Copyright Law Blog

CD Duplication: What Is It And How Does It Work?

August 1st, 2009 at 06:39pm Under copyright infringement

CD duplication is affecting our world in many ways and becoming more affordable for the average person. It’s worth mentioning however that better technology is actually properly defined as simply a better way of doing something we already do with whatever process we have at hand. Eor example anytime we find a way to get to work 5mins faster than before we have found a way to improve our lives in some respect.

Many times, when people think of copying compact disks, they think of something that is not legal. There are many articles in the newspapers today dealing with issues of copyright infringement. This is true especially with music, dvds, and computer software. However this can be legal in the right circumstances and also many times is a needed service.

Fair use governs copying for the average home consumer. I myself have used simple software and the burner on my computer for general home use. I prefer not to play purchased music in my car’s CD player. For some odd reason, the glued or pasted labels jam my player. So, I make a copy of the CD to play in my car. If it were not for these burners, I would never be able to play the music in my car.

Commercially though, many people have need for CD duplication services. New bands may record and choose to self produce. Online, there are many companies that will perform these services with costs as low as $1 per disc. Speakers may record inspirational messages and then duplicate those for resale later. These are valid uses for making copies.

Companies may also look to use a service to copy discs. CDs are one way of backing up and archiving valuable data. Making backups can ensure that there is more than one copy of the data available.

Not only can audio and data CDs be duplicated, but can also be done with DVDs. Even family movies can be copied and shared for that next family reunion. Any form of data that resides on CD can be duplicated with CD duplication services.

CD duplication can be done in several ways depending on your needs. If, like me, you are a low volume user, you may choose to duplicate the occasional CD with commercially available software and your personal computer. Other users may choose to invest in a CD duplicating machine that can make several copies in just a few minutes from a master that is inserted into the machine. High volume users may look into an online CD service. With an online service, you can upload your information, specify the number of CDs you need and pay for the service with a credit card. In a few days, you can have the CDs delivered to your door step.

To wrap up our article about Biotechnology I wish you luck in putting your new knowledge to use in your home/work life. In the last 20 years I have seen so many examples of new ways to improve our lives come and go I can’t help feeling excited about what I’m going to see in the next 20 years. Although many people seem to feel a sense of foreboding about new things changing their lives in a negative way I must confess that I don’t have this fear at all (at the ripe old age of 40 anyway). I understand that new and changing technology is not only inevitable but in fact is opening up more opportunities for us all than ever before in our history and we should only feel threatened if we choose to cling to the past and somehow expect the rest of the world around us to do the same.

Website Terms and Conditions – Do You Really Need Them?

August 1st, 2009 at 12:40pm Under copyright infringement

For some mysterious historical reason, the contract between the operator of a website and its customers long ago became known as the “terms and conditions” of the site—and back in those days (the Wild, Wild West of the 1990s), a good many operators of websites just copied the terms and conditions verbatim from another site that had terms and conditions looking fancy enough to garner the assumption that they were written by a lawyer who knew something about the subject. That led to a number of very amusing results, including totally irrelevant provisions—provisions that worked against the interests of the site, and so on. This practice is akin to following someone who also is lost.

The “terms and conditions” clause is, in essence, a contract. However, formation of a contract requires both an offer and an acceptance. Terms and conditions are really part and parcel of an offer of the services offered by your website. In order for there to be a contract, the customer must do something to communicate acceptance of all of the component parts of an offer. Just because you have terms and conditions posted doesn’t mean they have been accepted. That is the first point you should take from this article.

Case in point: Some years ago, Netscape tried to enforce the component of its terms and conditions requiring arbitration (more about that later) against a customer. It lost (Specht v. Netscape Communications Corp., 150 F.Supp.2d 585, S.D.N.Y., 2001). Apparently, there was no requirement in one of Netscape’s upgrades that the customer make any manifestation of acceptance of the terms and conditions, usually accomplished by clicking an “I accept” button adjacent to them. This is called a “click-wrap agreement,” a term that arose from those so-called “shrink-wrap agreements” on computer software—you know, the ones where it reads on the wrapper of the disc on which the program is recorded that “by breaking this seal, the customer agrees to…” The best click-wrap agreements are the ones in which the default setting reads “I do not agree,” so the customer must change the selection to the “I agree” button, and then click. This obviates customer claims that the buttons were confusing or that the “I agree” button was accidentally pushed.

