From time to time, people write in with short questions about intellectual property law. We’re always happy to help educate the public about their IP rights, so KLF Legal tries to respond to each inquiry as best we can. The answers tend to be brief since the questions don’t typically include alot of information. However, I thought it might be helpful to share these questions from time to time in a new post category entitled “Dear KLF Legal”…enjoy!

Q: Recently, while visiting family in Hawaii, I was watching TV and stumbled upon an On Demand station entitled PhotoShow TV. Being a photographer, I was intrigued thinking perhaps it was a show covering the latest in photography products and trends. I quickly discovered this was not the case, instead it was a listing of user created photo slideshows that were set to music. These slideshows can be created on the web then published so that anyone can watch them through their Time Warner Oceanic Cable service.

So, my question is two fold, if someone uploads photos and music that they do not have the rights to then who assumes the responsibility for the infringement, Time Warner Oceanic (TWO) or the individual who uploaded the media? I don’t know much about the service but I do know that TWO must approve the content to make sure it is not graphic or offensive. Since they have reviewed and approved all materials, does the infringement responsibility then become theirs?

Here is a link to a bit more information.

A: Thanks for your question.  This is very much an issue du jour in copyright/internet law.  The Digital Millennium Copyright Act (DMCA), Section 512, is the applicable law, but it’s appropriate application is not particularly clear right now.

Some info about the DMCA:

In the online world, the potentially infringing activities of individuals are stored and transmitted through the networks of third parties. Web site hosting services, Internet service providers, and search engines that link to materials on the Web are just some of the service providers that transmit materials created by others. Section 512 of the DMCA protects online service providers (OSPs) from liability for information posted or transmitted by subscribers if they quickly remove or disable access to material identified in a copyright holder’s complaint (generally referred to as a DMCA takedown notice).

In order to qualify for safe harbor protection, a service provider who hosts content must:

* have no knowledge of, or financial benefit from, infringing activity on its network
* have a copyright policy and provide proper notification of that policy to its subscribers
* list an agent to deal with copyright complaints

Of course, copyright owners want to hold the service providers liable, while the service providers want to claim immunity.

So, to answer your question, arguably TWO has knowledge of the infringing activity if they review each submission as you suggest.  This would put them outside the safe harbor and expose them to liability.  BUT, I suspect that they’re careful (or should be) about the manner in which they review submissions so that they can still claim the safe harbor protection.  The bottom line is it’s a gray area in the law that will probably be sorted out soon at the higher levels by the big players in the industry, Warner Music, YouTube, etc.

Hope this helps.

KLF Legal

Q:  I want to produce a game and get a patent to protect it, but it is based off of another license. Do I have to get permission to use the license before I try to get the patent or should I get the patent first?

A:  Obtaining a patent can be expensive (think $5,000-$20,000) and the procedure is lengthy (2+ years) so you almost certainly will not want to get a patent first before you are sure that you are cleared to do so.  Go back to the license…does it speak to this issue? If you have trouble understanding the language of the license, you may need to have an attorney help you review it.  Also, keep in mind that to receive a patent your game must be new, non-obvious and useful. In other words, don’t dump a lot of time and expense into getting a patent before you’ve checked to make sure that a patent could even be received. You can do so by having an patentability search performed on your behalf.

Here’s a helpful article that discusses the benefit of patents in the game industry.

Good luck with your game.

KLF Legal