Tonya Evans (Widener University Commonwealth Law School) – Moderator
Darrell Mottley (Banner Witcoff)
Shontavia Johnson (Drake University Law School)
Kevin Jordan (JP Morgan Chase)
Summary – Our panelists will discuss a variety of hot topics and recent developments in patent, trademark, and trade secret law, including:
The internet of things as an emerging technology/industry, and related IP and regulatory issues
Intersection between the First Amendment and Section 2(a) of the Lanham Act regarding registration of immoral, scandalous, or disparaging trademarks, including the impact of trademark cases
Overview of trade secret law and its viability as an alternative means of IP protection
CLE Info: The NBA IP Law Section is looking into obtaining CLE accreditation in the following jurisdictions: CA, GA, IL, NY, TX, and VA. For questions regarding CLE accreditation, please contact Bill Barrow (wbarrow[at]mayerbrown.com).
Cost: This webinar is free for NBA IP Law Section members and costs $30 (plus processing fees) for non-members.
“The London School of Economics and Political Science has released a new policy brief urging the UK Government to look beyond the lobbying efforts of the entertainment industry when it comes to future copyright policy. According to the report there is ample evidence that file-sharing is helping, rather than hurting the creative industries. The scholars call on the Government to look at more objective data when deciding on future copyright enforcement policies.”
“The founder of file-sharing website Megaupload remains in custody in New Zealand, although the German-born former hacker known as Kim Dotcom denies charges of Internet piracy and money laundering.
The US authorities say the accused made his colossal fortune by copying and distributing music, movies and other copyrighted content without authorisation. The FBI requested a raid on the 38-year-old’s Auckland mansion on Friday.”
“We’re doing a law firm simulation in class where the students are divided into 5 law firms, maintaining their own websites and blogs and tracking intellectual property issues,” says Associate Professor Tonya Evans of her efforts to use two proposed pieces of legislation – the Stop Internet Piracy Act (SOPA) in the House of Representatives and its counterpart in the Senate known as the Protect IP Act (PIPA) – as teachable moments for her students.
Both bills are designed to make it more difficult to sell or distribute a range of copyrighted materials such as movies, television shows, and music, as well as counterfeit goods ranging from pharmaceuticals to watches. The bills have support from both sides of the political spectrum, and the purpose of the legislation is broadly regarded as a worthy goal.
There is, however, strong opposition to the methodology employed in the proposed legislation from a range of technology companies and advocates for Internet freedom, who have serious reservations about the provisions contained within. >> Read the full story
The blackout is a protest against proposed legislation in the United States—the Stop Online Piracy Act (SOPA) in the U.S. House of Representatives, and the PROTECTIP Act (PIPA) in the U.S. Senate—that, if passed, would seriously damage the free and open Internet, including Wikipedia.
This will be the first time the English Wikipedia has ever staged a public protest of this nature and is not done lightly. Dozens of other high-powered sites and thousands more are joining the protest in varied ways to to speak with a collective voice. Read the full announcement
“The Obama administration has joined the ranks of skeptics of the Stop Online Piracy Act. In an online statement released Saturday, three senior White House officials wrote that the administration “will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.”
The system works by sending a series of up to six copyright alerts to account holders who are accused of copyright infringement. The first four or five alerts are warnings but on the fifth or six alert, depending on if the ISP waived taking action on the fifth alert, various mitigation measures are implemented including limiting download speed and halting access until the customer contacts the ISP.
At no point in this process is the customer information given to the complaining copyright holder and there is an appeals process. However, the appeals process does come with a $35 fee that can be waived.
In contrast to “three strikes” laws passed in France and New Zealand, the U.S. system is far more tame with many more warnings and far gentler mitigation measures. However, that hasn’t helped the U.S. agreement, which was created as a framework and without legislation, avoid controversy.
Some have called the new system a form of “railroading” and others have said it is turning the ISPs into “copyright cops“. Many have wondered why, after years of holding fast to their position that they didn’t have to police their networks, ISPs agreed to this plan.
More importantly though, others are wondering what the system means for them, either as a copyright holder or an occasional downloader. The answers to all the questions are a bit complex but can be pretty easily explained to anyone who is willing to take a closer look.