Perhaps the most important components of terms and conditions have to do with dispute resolution. Let’s say you operate a website in New York and have a disgruntled customer in Montana—or worse, in Paris, France. The customer in one of those far-flung places can claim that, since you took advantage of the stream of commerce in that jurisdiction by selling your services within it, then you are subjecting yourself to being sued there in the event of a dispute. Think about it: If the customer in Montana defrauded the New York webmaster, the New York webmaster could sue the customer in Montana, and in fact would be required to utilize the court system of Montana to collect any money. Turnabout is fair play, and the customer also can sue you in Montana. However, courts consistently have held that the parties to a contract can agree in advance to the place (venue) where disputes arising from it are resolved, so long as the venue has some interest in the dispute (e.g. one of the parties lives there or the contract is to be performed there). This is called a “choice of forum” clause, perhaps the most important term or condition—and the second point you should take from this article.

Another oft-utilized contractual provision involves how (as opposed to where) disputes are resolved. Terms of a contract, and terms and conditions, can provide that disputes will be resolved by arbitration—this is the third point. Here is how arbitration works: If a suit arises from a contract containing a typical arbitration provision, then a party that is sued can demand arbitration, and the judge will suspend the court action pending resolution by arbitration.

An arbitrator is a third party who acts somewhat like a “rent-a-judge”; many arbitrators, in fact, are retired judges. Now, why would you want to be required to pay for something that the state will essentially give to you for free? Because each side is required to post half the arbitrator’s fee in advance—and this is not just $100 or $200 in court filing fees; it is more like thousands of dollars, because arbitrators aren’t cheap. Therefore, if some customer has an inconsequential beef about his Web service, he has to put up some serious money! Plus, he has no right to a jury.

The fourth important point involves “attorneys’ fees” clauses, which may sound like a good idea but require serious second thought. Be realistic: You are much more likely than your customers to screw something up, and an “attorneys’ fees” clause instantly raises the stakes in any dispute. Think about it: Somebody in some department screws up and double bills a customer for $200. An attorney looks at this and figures he can just file suit for the $200 plus his or her fees (granted, some states do not allow attorneys in small claims court), so if you use an attorneys’ fees clause, you are asking to get sued. The general rule in the U.S. (the so-called “American Rule”) is that each party to a dispute bears the cost of its own attorneys’ fees, absent a statute (and there are enough of those as it is) or a contractual provision. Most of the reasons nobody files suits for small amounts of money is that attorneys are so expensive. Why volunteer to pay the opponent’s bill?

Finally, perhaps one of the best reasons not to just copy terms and conditions from another website and post them on your own is that you are subjecting yourself to a claim for copyright infringement—and that’s just one more hassle you and your company can do without.

