LEB 3

-Fed law grants exclusive rights to owner of copyrighted works, including:

make copies, create "derivative works" (new edition of a book, sequel, movie from book, action figure from fictional movie character, and so on), distribute copies of the work, display the work, and perform the work.

Copyright Joint Authorship

two or more people to be "joint authors," with each having all rights associated with copyright ownership. -single joint author can exercise rights of ownership, such as granting licenses to use copyrighted work, without consent of other joint author(s).

+Factors for reasonable under circumstances standard:

(1) How valuable is the information? (2) How much would additional protective measures cost? (3) How much would additional security efforts interfere with employees' ability to do their jobs? (4) How much additional protection would extra security measures actually provide? -courts often use rough ''cost-benefit'' analysis to determine whether trade secret owner used adequate protective measures; weighs relative costs and benefits of additional protection. -extreme measures are not required to meet the four part reasonable security standard

Factors to determine if TS may include:

(1) the extent to which the information is or is not known outside the company; (2) how easy or difficult it would be for someone else to independently develop the information or to acquire it properly; (3) the value of the information to the company; and (4) the amount of time and money it took the company to create the information.

+4 factors determining whether use of work is fair use:

(i) whether use is commercial nature or for nonprofit educational purposes, ii) nature of copyrighted work, (iii) amount of the portion used in relation to copyrighted work as a whole, and (iv) effect of use upon potential market for the copyrighted work. +Parody (satire that holds up the original to contempt, ridicule, or scorn) normally fair use. - enjoy a high level of First Amendment free speech protection

-Fair use

(not infringement of copyright) = reproduction for purposes like criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. -But cannot make unlimited use of copyrighted material.

+Copyright protection is different for a work-for-hire

(person or company hires another to make a creative work that will be owned by the purchaser, not the creator of the work). -Current term of protection applied to work for hire is 95 years from date of publication or equivalent, or 120 years from date of creation, whichever is shorter

+Constructive discharge actionable under VII.

(when employee voluntarily quits because working conditions so bad that reasonable person would find them intolerable) actionable under VII. -Either demands for sexual favors (quid pro quo) or hostile sexual environment could justify claim of constructive discharge. Supreme Court has also held no matter what created circumstances that justified constructive discharge claim, employer may assert defense of having adopted, publicized, and enforced adequate anti-harassment policy employee failed to utilize.

Copyright law authorship

+ Copyright law is meant to protect all "original works of authorship" -("authorship" = any creation of original expression). -"original" expression is expression that was not copied from some other source. -original expression must be "fixed in tangible medium; expression must be recorded on paper, tape, a hard drive, flash drive, or any other medium. -Facts are not protected by copyright -may be able to find original ways to express statements about facts and, if so, my original expressions are protected, but the facts themselves are not.

What can be copyrighted?

+ Copyright law is meant to protect all "original works of authorship" Copyright Act protects: artsy stuff 1. Literary works. ''literary'' is used very broadly, includes things like books, poems, stories, newspapers, magazines, web pages, computer software, etc. 2. Musical works and sound recordings. 3. Dramatic works, like a play. 4. Pictorial, graphic, and sculptural works. 5. Motion pictures. 6. Architectural works -List not exclusive.

Vicarious liability

+But can Debby sue you if you had no direct part in causing her injury? -often, principal has not directed or intended commission of tort and has no reason to suppose he is creating dangerous situation. -Therefore, third party usually seeks to impose vicarious liability (liability imposed not because of own wrong but solely because of wrong of one's subordinate) on principal. Employee or independent contractor?

Plaintiff's Basic Disparate Treatment Case

+Courts for VII cases used three-stage process for analyzing evidence. Can create back and forth- P present basic case, Ds rebut P's case, then Ps can argue rebuttal is mere pretext. 1)Court determines if P has established basic or prima facie case (on its face). -If cannot, P not created genuine issue of fact; case dismissed. -Established when EEOC (U.S. Equal Employment Opportunity Commission) or P proves facts that permit inference of intentional discrim on race, national origin, gender, or religion was the employer's motivation for a negative action. i)show applicant within protected class, ii)applicant applied for job and was qualified, iii)applicant not hired, and iv)employer either filled position with applicant not within protected class or continued trying to fill it. -Claim of discrimination based on firing prima facie case established by showing: i)plaintiff within protected class, ii)plaintiff was performing job satisfactorily, iii) plaintiff was fired, and iv)plaintiff's work was then assigned to someone who was not within protected class. -Punitive damages can be awarded, can significantly increase amount of money lawsuit generates

INTEGRATED CASH MANAGEMENT SERVICES v. DIGITAL TRANSACTIONS, INC. U.S. Court of Appeals, 2d Circuit (1990) FACTS

