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  • Page 1 Copyright 2015, All Rights Reserved.

    Intersection of Digital Rights with Copyright & Trademark Laws

    Seminar Topic: This program is an update on Digital Rights Management (DRM) which is a group of copyright holders, publishers, and individuals who use technology to control the use of digital content and devices.

    Topics that will be covered in the program will be: what digital rights are: libel; invasion of privacy/publicity; copyright infringement; and trade secret infringement; digital rights management (DRM) access control technologies designed to limit access to and use of digital content and devices; the Digital Millennium Copyright Act (DMCA); and trademark law lawsuits. DMCA Safe Harbor protection of personal data and OPS.

    This material is intended to be a guide in general. As always, if you have any

    specific question regarding the state of the law in any particular jurisdiction,

    we recommend that you seek legal guidance relating to your particular fact

    situation.

    The course materials will provide the attendee with the knowledge and tools

    necessary to identify the current legal trends with respect to these issues.

    The course materials are designed to provide the attendee with current law,

    impending issues and future trends that can be applied in practical

    situations.

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  • Page 2 Copyright 2015, All Rights Reserved.

    Copyright 2015 Printed in the United States of America. All rights reserved. No part of this

    monograph may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, except for citation within legal documents filed with a tribunal, without permission in writing from the publisher.

    Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for his or her particular situation.

    The Apex Jurist, www.ApexJurst.com is Published by ApexCLE, Inc.

    www.ApexCLE.com

    Ordering Information: Copies of this monograph may be ordered direct from the publisher for $24.95 plus

    $4.25 shipping and handling. Please enclose your check or money order and shipping information. For educational, government or multiple copy pricing, please contact the publisher.

    Library of Congress Cataloging-in-Publication Data

    ApexCLE, Inc.

    1. ApexCLE, Inc. 2. Law-United States Guide-books. 3. Legal Guide 4. Legal Education.

    119 South Emerson St., Suite 248 Mount Prospect, Illinois 60056 Toll Free 8666572004

    920 South Spring Street Springfield, Illinois 62704

    Toll Free 8666572004

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  • Page 3 Copyright 2015, All Rights Reserved.

    Authors Email Address: lrubin@lrubinlaw.com

    Authors Website: www.lrubinlaw.com

    Authors Mailing Address:

    1 N. LaSalle St. Suite 1200

    Chicago, IL 60602

    Authors Phone Number: 312-476-7690

    About The Author E. Leonard Rubin is principal attorney at the firm LRubinLaw, where represents individuals and business clients worldwide. Mr. Rubin, who concentrates his practice in copyright, trademark, defamation, trade secret and entertainment law, resigned his position a number of years ago as Vice President, General Counsel and Corporate Secretary for Playboy Enterprises, Inc., where he had been for 13 years, to return to private practice. He has extensive experience handling negotiations, legal problems, internet implications and litigation in the copyright, communications, publishing, computer, music, television, theatrical and motion picture areas, among others. He is also a Certified Mediator as well as an Arbitrator. Mr. Rubin is a past Trustee and current president of the Midwest Chapter, and has sat on the Executive Committee, of the Copyright Society of the United States. He has written numerous articles and spoken both in this country and abroad on copyright, trademark, defamation, entertainment and data protection issues. He is a member of the Chicago, Illinois, New York State and American Bar Associations, and is admitted to practice before the Illinois and New York state courts as well as the U.S. Supreme Court and the Fifth and Seventh U.S. Circuit Courts of Appeal. Mr. Rubin is an adjunct professor at John Marshall Law School, teaching Entertainment Law. He is a former Adjunct Professor at Northwestern University School of Law (Copyright Law), the University of Illinois College of Law (Copyright and New Technologies Law), and Loyola University Law School (Advanced Copyright Law). He is a past president and Board member of Lawyers for the Creative Arts (which provides free legal help to indigent artists, authors and composers), sat on the Board of Managers of the Chicago Bar Association, was a Director of CBA-TV Inc., and for 35 years was the director and co-author of Christmas Spirits, the annual elaborate social and political musical satire show presented to attorneys, clients and the general public by the Chicago Bar Association.

