Legal Elves at Level 60 [blog 10]

Am Law Attorneys Setting Up Virtual Shop
by Brian Baxter, 4/30/09, American Lawyer.com

There are emerging legal practices in virtual worlds. Attorneys are establishing a presence in these worlds in order to solicit business, even though there haven’t been an excessive amount of cases to go to court just yet. Francis Taney Jr. has even said that 20-30% of his practice is dedicated to cases that arise in worlds such as Second Life. Most of this legal work deals with intellectual property and these firms have established their virtual presence with the help of online advertisement.

Interestingly enough, there are lawyers that are also avoiding getting involved with worlds such as Second Life because, were they to have legal conversations in the world, Linden Lab would have full access to the conversations, compromising legal advising privacy privileges. Second Life even discourages in world litigation. They encourage people to deal with conflicts directly between themselves.

Response

As discussed in class, intellectual property violations can’t even begin to be counted in virtual worlds. While a vast majority of these haven’t and probably won’t made it to court, it is not surprising that lawyers have taken an interest in the matter. What is surprising is that they are taking it one step further and providing legal advice in world through created avatars, surprising because it seems hard to believe that they are receiving millions of Linden that make it worth their valuable real world/money time. It also seems that corporations would be the only ones to care enough to seek such advice, and odd that they would begin to do so in world.

Such as the Gibson example presented in class, establishing a practice in virtual worlds may not be monetarily justified hour by hour in the present day, but they may just be preparing for what is to come in the future. If the predictions of Ed Lamoureux and many others are correct, virtual worlds will only become exceedingly more popular in the near future. This would explain why some in the real legal world find it worth their time to enter the virtual legal world and begin to jump ahead of the game in what should only be a growing market for them, with so much infringement to address.

When will lawyers devote hours on end to becoming a level 60 elf?

2 + 2 = Digital Rights Management [blog 10]

Amazon Faces a Fight Over Its E-Books
by Brad Stone, 7/26/09, NYTimes

Orwell’s “1984″ and “Animal Farm” were remotely deleted from Kindle devices after Amazon realized they were sold by a seller without legal rights. Amazon deeply apologized but a growing number of users want them to change the way they sell books for the devices altogether.

The Free Software Foundation is collecting signatures to ask Amazon to give up control on books that users upload on their Kindle and reconsider their use of DRM software. This software allows them to maintain control over the books and not allow others to create books for the device. It also takes away the first-sale doctrine from users, so they can’t copy or sell them. They basically rent rather than own.

People are worried that this grants too much control, while the other side argues that there are many advantages for consumers, such as replacing lost content. Supporters also feel that Amazon has the right to do this and using this technology can further enforce copyright law.

Reponse

This coincides directly with the class lecture in that the future of content ownership isn’t ownership whatsoever, but rental. In the end of the article it mentions that this way of doing business may be more and more common as younger generations that don’t know any better get used to it.

While this initially seems completely ridiculous, it may be the only ideal way to control property in the digital age and prevent piracy. This ideal protection is not practical, however, as many that still remember the old way of doing things are fighting back. Even though such laws are written for the big pockets, they can’t hold up against a bunch of angry farmers with pitchforks. Proof of this? iTunes.

E-Books are different in that they are not as easy to obtain illegally (at least I don’t know how), partially because young people don’t care as much about them as music. More, though, because e-book technologies are new enough to have learned from the music industry and protect their content from the beginning. I can understand technology preventing the production of copies, but having remote control over the machines of users seems a bit too Big Brother.

United States Retains Grip on the Internet [blog 8]

Internet still under US grip: forum delegates
by Jailan Zayan, 11/18/09, Yahoo! Tech News

Even though The United States made moves to loosen its grip, participants at a governance forum decided that they are still in the driver’s seat.

The US Commerce Department and ICANN agreed on bringing more accountability to the body. The IGF then claimed that the US has too much of a stake in ICANN, as a result exercises too much control and must be replaced by an international one.

“The US still has a key to the back door.” -Keisuke Kamimura, senior researcher at the Center for Global Communications, International University of Japan.

In order to make the body more global, review panels will be constructed of representatives from governments other than the US. The developing world is making an effort to be better represented and one Chinese civil society group has claimed that the entire body must be scrapped and replaced by one under the UN.

