Happy New Year!
I hope your New Year started off awesome and wonderful things happen for you in 2011.
Have you heard of the service Paper.li? Well it is the new rage on Twitter and it is beginning to take off. Paper.li allows users to organize links shared on Twitter and now Facebook into a newsletter style format. For example, a Twitter user can create a free paper.li account and designate specific Twitter users' links, usually based on subject or topic, into their own online newspaper. Sounds like a pretty amazing service. However, I observed that the newspaper does not only post the links to the content but a portion of the content published in those links. Sometimes the amount of content is a sentence or two. However, other times the service may publish a portion of content that equals a small paragraph.
I had an opportunity to interview one of the founder's of Paper.Li, Edouard Lambelet, regarding how the service works; benefits of paper.li; and possible copyright challenges. Below is what he had to say:
IPLAW101: Mr. Lambelet thank you so much for taking time out of your busy day to talk to IPLAW101 about paper.li.
Edouard: No problem. We enjoy talking to content producers. Content producers are the leaders in social curation and this is what our service is about.
IPLAW101: How did you come up with the concept of Paper.Li?
Edouard: We just wrote a blog post on this very question. On the blog we gave an in depth analysis of the need for paper.li. Paper.Li was created to fill the void in content curation. Basically, there is so much information being shared on Social Media platforms and it can be overwhelming. Paper.Li acts as a filter and organizes content by semantics and ranking. Through this system we are able to arrange content via topics and relevancy to the user.
IPLAW101: I have used the service and had my content re-published in other newsletters. I was a bit concerned about the amount of content that was published in the newsletter. The service re-publishes links but also a portion of content from those links. What is your reasoning behind re-publishing content and not just links to content? Are you concerned about Copyright challenges?
Edouard: Well the re-publishing of a small portion of the content contained in the links makes it easier for users to read and discern what content to read and in what order relevant to them. Also the re-posting of a snippet of the content provided by links is pretty much the standard now in social networking platforms. Twitter and Facebook are currently providing the same type of service to their users.
In addition, we do not re-publish links from private accounts on either Twitter or Facebook. We only re-publish links from public accounts.
IPLAW101: I think the difference in paper.li's service is that the user is able to create their own newspaper and acts as a publisher of the content whereas on Twitter and Facebook the user is freely sharing their content and links. So initially it seems as if the user may be publishing content without the owner's permission. I had a Twitter debate regarding paper.li and a fellow Twitter user suggested maybe your service can require users to send a link to content creators asking their permission to re-publish portions of their content. Have you ever considered making this an option with your service?
Edouard: Actually no. We have never received any complaints about the re-publishing of a portion of content via links. As a matter of fact, users have raved about the service because it boosts blog traffic. Users generally experience a tremendous boost in blog traffic.
IPLAW101: Yes, I have heard this from other Paper.Li users and they all are amazed about the jump in blog traffic.
Edouard: In addition, if a content producer does not want their content included in a paper.li newspaper, we do give them the option to opt-out of the service. Our goal is to be the leader in social curation and help users of share and consume content in an highly organized fashion.
IPLAW101: Thank you for your time.
Edouard: Thank you.
I really did appreciate Edouard giving me this interview at 10pm Paris time. He was very open to discussing the platform. Essentially his view is that the benefits of paper.li outweighs any possible copyright issues.
My take:
As I have previously discussed on this blog, copyright infringement occurs when:
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.
Paper.li's publishing of a portion of the copyright owner's work without their permission arguably falls under number 3 of the Fair Use exception, the amount and substantiality of the portion of the copy is minimal in relation to the copyrighted work as a whole. To be fair to paper.li, re-publishing only a couple of sentences may very well qualify as Fair Use. Plus the U.S. Courts have not been very definitive about what portion of a copyright work is Fair Use or Copyright Infringement. These cases are usually decided on a case by case basis. For example, a few sentences of an article may be copyright infringement if it contains the heart of the work. Harper & Row, Publishers, Inc. v. Nation Enters, 471 U.S. 539 (1985). In the alternative, a substantial portion of a work may be Fair Use if the use is a parody or criticism. Campbell v. Acuff-Rose Music, INc., 510 US 569 (1994).
