Stop Piracy, or Innovation?

On November 16, 2011 Congress began review of The Protect IP Act (PIPA) is a U.S. Senate bill introduced by Senator Patrick Leahy and its House counterpart Stop Online Piracy Act (SOPA). Since their introduction in May 2011, the bills have been met with severe backlash, with opposers calling them “innovation killers” and “patently unjust.”  On the first day of hearings even Rep. Lamar Smith, a chief sponsor of the bill, expressed uncertainty over the bill’s scope.

The legislation has been opposed by the Electronic Frontier Foundation (EFF), Yahoo!, eBay, American Express, Google, Reporters Without Borders, and Human Rights Watch to name a few.  Media-sharing services such as Vimeo and Flickr, along with crowd favorite e-commerce communities such as Etsy could be the types of sites at risk under the Stop Online Piracy Act.  Fight for the Future published a 3-minute infographic video explaining the basics of the bills and their impact on everyday activities of online interactions.

The bills are designed to provide the government and copyright holders the power to block access to “rogue websites dedicated to infringing or counterfeit goods,” especially those registered outside the United States.  If passed, PIPA and SOPA would allow the government to prevent public access to websites with “no significant use” other than copyright infringement, or enabling such infringement.  It would also make unauthorized media streaming a felony and hold web publishers and hosting services responsible for curbing users from acts involving copyright-infringement.

All in all – it would make most everyday media usage a crime, hold people accountable even if they did not know it was going on, and it would focus energies away from real issues (such as lack of healthcare and a dying economy).  SOPA would also get rid of the safe harbor provisions of the Digital Millenium Copyright Act, which grants Web sites immunity from prosecution as long as they act in good faith to take down infringing content upon notice.

Under the bill, the Justice Department would be allowed to obtain court orders demanding that American ISPs prevent users from visiting blacklisted websites. ISPs receiving such orders would have to alter records in the net’s system for looking up website names, known as DNS.  The House bill would also enable the Justice Department to order sites like Google to remove allegedly “rogue” sites from search results.  As with many other bills, the determination of what is “rogue” would be out of the hands of the general public, the companies hosting the content, and anyone with direct understanding of the content and its use.  It would give unprecedented censorship power to the US government.

The potential censorship issues were met with strong arguments that some measure of law is needed to police the piracy and counterfeiting problems rampant on the Internet.

“Doing nothing is not an option,” Rep. Mel Watt of North Carolina noted.  “Not only are online piracy and counterfeiting drains on our economy, they expose consumers to fraud, identity theft, confusion and to harm.”

His sentiments were echoed by John Clark, the security chief for Pfizer, who testified about counterfeit drug sales on the internet.  “I see counterfeited medicines as attempted murder,” said Clark.

Proponents of the bill also argue that if nothing is done, the US Copyright system will be rendered useless. However, it is unclear how the copyright system would fail when companies like iTunes, Pandora, Spotify, Grooveshark and Amazon are the mostly commonly used sources for legitimate music downloads.

The issues comes down to this:  how many rights are we willing to give up here?  Is it worth it? And does Congress understand the numerous options available on the Internet?  After all, computer savvy users will always find a workaround; but the people who would be held accountable would be minor offenders, and under this bill, even accidental offenders.

With strong arguments on both sides of the bills, the answer remains unclear.

- Sheheryar T. Sardar, Esq., Sardar Law Firm LLC*

For more information on contract law or digital media law, contact: Sardar Law Firm at sardar@sardarlawfirm.com.

First published in The BroadStreet Times

The International Landscape: A Broad View on Intellectual Property Protection

Despite the harmonization of intellectual property law and policy seen in the numerous international treaties between countries, there is no single copyright or trademark law that protects a work in every country in the world. To avoid legal problems, such as property theft, companies which conduct or seek to conduct business abroad should take the necessary steps to ensure that their IP is safe in every applicable country.

Before proceeding with securing international rights, a company should assess whether filing for protection is appropriate. Circumstances for determining what type of IP protection is best for a certain company vary, so seeking legal counsel is advisable. Several general questions can help guide the decision, such as whether or not you will be selling, distributing or outsourcing your product abroad, and what the likelihood if of your product being copied overseas. International protection is not inexpensive, and affordability should be a deciding factor. While every care and consideration should be taken in the decision, businesses should keep in mind that since certain actions can bar certain types of protection, it’s in a business’s best interest to consider IP protection as early as possible.

