Content

Information Residing on Systems or Networks by the Direction of Users Notice and Takedown Procedure

(A) OSP must designate agent to receive notification and file that name with Copyright Office (B) OSP has no "actual knowledge" or "aware[ness] of facts or circumstances from which infringing activity is apparent" (red flag knowledge) (C) If it does, it must "act expeditiously to remove, or disable access to, the material." OSP should (1) act in good faith (including considering fair use), (2) take reasonable steps to remove and notify owner, (3) if subscriber sends counter notification that there has been mistake, OSP must notify owner it will replace material within 10 days (4) OSP must then replace the material not less than 10 nor more than 14 business days after receipt of the counter notification UNLESS the copyright owner sends notice that it has filed an action seeking a court order to restrain the subscriber. (D) OSP must not obtain "financial benefit" or have "control"

Section 512 Threshold Requirements

1. Comply with Standard Technical Measures 2. Have a Reasonably Implemented Termination Policy

Trademark Defenses

1. Fair Use (Parody, Noncommercial Uses, Criticism/Commentary, etc. included) 2. Nominative Use 3. News Reporting 4. Noncommercial Uses 5. Generic Use

Levels of Trademark Protection

1. Fanciful 2. Arbitrary 3. Suggestive 4. Descriptive 5. Generic

Trademark Dilution

1. Mark is Famous 2. Likely to Cause Dilution through Blurring or Tarnishment 3. Likelihood of Confusion NOT Required

Likelihood of Confusion Test

1. Strength of the plaintiff's mark (e.g., distinctiveness, secondary meaning) 2. Degree of similarity between the two marks 3. Proximity of the products or services 4. Likelihood that prior owner will "bridge the gap" into the newcomer's product or service line 5. Evidence of actual consumer confusion between the marks 6. Whether the defendant adopted the mark in good faith 7. Quality of the defendant's products or services 8. Sophistication of the parties' consumers 9. Intent (though intent not required)

Four Safe Harbors Under Section 512

1. Transitory Digital Network Communications 2. System Caching 3. Information Residing on Systems or Networks by the Direction of Users 4. Information Location Tools

Cybersquatting

A "Cybersquatter" is one who knowingly reserved with a network information center a domain name consisting of the mark or name of a company for the purpose of relinquishing the right to that domain name back to the legitimate owner for a price. A litigant can sue under ACPA or trademark infringement/dilution.

MIT license

A free software license originating at MIT that allows users to reuse software as long as all software copies include the MIT license terms and the copyright notice. The MIT License is a permissive free software license originating at the Massachusetts Institute of Technology in the late 1980s. As a permissive license, it puts only very limited restriction on reuse and has, therefore, reasonable license compatibility. It gives the right to use, copy, merge, publish, distribute, sublicense, and sell copies. No warranty except warranty of merchantability. Indemnity for copyright holders. MIT does not require modifications be open source whereas GPL does.

Generic Use (Trademarks)

A mark can become generic over time and no longer be protected. Additionally, a particular type of use can be generic.

Trade Secrets

A trade secret is a type of intellectual property in the form of a formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not generally known or reasonably ascertainable by others, and by which a person or company can obtain an economic advantage over competitors. There also must be some reasonable effort to keep it secret. In some jurisdictions, such secrets are referred to as confidential information. Trade secrets are not exactly a specific type of IP because they can be patents, trademarks, copyrights, or something else. They just have to be secret. They last forever.

Trademarks

A trademark is an inherently distinctive word, phrase, logo, mark, symbol, or other device that distinguishes products from others. Trademarks are a signal for the consumer to find or identify a product, a promise of consistent quality, and a protection of the brand's value against competitors. On the Internet, trademarks are used as a logo, slogan, or name on a webpage for sales of goods or services or some other reason. Slogans or names also are used for domain names.