While ICANN manages the DNS, international countries have recently been enabled to register for domains in their own script. The problem is that Muslim countries and others typically opposed to the US have been having difficulty registering their domains, showing too much power in the hands of the United States.

Response

It was discussed throughout chapter 7 in Free For a Fee that the United States had more of a say in the international matters of the Internet than others and that they used trade status to push it further.

While it does seem silly to have the entire DNS controlled in the United States, if not there, where? Ideally it does not matter where it is controlled, but rather should be much more objective in the cooperation of registering these new foreign domain names. It does seem as though the US is pushing it to their advantage but it is hard to believe that any country would go about doing so without abusing it in one way or another. I do not use that logic to justify the actions of the US, just stating what is realistic, which is often far from ideal.

It does seem a bit more realistic for it to be done under a group such as the UN. Making the global growth of the Internet happen in a fair way will require the control of it to be in the hands of an unbiased party. It seems as the UN is closer to that as anything else. While I shouldn’t complain that the US retains the biggest piece of the pie, it does seem unfair. One could argue that they have the biggest stake in the IP pool to protect, but that doesn’t mean more countries shouldn’t be involved in determining how this pool gets covered every winter.

Secret Treaty Text Threatens Digital Rights Restriction [blog 8]

Will secret copyright treaty restrict your digital rights?
by Jeff Porten, 11/20/09, Macworld.com

If the Anti Counterfeiting Trade Agreement (ACTA) is signed, many United States laws about the Internet and data could be drastically different. Nations such as Australia, Canada, the European Union, Japan, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the U.S. are negotiating a joint treaty with the intentions of protecting intellectual property worldwide to be passed in 2010.

The contents of said treaty are apparently secret. All that is known is from leaked bits and pieces. Some leaks suggest that devices such as iPods and computers could be searched for illegal content and even confiscated at the borders. Other leaks suggest that ISPs will be examining the content that their users are sending through the pipes and policing it for illegal content.

Various officials have claimed that those two allegations come from earlier drafts of the treaty that are now outdated, but it is hard to know for sure because no one can get their hands on a copy.

Response

As stated in Free For A Fee, the international intellectual property scene is made difficult by the many differing economies and cultural beliefs around the world. It also mentions that the United States has the highest leveraging power in the global IP environment which it then pushes on others and is resisted by those who don’t like our style.

While it is hard to determine which of these rumors could possibly be true, it is also hard to determine whether this will move to protect IP worldwide or rather within the half of the world that agrees. None of the typical oppositions to our policies as mentioned in FFAF is a part of this treaty: India, China, Brazil, France, the Muslim World, and African nations. This means that while this treaty works to standardize global IP law, it may only make a half assed attempt.

That being said, checking devices at the border seems like a silly concept relating IP to drugs. It is as though people will be smuggling mp3s across the border in a world without the ease of doing it online. ISP policing, however, seems like a much more effective yet much more scary way of controlling intellectual property. All I know is that I ought to get in the content policing law industry, because they are going to need a hell of a lot of folks with a hell of a lot of legal knowledge to police every bit any time soon.

Computer Software Protected as a Trade Secret [blog 7]

Computer software can be protected as a “compilation” trade secret
by Philip Covitz, 7/28/09, NP 2.0 Blog

Whether or not something is a trade secret often has to be determined in court. In Decision Insights v. Sentia Group, the question was whether or not the identification of the entire source code of software qualifies as a “compilation” trade secret.

DII thinks that former DII employees now at Sentia disclosed DII trade secrets. The judge didn’t side with DII because they couldn’t identify the specific trade secrets. DII then identified elements of its code but was still deemed insufficient because they had no other documents about how it was developed years ago or even how it worked.

The district court dismissed DII on summary judgement but the 4th Circuit Court of Appeals reversed and remanded the case because the district court failed to determine whether or not the source code was a trade secret.

It is established that a trade secret can be made of a compilation of many things that are even in the public domain but the unification is what provides an advantage and requires secrecy.

The decision of this case then supported that an entire software program can be a compilation trade secret if there is an attempt to maintain secrecy.

Response

This resembles both the ClearOne case and Cenveo case discussed in class. It resembles the ClearOne case because it deals with source code being a trade secret. Like the Cenveo case, it is an instance of when one company is scared that their past employees are telling other companies their secrets.

