Posts Tagged ‘Law’

The 2006 amendments to the Federal Rules of Civil Procedure focused on the discovery of “electronically stored information” (“ESI”) and emphasized early communication and cooperation in an effort to streamline information exchange and avoid costly unproductive disputes. Since that time, a growing number of problems have emerged—namely, that the courts are being bogged down with extensive and unproductive discovery disputes, rising costs, and escalating motion practice without ever being able to evaluate the merits of a case. This begs the question, is it possible for a litigant to make it through electronic discovery with his pocket book intact?

The answer to this question may be “yes” if the parties and their respective counsel cooperate. In July 2008, The Sedona Conference®, an organization of leading jurists, lawyers, experts, academics, and others, published “The Sedona Conference® Cooperation Proclamation.” The purpose of the Proclamation was to launch a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a “just, speedy, and inexpensive determination of every action.”  Specifically, in drafting the Proclamation, The Sedona Conference® sought to promote open and forthright information sharing, dialogue, training, and the development of practical tools to facilitate cooperative, collaborative, and transparent discovery. 

The Sedona Conference® Cooperation Proclamation recognized that lawyers have both a duty to be zealous advocates for their clients as well as conduct discovery in a diligent and candid manner. The Proclamation also noted that cooperation does not conflict with the advancement of a client’s interests— it actually promotes them.

The Proclamation suggests the following methods for accomplishing this cooperation:

1. Utilizing internal ESI discovery “point persons” to assist counsel in preparing requests and responses;
2. Exchanging information on relevant data sources, including those not being searched, or scheduling early disclosures on the topic of ESI;
3. Jointly developing automated search and retrieval methodologies to cull relevant information;
4. Promoting early identification of forms of production; and
5. Developing case-long discovery budgets based on proportionality principles.

Through January 2009, The Sedona Conference® Cooperation Proclamation has been endorsed by at least 44 federal judges, including three judges from the District Court of the Northern District of Illinois. 

The legal community is beginning to recognize the pitfalls associated with conducting electronic discovery under the 2006 amendments to the Federal Rules of Civil Procedure and devise solutions to those pitfalls which are geared towards applying the rules in a practical and cost effective manner. If you would like further information on The Sedona Conference® Cooperation Proclamation or recent publications on this topic, or require assistance in navigating through a dispute which may involve electronic discovery, please contact us.  

Facebook recently announced that users can create a personalized URL to their facebook pages. [For example, facebook.com/ErinEWright]

This option goes into effect on Saturday June 13, 2009 at 12:01 a.m. EST.

Facebook has also created an online form for TM owners to prevent their trademarks from being registered as usernames by other Facebook users.

Trademark owners can reserve their trademarks on Facebook by completing this form.

If you’re interested, the Facebook Blog provides more information and commentary. Facebook FAQ is also helpful.

Are you in a creative industry where you thrive on generating ideas? Are you a freelance writer, software designer, architect, or professional dancer? Whether you are or not, protecting an idea may be important to you at some point, now or in the future.

A copyright allows the creator of an original work to control the copying, distribution, publication, and adaption of the original work for a period of time. When we think of books, it is easy to see the value that an author receives from holding a copyright because the author can prevent others from plagiarizing her ideas and can obtain royalties from its distribution. So who can copyright what, and how?

Copyright Eligibility

Your idea must be memorialized in some tangible place and cannot merely exist as an idea in your mind. In other words, write your ideas down. It makes no difference whether you jot them down in a notebook, type them on your laptop, or dictate them into a recorder, etc. The point is that the idea is fixed in a tangible medium.

The idea also must be independently created and must have some minimal level of creativity. This minimal level isn’t too stringent, and the focus is on the way the idea is developed. Although this is a rather low threshold, if the idea is typical, basic or routine, it doesn’t qualify. For example, creating a local telephone book that is alphabetized by last name is a basic idea and the telephone book is not eligible for copyright.

