Monday, March 31, 2008
Facebook gay ads
I've read about how social networking sites like Facebook and MySpace help direct advertising to the right audiences. So I'm a little worried that Facebook keeps showing me this ad.Am I gay and I just didn't know it? Not that there's anything wrong with that, of course. I'm not as good looking as these guys either. Uh oh. Does saying that make me gay? This just keeps getting more troubling. :-)
Intellectual Property Registration Still Nascent in China, but Growing
China's National Bureau of Statistics (NBS) issued a report on March 17, 2008 on the rates of patent and trademark registration there. The report studied a range of companies, including the 300,000 large industrial companies in China that produced some 90% of that country's industrial output in 2006.
Only a minority of these large companies have formalized intellectual property rights, however. Fewer than nine percent (8.7%), or 26,000, applied for patents from 2004 through 2006. Fewer than one-quarter (24.3%), or 73,000, registered their trademarks, although more than one-third (38.4%) registered their own brands. Finally, only about one-fifth (20.7%) had company policies to protect their trade secrets.
This last statistic is interesting. The limited enforceability and enforcement of formalized intellectual property rights in China contribute to the perception of their value as investments for companies. Trade secret policies, however, have relatively little cost associated with their implementation, but high value in terms of preventing proprietary information and know-how from leaking out to competitors.
Only a minority of these large companies have formalized intellectual property rights, however. Fewer than nine percent (8.7%), or 26,000, applied for patents from 2004 through 2006. Fewer than one-quarter (24.3%), or 73,000, registered their trademarks, although more than one-third (38.4%) registered their own brands. Finally, only about one-fifth (20.7%) had company policies to protect their trade secrets.
This last statistic is interesting. The limited enforceability and enforcement of formalized intellectual property rights in China contribute to the perception of their value as investments for companies. Trade secret policies, however, have relatively little cost associated with their implementation, but high value in terms of preventing proprietary information and know-how from leaking out to competitors. 
Enforceability may be one reason that trade secret policies are so scarce. There is no trade secret law as such in China. Rather, enforcement occurs under contract, employment, and other civil laws, which may or not be recognized by the courts there. A lack of professional training about intellectual property rights and communal cultural perspectives may provide other reasons.
The NBS report also examined patenting practices in a broader range of Chinese companies, including small to medium enterprises, and non-industrial companies. Among this broader range of companies, some twenty-seven percent (27.5%) of domestically-owned companies filed patent applications in 2006. This compares with about twenty-one percent of foreign-invested joint ventures (20.6%) and Hong Kong-, Macau-, and Taiwan-invested companies (20.8%).
Despite the currently low adoption rate for patenting in China, the trend is toward increased patenting. The State Intellectual Property Office earlier reported an impressive seventeen percent (16.9%) increase in the number of registered patents in 2007 over the previous year. In 2007, those registered patents totaled 850,043. For more statistics on patenting in China, please click here.
Intellectual assets are sure to play a increasing role in China's economic might and integration within the World Trade Organization and the global economy. Speaking before the 11th National People's Congress on March 5, 2008, Chinese Premier Wen Jiabao, pictured above, stated that China will adopt the National IP Strategy and will systematically promote individual innovation.
For more information about international protection for intellectual property rights, please contact us at +1.208.939.4472 or info@technologylawgroup.com.
Sunday, March 30, 2008
Traffic Court continues to grow
This past week our traffic court website hit a new high. Monday had over 3200 visits and Tuesday was just short of that. Both days had more than 3000 unique visitors (different people using the site - some people visit twice in one day). The site is now seeing consistently more than 60,000 visits a month, with roughly 55,000 unique visitors.We are close to finishing the Ohio Municipal Courts,
Saratoga vs. Albany on Google
I just created a new page on the firm website about DWI in Saratoga. This got me interested in how often the term "Saratoga" is searched on Google. Below is an image from Google Trends, showing the relative search volume, as compared to Albany. Albany gets consistently more searches.The reason I'm posting this is that I noticed a seasonal pattern that should not be surprising. Searches for
Thursday, March 27, 2008
AdWords and AdSense Customer Support: Are Dark Clouds Moving in Over Google
I've written in the past about problems with AdWords customer support, and now I'm having problems with AdSense combined with AdWords.For those who don't know, AdWords is a service Google offers where users can put ads up on the internet. The most prominent way you see these ads is when you do a search on Google. On the right side and sometimes on the top, you see ads called "Sponsored Links."
Tuesday, March 25, 2008
Trial Lawyers and the Feeling of Victory
The life of a trial lawyer has its peaks and valleys. I just heard the blessed words "Not Guilty" from a jury, and that is one of the peaks. Sort of.I wrote some time ago about representing the innocent client. Since that time I have found myself with more and more of my criminal defense clients who I believe are innocent. When I started I figured I'd mostly be defending guilty people and that
Sunday, March 23, 2008
Issue-Spotting for Web Sites
Web sites are ubiquitous and an essential part of virtually every business or organization’s operational and marketing activities. Although numerical precision is a challenge, a respected resource found 142,805,398 sites on the World Wide Web in October 2007, up more than 36 million from the beginning of that year.[1]
Up-front attention to these issues when Web sites are first being developed and hosted can save time, money, and legal wrangling later. Here, Benjamin Franklin was right! "An ounce of prevention is worth a pound of cure."
Read on for some of the important legal issues to consider regarding Web sites. Also, check out the Resource Notes at the bottom.
Ownership and Control
One may view Internet domain names as a form of intellectual property, that is, an intangible property right belonging exclusively to the owner of that right. One establishes the property right by registration with a domain name registrar, such as NSI (formerly Network Solutions, Inc.), or by purchasing the domain name from an intermediary or auction sites, such as SnapNames.com. As strange as it may seem in dealing with a property right, the ownership and control of Web sites are common problems faced by many businesses.
For example, individuals may purchase an existing business, believing that the domain name by which that business is promoted online was part of the acquired business. They may later discover that title to the domain name, i.e., the registration, did not rest with the seller, but rather with the business’s former Web site developer, who decides to try to usurp the value of the business for his own aims or to leverage his control of the essential domain name to extract exorbitant Web hosting or other fees from the new owners.
Other businesses may hire a marketing or Web development company to acquire one or more domains and to build a Web site for it. Conflicts arise over payment, quality, or other issues, and the business now finds itself having invested thousands of dollars into an e-commerce site tied to a crucial domain name that its vendor owns and controls.
Just as issues arise as to domain name ownership, there can be issues as to the ownership of the source code that makes up the Web site. Many smaller businesses may contract out for the development of their Web sites and may rely upon oral contracts or contracts comprised of oral and electronic mail exchanges. These informal agreements leave much to be desired and are rife with ambiguity.
Businesses may assume that they own the Web site’s source code when indeed that title remains with the Web developer. This ownership issue can create problems where the ongoing maintenance of the Web site remains tied to the Web developer, perhaps at an inappropriate price for the business. Even where formal Web development contracts are executed between the parties, these may be drafted to the Web developer’s advantage, and ownership rights may not transfer under those agreements.
Many Web site developers now use Open Source tools for their development activities. There are many dozens of Open Source license agreements that govern what can be done with the Web sites and other products that result from the use of various Open Source components. These agreements may permit some ownership rights to be transferred to the business purchasing the Web site development services.
More frequently, however, these agreements prohibit or severely restrict the transfer of ownership rights. (Indeed, version 3.0 of the GNU General Public License is far more restrictive in this regard than version 2.0.) This means that a business may pay a Web developer to create a certain look-and-feel or special navigational aids for the Web site, but may not have absolute or any ownership rights therein. In such an instance, the business may have no ability to legally prohibit the Web developer’s use of that customization for subsequent clients.
Intellectual Property Liability
Business owners may select corporate names and purchase domain names for their businesses without considering whether the effect that selection may have on their risk profiles. For example, the selection of a corporate or domain name may infringe upon existing trademark rights. If it does not infringe an existing mark outright, the company may still face liability from allegations that the domain name dilutes the value of famous trademarks.
Copyright infringement is another concern principally regarding the content of the Web site. Here, there are issues as to whether the textual content of the site was copied from another source. Images and other graphical or visual content on the Web pages may be purchased through Web sites like BigStockImages.com. Because the license agreements that govern those purchases are generally very one-sided to favor the purveyor of that content, one must exercise care to understand and retain a record of the agreement and to ensure that the content is being used in accordance with the terms of the agreement. For example, the inbound license agreement may permit the use of the purchased images online, but not in printed collateral marketing materials.
Terms of Use
Many businesses fail to set forth on their Web sites the terms of use that govern the Web visitors use of the sites. Others may incorporate some terms of use in the text of some Web pages, but may not set forth a single contract encompassing all use of the site. Still others may have terms of use that deal with more traditional aspects of a brick-and-mortar business, such as return policies, but may not consider the intellectual property aspects of the business’ online presence. As an example, the Web site may set forth an invitation to call a contact person for licensing the business’ trademarks. Such vague language engenders the position that a mere phone call to the named individual suffices for the caller to obtain a royalty-free, inbound license to the logos contained in, and often easily copied from, the Web site.
Linking policies are another contractual control that businesses often fail to include. These policies set for the terms under which other Web sites can link to the business’ Web site. Absent these policies, linking may occur freely, and the business may find itself associated with Web sites offering questionable health remedies and other products or services not to the business’ liking.
Privacy Matters
Web sites may collect information about visitors, whether through an online registration or order form or secretly through the capture of the visitor’s Internet protocol, or IP, address. Businesses often fail to put consumers on notice that these data are being gathered and as to the uses to which the data will be put. This opens the door for disclosures of consumer information that can lead to unsolicited email complaints and identity theft. Further, where the Web site may attract youthful populations, federal law requires parental consent and other important measures to protect children and their privacy.[2]
Advertising Claims
Just as in the real world, consumer protection laws govern claims made in advertising, testimonials, statements comparing competitive products, and more. Because the Internet puts these claims in the global arena, international, federal, foreign domestic, and a variety of state laws may apply. Businesses must carefully weigh the costs and the benefits in the form of risk avoidance presented by the potentially applicable patchwork of laws. Fortunately, federal and state consumer protection laws in the United States are harmonized to a significant degree. The harmonization is not complete, however.
Conclusion
Web sites present an abundance of legal issues for consideration. Some, such as the issues presented by linking policies, are wholly unique to the Internet. Other issues are more traditional in nature, but emerge in new and thought-provoking ways in application to Web sites. We hope this article serves as a useful issue-spotting guide to entrepreneurs and businesses.
[1] Netcraft, October 2007 Web Server Survey, http://news.netcraft.com/archives/2007/10/index.html (visited Mar. 23, 2008); Netcraft, New York Internet and ThePlanet Most Reliable Hosting Companies in December 2006,(visited Nov. 7, 2007).
[2] See generally Federal Trade Commission, Implementing the Children’s Online Privacy Protection Act: A Report to Congress (Feb. 2007).
RESOURCE NOTES:
BigStockImages.com offers some terrific resources, including links to free images and tutorials. Check it out here.
Netcraft, cited in the first paragraph, is a great resource for Web-based statistics to include in business plans and pro forma analyses. This English company offers useful statistics worldwide. For an overview and to a newsletter sign-up, click here.
We hope the information here will be helpful to you. Please note, however, that, as always, information posted on this blog does not constitute legal advice, and your visits to this blog or contacts to us regarding the information posted here do not establish an attorney-client relationship. For more information, please contact us at 208.939.4472 or info@technologylawgroup.com.
Up-front attention to these issues when Web sites are first being developed and hosted can save time, money, and legal wrangling later. Here, Benjamin Franklin was right! "An ounce of prevention is worth a pound of cure."
Read on for some of the important legal issues to consider regarding Web sites. Also, check out the Resource Notes at the bottom.
Ownership and Control
One may view Internet domain names as a form of intellectual property, that is, an intangible property right belonging exclusively to the owner of that right. One establishes the property right by registration with a domain name registrar, such as NSI (formerly Network Solutions, Inc.), or by purchasing the domain name from an intermediary or auction sites, such as SnapNames.com. As strange as it may seem in dealing with a property right, the ownership and control of Web sites are common problems faced by many businesses.