So far the service has not received any challenges and user's find it beneficial to their blogs. Paper.li has over 2 million users and has just raised another $2.1 million in financing to expand the service globally. So paper.li is having a great deal of success. I will be watching to see how the service grows and deals with issues as they arise.
Showing posts with label Facebook. Show all posts
Showing posts with label Facebook. Show all posts
Monday, January 10, 2011
Wednesday, October 27, 2010
Facebook vs. Faceporn: Trademark Infringement or Copyright Infringement
Hello!
Recently, Facebook filed a lawsuit against the pornographic social networking site, Faceporn, alleging trademark infringement of its trademark, Facebook. Specifically, Facebook alleges the use of the mark, Faceporn, is "confusingly similar" to the mark Facebook and the use of the mark, Faceporn, is causing dilution of the Facebook brand.
Dilution
Dilution is a trademark infringement legal claim that can be asserted by famous brands. I have previously discussed Dilution here. Dilution occurs when a lesser known brand uses the mark of a famous trademark owner, and the use of the more famous mark by the lesser known brand, dilutes the distinctiveness of the famous trademark. Dilution can be asserted by famous trademarks even if the products or services are totally unrelated.
Although, Facebook is claiming the use of the Faceporn mark is diluting its brand via tarnishing its reputation, with the revision of the Dilution statute, the only thing Facebook has to prove is the use of the Faceporn mark will cause a likelihood of confusion between the two trademark among the relevant consuming public.
Likelihood of Confusion
The courts determine whether likelihood of confusion exists by balancing 8 factors. Those factors are: if the marks are similar in sight, sound, and meaning; the similarity of the goods and services sold; the similarity of the distribution channels and customers for the goods or services at issue; the sophistication of purchasers and the expense of the product or service at issue; the similarity of means and methods of advertising and promoting the goods or services at issue; whether there is evidence of actual confusion of consumers or other relevant groups; the strength of the mark; and was the potentially infringing trademark adopted with good faith or with intent to imitate the established trademark?
I think Facebook would have a hard time proving the trademarks were similar in sight, sound, and meaning. Facebook and Faceporn clearly do not have the same meaning. Furthermore, they really do not sound the same...book and porn. The only thing Facebook could possible claim is similar is the word "face" in both trademarks. But I do not believe that is similar enough. Next, Faceporn could certainly refute that Facebook and Faceporn have the same customers and/or distribution channels. Individuals looking for porn are not going to go to Facebook to find it. At least I don't think so. In addition, Facebook users seems to be very sophisticated consumers and would have enough intellect not to go to Facebook looking for or expecting to see the contents of Faceporn. Also, I am sure Facebook and Faceporn are not promoting their services through the same advertising and/or marketing channels. Lastly, I do not believe Facebook can prove actual confusion between both sites among their and Faceporn's consumers. Like I said earlier, people looking for porn are not going to visit Facebook attempting to find it and vice-versa.
However, I do believe the strength of Facebook's lawsuit against Faceporn lies in the last two factors. Clearly, Facebook, has a strong trademark. It is a unique term created by Facebook and was created to brand the number one social networking site. Also, Facebook could easily prove Faceporn created the trademark and site with the intent to copy the famous Facebook trademark. Specifically, Faceporn's site did have the same look and feel as Facebook. The logo was in the same type and font, the color scheme was the same and the layout was identical to Facebook's. I believe Facebook would have a stronger copyright infringement claim than a trademark claim. Clearly, Faceporn copied the layout and style of Facebook's site.
You can view a screen shot of the Faceporn site here. It has since been changed. But what do you think?
Recently, Facebook filed a lawsuit against the pornographic social networking site, Faceporn, alleging trademark infringement of its trademark, Facebook. Specifically, Facebook alleges the use of the mark, Faceporn, is "confusingly similar" to the mark Facebook and the use of the mark, Faceporn, is causing dilution of the Facebook brand.