What To Copyright

Many original works are eligible for copyright, but if your work does not fall into one of the defined categories, then you have to seek another method to protect your intangible asset. Those original works entitled to copyright protection include:

• Literary works (books)
• Musical works
• Dramatic works (plays, screen plays)
• Choreography (e.g. ballet)
• Pictures, Graphics and Sculptures
• Movies and Audiovisual works
• Architectural works

How To Copyright

The hard part for some is generating an original work, but the easier part is obtaining a copyright. A lawyer can register your copyright for you and help you enforce your intellectual property right. If you run into a situation where your copyright is being infringed by someone who is copying your idea, or portions of your idea, your registration will accord you significant protection. For instance, registering your copyright provides the potential for even greater statutory money damages against a copyright infringer. In addition, in certain circumstances a court may award you, the copyright holder, extra damages to cover your court costs and your attorney’s fees.

Why Copyright Is Important

Protecting an intangible asset is as important as protecting our tangible assets. Oftentimes, employees add value to their employers by generating ideas. Especially in today’s market, job candidates may pitch ideas in interviews with the hopes of landing a position.

The trouble comes when someone else (a person, potential employer, etc), takes your idea and capitalizes on it. For example, your idea was the foundation and was modified slightly by a potential employer. The copyright question becomes was the original idea copyrighted, and if so, was the copyright infringed? In other words, how much of the idea was taken and does it rise to the level of infringement?

These are complicated questions and there is merit in getting sound advice from an attorney. But the point of copyright is that ideas are valuable and in many cases, worth lots of money. When others take your idea and build upon it, that borrowing denies you, the copyright holder, the fruits of your inventiveness.

©2009 Erin Wright

The virtual property an avatar acquires in a virtual world can have meaning and significance in the real world. After my last post, I wondered if people were thinking: “Who cares?” To answer this question, my goal is to show how virtual world activity can touch everyones’ lives, even if you do not have an avatar.

Back in the 1990s, the Internet started out as a one-dimensional interface where people would look up information. This version was analogous to a massive encyclopedia. Web 2.0 came along and brought us Facebook, LinkedIn, online chatting, etc. Web 2.0 allows us to interact with one another, instead of the unilateral search-and-find of the old days. This back story is important because it is likely to become extinct in the future. The Internet’s next gen interface will be 3-D. The future of the Internet will be structured so that we will move around the Internet much like we do our real-lives, instead of jumping from website to website like we do now. In the near future, it is likely that if you wanted to look up information about the Battle of Gettysburg online, your avatar would go to the virtual library and poke around in the virtual books, or you could visit Gettysburg, Pennsylvania, instead of googling Gettysburg and looking at pictures.

The future of the Internet is this 3-D model, so how does this affect you (and the company you work for)? First, it’s likely that the company you work for, the university you attended, or your next vacation spot, already exists in the virtual world. It is more likely than not that something linked to you exists in the virtual world. Second, whether it happens now or later, at some point, you’ll be connected to the virtual world directly, either by creating an avatar or knowing someone who has. Whether you or your employer are involved with virtual worlds now or later, here are some real world legal implications.

• Intellectual Property

You may decide to expand your small business to the virtual world to increase your visibility, and you may post your registered trademarks. Or, the company you work for may have trademarked goods or services that exist in the virtual world. Unfortunately, trademark infringement is rampant in the virtual world, largely because trademark owners are not aware of this activity. For instance, most virtual watches purchased in Second Life are Rolex, but none are trademarked. Counterfeit goods and services in the virtual world may lead to brand tarnishment. In addition, the longer the trademark infringement goes on, the more support builds for trademark abandonment which leaves the trademark owner with no recourse whatsoever.

• Taxes

Virtual property transactions that result in tangible income accumulation raise tax questions. Broadly speaking, virtual world transactions are only taxable when they are converted into “real” money. Yet this assertion grows far more complicated when we consider the magnitude of virtual world economies. The IRS has said that as early as 2001, the GNP within virtual worlds was equivalent to about $135M. That GNP per user was roughly equal to the per capita GNP of Russia. Some economists estimate that this translates to avatars earning roughly $3.42 an hour, which is more than some earn in many developing countries. You, your employer, or your company could be taxed based on your virtual earnings.

• Employment Law Considerations

Whether you or your employer hires an avatar in the virtual world, or whether your employer sets guidelines for what its employees can do in the virtual world, there may be employment law considerations. When hiring an avatar in the virtual world, you really can’t ascertain who you’re hiring. Employers need to be thinking about whether they are complying with child labor laws, and the reporting of income guidelines. In the future, the issue may become whether minimum wage regulations apply.  To the extent that employers regulate what employees’ avatars may do in the virtual world,  employers should specify business appropriate avatar behavior and appearance.