+Facts 1)Plaintiffs-appellees ICMS Inc design computer software. 2)ICMS invests millions in research and development of these generic programs and in structuring these programs to create its software product. 3)ICM claims to employ a "winning combination" of these generic programs that, it argues, deserves protection as a trade secret. 4)defendants Newlin and Vafa each worked for ICM. 5)Both signed Nondisclosure agreements agreeing not to disclose or use any confidential or proprietary info of ICM upon leaving company. 6)Both left ICM 1987 and worked at DTI 3 days later. 7)Before leaving ICM, Newlin copied ICM files onto personal disk. He took disk with him without informing ICM. 8)Within 2 weeks working at DTI, DTI created program that district court found to "operate in substantially the same manner as comparable ICM generic programs." 9)No copyright infringement because they did not copy any of ICM's source code in creating their new programs; used same functional ideas and wrote new computer code that was neither identical nor substantially similar in its expressive elements. 10)ICM sued DTI, Newlin, and Vafa in federal district court, alleging trade secret misappropriation. 11)district court found defendants had misappropriated trade secrets from ICM and had used the secrets in developing DTI's computer programs. -It enjoined defendants from using any version of programs that included misappropriated trade secret for 6 months. -Also, the court permanently enjoined defendants from distributing the four utility programs as they existed on the date of court's decision. 12)Defendants appealed. 13)Appellate court affirmed +Issue -Did defendants misappropriate trade secret? YES -Question is whether trade secret protection extends to manner in which several non-secret utility programs are arranged to create computer software product? YES

State and Federal Trade secrets law

+For long time, trade secret law governed by state law. +But Federal law entered picture as trade secrets became more important in America's modern knowledge economy and companies lobbied Congress to enact federal protection, to combat foreign industrial espionage. + trade secrets are protected both civilly and criminally, potentially in federal court as well as state court.

Trademark Infringement Idea #1: Likelihood of Confusion

+Key standard is not merely whether the two words, phrases, symbols, or designs look the same, sound the same, or are spelled the same. plaintiff trademark owner has burden of proving defendant's mark is so similar that defendant's use will produce likelihood of confusion in buyer's minds as to true origin of goods or services.

Trademarks

+Protects 4 things: distinctive words, phrases, symbols, and devices -To identify origin of goods or services available for sale. --Company names and product names, advertising slogans, corporate logos tend to be trademarked. -All things that can be trade marked are "short and simple:. -For something complex, rely on other protections.

Literal Infringement (patents)

+When Patent owner sues for infringement, P is alleging D infringed on claims in the patent. - invention is actually defined most precisely in the claims -Claim= establishes legal boundaries of the invention -- that is, the exclusive rights of the owner. -IE One-piece shell helmet with... -If defendant's product contains all elements, it literally infringes (even if defendant's product has additional elements). -If it does not include one of the elements, it does not infringe.

Protectability of Marks

+cannot give yourself trademark - must be granted by government -Apply with US Patent and Trademark Office PTO -Owner musts establish it has protectable mark

- There is quid pro quo harassment when:

+evidence must convince court sexual advances were unwelcome. i)unwelcome request or demand for sexual activities causes target to believe denial will lead to adverse job-related consequences, and ii)when evidence shows that a reasonable person would also believe this,

Requirements for Patentability

+invention must have: i) utility= invention must achieve useful result; very low threshold and will almost always be fulfilled, -though invention that doesn't work, is a hoax, or is a mere abstract idea is not useful. ii) invention must also involve patentable subject matter. -Machines, man-made materials, products, and processes can be patented. -One cannot patent natural materials like wood, or scientific principles like E = mc2.

Employer Liability for Sexual Harassment

+only employer can be held monetarily liable; individual cannot be liable for damages in his personal capacity as he can in tort law. -So if you bring sexual harassment lawsuit, you are suing company and not person who has been harassing you. -Targeting harasser directly in court requires tort lawsuit. +Like other types of harassment, employer can be held strictly liable if harassment is committed by supervisor. - employee is "supervisor" only if he is empowered by employer to take tangible employment actions against plaintiff. -If harassment committed by co-worker, employer can be liable only if supervisor knows or should know about harassment and fails to take prompt action to stop harassment and prevent it from recurring.

Quid Pro Quo

+quid pro quo means "something for something," -refers to situation in which continued employment, favorable review, promotion, or some other tangible job benefit is explicitly or implicitly conditioned upon employee's agreeing to requested sexual favor. practically, only one with supervisory or managerial authority who has control over job benefits is capable of committing this form of sexual harassment.

Works for Hire- Copyright Ownership

+work created by employee while acting in the scope of her employment is a work-for-hire, with ownership of copyright automatically and immediately vesting in employer.

Independent contractor copyright ownership

+work created for employer by independent contractor can be work-for-hire if: (1) employer and independent contractor made written agreement signed by both parties before independent contractor started work, (2) agreement ''specially commissioned work as a work-for-hire'' (expressly using the term work-for-hire), and (3) work was within one of nine categories— (a) contribution to collective work, (b) part of motion picture or other audiovisual work, (c) translation, (d) supplementary work, (e) compilation, (f) instructional text, (g) test, (h) answer material for a test, or (i) an atlas. -If no such agreement before work started, or if work is not one of specified types, independent contractor owns the copyright, although there will be implied license allowing employer to make use of work without paying royalty. -In such a case, employer also may acquire ownership by means of an assignment if independent contractor is willing to assign it.

