Iowa State Bar Association Annual Meeting

 

Tomorrow, June 19th, I will be three presentations to the Iowa State Bar Association at its Annual Meeting here in Des Moines. The talks will be from 8:00 a.m. to 10:00 a.m. at the Downtown Des Moines Marriott and are open to all attendees of the Annual Meeting. 

Ostensibly waxing philosophic on all matter intellectual property and information technology, I will at least attempt to cover The Top 10 Things That Can Shut Down Your Client’s Website and Who Own’s Your Client’s Website as well as Patents, Trademarks and Copyrights. The focus of the talks will be the Black Swans of intellectual property. The term Black Swans is taken from Nassim Taleb’s book of the same name, and refers to those highly improbable events with the ability to completely decimate a business.  Being able to identify general intellectual property and CyberLaw considerations goes a long way toward getting a handle on knowing what you don’t know. More importantly it helps increase your nimbleness and savvy in addressing Black Swans when they arrive at your client’s doorstep.

As I will be giving the speech during what constitutes the middle of the night for most of my Twitter friends I do not expect to see most of them tomorrow. For any of the rest of you looking to substitute a actual jog for a more cerebral version, I look forward to seeing you there.

Brett Trout

Published by: Brett Trout on June 18th, 2008 | Filed under Uncategorized
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Does the Entertainment Industry Want the Internet Locked Down?

 

Wikileaks has obtained and posted a paper entitled Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement. The paper details clandestine international strategies for implementing and enforcing what has been called the "Anti-Counterfeiting Trade Agreement" (ACTA). Like other slickly named Draconian measures, the ACTA sounds like a good idea, by quickly leaves you wondering whether this is 2008 or 1984.

Particularly troubling is the following Language:

Internet distribution and information technology:

      - Legal regime, including safeguards for Internet service Providers (ISPs) from liabilit, to encourage ISPs to cooperate with right holders in the removal of infringing material;

Am I reading that correctly? Are they seeking to make your ISP immune from liability for information they turn over to the entertainment industry regarding your Internet habits, downloads, uploads as well as other confidential personally identifiable information? It sure looks that way to me. Lets just hope the thought police do not use this leverage to abuse their authority.

Additionally, according to Wikileaks, if enacted, the ACTA will likely outlaw CD and DVD players that are not equipped with technology limiting the types of CDs and DVDs you can play on them. According to one commentator, ACTA may also outlaw P2P file sharing, regardless of whether the works being traded violate any copyright laws or not.  IP Justice, a group campaigning for fair international intellectual property protections, points out the "double-speak" behind the ACTA:

The US is negotiating the ACTA through the Office of the US Trade Representative (USTR), an office within the Bush Administration that has concluded more than 10 "free trade" agreements in recent years, all of which require both the US and the other country to increse intellectual property rights enforcement measures beyond the international legal norms in the WTO-TRIPS Agreement.

Who is really pushing the ACTA? Well Rep. Howard Berman (D-CA) for one. His top four campaign contributors for 2006 were Time Warner, News Corp, Sony Corp of America and Walt Disney Company. Another principal promoter of ACTA is Rep. Mary Bono (R-CA), best known for the Sony Bono Copyright Term Extension Act, which paves the way for constantly extending the copyright on century old works, effectively preventing them from entering the public domain.

Needless to say, negotiations on the terms of the ACTA are being done behind closed doors, far from the prying eyes of the public and public interest groups.  Unfortunately, ACTA will likely be set in stone before most countries even get an opportunity to see it. If your House Representative or Senator is backing this bill, it might be time for a subtle email or letter . . . before its too late.

 

Brett Trout

 

 

Published by: Brett Trout on June 6th, 2008 | Filed under copyright
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Microsoft Patent - We control the vertical . . .

 

Microsoft’s new patent application gives us a taste of just what to expect from the software juggernaut in the coming months. If the new Microsoft device manners policy (DMP) patent application is any indication, we are in for a world of hurt. The patent application details a device which automatically shuts off your mobile device when you are in an area where someone determines they do not want you using your mobile device. The shutdown device works with phones, cameras, watches, video cameras and anything else provided with the DMP technology. Microsoft’s Mobile Device Manners Propagation and Compliance patent application foreshadows a world in which movie theaters automatically shut off your cell phone and concerts automatically disable your camera. 

But why stop there? Microsoft’s new device can also be used to stop you from accessing online comparison shopping at the store, shut off your watch at the casino and eliminate "distractions" at the office. It can also be used to eliminate your ability to use your cell phone or recording equipment when stopped by the police. The mind reels at the potential uses.

