Internet intellectual property – novel issues and

Internet intellectual property – novel
issues and solutions
Presentation by Jonathan Bick
Worrall F. Mountain Inn of Court on Monday,
May 19, 2014 – 6 pm
Morris County Courthouse
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Intellectual Property is an ever evolving field and
can cause your clients who use the Internet to
incur
• 1. liability $30,000 per infringement without intent;
• 2. statutory damages up to $11,000 per contact an
Internet user under the age of 13; and
• 3. loss of their domain name for failure to register a
trademark.
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liability for infringement with or without
intent
• If your client has pictures on their company website, they
can be fined up to $30,000 per work in statutory
damages for copyright infringement, even if
unintentional.
• The basic level of damages is between $750 and $30,000
per work, with the average being $5,000 per work. If its
proven to be willful infringement, that can jump to up to
$150,000 per work!
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copyright trolls ?
• Getty Images in currently employing Internet software to find
commercial entities who are using their images without
permission which makes your clients even more likely to get
caught!
• Even worse, since copyright infringement does not require
intent, Getty Images uses automated robots that crawl the
Internet looking for its images.
• Getty’s tools are so sophisticated that if you even use a part of
their images in a logo, banner or button, they can recognize it!
• They can find images even if they’ve been altered, inverted,
flipped or turned upside down, regardless of if you rename the
image or not!
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What can you do to help your clients?
• You can teach them about the Millennium Copyright Act.
• Avoiding this issue may be as simple as registering with
the Copyright Office and paying a onetime $105 fee.
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ISP FORM – found at www.copyright.gov
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statutory damages up to $11,000 per violation for
communicating with an under aged Internet user
• Intellectual Property is an ever evolving field and one
that can cause your clients to unknowingly be subject to
statutory damages $11,000 per violation if a user under
the age of 13 visits their website!
• Xanga was fined US $1 million for COPPA violations.
• The Federal Trade Commission settlement with the
social networking app Path included an $800,000 fine.
• FTC filed a complaint against Playdom that resulted in a
consent decree, which required a $3,000,000 penalty.
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Comply with Children’s Online Privacy
Protection Act (COPPA)
• The Rule was designed to protect children under age 13 while
accounting for the dynamic nature of the Internet.
• The Rule applies to operators of commercial websites and online
services (including mobile apps) directed to children under 13 that
collect, use, or disclose personal information.
• The Federal Trade Commission has updated the Children's Online
Privacy Protection Act. The new Rule expands the definition of
personal information to include geolocation information and
persistent identifiers (or "cookies)", and prevents third-party
advertisers from secretly collecting children’s personal information
without parental consent for behavioral advertising purposes.
• The Rule also applies to websites or online services that have actual
knowledge that they are collecting personal information directly
from users of another website or online service directed to children.
• If their website interacts with users under the age of 13, just twice,
they are subject to statutory damages!
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COPPA applies to three groups
• Child target sites
• Operators of commercial websites and online services
• directed to children under 13
• that collect, use, or disclose personal information from children.
• Interactive sites
• operators of general audience websites or online services
• if they have actual knowledge that they are collecting, using, or disclosing
personal information
• from children under 13.
• Knowledgeable sites:
• websites or online services that have actual knowledge that
• they are collecting personal information directly from users of another
website or online service
• directed to children
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What can you do to help your clients?
Substantial compliance
You can teach you about Terms of Use Agreements
which can ameliorate or eliminate the issue.
• A Terms of Use Agreement, for example, that bars
anyone under the age of 13 from using the site should be
in place regardless of the sites content.
•
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COPPA clause – legal option
• In order to use this site you must be 13 years of age or
older. You must not access this site or accept these
Terms if you are a person who is either barred or
otherwise legally prohibited from receiving any
communications under the laws of the country in which
you are resident or from which you access or use this
site.
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COPPA – technical option
• Net nanny using age data base
• Test – request user to enter
birthday and run a compare
• Use cookie to check for age
related correlations
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COPPA – business option
• Get verifiable parental consent:
• sign a consent form and send it back to you via fax, mail, or
electronic scan;
• use a credit card, debit card, or other online payment system
that provides notification of each separate transaction to the
account holder;
• call a toll-free number staffed by trained personnel;
• provide a copy of a form of government issued ID that you
check against a database, as long as you delete the
identification from your records when you finish the
verification process.
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loss of domain name despite name and
trademark use
• In the past, the 1st to use a domain name was the person
who had the right to it but that’s all changed and your
clients need to be aware of this before they face losing
their domain name!
• Now, the Trademark closest to the name gets the domain
and the other user, no matter how long they’ve had that
domain, must stop using it immediately. This can be
done simply by another user filing an internet petition to
Domain Name Dispute Resolution if your client isn’t
protected.
• You can imagine, this could cause serious business
disruption for your client.
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What can you do to help your clients?
• You can teach them to register a “trademark in use,”
which costs $275
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www.uspto.gov – trademark registration
$275
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Questions
• Jonathan Bick
– jbick@bracheichler.com
– 973-403-3155
• Resources
– Bicklaw.com – content of 200+ Internet law articles
– 101 Things You Need to Know About Internet Law
Random House
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