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~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Category Archives: Legislation

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

20 Sunday Nov 2011

Posted by Kenan Farrell in Bloggers, Copyright, Entertainment Law, Intellectual Property, Legislation, Litigation, Musicians, Privacy, Social Media, Stories from the Week that Was, Tech Developments

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Intellectual Property, Righthaven, Social Media, Viacom

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

Indiana AG Greg Zoeller to Lobby Congress Against Cellphone Bill

03 Thursday Nov 2011

Posted by Kenan Farrell in Federal Initiatives, Indiana, Legislation, Litigation, Southern District of Indiana, Tech Developments

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Do Not Call, Greg Zoeller

Indiana Attorney General Greg Zoeller said he will lobby Congress on Friday against a federal bill he says would strip the telephone privacy rights of residents in Indiana. Zoeller plans to testify before the House Energy and Commerce Committee’s Subcommittee on Communications and Technology against House Resolution 3035, a primarily Republican-backed bill being considered in the U.S. House. The bill would allow telemarketers and debt collectors to start dialing residents’ cellphones and, if approved, would override Indiana’s “Do Not Call” law and lead to a flood of robocalls to people’s phones, Zoeller said Wednesday.

Supporters of the bill say it would update federal law to allow businesses to compete in an environment where cellphones have largely replaced landlines.

Zoeller is fighting on multiple legal fronts to maintain Indiana’s strong “Do Not Call” law and ban on political robocalls.

The Southern District of Indiana ruled in September that Indiana’s ban on political robocalls violated the federal Telephone Consumer Protections Act which governs interstate communications. The Indiana Supreme Court is separately considering whether the state rightfully enforced the measure against FreeEats.com.

For more info, see the Journal and Courier.

Indiana lawmakers to consider upskirt ban

09 Sunday Jan 2011

Posted by Kenan Farrell in Entertainment Law, Indiana, Legislation, Right of Publicity, Tech Developments

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Invasion of Privacy by Photography

In dealing with the apparent scourge of upskirt photography, a key Indiana Senate committee will consider a proposed bill Tuesday by State Sen. Tom Wyss (R-Fort Wayne) that would make it illegal to take or distribute pictures or video of a person’s private areas.

The bill would establish the new crime of “Invasion of Privacy by Photography,” a Class A misdemeanor. A crime is committed if a person, with the intent to: (1) gratify the person’s sexual desires; (2) humiliate or embarrass the victim; or (3) publish, transmit, or disseminate the photograph; surreptitiously photographs the private area of an individual under circumstances in which a reasonable person would believe that the individual’s private area would not be visible to the public.

The penalty is increased to a Class D felony if the person knowingly or intentionally publishes, transmits, or otherwise disseminates the photograph.

Full text of the proposed bill:

IC 35-45-4-6 IS ADDED TO THE INDIANA CODE

Sec. 6. (a) As used in this section, “private area” means the naked or undergarment clad genitals, pubic area, or buttocks of an individual.
(b) A person who, without the consent of the individual:
(1) knowingly or intentionally:
(A) surreptitiously photographs, video records, or captures a digital image of the private area of an individual by means of camera, a video camera, or any other type of video recording device, whether or not the photograph, video, or image is permanently saved; or
(B) performs an act described in clause (A) under circumstances in which a reasonable person would believe that the individual’s private area would not be visible to the public; and
(2) performs the act described in subdivision (1) with the intent to:
(A) gratify the sexual desires of the person;
(B) humiliate or embarrass the individual; or
(C) publish, transmit, or otherwise disseminate the photograph, video, or digital image; commits invasion of privacy by photography, a Class A misdemeanor. However, the offense is a Class D felony if the person knowingly or intentionally publishes the photograph, video, or digital image or otherwise knowingly or intentionally transmits or disseminates the photograph, video, or digital image to another person.

Members of the Senate Committee on Corrections, Criminal and Civil Matters will review the bill on Tuesday, January 11 at 9 a.m. in Room 130 of the Statehouse. The law would become effective on July 1, 2011.