American Broadcasting Companies, Inc. v. Aereo, Inc. (U.S. 2014)

Aereo offers broadcast TV service over the Internet as free transmissions that are converted into Internet data but does not license or own the content. Aereo is performing because it is acting just like a broadcaster that the 1976 Act was meant to cover and cannot get around the requirement to pay just because the technology is slightly different. The transmission is also public because it is no different from what cable companies do, and they have the same commercial objective. It is not a "one-to-one" transmission but a public transmission. An entity can transmit a performance publicly through one or many performances. One may transmit a performance to the public "whether the members of the public capable of receiving the performance...receive it...at the same time or at different times." This holding will not discourage new technologies and innovation such as cloud tech according to the Court. The dissent argues that secondary infringement would have been a better theory here since there was no volitional conduct to copy.

Implied License

An implied license is an unwritten license which permits a party (the licensee) to do something that would normally require the express permission of another party (the licensor). Implied licenses may arise by operation of law from actions by the licensor which lead the licensee to believe that it has the necessary permission. Implied licenses often arise where the licensee has purchased a physical embodiment of some intellectual property belonging to the licensor, or has paid for its creation, but has not obtained permission to use the intellectual property.

Capitol Records, LLC v. ReDigi, Inc. (SDNY 2013)

An online music marketplace allowed users to sell and transfer legally acquired music by uploading files to a cloud service. There was reproduction because of the copying and distribution because of the transferring. The first sale doctrine defense does not apply here because digital files are not transferring the exact same copy like in the physical context.

Vernor v. Autodesk (9th Cir. 2010)

Customers of Autodesk must accept terms of use of Release 14 software, which said Autodesk retains all copies, customer could not transfer and was nonexclusive, and users could not modify, remove notices, use outside the Western hemisphere, unlawfully copy, or use for prohibited commercial or educational uses that are not authorized. Vernor received copy of Release 14, which was discontinued, from CTA and sold it on E-Bay. Using the 3-part test for owners versus licensee, the court holds that CTA was a licensee rather than an owner and Autodesk retained title. Additionally, the First Sale Doctrine did not apply. Essential step defense also did not apply because he is a licensee not owner.

Sony v. Universal

Case involved an allegation that private users who recorded shows using Betamax VCRs infringed and the maker of the VCRs should be liable. Sony could be liable for contributory infringement for selling equipment it specifically knew could record shows. However, there is no contributory infringement for a device manufacturer being used by users to commit infringement if you can show the device is capable of substantial, non-infringing uses. That was true here. VCRs have other purposes. "Time shifting" was an allowable use.

Criticism/Commentary Defense (Trademarks)

Consumers may comment on and discuss products and services that have protected trademarks. This includes news reporting. A news report can say "the Nationals" and not just "the D.C. team that won the World Series." First Amendment rights should be balanced against trademark

Contributory Infringement

Contributory infringement requires (1) knowledge of the infringing activity, usually specific not general, AND (2) substantial participation that induces, causes, or materially contributes to the infringing conduct. It is usually used in the OSP context.

Cartoon Network v. Netcom

Copies made for 11 days were fixed, but "incidental copies" using software on computers for only about a second were not. Netcom did not engage in action that affirmatively copied anything.

Copyright

Copyright owners have a bundle of rights under § 106. These rights can be split up. Copyright protection has a long, but limited term. Usually life of the author + 70 years but it depends and is often changing. Protection starts from the moment pen meets paper. Copyright covers the expression of an idea, not the idea itself. There are many defenses even if there is infringement such as fair use, the first sale doctrine, OSP safe harbors under § 512, and licenses. The effect of the Internet has drastically changed copyright law due to easy to produce and widely distribute content, portability of devices, digital revolution, high-speed Internet, and meaninglessness of national borders in cyberspace.

BMG Rights Management V. Cox Communications, Inc. (4th Cir. 2018)

Cox users shared and received infringing files through BitTorrent. Cox had a 13-strike policy for repeat infringers. While the policy existed, the court held that it was not a reasonable policy and it wasn't even really enforced. Therefore, Cox is not entitled to the safe harbor defense. It rarely actually terminated subscribers, brought back those it did after a certain period, had 13 strikes before it really did anything significant, etc. Cox failed to qualify for the DMCA safe harbor because it failed to implement its policy in any consistent or meaningful way — leaving it essentially with no policy.