UK and European Trade Mark Protection and the Law

July 28th, 2009 at 06:42pm Under trademark law

The fundamental purpose and function of trade marks is to provide consumers with the means to demarcate the goods and services of one trader from another. It allows consumers to recognise your products or services as yours alone and thus avoid confusing it with the products or services of a competitor. Trade marks provide an exclusive way in which your goods or services can be identified as originating from you.Furthermore, trade marks reflect certain attributes and qualities which consumers can identify with certain products and services and so be given a sense of assurance that their requirements of quality and taste will be met.Independent of the above, shall we say, traditional functions and purposes of trade marks – given that businesses have invested enormous resources to develop and market not only their goods and services but also the brands which are associated with them – they also fulfil an ‘advertising function’. It is a function that needs to be protected in same way as the function of identifying where the goods or services originate (i.e. one trader as opposed to another) and the function of assuring quality and taste.Registered Trade Marks When a trade mark is registered under the Trade Marks Act 1994 (‘TMA’) it distinguishes your goods or services from your rivals and thereby obviates confusion with other products or services. In other words, it protects against deceptiveness as to origin. It does not matter whether a trade mark is represented as a logo, brand, signature, name, picture, shape, slogan, jingle, colour, word, marquee or otherwise, it performs the same functions.Section 1(1) of the TMA defines a trade mark as:‘any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings’.In order to avail oneself of the protection granted to trade marks under the TMA, it is necessary first of all to make sure that the trade mark is properly registered. This may be to state the obvious but there is often confusion with other intellectual property rights like passing off, copyright, confidential information and design rights which do not require registration. Such registration grants the registered proprietor the ‘exclusive rights in the trade mark which are infringed by the use of the trade mark in the [UK] without his consent’ [section 9(1)]. Registration grants a statutory monopoly to use of the mark. This means that the registered proprietor can use the registration to prevent others from using the same or similar mark on the same or similar goods or services.Infringement Secondly, the defendant’s use of the trade mark must fall within the definition of infringement as outlined under section 10 of the TMA. A defendant can be said to have infringed a trade mark in the following circumstances:¨ If he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered¨ If he uses in the course of trade a sign where because it is identical with or similar to the trade mark and is used in relation to goods or services similar to or identical with those for which the trade mark is registered, ‘there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark.’¨ If he uses in the course of trade a sign which is identical with or similar to the trade mark, and is used in relation to goods or services which are not similar ‘where the trade mark has a reputation in the [UK] and the use of the sign without due cause, takes unfair advantage of, or is detrimental to, the distinctive character of the repute of the trade mark.’Duration The life of a registered trade mark is ten (10) years from the date of registration, unless it is renewed. If properly managed and administered the duration of a registered trade mark may be “forever”. However, if a trade mark owner fails to renew a trade mark on time, it may be removed from the Register. Accordingly, it would be prudent to engage a reputable trade mark attorney to ensure that your trade mark is carefully monitored and regularly and properly renewed.The Register The Register of Trade Marks of available for inspection at www.ipo.gov.uk. The Register displays current information and the status of all registered trade marks in the UK and those registered with the European trade marks office, known as OHIM. Defences There are a number defences available to competitors to lawfully use the registered trade marks of rivals in certain circumstances. The most significant one is the allowance given to fair use. Under section 10(6) it is lawful for a competitor to use the trade mark of a registered proprietor ‘for the purpose of identifying goods or services as those of the proprietor’ or his licensee, provided it is ‘in accordance with honest practices in industrial and commercial matters’. This provision is designed to allow competitors to use the trade mark of another for the purposes of comparative advertisement. However, the use of such trade marks must be fair. The question of when a use of another’s trade mark is fair has been visited by the courts a number of times since the passing of the TMA in 1994. An important case in this context is Barclays Bank v RBS Advanta [1996] RPC 307 where Laddie J concluded that a plaintiff could not succeed simply by showing that the defendant was taking ‘unfair advantage’ of the trade mark. He needed to show that there was ‘material dishonesty’ before he could succeed in establishing that there had been ‘unfair’ use. Subsequent cases have given rise to the objective standard of the “reasonable reader” to ascertain whether a use is ‘material dishonesty’ and therefore unfair.Europe Wide Registration Traditionally, one of the problems with the trade marks registration system is that it is territorial. This means that if you register in the UK, protection is only afforded in the UK and nowhere else. If you wish to get protection in France as well, for example, you must also register the trade mark in France. However, it is now possible to register a trade mark on a Europe wide basis by just making one registration which will grant protection in any one of the fifteen member states. This known as the Community Trade Mark. A Community Trade Mark provides protection by means of a single registration covering the whole of the European Union. Registration of a Community trade mark is granted by the Office for the Harmonisation of the Internal Market (Trade Marks and Designs) which is located in Alicante, Spain.This Europe wide registration is not really a unified registration system but an application deposited to seek protection in a number of nominated separate territories. It avoids the preparation and filing of separate applications in each country for which protection is required. The trade marks laws which apply to each such countries would be differentTrade Mark Licensing Under section 28 of the TMA it is possible to license to use a registered trade mark on a general or limited basis or on an exclusive or non-exclusive basis. So, trade mark owners are able to authorise others to use their trade marks any practically any terms that they see fit. Trade mark licences should be in writing, and exclusive licences must be in writing.Trade Mark Infringement When a business uses a trade mark without the permission of the proprietor of the trade mark, continued use of the trade mark may be prevented by the grant of an injunction, and losses suffered by the trade mark owner occasioned as a result of the infringement may be remedied by an award of damages.Conclusions Trade Marks play a fundamental role in protecting business names, product names and the names attributed to services by business. In the event that another business copies a trading name, the original business is left only with rights granted by the law of passing off, which generally requires substantial evidence of trading activity and extensive marketing, in order to overcome the threshold requirements for goodwill and reputation, which in essence is what the tort of passing off protects.As trade marks represent the unique identity of a business, product or service, trade marks should form a central part to preserving brand identity of capital investment in promoting the business. Supposing two identical businesses that have been trading successfully for a number of years, and one has a registered trade mark and the other does not. If each of these businesses is the victim of another business copying their trading name, the business with a trade mark will almost invariably be in a superior position to protect the exclusivity of its trading presence. In effect, it may be the difference between not being in a position to protect their brand presence due to the more onerous evidential requirements required by making out a case for passing off.