While the technology obviously has many uses, I am just not aware of any that run in the consumer’s favor. The critical element is who decides what constitutes "socially undesirable audible or visual disturbance or unauthorized information or data capture." But we can trust Microsoft right? What could go wrong? Sure, there is the Zune digital rights management (DRM) fiasco, but what are the odds Microsoft would do something like that again to their customers? Especially so soon after such a biting sting?

While DRM, net neutrality and DMP all have ostensibly laudable goals, corporations cannot help but warp these goals toward lining their own pockets, much to the grave detriment of consumers. Even worse is the part legislators play in mandating the use of, and punishment for circumventing, such technologies. Unfortunately much of this technology and the Draconian laws relating thereto are implemented before the public even knows they exists.

Fortunately, this is no longer the case for you and DMP.

 

Brett Trout

Published by: Brett Trout on June 5th, 2008 | Filed under Microsoft, patent
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U.S. Lawyer Thrown in Singapore Jail Over e-mail

Singapore officials have thrown California immigration Gopalan Nair in prison after Nair sent scathing emails to the Singaporean Attorney-General and Solicitor General referring to a Singaporean judge in a somewhat less than flattering vernacular. The e-mails accuse Justice Belinda Ang Saw Ean of "prostituting herself" on behalf of her son, Former Prime Minister Lee Kuan Yew. In the emails, the jist of which is reprinted in Nair’s blog Singapore Dissident, Nair accuses the judge of railroading her son’s political rival over charges of defamation in what Nair refers to as a "Kangaroo Court."

In his blog, Nair refers to the judge and her son as  "tin pot tyrants who remain in power by abusing the courts to eliminate [their] political opponents." Nair, who renounced his Singapore citizenship and is now a U.S. citizen, was charged Monday with the crime of insulting a public servant. Nair remains in custody for at least a week while officials investigate the charges. If convicted, Nair could face up to a  year in prison and/or a fine of up to $5000 Singapore Dollars ($3,668 US).

HT:

George Davison

Brett Trout

Published by: Brett Trout on June 3rd, 2008 | Filed under Uncategorized
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Does Radiohead think Prince is a “Creep?”

 

At this year’s Coachella, one of the hippest multi-performer concerts in the world, Prince covered the Radiohead song Creep. Not surprisingly, within hours,  YouTube had several cell-phone video clips of Prince’s performance. For Prince fans it will also not be surprising to know that Prince’s label, NPG Records, immediately ordered all of the clips of Prince’s performance removed from YouTube.

According to the Associated Press, this came as quite a shock to the actual songwriter, Radiohead’s Thom Yorke. According to Entertainment Writer Jake Coyle, upon hearing that NPG had removed the clips, Yorke stated "[Prince] blocked it? . . . Well, tell him to unblock it. It’s our . . . song." The article does not go into detail as to what words the ellipses replace, but I would assume they were quite colorful.

Prince and Radiohead could not be on more opposite ends of the spectrum on the issue of making music available online. Prince is notoriously anti-downloading, constantly having his minions scour the Internet for any unauthorized use of his work. Conversely, Radiohead released its latest album, In Rainbows, online for free (although I paid $$ for my download). 

I like both Radiohead and Prince quite a bit. I am crossing my fingers that Yorke meets with Prince, leading to a purple epiphany generating more, and more widely distributed, music from both camps. Perhaps fans might even see a collaboration down the road.

For the full article, check out  Yahoo News.

 

Brett Trout

Published by: Brett Trout on May 30th, 2008 | Filed under copyright
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Social Networking Your Way Into Federal Prison

 

Back in January, I predicted the case of Missouri Mother Lori Drew allegedly using the social networking site MySpace to cause the suicide of her 16-year old neighbor Megan Meier was in for a few twists and turns. Yesterday, a federal grand jury in Los Angeles indicted Drew on one count of conspiracy and three counts of unauthorized access of protected computers to intentionally inflict emotional distress upon Meier.

Los Angeles federal prosecutors allege that back in 2006, Drew created a MySpace page for a fictitious 16-year old boy named "Josh." Drew allegedly used the MySpace account  to send numerous messages to Meier. After initially befriending Meier, "Josh" ended the relationship with a message indicating the world be a better place without Meier. Meier killed herself that same day.

After state and federal prosecutors in Missouri refused to take any action against Drew, attorneys representing the Cyber and Intellectual Property Crimes Section of the U.S. Attorneys Office in MySpace’s hometown of Los Angeles brought the indictment against Drew. As reported by Wired, federal authorities have granted alleged co-conspirator, 19-year old Ashley Grills, immunity in return for her cooperation with the investigation. If convicted on all counts, Drew could be sentenced to up to 20 years in federal prison.

