by Mike Oliver | May 1, 2013 | LegalEase, Uncategorized
A familiar question dependably re-emerges at about this time each year.
It essentially asks “can I get in copyright trouble for having a Super Bowl party with a big screen TV?”
This post gives you some ground rules in order to spare everyone from the possibility of being arrested by the copyright police . (Disclaimer: there is no copyright police, but some copyright enforcers are just as aggressive as the pretend police would be if they really existed.)
The short answer is “yes you can host a Super Bowl party” but there are a few rules.
The answer to this question lies in Section 110 of the Copyright law – entitled “Limitations on exclusive rights: exemption of certain performances and displays.” Within that section, there are a number of copyright restrictions related to big screen televisions and projector screens. There are also several exemptions to those restrictions. So essentially, as long as you are watching the game in your private home and are not charging admission, you can have a giant one-bazillion inch television or projector and cram your house full of people like a clown car and not worry about it. Just be sure not to use the outside of your house as the projector screen or otherwise make it visible outside of your home so it does not become a public viewing.
First, as long as you do not charge your guests, viewing the Super Bowl in a private residence is legal, and in fact you are in the clear to request friends bring food and drink in exchange for hosting. Meaning yes, you can charge your buddies beer in order to watch at your house.
In other cases, the law states that TV and digital broadcasts can be displayed in certain cases as long as there is no separate admission charge to view the game, and so long as the TVs device displaying the broadcast does not have “a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers.”
The NFL gained infamy in 2007 when news emerged that it had pressured an Indiana church into scrapping its “Super Bowl bash” (why the NFL has picked on Indianapolis Colts fans in both of our recent articles is unknown but giggled at here in Baltimore). According to an MSNBC article, the league has a long-standing policy to ban “mass out-of-home viewing of the Super Bowl except at sports bars and other businesses that televise sports as part of their everyday operations.” If a group does not fit that description, they must request permission from the NFL.
The NFL stated that the reason is to honor the NFL’s contract with the networks that provide free broadcasts of the game and to protect the Super Bowl trademark. Essentially, they want to make sure that the networks that make bazillions of dollars on Super Bowl Sunday aren’t deprived a few extra ratings from a few extra TV sets in America being left off.
Here is the full breakdown of the particular conditions under which commercial establishments can display the game:
For establishments that are not a food service or drinking establishments, you are ok if you:
(A) have less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or
(B) if you have 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and—
– if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
– if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space.
If you are a food service or drinking establishment, you are ok if :
(A) you have less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or
(B) the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and—
– if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
– if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
For more information, contact Mike Oliver or Kimberly Grimsley.
by Mike Oliver | May 1, 2013 | Blog, Business Law, Internet, Technology and Privacy Law, Uncategorized
The FTC released a study and guide on facial recognition technology, and provided guidance on notice, transparency and options required when making use of, storing and sharing facial recognition information. The case studies included a basic use (for example, a face is scanned and then the user may make changes to see what hair, clothes, jewelry or other things look like), a more advanced use – an interactive kiosk that takes a picture of a consumer, assesses their age and gender, and presents an advertisement specifically for that consumer, and finally an example of use of facial recognition in social media and sharing those images (a la Facebook).
Anyone making use of facial recognition technology should consult these guides as they would any other FTC advertising or privacy guide, before they commence collecting, using or sharing facial recognition images.
For more information on privacy law compliance, contact Mike Oliver or Kimberly Grimsley.
by Mike Oliver | May 1, 2013 | Case law, Intellectual Property, Litigation, Patents, Uncategorized
In AKAMAI TECHNOLOGIES, INC. v. LIMELIGHT NETWORKS, INC. (Fed Cir. August 31, 2012) the en banc court held that a person can be liable for inducement to infringe even if the direct infringement is only found by combining the acts of more than one other person. You can read all 103 pages of the case here: Akamai v Limelight
What? In English: If you are aware of a patent (inducement requires specific intent to induce, so it requires knowledge of the patent) and you either perform one step in the method and induce one or more other persons to perform the remaining steps, or if you induce two or more other persons to engage in steps that together infringe, you are liable for inducement to infringe.
This is a major change in the law. This case overruled a recent prior case that had held that inducement requires inducing a single other party to engage in the acts that constitute direct infringement.