Authors Have a Duty to Assert Their Copyrights

July 25th, 2009 at 12:41am Under copyright law

I am speaking to every “author” out there. Not just authors of articles and books, but also authors of web sites, programs, photographs, graphic design. I am speaking of authors expansively as defined under the Copyright Laws. I am speaking to the creators of original works of authorship that are placed in a tangible medium of expression.

My message to all of you; all of us is: we each have a duty to each other to come down hard on people who steal our work online.

It is no secret that theft is rampant on the Internet. It is happening every day. It happens to each of us who have a strong web presence and create original content eventually. If it has not yet happened to you, it will. Your time will come.

As authors we work very hard to create. It is our creativity that we are putting out there. It is our late nights. It is our idea that becomes a reality.

When that idea is stolen and appropriated by someone else we do, and we should, feel violated. I think back to an incident that happened when I was in college; longer ago that I care to remember. I was away for the weekend and when I returned my apartment had been broken into and my stereo (the prized possession of a college student) and some other items had been stolen. I will never forget that feeling of being violated.

Now fast forward to today. After working very hard for several years to create a business by creating my own original technology legal documents and marketing them on the Internet, I have found that another company is selling my documents online, fully intact without revision and competing with me. Again, I feel violated. And I am angry. I know who these people are and I am going after them.

There seems to be a large part of the Internet community that seems to think that it is just fine to steal someone else’s hard work and then profit off it. That is why I say that everyone out there who has put there blood, sweat and tears into playing by the rules and creating their own original content needs to come down hard on people who violate their rights. Do this for yourself, but also do this for all of us. Do this so that group of people who would steal the work of someone else are stopped. Do it so that the message finally gets through, so the stories of people paying up for their actions get circulated. So it to help clean up the Internet from these dishonest people and businesses.

Sometimes they say that the biggest events in life are the biggest motivators. Obviously from my articles on this topic readers will be able to detect that I have been deeply affected by this theft of my work. It is pretty transparent.

I hope that this article inspires someone who may be just found out that someone else is using their work without permission to take strong action against them. Stealing your material is theft, plain and simple.

Is Downloading From Youtube Copyright Infringement?

July 19th, 2009 at 04:28pm Under copyright infringement

I undertsand what copyright infringement is, but how bout the music studios that put the music up? or in a easier question ,what type of downloads is not copyright infringment on Youtube?

If I Take A Picture Of My Myspace (layout Created By Me With My Own Pictures) Is It Copyright Infringement?

July 19th, 2009 at 10:27am Under copyright infringement

I am developing my own website and I am making a section for myspace layouts (I am making my own). If I take a picture of the layout so that people can see what it looks like, is it copyright infringement?

If Someone Takes Me To Court For Alleged Copyright Infringement And Loses, What Are Chances I Can Recoup Attor?

July 19th, 2009 at 04:29am Under copyright infringement

If someone takes me to court for alleged copyright infringement and loses, what are chances I can recoup attorney fees, time lost, etc.
Also, would it cost me the same as it would for them to sue me in the first place? as in attorneys and such.
Thanks

An Orange County, Fullerton and Riverside California Trademark Lawyer’s Humorous Take on Trademark Infringement

July 18th, 2009 at 06:42pm Under trademark law

To a great many people in Southern California, the law regarding infringement of trademarks, copyrights or intellectual property in general is so confusing, it is humourous. Whether you live in Indio, Riverside, Costa Mesa, Santa Ana, CA, San Diego, Huntington Beach, Orange County, Palm Springs, Palm Desert, or Newport Beach, you are as likely to be confused by the law of infringement as someone who lives in La Jolla, Anaheim, Irvine, Westwood, Santa Monica, Westminster, Mission Viejo, Newport Beach, Buena Park, Ontario, Rancho Cucamonga or Yorba Linda.