For example, individuals may purchase an existing business, believing that the domain name by which that business is promoted online was part of the acquired business. They may later discover that title to the domain name, i.e., the registration, did not rest with the seller, but rather with the business’s former Web site developer, who decides to try to usurp the value of the business for his own aims or to leverage his control of the essential domain name to extract exorbitant Web hosting or other fees from the new owners.
Other businesses may hire a marketing or Web development company to acquire one or more domains and to build a Web site for it. Conflicts arise over payment, quality, or other issues, and the business now finds itself having invested thousands of dollars into an e-commerce site tied to a crucial domain name that its vendor owns and controls.
Just as issues arise as to domain name ownership, there can be issues as to the ownership of the source code that makes up the Web site. Many smaller businesses may contract out for the development of their Web sites and may rely upon oral contracts or contracts comprised of oral and electronic mail exchanges. These informal agreements leave much to be desired and are rife with ambiguity.
Businesses may assume that they own the Web site’s source code when indeed that title remains with the Web developer. This ownership issue can create problems where the ongoing maintenance of the Web site remains tied to the Web developer, perhaps at an inappropriate price for the business. Even where formal Web development contracts are executed between the parties, these may be drafted to the Web developer’s advantage, and ownership rights may not transfer under those agreements.
Many Web site developers now use Open Source tools for their development activities. There are many dozens of Open Source license agreements that govern what can be done with the Web sites and other products that result from the use of various Open Source components. These agreements may permit some ownership rights to be transferred to the business purchasing the Web site development services.
More frequently, however, these agreements prohibit or severely restrict the transfer of ownership rights. (Indeed, version 3.0 of the GNU General Public License is far more restrictive in this regard than version 2.0.) This means that a business may pay a Web developer to create a certain look-and-feel or special navigational aids for the Web site, but may not have absolute or any ownership rights therein. In such an instance, the business may have no ability to legally prohibit the Web developer’s use of that customization for subsequent clients.
Intellectual Property Liability
Business owners may select corporate names and purchase domain names for their businesses without considering whether the effect that selection may have on their risk profiles. For example, the selection of a corporate or domain name may infringe upon existing trademark rights. If it does not infringe an existing mark outright, the company may still face liability from allegations that the domain name dilutes the value of famous trademarks.
Copyright infringement is another concern principally regarding the content of the Web site. Here, there are issues as to whether the textual content of the site was copied from another source. Images and other graphical or visual content on the Web pages may be purchased through Web sites like BigStockImages.com. Because the license agreements that govern those purchases are generally very one-sided to favor the purveyor of that content, one must exercise care to understand and retain a record of the agreement and to ensure that the content is being used in accordance with the terms of the agreement. For example, the inbound license agreement may permit the use of the purchased images online, but not in printed collateral marketing materials.
Terms of Use
Many businesses fail to set forth on their Web sites the terms of use that govern the Web visitors use of the sites. Others may incorporate some terms of use in the text of some Web pages, but may not set forth a single contract encompassing all use of the site. Still others may have terms of use that deal with more traditional aspects of a brick-and-mortar business, such as return policies, but may not consider the intellectual property aspects of the business’ online presence. As an example, the Web site may set forth an invitation to call a contact person for licensing the business’ trademarks. Such vague language engenders the position that a mere phone call to the named individual suffices for the caller to obtain a royalty-free, inbound license to the logos contained in, and often easily copied from, the Web site.
Linking policies are another contractual control that businesses often fail to include. These policies set for the terms under which other Web sites can link to the business’ Web site. Absent these policies, linking may occur freely, and the business may find itself associated with Web sites offering questionable health remedies and other products or services not to the business’ liking.
Privacy Matters
Web sites may collect information about visitors, whether through an online registration or order form or secretly through the capture of the visitor’s Internet protocol, or IP, address. Businesses often fail to put consumers on notice that these data are being gathered and as to the uses to which the data will be put. This opens the door for disclosures of consumer information that can lead to unsolicited email complaints and identity theft. Further, where the Web site may attract youthful populations, federal law requires parental consent and other important measures to protect children and their privacy.[2]
Advertising Claims
Just as in the real world, consumer protection laws govern claims made in advertising, testimonials, statements comparing competitive products, and more. Because the Internet puts these claims in the global arena, international, federal, foreign domestic, and a variety of state laws may apply. Businesses must carefully weigh the costs and the benefits in the form of risk avoidance presented by the potentially applicable patchwork of laws. Fortunately, federal and state consumer protection laws in the United States are harmonized to a significant degree. The harmonization is not complete, however.
Conclusion
Web sites present an abundance of legal issues for consideration. Some, such as the issues presented by linking policies, are wholly unique to the Internet. Other issues are more traditional in nature, but emerge in new and thought-provoking ways in application to Web sites. We hope this article serves as a useful issue-spotting guide to entrepreneurs and businesses.
[1] Netcraft, October 2007 Web Server Survey, http://news.netcraft.com/archives/2007/10/index.html (visited Mar. 23, 2008); Netcraft, New York Internet and ThePlanet Most Reliable Hosting Companies in December 2006,
[2] See generally Federal Trade Commission, Implementing the Children’s Online Privacy Protection Act: A Report to Congress (Feb. 2007).
RESOURCE NOTES:
BigStockImages.com offers some terrific resources, including links to free images and tutorials. Check it out here.
Netcraft, cited in the first paragraph, is a great resource for Web-based statistics to include in business plans and pro forma analyses. This English company offers useful statistics worldwide. For an overview and to a newsletter sign-up, click here.
We hope the information here will be helpful to you. Please note, however, that, as always, information posted on this blog does not constitute legal advice, and your visits to this blog or contacts to us regarding the information posted here do not establish an attorney-client relationship. For more information, please contact us at 208.939.4472 or info@technologylawgroup.com.
Saturday, March 22, 2008
Responsible Business Conduct in China
As a member of the American Bar Association's China Committee, I keep a close eye on trends and legal and political developments in that vital and expanding, but challenging, market.
One of the biggest challenges in China is that there are significant differences between Chinese political and ethical philosophy and western perspectives of democracy and of what constitutes fair and responsible business conduct.
The Organisation for Economic Co-operation and Development (OECD) is working to reconcile those differences and to bring China more fully within the community of nations governed by the rule of law and responsible business practices. Toward those ends, the OECD recently released for comment its draft report, entitled "China-OECD Project on Government Approaches to Encouraging Responsible Business Conduct."
Please read on for more about the report, including my review of intellectual property issues. This blog also contains link and, at the bottom of the posting, Resources Notes to direct you to other invaluable sources of information and assistance. For more about OECD's role in the creation and harmonization of international commercial law, check out another of my postings here.
More on the OECD Draft Report
Labor rights, food and health safety, and environmental protection predominate in this draft. The prominence of these issues should telegraph to American and other companies that there are opportunities for them to align their China ventures with these hot button and high profile issues and to thereby build greater leverage in that challenging market.
This report, in final form, should continue to motivate China to adopt business practices that more closely comport with western standards for transparency and free markets. As with increasing intellectual property protections in their country, the pragmatic Chinese should be increasingly motivated by the realization that such standards are good for business.
Read on for my comments on intellectual property protections and other highlights from my review of the report.
Intellectual Property Protection
Intellectual property protections are conspicuously inadequate in the text of the draft report. The report contains three minor references. That said, the two referenced IP protection requirements of the Shenzhen Stock Exchange have the potential to increase respect for intellectual property rights as Chinese companies increasingly move to access capital through the financial markets.
In Paragraphs 173-74, the report discusses a dispute resolution mechanism in China, called "conciliation," that is not present in many other jurisdictions. There is a specific conciliation procedure for intellectual property disputes, but the report does not elaborate. It does list a variety of dispute resolution and arbitration bodies in which China cooperates, including, via cooperation agreements, with conciliation centers in New York and Hamburg.
The only other mentions of intellectual property protection are in the report's Annex 1, which reproduces the Shenzhen Stock Exchange's Social Responsibility Instructions of Listed Companies, dated September 25, 2006.
In Article 4, those Instructions state that listed companies should not infringe upon the intellectual property rights of others, but this requirement is notably drafted so as NOT to mandatory.
Article 20 of those Instructions does include mandatory "shall not infringe" language, but limits that prohibition on infringement to the rights of the listed companies' customers and suppliers. Of course, one can see that such a mandate only reflects good business sense and not any inherent respect for intellectual property rights in general. Customers and suppliers naturally have degrees of leverage in their relationships with Chinese companies, and infringements of customers and suppliers' intellectual property rights can have the very practical effects of injuring the Chinese company that engages in such conduct. Regrettably, the pragmatism for which Chinese companies and business leaders are so renowned apparently does not yet encompass third-party intellectual property rights, and neither does the Instructions' mandate.
Other Comments on Review
Paragraph 3. The OECD report states that the Chinese government is "strongly encouraging" Chinese businesses to adhere to high standards of behavior. It states that the latest Company Law encompasses principles of responsible business conduct (RBC) by requiring companies to comply with applicable law and social and business morality. It gives, as an example, of a code of conduct established for the Chinese textile industry, long known for its sweat shop operations.
Paragraphs 71-80. The report gives an excellent backgrounder on key aspects of Chinese philosophy and business culture and the influence of these inherent characteristics upon the view and adoption of international, and largely westernized, standards of responsible business practices. In our China-focused competitive intelligence work, we have seen these forces at work, particularly within large family-owned enterprises in the high tech sector, or what we call "industrial dynasties," and within state-owned enterprises and those closely tied by indirect ownership to the Chinese government, such as Lenovo, which acquired IBM's personal computer business in 2005.
Paragraphs 148-58. Transparency is an essential component to compliance with and enforcement of responsible business practices. The OECD report provides a concise history of the development of China's Company Law, Accounting Law, and other laws, regulations, and initiatives geared toward the promotion of transparency within Chinese companies. The report also discusses the importance of competitive intelligence in making good business decisions for the China market. See Resource Note below.
Paragraphs 159-77. Here, the report documents the key ways in which the Chinese government can promote and ensure the adoption of responsible business conduct by countries operating in that country. Among the ways discussed are further development of the Chinese legal system, increased education of its business professionals, independence of the Chinese judiciary, and better collaboration with the international community. The ABA China Committee has been active in such collaborations and in facilitating the development of Chinese legal system and the independence of its courts.
Box 10 & Paragraphs 186-87. The report lists relevant United Nations Conventions to which China is a party and, tellingly, not yet a party. It has, for example, agreed to the United Nations Convention Against Corruption, but not to certain conventions protecting the rights of women.
Table 2 & Paragraph 198-203. Chinese corporations are beginning to publish annual RBC reports. Table 2 lists sixteen (16) domestic Chinese companies and eight (8) foreign-invested Chinese enterprises (FICEs) that the Chinese Enterprise Confederation says filed 2007 RBC reports. The domestic companies include huge cell phone makers, white goods giant, Haier, whose magnificent central building in Quingdao is pictured above, chemical companies, water suppliers, and financial institutions. The FICEs include big name American, European, and Japanese companies, such as Ford, Peugot, Sony, and Toshiba.
Unfortunately, CFC does not make any of these RBC reports available online. Haier, for instance, likewise does not publish its report online.
The draft report is unpublished. If you would like a copy, please contact us at +1.208.939.4472 or info@technologylawgroup.com.
RESOURCE NOTES:
On the subject of competitive intelligence, the U.S. Department of Commerce operates the U.S. Commercial Service for the purpose of assisting American companies find, evaluate, and obtain businesses partners around the world. This source of competitive intelligence is both invaluable and affordable. To learn more, check out the U.S. Commercial Service in Boise. For contact information for Director Amy Benson, click here.
For a current list of bilateral agreements that the United States has with China, check out the Treaties in Force, last published by the U.S. Department of State in November 2007. The listing for China is on Pages 16-19. Listings for China's Special Administrative Regions of Hong Kong and Macao are on Pages 19-20.
