say “reasonable person” do we mean a reasonable regular person or a reasonable superhero, or does it matter?

The answer to the first question is probably yes.  Courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place.  See, e.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”).  As the definition states, the intrusion need not be directly physical and can include demands and threats.  Phillips, 435 So.2d at 711.

For the full post and to explore other areas of law, visit Law and the Multiverse.  One of the blog authors is a recent grad of Notre Dame Law School.  I’m looking forward to reading the future posts on copyright and trademark.

November 2010 IP&T News Summary

For those who don’t follow KLF Legal on Facebook or Twitter, here are some of the stories I shared in November. Wikileaks, copyright trolls and Sarah Palin, oh my.

Scan the headlines and you may find something interesting:

Rethink social media policies in light of NLRB complaint, lawyers say

US embassy cables: The job of the media is not to protect the powerful from embarrassment

Blogger released from Egyptian jail after four years

SAP Must Pay Oracle $1.3 Billion Over Unit’s Downloads

Judge to Righthaven: Show why lawsuit shouldn’t be dismissed

David Kernell, Palin E-mail Hacker, Sentenced To Year In Custody

Sarah Palin sues website for leaking excerpts of new book

Oregon Senator Vows To Block Internet Blacklist Bill

Lawyer wants “Goliath verdict” against RIAA in abuse trial

Labor board: Facebook vent against supervisor not grounds for firing

Police recruits must provide social sites’ passwords

Legal Attack on Internet Music Storage Threatens ‘Safe Harbor’ Rules for Online Businesses

The Case Against COICA

Dealing with Online Customer Reviews

Copyright Lawyers Sue Lawyer Who Helped Copyright Defendants

New Oklahoma law gives estate executors control over the social networking profiles of dead people

Bach: Anti-Copyright Activist?

The State of The Music Industry and the Delegitimization of Artists

Every Inch Counts: Porn Filesharing Lawsuits Crest 30K Defendants

Recent months: October

Sarah Palin sues website for leaking excerpts of new book

A federal judge on Saturday ordered Gawker Media to pull leaked pages of Sarah Palin’s forthcoming book “America by Heart: Reflections on Family, Faith and Flag” from its blog. Palin’s book will hit stores on Nov. 23.

The injunction prohibits Gawker from “continuing to distribute, publish or otherwise transmit pages from the book” pending a hearing on Nov. 30.
HarperCollins Publishers had sued Gawker after it published images on Nov. 17 from Palin’s book before its release next week.

In response, Palin tweeted, “Isn’t that illegal?”

Gawker defended its action in a post Thursday titled “Sarah Palin is Mad at Us for Leaking Pages From Her Book” and addressed a message to “Sarah” telling her to read pages about fair use under copyright law. “Or skip the totally boring reading and call one of your lawyers,” the post said. “They’ll walk you through it.”

I’ll go a step further and save Sarah and everyone else the trouble of contacting a lawyer…Gawker’s posting of the pages was almost certainly a fair use.  “Fair use” is a limitation and exception to a copyright, the exclusive right to the author of a creative work.  The posting of excerpts for book reviews is an accepted practice and has been since at least 1961. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations.”

There are four factors to be considered in determining whether or not a particular infringing use is “fair”:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Gawker may be considered to have a commercial interest in publishing the excerpts, via increased web traffic, ad sales, etc. However, they can claim an equally strong, if not greater, interest in criticism, comment, news reporting, teaching, scholarship or research (all “fair use” purposes). I wasn’t able to view the excerpts prior to their removal via the injunction but I understand it was not a substantial portion of the book. If anything, prior leaks only seem to enhance book sales. Would anyone be surprised if someone close to Palin’s camp was responsible for leaking the excerpts?

Presumably, it’s the nature of the “leak” prior to the book being on sale that has bothered Palin. But that’s also a common practice and most publishers consider it welcome free advertising leading into a big book launch. The next hearing is November 30, a week after the book release, so this may be a moot point by that time.

Sarah Palin’s main gripe may actually be with the excerpts being taken “out-of-context.” However, that wouldn’t be a copyright action, it would be an action for something like fraudulent misrepresentation (“If a statement of fact is made but the representor fails to include information which would significantly alter the interpretation of this fact, then a misrepresentation may have occurred.”). The Complaint isn’t available on PACER yet so I’m not sure what else it includes. Somebody send me a copy if you have it.

Copyright law has been abused in many ways by many industries recently, but hopefully this post will at least help restore sanity to the realm of book reviews.

[Update 11/23/10: I’ve been able to review the Complaint now. It’s available over on The Trademark Blog. Gawker posted 21 full pages from Palin’s book and that is almost certainly more substantial copying than you’d see in a typical review. Indeed, it may shift the fair use analysis over to Palin/HarperCollins. However, it also makes Palin’s comment of “out-of-context” seem silly…how do you take 21 full pages out of context?

The Complaint also dwells on Gawker’s own use of the word “leaked” as an admission of wilful infringement, probably poor word choice in retrospect and a lesson that newspapers learned long ago. We’ll see how this plays out once the book is released. Expect a mini-battle over revealing the source of the leak and, should it go that far, some data showing that the leak actually helped sales.]

Source: Associated Press