The laws being enforced against Drew were originally enacted to deter and punish computer hackers. It is important to note however, that despite any underlying legislative intent, there is nothing to prevent authorities from asserting these new laws against social networkers. Even though it is unlikely that even your most offensive social networking activities amount to what federal prosecutors allege took place in the Drew case, this case should sound as a warning call to all social networkers to double check how their actions might be perceived by others. Every social networker should double-check that none of their social networking activities might be construed as deceptive, fraudulent or harassing.

Most importantly, if you suspect your child may be the victim of a cyberbully, take action immediately. For more information on how to address cyberbullying, click here for my previous post on the subject. As the Drew case demonstrates, unchecked social networking can lead to much worse things than federal prison.

 

Brett Trout

 

 

Published by: Brett Trout on May 16th, 2008 | Filed under Uncategorized
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Social Networking Undermines Seven Years of Patent Decisions

 

George Washington University Law School Professor John F. Duffy has an interesting take on the last seven years of Administrative Patent Judge Appointments. According to Professor Duffy, appointment of the administrative patent judges of the Board of Patent Appeals and Interferences by the Director of the Patent and Trademark Office during that time was most certainly unconstitutional. The problem boils down to the United States Constitution prohibiting the willy nilly appointment of those exercising significant authority pursuant to the laws of the United States. Such unrestrained appointments diffuse the appointment power laid out in the Constitution and undermine the balance of powers so critical to our system of government.

Now law professors are well known for proffering fringe constitutional musing on nearly everything under the sun made by man. This case is a little different for a couple of reasons. First, Professor Duffy is right (this may mark the first time I have agreed with a law professor). Second, social networking has taken up the issue as its cause celebre. Admit it. Would you even be aware of this issue were it not for social networking? More importantly, social networking has given Professor Duffy’s arguments so much traction, they cannot be dismissed without engendering catastrophic repercussions.

With the last seven years of  Board of Appeals and Patent Interferences having determined the fate of billions of dollars of intellectual property over the last decade, there is no simple solution. Thankfully, as only those having cases heard by a panel having at least one unconstitutionally appointed judge have standing to challenge a ruling, a wholesale repudiation of past rulings does not appear to be in the offing. While Congress can remedy the defect going forward by returning to the Secretary of Commerce the power to Constitutionally appoint the existing judges to their positions, Congress has not yet elected to do so.

Now, a party on the short end of a Board of Patent Appeals and Interferences has filed a petition for certiorari with the United States Supreme Court.  While the Supreme Court will likely hold only those cases still subject to direct appeal have a remaining right of redress, whatever happens, the ultimate Constitutional resolution of the matter will be due in no small part to the power of social networking.

 

HT Dr. Braxton Pulley

Brett Trout

Published by: Brett Trout on May 6th, 2008 | Filed under Uncategorized
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File Your Own Trademark Application

 

Over the last decade and one half of preparing, filing and litigating trademark registrations, I have received several trademark registrations in various states of disarray, which had been prepared and filed either by clients themselves or by non-intellectual property attorneys. Unlike with trademarks, attorneys do not need any special certification to file trademarks on behalf of clients. Just because they CAN, however, does not mean they SHOULD.

Interestingly, both self-filing clients and non-intellectual property attorneys seem to have attended the same Screwing Up Your Trademark Registrations seminar at some point in their careers, as they tend to make the same mistakes. Filing a trademark registration is not like registering a domain name. Trademark registration requires certain mistakes be avoided, the repercussions of which may not become apparent until several years down the road, often long after it is too late the remedy them. Some of the more critical, oft-repeated mistakes include: not understanding what constitutes a "Date of First Use",  describing the goods or services too narrowly, listing goods or services not provided in association with the trademark, listing the wrong international class, listing a word mark as a design mark, defining the trademark too narrowly, etc.

Granted, I am only looking at the cases handed to me AFTER someone noticed a filing error.  Based upon the cases I have seen however, non-intellectual property attorneys do not appear to screw up trademark applications significantly less often than clients who file the applications themselves. Surprisingly, it typically does not cost any more to have a trademark attorney file your trademark application, than it does to have your divorce attorney file your trademark application. Over the long run, however, going with a trademark attorney may save you a substantial amount, avoiding problems an attorney from another area of expertise might encounter.

So how do you know if your attorney has the trademark registration experience he or she professes to have? Go to the United States Patent and Trademark Office website.  Click on the heading "Trademark" from the left hand menu and from the pull-down menu search "Search TM database." On the screen that appears, select "Structured Form Search." Two boxes will appear on the left side of the screen. Type in your attorney’s first name in one box and last name in the other box. In the "Field" boxes to the right, select "Attorney of Record" from the pull down menu for each box. Finally, change the box on the far right from "OR" to "AND" and click "Select Query."