What does this mean? It means that if you are a business that say, provides a load balanced server farm for your clients, and you make that server farm available to your clients, who use it to manage their web content, and Akamai informs you of their patent that covers this technology, you will be liable for inducement to infringe even though the mere operation of a server farm does not practice every element in the claims of the patent. It means that businesses that are made aware of patents will have to consider every conceivable set of steps, whether done by their clients or others (inducement does not require any agency between the inducer and the person engaging in direct infringement) because the patent holder can “aggregate” all of the users it needs to meet the requirement of showing infringement.
There were numerous dissenting opinions, and it is somewhat probable that the Supreme Court will take this case.
For more information, contact Mike Oliver.
by Mike Oliver | May 1, 2013 | Business Law, In the News, Intellectual Property, Internet, Technology and Privacy Law, Uncategorized
BitTorrent is a peer to peer file sharing protocol that allows its members to share pieces of a file simultaneously such that each user can access and view the entire file without downloading it completely. It was designed to facilitate the sharing of large files and minimize the demand on an individual server. A seed user uploads the file and then peer users join the network, each simultaneously sending and receiving pieces of the file within the swarm of users.
BitTorrent file sharing has the capacity to be used for software and content updates as well as the authorized distribution of media content and comprises a significant amount of total web traffic and bandwidth consumption. Several BitTorrent sites index and catalog publicly-available media files, including movies, television shows, music, video games, and applications, while some files are shared only within a closed group.
When copyright protected material is shared using a BitTorrent protocol without the holder’s permission, each transmission among the users constitutes a copyright infringement. Media distributors, including movie studios, have begun targeting BitTorrent peers through their IP addresses and filing mass lawsuits against up to several thousand downloaders at time. Statutory penalties can be as high as $150,000 but are often much lower.
For the purposes of naming defendants in these sweeping lawsuits, internet service subscribers are identified by their IP addresses. For business owners, that means that any infringing downloads that occur over your connection by your employees, customers, and neighbors can be traced back to your business, in much the same way that a red-light ticket comes to the registered owner of a car regardless of who was driving it. While you may not be able to monitor all internet activity over your home or business network, especially if you have a large number of employees, network security and clear policies and training on internet use limitations can help to prevent unwanted copyright infringement in your business’ name. BitTorrent files and client software often carry viruses and malware as well and should be avoided unless needed for a designated purpose.
For more information on BitTorrent copyright enforcement contact Mike Oliver.
by Mike Oliver | May 1, 2013 | Intellectual Property, Litigation, Trademarks, Uncategorized
A question often arises – does an owner of an intellectual property right have the duty to enforce it? While the answer is no, the failure to do so in the face of known infringement can damage and limit the ability to enforce the right in the future. This legal doctrine – laches – borrows from the statute of limitations – which prevents a claim from being filed if the event giving rise to the claim occurred a distance in the past. This doctrine applies differently in each area of intellectual property, but is most critical, and hardest to determine, in trademark cases.
In trademark cases, the elements in the 4th Circuit (and most circuits) are as follows: “In determining whether laches operates as a defense to a trademark infringement claim, we consider at least the following factors: (1) whether the owner of the mark knew of the infringing use; (2) whether the owner’s delay in challenging the infringement of the mark was inexcusable or unreasonable; and (3) whether the infringing user has been unduly prejudiced by the owner’s delay.” Ray Communications v. Clear Channel, 4th Cir Ct (March 8, 2012).
“[I]n the laches context, “(1) delay is measured from the time at which the owner knew of an infringing use sufficient to require legal action; and (2) legal action is not required until there is a real likelihood of confusion.” See What-A-Burger of Virginia, Inc. v. Whataburger, Inc. of Corpus Christi, Texas, 357 F.3d 441, 451 (4th Cir. 2004).
The mark at issue in Ray Communications is AGRINET for “educational services rendered through the medium of radio; namely, a program of interest to farmers.” The the defendant used similar marks such as “OKLAHOMA AGRINET” for agricultural news programming on the air and in marketing. The defendant had been using the potentially infringing marks for many years – plaintiff filed its case in 2008, but the use of the defendant commenced in the late 70’s and early 80’s – about 20 years prior to the filing date of the complaint.
While this case reversed the district court’s decision in favor of the defendant – largely because the record was not developed adequately to establish such relief, the case demonstrates the complexity of determining when and how to enforce a trademark. For example, there was evidence that the defendant had changed certain marks, and that it had used some of the marks under license from the plaintiff – facts not considered in the lower court.
Trademark enforcement is important to maintain the trademark strength, but the failure to enforce it in some cases, will not prevent later enforcement as the infringement looms large.
For more information, contact Mike Oliver or Kimberly Grimsley.