It is interesting that valid trade secrets can exist that are compilations of many things that are even in the public domain. When thinking further, however, it makes perfect sense considering every function of code and recipe and sentence is built off of things that everyone has the right to use. It is what order these things are used in that provides the users with the advantage that inspires them to keep it a secret.

Much like in music, in which every song is built off of 12 notes, using them in the same order that someone already has is a crime. That is different, though, because the intention of those combinations are to be made as well known as possible, but the combinations that make trade secrets are highly confidential.

Company E-mail Being Monitored Intensely [blog 7]

Outbound E-Mail Being Vetted for Data Leaks
by “Todd”, 9/30/09, Trade Secrets Blog

Law.com reports that 38% of companies are monitoring outgoing e-mail and more are looking at social networks for employees linking data. They are looking, of course, to protect trade secrets and other company information. They figure that if trade secrets do leak they will have the e-mail records to prove it in court. 33% of companies hire someone specifically to filter e-mails. 34% have said their company has been harmed by such information leaks and 31% have fired someone for violating e-mail policies. Some are worried that this is Big Brother-esque and that such monitoring hurts employee morale, but keeping secrets is apparently worth it for many.

Response

As mentioned in class a trade secret has to have economic value, be relatively secret, and have reasonable efforts taken to maintain its security. This means that if a company did not take necessary means to protect their secret, it wouldn’t be one. Not only would it not be one by definition, but it wouldn’t stay secret long. People feel important telling other people secrets and with the world being connected by the Internet, it’s amazing companies can keep the secrets they can. It did surprise me to find out that a third of companies have someone hired specifically to monitor e-mails. Not only do I feel sorry for these people, but I’ll be well aware when sending company e-mails in the future. It does seem smart to keep records, as Big Brother as it sounds, to have records of any trade secret leaks the company suffers.

Is Twitter A Breeding Ground for Trademark Infringement [blog 6]

“Is Twitter Grounds for Trademark Infringement?”
by Douglas Malan, 9/29/09, The Connecticut Law Tribune

Companies often find Twitter accounts acting like them and using their logos. As a result many are suing Twitter but finding that the terms of service outline a process to take if they find their IP rights to be violated.

Companies with accounts to clearly mislead others will be immediately suspended. They will not, however, release the information of the accounts they suspend.

A brand has a lot of opportunities to use Twitter to damage competitors. One way of doing so could be to advertise for a popular company with logos and products, and upon clicking the link direct users to a completely unrelated location.

Tony LaRussa did sue Twitter after finding another user pretending to be him. While some companies have done so, others are reluctant because they do not want it to backfire on their business.

Response

This issue relates to the Playboy case discussed in class where the use of trademarked metatags were used in a confusing fashion to link users to unrelated sites.

There is a lot of potential for companies to create anonymous or false accounts using trademarked images and phrases of others in order to damage their reputation or confuse consumers. Confusing consumers by using others images to direct them to your stuff is clear cut trademark infringement.

The hard part is that if you are a victim, who do you pursue? Because of privacy issues, Twitter can not release the information of accounts to others.

This makes infringement having no consequences because the worst that can happen is that the account is shut down, leaving Twitter to deal with every single lawsuit or issue where people are claiming to be a victim. That would be a never ending battle.

It would relate to cybersquatting but doesn’t because people are not creating the accounts in order to sell them to the actual trademark owner. Because cybersquatting has already been taken care of, Twitter simply closes the account of an infringer, leaving them no financial incentive to squat on such names.

People do like to talk trash and it isn’t hard to sign up and upload someone else’s image. Because of this, Twitter has a long way to go before being trademark infringement free.

Cell Phone Service Trademark Infringement [blog 6]

“When is a Cell Phone Not a Cell Phone?”
by Mike Madison, 10/19/09, madisonian.net

In this case Verizon sells phones that are locked to a wireless service. It is also branded with Verizon trademarks both on the phone and in the software. The phone is then “reflashed” by a different wireless service, MetroPC, that reprogrammed the phone at the customer’s request to access that network.

MetroPC then sued Verizon for a declaratory judgement of noninfringement but Verizon claimed they violate multiple laws including trademark infringement. They both motioned for summary judgement.

