Create, Consult, Control
News & commentary on intellectual property issues.
Oct262011 | Steve O'Donnell
XXX Domains. Should you care?
XXX top level domains are coming any minute now. Should you worry that your personal or business .com is going to be registered as a .xxx and someone is going to divert your visitors? Will your mom try to visit your personal blog and wind up watching weird porn, the kind you used to have to import directly from ex-Soviet bloc countries?
ICANN, the body that oversees our domain system has opened up registration of .xxx sites. I’m not sure if the impetus for that was so that it was even easier to find pornography on the internet, or if it was that this would make it easier for individuals (or governments) to block pornography. I don’t think it matters. I also don’t think anyone is particularly thrilled at the prospect of xxx domains. I understand the adult industry doesn’t like it because the new domains are more expensive that the usual .com and there is the concern that they’ll be rounded up and forced into the .xxx pigeonhole category.
One thing that has some people concerned is the possibility that pornographers are going to register known trademarks with a .xxx domain and divert internet traffic. I personally don’t see the problem. Even .net domains are second class internet citizens and other top level domains (TLDs) out there have been largely ignored by everyone. Sure, a few people registered different TLDs, for special effects, such as Delicio.us, or for .TV sites, but for the most part, they just haven’t caught on. Most internet marketing people will still tell you to rebrand if you can’t get the .com TLD.
Let’s say, just for fun, that you own pizzahut.com. What will happen if someone buys pizzahut.xxx and posts foot fetish videos? Probably nothing really, someone searching for pizza isn’t going to pull a porn site from Google or Bing. The content of the site is still going to drive search results, not just the name. Is it possible that someone could accidentally type in pizzahut.xxx instead of pizzahut.com? Sure, I guess it’s possible, that’s a pretty weird typo though. That person is probably just as likely to accidentally type in papajohns.com.
Also, registering pizzahut.xxx is a pretty obvious trademark problem, and if someone did try to do that, it could be recaptured by Pizza Hut without much bother.
Still I guess I can see why some people might want to shut down the possibility of someone registering the .xxx version of their trademarked site, so there is a way you can do that now. For the next few days you can file a reservation request with the ICM registry. If you’re interested, take a look at http://www.icmregistry.com/ (Sunrise B option). You’ll need a trademark to do this. You can also contact your favorite registrar. I’m sure any one will be happy to have your business. If you miss the time frame, you’ll likely be able to still register it later if you want.
Personally, I’m not worried about it, and I actually have some reason to be concerned.
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.
Jan042011 | Steve O'Donnell
Safely choosing images for your website
Over the past year I’ve had a few clients come to me with nasty letters from image licensing sites demanding $1000+ for copyright infringement. In these cases, a few simple tips could have prevented them from having any trouble.
1) Don’t just grab images you like from other blogs/websites. You don’t know where those images came from: they may be licensed, they may be original works. If you really, really want to use the image, email the site for permission or information on licensing.
2) If it looks professionally done, it probably is. Many people make money from works they post online and don’t like it if you just take them.
3) Be careful. It’s one thing to download examples from a stock photo site to use to create a mock-up page, it’s another to make that page live without being sure that you have a license to use those images.
4) Don’t assume you have “fair use” rights. Fair use is a very fact intensive defense to copyright infringement. You may think you can do something because of fair use, but, you’re probably wrong. Sorry, I didn’t write the law. Even if you do have a bullet-proof fair use defense. . . it’s a defense, it doesn’t prevent you from being sued or from getting a DMCA takedown notice. It’s something you argue in court, after paying your legal team some hefty fees
5) Wide use doesn’t mean it’s public domain. Sometimes wide use means that the image is just really popular, and brings in license fees.
So, how does one find images that they can use without running into problems?
1) License them. Look for images from Getty Images or iStockphoto or any of a number of other image licensing sites, pay their fees, and comply with their licenses.
2) Creative Commons. Search for images and read/comply with the license. These aren’t totally free, they might not cost money, but they might limit what you’re allowed to do or require a link back or attribution. When I’ve used CC images I’ve sent a copy of the page using the image to the creator and thanked them for their image. I’ve always received a nice thank you from the creator.