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  • Page 4 Copyright 2015, All Rights Reserved.

    I. DIGITAL RIGHTS

    Rights of individuals to perform actions involving the use of computers, any other electronic device, or a communications network A. With certain exceptions, the digital world enjoys no greater freedoms

    than the non-digital (tactile) world. B. One glaring exception The Digital Millennium Copyright Act

    Why Have The Digital Millennium Copyright Act?

    In the tactile world, where various actions exist that impose absolute liability, intent is immaterial. (But can affect a damage award.)

    II. EXISTING RIGHTS AFFECTED

    Libel Invasion of Privacy/Publicity Copyright Infringement Trade Secret Infringement Criminal Laws

    III. ABSOLUTE LIABILITY TORTS

    No requirement of intent; can be innocent actor, but still guilty.

    1. Copyright Infringement Elements - access to and copying of protected material, Whether or not copier knew material was protected. (Bright Tunes v. Harrisongs, 420 F. Supp. 177 (S.D.N.Y. 1976)

    2. Defamation

    Elements Communication of an injurious falsehood to a third party,

    Whether or not there is knowledge of falsehood. (Nichols v. Moore, 396 F. Supp. 2d 783, U.S.D.C.E.D. Mich.,

    S.Div. 2005)

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  • Page 5 Copyright 2015, All Rights Reserved.

    3. Invasion of Privacy/Publicity Elements Intrusion on solitude, false light, public disclosure of

    private facts, appropriation for commercial advantage. Possible to commit any of these acts without intent. (Parks v. LaFace Records, 329 F.3d 437, U.S.C.A. 6th Circ. 2003) (Allen v. National Video, 610 F. Supp. 612 (S.D.N.Y. 1985)

    IV. DIGITAL V. TACTILE

    So in the tactile world, liability for some torts is absolute. But damage award could be affected Internet Service Providers (ISPs) lobbied Congress to escape absolute

    liability because of lack of control over content (chose to not control uploads)

    V. DIGITAL RIGHTS MANAGEMENT (DRM)

    Defined as: Access control technologies designed to limit access to and use of

    digital content and devices Digital Rights Management mostly used to control access to digital

    media. Disallow copyright infringements, but: Also prevent lawful fair use; Place restraints on non-copyrighted works, such as:

    VI. DIGITAL RIGHTS MANAGEMENT (DRM)

    Basic Provisions of Act (17 U.S.C. Secs. 108, 112, 114, Ch. 7, Ch. 8)

    1. No automatic liability for ISPs.

    2. But strict provisions regarding eligibility of ISP for safe harbor. No knowledge material is infringing No involvement in creation of material No modification of content

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  • Page 6 Copyright 2015, All Rights Reserved.

    If caching, no control

    3. ISPs must appoint representative to receive notices demanding takedown.

    4. Notice provisions are spelled out and must be followed. 5. Content uploader must be notified of takedown, has an opportunity to

    demand put-back

    Where encryption code is used by copyright owner, it is an offense to break the code to look at the content.

    (But without breaking the code, a user cannot tell whether a work is still protected or is useable because in the public domain.)

    All Interactive websites must appoint Copyright Designated Agent for reception of Takedown Notices.

    Safe harbor also available for linking by ISPs, with same limitations on knowledge, etc.

    Safe Harbors

    OSPs not liable for monetary, injunctive or other equitable relief, if:

    1. transmission initiated by or at direction of a person other than the OSP;

    2. the transmission or storage is carried out through an automatic technical process without selection of the material by the OSP;

    VII. VIACOM V. YOUTUBE 940 F. Supp. 2d 110 (2013)

    Viacom as principal owner of CBS owns much of CBS show content Members of public upload portions of many TV shows to YouTube

    without permission Viacom sends takedown notices to YouTube.

    Viacom filed $2B lawsuit vs. YouTube, claiming copyright infringement for featuring CBS content.

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  • Page 7 Copyright 2015, All Rights Reserved.

    YouTube (now owned by Google) defended by stating that they send proper takedown notices each time they are aware of illegal uploading, as prescribed by DMCA.