COMM 425 midterm
trademark infringement
3 things: use and ownership, use by defendant, likelihood of confusion
vicarious copyright liability
A form of secondary liability for direct infringement of a patent, copyright, or trademark. A means by which a person may be held liable for infringement even though he or she did not actually engage in infringing activities. -napster, youtube
minimum contacts
A nonresident defendant's connections with the forum state (i.e., the state where the lawsuit is brought) that are sufficient for jurisdiction over that defendant to be proper
internet protocol
IP address and domain name system
contributory copyright infringement
One who knowingly induces, causes or materially contributes to copyright infringement, by another but who has not committed or participated in the infringing acts him or herself, may be held liable as a contributory infringer if he or she had knowledge, or reason to know, of the infringement. -Napster, Grokster, not Sony
anticybersquatting consumer protection act
a U.S. law enacted in 1999 that established a cause of action for registering, trafficking in, or using a domain name confusingly similar to, or dilutive of, a trademark or personal name.
trademark dilution
a trademark law concept giving the owner of a famous trademark standing to forbid others from using that mark in a way that would lessen its uniqueness. In most cases, trademark dilution involves an unauthorized use of another's trademark on products that do not compete with, and have little connection with, those of the trademark owner. For example, a famous trademark used by one company to refer to hair care products might be diluted if another company began using a similar mark to refer to breakfast cereals or spark plugs.[1] Dilution is a basis of trademark infringement that only applies to famous marks. With non-famous marks, the owner of the mark must show that the allegedly infringing use creates a likelihood of confusion as to the source of the product or service being identified by the allegedly infringing use. With non-famous marks, it is highly unlikely a likelihood of confusion will be found if the products or services are in unrelated markets. However, with famous marks, any use by another person of the mark has the potential for confusion, since a famous mark is so well known among the consuming public that people will assume affiliation with the owner of the mark regardless of the product or service being sold under the infringing use. -to make a dilution claim, you don't have to claim consumer confusion
CSNET
computer science network, also called nsfnet (national science foundation net)
difference between trademark and copyright
copyright - you don't have to sell it- creative expression, whereas trademark is used for commerce -things can be both (Mickey Mouse)
utilitarian view
copyright protection provides incentives for persons to produce works of authorship
internet activities board
created in 1983 to guide the evolution of the TCP/IP protocol suite and provide research and advice to internet community
Ray Tomlinson
created the email application in 1972
vicarious liability
defendant had the power to control infringing acts and benefitted from them -vicarious liability requires two elements: (1) the right and ability to supervise or control the infringing activity; and (2) a direct financial benefit from that activity
contributory infringement
defendant knew or had reason to know of infringement and materially contributed to it
internet routers
determine where to send info from one computer to another
Mosaic and Netscape
dominant browsers in the early to mid 90s
soft power
even if you win the case, the company won't necessarily change their policies, but you make a statement
http
hypertext transfer protocol, introduced in 1991 by Tim Berners-Lee with the WWW
when do you have personal jurisdiction?
if defendant has minimal contacts in state, they have business in the state, they anticipate they will be sued there, forum interest in hearing case outweighs inconvenience for defendant
NCP
initial protocol used for the computers to "talk" to one another - limited, later became TCP/IP
ISP
internet service provider that has a network access point (NAP) where it connects to the internet backbone
Lessig's 4 kinds of restraint
law, markets, social norms, architecture
DMCA
limits the liability of online service providers
how to know if something is fair use?
look at the purpose and character of use, the nature of copyrighted work, the amount in relation to work as a whole, and the effect on market value
inducement
object of promoting an object's use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties -grokster
direct copyright infringement
occurs when a person without authorizaton reproduces, distributes, displays, or performs a copyrighted work, or prepares a derivative work based on a copyrighted work
sliding scale
passive website vs. interactive website
natural law view
persons have the right to reap the fruits of their creations
4 aspects of youtube
playback, transcoding, related videos, and further syndication (on other websites) - syndication is questionable
anti-circumvention and anti-trafficking provisions of the DMCA
prohibits circumvention of technical measures that control access to works, and prohibits making and selling of devices used to circumvent technical measures to control access or prevent copying
3rd DMCA provision
right and ability to control - you need actual, specific knowledge - there is no obligation to go and look, just obligation to take it down if you have knowledge (subjective or red flag)
comity
should foreign places uphold the same laws/rulings as other countries?