3) Use free images. Lots of site republish free images. Pull out your google-fu and search for “public domain,” “free graphics,” or whatever search terms suit your fancy.
One annoying point: even if you use a “free image” or a Creatively Commons licensed image. . . or even a purchased image, you can never be totally sure that the image is clear. There is nothing to stop someone from downloading an graphic and reposting it under a Creative Commons license or otherwise granting a dubious license. If you really, really, positively need an image you are stuck with either creating it yourself or commissioning the work (with the appropriate transfer(s) in place). Otherwise you’re depending on others being truthful and granting rights they have the ability to grant. Of course, I’ve never heard of a case where someone has offered a graphic for license that they don’t have the rights to, but that doesn’t mean that it couldn’t happen. The best course of action is to keep a paper trail for all images you use so that if you receive a nasty letter you can point to your records to explain why you’re not a proper defendant.
If you receive a threatening letter concerning an image you’ve used, you should contact an attorney that is familiar with copyright law to discuss your issue.
That picture. . . well, I had some credits with iStockphoto that were about to expire so I searched for “patent” and after looking at a bunch of lightbulbs found a pair of patent leather boots. It seemed almost relevant.
Nov042010 | Steve O'Donnell
Your videos, YouTube, and Web clip shows
In it’s never ending quest to find content that is cheap to produce, some networks have been finding some of the strangest and funniest clips on YouTube, Break.com, and similar websites and building shows such as Web Soup (G4) and Tosh 2.0 (Comedy Central) around them. Do the creators of the clips have an action for copyright infringement?
This is one of those questions that doesn’t have a great, easy answer. There are a few prongs that need to be considered before suggesting a course of action.
The first thing to do is look at the agreement that YouTube (or another upload place) requires users to accept.
YouTube’s terms, at Paragraph 6-C gives them the right to sublicense any videos to anyone they want. So if YouTube has licensed a particular video to Web Soup, then the creator of the video might not be able to do anything about the broadcast.
If, for some reason, that isn’t a problem (maybe the infringer hasn’t licensed the video from YouTube, or maybe the video was posted as an imbedded .avi or QT video on an independent web site), then the creator would have to determine what damages would be available. That will mostly depend on whether or not the work was registered so that statutory damages would be available. Most people that aren’t producing commercial video (and even a lot that are) simply don’t register their copyrights. If that’s the case, all one could win in court would be actual damages and profits, and an injunction. For most works it might not be worth pursuing an action beyond an angry letter or two. . . speaking strictly about the financial possibilities. If it was registered so that statutory damages are available, which could run as high as $150,000 plus legal fees, then the case is much more attractive financially.
Then, we have to look at what defenses the other side has and estimate how good they are. The most likely defenses are some flavor of “fair use,” but laches (basically that the creator sat on his rights too long to bring an action), and even an implied license might be argued. The implied license is one I’d really like to see argued from a copyright nerd perspective. Basically, the argument would be that by putting something on the internet that the creator has impliedly licensed the video to the public to use as they wish. I don’t think it would work, but I’d like to read the briefs (or have the time to research them myself).
If you have a video that you really don’t want to see mocked on Tosh 2.0, the easiest thing to do is to not upload it. If you really have to share it online, make sure you read and understand whatever terms of use you’re agreeing to by posting it. In either instance, register the copyright as soon as you can to give yourself some leverage if you do have to go after someone for nicking it. Depending on the exact facts, there might be other ways of protecting your work. The best thing to do is probably meeting with a copyright attorney to plan things so that the risk of infringement is minimized.
Jun172009 | Steve O'Donnell
Patenting illusions II
Do you have an illusion that could be patented? If so, should you patent it?
Magic inventions probably fall into one of two categories, gaffs and methods. Both may be patentable. The first thing to consider is whether your new illusion is really new. A new Topit design might be patentable, but stringing together an old card force with an old billet trick, even though no one has ever thought to do it in that way before, is probably not patentable. That doesn't mean that a patent for a card force is necessarily impossible, but it may be difficult to convince the patent examiner of that. On the other hand, since much of magic is not widely known, it might be difficult for an examiner to find prior art that would kill an application. Keep in mind that hiding information from the patent office may result in a patent that is ultimately unenforceable and expose you to civil liability if you try to enforce it.
