The news, I’m afraid, is dire. The Internet is about to be destroyed by big media. It is about be killed by two Congressional bills – The ProtectIP and The Stop Online Piracy Act (SOPA) – that all-powerful big media lobbyists are now pushing through Congress. These bills will censor the Internet, turn it into China, censor it, destroy its innovation and value.

“Big media is going nuclear against the DMCA,” thus writes the author and serial entrepreneur Ashkan Karbasfrooshan, arguing that ProtectIP and COPA will “spell the end of the Internet as we know it.” Techcrunch’s Devin Coldeway,describing SOPA as “possibly unconstitutional” and as a “kill switch”, says it is a “desperate power grab by a diminishing elite”. CNET columnist Molly Wood chimes in that SOPA is “brazen” and “nightmarish” and warns that it will result in a “copyright police state”.  The Obama administration is “busy in bed with Hollywood,” she warns, “cheerfully ceding your rights to the MPAA and RIAA.”

Even the VCs are worried. Union Square Ventures’ Fred Wilson, argues that “these bills were written by the content industry without any input from the technology industry”. The problem, Wilsonexplains, is that “the content industry is not creating new jobs right now” and thus, by establishing a destructive legal environment for start-ups, SOPA and ProtectIP will supposedly “kill the golden goose to protect industries in decline.”

Read the rest of this article at TechCrunch

I am often asked the following questions:

• Can I patent an idea?
• Can I trademark my design?
• How can I protect my invention?

An idea can not receive patent protection; a simple drawing can not be a trademark; and copyrights have to be original.  Accordingly, below is an explanation of the three basic intellectual property rights.  I hope this explanation gives insight to Intellectual Property owners.

There are three basic intellectual property rights:  patents, trademarks, and copyrights.

1.  A patent is a property right granted by the US Government to an inventor to exclude others from making, using, offering for sale, or selling the invention throughout the US or importing the invention into the US.

There are three types of patents:

a) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;

b) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and

c) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

2. A trademark is an intellectual property right that protects words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of goods.  If you have a design or picture and it is not the “face” or “identification” for goods or services, it is not a trademark.  For Example:  The logo for Coca-Cola which appears in white cursive lettering is the trademark for Coca-Cola, the company.  When we see the logo for Coca-Cola we automatically associate it with Coke, the drink we consume.

3. A copyright is an intellectual property right that protects works of authorship such as writing, music, and works of art that have been tangibly expressed.  For example, A blogger’s original writing is a copyright.  Paintings are copyrights. Music are copyrights. A design or drawing is a copyright.  The design or picture I mentioned above is simply a copyright if it does not identify goods or services.

So I pose this question?  What type of intellectual property do you own?

Social networks and virtual worlds are quickly becoming part of mainstream culture.  When using these sites, a user is usually allowed to create intellectual property such as writings, music or graphics including avatars.  Does a user have any rights in the avatar, which represent the user, when using these services?  Well it depends on the internet service provider.

1.  Virtual worlds such as Second Life do not require end users to relinquish their copyright rights.  Plus they allow customers to create avatars and then license them.  Thus, when you create avatars or other objects in these worlds, you are the rightful copyright owner and can sue an infringer for unlawful copying.

2. There are some virtual worlds such as Disney’s Virtual Magic Kingdom, that require customers to relinquish their copyrights when creating avatars and actually require the customer to license the avatar to the internet service provider.

3. Other service providers that provide avatar creation services, such as  Ameriland Entertainment allow the customer to retain their lawful copyright and grant the service provider a royalty-free license to copy, distribute, use or display the avatars.

I am of the view that although an internet service provider may provide the tools for a customer to create an avatar, that creation is still the original idea and work of authorship of the customer.  Thus a copyright does exist. However, just like in any other case, copyrights can be licensed, retained, and purchased by express written agreement.  So when creating avatars make sure you read the terms of agreement of the service provider.  You may create the avatar but the service provider may own it.

Intellectual Property is just that — property.  It is a very valuable asset to the owner.  It can be brought and sold, used as leverage, and licensed.  Licensing Intellectual Property is a great source of income for IP owners.  Licensing Intellectual Property serves two purposes for the IP owner:   It provides valuable  income and a way to further market and grow the owner’s business or IP in the market place.