One of the biggest challenges in China is that there are significant differences between Chinese political and ethical philosophy and western perspectives of democracy and of what constitutes fair and responsible business conduct.
The Organisation for Economic Co-operation and Development (OECD) is working to reconcile those differences and to bring China more fully within the community of nations governed by the rule of law and responsible business practices. Toward those ends, the OECD recently released for comment its draft report, entitled "China-OECD Project on Government Approaches to Encouraging Responsible Business Conduct."
Please read on for more about the report, including my review of intellectual property issues. This blog also contains link and, at the bottom of the posting, Resources Notes to direct you to other invaluable sources of information and assistance. For more about OECD's role in the creation and harmonization of international commercial law, check out another of my postings here.More on the OECD Draft Report
Labor rights, food and health safety, and environmental protection predominate in this draft. The prominence of these issues should telegraph to American and other companies that there are opportunities for them to align their China ventures with these hot button and high profile issues and to thereby build greater leverage in that challenging market.
This report, in final form, should continue to motivate China to adopt business practices that more closely comport with western standards for transparency and free markets. As with increasing intellectual property protections in their country, the pragmatic Chinese should be increasingly motivated by the realization that such standards are good for business.
Read on for my comments on intellectual property protections and other highlights from my review of the report.
Intellectual Property Protection
Intellectual property protections are conspicuously inadequate in the text of the draft report. The report contains three minor references. That said, the two referenced IP protection requirements of the Shenzhen Stock Exchange have the potential to increase respect for intellectual property rights as Chinese companies increasingly move to access capital through the financial markets.
In Paragraphs 173-74, the report discusses a dispute resolution mechanism in China, called "conciliation," that is not present in many other jurisdictions. There is a specific conciliation procedure for intellectual property disputes, but the report does not elaborate. It does list a variety of dispute resolution and arbitration bodies in which China cooperates, including, via cooperation agreements, with conciliation centers in New York and Hamburg.
The only other mentions of intellectual property protection are in the report's Annex 1, which reproduces the Shenzhen Stock Exchange's Social Responsibility Instructions of Listed Companies, dated September 25, 2006.
In Article 4, those Instructions state that listed companies should not infringe upon the intellectual property rights of others, but this requirement is notably drafted so as NOT to mandatory.
Article 20 of those Instructions does include mandatory "shall not infringe" language, but limits that prohibition on infringement to the rights of the listed companies' customers and suppliers. Of course, one can see that such a mandate only reflects good business sense and not any inherent respect for intellectual property rights in general. Customers and suppliers naturally have degrees of leverage in their relationships with Chinese companies, and infringements of customers and suppliers' intellectual property rights can have the very practical effects of injuring the Chinese company that engages in such conduct. Regrettably, the pragmatism for which Chinese companies and business leaders are so renowned apparently does not yet encompass third-party intellectual property rights, and neither does the Instructions' mandate.
Other Comments on Review
Paragraph 3. The OECD report states that the Chinese government is "strongly encouraging" Chinese businesses to adhere to high standards of behavior. It states that the latest Company Law encompasses principles of responsible business conduct (RBC) by requiring companies to comply with applicable law and social and business morality. It gives, as an example, of a code of conduct established for the Chinese textile industry, long known for its sweat shop operations.
Paragraphs 71-80. The report gives an excellent backgrounder on key aspects of Chinese philosophy and business culture and the influence of these inherent characteristics upon the view and adoption of international, and largely westernized, standards of responsible business practices. In our China-focused competitive intelligence work, we have seen these forces at work, particularly within large family-owned enterprises in the high tech sector, or what we call "industrial dynasties," and within state-owned enterprises and those closely tied by indirect ownership to the Chinese government, such as Lenovo, which acquired IBM's personal computer business in 2005.
Paragraphs 148-58. Transparency is an essential component to compliance with and enforcement of responsible business practices. The OECD report provides a concise history of the development of China's Company Law, Accounting Law, and other laws, regulations, and initiatives geared toward the promotion of transparency within Chinese companies. The report also discusses the importance of competitive intelligence in making good business decisions for the China market. See Resource Note below.
Paragraphs 159-77. Here, the report documents the key ways in which the Chinese government can promote and ensure the adoption of responsible business conduct by countries operating in that country. Among the ways discussed are further development of the Chinese legal system, increased education of its business professionals, independence of the Chinese judiciary, and better collaboration with the international community. The ABA China Committee has been active in such collaborations and in facilitating the development of Chinese legal system and the independence of its courts.
Box 10 & Paragraphs 186-87. The report lists relevant United Nations Conventions to which China is a party and, tellingly, not yet a party. It has, for example, agreed to the United Nations Convention Against Corruption, but not to certain conventions protecting the rights of women.
Table 2 & Paragraph 198-203. Chinese corporations are beginning to publish annual RBC reports. Table 2 lists sixteen (16) domestic Chinese companies and eight (8) foreign-invested Chinese enterprises (FICEs) that the Chinese Enterprise Confederation says filed 2007 RBC reports. The domestic companies include huge cell phone makers, white goods giant, Haier, whose magnificent central building in Quingdao is pictured above, chemical companies, water suppliers, and financial institutions. The FICEs include big name American, European, and Japanese companies, such as Ford, Peugot, Sony, and Toshiba.
Unfortunately, CFC does not make any of these RBC reports available online. Haier, for instance, likewise does not publish its report online.
The draft report is unpublished. If you would like a copy, please contact us at +1.208.939.4472 or info@technologylawgroup.com.
RESOURCE NOTES:
On the subject of competitive intelligence, the U.S. Department of Commerce operates the U.S. Commercial Service for the purpose of assisting American companies find, evaluate, and obtain businesses partners around the world. This source of competitive intelligence is both invaluable and affordable. To learn more, check out the U.S. Commercial Service in Boise. For contact information for Director Amy Benson, click here.
For a current list of bilateral agreements that the United States has with China, check out the Treaties in Force, last published by the U.S. Department of State in November 2007. The listing for China is on Pages 16-19. Listings for China's Special Administrative Regions of Hong Kong and Macao are on Pages 19-20.
The Odyssey: One Woman Attorney's Journey in Entrepreneurship
Homer’s Odyssey, circa 700 B.C., is an epic story of heroic struggle and adventure, of creative intelligence, and of commitment in the darkest of times. It weaves a tangled, tragic, and ultimately triumphant tale of the hero’s journey home after the long Trojan War.
So influential on Western culture, the writing’s title, Odyssey, has become a word in English meaning an ambitious, classic, larger-than-life journey. A short synopsis demonstrates why.
Our hero is the shrewd and intelligent Odysseus. He leaves his wife, Penelope, and his infant son to fight for ten years in the Trojan War. The journey home takes our hero another ten years during which Athena, goddess of heroic endeavor and wisdom, protects him and the sea god Poseidon punishes him. Storms drive Odysseus’ fleet off course, and the monster Cyclops captures Odysseus and his sailors.
Odysseus escapes and Aeolus bestows upon him a precious gift, a bag containing all the winds to carry our hero and his fellows safely home. The foolish fellows, however, open the bag while Odysseus sleeps, the gift forever lost and Aeolus disinclined to bestow another.
Later, the cannibal Laestrygones destroys the entire company except Odysseus and his crew. Potions then turn most of the crew into swine. Our hero resists the potion, thanks to intercession by the god Hermes and bringing Odysseus into the favor of Circe, the witch-goddess, who gives him rest and frees his men. A year passes thus.
Odyssey then travels to the world’s westernmost reaches where he makes sacrifices and invokes help from the spirits. After receiving spiritual guidance, he travels back to Circe’s island and, with her aid, avoids and overcomes many perils: the Sirens; the hydra-headed monster, and the whirlpool.
Disaster rains again, however, when Odysseus’ men ignore warnings about hunting sacred cows belonging to Helios, the sun god. Outraged, Helios wrecks their ship. All but Odysseus drown. Finding him washed ashore on her island, the goddess Calypso helps Odyssey, but compels him to stay for seven years.
Finally escaping, our hero is befriended by the Phaeacians who, enthralled by his story, help him home to Ithaca. After unraveling intrigues at home, Odysseus eventually makes himself known to Penelope, and they reunite, our hero’s journey completed.
To the American author Joseph Campbell, Odyssey and other legendary stories of struggle and triumph have larger and timeless meaning. In his 1949 seminal book, The Hero with a Thousand Faces, Campbell examines the patterns in these mythical stories of heroism and considers the universal truths that they convey about an individual’s journey of self-discovery and self-transcendence, his or her role within society, and the interplay between that personal journal and one’s societal role. As Campbell and others observed, these stories exhibit the same sequence of events and can be viewed as telling the same story, the so-called monomyth.
The monomyth has a recognizable pattern. It begins with a call to adventure, which our hero must accept or decline. The adventure then takes our hero on a road of trials as to which he or she succeeds or fails. Our hero achieves his or her goal, viewed as a boon in the monomyth, and thereby often gains vital knowledge of him- or herself. Success or failure then awaits our hero as he or she returns to the ordinary world. The hero’s return heralds one of the real triumphs of the hero’s journey when the hero improves the world by using or applying the boon.
Campbell encapsulates the monomyth thusly: “A hero ventures forth from the world of common day into a region of supernatural wonder. Fabulous forces are there encountered, and a decisive victory is won. The hero comes back from this mysterious adventure with the power to bestow boons on his fellow man.”[i]
Gender references aside, lawyers in entrepreneurial practices and other endeavors can relate to the monomyth, the hero’s journey, the odyssey. For women in male-dominated professions, like law, technology, and the sciences, the entrepreneurial journey often seems more gargantuan and overwhelming. There seem to be fewer gods to intercede on our behalves and help us along the way, although there are some truly golden ones out there. There certainly are more evil monsters to outwit and battle as bitter experience reveals.
One of the more difficult parts of the entrepreneurial journey, the hero’s journey, for women, is perhaps however that because we are women, there are fewer mapmakers, fewer course-charters, fewer pathfinders and pioneers who have traveled the ways before us and have bequeathed us the maps, business experiences, social and business networks, the tricks of the trade that we need to succeed. In many ways, being an entrepreneurial woman attorney is uncharted territory, a journey to the westernmost reaches of the world.
It is not a journey for everyone. Real and perceived risk is part of the landscape, and to journey through the entrepreneurial odyssey, one must face this risk, manage it, and work to minimize it. Eleanor Roosevelt, one of our first women political leaders, said: “You gain strength, courage and confidence in every experience in which you really stop to look fear in the face. . . . You must do the thing you think you cannot do.”[ii] Succinctly put, you’ve got to gut it out.
Catalyst, the nation’s leading women’s research organization, and the National Association of Women Business Owners (NAWBO) have conducted comparative research to analyses of risk-taking by female entrepreneurs and their male counterparts. A recent NAWBO study revealed that women entrepreneurs are substantially more likely than men to take risk investing in their respective companies. In addition, more than seventy percent (70%) of those female risk-takers reported success in their investments.[iii]
Not only is the hero’s journey fraught with risk, it is not one characterized by the lack of failures, betrayals, reversals of fortune, and other monstrous events. Being an entrepreneurial female attorney is a singular endeavor and, like the experiences of our sisters in science and technology, one that the singularity of which seems to render more visible to those we aspire to serve, collaborate with, and influence.
For this reason and because we have so few role models among the ranks of female attorneys, scientists, and engineers, it is perhaps a natural response to question one’s own judgment, common sense, and intuition when these trials occur. What is more helpful, productive, and imminently more liberating than such self-flagellation is a correction to one’s thinking and the realization that these events are learnings. Painful, destructive, and infuriating, yes, they are. When we gleam these learnings, however, we take away knowledge and the wisdom of experience so that we can avoid or overcome murderous monsters and painful events in the years to come. As a good friend and sister small business founder says, she has a master’s degree from the school of hard knocks. I know precisely what she means.
