Create, Consult, Control
News & commentary on intellectual property issues.
Aug222011 | Steve O'Donnell
Who doesn’t like free porn?
Who doesn’t like free porn? No one, that’s who. Who likes paying an absurd amount to settle a lawsuit alleging that they committed copyright infringement by downloading porn over BitTorrent? No one, that’s who.
Over the past year or so there have been a number of mass copyright infringements filed across the country against “John Does” for downloading movies. Over 200,000 “Does” have been targeted so far, and that number is almost certainly going to increase. I don’t have a breakdown of how many have been targeted in porn, versus non-porn cases, but based on the calls I get, the porn cases are the busiest now.
Although I’m not sure exactly how people are being targeted since no one has taken discovery yet, I have a guess pieced together from various sources: basically, someone jumps into a torrent and takes screen shots of the IP addresses of everyone in that torrent; the copyright owner takes a look at how many people are sharing their property and gets in contact with a lawyer to see what can be done. At least that’s one possible relationship, I’ve heard of some lawyers receiving offers to sell lists of timestamped IP addresses and some lawyers are actively soliciting clients for these cases. In any situation, the exact relationship might be different, but the basic idea is the same.
Of those 200,000 people, I’m sure some of them were targeted because someone jacked their wireless connection and used it to download. Many people don’t secure their connection, either out of some sense to community, because they just don’t know how, or just don’t want to go through the bother. Other people are using a WEP secured connection and don’t realize that WEP can be cracked in a couple minutes.
Since the best way of avoiding the expense and bother of getting caught up in one of these matters is to shut it down before it happens, there are a few things you can do to make sure unauthorized people aren’t using your connection to download movies, or even worse like what happened to this guy or this one.
First, change your wireless security to WPA2. WEP can be broken into in a few minutes if the person has the right equipment and motivation (we’ll assume they do).
Pick a good password. There are different suggestions about what makes good passwords, and to some extent the password strength needed depends on what you’re protecting. Generally, avoid single words, “password” and “1234” and you’ve probably done enough to keep someone from breaking into your wifi. Adding a number and a capital letter or two is even better. At that point, it’s probably easier for them to pick someone else than to bother trying to crack your password.
You can also hide your SSID so your neighbor won’t even see your network name when they are looking for a connection. Of course, it’s easy to find hidden networks, but it’s an extra step that many won’t bother taking.
Turn on MAC address filtering. This way, each new piece of hardware that connects has to be approved by you. This is a little more annoying in use, since you can’t just type in a password into a new device you want on your network, but it’s very secure.
Doing those things will keep out most unwanted guests, but what if the problem is inside your house? What if it’s your kid that discovered he can get “free” music/games/movies and doesn’t realize that you might be hit with a nasty and expensive lawsuit?
One thing you can do is uninstall any torrent programs on your computers and revoke administrative privileges so they can’t be installed again.
You can also install OpenDNS on your network, which will let you (mostly) shut off access to sites where the torrent files can be downloaded. OpenDNS won’t shut of torrent traffic though, so it’s still important to make sure that your computers don’t have a torrent downloading program. OpenDNS will also let you take a look at what network activity has been going on, so you could detect traffic that you didn’t authorize.
The trouble with the “the downloader is in my house” solutions is that there is always a way around if someone is motivated enough. The best way to keep your son or daughter from downloading and exposing you to liability is probably to talk to them and explain the potential problems.
I’m no computer security professional, so if anyone has other suggestions on how to prevent such unauthorized uses, I’d be happy to hear them.
Aug082011 | Steve O'Donnell
My ex-employee is using my customer list and materials!
What, if anything, can you do if an employee takes more than some pens when he leaves and starts calling your customers and using your advertising materials?
Ideally, you’ve thought this through and already have something in your employment contract that addresses these things.
What? You don’t have trade secret language in your contract? You don’t have any intellectual property language in your contract? You don’t have any contract? That’s really not that surprising, such things are usually not considered until a business gets burned. It’s like the saying goes: fool me once, shame on you; fool me twice, shame on me.