Nonobviousness

- inventor not entitled to patent on invention if ordinarily skilled practitioners in the art would have viewed invention as representing only as trivial, obvious, advance. -to be nonobvious, differences between current invention and previous inventions must be more than purely intuitive to person having ordinary skill in the field. +If court still undecided, can use objective factors if they exist (evidence of what actually happened after a patented product or process was marketed) -following questions: If X's invention was so obvious, then: a) Why was product so commercially successful? b) Why such long-felt need for solving problem Inventor X solved? c) Why had others tried and failed after substantial efforts to find solution that Inventor X found? d) Why did one or more competitors start copying X's invention rather than relying on their own solutions? -evidence showing X's invention produced result surprising or contrary to conventional teachings in relevant area of technology, it very strongly points toward nonobviousness.

Americans with Disabilities Act

-1990, Congress passed Americans with Disabilities Act (ADA); provides protection against discrimination to persons with disabilities. +ADA provisions deal not only with discrimination in employment, but also with public transportation, public accommodations (restaurants, hotels, and office buildings), and communications. -employment portions of ADA cover same employers as VIIt; also law adopts most of procedures and methods of proving discrimination from VII.

Age discrimination defenses

-A bona fide occupational qualification defense also exists and closely resembles that under VII. -Bona fide seniority systems or employee benefit plans also exempted from ADEA violation. -Courts have interpreted defenses more expansively, in employer's favor, than in most cases under VII. +ADEA does not apply to companies below 20 employees.

iv)Arbitrary or fanciful Trademarks

-Always protectable. -common words used in a meaningless context. -Apple company has no problem enjoying trademark protection, because their products has nothing to do with actual apples. - Fanciful marks consist of a new word that didn't exist before a company invented it, such as Xerox or Clorox. -Protectable without demonstration of second meaning.

iii)Suggestive terms Trademarks

-Always protectable. -suggest, rather than describe, some particular characteristic of goods or services to which they apply and require consumers to use imagination to draw conclusion as to nature of the goods and services. -Protectable without demonstration of second meaning.

iii)Virtue Ethics.

-Aristotelian virtue ethics that concentrates more on actor attempting to become virtuous person in all aspects, rather than on resolution of specific ethical issues. notion is that each person should focus on developing and practicing important virtues such as honesty, integrity, truthfulness, reliability and so on. -If person embodies these virtues, ethical decisions he makes will likely be good ones.

Not Acceptable: Information disclosed by former employees

-Courts treat employees as having an implied obligation of confidentiality to their employers in almost all cases. - employee who acquires trade secret knowledge because of employment relationship commits act of misappropriation if she intentionally uses information for own benefit or discloses it to someone outside employment relationship either while still an employee or afterwards. -employee goes to work for another company and discloses or uses information in her subsequent job, new employer also will be liable for misappropriation if a manager knows about it or as a reasonable person should know about it.

For How Long Does Copyright Protection Last?

-Current term runs for lifetime of creator of protected work plus 70 years. -copyright might be passed down to younger family members in a will and benefit generations of artist or author's family before it expires.

Employee Drug Testing

-Employers have legitimate interests in minimizing these costs, maintaining safe workplace, and protecting themselves against liability to those injured by impaired employees. -But Employees subjected to drug testing have interest in preventing harm to reputations and economic security resulting from inaccurate tests and avoiding privacy intrusions.

Whether Employee or Independent Contractor?

-Employers often found responsible for negligent actions of employees, but not generally responsible for negligence of independent contractors. -But, when contractor commits negligence, wronged person can usually sue only contractor, and not employer. +Control -If employer hired worker and retains significant control over his activities, worker probably employee. -Employees usually in chain-of-command; Usually has clear boss who supervises his activities. -Independent contractors hired to do job and then left to decide on method for achieving that result. +Compensation -Employees paid regularly. per year or per hour. -Contractors tend to be paid by the job; often in a lump sum. +Regularity of Employment -Employees tend to have normal hours. -need not be precise, but employees tend to have regular workdays, shifts, or time expectations. -Independent contractors tend to set own hours. -They may have deadline to meet, but how and when they complete job up to them.

ADA: Reasonable Accommodations

-Even if person is protected by ADA, employer no obligation to hire applicant unless person is qualified. -However, if individual would be qualified if employer makes "reasonable accommodation" for person's impairment, then person is viewed by law as qualified. -IE: adjustment of work environment or schedules may be reasonable, or rearranging job into different parts if change does not significantly affect efficiency. -To meet burden of making reasonable accommodation for disability, employer not required to incur "undue hardship."

Family Medical Leave Act

-Family Medical Leave Act. Another law placing restriction on employment at will doctrine. -allows workers with at least one year at companies with at least 50 employees to demand unpaid time off to handle certain medical situations. -provides eligible employees up to 12 weeks of unpaid leave per year. -employer need not pay employees during this time, but must preserve their jobs for them when they return. +To be eligible, employee must have worked for employer at least 12 months and at least 1,250 hours during preceding year. -Employees must request leave; employers need not volunteer it. +What situations does the act cover? -birth of child and to care for newborn child within one year old; -care for adoption or foster care kid within one year of getting it; -caring for employee's spouse, child, or parent who has serious health condition; -serious health condition that makes employee unable to perform essential job functions

+Sexual discrimination CRA

-Forbids unequal treatment based on gender, sexual harassment illegal. -Protects women from discrimination because of pregnancy or childbirth.