Parody (Trademarks)

Defense to trademark infringement under fair use. Very close to infringement, but it is making fun of the thing. It involves two conflicting messages. You want to invoke the original mark but also show a different message by making fun of it in some other way. For example, "Big Muc" instead of Big Mack or "Hidden Valley Stench" instead of Hidden Valley Ranch. There is confusion in parody, but that is the point. It may be infringement if it is not clear that it is a parody.

Copyright Direct Infringement

Direct infringement requires (1) ownership of a valid copyright, and (2a) copying in fact, show through either direct evidence, such as admissions, or indirect evidence, shown through a sliding scale of access and substantial similarity, and (2b) improper appropriation. The act of infringement must be volitional although it does not have to be intended.

Fair Use (Trademarks)

Fair use is a broad term. It can include descriptive uses ("I bought a Dell computer today"), uses in good faith, truthfully identifying something, and other noncommercial uses. It also includes comparative advertising, parody, criticism/commentary, or parody. Fair use is inherently a First Amendment idea.

Fair Use

Fair use, codified in § 107, is a complete defense to copyright infringement. It usually stems on whether a new use of a work is transformative or noncommercial enough, but four factors are considered in a balancing test: (1) purpose and character of use (transformative v commercial), (2) nature of the copyrighted work, (3) amount taken, (4) potential market effect.

Field v. Google (D. Nev. 2006)

Field published various free, original written works on his website. He alleges Google violated his copyrights by displaying cached versions in Google searches. However, he did not set his permission to the no-cache filter that he knew Google provided. Google even removed the cached link as soon as it knew of Field's suit. The court agreed with Google that Field gave it an implied license to display his cached works because he consciously did not use the no-archive metatag. This was a nonexclusive, implied license that required no writing.

Perfect 10, Inc. v. Amazon.com, Inc. (9th Cir. 2007)

Google images provided both a thumbnail preview in a stored, fixed form and HTML instructions to the actual images of Perfect 10's nude model site. The process is called "in-line linking" or "framing." The use of the framing was not infringement but the thumbails were. However, it was fair use because it is transformative, a public benefit, not very creative, a neutral use, and no harm on any potential market.

Perfect 10, Inc. v. Amazon.com, Inc. (9th Cir. 2007)

Google images provides thumbnail previews that are stored caches and HTML instructions that link to the actual image of a website when a user clicks on the image. Perfect 10, a nude models site, alleges that distribution and public display right were violated. With regard to the thumbnails, these were stored and fixed images, so it was a violation of the display right. However, fair use applies. With regard to the HTML instructions, there was nothing fixed and Google did not actually make a copy. It only stored instructions not the images themselves. This was not infringement.

MGM Studios v. Grokster (2005)

Grokster and Streamcast were peer-to-peer file sharing systems like Napster that allowed users to share videos and movies. It knows that most downloads by users are acts of infringement. One who distributes a device with the object of promoting its use to infringe a 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. Here, the services marketed Napster users, advertised a similar ability to share files, had no filtering tool to diminish infringement, and the more users they had the more money they made. These constituted affirmative steps to foster infringement. Sony defense does not apply here since there is no noninfringing use of the service. The whole point of the service is to infringe. Practically all users are infringing here. The services could be liable for inducement infringement.

Anti-Cybersquatting Consumer Protection Act (ACPA)

If D has (1) bad faith intent to profit by (2) registering or using a domain, that is (3) identical or confusingly similar/dilutive, then he is liable for cybersquatting for registering, trafficking in, or using the domain name of a registered trademark. Bad faith is determined through a balancing test considering (a) the IP rights of the trademark owner, (b) whether the name is commonly used, (c) prior use, (d) whether use is commercial, (e) any offers to transfer or sell, (f) accuracy of information, and (g) distinctiveness of the name. Fair use and lawful use of the trademark in the domain name are defenses. Not all factors must be shown.

