Hello!
Defamation is becoming a huge issue on social media sites such as Blogs, Twitter, and Facebook. Recently there have been some notable cases involving defamation litigation. Specifically, Courtney Love is being sued for making an alleged defamatory "tweet" about a famous designer.
What is a defamatory statement? The law defines defamation as spoken or written words that are false and or misleading that gives the defamed a negative image and or hurts their reputation. The defamatory statement must be made to someone other than the person subject to the defamation. The law also differentiates between written and oral defamatory statements. Written statements are called libel and oral statements are slander.
Who is liable for libel statements made on blogs or social networks? Are owners of these sites liable for defamatory statements made by users of their sites? Or is the person who made the defaming statement solely liable?
Under the Communications Decency Act, an owner of a social networking site is not liable for the defamatory statements made about another on their site unless the site owner actively engages in the gathering of information from the user that leads to the defamatory statement. An example of this type of behavior is a blog owner soliciting comments from users on whether they dislike Celebrity X and why? The comments leads to defamatory statements about the celebrity and the blog owner supports, encourages, and endorses the libel statements.
Of course, anyone who makes a defamatory statement about another on any social network is personally liable for his or her statements.
How can owners of social networking sites and users of these sites protect themselves from defamation liability?
Owners should discourage and immediately remove potentially defamatory or libel statements from their sites. Owners should never enter into any dialogue with a user concerning a person's reputation. In addition, including a disclaimer or statement regarding your removal of any defamatory statements on your site, may potentially discourage users from engaging in such behavior. Plus it puts the public on notice that you do not endorse defamatory conduct.
Users of social networking sites should avoid personal opinions or negative comments that are not 100% factual and or statements that may harm a person's image or reputation. The best advice I have ever received is "if you don't have anything positive to say, then don't say nothing at all." One negative comment could cost you tons of money and heartache.
I welcome your thoughts!
Tuesday, June 23, 2009
Thursday, June 18, 2009
File Sharing & Fair Use: What does it mean for Consumers
Hello!
I hope your week has been productive.
I came across this article on the Daily Online Examiner, which gives an update on the Napster File Sharing Litigation. As many of you know, the Recording Industry Association of America (RIAA) waged a legal battle against Napster and users of file-sharing services for the past 10 years. However, one of those cases can effectively end the RIAA argument that file-sharing is copyright infringement and therefore punishable by a fine and or jail time.
In the case of RIAA vs. Joel Tenenbaum, the court is currently accepting an argument that peer to peer file sharing is a Fair Use exception to Copyright Infringement Laws. Essentially, the argument is that file sharing is not commercial use and therefore not copyright infringement. In lay terms, this means that as long as individual consumers are sharing files with friends for personal enjoyment and not a monetary fee, then copyright infringement does not exist and file-sharing is not a crime. I will explain Fair Use in more detail below:
Copyright Infringement occurs when another unlawfully copies, sells, displays or performs a copyright owner's work without their express permission. However, in some instances, copying a copyright owner's work without their permission is allowed. This is called the Fair Use exception. Specifically, an infringer of a copyright can argue Fair Use if they meet one of the following criteria:
1. the purpose and character of the use is for non-profit or non-commercial purposes;
2. the nature of the copyrighted work is artistic and benefits the public;
3. the amount and substantiality of the portion of the copy is minimal in relation to the copyrighted work as a whole; and
4. the effect of the copying upon the potential market for or value of the copyrighted work is minimal.
If Tennebaum's argument is successful, peer to peer file sharing may be considered legal and enjoy the same treatment as copying of television or cable shows for personal enjoyment. Currently, consumers can copy or record television or cable shows in their home as long as the recording is done for personal enjoyment and the recording is not re-broadcast or viewed by consumers for a fee.
It will be interesting to see how the judge rules this case. I will keep you posted.
I welcome your thoughts!
I hope your week has been productive.
I came across this article on the Daily Online Examiner, which gives an update on the Napster File Sharing Litigation. As many of you know, the Recording Industry Association of America (RIAA) waged a legal battle against Napster and users of file-sharing services for the past 10 years. However, one of those cases can effectively end the RIAA argument that file-sharing is copyright infringement and therefore punishable by a fine and or jail time.
In the case of RIAA vs. Joel Tenenbaum, the court is currently accepting an argument that peer to peer file sharing is a Fair Use exception to Copyright Infringement Laws. Essentially, the argument is that file sharing is not commercial use and therefore not copyright infringement. In lay terms, this means that as long as individual consumers are sharing files with friends for personal enjoyment and not a monetary fee, then copyright infringement does not exist and file-sharing is not a crime. I will explain Fair Use in more detail below:
Copyright Infringement occurs when another unlawfully copies, sells, displays or performs a copyright owner's work without their express permission. However, in some instances, copying a copyright owner's work without their permission is allowed. This is called the Fair Use exception. Specifically, an infringer of a copyright can argue Fair Use if they meet one of the following criteria:
1. the purpose and character of the use is for non-profit or non-commercial purposes;
2. the nature of the copyrighted work is artistic and benefits the public;
3. the amount and substantiality of the portion of the copy is minimal in relation to the copyrighted work as a whole; and
4. the effect of the copying upon the potential market for or value of the copyrighted work is minimal.
If Tennebaum's argument is successful, peer to peer file sharing may be considered legal and enjoy the same treatment as copying of television or cable shows for personal enjoyment. Currently, consumers can copy or record television or cable shows in their home as long as the recording is done for personal enjoyment and the recording is not re-broadcast or viewed by consumers for a fee.
It will be interesting to see how the judge rules this case. I will keep you posted.