Doctrine of Equivalents patents

-If D's product contains one or more elements similar but not identical to element in plaintiff's patent claim, no literal infringement but could possibly be infringement under doctrine of equivalents. -Court will determine whether there is infringement by asking whether element in D's product that is similar to P's patent claim " "performs substantially same function in substantially same way to achieve same result." +for DOE infringement: i) all elements in patent owner's asserted patent claim must be in defendant's product. All elements must be either identical (literal infringement) or substantially equivalent (DOE infringement).

Acceptable: Independent Research

-If competitor develops same knowledge on its own; not misappropriation. -no misappropriation if someone else lawfully acquires product and reverse engineers (disassembles the product and works backwards) product to discover the trade secret.

Disparate treatment- Plaintiff's Claim of Pretext

-If employer fails to provide evidence of legitimate, nondiscriminatory reason, P wins. -If D does produce evidence, P will lose unless can convince court D's asserted reason is just pretext (excuse for intentional discrimination). -IE: P shows D offered inconsistent reasons for its action. Or D's "legitimate reason" was applied in discriminatory way.

Scope of Employment liability

-If subordinate deemed to be employee, employer liable to third parties for torts committed by employee in scope of his employment. -But, employer not responsible for everything employees might do off the job. +employer sometimes can be held liable even when employee has deviated from authorized activity. -employer's liability in such cases depends on degree and foreseeability of the deviation. -If deviation is great, employer usually not responsible.

Type 2: Implied Authority

-Implied authority rule: Unless principal has indicated otherwise, agent has implied authority to do those things that are reasonably and customarily necessary to enable that person to accomplish overall purpose of agency. Even though I have never said anything particular about it, Alice has implied authority to handle matters incidental to main purpose of her job. So, if plumbing in store begins to leak, Alice can hire a plumber, and I will be bound to pay for plumber's services.

i)Utilitarianism.

-Like Jeremy Bentham and John Stuart Mill, -utilitarianism is ethical theory committed to promoting " greatest good for greatest number." -Utilitarianism and other approaches that concentrate on consequences of moral choices are consequentialist theories. -deciding how to define "benefit to society" can be difficult because of many possible value judgments.

ii)Descriptive Trademarks

-Often denied. Sometimes protectable. -Identify characteristic of product, -True descriptive terms (Vision Center) and company names using geographic designation (East Coast Comics) or person's name (JC Penny) can only trademarked if they acquire secondary meaning ["substantial" percentage of a population associates the term with a particular company] -IE Dell. Overtime most people came to think of company when thinking of word Dell. So is protected.

Not Acceptable: Legal conduct that intentionally seeks to overcome reasonable security measures

-Only purpose to intentionally overcome reasonable security measures. -One of most common forms of misappropriation is breach of a duty of confidentiality.

CRA Religion

-Only religious orgs can lawfully hire based on employee's religious beliefs. -Other employers cannot make distinctions for religious reasons. -CRA requires employer to make "reasonable accommodations" to religious beliefs and practices. Don't have to go great lengths for this.

-3 keys winning case if P seeks to prove competitor misused, or misappropriated its secret info.

-P must show info was: i) trade secret ii)P maintained reasonable measures to protect secret iii)D improperly acquired, used, disclosed secret info.

Applying for a Patent

-Patents granted by gov, TS can be created by company by taking reasonable steps to secret secret info. -Application filed with US Patent and Trademark Office (PTO). -application must contain thorough and concise description of invention and drawings of it. -description and drawings together must describe invention with sufficient thoroughness and conciseness to enable hypothetical ''person having ordinary skill in art'' (relevant field of technology) to make invention and put it into practice without undue experimentation. -Applicant not required to have made invention physically;

Patents

-Patents stronger than trade secret protection; solve (for 20 years, anyway) "what if someone else develops my product independently" problem. -If idea is easily reverse engineered, its creator should rely on patent protection rather than trade secret protection. -In exchange for disclosing invention, inventor receives a 20-year exclusive right to make, use, or sell the patented invention. -The 20-year patent not renewable; after expiration item goes into public domain (cannot qualify as trade secret) and may be made, used, or sold by anyone.

Duration of Trade Secret Protection

-Potentially forever. -Doesn't expire at any set time. -As long as conditions remain applicable (type of info, reasonable measures) TS protection remains. -If engineers think product can't be reversed engineered, will likely use TS protection.

+ADA also prohibits discrimination against person who either has record of impairment or is regarded as having impairment.

-Record provision: intended to protect those victimized by stigma of past affliction that no longer constitutes an impairment.

Age Discrimination in Employment Act

-Similar to VII; prohibits discrimination based on age against anyone age 40 and over. -Requires employee (plaintiff) prove age was one of motivating factor in adverse employment decision. - employer commits age discrimination if employee's age is at least one significant reason ( motivating factor) for firing, demotion, etc., even if other reasons.

Keeping Commitments

-Social and commercial relationships among people are quite difficult to maintain without accepting notion that we should keep promises. -For this reason, rational person not likely to feel necessary to defend his actions in keeping commitments.

