Facebook is the 800 pound gorilla of social media and it is doing everything in its power to stay the Big Man in Social Media (BMISM) (akin to the Big Man on Campus-BMOC). These actions include protecting its intellectual property through litigation.
Therefore, I find it rather hypocritical that Facebook is suing a company calling itself Teachbook.com and claiming that Teachbook.com is misappropriating the distinctive "BOOK" portion of Facebook's trademark. I believe that Facebook filed this lawsuit because it believes if it doesn't try to stop Teachbook.com from utilizing "BOOK" in its name other companies may try to utilize the term "BOOK" in their name and perform social networking. Facebook is not the first company to do social networking and it will not be the last company to do so. However, Facebook is doing social networking better than anyone else at this point.
Under Facebook's logic, Redbook magazine may want to look into suing Facebook for trademark infringement because Redbook has a stronger claim to the word "BOOK" than does Facebook. Redbook has been around for about 100 years longer than Facebook. In addition, it appears that Redbook has had an online presence longer than Facebook and has had an online community of users longer than Facebook. In addition, some of Redbook's users are the same type of users who may also utilize Facebook. Therefore, Redbook may have as strong of a claim against Facebook as Facebook does against Teachbook.com
It is extremely hypocritical for Facebook to claim that others are infringing on its own mark when Facebook freely allows and enables its users to infringe on the trademarks of others. Facebook knows or should know that its platform is rife with trademark infringement. Since football season is upon us, I will use the NFL as an example of how Facebook is enabling trademark infringement on its own web site. When you log into Facebook and type in "NFL" you will see a large number of users utilizing the NFL's marks without the NFL's permission. In turn, Facebook is monetizing this infringement by the advertising on its web site. Therefore, Facebook does not have any incentive to stop trademark infringement on its web site because it is profiting from the massive trademark infringement that its platform enables.
Under current trademark law, Facebook is not under any obligation to remove an infringing mark until it is notified by a rights holder of the alleged infringement. Facebook does have a mechanism in place for intellectual property rights holders to notify them of infringing material. However, Facebook should do more to protect trademark owners. Until Facebook adequately addresses trademark infringement on its own web site, it should not accuse others of trademark infringement. Remember the old saying, "people in glass houses should not throw stones?" It appears that Facebook doesn't believe in this saying because Facebook is acting like a trademark protection hypocrite.
To learn how to protect your trademarks on the Internet and on Social Media you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, August 28, 2010
Tuesday, August 17, 2010
Social Plug-In Contracts and Show Me The Money
In the last few months, Facebook has been asking companies to install the Facebook "Like" button on corporate web sites and on individual articles. Facebook's "Like" button is a social plug-in and social plug-ins are all the craze right now. A social plug-in enables other users or your "online friends" to see what types of information interest you. For example, to utilize a Facebook social plug-in that is installed on a website, a Facebook user must be logged into their Facebook account. Once a Facebook user is logged into their account, they can "Like" a particular website or article on a website that has installed Facebook's social plug-in.
If a user responds to a social plug-in it enables the company who provides the social plug-in to collect data about your interaction. For example, if The Wall Street Journal installs Facebook's "Like" Button on its articles it enables Facebook to collect valuable data about The Wall Street Journal's readers. The Wall Street Journal is able to see how many Facebook users "like" an article but this data is much more valuable to Facebook than The Wall Street Journal because it enables Facebook to capture in the aggregate a tremendous amount of data about its users.
Facebook's social plug-in strategy is brilliant. Facebook is asking companies to install their social plug-in for free and it appears companies are blindly doing so because Facebook is becoming the Pied Piper of Social Media. Once a company installs Facebook's "Like" Button, Facebook is then able to collect data about a company's website users via "Like" Button usage. Facebook monetizes the "Like" Button data in what may be the holy grail of advertising.
Social plug-ins are part of Facebook's monetization strategy since Facebook is utilizing the information obtained from the usage of social plug-ins to sell advertising. If a company incorporates Facebook's social plug-ins into their website, Facebook should pay a company for utilizing this valuable real estate. A social plug-in contract may mirror in some respects a cell phone tower leasing contract since a website is a piece of virtual real estate that may have as much or more value as some pieces of real property. Therefore, if Facebook asks your company to install its social plug-in Facebook needs to show your company the money.