Did you get over 50 results? If not, you might want to shop around for an attorney with a little more experience. Alternatively, you might just take a stab at filing the application yourself. While filing the application yourself is not likely to significantly reduce the odds of irreparably undermining your trademark registration, screwing it up yourself will at least be significantly less expensive.

 

Brett Trout

Published by: Brett Trout on May 5th, 2008 | Filed under trademarks
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Law.Alltop.Com - The Legal Blogs

     Thanks to a little gentle nudging by one of my Twitterer Tweeps, Susan Cartier Liebel of Build a Solo Practice, Internet Guru Extraordinaire Guy Kawasaki has just added law blogs to his popular Alltop.com franchise.

      Alltop provides a constant stream of blog posts from all of the best blogs in a particular category. Want to know what the brightest legal minds are saying right now about  breaking legal news or the hottest legal topics? Check out law.alltop.com and find out.

Brett Trout

Published by: Brett Trout on April 30th, 2008 | Filed under Guy Kawasaki, blogging, blogs
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Legal Pitfalls of Social Network Marketing

 

Failure

The Lure of Social Media
Social networking is all the rage amongst cutting edge marketing gurus.  Rather than force your message down the throats of random unreceptive consumers, social networking provides a platform whereby your best customers proselytize your message for you.

Not only is having customers doing the heavy lifting cheaper and easier, it is much more effective. Who is a potential customer more likely to believe, an infomercial or a friend? Assuming a certain savvy in friend selection, the answer is clearly the friend. When multiple friends join in evangelical rapture around a product, the drive to purchase soon becomes irresistible.

Off the Charts ROI
The low cost and high value of advertising via social networks is not lost on savvy companies. Hiring a handful of hipsters to tout your product’s virtues online is relatively inexpensive.  Moreover, the results can be quite impressive. Not only will an effective social networking campaign result in a significant increase in sales, but it will increase brand loyalty and perceived brand value as well. 

The Necessity of Disclosure
One problem often overlooked by marketing agencies, however, is the necessity of full disclosure. While anyone is free to profess the wonders of Screaming Monkey Slingshots, if I were receiving compensation for such a promotion, I would have to ensure this relationship is clear to the you, the potential Screaming Monkey Slingshot purchasing consumer. 

The Law
In 2006, the Federal Trade Commission made it clear that if a paid endorsement "might materially affect the weight or credibility of the endorsement . . ., such endorsement must be fully disclosed. More recently, the United Kingdom has adopted similar provisions into it’s lengthy new Consumer Protection from Unfair Trading Regulations. These prohibitions extend beyond merely paying stealth marketers to exploit social networking channels. The prohibitions extend to enlisting employees or other paid personnel to post anonymous comments, to advising fans to deceive others as to their involvement in a campaign and to posting fake product reviews.

The Ethics
So, what constitutes "full disclosure?" Unfortunately, there are few hard and fast rules. Obviously, regardless as to the extent of your disclosure or lack thereof, you never want to deny a paid relationship or deceive a consumer as to its existence. Beyond that, the message, the medium, the product and the promoter, all play a role in what constitutes acceptable minimum disclosure (AMD).

Blacklisted for Life
To assist companies in this regard, the Word of Mouth Marketing Association’s Ethics 20 Questions provides a self-assessment to determine whether you might be in danger of violating not only government prohibitions on word of mouth advertising, but also your own customers’ trust. Of particular note is question number 19, regarding "Hiring an Agency."

The question asks whether the advertising agency you are considering has "previously engaged in unethical practices." This should frighten a lot of marketers considering launching a social networking campaign. In addition to placing your agency at odds with the federal government, an ill-conceived social networking campaign may black-list your agency for life.

Brett Trout

Published by: Brett Trout on April 25th, 2008 | Filed under Marketing
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Author: Brett Trout
I am a patent attorney, but the ramblings to your left are not legal advice. Peculiarities of the law, the facts, the client and the lawyer (mostly), make every case unique. If you feel this blog speaks to you, you must seek professional help (heck, why not talk to a patent lawyer while you are at it). If you see something you like, join in the conversation. The chance I might be wrong is merely theoretical at this point, but feel free to point out any monkeys you see waxing Bard-like in my posts. I am too old to admit a mistake, but I will enjoy the discussion. No information you send me or post is confidential. By posting or sending anything to me, you authorize me to use it for ANY purpose I desire, including, but not limited to, folding origami ballerinas for my Nutcracker diorama. If the postings are not placating your Internet law jones, check out my book Cyber Law or check out Lawpportunities. You can also visit my Iowa Patent Lawyer website or stop by our offices at 516 Walnut, Des Moines, Iowa.

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