Eggers Law Exam 2 - CH 6, 3, 8, 9

To establish defamation:

1. Defendant made a false statement of fact 2. Statement was understood as being about the plaintiff 3. Statement was published to at least one person other than the plaintiff 4. If plaintiff is a public figure, they have to prove malice

3 Components of Utilitarianism

1. Determination of individuals affected 2. Cost-benefit analysis 3. Choice that will produce maximum social utility

For Negligence the Plaintiff Must Prove

1. Duty: Defendant owed plaintiff a duty of care 2. Breach: Defendant breached that duty 3. Causation: Defendant's breach caused injury 4. Damages

CSR - Corporate Aspects

1. Increased goodwill from the community 2. Increased sales 3. Higher employee retention

Systematic Approach for Resolving Ethics Problems

1. Inquiry 2. Discussion 3. Decision 4. Review

4 Types of Invasion of Privacy

1. Intrusion on an individual's affair or seclusion 2. Publication of information that places a person in false light 3. Public disclosure of private facts 4. Appropriation: Use of another's name, likeness, or other identifying characteristic for commercial purposes without owner's consent

Duty of Landowners

1. Landowners must exercise reasonable care to protect persons on their property from harm - even trespassers 2. Obvious risks require no warning 3. Business owners must warn of potential harm

Elements of Fraud

1. Misrepresentation of material fact 2. Intent to induce another to rely on the misrepresentation 3. Justifiable reliance by innocent party 4. Damages suffered as a result of reliance 5. A causal connection between misrepresentation and the injury suffered

Copyright Owners are Protected Against:

1. Reproduction of the work 2. Development of derivative works 3. Distribution of the work 4. Public display of the work

Defenses to Wrongful Interference:

1. The interference was justified or permissible 2. Bona fide competitive behavior (such as marketing)

U.S. Safe Web Act

Allows FTC to share information with foreign agencies that investigate and prosecute cyber crimes. Provides ISPs with immunity from liability for supplying information to FTC.

The Madrid Protocol

Allows as U.S. company to register its trademark abroad with one application. Gives trademark protection through all countries.

Electronic Communications Piracy Act

Amended federal wiretapping law to cover electronic forms of communication. Exclusions: Communications that an employer authorizes in the "ordinary course" of its business

Trademark Dilution in the Online World

Occurs when a trademark is used - without authorization - in a way that diminishes the distinctive quality of the mark. Does not require proof consumers would be confused.

Negligence Per Se

Occurs when defendant violates a statute designed to protect the type of plaintiff that was injured

Wrongful Interference with a Contractual Relationship

Occurs when defendant who knows about contract between A and B intentionally induces either A or B to breach the contract

Disparagement of Property

Occurs when someone lies about another's property and product

Wrongful Interference with a Business Relationship

Occurs when there is an established business relationship and defendant uses predatory methods

Company-Wide Social Media Networks

Often referred to as "intranet", these are online places for employees to discuss company services and products. Intranets allow companies to better protect their trade secrets

Stakeholders

One view of CSR stresses that corporations have a duty to both shareholders and stakeholders

Cyber Torts

Online defamation is one of the most prevalent cyber torts

Section 102 Exclusions

Only the expression of an idea can be copyrighted - not the idea itself

Copyright Law

Very important form of the intellectual property protection on the internet. Much of the material on the internet is copyrighted. In order to transfer that material online, it must be "copied". Infringement may occur when content is copied or downloaded onto a computer

Trademark

A distinctive mark, motto, device, or emblem that a manufacturer stamps, prints, or otherwise affixes to the goods it produces. Distinguish products/service from goods of other competition, help avoid consumer confusion, and there is statutory protection of trademarks.

Patent

A grant from the government giving an inventor the exclusive right or privilege to make, use, or sell her invention for a set period of time. 20 years for an invention; 14 years for a design

Identifying the Author of Online Defamation

A major barrier to online defamation cases is the anonymity of the Internet. ISPs can only disclose personal information about its customers when ordered to do so by a court.