• Privacy Considerations

Just like your workplace emails are not private, your business meetings/conversations/transactions on Second life aren’t private. This is important because say your employer sets up a virtual world business meeting about existing products, the information being discussed is being stored. The question your employer needs to determine is who has access to that stored information? An employer’s trade secrets could potentially be divulged. Equally as damning, an avatar’s personal information including items purchased, social interactions, and the net worth of the avatar, could be divulged. In the aggregate, statistics on avatar behavior could be as valuable as our searching behavior on Google is to Google’s advertisers.

The take-away is this: virtual worlds are expanding and eventually will impact all of us, either directly or indirectly. Whether you, your employer, or your company are engaged in the virtual world, it is important to understand how avatars operate within the interface, and the consequences from doing so.

Second Life, World of Warcraft, and the Sims Online are some of the many popular virtual worlds that exist online. Known as Massively Multiplayer Online Games (MMOGs), these virtual worlds boast larger populations than many countries on this planet. Strikingly, these games are not only popular, but profitable.  Anshe Chung, for example, was the first virtual millionaire and she earned two million dollars in just thirty months as a virtual real estate broker.

In Second Life, for instance, avatars amass wealth by engaging in real estate transactions, and buying and selling goods and services, among others things. Unique to the virtual world, players will pony up real dollars to purchase items. And it is virtual property that is now becoming an issue in real-life courts, as players seek to enforce their virtual property rights.

Last year, for example, a Pennsylvania lawyer sued a San Francisco-based company over a property deal that went bad. The lawyer sued in court for breach of contract and unfair trade practices after he purchased an expensive piece of Second Life real estate, only to find his account terminated shortly thereafter.

Virtual goods are so valuable that the (real) world saw its first virtual sweatshop in 2002. A Southern California company called Black Snow Interactive realized it would be profitable to acquire more virtual property in the MMOGs Ultima Online and Dark Age of Camelot, and to sell the virtual property on eBay for real money. Black Snow’s business model entailed renting cheap office space in Tijijuana, Mexico, and hiring unskilled Mexican workers to play the games and acquire skills and gold. When the virtual sweatshop came to light, Black Snow filed suit in federal court with the goal of determining the extent of a gamers’ rights to trade goods outside of the game. Unfortunately, this suit was never resolved.

One man in China decided to bypass the courts and take his virtual property dispute into his own hands. A Shanghai gamer was sentenced to life in prison when he stabbed a competitor to death after the competitor sold his virtual sword for real money.

Enforcing virtual property rights in real world courts is a new concept and these examples highlight the types of disputes that may arise in the future. Breach of contract, unfair trade practices, and trademark and copyright infringement may be violations in the virtual world that are litigated and decided in the real world. For now, it appears that virtual property rights constitute real property rights, to the extent that those virtual items can be bought and sold outside of the virtual world, that is, in the real world.

Marck Cuban recently asked whether his tweets were protected by copyright. This is an interesting question that I’m going to think over.  In the meantime, I came across some interesting Twitter tools that you might find useful:

• Chirpcity shows the latest tweets from and about your city.
• TwitterLocal also filters by location.
• Filttr decides which posts are important to you, and filters your Twitter stream.
• HootSuite helps you manage multiple Twitter profiles.
• If you follow Mr. Tweet on Twitter, he will suggest people you should follow and recommend you to others.
• OutTwit allows you to use Outlook to update your Twitter status and follow others.
• This mashup, ToAnswer, helps you use Twitter to get your questions answered.
• Tweetag allows you to browse and search the most popular topics discussed within the last day.
• You can fileshare on TweetCube.
• If you want to write your Tweets in advance and schedule their release, use TweetLater.
• Graph your tweeting with TweetStats.
• Twellow is a Twitter user directory.
• You can add a bio, links, logo and more to your Twitter profile with TwitBacks.
• TwitBlockerallows you to block posts by someone you want to follow without unfollowing them.
• Share photos on Twitter with TwitPic.
• Measure the reach and authority of a Twitter use with Twitter Grader.
• Twitzu blasts out your meetings or seminar.
• Create polls with Twtpoll.

Whether your 140 characters are copyrightable or not, at least you can get the most from your tweets with these tools.