 

The standard for whether there has been an infringement by one person of another’s intellectual property, namely their patent, trademark or copyrighted work, often comes down to whether there is the “likelihood of confusion” in the public.

 

To test this test set forth by the courts and by statutes, I went out into the public to see how readily the public was confused.

 

I didn’t have to go far to find confusion.I found a dog walker trying to find an address.

 

“Can I help you find something?” I asked her.”I’m confused,” the dog walker said.

 

“I thought 64th street would be right after 63rd street.”

 

“They put another street between the two,” I said, “just to confuse people like you.”

 

“Figures,” the dog walker said.

 

Clearly, the city was guilty of infringement on a person’s senses and well being.

 

I next went into a coffee shop that wasn’t one that I normally went into. But instead of having the normal choices of tall, grand and venti, this shop had single, double and triple.I could see that I wasn’t the only one confused.

 

I asked the person standing in line ahead of me, “Is a triple three times the size of a single, or is it the same size but with three shots of espresso in it?”

 

“Beats me,” the person said. “What I want to know is what these low-fat sticky buns have that could possibly make them low-fat.”

 

I wondered, with such confusion among members of the public, was this coffee shop infringing on either the other coffee shop’s terminology or were we, the public, just naturally confused about things.

 

I decided I needed to see someone really smart, so I went to see a professor who was in part responsible for the new atom smasher and the super collider to see if he was faring any better than the rest of us.

 

“Professor, can you clear up some confusion the public is having?” I asked.

 

“I’ll certainly try, but first I’m having difficulty understanding how some news channels can ignore facts when they report the news.”

 

“We all wonder that,” I told the Professor.

 

“But they simply report dogma, assume that their opinions are correct and arbitrarily reject anything to the contrary. Or worse, they simply state what they want to believe and sprinkle it with a few facts.”

 

The Professor was clearly confused. “Is that how we scientists should be doing our work? Reject any type of testing or experimentation or observation to develop our theories?”

 

I left the Professor in a highly agitated state of confusion. Clearly the news anchors were adding to the public’s confusion.

 

I found myself wandering inside the mental ward of the local hospital for some clarity.

 

“Are you confused?” I asked one of the patients.

 

“Not at all,” he replied. “I know who I am today and even if I think I’m someone else tomorrow, I still won’t have any doubt about it.”

 

“What if you think you’re me tomorrow?” I asked.

 

“I still won’t be confused,” the patient said. “What you feel is up to you. Like they say, I’m okay, You’re okay. Who cares if anyone moved the cheese.”

 

I left the mental ward feeling much better about things. Confusion is in the eye of the beholder. The infringer isn’t the one confused. He may cause confusion in others, but the infringer is actually quite happy with him or herself.

 

At least some of the public appeared not to be confused, even if they might only be the ones believing they are someone else.

 

If you have an intellectual property matter in Orange County, San Diego, in Riverside, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your Riverside Trademark Lawyers, and Orange County and San Diego Trademark Attorneys. For this reason, be sure to hire a California law firm with trademark lawyers who are ready to serve you in many areas such as Chino Hills, Mission Viejo, Newport Beach and Palm Desert so you are properly represented when you need to be.

 

If you have an intellectual property matter and need to know your rights, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com  and learn about your rights and options. You can also call us to speak directly to Sebastian Gibson on the phone about your legal matter.

Would A Cover Of A Song Count As Copyright Infringement?

July 18th, 2009 at 04:27pm Under copyright infringement

I know someone who makes covers and want to use one in a video, would it count as copyright infringement? I need to know ASAP!!
(The reason I’m asking is I don’t want to destroy my chance to be partners with Youtube, so the real question is: Would is violate Youtube Rules to use a cover song in a video?)

If A Fabric Is Copyrighted, Is It Copyright Infringement To Make Something From This Fabric, Then Sell As Own?

July 18th, 2009 at 10:28am Under copyright infringement

I purchased some fabric at the fabric store and noticed it had copyright printed up and down the selvage. I want to make and sell crafts using this fabric. would this be considered copyright infringement and therefor illegal without consent of the designer/ manufacturer ?