Trademark Registration

A mark can be registered if it is currently in commerce or applicant intends to put it into commerce within 6 months

Certification Mark

A mark used by one or more persons or entities other than the owner to certify the region, materials, mode of manufacturers, quality, or accuracy of the owner's goods or services

Invasion of Privacy

A person must have a reasonable expectation of privacy and the invasion must be highly offensive

Trade Names

A term used to indicate part or all of a business' name and that is directly related to the business' reputation and goodwill

Liability for Harm

A trespasser is generally liable for damage caused to the property and generally cannot hold the owner liable for injuries sustained on the premises

Tort

A wrongful act or infringement on a person's rights that lead to civil liability

Unintentional Tort

A wrongful act the tortfeasor committed without knowing its wrongfulness or without intending to commit the act

License

Agreement or contract permitting the use of a trademark, copyright, patent, or trade secret for certain purposes

Utilitarianism

An action is ethical based on whether it produces the greatest good for the greatest number of people

Copyright

An intangible property right granted by federal statute to the author or originator of a literary or artistic production of a specified type. When protection ends, works enter into the public domain. Protection usually extends for the life of the author, plus 70 years.

Intentional Infliction of Emotional Distress

An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another. The act must be so extreme and so outrageous that it exceeds the bounds of decency accepted by society in order to be actionable

Assault

Any intentional and unexcused threat of immediate harmful or offensive contact - whether words or acts - that create a reasonably believable threat. No physical contact necessary.

Intellectual Property

Any property resulting from intellectual, creative processes - the product of one or more individual's minds

Compilations of Facts

Are copyrightable but the compilation must be "orginal"

Defenses to Negligence

Assumption of Risk: A plaintiff that knows the risk and voluntarily engages in the act anyway may not recover from the alleged tortfeasor. Liability waivers can be implied by our knowledge.

Damages for Libel

General damages are presumed and the plaintiff does not have to prove actual injury. Damages include compensation for disgrace, dishonor, humiliation, and injury to reputation

Corporate Social Responsibility (CSR) - Social Aspects

Not composed by law. 1. Promotion of goals that society deems worthwhile 2. Movement toward solutions to social problems

Libel

Breaching defamation in print or media

Hiring Procedures

Companies are increasingly using social media to evaluate prospective employees

Sarbanes-Oxley Requirement

Confidential systems so that people can report "red flags" about suspected illegal or unethical auditing and accounting practices

Trademark Dilution

Creates federal cause of action even when unlikely to confuse consumers and protects "distinctive" or "famous" marks such as McDonald's, Dell, or Apple

Stop Counterfeiting in Manufactured Goods Act

Criminalizes the trafficking of counterfeit goods. Penalties can be up to two million dollars and ten years in prison

Duty-Based Ethics

Derived from revealed truths and religious and philosophical principles

Secondary Meaning

Descriptive, geographical terms are usually not protected unless there is a secondary meaning ("London Fog" coats)

The Anti-Counterfeiting Trade Agreement

Designed to combat global counterfeiting and privacy

Causation in Fact

Did the injury occur because of the defendant's act, or would the injury have occurred anyway

Lanham Trademark Act

Enacted to protect manufacturers from losing business to rival companies that used confusingly similar trademarks

The TRIPS Agreement

Established standards for the international protection of intellectual property rights. Cannot favor one countries copyrights over another

Ethical Requirements

Ethics goes beyond legal requirements to evaluate what is right for society. An action that is legal is not necessarily ethical

Failure to Return Goods

Even if the rightful owner consented to the initial taking of the property, a failure to return the property may still be conversion

Causation

Even though a tortfeasor owes a duty of care and breaches the duty of care, the act must cause plaintiff's injuries

Berne Convention

Every country that signed this treaty must recognize author's copyrights in the other signatory nations

Slander Per Se

Exception and no proof of damages is necessary when the statement involves a loathsome communicable disease, business improprieties, serious crime, or serious sexual misconduct

Negligence

Failure to act as a reasonable person under the circumstances

Absence of Malice for Defamation

False and defamatory statements made about public figures are privileged unless they are made with actual malice (knowledge of falsity or reckless disregard of the truth or falsity)

Distinctiveness of the Mark

Fanciful, arbitrary, and suggestive trademarks are usually considered to be the most distinctive trademarks

Outcome Based Ethics

Focuses on outcome and consequences of action

General Damages

For nonmonetary aspects, such as pain, suffering, and reputation (jury decides)

Special Damages

For quantifiable losses, such as medical expenses, lost wages, and benefits (proven by receipts)

Patent Infringement and Foreign Sales

Foreign firms can obtain U.S. patent protection on items that they sell within the U.S.