Public Display Right

In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.

Jacobsen v. Katzer (Fed Cir. 2008)

Jacobson created a computer program, DeCoder Pro, through an open-source software group JMRI. It was available on open-source software site SourceForge. It was free to download, but its use, distribution, and modifications to the code were subject to the terms of the artistic license. Users could negotiate other terms with Jacobsen. Katzen downloaded and modified part of the program for use in another program that did not meet the required terms to allow for modification through another program. This creative commons license allows public use, copying, distribution, and modification but reserves some rights for copyright holders. Generally, the copyright owner waives the right to sue unless the user acts outside the scope of the license. It is outside the scope of the Artistic License to modify and distribute the copyrighted materials without copyright notices and a tracking of modifications from the original computer files.

Katz v. Google Inc. (11th Cir. 2015)

Katz, a real-estate tycoon and investor in the Miami Heat, had a copyright in a photo of him sticking his tongue out on a basketball court that he considers unflattering. A former tenant of a Katz building posted the photo in a scathing blog post with writing and a dunce cap. The use here was slightly transformative but was noncommercial. (2) A photo is primarily factual and not that original since it is just a snapshot. (3) The entire work was used, but this factor is not that relevant for photos. (4) There is no real market for a personal photo such as this. This was arguably a parody. It was noncommercial and nontransformative. The factors weigh in favor of fair use.

Lenz v. Universal Music Corp. (9th Cir. 2016)

Lenz posted a video of her kids running around with Prince's "Let's Go Crazy" playing in the background. Universal notified YouTube to remove it under the DMCA. YouTube removed it and notified Lenz. She sent counter-notification that it was not infringement. YouTube reinstated it. Universal sued for copyright infringement. Lenz argues that Universal should have at least considered fair use before sending a takedown notice. A good faith, subjective belief that there is infringement is all that is required. The court holds that Universal should have at least considered fair use, and although only a good faith inquiry is required, Universal failed to do this. 512c3a requires fair use consideration by copyright holder before sending notice to OSP; fair use is a right not an affirmative defense. If fair use, not infringement.

Domain Name

Like trademarks, domain names identify a product, service, or just a website through a URL. However, domain names are handed out on a first-come first-serve basis. Often companies do not register a domain in time before someone else claims it.

UMG Recordings v. MP3.com (2000)

MP3.com had a database of copyrighted MP3 files. Subscribers could access these files if they bought the CD or proved that they already had it. MP3 argued fair use. The court rejected this.

Multi-Time Machine Inc. v. Amazon (9th Cir. 2015)

MTM sold expensive military-style watches. It did not sell them on Amazon. If someone searched for "MTM watches" on Amazon, several other similar watches would show up in the search results rather than saying no result. The court held that there was no initial interest confusion, and therefore no violation of the Lanham Act here. It considered harm by association, compared initial interest confusion to a billboard ad, and discussed close competitive proximity. Here, because the consumers were reasonably prudent shoppers and Amazon's search results clearly labeled the brand of the other products as not MTM, there was no initial interest confusion. Amazon could have showed no results at all, but showing similar watches in the search is not trademark infringement.

Digital Millennium Copyright Act (DMCA)

Makes it illegal to circumvent technology-based protections of copyrighted materials. Section 512 provides for certain safe harbors for online service providers if requirements are met.

Device Manufacturer Liability

Manufacturers of devices that users can use to possibly commit copyright infringement will only be secondarily liable if those devices, or possibly online services, are not capable of substantial, non-infringing uses. A VCR, for example, is capable of such uses whereas an online music sharing site like Napster is not.

Fanciful Trademark

Marks that are completely original and made-up, such as Google, Kodak, etc. These names have no secondary meaning. They receive the strongest protection.

Arbitrary Trademark

Marks that have a common meaning elsewhere but are being used in a meaningless context, such as Apple, Amazon, etc. Apples are fruit, and the Amazon is a rainforest. However, the marks are not being used to signify these things. They receive the second strongest level of protection.