To learn more about social plug-in contracts and monetizing your online content you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
If a user responds to a social plug-in it enables the company who provides the social plug-in to collect data about your interaction. For example, if The Wall Street Journal installs Facebook's "Like" Button on its articles it enables Facebook to collect valuable data about The Wall Street Journal's readers. The Wall Street Journal is able to see how many Facebook users "like" an article but this data is much more valuable to Facebook than The Wall Street Journal because it enables Facebook to capture in the aggregate a tremendous amount of data about its users.
Facebook's social plug-in strategy is brilliant. Facebook is asking companies to install their social plug-in for free and it appears companies are blindly doing so because Facebook is becoming the Pied Piper of Social Media. Once a company installs Facebook's "Like" Button, Facebook is then able to collect data about a company's website users via "Like" Button usage. Facebook monetizes the "Like" Button data in what may be the holy grail of advertising.
Social plug-ins are part of Facebook's monetization strategy since Facebook is utilizing the information obtained from the usage of social plug-ins to sell advertising. If a company incorporates Facebook's social plug-ins into their website, Facebook should pay a company for utilizing this valuable real estate. A social plug-in contract may mirror in some respects a cell phone tower leasing contract since a website is a piece of virtual real estate that may have as much or more value as some pieces of real property. Therefore, if Facebook asks your company to install its social plug-in Facebook needs to show your company the money.
To learn more about social plug-in contracts and monetizing your online content you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Sunday, August 8, 2010
Library of Congress Announces New DMCA Rules Exemptions
Since the Digital Millenium Copyright Act (DMCA) was passed in 1998, the Library of Congress ("LOC") has been tasked with the duty to review the law to determine if there should be any classes of works that may be exempted from the DMCA. On July 26, 2010, the Library of Congress announced new DMCA Section 1201 Rules for Exemptions Regarding Circumvention of Access-Control Technologies. Six classes of works were added.
This was the fourth time that the LOC reviewed the DMCA to update it. In this review, the LOC decided to allow for the bypassing of DVD Content Scramble System encryption, permitting users to jailbreak their iPhone, enabling e-books to be read out loud by their computers.
Digital Rights Management circumvention is now allowed for the following six classes of works:
(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.
(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:
(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.
In general, the exemptions appear to be pro-consumer or the "little guy." For example, the DVD circumvention exemption may assist documentary film makers and others who want to utilize small clips of copyrighted material for their work. The updated rules on jailbreaking mobile phones may enable consumers to utilize their purchases on the platforms they desire. The bottom line is that for at least the next three years these exemptions will be the law of the land.
To learn how copyright law may affect your business you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
This was the fourth time that the LOC reviewed the DMCA to update it. In this review, the LOC decided to allow for the bypassing of DVD Content Scramble System encryption, permitting users to jailbreak their iPhone, enabling e-books to be read out loud by their computers.
Digital Rights Management circumvention is now allowed for the following six classes of works:
(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies students;(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.(ii) Documentary filmmaking;
(iii) Noncommercial videos
(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.
(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:
(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.
(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.
In general, the exemptions appear to be pro-consumer or the "little guy." For example, the DVD circumvention exemption may assist documentary film makers and others who want to utilize small clips of copyrighted material for their work. The updated rules on jailbreaking mobile phones may enable consumers to utilize their purchases on the platforms they desire. The bottom line is that for at least the next three years these exemptions will be the law of the land.
To learn how copyright law may affect your business you may contact me at www.shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, August 2, 2010
The DMCA's Safe Harbor May Only Provide Commercial Entities a One Business Day Grace Period to Remove Infringing Content
The Digital Millennium Copyright Act (DMCA) does not state how long an Internet Service Provider (ISP)/Online Service Provider (OSP) has to respond to a claim of copyright infringement. According to the U.S. Copyright Office, "[u]pon receipt of a compliant notification of claimed infringement, a service provider must respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of the infringing activity, if the service provider seeks to receive the benefits of the limitations of liability contained in § 512(c)".