Thin copyright

-Thin copyright protection exists in works in with relatively few copyrightable elements relative to uncopyrightable elements, often true with work that is highly functional in nature, with main objective being to achieve something in effective and efficient way. test for infringement is "virtual identity" rather than substantial similarity; -Such work will include some protectable original expression, but most of work consists of uncopyrightable pure ideas, facts, expressions from public domain, and so on. -Examples: instruction manuals, maps, and databases. -Like patent infringement, plaintiff does not have to prove defendant intended to violate copyright law, or even had knowledge plaintiff's work was copyrighted. innocent infringer can be held liable

i)Generic Trademarks

-Trademark protection always denied if deemed generic. -Generic words describe an entire class of goods. -sometimes, trademarks are not initially deemed to be generic, but they become generic terms over time. -Genericide refers to trademark losing protection for becoming generic. -IE aspirin. - Companies proactive to fight genericide; make sure consumers understand trademarked terms are owner's brand rather than general description of type of good or service.

Registered Copyrights

-U.S. Copyright Office registers copyrights, but registration is not required for copyright protection. -Although not required, registration is good idea. copyright owner who is U.S. national cannot file suit in federal court for copyright infringement unless copyright has been registered. right to recover statutory damages is accompanied by right to recover from infringer amount determined by court to be a reasonable attorney fee.

Uber case MCGILLIS v. DEPARTMENT OF ECONOMIC OPPORTUNITY FACts

-Uber is technology platform that connects drivers with customers seeking transportation. - McGillis served as Uber driver until Uber revoked his access to the technology based on alleged violations of Uber's user privacy policy. -McGillis then filed claim for reemployment assistance. -Under Florida law, employees entitled to assistance; independent contractors not. -After administrative hearing, Department of Economic Opportunity held McGillis was independent contractor rather than employee and not entitled to any payments. -McGillis appealed. -Appellate court affirmed McGillis is INDEPENDENT CONTRACTOR not employee +Issue: Is McGillis an employee of Uber and entitled to reemployment assistance? NO.

Title VII of the 1964 Civil Rights Act: Coverage

-VII deals specifically with discrimination in employment. -Apply to employers, employment agencies, and labor unions. -State and local govs' employment practices also covered. -Most instances, fed gov's employment practices also covered.

CRA Scope of Protection

-VII's prohibition against discrimination on basis of race very broad. -Protects any group from racial dicrimination. -Illegal for employer to discriminate on basis of person's country of origin. Sometimes not illegal for employer to require employees to be US citizens.

Defendant's (Employer's) Rebuttal Disparate treatment

-When P has sufficient evidence for prima facie case, burden shifts to employer to bring evidence of legitimate, nondiscriminatory reason for P's rejection. +employer can introduce evidence like: applicant's past experience and work record, letters of recommendation, or superior qualifications of person actually hired. +In case based on allegedly discriminatory discharge, employer might overcome plaintiff's prima facie case by showing evidence of plaintiff's poor performance, absenteeism, insubordination, and so on (legitimate reasons for terminating employee).

Doing No Harm

-When, however, cautious concern for welfare of others should lead us to anticipate certain action or inaction may harm legitimate interests of others, we should do what we can to avoid harm.

"current user" of alcohol or illegal drugs is not protected by law.

-although alcoholism and drug addiction can constitute disabilities, ADA expressly provides that "current user" of alcohol or illegal drugs is not protected by law. - alcoholic who shows up at work intoxicated or employee who fails drug test likely not protected.

Contractual Liability for the Principal

-court's decision depends on: was Agent acting within scope of her authority in making this contract? -agent ordinarily can act for principal in way as to make principal legally responsible only when agent has valid type of authority to act that way. +three types of authority. -So long as Agent had any one of three types of authority when she signed agreement, I am bound by it. -If she had no authority at all when she signed deal, I am under no obligation to live up to its terms.

+SC has created special defense for employers even when requisite degree of supervisory involvement exists.

-following must be proved for defense: 1. employee did not suffer tangible job detriment (like discharge, demotion, undesirable reassignment, etc). 2. employer adopted, publicized and enforced company policy condemning sexual harassment that provided clear procedure for employees to make complaints. 3. If employee did not suffer tangible job detriment, and employer had clear and well publicized policy against sexual harassment with adequate complaint procedures, employer not liable for VII violation if employee failed to use these complaint procedures.

Misappropriation -TS weakness:

-if competitor discovers information through independent research, then competitor can also make use of it. -Trade secret rules do not give exclusive rights in case of independent research scenario.

+First To File system disclosure exception:

-if invention is publicly disclosed by inventor or by someone who got invention ideas from inventor (whether with authorization or dishonestly), inventor still has one year from date of disclosure to file patent application. -Disclosure creates "placeholder" for inventor, and inventor has this one year to file ( one-year "grace period) even if someone files patent application covering identical invention before inventor does. -Thus, more descriptive to call new U.S. system "first to file or disclose" system.

Novelty

-invention must be novel (not currently in use and not detailed in print). first-to-file system.

Copyright act provides several defenses to copyright infringement.

-nonprofit library may make copy for archival purposes. -owner of lawful copy of computer software may make copy that is necessary for software to be used (like copying from CD to computer's hard drive), as well as one backup copy. -someone who lawfully acquired copyrighted work is allowed resell or give away that copy. -But, not legal to make copies of software program, movies, or like for friends and family.