So what is it that drives a person, much less a woman scientist-technologist-attorney, to undertake the odyssey? Even a golden god has advised at least one former entrepreneur not to start a business, in that instance, a technology business. He said that the personal costs were just too high. Floored upon hearing that advice, I asked him why then did he co-found his huge technology company? The answer: “We had to.” Apparently, he and his fellow co-founders were attempting a product for which they could not locate an integrated circuit component that would perform the required functions, and they were dead set on making that product.
In looking forward to the beginning of our sixth year in business at Technology Law Group, I realize that my answer to the why is just that: I had to.
The “had to” came in when I began looking for employment toward the end of my deeply appreciated clerkship for the Honorable SergÃo Gutierrez at Idaho’s Court of Appeals. Opportunities presented themselves, but at an unacceptably low rate of pay. Other firms, even ones that professed to know better, responded with a resounding lack of resonance to my stated goal to have a technology-focused legal practice. Partners at other firms understood my vision, but had no positions then open for a beginning lawyer, if experienced technology professional.
Although highly desirous of remaining in Idaho, the odds of doing so looked increasingly slim. In attempting to gently break the news of our possible relocation to my family, it was indeed the then-seven-year-old love of my life who laid down the law and emphatically informed me, “I’m an Idaho spud, mama, and I’m not moving!”
Oddly enough, that funny little episode seemed to set things straight. It had to. Shortly thereafter, the kindest of mentors, a skilled gentlemanly in-house intellectual property attorney and another of the golden gods, and his principle clients, more golden gods, made the most remarkable opportunity available to me. With that, Technology Law Group was born, humbly in the spare bedroom, but born nonetheless.
As I have learned and now believe, chance favors a prepared mind, and serendipitous events have a special way of unfolding when one follows a course of integrity and hard work. I was perfectly prepared and willing to work hard, very hard and very creatively. Great good fortune came my way. I reached out and grabbed it, and I have never, well, almost never, looked back.[iv]
I have a second answer to the why question: I wanted to.
All of my life from the time I was a little, snaggle-toothed girl on the farm, collecting eggs and tadpoles, until today, I have had an unquenchable curiosity, a keen intellect, and an all-embracing passion to know. This love of learning drove me from a successful, but in the end, predictable profession in technology marketing and health care administration. It drove to multiple jobs because, well, I just grew bored.
Today, I work with virtual and real multimillionaires, young and young-at-heart software programmers who have figured out have to crack a nut and make a tidy sum, large companies and institutions in the thrilling process of transforming themselves into beacons of industrial and academic leadership, and mid-sized businesses in legacy industries becoming paragons in the new knowledge-based economy. I work with engineers of all types, geneticists, researchers, lawyers around the world and in organizations here at home, economic development professionals, linguists, librarians, technology advocates in and out of government, students, and geeks extraordinaire.
These people and their work thrill me. I am deeply passionate about what they do and about what I and my treasured team do to support them in their own passions for excellence. Perhaps I am Odysseus, called upon now to feast and then to suffer, but always to toil, create, discover, build, and grow, always to journey toward that place I call home.
Here in beautiful, becoming Idaho, in my own private Idaho, I am grateful for the days now and in the future when I can give back all that I have learned, all my boons, to those who will benefit the most: the learners, my colleagues, the entrepreneurs, the creative, the women who will follow me, the brave undaunted. Then I can say that I have truly arrived home.
[i] Joseph Campbell, The Hero with a Thousand Faces 30 (1949).
[ii] Eleanor Roosevelt, You Learn by Living 29-30 (1960).
[iii] Lois P. Frankel, See Jane Lead: 99 Ways for Women to Take Charge at Work 56 (2007).
[iv] The almost, I credit to the monsters.
So influential on Western culture, the writing’s title, Odyssey, has become a word in English meaning an ambitious, classic, larger-than-life journey. A short synopsis demonstrates why.
Our hero is the shrewd and intelligent Odysseus. He leaves his wife, Penelope, and his infant son to fight for ten years in the Trojan War. The journey home takes our hero another ten years during which Athena, goddess of heroic endeavor and wisdom, protects him and the sea god Poseidon punishes him. Storms drive Odysseus’ fleet off course, and the monster Cyclops captures Odysseus and his sailors.
Odysseus escapes and Aeolus bestows upon him a precious gift, a bag containing all the winds to carry our hero and his fellows safely home. The foolish fellows, however, open the bag while Odysseus sleeps, the gift forever lost and Aeolus disinclined to bestow another.
Later, the cannibal Laestrygones destroys the entire company except Odysseus and his crew. Potions then turn most of the crew into swine. Our hero resists the potion, thanks to intercession by the god Hermes and bringing Odysseus into the favor of Circe, the witch-goddess, who gives him rest and frees his men. A year passes thus.
Odyssey then travels to the world’s westernmost reaches where he makes sacrifices and invokes help from the spirits. After receiving spiritual guidance, he travels back to Circe’s island and, with her aid, avoids and overcomes many perils: the Sirens; the hydra-headed monster, and the whirlpool.
Disaster rains again, however, when Odysseus’ men ignore warnings about hunting sacred cows belonging to Helios, the sun god. Outraged, Helios wrecks their ship. All but Odysseus drown. Finding him washed ashore on her island, the goddess Calypso helps Odyssey, but compels him to stay for seven years.
Finally escaping, our hero is befriended by the Phaeacians who, enthralled by his story, help him home to Ithaca. After unraveling intrigues at home, Odysseus eventually makes himself known to Penelope, and they reunite, our hero’s journey completed.
To the American author Joseph Campbell, Odyssey and other legendary stories of struggle and triumph have larger and timeless meaning. In his 1949 seminal book, The Hero with a Thousand Faces, Campbell examines the patterns in these mythical stories of heroism and considers the universal truths that they convey about an individual’s journey of self-discovery and self-transcendence, his or her role within society, and the interplay between that personal journal and one’s societal role. As Campbell and others observed, these stories exhibit the same sequence of events and can be viewed as telling the same story, the so-called monomyth.
The monomyth has a recognizable pattern. It begins with a call to adventure, which our hero must accept or decline. The adventure then takes our hero on a road of trials as to which he or she succeeds or fails. Our hero achieves his or her goal, viewed as a boon in the monomyth, and thereby often gains vital knowledge of him- or herself. Success or failure then awaits our hero as he or she returns to the ordinary world. The hero’s return heralds one of the real triumphs of the hero’s journey when the hero improves the world by using or applying the boon.
Campbell encapsulates the monomyth thusly: “A hero ventures forth from the world of common day into a region of supernatural wonder. Fabulous forces are there encountered, and a decisive victory is won. The hero comes back from this mysterious adventure with the power to bestow boons on his fellow man.”[i]
Gender references aside, lawyers in entrepreneurial practices and other endeavors can relate to the monomyth, the hero’s journey, the odyssey. For women in male-dominated professions, like law, technology, and the sciences, the entrepreneurial journey often seems more gargantuan and overwhelming. There seem to be fewer gods to intercede on our behalves and help us along the way, although there are some truly golden ones out there. There certainly are more evil monsters to outwit and battle as bitter experience reveals.
One of the more difficult parts of the entrepreneurial journey, the hero’s journey, for women, is perhaps however that because we are women, there are fewer mapmakers, fewer course-charters, fewer pathfinders and pioneers who have traveled the ways before us and have bequeathed us the maps, business experiences, social and business networks, the tricks of the trade that we need to succeed. In many ways, being an entrepreneurial woman attorney is uncharted territory, a journey to the westernmost reaches of the world.
It is not a journey for everyone. Real and perceived risk is part of the landscape, and to journey through the entrepreneurial odyssey, one must face this risk, manage it, and work to minimize it. Eleanor Roosevelt, one of our first women political leaders, said: “You gain strength, courage and confidence in every experience in which you really stop to look fear in the face. . . . You must do the thing you think you cannot do.”[ii] Succinctly put, you’ve got to gut it out.
Catalyst, the nation’s leading women’s research organization, and the National Association of Women Business Owners (NAWBO) have conducted comparative research to analyses of risk-taking by female entrepreneurs and their male counterparts. A recent NAWBO study revealed that women entrepreneurs are substantially more likely than men to take risk investing in their respective companies. In addition, more than seventy percent (70%) of those female risk-takers reported success in their investments.[iii]
Not only is the hero’s journey fraught with risk, it is not one characterized by the lack of failures, betrayals, reversals of fortune, and other monstrous events. Being an entrepreneurial female attorney is a singular endeavor and, like the experiences of our sisters in science and technology, one that the singularity of which seems to render more visible to those we aspire to serve, collaborate with, and influence.
For this reason and because we have so few role models among the ranks of female attorneys, scientists, and engineers, it is perhaps a natural response to question one’s own judgment, common sense, and intuition when these trials occur. What is more helpful, productive, and imminently more liberating than such self-flagellation is a correction to one’s thinking and the realization that these events are learnings. Painful, destructive, and infuriating, yes, they are. When we gleam these learnings, however, we take away knowledge and the wisdom of experience so that we can avoid or overcome murderous monsters and painful events in the years to come. As a good friend and sister small business founder says, she has a master’s degree from the school of hard knocks. I know precisely what she means.
So what is it that drives a person, much less a woman scientist-technologist-attorney, to undertake the odyssey? Even a golden god has advised at least one former entrepreneur not to start a business, in that instance, a technology business. He said that the personal costs were just too high. Floored upon hearing that advice, I asked him why then did he co-found his huge technology company? The answer: “We had to.” Apparently, he and his fellow co-founders were attempting a product for which they could not locate an integrated circuit component that would perform the required functions, and they were dead set on making that product.
In looking forward to the beginning of our sixth year in business at Technology Law Group, I realize that my answer to the why is just that: I had to.
The “had to” came in when I began looking for employment toward the end of my deeply appreciated clerkship for the Honorable SergÃo Gutierrez at Idaho’s Court of Appeals. Opportunities presented themselves, but at an unacceptably low rate of pay. Other firms, even ones that professed to know better, responded with a resounding lack of resonance to my stated goal to have a technology-focused legal practice. Partners at other firms understood my vision, but had no positions then open for a beginning lawyer, if experienced technology professional.
Although highly desirous of remaining in Idaho, the odds of doing so looked increasingly slim. In attempting to gently break the news of our possible relocation to my family, it was indeed the then-seven-year-old love of my life who laid down the law and emphatically informed me, “I’m an Idaho spud, mama, and I’m not moving!”
Oddly enough, that funny little episode seemed to set things straight. It had to. Shortly thereafter, the kindest of mentors, a skilled gentlemanly in-house intellectual property attorney and another of the golden gods, and his principle clients, more golden gods, made the most remarkable opportunity available to me. With that, Technology Law Group was born, humbly in the spare bedroom, but born nonetheless.
As I have learned and now believe, chance favors a prepared mind, and serendipitous events have a special way of unfolding when one follows a course of integrity and hard work. I was perfectly prepared and willing to work hard, very hard and very creatively. Great good fortune came my way. I reached out and grabbed it, and I have never, well, almost never, looked back.[iv]
I have a second answer to the why question: I wanted to.
All of my life from the time I was a little, snaggle-toothed girl on the farm, collecting eggs and tadpoles, until today, I have had an unquenchable curiosity, a keen intellect, and an all-embracing passion to know. This love of learning drove me from a successful, but in the end, predictable profession in technology marketing and health care administration. It drove to multiple jobs because, well, I just grew bored.
Today, I work with virtual and real multimillionaires, young and young-at-heart software programmers who have figured out have to crack a nut and make a tidy sum, large companies and institutions in the thrilling process of transforming themselves into beacons of industrial and academic leadership, and mid-sized businesses in legacy industries becoming paragons in the new knowledge-based economy. I work with engineers of all types, geneticists, researchers, lawyers around the world and in organizations here at home, economic development professionals, linguists, librarians, technology advocates in and out of government, students, and geeks extraordinaire.
These people and their work thrill me. I am deeply passionate about what they do and about what I and my treasured team do to support them in their own passions for excellence. Perhaps I am Odysseus, called upon now to feast and then to suffer, but always to toil, create, discover, build, and grow, always to journey toward that place I call home.