comity of nations
sister states enforce judgements - even if it's hard to enforce the judgement, there may be a benefit for the issuing forum to hear the case anyway - soft power
initial interest consumer confusion
temporary confusion that is dispelled before the purchase is made
fair use
the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder
incentive-based view of copyright
the public grants an author a limited monopoly (giving up a public good), and receives original works of authorship and certain rights to use the work during the copyright term
exclusive copyright rights
to reproduce work in copies, to prepare derivative works, to distribute copies by sale/lease/etc., to publicly perform and display work
willful blindness
turning a blind eye, has to do with red flag knowledge, DMCA doesn't mention this, Viacom brings this up in court during Youtube v viacom
east vs. west coast code
west coast = Silicon Valley east coast = D.C. -lessig feels the conflict may be necessary so Silicon Valley does not get all the power
direct TM infringement
when a person without authorization uses a registered mark on or in connection with the sale, offering for sale, distribution or advertising of goods or services that is likely to cause confusion, or to cause mistake, or to deceive
notice-and-take-down provision (DMCA section 512)
when copyright owners send notice that infringement has occurred and is violating safe harbor
personal jurisdiction
when the court can haul the defendant into courtroom
criminal offenses for copyright
willful infringement for purposes of commercial advantage or private financial gain, or by reproduction or distribution during a 180-day period of works with a total retail value of more than $1000
trademark
word/logo/sound/color that identifies goods and services -2 reasons to protect: prevents consumer confusion and trademark owner (has established brand/credibility/goodwill) -don't have to register it (common law rights) but it's easier to prove your claim if you do -you can register it federally for 10 years and then re-register
doctrine of abstention
you can't just revisit something that has already been decided
tarnishment
"Adults R Us" - no one is confused, but it tarnishes the mark
objective knowledge/red flag knowledge
(YOUTUBE V VIACOM CASE) -there are facts and circumstances that would give a reasonable person knowledge - not "actual knowledge" - but it still has to be specific knowledge
calder vs. jones
-1984 - Supreme Court -The National Enquirer published an unflattering story about entertainer Shirley Jones. Jones brought suit for libel against the National Enquirer, its editor (Calder), and the writer of the story (South) (defendants) in a California court. Jones lived and worked in California; the National Enquirer was a Florida corporation and Calder and South were Florida residents. Calder and South objected to California's jurisdiction. The Supreme Court granted certiorari. -article was saying she was too drunk to do her job -Supreme Court ruled "yes" to whether there was personal jurisdiction in California because that's where the effects were felt - the court had jurisdiction based on the large circulation Enquirer enjoyed in California - selling over 600,000 copies each week out of a total national circulation of about 5,000,000 copies per week. -The issue presented to the U.S. Supreme Court was whether the sale of a magazine article provided sufficient minimum contacts to permit the assertion of personal jurisdiction over the editor of that article, pursuant to the Due Process Clause of the Fourteenth Amendment.