CRA +Number of employees Exception

-only applies to employers with 15 or more employees -Smaller business exempted. Because of political compromise struck to in 1964 to get more votes to pass CRA.

Honesty

-rational person does not have to justify telling truth -notion that one should correctly represent facts so firmly ingrained in human relations that we expect justification for not doing so. -Without reasonable expectations of honesty, cannot maintain personal and business relationships that create order and economic wellbeing. -There are some principles in legal domain intended to encourage honesty, as with legal prohibitions against fraud, and criminal punishment for perjury. -The moral obligation, however, is broader and more encompassing.

Assignments copyright

-rights of assignee are less than those of original owner, because creator or her heirs can terminate assignment at any point between 35 and 40 years after assignment was executed. -Can terminate for any copyright assignment, not just assignment to employer. -Copyright assignments must be in writing and signed by assignor (transferor). -Possible for parties' conduct to create implied license granting certain rights to use copyrighted work, but impossible to create implied assignment that transfers ownership because of writing requirement.

+Doctrine of respondeat superior

-under certain circumstances requires boss (superior) answer (respond) for wrongs of agent. Whether Employee or Independent Contractor?

Loyalty

-voluntary relationships where one party places higher degree of trust in the other than one would place in stranger. -These relationships not forced upon us; we consent to them either explicitly or implicitly. +Examples include: -employee's relationship with employer, -corporate manager's relationship with company's shareholders, and -business partner's relationship with other partners.

Hostile Work Environment Sexual Harassment

-when supervisor, manager, or coworker engages in unwelcome sexually oriented language or conduct that is sufficiently "severe or pervasive" to alter terms and conditions of employment for employee who has been targeted. -One attempted groping would likely be deemed "severe" enough to create a hostile work environment. -Multiple sexual comments might not individually be severe but could cumulatively become "pervasive" create hostile work environment.

Copyright Infringement

1)Owner must first prove defendant had access to plaintiff's copyrighted work. -Courts presume access incase of works distributed in relatively wide fashion. 2)After proving access, plaintiff can prove infringement by showing defendant's work is "substantially similar" to plaintiff's work.

Disparate Impact

1)P begins arguing company policy, rule, or practice impacts groups differently. -Amusement park height requirement for employees. -height would exclude more women than men because women generally less tall. -Policy doesn't specifically exclude women from applying, but it tend to negatively impact women more frequently than men, and thus create disparate impact.

Typical Case: Disparate Impact

1)P initially prove employment practice has adverse impact on protected group of which P is member. -Another method proving discriminatory impact to do statistical comparison of composition of employer's work force with composition of relevant labor pool. 2)Once P has established claim, employer can defend by proving policy being challenged amounts to a business necessity. -Business necessity must prove: i)challenged employment practice was necessary to achieve important business objective ii)practice actually achieves this objective.

-Sometimes, superior is clearly at fault, like in following situations:

1. If superior directs subordinate to commit tort, he is responsible. 2. Negligent entrustment -If superior carelessly allows subordinate to operate potentially dangerous equipment (automobile or truck), even though he knows or should know subordinate is unqualified or incapable of handling it safely; superior responsible for resulting harm. 3. Vicarious liability

principal

1. employer of agent is a principal. 2. person legally becomes agent when consent and capacity established. -Agent doesn't need capacity. 3. Principals and agents have fiduciary relationship, or one of trust and confidence, and law requires good faith from each party. -also requires neither side keep information relating to agency relationship from the other. +Principals obligated to honor terms of employment contracts. -Must also reimburse expenses agent incurs while working on behalf of principal, and -must indemnify agents when agents incur liability while acting within scope of their authority. +Agents have many obligations to principals. -must obey clear instructions from principal. -must use reasonable care. -must account for all money received or paid out on behalf of principal. -must promptly notify principals of anything they learn relevant to principal's interests. -be loyal by not competing with principals and protecting confidential information.

Type 1: Express Authority

Express authority is directly granted by principal to agent. -IE if I tell Alice Agent to order $25,000 worth of shoes to sell in my shoe store, and if she signs agreements with Nike to order shoes, I am bound by contracts and must honor them. -Her actions are within scope of her express authority.

Trademark Infringement Idea #2: Anti-Dilution Statutes

If protected trademarks deemed "famous," trademark rights can sometimes be asserted even when goods or services not similar and no likelihood of confusion. +1995 Congress passed Federal Trademark Dilution Act (FTDA) to specifically protect trademarks court determines to be famous. -However use of famous name Tiffany may injure actual holder of Tiffany in 2 ways. i)such use weakens the "Tiffany" mark by diminishing, or diluting, its distinctiveness ii)if the bar is allowed to use the mark, others also would be able to use it for unrelated goods or services, thus having a cumulative effect of further dilution over time. -Tiffany could sue for dilution because strength and clarity of its mark would be diluted or blurred by other uses. -Type of use may also undermine positive image of "Tiffany" mark if it's no longer restricted to luxury products (This type of dilution claim is called disparagement or tarnishment). mark is "famous" only if it is very widely known by the general American consuming public. For anti-dilution purposes, a mark is not famous if it is just widely known within a local geographic area or a niche market.

ii)Deontological ethics.

