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Posts from the ‘Intellectual Property’ Category

DEA Sued for Creating Fake Facebook Account Using Woman’s Photos

How would you like to stumble upon a Facebook page that you did not create, and that also displayed your name and your personal photographs?  Better yet, how would you feel if that same page was created and being used by a government agency to catch criminals?

That is exactly what happened to a Sondra Arquiett in 2010 when an agent with the Drug Enforcement Agency (DEA) took it upon himself to create a fake Facebook account with the hopes of establishing contact with criminal drug dealers.  DEA agent Timothy Sinnigen admitted to creating the account and appropriating Arquiett’s likeness, according to the federal lawsuit that Arquiett filed against the DEA and agent Sinnigen in the Northern District of New York.  Arquiett had previously been arrested for drug charges in 2010, and during that time some of her personal items were seized.  One of those items was her cell phone, which contained personal and private photographs.  Sinnigen used the photographs on the fake Facebook page in order to create the impression that it had been created and was being managed by Arquiett.

The photographs, some of which contain images of Arquiett’s young son and niece, were taken and used without permission or authorization.  The complaint alleges that Arquiett was “deprived of her Constitutional rights, including her right of privacy afforded to her under the First Amendment”.  This clearly raises some concerns about privacy, and to what extent the government can use your personal information.  The Justice Department will investigate this practice and the issues it creates.

The case had been set for trial in the U.S. District Court for the Northern District of New York, however it appears now that it may head to mediation.
By Taylor Hume

Truevalueweb.com and Westorange.info – How to Learn from UDRP Complaints and Cease and Desist Letters

Domain name disputes are nothing new, and as a business you should be monitoring the potential use of your trademarks by those not authorized to use them.  Eventually, the unthinkable will happen and you will find out that someone is using your trademark in their domain name.  At this point you can send a cease and desist letter, pursue a Uniform Domain Name Resolution Policy “UDRP” Complaint, file a lawsuit, or do nothing.  Most folks will not want to pursue a lawsuit due to the costs involved, but at the same time won’t be ignoring this type of infringement.  That leaves you with the two most popular options, which are sending the opposing party a cease and desist letter, or filing a UDRP Complaint.

UDRP Complaints have various criteria that must be met in order for the Complainant to prevail.  Before moving forward with a complaint, you may want to ask yourself if you can satisfy the three main criteria that every Complaint must have in order to be successful.  The ICANN UDRP Policy includes these three main elements that a Complainant must prove, and they are stated within the policy as follows:

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith.

True Value Company recently filed a UDRP complaint against the registrant of Truevalueweb.com with the National Arbitration Forum “NAF”.  The Complainant undoubtedly has trademark rights in the mark “True Value” as evidenced from its use of the mark in connection with hardware products since 1963 and its registered trademarks and service marks.  The perplexing part of True Value’s complaint is that it claims that there is confusion in the marketplace because the Respondent is offering similar services in connection with Truevalueweb.com.  Since True Value Company is a hardware store and Truevalueweb.com offers web hosting services, I really don’t see how this is possible.  Evidently, Complainant does offer web hosting and design services to businesses that are part of its cooperative, but not to the general public.  This is certainly not the strongest argument, but an attempt nonetheless to satisfy a necessary element by illustrating consumer confusion.

The Complainant also argues that the Respondent’s website uses the same color scheme in an attempt to confuse people and make them believe that Respondent is in some way affiliated with Complainant’s business.  A simple glance at the two websites is all you will need to conclude that this an odd claim.  The folks over at domainnamewire.com have done an excellent job illustrating the oddity of Complainant’s assertions in their article, and I urge you to look at the screenshots that they provided.  The final decision from the NAF, published here, references the three criteria I inserted above.  The NAF decided that Complainant provided enough evidence to satisfy criterion number 1 above, but that it did not prove that Respondent had no rights or legitimate interests in the disputed domain name.  Not being able to satisfy the second criterion, analyzing the third was not necessary.

If you do not want to pursue a UDRP Complaint, perhaps a cease and desist letter is better suited for your needs.  This is a less formal option, but is certainly something to be taken seriously.  If you are considering this approach then it may be worthwhile to review this rather humorous story about a New Jersey Township attorney’s letter to a citizen of West Orange, NJ, who is the owner of Westorange.info.  Cease and desist letters should not be issued lightly, and diligent research is a key element to preparing a good one.  In this situation, the West Orange Township attorney, Richard D. Trenk, issued the letter to a citizen who had registered a domain name that included the township’s name with the accompaniment of the “.info” domain extension.  After reviewing the site, it is blatantly clear that there could be no confusion as to whether the site was affiliated with the official government website located at westorange.org.  With that being said, the cease and desist letter was clearly not well thought out or planned.  If you have a few minutes, and are up for a good laugh, then I encourage you to read the entire uproxx.com article referenced above including pro bono counsel’s response to West Orange Township attorney, Richard D. Trenk.

It is important for every business to police its trademarks to the extent possible, and this may involve sending cease and desist letters and filing UDRP complaints when necessary.  If you are thinking of taking action, make sure that the necessary elements are in place prior to jumping the gun.  If you have any questions about this, please feel free to contact one of our Internet attorneys.