Facebook was in the news a few weeks ago when it changed its Terms of Use so that it could own and use all of the information you posted, even after you deleted your account. Within days, public outcry was so severe that Mark Zuckerberg reverted to the old Terms of Use.

I check out facebook daily and I practice privacy law, so this story peaked my interested.  I decided to read the Terms of Use to see what they were all about. Surprisingly, they’re easy to read. Privacy law has twin goals: shield the company from liability and make privacy protections available and understandable to the everyday people it protects. Facebook’s Term of Use do both.

If you take anything away from this post, take this: login to facebook and change your privacy settings — do not rely on the default settings. We can talk about workplace surveillance or protecting your online identity another time. I encourage you to change the privacy settings not because I’m passing judgment on whether they’re good or bad.  Rather, I encourage you to use the settings to ensure that facebook is customized to your particular lifestyle and interests. One size fits all is never a workable approach, and in this case, the terms are stacked in facebook’s favor.

Once you’ve changed your privacy settings to control who can see your personal content, the overarching question becomes: who owns the content? That’s where the Terms of Use come in. In the battle for ownership between you and facebook, here’s what the Terms of Use say:

• Facebook owns all of the site content (pictures, words, videos, information, music, etc).
  • You get a limited license to access and use the site. You can print or download the portions you have access to.
  • You can’t violate copyright or trademark laws and you can’t use facebook to datamine.
• Facebook gets to use anything you post forever and can copy it, display it, or use excerpts of it.
  • You can trump facebook’s irrevocable license to use your posts by taking the content down.
  • Facebook, however, can retain an archived copy of your posts.
  • You retain ownership over your intellectual property.

There are various other components regarding applications and mobile service; I’ve tried to highlight the most important parts.  Should you and facebook get into a dispute regarding your content or your privacy rights, your matter will be decided in arbitration and governed by Delaware law, regardless of where you live. That means no day in court and no jury.

So what does this all mean?  Facebook crafted its Terms of Use and Privacy Policy to comply with the law and to protect itself.  Generally speaking, the default privacy settings expose all of your information to everyone, and  facebook owns everything on its site.  In plain terms, facebook wins unless you do something about it. You can change this one-sided infrastructure by limiting who can see what, and by taking things down that may be valuable to you (like your business logo/trademark, or your copyrightable videos or ideas).

If facebook were a country, based on population, it would be the sixth largest in the world.  As between you and facebook, facebook generally has the upper hand but you can trump it by customizing your settings, protecting the content you post, and being aware of the rules of the game.

By now it’s old news that Blago was arrested and impeached based on those infamous tapes where his voice could be heard bargaining away Obama’s vacant Senate seat. This scenario poses an interesting question as to wiretapping in Illinois: who can do it, and how are they limited?

First we should probably start with the why: why do wiretaps occur? This is a complex question and I’m sure attenuated or nefarious circumstances come to mind. In general, wiretaps often occur in the criminal context when the police attempt to make an arrest. In the civil context, wiretapping could occur during a divorce, for instance, if one spouse sought to prove the other is cheating. I’ll allow you to create your own circumstance.

Once a person or entity decides to wiretap, the question becomes how? The Illinois wiretapping law requires that everyone on the telephone consent to being recorded; otherwise it’s illegal. Said another way, you can’t eavesdrop without everyone’s consent.

If you’re confused about whether Blago consented to being wiretapped, the answer is of course he didn’t. In Blago’s case, by the time the police were ready to wiretap, the police were interested in busting any conspirators. The police suspected Blago had already violated the law, and wanted to determine who else was involved.

So is wiretapping in Blago’s case legit or bunk under Illinois law? In order for wiretapping to be legal, judges limit the scope of the wiretap. In Blago’s case, the wiretap was limited to a specific period in time. Law enforcement was only able to listen to phone calls from certain designated numbers, and even when those numbers phoned, if the call was totally unrelated to the purpose of the wiretap, law enforcement was required to discontinue monitoring after 30 seconds. So for instance, if Blago’s wife called about dinner plans, law enforcement couldn’t listen.

Eventually all wiretaps must expire because to permit a wiretap to continue forever would be unconstitutional. In Blago’s case, the wiretap ended when U.S. Attorney Pat Fitzgerald broke the story and filed a complaint.

Wiretapping under federal law will be left for another day. For now, wiretapping Blago under Illinois law appears legit.

