CyberCrunch

Welcome

This is the Digital Business Law Group (DBLG) blog.

Here you will find commentary regarding legal topics that are pertinent to our practice areas. The use of this blog, like the rest of our site, is conditioned upon acceptance of our Terms of Use and controlled by our Privacy Policy. Essentialy, none of the information on this blog should be regarded as legal advice. Furthermore, an attorney/client relationship may only be established after entering into a written retainer agreement, signed by the respective parties.

Google Keywords & Trademark Liability?

Link: He was a trademark owner, she was a competitor, he would take her to court over keyword advertising. Recent court decisions point to potential liability with respect to the use of competitor trademarks to trigger Google Ads. Online businesses that use Google PPC to drive revenue need to pay attention to this trend.

Whether or not "initial interest confusion" is found probably turns on whether a competitor's trademark(s) are used in the triggered ad. To learn more about this doctrine and related case law click here.

Privacy: The "Super Hot" IP Issue for the Next 5 Years!

Link: Internet law - Evan Brown - Wouldn’t Privnote be better if it had a privacy policy? - Internet Cases - Chicago Intellectual Property attorney » Blog Archive » Wouldn’t Privnote be better if it had a privacy policy?. There will be no hotter intellectual property issue in the next five years than privacy. A storm is brewing and we will all feel the impact in ways both large and small.

Politicians will be paying attention because constituents are going to be bending their ears quite a bit on this topic. Hopefully, the right public policy balance will be struck that both protects consumers and does not seriously impede online business.

Growing the Internet "Property" Space

Link: Web Domains Expanding? Looks like top level domain name (TLDs) could be expanding if this article from the WSJ has it right. On its face it appears to be an interesting idea, but one wonders what legal issues lie hidden?

Domain names, as a form of intellectual property, are so badly managed today that any expansion of the space is only going to contribute to the fortunes of those companies that participate in the domain name cottage industry, including law firms.

Why law firms? Because more disputes will arise due to the lack of sufficient transactional safeguards related to the buying and selling of what amounts to potentially very expensive property.

It is still the wild, wild west regarding domain name transactions and it need not be. Simply by following basic real property analogues most of the disputes could be eliminated or significantly mitigated.

Business organizations need to apply common sense best practices with respect to the management of their domain name portfolios. It amounts to basic blocking and tackling, but as we all know, the fundamentals are easy to talk about but not so easy to consistently execute.

Implications of Copyright Registration

Attorney's are well advised to inform their clients regarding the implications inherent in failing to register a copyright in a timely manner. Bill Patry has two excellent posts on point here and here. So much of IP law, like many other endeavors in life, is simply a matter of doing the right thing at the right time. It comes down to executing on the basics. However, the basics are precisely where things often slip through the cracks. We often fail to do what we know we should do.

There is no simple solution to this problem. However, having a checklist of what needs to be done and why it is important can go a long ways toward improving our ability to execute. Quality assurance can only be achieved vis-a-vis process. If the process is not well defined then mistakes will be made consistently. Why? Because the human mind can only retain so much in short term memory. In other words, given the pressures of the daily grind, we simply forget.

Copyright: First Sale Doctrine

A couple of recent decisions help explain the contours of the First Sale Doctrine and it applicability with respect to copyright law (see here and here). There is often confusion among both lawyers and the lay public regarding how it works.

Often, reading the case law is the best way to get a feel for it--short of that reading quality commentary can serve as a quick substitute. I don't necessarily recommend that lawyers simply read the commentary however, because even a quality blog post can only do so much. Interested non-lawyer stakeholders can get a "feel" for the doctrine indirectly and often that is all they have the bandwidth to do.

If you want additional background information on the doctrine click here.

Tracking IP Legislation: Follow the Money

Link: Secret super-copyright treaty leaked - Boing Boing. Cory has got it exactly right. One of the best ways to track where intellectual property legislation may be headed is to follow the money. Big contributions from special interests do not necessarily mean that the legislation is bad, but it often does mean that you might be better able to predict the potential winners and losers.

Special interest lobbying is simply the way our democracy works. Does it tend to favor the incumbents with lots of money to spend, sure it does. If the masses want to change IP law then they need to make their case and bend the ear of their representatives, and probably raise and contribute money as well. Is it a level playing field? No. Can it work? Yes. After all the one thing that politicians respond to more than lobby money is anything that might prevent them from getting elected.

Victory for Fair Use?

Link: The Patry Copyright Blog: Imagine There Was Fair Use. Here the court apparently denied the preliminary injunction because there was a likelihood that the defendants would prevail on their Fair Use defense. On its face it would seem that this a victory for Fair Use proponents, and it is a victory of sorts. But the irony that is lost here is that Fair Use is an affirmative defense to an infringement action; you may prevail but you are going to pay for the opportunity to do so. The game is not over here. This was just an argument for a preliminary injunction. Plaintiffs can still continue the fight and Yoko is likely to do so.

Most small to medium size businesses simply cannot afford to litigate these actions. It is usually far more cost effective simply to be in 100% compliance. This is more about economics than justice. Sure we would all probably benefit from a saner approach to Fair Use, but that is not the current reality and not likely to be anytime soon.

The Patent Balancing Act

Link: Peter Zura's 271 Patent Blog: FTC Looking to Break Down "Patent Walls" For Standardized Technologies. Striking the right balance between the quid pro quo for the public and incentives for inventors to innovate has always been a challenge. It looks like the anti-trust police seem to believe that the time is right for the pendulum to swing back the other way.

This give and take has always been part of the patent policy debate and will remain so. It is the beauty of American jurisprudence that it is capable of dealing with the practical realities on the ground (read the current business environment) and react accordingly. Sure we often do not get it right, but there is a mechanism available for course corrections and it is often used.

CDM Rulebook: High Quality Web Based Legal Info

Link: CDM Rulebook - Home. Here is an example of a law firm, Baker & McKenzie, using the web for legal information that serves its clients and the firm. Publish, promote & prevail. More and more firms could do the same, but few will. Why? Because developing quality content is expensive. Here, Baker & McKenzie received outside funding for development. But many firms are capable of quality content efforts on a smaller scale. This is an excellent example because it is a harbinger of things to come in the legal industry.

Business Record Retention Policies

The explosion of electronically stored information (ESI) and the recent changes to the Federal Rules of Civil Procedure (FRCP) have triggered a renewed interest in business record retention policies or what was formerly known as records management (RM). Since most business records are now stored electronically we prefer the term electronic records management (ERM). ERM is different than document management in that the latter concerns itself with issues related to creation/inception and the former with a business record's end of life.

The current state of ERM within most mid to large organizations is one of chaos. Approaches range from keeping everything "just in case" to the indiscriminate deletion of business records with no policy justification at all. Neither approach is tenable. The former because of the negative hidden economic impact of people and infrastructure costs (not to mention the counterintuitive lack of litigation readiness that results) and the latter due to potential sanctions that might result because of the new FRCP rules (not to mention the fact that indiscriminate deletion of business records does not make business sense).

What's the solution? Clearly an organization needs both an ERM policy (i.e. a governance mechanism) and a technical strategy to enforce it. Most solutions tend to focus on one or the other. It is clear that an ERM policy has legal implications, but a policy without an enforcement mechanism probably won't satisfy the "good faith" requirements of the FRCP rules. In the words, the solution requires an interdisciplinary approach.

Clients should be wary of proposed initiatives that do not include both.