Distribution System

ICANN is a nonprofit that oversees the distribution of domain names and operates an online arbitration system

Problems with Utilitarianism

In some situations, an action that produces the greatest good for the most people may not be most ethical

Trade Secret

Information of commercial value such as customer lists, plans, research, pricing information, marketing methods, and production techniques

Most Common Remedy Against Further Trademark Infringement

Injunction; The Lanham Act also allows a trademark owner who proves infringement to recover damages

Transferred Intent

Intent of tortfeasor is transferred when he intends to harm person "A" but unintentionally harms person "B"

Fraudulent Misrepresentation

Intentional deceit, usually for personal gain

Defamation

Involves wrongfully hurting a person's good reputation. Law imposes duty to refrain from making false statements of fact about others. Published statement must be a fact. Statements of opinions are protected under the First Amendment.

Trespass to Land

Occurs when a person, without permission: 1. Physically enters onto, above, or below the surface of another's land 2. Causes anything to enter onto the land 3. Remains - or permits anything to remain - on the land

Meta Tags

Key words that give internet browsers specific information about a web page and increase the likelihood that a site will be included in search research

Dram Shop Acts

Liability for injuries may be imposed upon bartender and bar owner

Anti-Cybersquatting Consumer Protection Act (ACPA)

Makes it illegal for a person to register, traffic in, or use a domain name if the name is identical or confusingly similar to another's trademark and bad faith intent

Patent Infringement

Making, using, or selling another person's product/service without permission. Does not have to be identical just substantially similar

Detention Must Be Reasonable In:

Manner, length of time, and force applied

Industry Ethical Codes

Many industries have their own codes of ethics that give guidance on ethical questions. These codes are not laws and are only as effective as the industry or company's commitment to enforcing them

Border Searches

Member nations are required to establish border measures that allow officials - on their own initiative - to search commercial shipments of imports and exports for counterfeiting goods

Moral Minimum

Mere compliance with the law

File-Sharing Technology

Methods of the file-sharing include peer-to-peer (P2P) networking and the use of distributed networks, and cloud computing delivers a single application through a browser to multiple users

Private Company Codes of Ethics

Most companies attempt to link ethics and law via internal code of ethics

The "Fair Use" Exception

No infringement if reproduced material is used for criticism, comment, news, teaching, or research

The First Sale Doctrine

No infringement occurs when a person who lawfully owns a copyrighted work resells the work, because the original copyright holder no longer has control of content

Licensee

Party obtaining the license who generally pays fees (royalties)

Licensor

Party that owns the intellectual property rights

Remedies for Patent Infringement

Patent holder can seek an injunction, monetary damages, and perhaps attorneys fees and costs. The court can triple the amount of damages awarded if it is determined willful

The Federal CAN-SPAM Act

Permits the sending of unsolicited commercial email, but prohibits certain types of spamming

Duty of Professionals

Professionals may owe higher duty of care based on special education, skill, or intelligence. Breach of duty is called professional malpractice

Triple Bottom Line

Profit, people, planet

Stored Communications Act (SCA)

Prohibits intentional and unauthorized access to stored electronic communications and prevents "providers" of communication services from divulging private communications to certain entities and individuals

Foreign Corrupt Practices Act

Prohibits the bribery of most foreign government officials if the payment is meant to motivate the official act in an official capacity to provide business opportunities

Good Samaritan Statutes

Protects someone who renders aid to an injured person from being sued for negligence

Digital Millennium Copyright Act

Provides civil and criminal penalties to circumvent encryption software, limits ISP liability for subscriber acts, and allows for "fair use" exceptions for libraries, universities, and others

Slander of Title

Publication falsely denies or casts doubt on another's legal ownership of property, resulting in financial loss

Slander of Quality

Publication of false information about another's product (trade libel)

Punitive Damages

Punish the wrongdoer and deter similar conduct in the future (million dollar damages)

FCPA Accounting Requirements

Reflect "accurately and fairly" financial activities

Compensatory Damages

Reimburse plaintiff for actual losses (out-of-pocket)

Data Collection and Cookies

Retailers collect detailed information about consumers' behavior and preferences via cookies in order to personalize online services

Trademark Infringement

Use of a protected trademark - or copying it to a substantial degree - without permission. Marks do not have to be identical just substantially similar.