Here in beautiful, becoming Idaho, in my own private Idaho, I am grateful for the days now and in the future when I can give back all that I have learned, all my boons, to those who will benefit the most: the learners, my colleagues, the entrepreneurs, the creative, the women who will follow me, the brave undaunted. Then I can say that I have truly arrived home.
[i] Joseph Campbell, The Hero with a Thousand Faces 30 (1949).
[ii] Eleanor Roosevelt, You Learn by Living 29-30 (1960).
[iii] Lois P. Frankel, See Jane Lead: 99 Ways for Women to Take Charge at Work 56 (2007).
[iv] The almost, I credit to the monsters.
Rhode Island Traffic Courts
We have completed the traffic courts in Rhode Island section of our traffic court directory site. Well, we think so anyway. At first we missed some municipal courts, but we added them recently and are pretty sure we got them all.So far the busiest page in Rhode Island is the Rhode Island Traffic Court page. It seems like many (but not all) traffic cases are handled in this specialized court.
Thursday, March 20, 2008
Intellectual Property Basics for Entrepreneurs
We serve innovators and entrepreneurs of every stripe here at Technology Law Group. In addition to the representative clients noted below, our entrepreneur clients work in a fascinating variety of industries and markets.
From digital advertising, to green shopping products, to network security software, to smart water sensing technologies, to social investing online, our entrepreneur clients inspire and lead. We enjoy them and their passion for their work tremendously.
When entrepreneurs get started in their businesses, they have and should have many questions about intellectual property (IP), what it means to their competitive advantages, and what it means to building value and staying power in their businesses.
Below are some useful links to answer some of those basic IP questions.
You can also subscribe to this blog for ongoing updates on a variety of intellectual property, Internet, and international legal and business issues.
http://www.uspto.gov/web/offices/com/iip/index.htm
THIS IS THE LINK TO THE UNITED STATES PATENT AND TRADEMARK OFFICE'S (USPTO’s) INVENTOR RESOURCES PAGE. IT PROVIDES FAQs ON BOTH PATENTS AND TRADEMARKS.
http://www.copyright.gov/circs/circ1.html
THIS IS THE LINK TO THE U.S. COPYRIGHT OFFICE’S COPYRIGHT BASICS PAGE.
Representative TLG clients include Fortune 1000 companies ranging from the world’s largest global technology company to one of the world’s largest international construction and weapons and environmental remediation companies; some of Idaho’s largest privately-held companies, including within the state’s legacy industries; non-profit organizations ranging from the nation’s most successful online publisher of health information to small start-up organizations delivering education supplies to Africa; from leading universities and technology transfer agents to a host of entrepreneurial and creative businesses and individuals in a wide variety of industries; and other law and professional firms.
For more information, please contact us at +1.208.939.4472 or info@technologylawgroup.com.
From digital advertising, to green shopping products, to network security software, to smart water sensing technologies, to social investing online, our entrepreneur clients inspire and lead. We enjoy them and their passion for their work tremendously.
When entrepreneurs get started in their businesses, they have and should have many questions about intellectual property (IP), what it means to their competitive advantages, and what it means to building value and staying power in their businesses.
Below are some useful links to answer some of those basic IP questions.
You can also subscribe to this blog for ongoing updates on a variety of intellectual property, Internet, and international legal and business issues.
http://www.uspto.gov/web/offices/com/iip/index.htm
THIS IS THE LINK TO THE UNITED STATES PATENT AND TRADEMARK OFFICE'S (USPTO’s) INVENTOR RESOURCES PAGE. IT PROVIDES FAQs ON BOTH PATENTS AND TRADEMARKS.
http://www.copyright.gov/circs/circ1.html
THIS IS THE LINK TO THE U.S. COPYRIGHT OFFICE’S COPYRIGHT BASICS PAGE.
Representative TLG clients include Fortune 1000 companies ranging from the world’s largest global technology company to one of the world’s largest international construction and weapons and environmental remediation companies; some of Idaho’s largest privately-held companies, including within the state’s legacy industries; non-profit organizations ranging from the nation’s most successful online publisher of health information to small start-up organizations delivering education supplies to Africa; from leading universities and technology transfer agents to a host of entrepreneurial and creative businesses and individuals in a wide variety of industries; and other law and professional firms.
For more information, please contact us at +1.208.939.4472 or info@technologylawgroup.com.
Why Toyota Is Annoying
I've been thinking about getting a new car. My current car, a 2002 Audi A4 is getting too small. There's not enough legroom in the rear for my daughter, due to the booster seat. This is another reason government regulation pushes people into larger vehicles, but I digress. I'd have her in a booster seat anyway.I think I like the Toyota RAV4. I know what I want -- V6, 4WD, 3rd row seat, and a
Wednesday, March 19, 2008
Costs of Trademark Litigation
The cost of trademark litigation is variable and difficult to estimate with precision.
For example, the size and location of the law firm handling the matter affect costs. According to the American Intellectual Property Law Association’s (“AIPLA’s”) 2007 Economic Survey, small firms carry out trademark litigation at significantly lower average costs. In addition, trademark litigation carried out by firms in the Intermountain West costs is vastly less expensive than when carried out by firms elsewhere in the country. Because Technology Law Group is a boutique firm in Idaho specializing in intellectual property, Internet, and international law, we offer both of these costs advantages.
Costs also vary with the litigation’s duration, and shorter litigation means lower costs. The overwhelming majority of trademark cases never go all the way to trial. Most settle or are resolved through summary judgment proceedings. For instance, the online PACER database reveals that 3754 trademark cases were filed in federal court in 2006. A PriceWaterhouseCooper’s survey reported that only 1.5% of such cases went to trial the previous year.
The status and quality of the mark being asserted or defended also affect costs. For example, a long-standing, but merely descriptive mark may be protectable, depending upon its acquired distinctiveness can be proven through evidence of “secondary meaning.” A survey to establish secondary meaning may cost some $20,000.
Costs also depend upon level of legal sophistication of and litigation tactics of the parties and their attorneys. An AIPLA presentation by a large company’s in-house counsel in 2005 put the legal costs to brief and argue an issue before the court at $20,000. Although large companies tend to hire large and very expensive legal firms, the costs associated with briefing and arguing a complex legal issue can still be sizable in smaller and more moderately-priced firms because of the amount of legal research and other work involved.
Although trademark litigation costs are difficult to estimate, the AIPLA 2007 Economic Survey found that where less than $1 million is at risk in the trademark litigation, mean costs are $184,000 through the discovery phase and $327,000 if the litigation is concluded through trial.
As noted above, small firms are more cost-efficient in carrying out trademark litigation. The Survey found that the median costs through the discovery phase ran from $131,000-$200,000 for small firms, as compared with $210,000-$250,000 and $340,000-$500,000 for medium-sized and large firms, respectively. The total costs of these litigations carried through trial ran $239,000-$338,000 for small firms, as compared with $340,000-$500,000 and $443,000-$600,000 for medium-sized and large firms, respectively.
For more information, please contact us at +1.208.939.4472 or info@technologylawgroup.com.
Friday, March 14, 2008
Second Life's Eros Sues for SexGen Copyright Infringement & More
In Eros LLC v Leatherwood,[1] one of the most successful virtual merchants within the Second Life virtual platform filed suit, eventually, naming a Texas resident, Robert Leatherwood, and ten unnamed compatriots, John Does 1-10) and claiming for unfair competition under the federal Lanham Act,[2] copyright infringement, and civil conspiracy and seeking a preliminary injunction.[3]
Second Life is a virtual world platform owned and operated online by Linden Research, Inc. at http://secondlife.com. Second Life is an Internet-hosted interactive computer simulation by which participants, through their virtual alter-egos, or avatars, see, hear, use, and modify simulated objects within the computer-generated environment. Linden counts the number of distinct Second Life accounts at more than nine million throughout the United States and in many foreign countries. Commerce within Second Life, or “in world,” each day exceeds one million dollars.[4]
[NOTE: Reuters' Second Life News Center has some detailed reporting on this case. Click here.]
Florida-based Eros is one of the world’s most successful merchants in world where it makes and sells virtual adult-themed objects.[5]
Chronology of the Case & Discovery:
Eros originally filed suit on July 3, 2007 against a John Doe, who was also known as “Volkov Cattenaeo” in Second Life and otherwise as “Aaron Long.” Eros then filed an ex parte emergency motion for leave to issue subpoenas and to conduct related discovery as to Linden Research, Inc. (“Linden”), the owner and operator of Second Life, and to PayPal, the online payment processor. The magistrate granted this motion.
Eros then filed a second ex parte emergency motion for leave to issue subpoenas and conduct related discovery, which the magistrate granted on September 5, 2007.
According to a declaration filed with that second motion by Eros’ CEO, Kevin Alderson, Defendant John Doe gave an interview to a reporter in world and claimed that Doe had provide false identifying information both to Linden and to PayPal and that he had no permanent address in the real world. Doe told the reporter that he had sold fifty copies of two of Eros’ virtual products, as named below, and had given the proceeds of those sales to another individual.[6]
The interview was published and stated that one of Eros’ most popular products was the SexGen bed,[7] which contained more than 150 sex animations and sold for L$12,000, that is, Linden dollars, the currency in world, or $45.11 in real world currency. Doe reportedly sold the SexGen bed for L$4,000, sharply undercutting Eros’ price and market. The article reported that Eros had sold some 100,000 SexGen beds.[8]
Alderman declared that Eros had obtained a number of Internet protocol (“IP”) addresses associated with Doe’s activities. With that information in hand, Eros sought to obtain real world identification, address, payment, and other information about Doe through the Internet Service Providers, or “ISPs,” associated with those IP addresses, i.e., AT&T and Charter Communications. Eros also sought from the ISPs Media Access Control, or “MAC,” and Ethernet Hardware Address, or “EHA,” numbers by which to identify the actual computers associated with Doe’s IP addresses. Although their respective privacy policies appeared to permit them to do so, these two companies refused to provide those records without subpoenas. Alderman also stated that he had reported the copyright infringement to Linden under its Digital Millennium Copyright Act policy, but had been redirected by Linden to it abuse reporting system.[9]
On October 24th, Eros filed a first amended complaint and subsequently effected service of process upon Leatherwood. When Leatherwood failed to answer the amended complaint within the permitted time, the clerk entered a default against him on November 16, 2007. In an interesting twist, Eros failed to timely apply for the entry of default judgment in accordance with the court’s local rules, and the Court ordered Eros to show why this case should not be dismissed for lack of prosecution. Eros subsequently filed and was granted a motion to extend the time to respond, and that response is pending, as of March 12, 2008.[10]
The Allegations Against Leatherwood:
Eros’ first amended complaint provides the following allegations.[11]
Under the terms of use that govern users’ participation on Second Life, users retain al intellectual property rights in the digital content that they own, create, or otherwise place within that virtual platform. [NOTE: For more on Second Life's intellectual property terms, click here.]
Florida-based Eros is one of the world’s most successful merchants in world where it makes and sells virtual adult-themed objects. Eros’ products are widely known in world through the marketing efforts of Eros’ CEO Alderman, also known as “Stroker Serpentine” in world. Eros also promotes its products in the virtual world by advertising and by conducting promotional events within many virtual adult, social-themed events in world. In addition to the products’ virtual promotion and fame, Mr. Alderman, Eros, and Eros’ products are widely known in the tangible world by virtue of extensive media coverage by Wired, eBay Magazine, ABC Australia, and others.
As a result of their reputation for performance, quality, and value, Eros’ products are among the best-selling adult-themed objects in world. Eros particularly described and provided images of its SexGen Platinum Base Unit, version 4.01, and its SexGen Platinum+Diamond Base, version 5.01 products. Eros filed applications for copyright registrations for both products on June 25, 2007. Both products are sold in world, as also are a number of other Eros products, under its trademark, SexGen.
Eros sells both of the named products on a “NO COPY” basis. Eros explains that this “NO COPY” permits Second Life users purchasing these products to transfer them to other Second Life users, but copying by non-Second Life users is prohibited.