Sony vs. Universal
-1984 - supreme court -universal claims that the sale of the Betamax infringes on copyright -direct infringers: Sony's customers -is Sony liable for secondary liability? -is there a fair use for this technology for the tech users? -when is betamax okay? permissive use - NFL (at the time), Mr. Rodgers -Betamax is arable of substantial non-infringing uses --> technology/equipment creator is not liable -5-4 decision, at first court was saying Sony was liable for copyright infringement and trying to hold Sony liable for the sale of the betamax, reheard -court said that if the technology is capable of substantial non-infringing uses, (permissive, time shifting) it doesn't automatically impute knowledge to Sony based on design of tech alone -is Sony at fault if they are unaware of what users are doing with the Betamax? no -no imputed or actual knowledge -court ruled that the making of individual copies of complete television shows for purposes of time shifting does not constitute copyright infringement, but is fair use - Court also ruled that the manufacturers of home video recording devices, such as Betamax or other VCRs (referred to as VTRs in the case), cannot be liable for infringement. The case was a boon to the home video market, as it created a legal safe haven for the technology -The broader legal consequence of the Court's decision was its establishment of a general test for determining whether a device with copying or recording capabilities ran afoul of copyright law. This test has created some interpretative challenges to courts in applying the case to more recent file sharing technologies available for use on home computers and over the Internet such as the Napster/Grokster/Youtube cases
Hasbro v. Clue case
-1999 - district court -Hasbro (owns Clue game) claims clue computing infringes and dilutes their Clue trademark. Clue computing registered domain name in '94, Hasbro registered their trademark in 1950. court decided this wasn't confusing because goods and services by both were different, different channels of trade, care of purchasers purchasers --> they'd know, intent (magnifying glass in picture) strength (Hasbro is a bigger company), etc., courts decided that Hasbro generally was not at risk. trademark dilution, does "clue.com" dilute Hasbro's "Clue" trademark? Dilution would be illegal if use was deceptive/intentional, but the court concluded that it is NOT. no dilution, no blurring. -Court grants defendant summary judgment, dismissing claim that defendant's use of the domain name "www.clue.com" infringes and dilutes plaintiff Hasbro Inc.'s ("Hasbro") federally registered trademark "clue."
La Ligue vs. Yahoo
-2000 - Paris -Yahoo is allowing Nazi paraphernalia to be sold in France, which violates French law -yahoo is sued, tries to argue that it's technologically impossible to see, from their headquarters in the US, when people in France are accessing this auction -The defense rested on the fact that these auctions were conducted under the jurisdiction of the United States. It was claimed that there were no technical means to prevent French residents from participating in these auctions, at least without placing the company in financial difficulty and compromising the existence of the Internet. The defendants noted that their servers were located on US territory, that their services were primarily aimed at US residents, that the First Amendment to the United States Constitution guarantees freedom of speech and expression, and that any attempt to enforce a judgement in the United States would fail for unconstitutionality. As such, they contended that the French court was incompetent to hear the case. -Yahoo! Inc. had been ordered on May 22, 2000 to take all appropriate measures to deter and prevent access to auctions of Nazi memorabilia on its site by French residents. Yahoo! contended that it was impossible to comply with this order. The report of the court-appointed experts noted that, as of 2000, roughly 70% of French Internet users could be identified as such by the use of DNS databases. The court ruled that Yahoo! Inc. must comply with the original injunction within three months or face a fine of one hundred thousand (100,000) francs (15,244.90 EUR) per day.
yahoo vs. La Ligue Contre le Racisme et l'Antisemitisme
-2001 - district ct. of cali -yahoo brought case to California after French case claimed they couldn't ban what France wants them to ban/it infringes on their constitution -In LICRA et UEJF v. Yahoo! Inc., a French court ordered Yahoo!, Inc. (Yahoo) (plaintiff) to take measures to block French users from accessing content that violated French law. Yahoo had been sued in France by La Ligue Contre Le Racisme et L'Antisemitisme (LICRA) and L'Union des Etudiants Juifs de France (UEJF) (defendants), two organizations whose mission was to fight against the trivialization of Nazism. Yahoo's alleged violation of French law consisted of allowing Nazi paraphernalia and other materials glorifying Nazism to be auctioned on Yahoo.com. The items were accessible to French users visiting the site. In attempting to comply with the French order, Yahoo found itself technologically unable to prevent French users from accessing the auction site. Thus, it addressed the order by forbidding all users from auctioning items that glorified Nazism. The policy gave discretion to Yahoo in permitting the auction of items of an expressive nature, such as books and media. Notwithstanding the policy, Nazi-related items still found their way onto the site. Yahoo filed