Immanuel Kant -Some philosophers feel we can identify and apply certain threshold standards of moral behavior to real problems across various circumstances and cultures. "Can this action be justified by reasons uniformly applicable to all other persons?" -Kant suggested as overarching standard of moral behavior rule that people cannot make exceptions of themselves; one's behavior is morally defensible only if everyone else could do same thing without interfering with optimal functioning of organized society. -This means we should all treat others as we would wish to be treated, wisdom embodied by Golden Rule.

Uber case MCGILLIS v. DEPARTMENT OF ECONOMIC OPPORTUNITY Holding

No. For Uber. +Terms -prospective Uber driver must agree to terms and conditions -contract specifies driver is independent contractor and not employee. -further explains driver, as independent contractor, not entitled to unemployment benefits: -BUT If parties' actual practice contradicts written agreement, actual practice controls. +Payment Uber sends driver "Form 1099" Internal Revenue Service form used to report payments to independent contractors +Hours -Drivers free to set own schedules and to determine what locations they will serve. +Drivers responsible for supplying, maintaining, and fueling own vehicles. +Drivers free to switch between using Uber's driver application and application of competitor. +Supervision -Uber does not directly evaluate or supervise drivers. b)-Extent of control recognized by FL courts as most important factor whether employee or independent contractor. -"Control" refers to " right to direct what shall be done and how and when it shall be done" c)McGillis had lots of control like an independent contractor. +Central issue is act of being available to accept requests" and "[t]his control is entirely in driver's hands." -Uber drivers like McGillis decide whether, when, where, with whom, and how to provide rides using Uber's computer programs. -This level of free agency is incompatible with control to which traditional employee is subject. -Affirmed.

UT v KST Electric 2008 HOLDING

No. for KST a)Ultimate question is whether relevant consumers likely to believe products or services offered by parties are affiliated in some way. -Doesn't need to be identical or even competitive in order to support likelihood of confusion. b)How to determine if KST's logo suggest KST is affiliated or endorsed by UT. In assessing likelihood of confusion: (1) the type of mark allegedly infringed; (2) the similarity between the two marks; (3) the similarity of the products or services; (4) the identity of retail outlets and purchasers; (5) the identity of the advertising media used; (6) the defendant's intent; and (7) any evidence of actual confusion. +UT's longhorn silhouette logo is a fanciful or arbitrary mark so more protection than descriptive -Not descriptive of UT's educational enterprise. +Marks are clearly similar. c)Dilution claim; plaintiff must show (1) the plaintiff owns a famous mark; (2) the defendant has commenced using a mark in commerce that allegedly is diluting the famous mark; (3) a similarity between the defendant's mark and the famous mark gives rise to an association between the marks; and (4) the association is likely to impair the distinctiveness of the famous mark or likely to harm the reputation of the famous mark. +Under Trademark Dilution Revision Act ("TDRA") famous= mark be "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner d)UT's proof that its LSL is famous only proves niche fame; not protected by TDRA. e)Summary judgement for dilution claim granted, but trademark infringement and unfair competition claims will do to trial - UT's evidence fails to demonstrate the extremely high level of recognition necessary to show "fame" under the TDRA -Major purpose of TDRA restrict dilution causes of action to few truly famous marks (Barbie dolls etc). -UT not created genuine issue of material fact that longhorn silhouette logo is Household name. - TDRA not intended to protect trademarks whose fame at all in doubt.

INTEGRATED CASH MANAGEMENT SERVICES v. DIGITAL TRANSACTIONS, INC. Holding

Yes. for ICM. +P claiming misappropriation of Trade secret must prove: (1) It possessed a trade secret, (2) It maintained reasonable security measures to protect secrecy (which is not an issue in this case), and (3) Defendant has disclosed, acquired, or used the trade secret by improper means, which includes breach of a duty of confidentiality. b)+Disagrees with d's argument that architecture of ICM's system wasn't protectable trade secret. -ICM retains protectable TS; ICM's programs not generally known outside of ICM. -Even if one part is public domain, TS can exist if the combination of components are unified in unique process that affords competitive advantage. -ICM's combination of programs was not disclosed in ICM's promotional literature c)ICM also satisfies other factors to create existence of trade secret: i)Taken measures to protect secrecy of its product architecture. ii)Large investment in research and development. iii)ICM's product couldn't be duplicated without secret info. Not readily ascertainable other than improper disclosure and use by defendants. d)+defendants made use of this information in designing similar software -Ds made use of info learned while at ICM . e)+District court 6 month injunction was correct -balanced right of a former employer to protect trade secrets and the right of a former employee to utilize his skills and experience f)+District court perpetual injunction against distributing any version of ICM's programs was correct -Ds only prevented from shelving misappropriated info for 6 months and then distributing it as their own. -After 6 months, Ds free to alter or modify ICM programs, just can distribute any unmodified ICM programs.