According to United States Patent and Trademark Office records, Eros filed an application to register its SexGen word mark on June 11, 2007, that is, shortly before filing the original complaint in the instant action. The application states that the date of first use in interstate commerce was January 1, 2005 and seeks to register the SexGen mark to the class for a “[s]cripted animation system utilizing a defined menu to actuate avatars within a virtual world access through a 3-dimensional virtual platform.” As of March 2008, that application is pending under serial number 77202601.
According to Eros’ first amended complaint and beginning in at least April 2007, Defendant Leatherwood made and sold numerous unauthorized copies of Eros’ above-named virtual products in world using its trademark, thereby violating the Lanham and Copyright Acts.[12] Leatherwood maintains one or more Second Life accounts and has sold these products to Second Life users located in Georgia and West Virginia in the United States and in Great Britain. Leatherwood also misrepresented the copies as authorized and legitimate copies of products created by Eros, thereby causing actual consumer confusion as to the origin of those products.
Eros claimed that Leatherwood acts in concert and conspiracy with a number of other unknown individuals residing in the United States and named in the complaint as Defendants John Does 1-10. These unknown conspirators include one or more Second Life users. The John Does allegedly compensate Leatherwood for making and distributed the unauthorized copies of the products or otherwise assist, aid, abet, and contribute to his illegal conduct or otherwise violate the relevant laws by all of the foregoing conduct.
Eros’ amended complaint repeats its general allegations to set forth its three causes of action. It asserts that the complained-of acts are willful, wanton, malicious, and committed in bad faith and then sets forth allegations in keeping with the standards for the grant of a preliminary injunction order and praying for the range of damages and other relief.
Points of Interest:
For lawyers with a virtual worlds practice, this case illustrates the challenges of properly identifying and discovering the identities and other fundamental facts about defendants and other actors in cyberspace, a. As a practical matter, it also shows that, from a plaintiff’s perspective, DMCA and privacy policies may not produce optimum responses from online businesses with respect to reporting and resolving copyright infringements online or to obtaining member information by which to identify the subject actors.
In addition, it shows the need for constant monitoring of virtual assets and, as Eros did in this instance, a rapid response to misappropriations or other misconduct, particularly given the fleeting and highly chameleon nature of electronic identities.
As with other reports of currency intersections between the real and virtual worlds, Eros v. Leatherwood demonstrates that virtual assets can have significant real value in monetary and intellectual property terms.
[1] Eros, LLC v. Robert Leatherwood & John Does 1-10, Dkt. No. 8:07-CV-0115-SCB-TGW (M.D. Fla., filed July 3, 2007). This case was originally filed under the caption, Eros, LLC v. John Doe.
[2] See generally 15 U.S.C. §§ 1125 et seq.
[3] See Eros, First Amended Complaint 7-11 (filed Oct. 24, 2007).
[4] See id.
[5] See id.
[6] See id., Second Decl. of Kevin Alderman, para. 4 (filed Sept. 4, 2007).
[7] The article does not equate the SexGen bed to one of the two products called out in Eros’ original or first amended complaint.
[8] Eric Reuters, SL Business Sues for Copyright Infringement (July 3, 2007), attached as Exhibit 1 to Second Decl. of Kevin Alderman, supra note 4.
[9] See Eros, Second Decl. of Kevin Alderman, paras. 6-12 (filed Sept. 4, 2007).
[10] See id., Docket Rep’t.
[11] See generally id., First Amended Complaint.
[12] Eros bases its alleged trademark use in interstate commerce on its sale of objects within Second Life to users throughout the United States and in many foreign countries. See id. at para. 12.
Second Life is a virtual world platform owned and operated online by Linden Research, Inc. at http://secondlife.com. Second Life is an Internet-hosted interactive computer simulation by which participants, through their virtual alter-egos, or avatars, see, hear, use, and modify simulated objects within the computer-generated environment. Linden counts the number of distinct Second Life accounts at more than nine million throughout the United States and in many foreign countries. Commerce within Second Life, or “in world,” each day exceeds one million dollars.[4]
[NOTE: Reuters' Second Life News Center has some detailed reporting on this case. Click here.]
Florida-based Eros is one of the world’s most successful merchants in world where it makes and sells virtual adult-themed objects.[5]
Chronology of the Case & Discovery:
Eros originally filed suit on July 3, 2007 against a John Doe, who was also known as “Volkov Cattenaeo” in Second Life and otherwise as “Aaron Long.” Eros then filed an ex parte emergency motion for leave to issue subpoenas and to conduct related discovery as to Linden Research, Inc. (“Linden”), the owner and operator of Second Life, and to PayPal, the online payment processor. The magistrate granted this motion.
Eros then filed a second ex parte emergency motion for leave to issue subpoenas and conduct related discovery, which the magistrate granted on September 5, 2007.
According to a declaration filed with that second motion by Eros’ CEO, Kevin Alderson, Defendant John Doe gave an interview to a reporter in world and claimed that Doe had provide false identifying information both to Linden and to PayPal and that he had no permanent address in the real world. Doe told the reporter that he had sold fifty copies of two of Eros’ virtual products, as named below, and had given the proceeds of those sales to another individual.[6]
The interview was published and stated that one of Eros’ most popular products was the SexGen bed,[7] which contained more than 150 sex animations and sold for L$12,000, that is, Linden dollars, the currency in world, or $45.11 in real world currency. Doe reportedly sold the SexGen bed for L$4,000, sharply undercutting Eros’ price and market. The article reported that Eros had sold some 100,000 SexGen beds.[8]
Alderman declared that Eros had obtained a number of Internet protocol (“IP”) addresses associated with Doe’s activities. With that information in hand, Eros sought to obtain real world identification, address, payment, and other information about Doe through the Internet Service Providers, or “ISPs,” associated with those IP addresses, i.e., AT&T and Charter Communications. Eros also sought from the ISPs Media Access Control, or “MAC,” and Ethernet Hardware Address, or “EHA,” numbers by which to identify the actual computers associated with Doe’s IP addresses. Although their respective privacy policies appeared to permit them to do so, these two companies refused to provide those records without subpoenas. Alderman also stated that he had reported the copyright infringement to Linden under its Digital Millennium Copyright Act policy, but had been redirected by Linden to it abuse reporting system.[9]
On October 24th, Eros filed a first amended complaint and subsequently effected service of process upon Leatherwood. When Leatherwood failed to answer the amended complaint within the permitted time, the clerk entered a default against him on November 16, 2007. In an interesting twist, Eros failed to timely apply for the entry of default judgment in accordance with the court’s local rules, and the Court ordered Eros to show why this case should not be dismissed for lack of prosecution. Eros subsequently filed and was granted a motion to extend the time to respond, and that response is pending, as of March 12, 2008.[10]
The Allegations Against Leatherwood:
Eros’ first amended complaint provides the following allegations.[11]
Under the terms of use that govern users’ participation on Second Life, users retain al intellectual property rights in the digital content that they own, create, or otherwise place within that virtual platform. [NOTE: For more on Second Life's intellectual property terms, click here.]
Florida-based Eros is one of the world’s most successful merchants in world where it makes and sells virtual adult-themed objects. Eros’ products are widely known in world through the marketing efforts of Eros’ CEO Alderman, also known as “Stroker Serpentine” in world. Eros also promotes its products in the virtual world by advertising and by conducting promotional events within many virtual adult, social-themed events in world. In addition to the products’ virtual promotion and fame, Mr. Alderman, Eros, and Eros’ products are widely known in the tangible world by virtue of extensive media coverage by Wired, eBay Magazine, ABC Australia, and others.
As a result of their reputation for performance, quality, and value, Eros’ products are among the best-selling adult-themed objects in world. Eros particularly described and provided images of its SexGen Platinum Base Unit, version 4.01, and its SexGen Platinum+Diamond Base, version 5.01 products. Eros filed applications for copyright registrations for both products on June 25, 2007. Both products are sold in world, as also are a number of other Eros products, under its trademark, SexGen.
Eros sells both of the named products on a “NO COPY” basis. Eros explains that this “NO COPY” permits Second Life users purchasing these products to transfer them to other Second Life users, but copying by non-Second Life users is prohibited.
According to United States Patent and Trademark Office records, Eros filed an application to register its SexGen word mark on June 11, 2007, that is, shortly before filing the original complaint in the instant action. The application states that the date of first use in interstate commerce was January 1, 2005 and seeks to register the SexGen mark to the class for a “[s]cripted animation system utilizing a defined menu to actuate avatars within a virtual world access through a 3-dimensional virtual platform.” As of March 2008, that application is pending under serial number 77202601.
According to Eros’ first amended complaint and beginning in at least April 2007, Defendant Leatherwood made and sold numerous unauthorized copies of Eros’ above-named virtual products in world using its trademark, thereby violating the Lanham and Copyright Acts.[12] Leatherwood maintains one or more Second Life accounts and has sold these products to Second Life users located in Georgia and West Virginia in the United States and in Great Britain. Leatherwood also misrepresented the copies as authorized and legitimate copies of products created by Eros, thereby causing actual consumer confusion as to the origin of those products.
Eros claimed that Leatherwood acts in concert and conspiracy with a number of other unknown individuals residing in the United States and named in the complaint as Defendants John Does 1-10. These unknown conspirators include one or more Second Life users. The John Does allegedly compensate Leatherwood for making and distributed the unauthorized copies of the products or otherwise assist, aid, abet, and contribute to his illegal conduct or otherwise violate the relevant laws by all of the foregoing conduct.
Eros’ amended complaint repeats its general allegations to set forth its three causes of action. It asserts that the complained-of acts are willful, wanton, malicious, and committed in bad faith and then sets forth allegations in keeping with the standards for the grant of a preliminary injunction order and praying for the range of damages and other relief.
Points of Interest:
For lawyers with a virtual worlds practice, this case illustrates the challenges of properly identifying and discovering the identities and other fundamental facts about defendants and other actors in cyberspace, a. As a practical matter, it also shows that, from a plaintiff’s perspective, DMCA and privacy policies may not produce optimum responses from online businesses with respect to reporting and resolving copyright infringements online or to obtaining member information by which to identify the subject actors.
In addition, it shows the need for constant monitoring of virtual assets and, as Eros did in this instance, a rapid response to misappropriations or other misconduct, particularly given the fleeting and highly chameleon nature of electronic identities.
As with other reports of currency intersections between the real and virtual worlds, Eros v. Leatherwood demonstrates that virtual assets can have significant real value in monetary and intellectual property terms.
[1] Eros, LLC v. Robert Leatherwood & John Does 1-10, Dkt. No. 8:07-CV-0115-SCB-TGW (M.D. Fla., filed July 3, 2007). This case was originally filed under the caption, Eros, LLC v. John Doe.
[2] See generally 15 U.S.C. §§ 1125 et seq.
[3] See Eros, First Amended Complaint 7-11 (filed Oct. 24, 2007).
[4] See id.
[5] See id.
[6] See id., Second Decl. of Kevin Alderman, para. 4 (filed Sept. 4, 2007).
[7] The article does not equate the SexGen bed to one of the two products called out in Eros’ original or first amended complaint.
[8] Eric Reuters, SL Business Sues for Copyright Infringement (July 3, 2007), attached as Exhibit 1 to Second Decl. of Kevin Alderman, supra note 4.
[9] See Eros, Second Decl. of Kevin Alderman, paras. 6-12 (filed Sept. 4, 2007).
[10] See id., Docket Rep’t.
[11] See generally id., First Amended Complaint.
[12] Eros bases its alleged trademark use in interstate commerce on its sale of objects within Second Life to users throughout the United States and in many foreign countries. See id. at para. 12.
Thursday, March 13, 2008
Loza Joins ABA Special Committee on Computer Gaming & Virtual Worlds
Technology Law Group, LLC is pleased to announce that Emile Loza, Managing Attorney and Founder, has joined the American Bar Association’s (ABA’s) Special Committee on Computer Gaming and Virtual Worlds. This Committee is part of the ABA’s initiatives to foster the development and understanding of intellectual property law in this critical area involving online and other advanced technologies.