a declaratory judgment action in a federal court in California, seeking a declaration that the French order was not enforceable in the United States because Yahoo could not comply with it without excluding the challenged items entirely in violation of the First Amendment. -declaratory judgement - yahoo wants us government to declare they don't have to pay the $14,000 per day -court said case is about the constitution and the laws regarding other nation's power to regulate us speech - not about mortal acceptability of Nazism -doctrine of abstention - you can't just revisit something that has already been decided - cali says they're looking to determine whether they can enforce this law in the US - different matter - no litigation - they said there was no basis for abstention -French law is inconsistent with first amendment which outweighs law of comity -district court declined French order, judgement would be unconstitutional on US soil -case dismissal - no jurisdiction and wasn't right - first the group had to come and collect, and yahoo didn't want to be liable
Napster vs. A&M Records
-2001 9th circuit -content creators/owners sue Napster -napster created program allowing for sharing/downloading of mp3 files -before/at the beginning of the lawsuit they had 200k users, after they had 57m -being sued for secondary liability: contributory and vicarious - they provide the means for copyright infringement -napster said their users' use of the content on their site is fair use and they appeal saying there has been no copyright infringement -napster argues sampling; but, more users who are sampling are less likely to buy... therefore, it is not fair use -napster argues "space shifting", which assumes user already owns/bought the music, user just wants it in another space - court said the music is available to everyone, regardless of whether the user has bough it already or not -napster argues permissive reproduction - plaintiff didn't challenge - people who are okay with their stuff being downloaded thru Napster -However, Napster knows their users are infringing on copyright. this makes the case different from Sony because they are able to see what is being copyrighted/who is doing it/when/etc -Napster never actually has the song - they have the name of the file. this makes it a peer to peer (P2P) file sharing network -court says that unlike Sony, who had no knowledge, Napster does -if knowledge of infringement is the issue, make the next system without it... i.e. Grokster -Napster materially contributes --> contributory copyright infringement -Napster vicariously contributes because they get financial benefit (they make $ when people join), and they have the right and ability to control the files and user accounts -9th circuit court tells industry to tell Napster what to delete -85% of Napster's files were copyrighted - is 15% "substantial" enough to count as "substantial" non-infringing use? -Napster either needs to shut down or start charging people - 9th circuit court found that the contributory infringement does not necessarily exclude a party from safe harbor protection
Citron vs. Zendell
-2002 - canadian/human rights tribunal -Citron, holocaust survivor, brings suit against Zendell, holocaust denier -Section 13.1 - telephone communication -canada - free speech<human rights in some cases -zendell says that Section 13.1 doesn't apply because it was online. tribunal says this is about the dissemination of hate speech - online is a large means of spending ideas - therefore 13.1 applies -cease and desist against Wendell won't work because sites/info can easily be duplicated -tribunal still wants to go forward with it, and if it continues it will be dealt with --> soft power -zendell is in us with different servers -The court unanimously dismisses the appeal. They hold that although Zündel might be raising a good point the reasons that these requirements are in place (they were enacted in 1999) is to ensure that members can view human rights situations objectively. They say that these words must be read in context with the rest of the section and the Act as a whole, and when this is done it is clear that they are in place only to exclude people who have a closed mind, or are uneducated in the field of human rights from serving on Tribunals.
Young vs. New Haven
-2002 4th circuit -Young (plaintiff), a Virginia prison warden, sued newspapers the New Haven Advocate (the Advocate) and the Hartford Courant (the Courant), two editors, and two reporters (defendants) for defamation in the United States District Court for the Western District of Virginia. Several articles about a Connecticut policy transferring inmates to Virginia prisons, which were published online, implied that Young was racist and encouraged abusing prisoners. The Advocate is a New Haven newspaper with no subscribers in Virginia. The Courant is a Hartford newspaper with eight subscribers in Virginia. Neither newspaper has offices or solicits business in Virginia. The reporters never travelled to Virginia and do not live, work, or have property there, though they did make phone calls to Virginia to conduct interviews. Both newspapers' websites are geared toward Connecticut residents and make no mention of Virginia. The defendants moved to dismiss for lack of personal jurisdiction. The court denied the motion, asserting that jurisdiction was proper under Virginia's long-arm statute and constitutional due to the defendants' online activities. The defendants filed an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit.
