ExpertPreneurLaw℠ Blog

Is Violating Copyright Good for the Economy?

On the seemingly inevitable march to greater and greater intellectual property protection, the proverbial pebble in the shoe comes in the form of a recent report from the Computer & Communications Industry Association, which concludes that one sixth of the gross domestic product in our increasingly IP oriented economy is due to activities deemed to be"fair use"  under the Copyright laws.

Just as a brief refresher, the concept of "fair use" in copyright is not an entitlement or a right. It is, in short, a defense against claims for copyright infringement where the allegedly unauthorized use is not denied; in fact it is admitted but defended on the notion that the limited infringement is "fair" and, thus, not actionable.

This fair use defense essentially revolves around demonstrations of relatively de minimus infringement, done for a salutary purpose such as education or criticism, in a way which is transformative of the underlying copyrighted work and which, generally, doesn't harm the ability of the copyright holder to economically exploit the copyrighted work.

While the report may make you shake your head in the way it arrives at its conclusion that fair use contributed 4.5 trillion dollars to the economy last year, one can't help but wonder whether, if such a conclusion really gained concensus, the law would be changed to encourage more fair use or, rather to protect existing copyright holders by discouraging it.

Food for thought on Copyright on the Internet

All ExpertPreneurs  must struggle with the effort, time and money needed to properly police their intellectual property rights on the Web.

But a recent piece by Andrew Glass of Politico.com should give pause to consider a real World perspective on the problem.

While the article is not written with ExpertPreneurs specifically in mind, the lesson in the article is quite instructive for them.

Even as the boundaries of copyright protection, and the claims for them, increase, seemingly exponentially, every day, there is a simple concept that must be applied to intellectual property rights as much as to everything else in life.

Since most ExpertPreneurs have limited time and money, they must determine the commercial value of their individual pieces of intellectual property to determine how much of that time and money they wish to devote to the protection of any particular piece.

This is where having a sound intellectual property protection strategy comes into play. Such a strategy is an indispensable tool for every ExpertPreneur.

An intellectual property strategy begins with a plan for the type of intellectual property you intend on creating and in what formats it will be distributed, e.g. a book, audio, DVD, etc.

Then, the commercial value of the piece, now or in the future, must be assessed, so that the greatest amount of available resources can be devoted to those works that are considered to be the most valuable.

It is important to keep in mind, however, that intellectual property protection is not an all or nothing game. Choosing to prioritize the the amount of resources used to protect certain works is not carte blanche to ignore the rest.

Instead, it should be used as a method to refine your intellectual property protection strategy to give some protection to some of your works, while giving more to the most important.

Fortunately, today's intellectual property legal systems afford a great deal of flexibility in how to approach these matters and all ExpertPreneurs would be wise to take this into account in formulating their intellectual property strategy.

Without this type of strategy, no ExpertPreneur can hope to have a systematic method of protecting their valuable works and risks having insufficient legal protections in place to go after infringement when it matters most.   

 

Where can you be sued for your Internet Activities - Part 2

In yesterday’s post, I began discussing how and when an ExpertPreneur can be sued in a courts in a state where they don’t live or have an office.

Specifically, I started to write about the concept of “long arm jurisdiction”, allowing courts sitting in other states to assert authority over out of state businesses when they had what were determined to be sufficient contacts with the target state and where the claims arose out of those contacts.

So, in the age of the Internet, what exactly is enough?

Interestingly, cases vary from state to state because the specific wording of a particular state’s statute on the subject and the interpretation of that state’s courts, varies and is often shaded on a case by case basis.

A recent case, interpreting New York’s long arm jurisdiction statute, serves as an example of what is NOT enough – at least in New York.

The case, Best Van Lines, Inc. V. Walker, was a defamation case in which a New York moving company sought to sue an out of state web site owner that posted consumer comments about moving companies for allowing and making allegedly defamatory statements about the company on its website.

The nature of the case is important here because New York’s statute allows long arm jurisdiction when, among other things,  the out of state defendant “transacts business” within the state.

Despite claims that the Defendant took specific acts to post and highlight the alleged defamatory statements about the Plaintiff, essentially claiming that the New York Company was carrying on its business without legal compliance and required insured.

Even if defamatory, the New York court held that this was not enough to “transact business” in New York.

And this was true even if people could exchange comments and other information with the website from New York.

What would have been enough?

Other cases point to actual commerce being done through the website, such as the taking and processing of actual orders, so long as the claim is somehow connected to the overall transaction.