As to current Committee activities, Loza is preparing for the ABA’s upcoming Webinar on the top ten legal issues surrounding virtual worlds. Dean Jon Garon of the Hamline University School of Law in Minnesota and others are also participating in this work.
Loza states, “Educational opportunities and new information about advancements in the online gaming and virtual worlds are essential to the innovator and legal in Idaho and the Northwest. Equally important, my involvement in the ABA's Special Committee on Computer Gaming and Virtual Worlds will continue to enhance the capabilities of the team here at Technology Law Group where we represent clients having dealings with and interests in the virtual world . I look forward to being a significant contributor to the Committee and to helping to inform public policy and shape legal developments in this arena.”
Technology Law Group, LLC (TLG) is an intellectual property, international, and Internet law and technology legislative practice. Based in Boise, Idaho, TLG’s practice has a global and strategic business focus. Representative clients range from one of the world’s largest computer technology companies to Fortune 1000 companies specializing in weapons dismantlement, environmental remediation, international construction, and specialty building materials, from innovators in livestock management and environmental stewardship technologies to leading universities, engineering firms, entrepreneurs in a wide variety of industries, and other attorneys. For more information, please call +1.208.939.4472 or email info@technologylawgroup.com.
For more information about the ABA Special Committee on Online Gaming and Virtual Worlds, please click here.
As to current Committee activities, Loza is preparing for the ABA’s upcoming Webinar on the top ten legal issues surrounding virtual worlds. Dean Jon Garon of the Hamline University School of Law in Minnesota and others are also participating in this work.
Loza states, “Educational opportunities and new information about advancements in the online gaming and virtual worlds are essential to the innovator and legal in Idaho and the Northwest. Equally important, my involvement in the ABA's Special Committee on Computer Gaming and Virtual Worlds will continue to enhance the capabilities of the team here at Technology Law Group where we represent clients having dealings with and interests in the virtual world . I look forward to being a significant contributor to the Committee and to helping to inform public policy and shape legal developments in this arena.”
Technology Law Group, LLC (TLG) is an intellectual property, international, and Internet law and technology legislative practice. Based in Boise, Idaho, TLG’s practice has a global and strategic business focus. Representative clients range from one of the world’s largest computer technology companies to Fortune 1000 companies specializing in weapons dismantlement, environmental remediation, international construction, and specialty building materials, from innovators in livestock management and environmental stewardship technologies to leading universities, engineering firms, entrepreneurs in a wide variety of industries, and other attorneys. For more information, please call +1.208.939.4472 or email info@technologylawgroup.com.
For more information about the ABA Special Committee on Online Gaming and Virtual Worlds, please click here.
Violent Video Games in California - Can the State Regulate Access by Minors, and How?
Video Software Dealers Ass’n v. Schwarzenegger holds great interest for video game artists and distributors and for attorneys practicing in virtual world matters. This federal district court case decides the applicable legal standard governing the State’s regulation of violent video game content and the access of minors to that content.[1]
Although the matter is pending appeal in the Ninth Circuit, the latest holding by the federal district court establishes an apt legal standard by which states may constitutionally regulate the distribution of violent video game content to minors. In addition, the two district court’s decisions highlighted below provide an excellent overview and analyses of the treatment of this constitutional issue with regard to violent video games in other circuit and district courts.
Challenges Brought:
In this case, two video gaming industry associations, Video Software Dealers Association[2] and Entertainment Software Association (collectively “VSDA”), filed suit against the governor of California and other state and local officials to block the entry into force of a California state statute[3] that required certain labeling of violent video games and prohibited the sale or rental of such games to minors (“Act”). VSDA challenged the constitutionality of the statute on the bases that video grams are forms of expression protected under the First Amendment; that the labeling requirement also ran afoul of the First Amendment; and that the statute was impermissibly vague.[4]
Preliminary Injunction Granted:
The enacted law was set to go into effect on January 1, 2006.[5] VSDA won a preliminary injunction order a day earlier when the Court surveyed judicial decisions in similar challenges and determined that strict scrutiny was the applicable legal standard for the protected expression claim.[6] The Court considered, but did not decide the applicable standard as to the claim regarding the labeling requirement.[7] As to the vagueness claim, the Court determined that VSDA had not shown its likelihood on the merits.[8] As to the two First Amendment claims, however, the Court held that VSDA had at least raised serious questions going to the merits and that the balance of hardships tilted strongly in VSDA’s favor.[9]
Applicable Legal Standard and Analysis Underlying Grant of Summary Judgment and Permanent Injunction:
The parties subsequently cross-filed motions for summary judgment, and the Court entered an order on August 6, 2007, granting VSDA’s motion and entering a permanent injunction against the enforcement of the statute.[10] The Court reiterated the critical nature of free speech rights, that children were entitled to significant free speech protections, and that freedom of speech protections are not carte blanch, but that governments can place some limits on defamation, incitement, obscenity, and pornography made with children.[11]
The Court then turned to the parties’ respective arguments as to the applicable legal standard for determining constitutionality under the First Amendment. The defendants argued for the application of the standard in Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). The plaintiffs argued for the applicability of Ginsburg v. New York, 390 U.S. 629 (1968).[12]
The Court set forth findings made by the California legislature to justify the need for the Act, as follows:
(a) Exposing minors to depictions of violence in video games, including sexual and heinous violence, makes those minors more likely to experience feelings of aggression, to experience a reduction of activity in the frontal lobes of the bran, and to exhibit violent antisocial or aggressive behavior.
(b) Even minors who do not commit acts of violence suffer psychological harm from prolonged exposure to violent video grams.
(c) The state has a compelling interest in preventing violent, aggressive, and antisocial behavior, and in preventing psychological or neurological harm to minors who play violent video games.[13]
Brandenburg held that the First Amendment prohibited a State from forbidding or proscribing the advocacy of the use of force or of a violation of the law except where such advocacy was directed toward inciting or producing and likely to incite or produce such imminent lawless action.[14] If the Brandenburg standard applied, the Court determined that the Act would be unconstitutional, in part, because neither the defendant’s evidence nor the legislative findings suggested that the expression, even if offensive, in violent video games was directed toward inciting or producing such imminent actions.[15]
The Court noted that Ginsburg recognized that youth are to be considered differently than adults under the law, but also that Ginsburg, which dealt with expression on the grounds of obscenity, had not been applied by the Supreme Court or was proper to extend to limitations on the access of minors to other categories of expression.[16]
The Court then considered the applicability of a media violence case, Winters v. New York, 333 U.S. 507 (1949). In Winters, the state court of appeals equated violent content to sexual content with respect to indecency or obscenity. On that basis, the lower court upheld a conviction under a statute outlawing any distribution, including to non-minors, of publications principally comprised of “criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust, or crime.”[17] Winters struck down the New York statute as unconstitutionally vague, but also stated that its holding did not mean that it was impermissible for a state to punish the circulation of objectionable material, provided that it was not protected under the First Amendment, or that states were “prevented by the requirements of specificity” from their duty to eliminate the evils such objectionable material produce. Having thus analyzed Winters, the Court said that a state could regulate violent expression as in the Act’s described violent video games and that Winters implied that a narrowly-drawn regulation could appropriately do so.[18] Further, the Court said that states could have a compelling interest in restricting minors’ access to violent video games if their exposure to the games’ depictions of violence caused the children to experience aggressive feelings or exhibit violent antisocial or aggressive behavior.[19]
Turning to cases after Winter that dealt with limitations on minors’ access to violent videos, the Court observed that all of these cases have held that the First Amendment bars those limitations, either under the theory that Ginsburg cannot be expanded beyond obscene content or on the ground that the causal connection between children’s exposure to violent video games and their feelings of aggression or antisocial behavior has not adequately been established. The Court went on to summarize the holdings in these cases.[20] Although none of those cases represents binding authority, having not originated from within the Ninth Circuit, the Court nevertheless paid heed to them as indicative of strong antagonism by the courts toward such laws.[21]
Having considered the plaintiffs and defendants’ propositions, the Court held that the applicable standard was that set forth in Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989), which requires that to be constitutional, California’s content-based regulation limiting the access of minors to violent video grams “must promote the compelling interest of protecting the physical and psychological well-being of minors by the least restrictive means and the means must actually further the articulated interest.”[22] Under Sable, the Court held that, although the Act promoted a compelling interest, it was unconstitutional because it did not represent the least restrictive means and that the defendants had not shown that the Act actually furthered the articulated interest.[23]
Conclusion:
This case holds great interest for lawyers practicing in virtual world matters because it decides the applicable legal standard governing the State’s regulation of violent video game content and the access of minors to that content. Although the matter is pending appeal in the Ninth Circuit, the Court’s adoption of the standard in Sable seems particularly apt, given its special consideration of the compelling interest of the State in protecting children, but its continued rigor in sharply confining a State’s authority to regulate violent video game content and insisting that such a State so regulate without exceeding the bounds of that authority.
In addition, the Court’s decisions in granting VSDA’s summary judgment and preliminary injunctions motions serve as excellent resources for the overview of the treatment of this constitutional issue with regard to video games in other circuit and district courts.
The defendants have appealed the district court’s dispositive ruling and, as of March 2008, the matter is now pending before the United States Court of the Appeals for the Ninth Circuit. The eventual ruling by the United States Court of Appeals for the Ninth Circuit will add to the meaningful understanding of this issue across the circuits.
Media Coalition Inc., a trade association advocating free speech rights for publishers and others, maintains an updated summary of developments in this watershed case and provides links to documents. To see that material, please click here.
[1] Video Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d 1034 (N.D. Cal. 2005) (Order Granting Plaintiff’s Motion for a Preliminary Injunction) & Dkt. No. 5:05-CV-04188-RMW, Order on Cross-Motions for Summary Judgment, 2007 U.S. Dist. LEXIS 57472 (N.D. Cal., filed Aug. 6, 2007).
[2] This organization later changed its name to Entertainment Merchants Association. See Media Coalition, Inc.(visited Mar. 12, 2008).
[3] See Video Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d 1034, 1038 (N.D. Cal. 2005) (citing Assembly Bill 1179 (to be codified at California Civil Code §§ 1746-1764.5)).
[4] See id. at 1039.
[5] See id. at 1037.
[6] See id. at 1043-46.
[7] See id. at 1046-47.
[8] See id. at 1040-42.
[9] See id. at 1043 & 1047-48.
[10] See Video Software Dealers Ass’n v. Schwarzenegger, Dkt. No. 5:05-CV-04188-RMW, Order on Cross-Motions for Summary Judgment (N.D. Cal., filed Aug. 6, 2007). The Court also struck the improper amicus filings by Common Sense Media. See id. at p. 4.
[11] See id. at pp. 4-6.
[12] See id. at p. 6.
[13] Id. at p. 6 (quoting 2005 Cal. Legis. Serv. Ch. 638 (A.B. 1179)(West) § 1).
[14] Id. at p. 6 (quoting 395 U.S. 444, 447 (1969) (per curiam)).
[15] Id. at p. 7 (citations omitted).
[16] See id. at pp. 7-8 (citations omitted).
[17] Id. at p. 8 (quoting People v. Winters, 294 N.Y. 545, 549-50, 553 (1945)).
[18] See id. (citations omitted).
[19] See id. at pp. 8-9.
[20] See id. at pp. 8-12 (citations omitted).
[21] See id. at p. 9.
[22] Id. at p. 12 (quoting Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989)).
[23] See id. at pp. 12-16 (citations omitted). Because it had held the Act to be unconstitutional, the Court did not reach the labeling issue. See id. at p. 16.
Although the matter is pending appeal in the Ninth Circuit, the latest holding by the federal district court establishes an apt legal standard by which states may constitutionally regulate the distribution of violent video game content to minors. In addition, the two district court’s decisions highlighted below provide an excellent overview and analyses of the treatment of this constitutional issue with regard to violent video games in other circuit and district courts.