My initial thoughts: I didn’t realize that upskirt photography was such a big deal but it shouldn’t come as a surprise given that everyone has a small camera or cameraphone in their hands nowadays and fashion often involves half-fallen-off clothing. I expect this bill, like many others, is actually just one piece of a much larger puzzle. An immediate concern with the bill is its potential for arbitrary enforcement. First, in what places would a individual’s private area be considered reasonably visible to the public? Las Vegas? The beach? A half-marathon? If a person has their private area willingly exposed (I’m looking at you, Indy 500 crowd), is it now illegal to take photos or do they give implied consent to the entire crowd? If you take a photo of a person and accidentally catch a crotch shot, are you now a criminal?

A person who, without consent, knowingly surreptitiously photographs the private area of an individual by means of a camera with the intent to publish the photograph. By my reading, this could include almost any photo you might take of someone running the Mini to post on Facebook or a blog if the photo shows their “private area.” If that’s the case, the language of this bill definitely needs to be tightened up to avoid potentially draconian enforcement.

Presumably, the state government and businesses would also have to abide by this law, in which case it could serve as a strong shield against the ever-encroaching security/surveillance industry. Just to be certain, it would be nice if this bill specifically included not only “persons” but also organizations and surveillance cameras.

Better yet, here’s a possible “real world” solution…Get over the outdated concept of “private areas.” There are now over 6 billion people on the planet. About half have a penis and about half have a vagina. Acknowledge this biological fact and move on…really, kids age 4 understand this.

I’ll keep you updated as the bill proceeds.

What Could Have Been Entering the Public Domain on January 1, 2011?

03 Monday Jan 2011

Posted by Kenan Farrell in Copyright, Intellectual Property, Legislation

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Aldous Huxley, Copyright, Dr. Seuss, Fredric Wertham, J.R.R. Tolkien, Lord of Rings Triology, Richard Matheson, Tennessee Williams

Current US law extends copyright protections for 70 years from the date of the author’s death. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years (an initial term of 28 years, renewable for another 28 years).  Under those laws, works published in 1954 would be passing into the public domain on January 1, 2011.

This includes:

  • The first two volumes of J.R.R. Tolkien’s Lord of Rings trilogy: The Fellowship of the Ring and The Two Towers
  • Aldous Huxley’s The Doors of Perception
  • Dr. Seuss’ Horton Hears a Who!
  • Richard Matheson’s I Am Legend
  • Fredric Wertham’s Seduction of the Innocent, subtitled “The influence of comic books on today’s youth”
  • Tennessee Williams’ Cat on a Hot Tin Roof
  • C.S. Lewis’ The Horse and His Boy, the fifth volume of The Chronicles of Narnia
  • First issue of Sports Illustrated
  • Director Alfred Hitchcock’s Rear Window, starring James Stewart, Grace Kelly, Raymond Burr, and Thelma Ritter
  • White Christmas, starring Bing Crosby, Rosemary Clooney, and Vera Allen, featuring songs by Irving Berlin
  • I Got a Woman, (Ray Charles and Renald Richard)

While authors of famous and commercially successful works have incentive to renew the copyright for a second term of 28 years, statistics show that 85% of authors did not renew their copyrights (for books, the number is even higher – 93% did not renew).  This means that if the pre-1978 law were still in effect, about 85% of the works created in 1982 would enter the public domain on January 1, 2011. How amazing would that be?

“Imagine what that would mean to our archives, our libraries, our schools and our culture. Instead, these works will remain under copyright for decades to come, perhaps even into the next century. And for most of them – orphan works – that means they will be both commercially unavailable and culturally off limits, without any benefit going to a copyright holder.”

Click here for the full discussion and additional works.

Text of California “E-personation” Law

30 Thursday Dec 2010

Posted by Kenan Farrell in Legislation, Social Media

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Impersonation, Sentate Bill 1411

California has an interesting social media-related law going into effect on Jan. 1. It seeks to prohibit certain acts of online impersonation. Is such a law necessary in Indiana? Can you think of some otherwise “legal” activities that might become criminal under this law?

Senate Bill 1411. Impersonation: Internet.

SECTION 1. Section 528.5 is added to the Penal Code, to read:

528.5. (a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.

(c) For purposes of this section, “electronic means” shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name.

(d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision (g) of Section 502.

(f) This section shall not preclude prosecution under any other law.

Here’s what the California government has to say about the new law:

View this document on Scribd
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