Once you have decided to protect your IP abroad, legal counsel can help you develop an overall protection strategy, conduct due diligence of potential foreign partners, record your U.S.-registered trademarks and copyrights with Customs and Border Protection, and secure and register trademarks and copyrights in the appropriate foreign markets.

As trademarks are territorial and a U.S. trademark does not grant protection in other countries, trademarks must be filed in each country where protection is sought. If a business is seeking trademark protection in numerous countries, it may be expedient to file an application under the Madrid Protocol, which offers trademark protection in many countries, including those beyond the European Union (e.g. Turkey, Iran). Another option for businesses seeking protection in several countries is a CTM, which must be applied for and provides protection for a trademark in all member countries of the European Union.

Although there is no such thing as an “international copyright” that will protect a work worldwide, most countries offer protection to foreign works under international copyright treaties and conventions. In the case that the work can’t be brought under an international treaty, a country may still offer protection under its national laws. Examples of international copyright treaties and conventions include the Berne Convention for the Protection of Literary and Artistic Work, the Universal Copyright Convention, the World Intellectual Property Organization (WIPO) Copyright Treaty; the WIPO Performances and Phonograms Treaty, and the Agreement on Trade­Related Aspects of Intellectual Property Rights. Since there are still some countries that offer little or no copyright protection to any foreign works, it may be advisable to consult www.copyright.gov for a list of policies specific to each country.

It is important to keep in mind that international protection and U.S. protection can differ in several ways with regards to IP. For example, the U.S. offers arguably less protection of an author’s moral rights than other countries. On the other hand, the fair use defense to copyright infringement under §107 of U.S. copyright law is significantly broader than international fair use exemptions, which have a tendency to be more specific in nature. Since policies can vary between countries, it is always advisable to conduct due diligence for the most up-to-date legal and procedural issues surrounding international protection. Failing to do so may result in product or name infringement and dilution in a jurisdiction where you have no judicial or legal remedies, possibly resulting in devastating economic consequences.

 

by, Sheheryar Sardar, Esq., Sardar Law Firm LLC*

For more information on contract law, contact: Sardar Law Firm atsardar@sardarlawfirm.com.

Follow Sardar Law Firm on Twitter: @sardarlawfirm

Social media has schools on defense

Our very own social media maestro, Sheheryar T. Sardar, got interviewed by Business Insurance about schools going on the defensive with social media.

Take a read at this excerpt: Social media has schools on defense 

The circumstances under which a school might find itself in court over an item of social media content are fairly easy to predict, experts said.

If a university athletic department actively monitors its students’ social media accounts and fails to recognize or act on information that could have predicted or prevented a loss—property damage, personal injury or death—the school could be sued for negligence or dereliction of duty, said Stephen Marcellino, a partner in the New York and White Plains, N.Y., offices of Wilson Elser Moskowitz Edelman & Dicker L.L.P.

“Once you take on that kind of policing activity, it creates an obligation,” Mr. Marcellino said. “One could easily posit a liability theory in terms of discharge of duty. It’s almost a case of “Be careful what you wish for.’”

On the other hand, acting too swiftly on information obtained through social media monitoring also might not be advisable. Even if every post by every student under surveillance were authenticated, experts worry whether school and athletic administrators can correctly interpret the content of each post.

Jennifer Whittington, executive director of the Bloomington, Ind.-based University Risk Management & Insurance Assn., said a student suspended or kicked off a team for a post that he or she did not author or that was taken out of context could file a claim against the school for reputational damage or lost future financial benefits linked to their athletic talents.

A university also could face litigation based on how it determines which students to monitor. Sheheryar Sardar, a partner at the New York-based Sardar Law Firm L.L.C. and author on using social media, said a school that monitors only some of its students—such as athletes—and not the rest could be accused of discrimination or violating students’ 14th Amendment right of equal protection.

“It’s just not advisable for any school to regularly monitor a student’s social media use,” said Alyssa Keehan, senior risk counsel for the Chevy Chase, Md.-based United Educators Insurance, a Reciprocal Risk Retention Group. “Social media, really, is just another medium for behavior; and just as you can’t feasibly monitor every student’s behavior 24/7, it’s unreasonable to try to do that with social media postings.”

Read Full Story HERE.