Dilution
Dilution is a trademark infringement legal claim that can be asserted by famous brands. I have previously discussed Dilution here. Dilution occurs when a lesser known brand uses the mark of a famous trademark owner, and the use of the more famous mark by the lesser known brand, dilutes the distinctiveness of the famous trademark. Dilution can be asserted by famous trademarks even if the products or services are totally unrelated.
Although, Facebook is claiming the use of the Faceporn mark is diluting its brand via tarnishing its reputation, with the revision of the Dilution statute, the only thing Facebook has to prove is the use of the Faceporn mark will cause a likelihood of confusion between the two trademark among the relevant consuming public.
Likelihood of Confusion
The courts determine whether likelihood of confusion exists by balancing 8 factors. Those factors are: if the marks are similar in sight, sound, and meaning; the similarity of the goods and services sold; the similarity of the distribution channels and customers for the goods or services at issue; the sophistication of purchasers and the expense of the product or service at issue; the similarity of means and methods of advertising and promoting the goods or services at issue; whether there is evidence of actual confusion of consumers or other relevant groups; the strength of the mark; and was the potentially infringing trademark adopted with good faith or with intent to imitate the established trademark?
I think Facebook would have a hard time proving the trademarks were similar in sight, sound, and meaning. Facebook and Faceporn clearly do not have the same meaning. Furthermore, they really do not sound the same...book and porn. The only thing Facebook could possible claim is similar is the word "face" in both trademarks. But I do not believe that is similar enough. Next, Faceporn could certainly refute that Facebook and Faceporn have the same customers and/or distribution channels. Individuals looking for porn are not going to go to Facebook to find it. At least I don't think so. In addition, Facebook users seems to be very sophisticated consumers and would have enough intellect not to go to Facebook looking for or expecting to see the contents of Faceporn. Also, I am sure Facebook and Faceporn are not promoting their services through the same advertising and/or marketing channels. Lastly, I do not believe Facebook can prove actual confusion between both sites among their and Faceporn's consumers. Like I said earlier, people looking for porn are not going to visit Facebook attempting to find it and vice-versa.
However, I do believe the strength of Facebook's lawsuit against Faceporn lies in the last two factors. Clearly, Facebook, has a strong trademark. It is a unique term created by Facebook and was created to brand the number one social networking site. Also, Facebook could easily prove Faceporn created the trademark and site with the intent to copy the famous Facebook trademark. Specifically, Faceporn's site did have the same look and feel as Facebook. The logo was in the same type and font, the color scheme was the same and the layout was identical to Facebook's. I believe Facebook would have a stronger copyright infringement claim than a trademark claim. Clearly, Faceporn copied the layout and style of Facebook's site.
You can view a screen shot of the Faceporn site here. It has since been changed. But what do you think?
Wednesday, September 2, 2009
Facebook's New Privacy Policy: What does it mean for users?
Hello:
Previously I wrote a blog post about the importance of having a privacy policy if you own or maintain a website (blog, social network, etc.)
I discussed the need of website to state clearly: what information is collected from users; reveal what type of technology is used to collect information; explain to users what is done with the information collected; give users the option to opt out of providing information; and reveal measures in place to protect users' personal information.
Facebook recently revealed the company modified its privacy policy to require API Developers (3rd party application developers) to inform users in advance of what categories of data is needed to use the application. In addition, when users authorize an application, they can opt out of giving certain information. This change comes on the heels of Canada's Privacy Commissioner's concern about the "over-sharing of personal information with third-party developers of Facebook applications such as games and quizzes."
In my opinion this is a good move. Although the option to download third party applications is a user's choice, giving user's the ability to opt out of giving detailed personal information while still using the application, will possibly encourage more users to use the applications. Also the new policies give user's more detailed information about what information is required before downloading the applications. Now user's can make a more informed choice.
I welcome your thoughts!
