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copyrightThe Digital Millennium Copyright Act of 1998 was created to protect copyright owners from infringement of their works (such as photos, documents, music files, and videos) over the Internet.  Amongst other things, the DMCA created an exception (“safe harbor”) against monetary copyright liability for “service providers” (broadly, providers of online services) who establish and follow specified “notice and take-down” procedures.  Under such procedures, copyright owners can inform service providers of potentially infringing uses (via “take-down notices”), and (upon notice to the party who posted the content) service providers block further access to infringing content.  Once blocked, access can only be unblocked if the take-down notice is withdrawn by the submitter, or if the poster provides a “counter-notice” that the content was blocked by mistake, or by misidentification of the content in question.

Recently, the Department of Commerce published a set of guidelines that lay out best practices (and practices to be avoided) for ISPs, folks originating take down notices, and folks submitting counter-notices. Included in this guidance are some constructive suggestions for service providers, such as establishing “trusted submitter” processes for parties who have a history of accuracy and completeness in submitting take-down notices.  These guidelines are quite helpful for any service provider that receives and posts materials from third party submitters.

Startups and Patents

April 2, 2015
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A recent study on R&D vitality, “Measuring Innovation“ by Michael Cooper et al, reports that only about 50% of companies with R&D operations file patents. Another recent study focusing on patent litigation, “The Layered Patent System“ by Michael Risch, reports that on a percentage basis more patents asserted by non-practicing entities (so-called “patent trolls”) are […]

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Can your social media contacts be a trade secret of your employer? Maybe.

March 31, 2015
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This is a relatively new legal subject, so there isn’t much law out there.  In December, 2011, a Pennsylvania federal court answered this question in the negative.  In the case of Eagle v. Morgan, Linda Eagle, the founder of a company, Edcomm, had developed a significant LinkedIn presence closely connected to Edcomm.  In 2010, Edcomm […]

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Second Strike Out for Alleged Patent Troll

January 19, 2015
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Alleged “patent troll” strikes out for second time in its efforts to have the Vermont AG’s “unfair patent enforcement” lawsuit adjudicated in federal court. In May 2013 the State of Vermont sued MPHJ Technology Investments, LLC for alleged consumer fraud arising from its letters sent to Vermont businesses claiming patent infringement.  Since then, the parties have […]

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Oracle v Google: Are APIs Copyrightable?

November 12, 2014
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Last month, Google asked the Supreme Court to hear its appeal of an appeals court ruling that certain application program interfaces (APIs) are copyrightable.  Oracle’s response is due in December, and the US Government may weigh in, so we may not know until January 2015 whether the Supreme Court will accept the case.  I expect they […]

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Software Patentability – The Supreme Court Speaks. Turn Down the Volume.

June 23, 2014
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On Thursday, June 19, 2014, the US Supreme Court issued its decision in Alice v CLS Bank, a court case dealing with the patentability of software.  See our earlier post on the lower court rulings. What is Patentable? In the US, we have a law (35 USC §101) that lays out what kinds of subject matter are […]

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Tesla Patent Pledge….Too Good to be True?

June 15, 2014
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On Thursday June 12, Elon Musk, CEO of Tesla Moters, posted a blog post that said “…Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.”   At first glance, a good thing.  It is certainly better than having no such pledge.  But before folks gleefully download all […]

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EU Court of Justice Rules Web Browsing is not Copyright Infringement

June 12, 2014
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Whenever we view content on the Internet, our web browsers (Internet Explorer or Firefox, for most folks) make temporary copies of that content on our computers.  Amongst the rights reserved by copyright holders is the right to prevent others from making copies.  So do those copies constitute copyright infringement?  On Thursday, the European Court of […]

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Pun Marks are Fun Marks! Then Why is Chewy Vuiton OK, But Not Ben & Cherry’s?

November 25, 2013
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by Jamie Fitzgerald Last year a California porn studio, Caballero Video, paid dubious homage to Ben & Jerry’s®   (“B&J”) when it launched a “Ben & Cherry’s” film series.  Even the less explicit titles in the series, such as BOSTON CREAM THIGH and HAIRY GARCIA, (a la B&J’s BOSTON CREAM PIE and CHERRY GARCIA®), evidence an […]

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Alleged Patent Troll Targeted by Vermont Attorney General

September 25, 2013
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Previously, we posted about Governor Peter Shumlin signing into law Vermont’s first-in-the-nation (and so far only-in-the-nation) patent troll legislation helping Vermont businesses protect themselves from bad faith patent infringement claims. 9 V.S.A. §§4195-4199 (effective July 1, 2013). In the meantime, the Vermont Attorney General is pursuing patent troll claims against MPHJ Technology Investments, LLC under […]

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