An IP owner should seek or approach a potential licensee in the following circumstances:

1. If the potential licensee is an infringer.  An IP owner can make it a win/win situation for both parties.  The IP owner can receive income for the infringer using the owner’s IP.  Also, the IP infringer gains the reputation of the IP owner and becomes a licensee rather than an infringer. Both parties can now make satisfactory income from the arrangement.

2. The IP owner wants to expand its product or services.  By licensing the IP to like-minded licensees, the IP owner can expand its brand into other geographic areas or markets.  It also allows the IP owner to expand its customer base.

How to License IP

1. First make sure you own the IP you want to license.  An IP owner will need to prove to the licensee that the IP owner has rights to the Intellectual Property.  Evidence can be demonstrated by USPTO and Copyright Registrations.  In addition, if the IP owner acquired the IP from another owner, a transfer of ownership agreement should be presented.

2. Determine the value of the IP.   IP Licensing fees can range from 1 to 20 percent of the sales of the licensee.  The royalty fee or licensing fee depends on the  value of the IP.  If the IP is unique, the licensing fee is higher.  If it is common, it is much lower.  An IP owner can hire an IP agent to determine the value.

3. An IP owner should ensure that they receive a minimum licensing fee regardless of the licensee’s sales.  This will ensure the IP owner receives compensation for their IP regardless of the licensee’s sales.

An IP owner should hire a IP attorney to draft an effective licensing or royalty agreement to ensure the agreement protects the IP owner’s interest.  The agreement will include such particulars as how the IP should be used or displayed.  The brand has to be communicated correctly so it does not use its value.

As blogging evolves, it is becoming increasingly important to recognize the legal limitations associated with building upon the  works of others.  Under 17 U.S.C. §504(c), damages for a single copyright infringement can range from anywhere between $750 to $30,000 per infringement.  Paradoxically, some of bloggers’ best content incorporates the authorized works of others.  As we discussed in a previous post, the Fair Use Doctrine can help one determine whether their use of someone else’s otherwise copyrighted work is likely to escape liability.  While it is often very difficult to ascertain ahead of time whether the use of another’s work is a fair use, patterns have emerged that provide a fairly reliable degree of certainty.  If you are unsure whether your use of copyrighted material is a fair use, err on the side of caution by obtaining the author’s permission before publishing it.

The Fair Use Doctrine is codified at 17 U.S.C. § 107 and states that “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”  Fortunately for bloggers, most of what they do is, at the very least, criticism or comment.  However, many bloggers simply stop there, without analyzing how a court would likely determine whether the copying is a fair use.  The safest course of action is to properly consider the  four questions raised in the statute:

• Is the use for a commercial or nonprofit purpose? The character of the work is not determinative.  For example, the mere fact of the work being for a nonprofit purpose would not automatically shield it from liability.  This is merely something the court would consider.

• What is the “nature” of the copyrighted work? This pretty much goes without saying.  In determining if the use of the work was a fair use, the court would necessarily have to determine what the work is.  Is it music?  Is it a newspaper article?  Is it from a book?

• How much of the entire work was actually used? Another factor the court will weigh is how much of the work was actually used.  For example, the court would obviously be more likely to conclude that a copyright has been infringed upon if the infringer copy and pasted the entire work, as opposed to quoting a brief passage to illustrate a larger point.

• What is the effect of the use on the market value of the copyrighted work? In other words, is the party that used the work making too much money off of the work compared to the original author?

There is nothing simple about trying to determine every possible circumstance that may arise.  However, these guidelines are a good starting point for assessing whether what you are about to publish will survive an attack.

With the explosion of blogs, vlogs, online magazines, and numerous internet businesses, there is tons of unprotected intellectual property on the internet.  What is intellectual property?  Intellectual Property are creations of the mind.  These creations include trademarks, copyrights, and trade secrets.

Trademarks are one of the most common forms of intellectual property on the internet.  Trademarks protects unique names, phrases, tag lines, and/or logos of a product or service offered for sale to the public.  For example, a blog name and/or logo is a trademark.  Furthermore, a blog is a publishing business therefore an individual who operates a blog is offering a service to its readers.

How does a trademark owner adequately protect his or her trademark online?  Here are 5 tips a trademark owner can implement now to properly protect their trademarks.