The Aligning of the Stars
Though many commentators have expressed surprise at this agreement, the truth is that this has been a long time coming. The stars for this kind of framework have been aligning for some time, well before it was leaked they were negotiating such a deal.
While copyright holders have every motivation to seek such a deal, ISPs, it seemed, did not. Not only did the DMCA protect them from any liability, but they risked angering customers by taking any action.
However, the situation is not that straightforward and, over the past few years, ISPs have been put in a precarious position on this front. Consider the following issues:
Bandwidth Issues: Bandwidth is becoming a growing issue for ISPs due to increased consumption of both legitimate and illegal content. Dedicated pirates are often times the biggest downloaders and, sometimes, aren’t even customers but are instead riding on a neighbor’s wifi. There was talk even just a few weeks ago on this issue nudging ISPs to take action on piracy.
Conflicts of Interest:With Comcast buying NBC, you have many ISPs getting into the content business and sitting, literally, at both sides of the table. The line between distribution and content creation is not clearly defined, especially in light of partnerships the two sides have to deliver bundled services.
Government Pressure: Finally, in light of tougher laws being passed in other nations, the U.S. government, in particular the White House, has been putting pressure on ISPs to come up with a deal. For an industry that strongly fears regulation, this was likely a very powerful motivator.
In short, the two sides need each other (or are already one and the same) and the shadow of government intervention was all that it took to push the process along.
For example, if you’re a smaller copyright holder or otherwise not part of this agreement, you won’t be able to send any alerts and, if you don’t pirate content, you most likely will never see one, unless your wifi is being misused.
Even if you’re a casual music or movie downloader, this agreement probably won’t drastically impact you. In fact, some even feel it could help you by giving you plenty of warnings and helping you avoid a lawsuit.
This effort is generally targeted more at diehard pirates and, even then, it is far more aimed at education and not enforcement. The mitigation steps are tame compared to those in other countries and the long series of warnings is more geared toward informing the user about the problem than threatening them.
In short, only a handful of very active pirates will likely be on the receiving end of any mitigation measures and those that do will get there more because of stupidity than the actual act. After all, who would continue doing the same thing after four or five warnings?
The real change, most likely, is yet to come. Simply put, it seems unlikely that this framework is going to be the end of the relationship between ISPs and content creators and that could have a big impact on the Web down the road.
Looking Ahead to a Different Future
The real change with this agreement isn’t the number of strikes or the mitigation measures but that it happened at all. After all, other nations that have implemented such “graduated response” systems did so either through court decisions or legislation, not voluntary agreement.
In short, the most amazing thing to come out of this could very well be the Center for Copyright Information, the organization that is overseeing this effort and was founded jointly by ISPs and copyright holders.
If the parties involved can make this agreement work over the long-term, it could be a huge shift for the Internet in the U.S. This is especially important in the copyright landscape because, in many ways, this agreement is already out of date.
After all, with piracy already shifting away from easily-monitored p2p networks and toward file locker and streaming services, a trend that began as early as 2005, and it is likely that trend will only continue for a long time to come.
In short, this, in many ways, is a piracy agreement that is about five or six years too late to be on the curve. However, if it holds, it could open the doors for future agreements, which could be far more drastic and have a broader impact.
While the pact seems to be somewhat tenuous now, the external factors that brought it into existence are only going to grow in strength over the next few years, possibly driving these two sides even closer together.
That, in turn, will make future agreements easier to draft and could make them much more far-reaching. A prospect that dramatically alter the Web itself.
All in all, this specific agreement isn’t likely to have a drastic impact on anyone that isn’t already a part of the agreement. However, the fact that it exists, the factors that helped to make it happen and the current climate online means that there is a good chance this won’t be the last we hear of this partnership.
In short, rather than worrying about or pondering over the specifics of this deal, it’s more important to look at the fact it exists at all and what it means for the future of the Web.
After all, if the ISPs are either the same companies or closely aligned with the largest copyright stakeholders it will inevitably impact the Web in other ways. It just remains to be seen exactly how.