Grokster vs. MGM
-2005, Supreme Court -is Grokster secondarily liable for copyrighted material? -their software is free, makes money from advertisements, and they can't see what files their users are sharing/file name server -claim to have no "actual" knowledge; their technology is capable of substantial non-infringing uses (?) -Supreme Court looks at the way streamiest and Grokster advertise -they are advertising to Napster users to switch to Grokster after Napster has been shut down -Supreme Court relies on inducement theory - encouraging copyright infringement -contributing and vicarious are not the only two -incriminating emails of Grokster's found talking about getting sued for attention -neither Grokster or streamcast made any effort to filter copyrighted/non-copyrighted content and court found that this, in conjunction with the emails found, was bad -MGM found that 90% of the material on Grokster was copyrighted, but Grokster denies this, but it doesn't matter because the court is talking about inducement -what is the Sony rule? what is substantial non-infringing use? -case asked questions -- how different is this case from the Sony case? should the precedent established by the Sony case be modified? -ginsburg: '"this case differs markedly from Sony" as there was insufficient evidence of uses which were non-infringing -breyer: "a strong demonstrated need for modifying Sony (or for interpreting Sony's standard more strictly) has not yet been shown," primarily because "the nature of [...] lawfully swapped files is such that it is reasonable to infer quantities of current lawful use roughly approximate to those at issue in Sony." -both judges concur that inducement is enough to hold Grokster/streamcast liable. the Ginsburg concurrence suggests that Grokster would be liable (unprotected by Sony) even absent evidence of inducement. The Breyer concurrence, on the other hand, suggests that Grokster would be protected by Sony without evidence of inducement -both judges also concur that Grokster could be liable for inducing copyright infringement
zippo.com vs. zippo manufacturing
-2007 district court -Zippo Dot Com (Dot Com) (defendant) was a California corporation which operated a website and provided an internet news service relating to Zippo lighter products. The website provided information about the company, advertisements, and subscriptions to a news service about the company's products. Dot Com owned the right to use the domain names "zippo.com," "zippo.net," and "zipponews.com." Dot Com had approximately 140,000 subscribers world-wide, roughly 3,000 of whom were Pennsylvania residents, accounting for approximately 2 percent of Dot Com's total subscribers. Zippo Manufacturing Corporation (Manufacturing) (plaintiff), a Pennsylvania corporation, brought suit against Dot Com in Pennsylvania, alleging trademark dilution and violations of the Federal Trademark Act. Dot Com filed a motion to dismiss, alleging lack of personal jurisdiction. -dot com, having 3k subscribers in Pennsylvania and 7 Pennsylvania ISP, and is trying to argue that they're not subject to Pennsylvania personal jurisdiction because it's not fortuitous -activities in Pennsylvania weren't enough, but even though it was only 2% of their company that was affected by Pennsylvania, it was enough
Youtube vs. Viacom
-2010 - district court -Viacom suing Youtube for secondary copyright infringement -court is interpreting the DMCA safe harbor provisions -viacom doesn't want these clips up for any period of time, and Viacom doesn't want to be responsible for monitoring youtube's site -CONTRIBUTORY COPYRIGHT, VICARIOUS, INDUCEMENT -youtube is saying they don't have to look at secondary liability because they have safe harbor but Viacom is saying no safe harbor because they had "actual" knowledge that the content was copyrighted. court says they have to have known about specific instances of infringement, and have done nothing about it = SUBJECTIVE KNOWLEDGE = otherwise, they are still under safe harbor -Youtube wins
Doughney vs. PETA