Descriptive Trademarks

Marks that simply describe the characteristics of a product in a straight-forward way but give the brand some secondary meaning, such as Coppertone, British Airways, etc. They have the weakest protection.

A & M Records, Inc. v. Napster, Inc. (9th Cir. 2001)

Napster was a peer to peer file sharing system where users could transfer music from computer to computer through its service. Napster could not be directly liable for its users' infringement, but it did induce, cause, or materially contribute to the infringing activity and had specific knowledge of it. Napster provided the site and facility like a flea market allowing vendors to sell infringing CDs. Therefore, it could be contributorily liable. It also could be vicariously liable because Napster had the ability to supervise and block users and gained a financial benefit by bringing more users onto the system the more music they shared. Here, Sony defense did not apply. Napster, a digital music marketplace, is not a service capable of substantial, non-infringing uses. Napster could be contributorily liable, as shown above, and also could not assert the Sony defense.

Nominative Use (Trademarks)

Nominative use "does not imply sponsorship or endorsement of the product because the mark is used to only describe the thing, rather than to identify its source." An exemption to trademark dilution as well as trademark law. It requires three elements. It is very similar to fair use. It is also a defense no matter what the likelihood of confusion is. 1. Not Readily Identifiable without the Use of the Trademark 2. Use Only Enough of the Mark as is Reasonably Necessary to Identify 3. Cannot Suggest Sponsorship or Endorsement

Inducement Infringement

One who distributes a device with the object of promoting its use to infringe a 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.

Perfect 10, Inc. v. Giganews, Inc. (Cal. 2013)

Online bulletin board, USENET that Giganews provides access to, users posted nude photos from Perfect 10 in discussions. Giganews' general awareness is not enough for direct infringement claim. The users copied but Giganews is just a conduit. It did not engage in any volitional conduct. Volitional conduct is required for copyright infringement. This is not the same as intent to infringe. Volition is more about causation than intent. The users can be liable for direct infringement without knowing or intending that what he or she was doing was infringement but not the conduit. Awareness on its own is not enough though some courts view knowledge as relevant. Secondary liability may be.

Open Source Software

Open-source software is a type of computer software in which source code is released under a license in which the copyright holder grants users the rights to study, change, and distribute the software to anyone and for any purpose. Open-source software may be developed in a collaborative public manner.

Patents

Patents protect ideas, procedures, and designs behind inventions. They are governed by the Patent Act. As opposed to trade secrets, they are not secret and last for a twenty-year term. They must be novel, useful, and nonobvious.

Trademark Secondary Liability

Secondary trademark infringement may occur in two ways: intentional inducement of another to commit trademark infringement; OR (2) continuing to supply to one knowing (specific knowledge) or having reason to know (general knowledge) that it is engaging in trademark infringement.

Panavision case

Someone registered domain for panavison.com, not the camera company, with images of Pana, Illinois. No likelihood of confusion of Pana, Illinois with high-end movie cameras.

Suggestive Trademarks

Suggest something about a product's nature, quality, or characteristics, without describing the product directly. Marks that require the consumers to use their imagination to understand what the product is, such as Dairy Queen, Netflix, or Microsoft, etc. It receives the third strongest level of protection.

Taubman Co. v. Webfeats (6th. Cir. 2003)

Taubman, P, was building "Shops at Willow, and D, who had nothing to do with the construction of the shops, registered shopsatwillow.com. He described it as a fan site but also linked to Webfeats, another site that sold t-shirts unrelated to Shops at Willow. When Taubman complained, he registered 5 more domains including taubmansucks.com. Taubman alleges a violation of the Lanham Act while D argues he has First Amendment rights. The court rules that there was no Lanham Act violation in any of the sites because the original site was not for commercial purposes, there was no likelihood of confusion, and there was a disclaimer that it was not official. There was not an attempt to cause economic harm. The other domains, such as taubmansucks.com were protected critical commentary speech.use economic harm.