1. Apply for Registration of the mark with the USPTO. Although a trademark owner does have a right in a trademark without registration, registration provides nationwide protection against any trademark infringers.  This is particularly important when doing business online.  Infringers can be anywhere.
2. Immediately begin using the TM sign when claiming a right in a trademark. A trademark owner can immediately begin using the TM sign after a trademark before beginning the registration process with the USPTO.  Using the TM sign puts the public on notice that the trademark owner is claiming a right in the trademark.
3. Use Registered Symbol  ® after a trademark when the mark is registered with the USPTO.

4. Use Google Alerts to determine if Trademark is being used by another internet user. Set up Google Alerts to send you alerts whenever your trademark is used.  It will immediately alert you to possible online infringement.
5. Use a watch service like Mark Trend to monitor possible and actual trademark infringement on the internet. Mark Trend will do all the work for you for as little as $249 per mark per year.

Adequate trademark protection is key in deterring infringers.  It is important to note that trademark infringement can result in lost traffic, revenue, and a loss of trademark rights.

Check back next week to learn how to adequately protect Copyrights online.

Many YouTube stars have websites of their own where they can direct their audience for more information, merchandise, and much more. With the viral success of radio personality Ed Lover’s “C’mon Son!” video series, (the series reached over half a million viewers in under two months), it seemed that the next step for the video blogger would be his own website.

That step was interrupted when an online opportunist bought the CmonSon.com domain in hopes of selling it to Lover or the highest bidder on Ebay. The owner of CmonSon.com states, “Ed is a wildly popular NYC radio show host and his mention of this site is certain to draw traffic for quite some time. If you know anything about internet marketing then you know that obtaining traffic is the hardest part.”

In Lovers latest “C’mon Son!” video blog he responds to the domain owner by bragging about his CmonSonOnline.com site that is parked but has not yet been updated.

CmonSon.com has generated some interest as the site’s hit counter reads 7,949 visits to date. There is no official launch scheduled for CmonSonOnline.com but this can be a lesson to all: If you have an idea, purchase the domain. It’s certainly better to be safe than sorry.

There are currently two proposed bills circulating on Capitol Hill that would extend Reporter’s Privilege to those who “report” news via blogs or other social networking sites.

Reporter’s Privilege is the Federal First Amendment right given to reporters to protect their confidential sources.  Currently there is debate in Congress on whether this privilege should extend to those who regularly gather or report news via blogs and other news gathering websites.

Wikipedia defines a reporter or journalist as one who practices journalism, the gathering and dissemination of information about current events, trends, issues, and people while striving for viewpoints that aren’t biased.  Furthermore, Journalists gather information from sources and are responsible for verifying information gathered.

Applying the above definition, sites like Black Web 2.0, that regularly break news, are clearly entitled to receive Reporter’s Privilege.  These sites regularly report on current events multiple times per day.  The public may go to these sites first to receive news rather than regular news outlet sites.  In addition, these New Media sites receive “exclusives” from anonymous and confidential sources that allows them to publish news before traditional news media.

Thus, extending the Federal Privilege law to New Media sites simply makes sense.  Although New Media reporters may not be affiliated with a recognized or traditional news outlet, their job function and value to the public are essentially the same.

Currently there is proposed legislation that would give the President power to seize control of private networks during a national cybersecurity threat.  Proponents of the legislation believe this bill is necessary to protect:

• vital private networks containing personal banking information;

• networks of power and water systems; and

• private citizens’ health records.

However, opponents of the legislation fear that this bill will give the President too much control over private networks and raises significant privacy concerns.

Specifically, section 201 of the legislation allows the President to engage in  “periodic mapping of private networks deemed to be critical, and those companies shall share requested information with the federal government.”  Essentially this language gives the President the authority to continually have access and monitor “critical” networks and force companies who own these networks to hand over private information, as requested, to the President.  Naturally this particular language raises legitimate concerns about privacy and Executive abuse of power.

The Federal Privacy Act provides safeguards and protections against the President’s access to private citizens’ information.  However, in the case of a threat to national security, the President can seize and withhold information on private citizens.  This new proposed legislation regarding cybersecurity potentially violates the Federal Privacy Act because the bill gives the President the power to have access to private networks despite any threat to national security.

Naturally, owners of  “critical” networks do not support the bill in its current state.  Any threat to National Security involving private networks and the internet, does warrant immediate action by the President.  However, the White House’s continued access and monitoring of these networks violates privacy laws and if implemented, will certainly receive legal challenges.