The court considered  industry practice, common sense and an analogy using televisions. It concluded “that the summary judgment evidence creates a genuine issue of material fact whether reflashing fundamentally transforms a handset so as to create a new product and therefore constitutes “use” of Virgin Mobile’s mark.”

Virgin lost because it could not show direct infringement, failing to produce sufficient evidence of intentional incentives or knowledge with continued supply.

Response

As discussed on page 119 of Free For A Fee, the Trademark Act of 1881 declares that trademark infringement is accomplished by presenting and encouraging the likelihood of confusion. This means that MetroPC would be infringing upon the Verizon trademark if they were using the logo to confuse consumers and gain business that should be Verizon’s.

This isn’t the case, however, because it is the customer’s request that brings about MetroPC’s reprogramming. This means that they are not confused and would rather use MetroPC’s service rather than Verizon’s.

MetroPC is not gaining any commerce by the phones that they are brought having Verizon logos. They are also not encouraging any confusion nor claiming that their service is related to Verizon.

They were not found for infringement because it isn’t their fault that customers are bringing them phones that already had Verizon logos on them.

Google Patents Their Home Page [blog 5]

“Google’s Patent on its GOOGLE.COM Home Page”
9/13/09, Patently-O

The USPTO issued a design patent to Google for its layout of their homepage. It is not a typical patent, but a design patent. They have apparently been granting patents for screenshots and icons for years, and few of these patents have ever been found to be invalid. It is done in such a way that even if the Google logo and name were replaced, it would still be against the patent.

It is also notable that they have copyright and trademark protections on the page. This overlapping causes problems because it makes it even harder to fight any claim that may not initially seem legitimate. Design patents last for 14 years, so theirs will be good until 2023. An image of their patent can be seen by clicking the original link.

Response

As written in Free For A Fee on page 95, “In order for an invention to be patentable it must be new or novel, non-obvious, useful, and must satisfy a variety of statutory requirements.” It is also important to keep in mind that such a patent has nothing to do with functionality.

Because it is so simple, it seems hard to justify the layout of Google’s homepage as non-obvious. A big logo, with a field, two buttons, and some links underneath it seems fairly elementary. I’m not saying it isn’t a brilliant design for their business, but it just doesn’t have that much to it. While a middle schooler could not create a page with Google’s functionality, it seems as though something with a similar layout would not be that far of a stretch.

What is also worth noting is upon examining Google’s homepage from day to day, the links and text seem to change frequently. While I guess the patent doesn’t pertain to the exact words but rather the location of such, this seems to make it even more vague.

So while this doesn’t seem all that legitimate, how can Google get away with it? Obvious. Because it’s Google. As the article said, they have so many overlapping protections on the look and use of that front page that if anyone attempted anything in the same ballpark the hydraulic cylinder in their computer chair would immediately launch them into space.

Facebook sued for patent infringement [blog 5]

“WhoGlue Sues Facebook for Patent Infringement”
by Lawrence B. Ebert, 9/24/09, IPBiz

WhoGlue had a patent for a relationship management system and many of the functions that Facebook takes advantage of. Because of this they sued Facebook. Even though they had only five employees they claimed that they are not patent trolls intending to license all along, but rather patented it because it was the core of their business. The question is now does WhoGlue have the resources to stay in the case long enough while Facebook tries to prove that the office should not have issued the patent. The upper hand typically goes to the patent holders but Facebook does have alternate options of defense. An interesting note is WhoGlue once attempted to auction the patent, only for it to not sell.

Response

While I’m not sure that Facebook really makes all that much in revenue, it is fairly apparent that they have more power in the legal battle that is to come. If they can make the case drag on, it is going to be difficult for WhoGlue to even come up with the money to stay in the game. This only matters, of course, if WhoGlue legitimately patented these functions for the “core of their business.”

Why? Because as discussed in page 111 of Free For A Fee, in the case between eBay and MercExchange, injunction should not be granted to those who do not use patents for producing and selling goods, but rather for obtaining license fees. This is a patent troll.

I would imagine that WhoGlue does not intend on halting Facebook’s service, but rather obtain such fees for using the services described in their patent. They probably won’t be granted damages because they didn’t have much going for them that Facebook interrupted. These fees would probably be fairly significant and probably the only source of revenue for their company. I can’t see this qualify as much rather than a troll.

If WhoGlue actually has the resources to get deep in the case they’re still going to need a bit of luck.