Service Marks

Similar to trademark but used to distinguish services of one person/company from another

Criminal Investigations

Social media is used to detect and prosecute criminals because a surprising number of them boast about their illegal activities on social media

Social Media Impact on Litigation

Social media posts are routinely included in discovery in litigation since they can provide damaging information about a person's intent or what she or he knew at a particular time

Social Media Impact on Settlement Agreements

Social media posts have been used to invalidate settlement agreements that contain confidentiality clauses

Suggestive Trademarks

Suggests something about product's nature or quality (Burger King)

Applicability and Sanctions of the ACPA

The ACPA applies to all domain name registrations of trademarks. Successful plaintiffs can collect actual damages and injunctions.

Liability of ISPs

The Communications Decency Act provides broad protection for ISPs General Rule: ISPs are not liable for publishing defamatory statements that come from a third party Exceptions: Some courts have started establishing limits to this immunity

Collective Mark

Used by an organization or association (union marks). Labor unions will often have a service mark for their work.

Slander

Verbally breaching defamation

Cybersquatting

The act of registering someone else's name or trademark as a domain name and then offering to sell the registered domain name to that person

Business Ethics

The application of moral and ethical principles

Kantian Ethics

The categorical imperative is a central postulate. The categorical imperative is the rightness or wrongness of an action judged by if everyone were to act this way.

Duty of Care and Breach

The courts consider: 1. The nature of the act 2. Manner in which the act took place

Publication Requirement for Defamation

The false statement must hold an individual up to hatred, contempt, or ridicule in their community

Trade Dress

The image and overall appearance of the product or service (distinctive decor and/or packaging)

False Imprisonment

The intentional confinement of another person or restraint of another person's activities without justification. The confinement may occur through the use of physical barriers, physical restraint, or threats of physical force.

Relationship of Law and Ethics

The law does not codify all ethical requirements

Profit Maximization

The most efficient allocation of scarce resources to generate income

Pirated Movies and Television

The motion picture and television industries lose significant revenue annually due to piracy (illegal copying)

Damages for Slander

The plaintiff must prove special damages (actual economic loss).

Patent Requirements

The product, process, or design must be genuine, novel, useful, and not obvious in light of current technology. Does not have to be in commerce. First person to file gets protection.

Typocybersquatting

The registration of a name that is a misspelling of a popular brand (googl.com)

Spam

Unsolicited "junk" emails with ads, solicitations, and other messages

Arbitrary Trademarks

Use common words in an uncommon way ("Dutch Boy" for paint)

Fanciful Trademarks

Use invented words (Google)

Copyright Infringement

Use of a copyrighted form or expression without permission

Intentional Torts

The tortfeasor (person committing the tort) must "intend" to commit the act by knowing with certainty that the consequence is certain

Battery

The unexcused and harmful or offensive physical contact intentionally performed. The contact can be made by the defendant or by some force set in motion by the defendant.

Counterfeit Goods

Those that copy or otherwise imitate trademarked goods. Such goods damage value of the trademark.

Privacy

To prevail in an invasion of privacy lawsuit, the plaintiff must have had a reasonable expectation of privacy. People expect privacy when they enter personal financial information online

Purpose of Tort Law

To provide a remedy (damages) for injury to a protected interest

Defenses to Trespass to Land

Trespass is necessary to assist in danger, or trespasser is a licensee (such as utility service person)

Defenses to Defamation

Truth, privileged speech, and public figures

Combating Foreign Counterfeiters

U.S. officials have combated online sales of counterfeit goods by obtaining court orders to close down the domain names of counterfeiters' Web sites.

Proximate Cause

When the causal connection between the act and injury is strong enough to impose liability

Protected Expression

Work must be "fixed in a durable medium". Examples include: Literary works, Musical works, Dramatic works and Accompanying music, Pictoral, Graphic, and Sculptural works, Motion Pictures including multimedia, Sound Recordings, and Architectural works

Conversion

Wrongful possession or use of property without permission

Domain Names

an internet address consisting of a top level domain to the right of the dot (.com) and a second level domain to the left of the dot (www.facebook)