Challenges Brought:
In this case, two video gaming industry associations, Video Software Dealers Association[2] and Entertainment Software Association (collectively “VSDA”), filed suit against the governor of California and other state and local officials to block the entry into force of a California state statute[3] that required certain labeling of violent video games and prohibited the sale or rental of such games to minors (“Act”). VSDA challenged the constitutionality of the statute on the bases that video grams are forms of expression protected under the First Amendment; that the labeling requirement also ran afoul of the First Amendment; and that the statute was impermissibly vague.[4]
Preliminary Injunction Granted:
The enacted law was set to go into effect on January 1, 2006.[5] VSDA won a preliminary injunction order a day earlier when the Court surveyed judicial decisions in similar challenges and determined that strict scrutiny was the applicable legal standard for the protected expression claim.[6] The Court considered, but did not decide the applicable standard as to the claim regarding the labeling requirement.[7] As to the vagueness claim, the Court determined that VSDA had not shown its likelihood on the merits.[8] As to the two First Amendment claims, however, the Court held that VSDA had at least raised serious questions going to the merits and that the balance of hardships tilted strongly in VSDA’s favor.[9]
Applicable Legal Standard and Analysis Underlying Grant of Summary Judgment and Permanent Injunction:
The parties subsequently cross-filed motions for summary judgment, and the Court entered an order on August 6, 2007, granting VSDA’s motion and entering a permanent injunction against the enforcement of the statute.[10] The Court reiterated the critical nature of free speech rights, that children were entitled to significant free speech protections, and that freedom of speech protections are not carte blanch, but that governments can place some limits on defamation, incitement, obscenity, and pornography made with children.[11]
The Court then turned to the parties’ respective arguments as to the applicable legal standard for determining constitutionality under the First Amendment. The defendants argued for the application of the standard in Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). The plaintiffs argued for the applicability of Ginsburg v. New York, 390 U.S. 629 (1968).[12]
The Court set forth findings made by the California legislature to justify the need for the Act, as follows:
(a) Exposing minors to depictions of violence in video games, including sexual and heinous violence, makes those minors more likely to experience feelings of aggression, to experience a reduction of activity in the frontal lobes of the bran, and to exhibit violent antisocial or aggressive behavior.
(b) Even minors who do not commit acts of violence suffer psychological harm from prolonged exposure to violent video grams.
(c) The state has a compelling interest in preventing violent, aggressive, and antisocial behavior, and in preventing psychological or neurological harm to minors who play violent video games.[13]
Brandenburg held that the First Amendment prohibited a State from forbidding or proscribing the advocacy of the use of force or of a violation of the law except where such advocacy was directed toward inciting or producing and likely to incite or produce such imminent lawless action.[14] If the Brandenburg standard applied, the Court determined that the Act would be unconstitutional, in part, because neither the defendant’s evidence nor the legislative findings suggested that the expression, even if offensive, in violent video games was directed toward inciting or producing such imminent actions.[15]
The Court noted that Ginsburg recognized that youth are to be considered differently than adults under the law, but also that Ginsburg, which dealt with expression on the grounds of obscenity, had not been applied by the Supreme Court or was proper to extend to limitations on the access of minors to other categories of expression.[16]
The Court then considered the applicability of a media violence case, Winters v. New York, 333 U.S. 507 (1949). In Winters, the state court of appeals equated violent content to sexual content with respect to indecency or obscenity. On that basis, the lower court upheld a conviction under a statute outlawing any distribution, including to non-minors, of publications principally comprised of “criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust, or crime.”[17] Winters struck down the New York statute as unconstitutionally vague, but also stated that its holding did not mean that it was impermissible for a state to punish the circulation of objectionable material, provided that it was not protected under the First Amendment, or that states were “prevented by the requirements of specificity” from their duty to eliminate the evils such objectionable material produce. Having thus analyzed Winters, the Court said that a state could regulate violent expression as in the Act’s described violent video games and that Winters implied that a narrowly-drawn regulation could appropriately do so.[18] Further, the Court said that states could have a compelling interest in restricting minors’ access to violent video games if their exposure to the games’ depictions of violence caused the children to experience aggressive feelings or exhibit violent antisocial or aggressive behavior.[19]
Turning to cases after Winter that dealt with limitations on minors’ access to violent videos, the Court observed that all of these cases have held that the First Amendment bars those limitations, either under the theory that Ginsburg cannot be expanded beyond obscene content or on the ground that the causal connection between children’s exposure to violent video games and their feelings of aggression or antisocial behavior has not adequately been established. The Court went on to summarize the holdings in these cases.[20] Although none of those cases represents binding authority, having not originated from within the Ninth Circuit, the Court nevertheless paid heed to them as indicative of strong antagonism by the courts toward such laws.[21]
Having considered the plaintiffs and defendants’ propositions, the Court held that the applicable standard was that set forth in Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989), which requires that to be constitutional, California’s content-based regulation limiting the access of minors to violent video grams “must promote the compelling interest of protecting the physical and psychological well-being of minors by the least restrictive means and the means must actually further the articulated interest.”[22] Under Sable, the Court held that, although the Act promoted a compelling interest, it was unconstitutional because it did not represent the least restrictive means and that the defendants had not shown that the Act actually furthered the articulated interest.[23]
Conclusion:
This case holds great interest for lawyers practicing in virtual world matters because it decides the applicable legal standard governing the State’s regulation of violent video game content and the access of minors to that content. Although the matter is pending appeal in the Ninth Circuit, the Court’s adoption of the standard in Sable seems particularly apt, given its special consideration of the compelling interest of the State in protecting children, but its continued rigor in sharply confining a State’s authority to regulate violent video game content and insisting that such a State so regulate without exceeding the bounds of that authority.
In addition, the Court’s decisions in granting VSDA’s summary judgment and preliminary injunctions motions serve as excellent resources for the overview of the treatment of this constitutional issue with regard to video games in other circuit and district courts.
The defendants have appealed the district court’s dispositive ruling and, as of March 2008, the matter is now pending before the United States Court of the Appeals for the Ninth Circuit. The eventual ruling by the United States Court of Appeals for the Ninth Circuit will add to the meaningful understanding of this issue across the circuits.
Media Coalition Inc., a trade association advocating free speech rights for publishers and others, maintains an updated summary of developments in this watershed case and provides links to documents. To see that material, please click here.
[1] Video Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d 1034 (N.D. Cal. 2005) (Order Granting Plaintiff’s Motion for a Preliminary Injunction) & Dkt. No. 5:05-CV-04188-RMW, Order on Cross-Motions for Summary Judgment, 2007 U.S. Dist. LEXIS 57472 (N.D. Cal., filed Aug. 6, 2007).
[2] This organization later changed its name to Entertainment Merchants Association. See Media Coalition, Inc.
[3] See Video Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d 1034, 1038 (N.D. Cal. 2005) (citing Assembly Bill 1179 (to be codified at California Civil Code §§ 1746-1764.5)).
[4] See id. at 1039.
[5] See id. at 1037.
[6] See id. at 1043-46.
[7] See id. at 1046-47.
[8] See id. at 1040-42.
[9] See id. at 1043 & 1047-48.
[10] See Video Software Dealers Ass’n v. Schwarzenegger, Dkt. No. 5:05-CV-04188-RMW, Order on Cross-Motions for Summary Judgment (N.D. Cal., filed Aug. 6, 2007). The Court also struck the improper amicus filings by Common Sense Media. See id. at p. 4.
[11] See id. at pp. 4-6.
[12] See id. at p. 6.
[13] Id. at p. 6 (quoting 2005 Cal. Legis. Serv. Ch. 638 (A.B. 1179)(West) § 1).
[14] Id. at p. 6 (quoting 395 U.S. 444, 447 (1969) (per curiam)).
[15] Id. at p. 7 (citations omitted).
[16] See id. at pp. 7-8 (citations omitted).
[17] Id. at p. 8 (quoting People v. Winters, 294 N.Y. 545, 549-50, 553 (1945)).
[18] See id. (citations omitted).
[19] See id. at pp. 8-9.
[20] See id. at pp. 8-12 (citations omitted).
[21] See id. at p. 9.
[22] Id. at p. 12 (quoting Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989)).
[23] See id. at pp. 12-16 (citations omitted). Because it had held the Act to be unconstitutional, the Court did not reach the labeling issue. See id. at p. 16.
Wednesday, March 12, 2008
Spitzer and Prostitution Policy
I have often been critical on my other blog about overzealous prosecutors. Most prosecutors are reasonable, but there are a few that seem to take a "holier than thou" attitude. This is the biggest reason why some are happy to see Eliot Spitzer's fall.But there's a larger lesson about government policy. In most of the United States, prostitution is illegal. For some reason this doesn't seem to
Tuesday, March 11, 2008
MySpace's Bots Claim Fails, but Its Others Win Preliminary Injunction
MySpace, Inc., purveyor of the popular social networking Web site myspace.com, sued Wallace, operator of the Web sites, freevegasclubs.com and real-vegassins.com, under the federal CAN-SPAM Act[1] and under California state law.[2] MySpace alleged that Wallace set up some 11,000 fictitious MySpace accounts through “bots,” or automated software means, and then used those accounts to send numerous unsolicited email messages, or spam, regarding its gambling sites to legitimate MySpace account holders. This spam allegedly circumvented the terms of use governing behavior on myspace.com.
MySpace sought and prevailed, in part, in obtaining a preliminary injunction against Wallace. Under 15 U.S.C. § 7704(b)(2), however, did not prevail because the Court held that MySpace was not likely to succeed on the merits of its bot-related claim because it failed to provide adequate evidentiary support demonstrating Wallace’s set-up of the subject accounts could only have been achieved by bots.
The case citation is MySpace, Inc. v. Wallace, 498 F. Supp. 2d 1293 (C.D. Cal. 2007).
For more reporting and information on this case against the so-called "Spam King," please click Bloomberg.com.
In 2004, the Federal Trade Commission sued Wallace and SmartBot.Net on consumer protection violations. For the order of default judgment, permanent injunction, and other equitable relief in that case, please click here.
[1] MySpace, Inc. v. Wallace, 498 F. Supp. 2d 1293, 1299 (C.D. Cal. 2007) (citing 15 U.S.C. §§ 7704(a)(1), (3), (5) and (b)(2)).
[2] Id. (citing Cal. Bus. & Prof. Code § 17529.5, §§ 22984 et. seq. & §§ 17200 et seq., and §§ 17500 et seq.).
MySpace sought and prevailed, in part, in obtaining a preliminary injunction against Wallace. Under 15 U.S.C. § 7704(b)(2), however, did not prevail because the Court held that MySpace was not likely to succeed on the merits of its bot-related claim because it failed to provide adequate evidentiary support demonstrating Wallace’s set-up of the subject accounts could only have been achieved by bots.
The case citation is MySpace, Inc. v. Wallace, 498 F. Supp. 2d 1293 (C.D. Cal. 2007).
For more reporting and information on this case against the so-called "Spam King," please click Bloomberg.com.
In 2004, the Federal Trade Commission sued Wallace and SmartBot.Net on consumer protection violations. For the order of default judgment, permanent injunction, and other equitable relief in that case, please click here.
[1] MySpace, Inc. v. Wallace, 498 F. Supp. 2d 1293, 1299 (C.D. Cal. 2007) (citing 15 U.S.C. §§ 7704(a)(1), (3), (5) and (b)(2)).
[2] Id. (citing Cal. Bus. & Prof. Code § 17529.5, §§ 22984 et. seq. & §§ 17200 et seq., and §§ 17500 et seq.).
Saturday, March 8, 2008
Truck Accident cases in Albany NY
Someone suggested we add a truck accident page to our website, so I did that today. Accident cases involving tractor-trailers are typically higher-value cases, due to higher insurance coverage and the severity of the injuries. Fortunately they are also rare.I revised some other pages on the personal injury section of the website while I was doing that. The neatest thing now is I added a map in
Monday, March 3, 2008
Traffic Court News
Our traffic court directory is doing well. The Alexa "rank" is approaching #600,000 (i.e. the 600,000th busiest site on the web). By comparison our law firm site is ranked over 2,000,000. Alexa is not perfect, but it's in the ballpark. Within the US the site is now within the top 100,000 websites.We've added a lot of traffic courts in Ohio. So far not many people are going to the Cincinnati
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