What does the termination of a contract do to certain intellectual property rights that were granted, in perpetuity, from one party to another within that document? A recent ruling in the U.S. Southern District of New York can be instructive on this issue.
The Online Copyright Infringement Liability Limitation Act (OCILLA), also known as DMCA 512 was passed in 1998 as part of the Digital Millennium Copyright Act (DMCA). OCILLA is also known as the “Safe Harbor” provision in the DMCA, which shields internet service providers (ISPs) from being forced to pay any monetary damages as a result of copyright infringement by users of their services.
In order for an ISP to qualify for the safe harbor protection, it must follow through on its policy of terminating the accounts of users who are known to be repeat copyright infringers and comply with standard technical measures. Typically, ISPs shielded from liability if:
- The transmission of the copyrighted material was initiated by or at the direction a person other than the ISP;
- The transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the ISP;
- The ISP does not select the recipient of the material except as an automatic response to the request of another person;
- No copy of the material made by the ISP in the course of such intermediate or transient storage is maintained on the ISP’s system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
- The material is transmitted through the ISP system or network without modification of its content.
A key to avoiding potential liability is to stay as far away from the controversy as possible. The safe harbor provision, in effect, sometimes encourages ISPs to turn a blind eye to copyright infringement, which is not what lawmakers intended.
Recently, there has been a push to give ISPs a more important role in the fight against widespread online copyright infringement. A group of ISPs that includes AT&T, Comcast, and Verizon are said to be in serious talks with with media and entertainment companies regarding the adoption of a “graduated response” to repeat copyright infringers. This new response would begin with the ISPs sending out “Copyright Alerts,” which is a fancy way of stating that the ISPs will be sending out written warnings to those accused of infringing activities. Eventually, the ISPs could decrease the alleged infringers’ bandwidth speed and/or limit access to the web. All based on an accusation made by the copyright holder.
Punishment based on an accusation, and not a conviction, is troubling for consumers. But ISPs also have to worry that with increased information from copyright holders, even if the information is not substantiated by any solid proof, ISPs will have to follow through on its new policies or run the risk of not being protected by the DMCA’s safe harbor.
If ISPs institute the anticipated graduated response to repeat copyright infringers, many innocent internet subscribers will likely see their use of the web wrongfully restricted based on accusations by copyright holders. In that case, the accused infringer should seek the help of an attorney. Please contact us for any more information regarding this topic.
Authors and scholars would love to be able to use unpublished works in their own works, but they must do so carefully so that they do not run afoul of copyright law and publisher restrictions. Historically, it has been tough to prove a fair use when dealing with unpublished works. There is no per se rule against finding a fair use of an unpublished work, but the holding of Harper & Row v. Nation Enterprises is applicable. It states, “that for the purposes of the second statutory factor, the unpublished nature of the work is ‘a key, though not necessarily determinative factor tending to negate a defense of fair use.'”
There are four factors of fair use:
- The purpose and character of the use.
- The nature of the copyrighted work – Scope of fair use broader for factual work. Look at creativity, imagination, investment of time in anticipation of financial return.
- The amountnt and substantiality of the work used.
- The effect of the use on the market value of the original.
Even if the second factor weighs in favor of the person who owns the copyright to the unpublished work, if the first, third, and fourth factors weigh heavily in favor of the claimed infringer, he may still prevail under a finding of fair use.
But then there is the chilling effect that cases have had on the publishing industry. Even if an author wishes to take a chance and challenge his ability to make a fair use of an unpublished work, he will likely be blocked by a major publisher. That is because many publishers are requiring authors to get written permission from copyright holders before using any unpublished works, even though it is likely that they would fall under the fair use doctrine.
Be careful when using any unpublished works and make sure to consult an attorney about this and any other intellectual property concern you may have.
Here is a sample definition of likeness – name, silhouette, personality, appearance, performance, depiction, portrayal, photograph and voice. It is an integral definition in many licensing agreements where one party hopes to be able to exploit the other party, usually for a hefty fee. What if you were not entitled to just compensation for the use of your likeness by another? On one end, people have a right to control their image and reap a reward when others use it. On the other, free-speech rights under the First Amendment should allow certain uses of likeness without permission in particular instances. Read more “Sam Keller Seeks To Protect Athletes’ Right of Publicity”
A no-poach agreement is just slightly different than a non-compete agreement. A majority of states permit employers to place non-compete clauses in employer contracts and even have standalone non-compete agreements with employees that are separate from the employment contracts that are executed. California is known as being one of the few states that rarely permits a non-compete clause or contract to exist between employer and employee. It just so happens that a lot of tech companies are based in the state.
Even outside of California, companies have to be careful with the type of non-competes they use with their employees. It is not as if a company will be punished if the non-compete is too overbroad; the non-compete just will not be enforced by a court of law.
When a non-compete is designed to protect some legitimate interest (e.g. a trade secret), it will be enforced if reasonable in duration and geographic coverage. When it is overbroad, but no taint of unfairness exists, some courts will modify the restrictions. Reasonableness is based on duration of the restriction, territory covered, and subject matter. Some courts will apply the “blue pencil rule” in which the offensive portions of the contract are excised and the remainder enforced, if read alone, it makes sense grammatically.
Quite a few tech companies, including Adobe, Google, Intel, Intuit, Apple, and Pixar were entering into no-poach agreements with each other, where instead of inserting language into the employment contract with employees that would restrict their job opportunities after leaving their current employment, the companies were agreeing with each other to not pursue one another’s former employees. Read more “Google, Apple, Intel, Adobe, Pixar, Intuit Told To Get Out Of Bed With Each Other”