Previously I wrote a blog post about the importance of having a privacy policy if you own or maintain a website (blog, social network, etc.)
I discussed the need of website to state clearly: what information is collected from users; reveal what type of technology is used to collect information; explain to users what is done with the information collected; give users the option to opt out of providing information; and reveal measures in place to protect users' personal information.
Facebook recently revealed the company modified its privacy policy to require API Developers (3rd party application developers) to inform users in advance of what categories of data is needed to use the application. In addition, when users authorize an application, they can opt out of giving certain information. This change comes on the heels of Canada's Privacy Commissioner's concern about the "over-sharing of personal information with third-party developers of Facebook applications such as games and quizzes."
In my opinion this is a good move. Although the option to download third party applications is a user's choice, giving user's the ability to opt out of giving detailed personal information while still using the application, will possibly encourage more users to use the applications. Also the new policies give user's more detailed information about what information is required before downloading the applications. Now user's can make a more informed choice.
I welcome your thoughts!
Tuesday, June 23, 2009
Defamation and Social Media
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!
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!
Wednesday, February 18, 2009
Facebook's Terms of Service Agreement
Hello!
Facebook announced their new Terms of Service (TOS) Agreement this week. The new terms had the blogosphere in an uproar. Basically, the new Facebook TOS Agreement stated that users gave Facebook a perpetual (forever) license to use any intellectual property (writings, photos, links, etc.) posted on Facebook as the company wished. This license was granted and remained in effect even if you, the user, deleted your account. The old Facebook TOS Agreement stated that the license terminated once the account was deleted. Basically thousands of users protested this new change and Tuesday Marc Zuckerberg, CEO of Facebook, announced that the old Facebook TOS Agreement would stand.
In this article, I will examine what is a TOS; why every website should have one; and understanding the legal implications of agreeing to a TOS Agreement.
What is a TOS Agreement?
A term of service agreement is a document that outlines the terms and conditions that a user must agree with to use the services of the Internet Service Provider (ISP). Agreement to an ISP's TOS Agreement is usually required before the user can access the ISP's website. However, these agreements are always long and riddled with legal terms which most users do not read or simply do not understand. As a result, most users agree to the terms without knowing exactly what they are agreeing to.
Why are TOS Agreements important?
Terms of Service Agreements are important because they do the following:
1. Outline the services provided.
2. Explain what type of content the user can download and share on the site.
3. Explain who owns content provided by the user or ISP on the site.
4. Outline the required conduct of users of the site.
5. Require that users comply with applicable laws and regulations.
However this list is not exhaustive. The above terms ensure that the ISP is adequately protected from certain claims by users of their service. It also protects other users of the service from claims and from conduct that is harassing, derogatory, or offensive. These terms definitely come into play when users post original content that they have created, i.e, intellectual property. Intellectual Property is owned by its creator. However, an owner of intellectual property can always license, sell, or transfer rights and ownership in the intellectual property. If an individual or entity uses another's intellectual property without their permission, the owner can assert a claim for infringement. Considering the potential legal claims for infringement, all ISPs have very extensive and iron-clad clauses regarding intellectual property posted on their sites. Usually the clauses contain the following terms:
"You grant the ISP a perpetual, royalty-free (no payment) irrevocable, non-exclusive license to use, reproduce and distribute your Content within the service.......You authorize third parties to use and reproduce your content." Second Life TOS.
In addition, in some cases the ISP can use your content in any or all media for marketing and/or promotional purposes in connection with the Service. Furthermore, some TOS agreements state that any intellectual property you post on their site is 100% owned by the ISP!
Usually if a user terminates the service with the ISP, these clauses are no longer in effect. Facebook briefly changed this term to state that they owned the content regardless of a user's termination. Why? Because of the nature of file-sharing that is commonplace on a site such as Facebook, Facebook can not control who has access to your intellectual property or how they use it. So once you terminate your relationship, Facebook may delete your account, but your content may still live on Facebook through file sharing.
What are the legal implications of the above clauses?