Digital Rights Management (DRM)

Technologies that let copyright owners control the level of access or use allowed for a copyrighted work, such as limiting the number of times a song can be copied. Digital rights management (DRM) is a systematic approach to copyright protection for digital media. The purpose of DRM is to prevent unauthorized redistribution of digital media and restrict the ways consumers can copy content they've purchased. DRM products were developed in response to the rapid increase in online piracy of commercially marketed material, which proliferated through the widespread use of peer-to-peer file exchange programs. Typically DRM is implemented by embedding code that prevents copying, specifies a time period in which the content can be accessed or limits the number of devices the media can be installed on. Although digital content is protected by copyright laws, policing the Web and catching lawbreakers is very difficult. DRM technology focuses on making it impossible to steal content in the first place, a more efficient approach to the problem than the hit-and-miss strategies aimed at apprehending online poachers after the fact. An example would be Netflix downloads or digital movie rentals. 1201 is criticized for its conflict with free speech.

Public Performance Right

The Copyright Act gives a copyright owner the exclusive right to "perform the copyrighted work publicly." The Act's Transmit Clause defines that exclusive right to include the right to "transmit or otherwise communicate a performance . . . of the [copyrighted] work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times."

GPL (General Public License)

The GNU General Public License is a widely-used free software license that guarantees end users the freedom to run, study, share, and modify the software. Guarantees freedom to share and change software. May copy and distribute source code and modify, copy, and distribute object code. No warranty. Indemnity. Mostly the same legal rights as MIT license apart from modification.

Copyright § 106 Rights

The rights of a copyright owner include to (1) reproduce copies or phonorecords, (2) prepare derivative works, (3) distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending, (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly, (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly, (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Section 512 Safeguards Against Abuse

There are certain safeguards to ensure OSPs do not abuse these safe harbors. These include (1) knowingly materially representing that material is infringing, (2) filing the court action would result in Rule 11 sanctions, (3) notification is not specific enough to identify the infringement, and (4) a statement of authority signed under penalty of perjury is required.

Section 1201 of DMCA

There are two technologies and two prohibitions. For the two technologies, first, unauthorized access is prohibited. Second, unauthorized copying is prohibited. For the two prohibitions, first, circumventing a technological protection is prohibited. Circumvention includes avoiding, bypassing, removing, deactivating, or otherwise impairing. Second, manufacturing or distributing a device or program that disables thee protection is prohibited. There are some exemptions such as vehicles, libraries, protection of minors, short portions of motion pictures, screen capture software, wireless devices, security research, 3D printing, etc.

Uniform Domain Name Dispute Resolution Policy (UDRP)

There may be required dispute resolution by an administrative body for domain name disputes if a third party complaint is submitted to a provider where a domain name is shown to be identical or confusingly similar, the cybersquatter has no rights or legitimate interests in it, and it has been registered and in bad faith. Bad faith includes acquiring a domain name, solely for the purpose of selling, acquiring it to prevent another from having it, registering it to disrupt another's business, or registering it to attract user's away from the complainant.

Content ID

This automated technology scans computers to find instances of possible copyright infringement and send notices to websites. It is pretty accurate though not perfect. If there is a match, it will track, block, or monetize depending on what content owner prefers. Users can dispute takedowns since mistakes can be made. This is a proactive system as opposed to § 512, which is reactive. An example of an app that uses Content ID is Shazam.

Tiffany (NJ) Inc. v. E-Bay, Inc. (2d Cir. 2010)

Tiffany, a jeweler, discovered that counterfeit jewelry was being sold on E-Bay under the Tiffany name. E-Bay had various anti-fraud efforts. Tiffany sent a letter to E-Bay demanded it stop its users from doing this but did not identify specific sellers. The court holds that for secondary liability, a service provider such as E-Bay must have specific knowledge not merely general. E-Bay had general knowledge but not specific knowledge. E-Bay did not intentionally induce its users to sell counterfeit products. It also did not continue to supply to its users SPECIFICALLY knowing that the users were engaging in trademark infringement. The demand letters from Tiffany did not identify specific infringing sellers. E-Bay also promptly removed the sellers it discovered were infringing.