If you do get a patent on your trick, what do you do with it? There are a few ways of making money from a patent. One would be if it was such a great trick that people would pay to see you perform that one trick. I have a hard time imagining an act that is one trick long, although shady mentalists have been bilking money out of people with little more for centuries. Another way of making money would be to either license the patent or to sell it outright. Licensing is really similar to what is done already under the Magician's Code model. A person would buy a packet trick and get a license to perform it. Unlike the Magician's Code model though, someone that learns the secret without paying for it may be liable for patent infringement damages and the person that shares the secret could be liable for indirect infringement.
Discovering that someone is infringing a patent is a different issue. A patent covering a intricate gaff is going to be much easier than discovering that someone is infringing a patent covering a method of performing an illusion. The first case likely would involve one of a fairly short list of companies, while the second could be someone performing at a birthday party.
Other than the money that could directly be made from a patent, there might also be a secondary value to a patent on an illusion if it increases the inventor's visibility and reputation in the community. An instructional DVD, seminar, or performance poster will likely get more attention if it rightly declares that the inventor is such a creative innovator that the US has granted a patent to his illusion(s).
Whether or not it makes financial sense to invest in obtaining a patent for an illusion is something that needs to be determined on a case-by-case basis. In addition to getting a patentability opinion from a patent lawyer, the inventor might also want to discuss the plan with a business manager.
I would love to work on magic patents. If you think you have something novel, please let me know and I'll see what I can do for you.
If you are a member of the Magic Cafe [http://www.themagiccafe.com] these is a great list there of magic patents in Secret Sessions, search for “Magic Patents - a list.” You'll need 50 valid posts, I think, to access that forum. . . which if you've read this far probably isn't a problem.
May082009 | Steve O'Donnell
Choosing a trademark
A business' identity is likely its most important asset. It embodies all of the business' accumulated goodwill and assures purchasers that new products are of the same high quality as other products sold by the business. Unfortunately, if you don't plan accordingly, you might not be able to protect your brand, or worse yet, lose money over a bad decision.
A common life of a brand name begins when the business owner first thinks of it. Sometimes it's clever, often it is <ahem> less clever. The owner then starts using the name on everything, often marking it with a trademark symbol, next comes a business bank account and an accountant. The accountant, maybe working with a business lawyer, maybe not, files the appropriate paperwork with the department of state to register the business. Any required licensing is obtained and there is a grand opening. After the initial rush of things that most obviously have to be done, comes the consideration of other things, like brand identity, that often get put off until too late.
One situation you don't want to face with your business is finding out that someone already has a trademark on the name you're using and that the money you've spend on logo/web design, business cards, stationary, signage and advertising would have been better spent building a nice, warm fire. If that's not bad enough, if you're using a name that someone else has registered, you might find yourself on the receiving end of an infringement lawsuit. Neither is good for a new business' bottom line and can fairly easily be avoided for a fraction of what it will cost to clean up a mess.
When I'm working with entrepreneurs on their startup companies I recommend that they select creative trademarks, I prefer to see marks that have no relation to the products or services that are being protected. The rationale for that is simple, if the mark has no obvious connection to the product then the chances of someone else already using it is slim. I also like to see marks that are nonsense. That further increases the chance of the mark being unique and it also helps with the chance of getting a good domain name as well as a few variations on the domain. Also, the more abstract a trademark is (as opposed to it being more descriptive of the goods), the stronger the trademark will be.
One of the first thing I suggest to people is that they find out if the domain they would like is available. If it is, great, register it. If it isn't, then the question is if the business will be adequately served with some strained variant of the desired URL. If “[business name]” isn't available will “[business name][state]” or “[business name]'online'” be adequate? The answer to that depends, to some extent, on what the plans are for the business and how much internet marketing the business requires.
I prefer to get the domain name first because there are a number of businesses in the business of grabbing domains and reselling them to someone that will actually use them. For that reason, type the URL you want into your browser's URL bar and DON'T use a registrar's search to find if it is available. Also, since the internet is such a pervasive marketing tool, if the proposed mark hasn't found its way into a URL, the chances of it being successfully cleared are probably pretty good.
Once the URL is purchased then comes the actual trademark search. What steps your attorney needs to do differs on whether you need a state or federal trademark as well as on other considerations. If you have no plans of doing any business across state lines, then a state search might be all you need. If you plan to offer your wares across the country, then a federal registration is more useful. The internet has enabled just about everyone to operate in national and international commerce, so federal registrations are becoming more prevalent then the were a decade or two ago.
Once the trademark search is done, and your name is “cleared,” get a trademark application on file and start using it as soon as you can. If things go well, you'll have clear ownership of your trademark all across the country and your brand's reputation will be secure.
The best way to ensure that your brand is really yours is to engage a trademark attorney as soon in your business planning as feasible.
Of course, things don't always go according to plan, and sometime. . . too often, a business will invest in branding itself and start operations without considering that they might be stepping on someone else's toes. Also, there is a possibility that a search will miss something, after all it is impossible to prove a negative. Thankfully, that doesn't necessarily mean that all is lost, but ways of working through that will have to wait for a another post on another day.
Apr272009 | Steve O'Donnell
Copyright issues for freelance web designers
By it's nature, web design is well suited for freelance work. Unfortunately, many freelance developers use form contracts that may giving away more than necessary.
I have a small stack of web dev form contracts that I've collected over the past few years. I've been able to divide my sample contracts into two piles: Those I wouldn't sign as a developer and those I wouldn't sign as a client.
Those that I wouldn't sign as a developer have broad intellectual property grants. I have one that grants all intellectual property rights to any work done pursuant to the development agreement. Taken on it's face, that could mean that the client owns all the copyrights to the final design AND draft designs that were rejected. Additionally, the client could prevent the designer from showing that job as part of their portfolio. Another possibility is that the client could also sue the developer if the developer designs a similar logo for another client.
In the other stack are contracts where the designer retains complete control over the copyrights but grants the client a license to use them. Those contracts usually do not mention a grant to use the designs in other promotional materials and something about what happens if the client's business is sold. If it isn't clear that the client can transfer the license that might be a sticking point in negotiations to sell the business. If I was having someone design a logo for my website, I would expect to be able to use the same logo on business cards, brochures, ads, etc, and be able to transfer the design with the business.
The form contracts I've seen fail to address the very real possibility that the copyright will be infringed. The owner of the copyright is the one that can enforce it. If the developer owns the copyright, the client can't enforce it on his own against a third party. Similarly, if the developer transfers the copyright to the client, then the developer is unable to enforce the copyright against someone infringing it. The problem with this situation would occur if either the developer or the client didn't care about the infringement for whatever reason, but the other party to the contract does care and wants to enforce the copyright.
I have yet to see a freelancer's form contract that addresses the possibility of a design patent coming out of the job. What would happen if the developer granted a full copyright assignment to the client, but separately patented the design? I'm not sure of the answer, but it is something to think about.
What is a better solution? The answer to that depends on what both parties want out of the transaction. Usually, both parties want the ability to enforce the copyright and to fully be able to use it themselves. That is probably not possible in most cases.
Contracts are a formalization of an agreement reached after a negotiation. If both parties simply sign a form purchased from an office supply store, a form neither party really understands, both parties are doing themselves a disservice. The better approach is to engage a lawyer that's looking out for your interests in the transaction and can advise you on potential pitfalls that a person working the register at the office store can't do.
1
Recent Posts
- Does a twitter follow have a value? What does this mean for RT contests?
- XXX Domains. Should you care?
- Steve Jobs, 1955-2011
- Who doesn’t like free porn?
- My ex-employee is using my customer list and materials!
- Can I get sued for this?
- A painless trademark dispute
- DC vs Batmobile custom car seller
- The Days of Turkey Roll
- Steveodonnell.com, now with fewer penises
Comments
Post has no comments.