-4th circuit 2001 -PETA sued doughney for PETA domain name -doughney claimed that there would be no infringement to NSI when he purchased the domain (not entirely truthful) -PETA filed a complaint in '96 with NSI and Doughney had to move his website to a different domain, but the other website remained. -PETA sued for service mark infringement and unfair competition, and dilution and cybersquatting -To establish an Anticybersquatting Consumer Protection Act (APCA) violation, a bad faith intent to profit from using the parodied domain name must be proven and also that the domain name is identical or confusingly similar to, or dilutive of, the distinctive and famous mark. -in district court, doughney says it's a parody, making it an exception to the claims and protected by free speech -court rejected this because for something to be a parody, PETA.org would have to prove they are the original but not the original simultaneously -parody must be in the domain name -4th circuit adopts a very similar conclusion, but went more into depth on why it was infringement and dilution -doughney tried to claim he wasn't selling anything, which made it not trademark infringement -court denied this since it potentially hinders people from going/buying/donating on the real PETA site (commercial use) -in order to prove Doughney was cybersquatting, PETA would have to prove that Doughney had bad faith and intent to profit -"PETA should make me an offer... the longer they litigate, the less value..." -doughney -doughney had registered a lot of domain names = bad faith -tried to argue "safe harbor provision" - no way of knowing it would be considered trademark infringement - found unreasonable and unlawful' -court said the doughney's actions were not malicious, but confirmed district court's ruling in favor of PETA
Lamparello vs. Falwell
-4th circuit 2005 -falwell is a nationally known ministerial = Falwell.com -lamparello registers fallwell.com and criticizes Falwell's beliefs/sermons/interpretations of the Bible/views on gay rights -site isn't very popular, no real monetary gain on website: Falwell - 9,000 hits a day, Fallwell/lamparello = 200 hits a day -cease and desist was sent to lamparello by Falwell, it goes to court first to get declaratory judgement to say he isnt violating anything, and it's his free speech right to criticize Falwell, Falwell fired back with trademark infringement, false designation, and cyber squatting -District court sides with Falwell and told Lamparello to give domain back/but no damages -both are unhappy with this -in 2005 it goes to the 4th circuit court -looking to decide if the mark is confusing - is lamparello using it in commerce? maybe, but is there confusion? no -falwell argues initial interest consumer confusion -court says they never adopted the initial interest consumer confusion theory but regardless, there is no product switch - it's an idea switch which his of little or no consequence because there is no affect in the market -difference between this and the PETA case is that lamparello is not claiming parody -ACPA found lamparello did not have bad faith intent to profit -trademark in domain name is similar but a person's non commercial use of mark is fair use and free speech and they have a right to criticize -4th court reversed the district court's decision
Lenz vs. Universal
-NDCA 2008 -deals with DMCA section 512 - notice and takedown: gives online service provider some kind of immunity from secondary liability -Stephanie liz recorded a video of her toddler with a prince song in the background, universal sent a DMCA takedown notice and youtube took it down -Lenz claims the notice is a misrepresentation under section 512 of DMCA - clearly not an infringement of copyright because it is fair use and does not affect market value (if anything it increased it) -universal wants to dismiss case, says that doing a fair use analysis is too much work -district court says you do have to engage in some sort of initial investigation before sending out these notices because fair use is not copyright -"prince policy" - if it's prince's music, you have to send out the notice regardless of the reality of the situation regarding copyright or fair use -court denied dismissal of the case giving Lenz a leg to stand on
DARPA
-defense advanced research projects agency -idea of centralized network of communication -packet switching theory
ARPANET
-original internet -constructed in 1968 -
Johnson and post
-say that cyberspace is not regulable in the way spaces have been regulable before -4 reasons it typically made sense for geographic borders before the internet: power, effects (could have impact that is not immediate in proximity or time), legitimacy, notice (signs)
law of the horse
-you can't be overly specific - you must look at things more generally - learning about aspects of law before using details for specificity. Easterbrook says that the internet is constantly changing, so he doesn't think it should be regulated - "legal scholars can't apply copyright laws to the copy machine..." -lessig thinks cyber law might teach us how to deal with problems/limitations as regulator of behavior