Merriam-Webster's online dictionary, defines expeditiously to mean "marked by or acting with prompt efficiency." According to Wikipedia's entry for the "Online Copyright Infringement Liability Limitation Act, "[f]or a commercially run on-line provider taking action within the hour to tell a customer that a takedown notice has been received and informing them that they must immediately remove the content and confirm removal, giving them six to twelve hours to comply; and otherwise informing them that the content will be taken down or their Internet connection terminated, may be considered reasonable."
There is no controlling case law that provides black letter law regarding the DMCA's definition of expeditiously. However, it was noted in Viacom Int'l Inc. v. YouTube, Inc., 07 Civ. 2103 (LLS) (S.D.N.Y. June 23, 2010) that when YouTube received from Viacom one mass take-down notice for 100,000 videos within one business day almost all of the infringing content was removed. Viacom's take-down notice was sent on February 2, 2007, which is more than three and half years ago. Since this mass take-down, advances in technology have made it easier to detect and remove infringing content.
Since YouTube, a commercial entity, had the resources to remove allegedly infringing content within one business day more than three and a half years ago, it is not onerous for commercial entities to abide by a one business day rule today. At first glance, it may sound onerous for a web site to be forced to remove allegedly infringing content within one business day. However, in a matter of hours a popular movie, book, or other original work may be downloaded hundreds of thousands of times. These downloads may cause serious irreparable financial harm to copyright holders.
According to the Senate Report about the DMCA (S. Rep. 105-190 at 44), "[b]ecause the factual circumstances and technical parameters may vary from case to case, it is not possible to identify a uniform time limit for expeditious action." In my opinion, this indicates that a non-profit may be held to a different less onerous standard than a commercial entity. Since S. Rep 105-190 was created, technology has drastically changed and I do not believe it was the intent of the Senate to provide ISPs/OSPs wide latitude to remove infringing content at their leisure when even a minor delay in removal may cause serious financial repercussions to rights holders.
The DMCA's safe harbor provision is already tilted heavily in favor of ISPs/OSPs. Therefore, to level the playing field it is time for either Congress or the courts to declare that under the DMCA commercial entities have one business day to remove infringing content.
To learn more about protecting and monetizing your online content you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Merriam-Webster's online dictionary, defines expeditiously to mean "marked by or acting with prompt efficiency." According to Wikipedia's entry for the "Online Copyright Infringement Liability Limitation Act, "[f]or a commercially run on-line provider taking action within the hour to tell a customer that a takedown notice has been received and informing them that they must immediately remove the content and confirm removal, giving them six to twelve hours to comply; and otherwise informing them that the content will be taken down or their Internet connection terminated, may be considered reasonable."
There is no controlling case law that provides black letter law regarding the DMCA's definition of expeditiously. However, it was noted in Viacom Int'l Inc. v. YouTube, Inc., 07 Civ. 2103 (LLS) (S.D.N.Y. June 23, 2010) that when YouTube received from Viacom one mass take-down notice for 100,000 videos within one business day almost all of the infringing content was removed. Viacom's take-down notice was sent on February 2, 2007, which is more than three and half years ago. Since this mass take-down, advances in technology have made it easier to detect and remove infringing content.
Since YouTube, a commercial entity, had the resources to remove allegedly infringing content within one business day more than three and a half years ago, it is not onerous for commercial entities to abide by a one business day rule today. At first glance, it may sound onerous for a web site to be forced to remove allegedly infringing content within one business day. However, in a matter of hours a popular movie, book, or other original work may be downloaded hundreds of thousands of times. These downloads may cause serious irreparable financial harm to copyright holders.
According to the Senate Report about the DMCA (S. Rep. 105-190 at 44), "[b]ecause the factual circumstances and technical parameters may vary from case to case, it is not possible to identify a uniform time limit for expeditious action." In my opinion, this indicates that a non-profit may be held to a different less onerous standard than a commercial entity. Since S. Rep 105-190 was created, technology has drastically changed and I do not believe it was the intent of the Senate to provide ISPs/OSPs wide latitude to remove infringing content at their leisure when even a minor delay in removal may cause serious financial repercussions to rights holders.
The DMCA's safe harbor provision is already tilted heavily in favor of ISPs/OSPs. Therefore, to level the playing field it is time for either Congress or the courts to declare that under the DMCA commercial entities have one business day to remove infringing content.
To learn more about protecting and monetizing your online content you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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