Trademark Infringement

To succeed in a trademark infringement claim, the original mark must be (1) protected, (2) used in commerce, and (3) present a likelihood of confusion, or in some cases, initial confusion, a derivative of that.

Owners versus Licensees

To transfer ownership of the copyright itself, rather than just give permission to use, a signed writing is required. It is sometimes difficult to distinguish between an owner and a licensee of a product or service. A software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions.

Quirks of Trademark Law

Trademark law has state, federal, and common law protections. There are often geographic limitations (i.e. a restaurant in Portland, Oregon can have same mark as in Portland, Maine if no confusion). The mark can be lost despite best efforts. They are focused on the rights of the consumer more than of the owner. It's about consumer protection. Overall, it's about preventing consumer confusion. An ® or ™ is not necessary for protection.

Generic Trademark

Trademarks can lose their protection if the public appropriates them, it has been inadequately supervised, or the owner has failed to protest. Examples include Band-Aid, Kleenex, Magic Marker, Popsicle, Trampoline, and Elevator.

Universal City Studios, Inc. v. Corley

Under the DMCA, copyright holders are entitled to protect their digital works behind encryption codes. Provisions of the DMCA prohibit facilitating access to technology that would circumvent property-protecting encryptions. Universal and other studios collaborated to create Content Scramble System (CSS) to protect content on DVDs from being accessed. Ds successfully wrote an encryption program that circumvented the CSS protection and posted copies of the code to his website. Universal sued. The posting or linking of computer code deemed unlawful under the Digital Millennium Copyright Act is not protected speech under the First Amendment. the CSS encryption was implemented to protect the legitimate property interests of copyright holders. Preventing circumvention is a substantial government interest. The government has a substantial interest in preventing decryption, and it is a narrowly tailored means of furthering that interest to enjoin linking by those who: (1) know the link will lead a user to unlawful material, (2) know the material is in fact unlawful, and (3) establish the link to provide access to the unlawful material. Corley's link satisfies all three of these elements.

Reproduction and Distribution Right

Under the reproduction right, no person other than the copyright owner can make any reproductions or copies of the work unless authorized. A reproduction right is a copyright holder's exclusive right to make copies or phonorecords of the protected work. Unauthorized copying by others constitutes infringement. The distribution right grants to the copyright holder the exclusive right to make a work available to the public by sale, rental, lease, or lending. This right allows the copyright holder to prevent the distribution of unauthorized copies of a work. In addition, the right allows the copyright holder to control the first distribution of a particular authorized copy.

Sony Corp. of America v. Universal City Studios, Inc.

Universal alleged Sony was liable for copyright infringement for manufacturing Betamax VCR because users could record shows for personal use. For unauthorized recording, court said time shifting showed no harm, was private and noncommercial, and expanded public access and would benefit society overall. Even though Sony had constructive knowledge of infringement, the devices were capable of substantial noninfringing uses. Private use is generally okay.

Initial Interest Confusion

Unlike likelihood of confusion, there generally is not actual or even reasonably likely confusion in initial interest confusion. Rather, the consumer is initially attracted to something, like an incorrect billboard, because of the similar marks even if he or she quickly realizes the difference. The confusion is dispelled before a product is ever purchased.

Vicarious Copyright Liability

Vicarious liability requires (1) the right and ability to control and supervise and (2) gaining a direct financial benefit. It stems from the law of agency and respondeat superior law.

First Sale Doctrine

You can resell legitimately obtained copies of a work such as a used book, record, movie, etc. It is only a defense to the distribution right. Generally, it does not apply in cyberspace because you are not actually distributing the same copy and losing it. If you email a file, you are copying it and transferring it without losing the file you had. That would be equivalent to photocopying a book and selling that, which is prohibited.

Essential Step Defense

[I]t is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued.