RSS FeedFacebook ‘Friend Poaching’
When was the last time you sent a friend request on Facebook? When was the last time you got sued for it? Complexions v Complexions Day Spa & Facebook, is, according to Santa Clara Internet Law professor Eric Goldman, the first case to involve Facebook ‘friend poaching‘.
The case is currently in front of the New York Northern District Court, and involves two spas doing business under similar trade names, and Facebook. The plaintiff spa notified Facebook of a trademark infringement, which prompted Facebook to remove the page. For this action, the plaintiff is seeking damages in lost sales and marketing potential.
The plaintiff is further claiming that the defendant spa knowingly ‘friended’ it’s customers to the defendant spa’s own Facebook page, creating an unfair advantage for the defendant spa. For this, the plaintiff is seeking injunctive relief and monetary damages.
The case is yet to be decided, and according to Goldman, it’s likely to be the first of many such cases. Among the keen to see how this case unfolds is American University blogger, Dana Nicoletti, who notes that “it will be extremely interesting to see how the Northern District of New York treats these contentions, and how other businesses react to a decision.” Whatever the decision, businesses will have to think twice the next time they so much as log onto Facebook.
The stakes of copyright reform
Not many government bills cause so much debate as C-32—the legislation to amend Canada’s Copyright Act—introduced on June 2, 2010. One of C-32’s most contentious innovations is a complete ban on bypassing digital locks on electronic content. James Moore, a federal Minister, said that C-32 offered “a common-sense balance between the interests of consumers and the rights of the creative community.” But his opponents believe Moore’s “common sense” will empower copyright holders and take away traditional rights of consumers.
C-32 is not the first attempt to revise Canada’s Copyright Act. The most recent reform effort began during the previous federal government in 2005. C-32 predecessors, Bills C-60 and C-61, died as a result of a collapsed government and a dissolved parliament. Many opposed the reforms, and Michael Geist, a University of Ottawa law professor, became an intellectual leader of the protest movement.
The government has said the current law is outdated. One letter sent to constituents mentioned that “Canada has been placed on piracy watch lists and our intellectual property protections are compared with those of countries like China, Russia and Dubai.” The government justified the reform by the need to comply with international treaties that it signed on behalf of Canada. There are also allegations that the Canadian government acted under pressure from the US government and the copyright lobby.
This reform will decide issues that ultimately concern everyone. Copyright is an exclusive right to copy or distribute a work. The flip side of someone’s copyright is everyone’s duty to respect it by not copying or distributing the copyright holder’s work without permission. Pretty much any original product of human expression is a work protected by copyright, including movies, music, books, and even your emails.
Copyright’s prohibition on copying would be draconian if some exceptions didn’t exist. Traditionally, “fair dealing” is one. The law has entitled us to copy parts of someone’s work for criticism, review, study, or similar activities. Just like copyright is a right of content owners against content consumers, fair dealing is a right of consumers against owners. Quoting from books, showing films clips, playing song excerpts, photocopying a few pages from a journal are essential to the development of arts and science and to our self-reflection as a society. If we can’t copy anything, we can’t spread information, and curbing the flow of information with constant payments to copyright holders will curb ideas and free expression. Fair dealing is important, and it is our right.
Copyright owners’ or their partners use technological protection measures (TPMs) to limit our right to fair dealing. They can encrypt their content so we can’t copy it. Most DVD films are an example. Owners can use proprietary formats that only sanctioned technology can access. Amazon does it with its e-books, which only Amazon Kindle can open. Hardware makers can restrict their devices to accept only permitted content. Apple screens each and every iPhone application before allowing it into its App Store.
You would expect the law to protect our traditional rights to fair dealing in those cases. And in some countries, to take the example of mobile phone locks, the law regulates or prohibits this practice. But in most countries, including Canada, the law doesn’t stop copyright owners or their partners from locking content or devices up. Such locks would make the right to fair dealing meaningless if circumvention technologies didn’t exist. They allow consumers to bypass digital locks on electronic content.
The big deal about C-32 is that it bans circumvention under penalty of fines or jail. Not only does C-32 ignore TMPs’ gutting of fair dealing rights, but it also punishes those using circumvention for fair dealing. C-32 turns consumers’ fair dealing rights into privileges granted at copyright owners’ discretion. If owners choose to unlock their content, fair dealing is possible. If they use TPMs, it’s not. If C-32 is passed, the independent statutory right to fair dealing will cease to exist.
Some people use circumvention to make illegal copies of movies, music, software, etc. But to choke a long-established right because the entertainment industry loses profits is an overkill. Go after illegal distributors, strengthen enforcement of existing laws but don’t give the copyright lobby powers to regulate fair dealing. Do we as a society want to give so much control over information flow, and by extension essentially over thought and expression, to an industry group?
(Post sponsored by AdviceScene)
New Bob Marley Brand “House of Marley,” Heirs Take Steps To Protect Father’s Legacy
First posted on Commercial Law International on Jan 7, 2010.
“Old pirates, yes they rob I.”
The opening words to Redemption Song are as hard hitting now as they were when first bellowed by the iconic musical legend – Bob Marley - years ago. These words however may be taking on a new meaning in this era digitization and globalization where information is king. This era is all about IP – Intellectual Property – and the right to access, control and exploit for ones own benefit the concepts encapsulated within creativity.
As a matter of course the Brand – how you package and sell your IP, in fact branding itself becomes a form of IP – in this era becomes of great import. In fact one could argue that brand is not the everything but is the only thing. Consumers no longer simply buy a product or service – no, no – rather they are buying a brand.
Now this brings me to the House of Marley. The heirs of Bob Marley – the holders of the exclusive rights to the reggae superstar’s image – are drawing clear battle lines in the IP war on whom can access, control and exploit Marley’s iconic status. They have enlisted the aid of Canadian private equity firm Hilco Consumer Capital to package, manage, market, sell, monitor and protect the IP that is Bob Marley through the products sold under the new House of Marley brand.
Rather than attack the hawkers of existing wears, which would result in a multiplicity of protracted legal battles spread-out across the globe, Hilco and the House of Marley have instead embarked on a branding campaign. It is quite simple, the House of Marley will be authentic and all other comers will only be imitators – a potentially very lucrative strategy, if it can be pulled off.
According to reports, the Marley brand – name, sound and image – are estimated to generate $USD 600 million in a year and this is on the bootleg side alone. On the legal side, the brand generates a profitable but substantially smaller $USD 4 million a year.
With numbers like those no wonder the Marley heirs sought out and gained a partner like Hilco with a proven reputation in IP generally and branding specifically?
While I applauded this new venture, I can’t help but how long will it be before we see a court case or two? Maybe a few Anton Piller orders – best described but somewhat inaccurately as a civil search warrant, that feature so prominently in IP cases – or maybe the odd Mareva injunction – a court order freezing assets -?
The reason why I am thinking this is that it is impossible to escape the fact that branding – intellectual propertization – eventually means not only the allocation of exclusive rights but also the enforcement of those rights.
Why You Should Apply to Law School
What I love best about the law is the ability to challenge and break down stereotypes.
For example, Canadians generally overestimate the number of minorities that have committed a crime, which is usually lower than the general population.
However, the 1995 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System stated, it is no secret that “black accused, for example, are more often held without bail”.
The need for advocates to fight this subtle yet pervasive form of discrimination is pressing indeed.
Maybe Criminal law isn’t your thing.
A recent survey indicated that the average salary in Canada was just over $36,000.
The jobs that required a high school education a generation ago now require a bachelor’s degree. The opportunities simply are just not there for recent university graduates without professional and advanced degrees.
Lawyers and legal professionals ranked the highest out of all careers in Canada, with an average of $123,000 for lawyers and $178,053 for judges. Only specialist physicians made slightly more.
But medical schools in Canada are swarmed with applications. There are only 2,400 positions a year across Canada, but there has been a 20% increase in applications recently. Only 0.5% of applicants to McMaster University and 6% at UWO are accepted.
If you have a science background and thought that your only alternative to med school was graduate research, you’re wrong. One of the booming areas of law is intellectual property, and lawyers in this field almost always have a science or engineering background before law school.
That doesn’t mean getting into law school is easy though. You do need a strong undergraduate GPA, and have to worry about this pesky test called the LSAT.
But it’s worth it. A legal career allows you to pursue professional goals while maintaining an advocacy role within society.
And because the law affects nearly everything we do, there are areas of law that are of interest to everyone.
Fred Rodell, a former professor at Yale, wrote back in 1939, in a book entitled “Woe unto you lawyers,”
It is the lawyers who run our civilization for us – our governments, our business, our private lives. Most legislators are lawyers; they make our laws. Most presidents, governors, commissioners, along with their advisers and brain-trusters are lawyers; they administer our laws. All the judges are lawyers; they interpret and enforce our laws. There is no separation of powers where the lawyers are concerned. There is only a concentration of all government power – in the lawyers. As the schoolboy put it, ours is “a government of lawyers, not of men.”
It is not the businessmen, no matter how big, who run our economic world. Again it is the lawyers, the lawyers who “advise” and direct every time a company is formed, every time a bond or a share of stock is issued, almost every time material is to be bought or goods to be sold, every time a deal is made. The whole elaborate structure of industry and finance is a lawyer-made house. We all live in it, but the lawyers run it.
And in our private lives, we cannot buy a home or rent an apartment, we cannot get married or try to get divorced, we cannot die and leave our property to our children without calling on the lawyers to guide us. To guide us, incidentally, through a maze of confusing gestures and formalities that lawyers have created.
A legal career is not only the smart move in tomorrow’s volatile markets, it’s the right one.
The deadline for law school applications in Ontario is Nov. 3, just over a month from now. You still have time to prepare your application and get it in.
Based on a speech given at the University of Western Ontario. Acknowledgment is provided to Craig Cameron of the Black Law Students Association, Ugbad Farah of the African Students Association, and Carly McLarty of the Caribbean Students Organization for hosting the talks.
New Copyright Bill C-61 Rallying Canadians
Copyright reform may not seem like the sexiest of issues, but it has caught the attention of Canadians and launched itself to the front of the political agenda. The membership of Fair Copyright for Canada Facebook group surged recently and now has over 80,000 members.
The support is really astonishing in Canada. Copyright reforms have been going on throughout the world as countries try to meet international agreements. However, nowhere has the issue generated as much support as it has Canada. In Switzerland, for example, the issue seemed to receive little mainstream attention. The site No Swiss DCMA attempted to collect 50,000 signatures to force a referendum on the revision of the copyright act. They managed to get 803.
One reason for the widespread support seems to be that the proposed changes in the recently tabled Bill C-61 will impact every single Canadian. One group of people which will be particularly affected is students. From distance education to music copying, if passed, this law would make thousands copyright infringers.
Bill C-61 protesters questioned Jim Prentice at his Calgary Stampede breakfast. Photo: k-ideas @ Flickr
To market the bill, Industry Minister Jim Prentice has dubbed it the “made in Canada” bill (as opposed to “imported from the US DCMA” bill) and is highlighting the new provisions that most Canadians probably think are already law. The current Copyright Act:
- “does not specifically allow you to make a copy of a book, newspaper, periodical, photograph or videocassette in order to enjoy it on another device. It also does not specifically allow you to copy music onto devices such as computers and digital audio recorders.”
- “does not specifically allow you to record a radio or television program.”