Trade Secrets

any knowledge type not generally known and not readily available through legal means, if knowledge gives owner competitive advantage over rivals who don't have knowledge. -Trade secret also consist of knowledge gained to figure out what does not work (negative know-how) -Negative know-how also protecteable as TS. -IE manufacturing processes, chemical formulas, operating and pricing policies, marketing strategies, and secret recipes. -Info protected either as trade secret or patent; Company can't protect same info with both legal devices. -TS relatively weaker, but longer lasting. -Patent stronger but expires after defined time.

Not Acceptable: Conduct that is independently illegal

bribery, Burglary, Trespassing, tapping telephones conversations, or by fraudulent misrepresentations

The Employment at Will Doctrine

companies can fire workers any time for any reason unless company would violate a specific law in doing so. -Legal if company fires worker for any reason at all, so long as it's not banned by some specific law -IE: cannot fire worker because of race because would violate CRA. Can fire for silly reason if it doesn't violate any specific statute. -Company doesn't have to wait for "good reason" to fire. +Under EWD company may fire employee for good reason or no good reason as long as reason not specifically banned.

UT v KST Electric 2008 FACTS

couple sought to use different variations of UT's trademarked longhorn silhouette. +Facts -Couple started KST 1994. -Fans of UT athletics. -Used discontinued Longhorn Logo. -Dispute between UT and KST whether KST has totally discontinued use of that mark. -1998 KST used Longhorn logo with KST on it. -2002 UT learned of the logo and asked KST to cease using it. UTKST refused. -2006 UT filed suit for trademark dilution and unfair competition causes of action. -KST filed motion for summary judgement in its favor. -Judge rules for KST's motion. +Issue Does UT's mark meet famous requirement for trademark dilution claim? NO.

notable exception to general rule on independent contractors, If task for which independent contractor was hired is ultrahazardous or inherently dangerous, employer will be held automatically responsible for harm to third parties caused by dangerous character of work.

employer's responsibility in such case based on notion of strict liability. -Under it, legal responsibility exists solely because of nature of activity, regardless of whether any particular fault brought about harm that led to lawsuit. -This exception creates legal liability for principals to motivate them to hire qualified independent contractors to perform hazardous activities.

+person has disability if has:

i)"physical or mental impairment substantially affects major life activities" of person. -Major life activities include: caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and participating in social relationships and activities. The law does not attempt to include an exhaustive list of disabilities. -However, conditions that meet above definition and constitute disabilities include visual, speech, and hearing impairments; cerebral palsy; HIV infection; cancer; diseases of the heart; diabetes; epilepsy; emotional illness; serious learning disabilities; drug addiction; and alcoholism.

+moral duty of loyalty based on two facts:

i)First, by virtue of relationship, we have created in other person legitimate expectation that we will further his interests. ii)Second, relationship has placed us in position where we have ability to cause serious harm if we do not act in person's interests.

+Illegal discrimination can be proved 2 ways:

i)P show D engaged in intentional discrimination (disparate treatment). ii)P can show some employment practice or policy of D has discriminatory effect (disparate impact)

-Whether such likelihood exists is question of fact in the case and determined by factors as:

i)similarity of design of the marks, ii)similarity of product, iii)proof of confusion among actual buyers, and iv)marketing surveys of prospective purchasers showing an appreciable misassociation of defendant's mark with plaintiff's product. -If products dissimilar and unrelated, even identical marks may not cause confusion. -Toilet company using same slogan as T shirt company: court held that the use of that mark was not likely to cause purchasers of the toilets to associate them with men's suits.

+To be severe or pervasive, offensive conduct must qualify both:

i)subjectively (from victim's perspective) and ii)objectively (from perspective of reasonable person in victim's position). -not enough to demonstrate only one or other. -Therefore isolated dirty jokes and occasional crude remarks often do not amount to severe or pervasive conduct. -plaintiff may argue, " isolated remarks really bothered me," but may have more difficulty arguing average person in same position would have been bothered by same thing.

Type 3: Apparent Authority

if principal, by his own conduct, has led reasonable third parties to believe agent has such authority, principal may be responsible, because agent may have apparent authority. -Carol would reasonably assume shoe store's manager has authority to sell its inventory and Carol has no knowledge of limitations I have put upon Alice's normal authority. -Therefore, if Alice sells shoes to Carol, I am bound by deal because Alice had apparent authority to make sale based on my actions of installing Alice as store manager.

+When P wins trademark infringement action by proving likelihood of confusion usual remedies are

injunction and damages. -injunction is order prohibiting or placing limitations on defendant's further use of the mark, and -damages is recovery of money to compensate plaintiff for economic loss as result of infringement. -trademark owner may recover infringer's profits from selling goods or services in connection with infringing mark

Reasonable Security Measures

knowledge must be kept relatively secret to qualify for protection. - company must take reasonable (or better) measures to protect its secret; has to employ protective measures that are reasonable under the circumstances.

Civil Rights Act 1964

prohibiting discrimination on basis of race, color, religion, sex, or national origin." CRA is comprehensive statute prohibiting discrimination in various settings, including housing, public accommodations, and education.

The "Moral Minimum"

whether any standards of behavior do not need to be defended by rational person; from perspective of rational mind, are there any general categories of behavior that stand on their own moral foundation, without any need for justification? -If so, they could be identified as the moral minimum, or a set of general standards that constitute ethical minimum necessary for functioning of civilization. No justification needed