ExpertPreneurLaw℠ Blog

How Much Infringement is Infringement?

ABC News reports of what some might be tempted to call "babyish" behavior when it comes to applying the controversial take down notice provisions of the Digital Millennium Copyright Act.

In its report,  ABC tells of a woman who uploaded a home video of her baby dancing to You Tube and had that video removed after You Tube received a take down notice from Universal Music Publishing Group because the song playing in the background, Prince's "Let's Go Crazy", was copyrighted material.

As required by the DMCA, the alleged infringer was notified and, by filing a counter-notice, objected to the take down on the grounds of claimed fair use under the Copyright Act, resulting in its being restored, although not for several weeks.

According to the report, the claimed infringer, with the help of the Electronic Frontier Foundation, has sued for damages and other relief, claiming abuse of the procedure by Universal, since the DMCA requires those serving the take down notice to  certify that they have a right to send the notice and that their work is legitimately being infringed.

YouTube's New Copyright Filter Helps and Potentially Hurts

As ExpertPreneurs increasingly use Web 2.0 sites like YouTube to both demonstrate their expertise and promote their products and services, they have to be glad to hear that the service's just announced copyright filter will make their job of monitoring for copyright infringing uses of their materials easier.

Yet, as discussed by Fred von Lohmann of the Electronic Frontier Foundation, the partial vaccine to reduce the need for DMCA take down notices and lower the temperature on claims of secondary copyright liability claims against the site may sometimes be worse than the disease.

As the article explains, YouTube's video filter reportedly doesn't allow for the equivalent of DMCA counter-notices when it thinks it's found a match. Instead, the removed video is sent to the copyright holder for review, leaving it to the holder, in the first instance, to decide whether there may be fair use as opposed to infringement.

Considering the divisive climate already in the air over claims of over-aggressive use of the take down notice procedure,  ExpertPreneurs, while benefitting when they're the copyright holder, may find themselves wishing for a better method of protecting their own fair use materials from abrupt disappearance.

Von Lohmann's article offers at least two technological fixes that could take a step in the right direction by YouTube even further down the right road and is worth  reading.    


Technorati Tags: copyright, DMCA, Take Down Notice, You Tube

The Cease and Desist Letter that Won't Go Away

Every ExpertPreneur will learn over time that it is a common first step in the case of copyright or trademark infringement, and even for other claims like defamation, to send a cease and desist letter to the alleged wrongdoer in an effort to bring the offending conduct to a quick end.

Such letters are typically sent by attorneys and contain mild or not so mild threats of what will happen unless the terms of the letter are complied with.

In the past, these letters were mostly kept between the parties and their counsel but, with the advent of the Internet in general and Blogs in particular, the stakes have been raised.

Many a cease and desist letter writer has been surprised to see that their letter has not only been rejected, but posted online in an effort to hold the writer and his or her client to public opprobrium.

Now the stakes have been raised again when a law firm that sent a cease and desist letter took the position that the cease and desist letter itself was copyrighted and that publication of it on the Net could subject the recipient to law suit.

To be fair, this law firm has been the subject of so much negative publicity on this issue, I hesitate to name it since it's both easy to find and because I don't like to pile on unnecessarily.

To make a long story, that is still being played out, short, the threatened party obtained the services of consumer watch dog Public Citizen , whose litigation group has dared the law firm to assert its copyright and sue. Time will tell what happens but there is no doubt that the threatening law firm and its client have gotten less than the kind of publicity they would like.

But, for ExpertPreneurs, the lesson is simple. While cease and desist letters have their place and are important weapons for establishing notice to an infringer of their wrongful conduct, it is best to take care before unleashing your lawyers, to take into account the public relations aspects of your actions, and to make sure they're worded in a way that will get you to where you want to go and won't backfire.


Technorati Tags: cease and desist, publicity, defamation, copyright, litigation

Are Bloggers Journalists?

In her "Writes like she Talks" Blog, Jill Miller Zimon writes about proposed federal legislation that provides "shield" protections to journalists and whether bloggers would or would not be included.

These "shield" protections deal with privileges afforded to journalists protecting them from having to divulge their resources,  among other things.

As the post points out, however, the crucial question is in how to define who a journalist is, for purposes of the law.

For example, would ExpertPreneur bloggers be included if journalism was not their main line of work?

Since an underlying concern of defining who is included as a journalist deals with comfort that they are abiding by professional ethics and codes of conduct otherwise followed by more mainstream journalists, the answer, as yet, is not clear.

The proposed bill is not the first stab at this subject, but it is the latest, dealing with federal cases. 

Prior versions sought to impose "financial gain" and "source of livelihood" requirements in order to be considered a journalist but that language is not yet in the current proposal.

The issue of journalist privilege for bloggers is just one of many shakeups in legal theory made necessary by the increasing prevalence and influence of blogs in today's World.

As an example of what rights and responsibilities ExpertPreneur bloggers may find themselves affected by, this legislation bears watching.

Making Litigation Faster and Cheaper

Recently, I posted on the question of where an ExpertPreneur could be sued based on their online activities.

One interesting side issue on this general topic is how to handle disputes amongst expertpreneurs  or between they and their customers to avoid the hassles and limitations inherent in having to either sue out of state ( or around the World ) or face lawsuits there as well.

This month’s ABA Journal has an interesting article on the growth of a procedure that’s increasingly being used to bring justice to litigants in their own homes and laptops.

The concept is Online Dispute Resolution or ODR.

ODR differs from private arbitrations, which, by and large, are alternatives to court litigation.

ODR, instead refers to taking advantage of technology to try to reduce costs and speed up resolution of court disputes by using some or all of various web and digital applications to essentially litigate or negotiate long distance.

While you can read more about this field in the article linked above, the important thing for you to think about as an expertpreneur is the degree to which you might wish to build these procedures into your commercial agreements so that your joint venturers and, perhaps, even your customers, would agree to use these time saving and sometimes money saving techniques in the event of any disagreements that lead to litigation.


Technorati Tags: ODR, Online Dispute Resolution, litigation, arbitration