When agreeing to a TOS Agreement make sure you read the agreement and understand what you are agreeing to. Every ISP's TOS Agreement is not the same. For example, any intellectual property created or posted in Second Life is 100% owned by the user. However, when using virtual world sites such as Disney or Coca Cola, the TOS Agreement states that they will own any material created or posted by the user.
Essentially, if you want total control over your intellectual property either do not use the service or do not post any material that you do not want the ISP to use or retain as they wish. Crying foul after you have agreed to an ISP's terms and conditions will not disaffirm or erase what you have already agreed to.
I welcome your thoughts!
Facebook announced their new Terms of Service (TOS) Agreement this week. The new terms had the blogosphere in an uproar. Basically, the new Facebook TOS Agreement stated that users gave Facebook a perpetual (forever) license to use any intellectual property (writings, photos, links, etc.) posted on Facebook as the company wished. This license was granted and remained in effect even if you, the user, deleted your account. The old Facebook TOS Agreement stated that the license terminated once the account was deleted. Basically thousands of users protested this new change and Tuesday Marc Zuckerberg, CEO of Facebook, announced that the old Facebook TOS Agreement would stand.
In this article, I will examine what is a TOS; why every website should have one; and understanding the legal implications of agreeing to a TOS Agreement.
What is a TOS Agreement?
A term of service agreement is a document that outlines the terms and conditions that a user must agree with to use the services of the Internet Service Provider (ISP). Agreement to an ISP's TOS Agreement is usually required before the user can access the ISP's website. However, these agreements are always long and riddled with legal terms which most users do not read or simply do not understand. As a result, most users agree to the terms without knowing exactly what they are agreeing to.
Why are TOS Agreements important?
Terms of Service Agreements are important because they do the following:
1. Outline the services provided.
2. Explain what type of content the user can download and share on the site.
3. Explain who owns content provided by the user or ISP on the site.
4. Outline the required conduct of users of the site.
5. Require that users comply with applicable laws and regulations.
However this list is not exhaustive. The above terms ensure that the ISP is adequately protected from certain claims by users of their service. It also protects other users of the service from claims and from conduct that is harassing, derogatory, or offensive. These terms definitely come into play when users post original content that they have created, i.e, intellectual property. Intellectual Property is owned by its creator. However, an owner of intellectual property can always license, sell, or transfer rights and ownership in the intellectual property. If an individual or entity uses another's intellectual property without their permission, the owner can assert a claim for infringement. Considering the potential legal claims for infringement, all ISPs have very extensive and iron-clad clauses regarding intellectual property posted on their sites. Usually the clauses contain the following terms:
"You grant the ISP a perpetual, royalty-free (no payment) irrevocable, non-exclusive license to use, reproduce and distribute your Content within the service.......You authorize third parties to use and reproduce your content." Second Life TOS.
In addition, in some cases the ISP can use your content in any or all media for marketing and/or promotional purposes in connection with the Service. Furthermore, some TOS agreements state that any intellectual property you post on their site is 100% owned by the ISP!
Usually if a user terminates the service with the ISP, these clauses are no longer in effect. Facebook briefly changed this term to state that they owned the content regardless of a user's termination. Why? Because of the nature of file-sharing that is commonplace on a site such as Facebook, Facebook can not control who has access to your intellectual property or how they use it. So once you terminate your relationship, Facebook may delete your account, but your content may still live on Facebook through file sharing.
What are the legal implications of the above clauses?
When agreeing to a TOS Agreement make sure you read the agreement and understand what you are agreeing to. Every ISP's TOS Agreement is not the same. For example, any intellectual property created or posted in Second Life is 100% owned by the user. However, when using virtual world sites such as Disney or Coca Cola, the TOS Agreement states that they will own any material created or posted by the user.
Essentially, if you want total control over your intellectual property either do not use the service or do not post any material that you do not want the ISP to use or retain as they wish. Crying foul after you have agreed to an ISP's terms and conditions will not disaffirm or erase what you have already agreed to.
I welcome your thoughts!
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