First, call your lawyer. If an ex-employee is using your client list, you have to move quickly. If it’s a trade secret (generally something of economic value that isn’t known by the public and that you’ve taken some actions to keep secret) you might be able to get an injunction.
If an ex-employee has taken your advertising materials and designs, and is using them for a competing business, you might have a couple options. It is possible that doing something like this is punishable as an unfair business practice, at least it sounds unfair. A clearer claim might be made for copyright infringement, but copyright is one of the more annoying areas of law to start kicking around in, especially if there isn’t clear ownership of the copyrights and a copyright registration in place. Chances are, if you’ve come across this post, you don’t have either.
What every employer should do if have an employment agreement in place when someone is hired that addresses these things before they happen. Ideally, contracts are also put in place between the employer and whoever designs their marketing materials, so that, if needed, a copyright claim can be more easily made against someone that misappropriates the advertising materials. Many of these issues are state-specific, so you should talk to someone licensed in whatever state you’re in.
This, like pretty much everything, is a “ounce of prevention v. pound of cure” issue. It might not be attractive to hire someone to draft these documents if your business’ greatest goal is making payroll next month, but taking care of these fairly simple things can help you continue to make payroll long after someone leaves.
Aug012011 | Steve O'Donnell
Can I get sued for this?
Rarely do I go longer than a few days without someone asking me if they can do something without getting sued. I’d bet every lawyer gets that question, or some version of it, a lot. The questions can rarely be definitely answered. If there was an easy answer, then the person asking probably knows the answer. For example the question “is it OK if I kill my spouse?” doesn’t really need to be asked. Unfortunately (for clients), or fortunately (for lawyers), the questions usually aren’t as easy.
For example, here are four questions I’ve been asked over the last couple weeks:
•Can I sell my drawings of famous articles/landmarks and not get sued? (maybe)
•Can I get in trouble for publishing my erotica that features popular TV/movie characters? (maybe)
•Can I be sued for reusing a picture I found on a website? (maybe)
•Can I get in trouble for counterfeiting arcade tokens (that one was answered with a long, uncomfortable stare)
First of all, you can be sued for just about anything. A neighbor could sue you for letting your grass get too long (if any of my neighbors are reading this: I swear I’ll cut it when the heat breaks). You could be sued if your toddler said something mean to another toddler at the park. Someone could sue you because they think you’re conspiring with Elvis, Oprah, President Obama, and a group of sewer-dwelling reptile-people to steal their thoughts. Granted, the chances of any of these cases being filed is narrow, and the chances of them getting anywhere in a court is even smaller, but they could happen. Asking whether you can be sued for something isn’t the right question to ask. Better questions are what is the chance of being sued, and what are likely damages. An even better question is “what can I do to reduce that chance or eliminate it?”
Often when I get these kinds of questions I’ll need to get more information before I can even suggest a plan. For example, to even start thinking about the question about selling drawings of famous articles/landmarks I needed to know what was being drawn. It’s one thing if you’re drawing a cityscape, it’s quite another if you’re drawing a Coke can or Batman. After that, what context is the famous article/landmark being used? Fan art of Batman is probably not going to rile DC’s feathers nearly as much as a drawing of Batman doing something extremely non-heroic and exceedingly out of character (let your mind wander for a moment, I’m sure you’ll think of something). Another big factor is the money involved. It’s one thing if you‘re planning on selling the art on a street corner or mall kiosk, it’s another if these drawings are being incorporated in a large, national publication that can generate thousands in revenue. Simply put, it’s not generally worth the expense to bring a lawsuit against someone if that suit can’t possibly pay off.
Depending on the exact facts behind a question, the likelihood of being dragged to court might be very low, or dangerously high.
No matter where that likelihood ends up, we can usually lower it a bit more. Ideally, we can get a license from any rights holder, but even without that, there are things that can be done, and precautions that can be taken that can reduce the chance of being taken to court.
Once you know the risk you‘re taking, which is something like: (chance of being sued * estimated legal fees and costs * estimated damages * chance of losing) you can decide if you want to change your course of action or if you want to go forward. Without knowing these things you’re going in blind.
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