Intersection of Digital Rights with Copyright & Trademark …€¦ · Intersection of Digital...

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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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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.

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Author’s Email Address: [email protected]

Author’s Website: www.lrubinlaw.com

Author’s Mailing Address:

1 N. LaSalle St. Suite 1200

Chicago, IL 60602

Author’s 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.



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)



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



– 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.



– 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.

– Viacom’s response – Uploads are on such a grand scale that

Viacom should know, should take down without notice rather than waiting for receipt of notice

VIII VIACOM STATUS

• USDCSDNY has ruled that YouTube does what the statute requires, so – • Case dismissed. • Case settled.

IX. WHAT ABOUT UPLOADING?

• Individuals upload television, film content to networking websites such

as YouTube. • Is that copyright infringement?

X. WHAT ABOUT DOWNLOADING?

• Individuals find songs on the Internet, download for personal use without paying, make songs available for peer-to-peer transfer by others.

• Who is guilty of copyright infringement?

XI. DOWNLOADING MUSIC

• Two cases find liability: 1. Capitol Records et al. v. Thomas-Rasset, 06-cv-01497. 24 songs

downloaded and “made available” for peer-to-peer transfer.



• Original judgment of $1,920,000 reduced to $54,000, or $2,250 per song.

2. Sony BMG Music v. Tenenbaum,07-cv-11446, U.S.D.C.D. Mass. 30 songs downloaded, award of $675,000 - $22,500 per song.

XII. TRADEMARK LAW – GOOGLE LAWSUITS

• Google has keyword terms available for sale.

• Permits competitors to appear on Google Search results when another’s keyword is entered by searcher.

• Lawsuits by American Blinds, Rescuecom, others.

XIII. GOOGLE TRADEMARK CASES

• Plaintiffs’ claims are that by offering companies an opportunity to appear on a results page when a browser begins search for competitor, Google is committing trademark infringement.

• Rescuecom lower court decision --Three tests to determine unlawful trademark use –

a. There is a trademark use,

b. In commerce,

c. With a likelihood of confusion.

• Rescuecom Case – Judgment for defendant in trial court

– Applying 3 tests, no infringement of Rescuecom trademarks by Google

– Must be “use in commerce,” trial court ruled Google’s use of others’ marks not use in commerce

• Rescuecom case reversed on appeal – 562 F.3d 123.

• Sent back for trial – ruling was that Google’s use of the mark constitutes

a “use in commerce” within the meaning of prior cases.

• Keyword advertising now permitted but must be labeled



XIII. WHAT ABOUT “SECOND LIFE?”

• Offshoot of “World of Warcraft” • Virtual world, involving creation and travel of “avatars” in special

electronic environment. • Avatars can roam virtual world, but no tangible products or services.

XIV. SECOND LIFE

• Question of whether infringement where: – trademark is featured on electronic goods only used to dress an

avatar; – Copyrighted song used as atmosphere in virtual world bar. – Is use in virtual world a “use in commerce?” – Situation complicated by use of “Linden Dollars” to purchase

material – Linden Dollars” have a real world value, albeit very small – But collection of them can be redeemed through Linden Life for real

money

XV. VIRTUAL WORLD

• Cases – – Taser v. Linden Research – 2:09-cv-00811 U.S.D.C.Dist. Ariz. – Avatars using guns that look like Taser guns – harms Taser image.

(Q – Is it possible to harm Taser’s image?) • Cases –

– Stern v. Sony – 2:2009cv07710, U.S.D.C.D. Cal. – man with “visual disabilities” suing under ADA for failure to provide

aids – But ADA deals with “places of public accommodation” –

virtual world may not qualify.

– Bragg v. Linden Research – 487 F.Supp.2d 513 (E.Dist. Pa. 2007) – Player bought real property in virtual world

• But Linden confiscated it, claimed error in allowing it to be sold.



• Eros LLC v. Linden Labs. • Claim of copyright infringement because of

uploading by player of Eros copyrighted material. • Case dismissed by Eros LLC.

XVI. CYBERSQUATTING

• Use of trademark by non-owner as a domain name – Domain names usually serve as internet addresses – But increasingly thought of as trademark use –

• Can handle complaints without necessity of lawsuit (solving international jurisdiction problems)

– ACPA, Anticybersquatting Consumer Protection Act – ICANN, Internet Corporation for Assigned Names and Numbers) – UDRP (Uniform Dispute Resolution Policies


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