For ExpertPreneurs, there are two important lessons.

First, if and when you are sued by an out of state party, one of your first considerations should be to determine that, under the prevailing laws of that state, you are properly under that court’s power.

Second, as a planning tool, keep in mind that the more actual business done from your site, the greater the chances that jurisdiction over you may be found.

Where can you be sued for your Internet activities? - Part 1

As a member of Linked In, I learned about a feature the program uses to educate people about one’s capabilities. Members can ask a question and have other members post answers.

When a question came upon within my subject area, I thought I would submit an answer to see if I could be of help. What I didn’t know is that another feature of the program is that , when all the responses are in, one can be designated as the  “Best Answer”.

Not knowing about this in advance, I was pleasantly surprised to have been picked and it inspired me to write this post, thinking that there must be a number of ExpertPreneurs who have faced or will face this problem.

Leaving aside specific statutes that deal with specific situations, state courts have always grappled with the question of when and to what extent they can assert their power or authority  over people or companies that don’t reside or have offices in their states.

This power is known as personal jurisdiction.  Over the years, prior to the Internet, the concept of “long arm jurisdiction” developed.

This concept allowed a state's courts to assert authority over such out of state individuals or businesses when they had both acted to deliberately benefit from the target state, such as by deliberately soliciting or doing business there, and when the claim against them from someone in the target state arose out of their activities there.

The Internet threw a wrinkle into this theory since, by definition, any ExpertPreneur or other business who puts up a web page or blog reaches every state.

So, how do courts determine purposeful activity when web pages passively reaches or makes offers everywhere at the same time?

Answer in tomorrow’s post.  Stay tuned.

More on Domain Name Tasting

ICANN, the Internet Corporation for Assigned Names and Numbers, recently again called for feedback on the practice known as domain name tasting, previously reported in this Blog.

The practice refers to registrants taking advantage of current registration regulations that allow a five day grace period in which to cancel and avoid paying for registrations, by scooping up domain names, evaluating their ad generating revenue, and throwing underperforming ones back before having to pay for them.

While use of generic domain names increases security threats to the system and slows it down for everyone, ExpertPreneurs should take note of the potential for trademark infringement by those who register lapsed or purloined or typosquatting names, only to run off before their actions may be noticed or acted upon.

For smaller ExpertPreneurs who don't have the resources to monitor or pursue domain tasters that may be infringing on their marks and diverting traffic from their most popular pages, helping raise the pressure on ICANN to curtail the practice can only help.

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Copyright Alternatives

In casual surfing this weekend, I came across a post by Phil Stolle at the ThoughtSparks blog about a subject that many ExpertPreneurs need to learn, as it increases their flexibility in distribution of their creative works.

This has to do with alternatives to the traditional view of copyright for materials which ExpertPreneurs may wish to have more easily distributed without loss of all intellectual property control.

Typical copyright in the U.S. grants copyright holders exclusive rights regarding distribution, reproduction, performance and display of their creative works, as well as control over the making of derivative works from them.

While the copyright holder always has the right to license or transfer any or all of these rights on a case by case basis, or even to disclaim them altogether, an ExpertPreneur will have many occasions where they won't mind having some of their works circulated without advance permission for the publicity and marketing value of that distribution. Yet, they don't want to lose all say over what use is made of these works and how their name is associated with it.

Enter a Creative Commons license, also known as  "Copyleft". This license allows the blanket grant of one or more of a copyright holder's exclusive rights on condition of compliance with certain limitations. The Creative Commons web site, linked above, gives you all the details.

Such a relaxed license can be just the ticket for things like ezine articles, blog posts and other types of distribution for the ExpertPreneur who wants more exposure without being accused of waiving his or her intellectual property rights.

Technorati Tags: copyright, contracts, intellectual property

Learn More about Intellectual Property for your Business

For the budding or growing ExpertPreneur that wants to learn more about the basics of intellectual property and how to use it to build your business brand and creative assets, as well as stay out of hot water, yours truly will be interviewed by blogging experts, Denise Wakeman and Patsi Krakoff, Psy. D. on their well known Blogging and Beyond Radio Program tomorrow, September 6th at 6 PM EST.

Details and links to access the program at http://www.blogtalkradio.com/blogsquad .

A Cheat Sheet for Domain Name Practices

Saul Hansel of the NY Times Technology section has put together a quick compilation of frequently used and misused terms relating to common domain name practices of ill repute.

If you need to learn about them, or just need a refresher, here's a quick and easy place to start.