Involved in a start-up that’s trying to craft an image? What about a small business that sells products online? Do you want to get the word out about your service to increase the volume of sales?

These are typical situations where people ask whether to trademark their business identity.

Even though we see trademarks every day, few people can actually explain what a trademark is. A trademark identifies the source of a product and distinguishes it from other products; a service mark does the same thing for a service. Just as a name identifies and distinguishes a person, a trademark identifies and distinguishes a business’s good, and a servicemark does the same for a business’s service.

When developing a trademark, think creatively! A trademark can be a word, logo, slogan, sound, shape, or color, and is usually a combination of these options. Think about the trademarks we often see: the word Apple®, the slogan Just Do It®, the shape of a Coca-Cola® bottle, or the sound of the NBC chimes.

Whether a business name can function as a trademark depends upon the circumstances in which it’s used. A trade name can’t be registered as a trademark unless it also functions as a trademark; that is, the trade name must identify the source of the products and distinguish it from other products. So for instance, Apple Computer, Inc. owns Apple® computers; Apple Computers, Inc. isn’t the trademark, but rather it’s Apple® that distinguishes one computer from another.

The business incentive and purpose to trademark is to develop a quality and brand association, and hopefully, your mark will one day take on a life of its own. Consider this: we often ask for a Kleenex® when what we really want is a tissue. To distinguish the trademark, we should really ask for a Kleenex® tissue, because after all, Kleenex® describes the source of the tissues. But of course no one does this because that’s just not how we speak. However, you can see that Kimberly-Clark Corporation has done a great job of developing a strong trademark in Kleenex®.

As you can see from the marks mentioned above, some trademarks have a ® while others have a ^TM. The ® signifies that the trademark has been registered with a governmental agency, namely the United States Patent & Trademark Office (“PTO”). While the ^TM signifies an unregistered trademark. Even though the trademark may not be registered, it’s important for a mark to use the ^TM because in order to register with the PTO, the registrant must show that the mark has been used publicly. The ^TM puts the public on notice that the mark is being used and can help support a PTO application later on.

So what does this all mean for a small business? What incentive is there to register a trademark or servicemark?

·         Trademarks help consumers identify products – trademarks denote a certain quality and a particular brand.

·          When an infringing company uses a trademark that belongs to the rightful trademark owner, consumers may be confused and this confusion may cost the trademark owner some of its rightful sales. After all, the purpose of establishing a strong trademark is to associate a particular type of quality with the mark.

·         Trademarks are a corporate asset that can last forever if properly used, registered, and enforced.

If you’re thinking about trademarking your new business name or your online logo, it can be lucrative investment. First, think about the identity you want to project. It’s worthwhile to think long and hard about your future image because trademarks can last forever. Second, you should talk to an attorney. Protecting your (future) intellectual property is a valuable asset, and it’s important to do it right. It is far cheaper to do it right once than to have to apply more than once, or to defend against a trademark infringement suit.

Call is Obamarama, Obama mania, or just plain change, our Commander-in-Chief is part President, part rock star. President Obama’s celebrity is apparent; you can buy shirts, pins, yard signs, coffee mugs, key chains, ties, and even buy Ojamas.

These goods are appealing because they appropriate Obama’s likeness. Yet, Shepard Fairey asked a federal judge to declare that he is protected from the AP’s copyright infringement claims for appropriating Obama’s likeness in his very famous “Hope” poster when he preemptively sued the AP.

In 2006, Mannie Garcia was working for the AP when he took a picture of Obama gazing into the distance, his chin tilted upward and to his left.

Fairey used the AP photo to create this poster, which became an overnight sensation. This instant stardom instigated the AP to claim that Fairey infringed its copyright photo, and the AP wants proper credit and, of course, compensation.

Fairey’s lawyers admit that he used the AP photo to create the poster, but they are unwilling to admit that Fairey did anything wrong.  The AP’s copyright protects the photo from being copied, but under the law, one of the biggest exceptions to copyright protection is a “fair use” of the protected work.  Fairey argues that even though the AP picture is protected by copyright, his poster conveys an entirely different and unique message, and is so transformative that it is a fair use of the AP’s copyrighted work.

Whether this case settles between the parties or is ruled upon by a judge is yet to be seen.  However, it demonstrates the inherent tension between the law’s protection of creative original works and its desire to encourage creativity.