I welcome your thoughts!
Thursday, June 11, 2009
Understanding USPTO Office Actions
Hello!
Welcome Back! Posting was kind of slow this past week because my MAC is in the shop getting a much deserved upgrade!
Understanding USPTO Office Actions can be a very daunting tasks for a non-attorney. Office Actions are drafted by USPTO attorneys and set forth the legal status of a trademark application. Thus the Office Action contains a lot of legalese, i.e., rules, laws, etc. that may need interpretation and sometimes further research and explanation. Understandably, an individual who filed their application without an attorney can be intimated and confused. There are several types of Office Actions. However, I will address the two types I encounter the most.
Office Action: An USPTO examining attorney informs the applicant of any conflicts with another trademark. Also an examining attorney may address issues such as whether the trademark is valid under US trademark law or the sufficiency of submitted specimens. An applicant has 6 months to respond to the Office Action and to correct or address each issue raised. If each issue is not addressed and appropriately remedied within the 6 month time frame, then the application will be abandoned.
Priority Action: An USPTO examiner will issue this action after consulting with the applicant or the applicant's attorney regarding specific requirements that have to be met before the application is approved for publication. If the requirement is not met, the application will be abandoned. However, if the applicant responds within 2 months, the application is given priority processing.
If you are a business or individual who receives one of the above actions, and have no idea how to respond, it is very important to obtain legal assistance. If an applicant does not address all of the issue and/or does not respond within 6 months, the applicantion can be abandoned. I obtain many clients who are near the abandonment stage or their application has been abandoned because they did not answer the Office Action correctly. Fortuantely, if an application is abandoned, the USPTO does allow the applicant to Petition the USPTO to revive the application. The cost is $100 and must be received within 2 months after the abandonment takes effect.
As always I welcome your thoughts. And please if you have a question, please ask.
Welcome Back! Posting was kind of slow this past week because my MAC is in the shop getting a much deserved upgrade!
Understanding USPTO Office Actions can be a very daunting tasks for a non-attorney. Office Actions are drafted by USPTO attorneys and set forth the legal status of a trademark application. Thus the Office Action contains a lot of legalese, i.e., rules, laws, etc. that may need interpretation and sometimes further research and explanation. Understandably, an individual who filed their application without an attorney can be intimated and confused. There are several types of Office Actions. However, I will address the two types I encounter the most.
Office Action: An USPTO examining attorney informs the applicant of any conflicts with another trademark. Also an examining attorney may address issues such as whether the trademark is valid under US trademark law or the sufficiency of submitted specimens. An applicant has 6 months to respond to the Office Action and to correct or address each issue raised. If each issue is not addressed and appropriately remedied within the 6 month time frame, then the application will be abandoned.
Priority Action: An USPTO examiner will issue this action after consulting with the applicant or the applicant's attorney regarding specific requirements that have to be met before the application is approved for publication. If the requirement is not met, the application will be abandoned. However, if the applicant responds within 2 months, the application is given priority processing.
If you are a business or individual who receives one of the above actions, and have no idea how to respond, it is very important to obtain legal assistance. If an applicant does not address all of the issue and/or does not respond within 6 months, the applicantion can be abandoned. I obtain many clients who are near the abandonment stage or their application has been abandoned because they did not answer the Office Action correctly. Fortuantely, if an application is abandoned, the USPTO does allow the applicant to Petition the USPTO to revive the application. The cost is $100 and must be received within 2 months after the abandonment takes effect.
As always I welcome your thoughts. And please if you have a question, please ask.
Tuesday, June 2, 2009
USPTO Filing Fees: Why Some Are More Expensive Than Others
Hello!
Last week I wrote a post mentioning USPTO fees to file two classifications under one trademark. I stated that the fees were $275 per classification for one trademark and the filing fee for each unique trademark is $325. However, a reader rightfully pointed out that USPTO filing fees are different prices depending on whether you are filing a paper application vs. online application. Also, the USPTO has a shorter online application that is less expensive than a regular online application.
As a result of @BSpeer's comment, I decided to break down the USPTO application fee structure below:
$275 per classification if you qualify to use a TEAS PLUS online application. For a list of requirements to file a TEAS PLUS online application, click here. Most importantly, your services or goods must appear in the USPTO's Acceptable Identification of Goods and Services Manual and you must agree to communicate with the USPTO regarding your application via email.
$325 per classification if do not qualify to use TEAS PLUS and you have to use a regular TEAS online application.
$375 if you choose not to apply online and use a paper application.
I hope this post clarifies my earlier statements and gives a better explanation of the USPTO's filing fees for trademark applications. I always welcome your thoughts and comments.
Last week I wrote a post mentioning USPTO fees to file two classifications under one trademark. I stated that the fees were $275 per classification for one trademark and the filing fee for each unique trademark is $325. However, a reader rightfully pointed out that USPTO filing fees are different prices depending on whether you are filing a paper application vs. online application. Also, the USPTO has a shorter online application that is less expensive than a regular online application.
As a result of @BSpeer's comment, I decided to break down the USPTO application fee structure below:
$275 per classification if you qualify to use a TEAS PLUS online application. For a list of requirements to file a TEAS PLUS online application, click here. Most importantly, your services or goods must appear in the USPTO's Acceptable Identification of Goods and Services Manual and you must agree to communicate with the USPTO regarding your application via email.
$325 per classification if do not qualify to use TEAS PLUS and you have to use a regular TEAS online application.
$375 if you choose not to apply online and use a paper application.
I hope this post clarifies my earlier statements and gives a better explanation of the USPTO's filing fees for trademark applications. I always welcome your thoughts and comments.
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