By Taylor Hume

Piracy, ISPs, and six strikes: not two outs, or even one…

In a voluntary self-policing effort most likely intended to help safeguard their Communications Decency Act (“CDA”) Section 230 immunity from suit, several Internet Service Providers (“ISPs”) have created a “Copyright Alert System” (“CAS”) to allow content owners the opportunity to report piracy, through which “strikes” can be issued to Internet service users as a warning for piracy.  This YouTube user who I can’t identify as an authority, has a few generally accurate, and fairly informative videos about the CAS regime.  It’s not clear whether this user is a representative of the ISPs or not.  Comcast also has a pretty good set of faqs on the CAS.

Essentially, the CAS allows content owners to identify infringing IP addresses after verifying that infringement is taking place by P2P (“peer to peer”) file sharing.  The ISP then sends a warning to the Internet service user who had that IP address at the relevant time.  After multiple warnings the Internet service user may be required to view a video about piracy, and after several warnings that user’s service may be “throttled,” or slowed down to make piracy more difficult or time-consuming.  The CAS includes an arbitration process for challenging warnings (Russell’s teapot: How do you prove you weren’t pirating?), but no circumstance under which an Internet service user’s account is to be terminated.

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Federal Court Rules that First Sale Doctrine Does Not Apply to Digital Music Resale

Earlier this week, the U.S. District Court for the Southern District of New York ruled in favor of record label Capitol Records LLC in its dispute against Redigi Inc., a facilitator of online music resale.  The Court held that Redigi violated the Copyright Act when it facilitated the sale of used digital music files, even though Redigi’s program ensured that seller’s copies are deleted upon sale.

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How Your Cell Phone Became a Perching Felony: About the Recent DMCA Transition to Making Cell Phone Unlocking Illegal

Before you read any further, go read and take note of this petition.  You may want to sign it (I did), but context will help in reading this blog post.  In case you’ve been studying really, really hard for the Bar Exam, or were suffering from a surprise case of “dead” over the last week, you inevitably heard that the process of “unlocking” cell phones, previously legal, is now illegal because of government fiat.  For those who may not have understood or thought to ask, “unlocking” is not the same as “jailbreaking.”  In a nutshell, jailbreaking involves making it possible for a device to run code either from sources the manufacturer did not intend the device to be able to use or to run code the manufacturer did not intend it to be able to run (though most people talk about Apple IOS devices, Sony, for example, will note that other devices can also be “jailbroken”).  Unlocking, however, involves making it possible for a device intended for use on one wireless network to be used on a different network – wireless devices sold by a particular wireless company are generally, but not always, sold programmed so that they can only use that company’s network.

Regular readers of Internetbizlaw and the Centre Knowledge blog know that I am pro technology consumer, and very cynical about the “graying” of property rights.  I am not going to spend a lot of time in this post discussing the “right and wrong” of legalizing unlocking, or not, but everyone should understand a few facts:

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Another Lesson Learned: Instagram Quickly Backtracks After Angering Its Users

This week, users of Instagram scored a victory with the company’s management over a plan to amend Instagram’s terms of service that would allow the third-party use of users’ photos without their permission or any form of compensation.  This change, which was scheduled to take effect in mid January, caused an uproar among Instagram’s user base.

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Digital Rights Management Issues Continue to Tangle Consumers

There was a time, long ago, when we bought something and it was ours.  We could use it, give it away, light it on fire… whatever, but it was ours.  Recently it came to be that something that was ours was also sort of somebody else’s (the recent Supreme Court Kelo case) – or something that was somebody else’s was kind of ours (the more venerable Supreme Court Sony Betamax case) (confused yet?).  Today, things that are ours, aren’t really ours at all.

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Recent UDRP Decision Shows that Domain Name Transfers Are Not Always an Easy Decision

In a recent UDRP proceeding, the popular X-Sports manufacturer Vans, Inc. tried to gain the rights to the domain name <protechelmet.com> from the company, Military and Rescue Supply. Despite the evidence provided by both sides, a team of three Panelists decided that this dispute is not the type covered by the UDRP and should be resolved by the courts. Due to this decision, the domain name for now rests with Military and Rescue Supply. Read more

A Piece of “Pi” Topped with a Dollop of Copyright Clarity

What is copyrightable: the idea or the execution of the idea?  One case just gave us the answer.

Rarely do copyright cases provide clear lessons, but last week a case out of Oregon did just that by elucidating an oft-misunderstood principle of copyright law—the “idea-expression dichotomy.” This is the rule that a copyright protects the expression of an idea, but not the idea itself.

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50 Million MegaUpload Users Facing Complete Loss of Data

In the wake of the Government shutdown of MegaUpload, its users are facing the prospect of losing all of their data as soon as Thursday.

Because MegaUpload’s data was stored on third-party servers and MegaUpload’s assets have been frozen, those third-party companies storing the data have not been paid for hosting MegUpload’s content.

More information is here: http://www.bbc.co.uk/news/technology-16787486

We’ll continue to monitor the situation.

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