SOPA, PIPA, and a Criminal Copyright Indictment Against Megaupload.

Saturday, 21 January, 2012 09:00 Written by Rene Dial 0 Comments

By Rene Dial

What a week in the world of intellectual property protection!

Okay I am trying to figure this one out. Legislation is/was being pushed through with regard to SOPA and PIPA. Read Danie Roy’s article here. Then a couple of days after Wikipedia, Craig’s List, Google, and a bunch of other sites were down in protest to SOPA and PIPA the government shows that they do have the power to stop online piracy overseas. On Thursday the US Justice Department and FBI shut down Hong Kong based company Megaupload, seized $50 million in assets, and begun extradition proceedings in New Zealand for the company founder according to Robot6.comicbookresources.com.

Let me get this right the government has the ability to shut down a site for alleged copyright infringements, freeze assets, extradite those involved from other countries but yet we need SOPA and PIPA to allow us to basically do what was just done to Megaupload. Not sure about you but how about we utilize the laws we already have in place instead of enacting new broader legislation.

To be honest I never heard of Megaupload before this hit the news. I am one of those guys that believes in paying the artist so that the artist can continue to put out music or movies that I love. A lot of the problems with the industry now is getting the product to the masses in a cheaper and more efficient way. The music industry has done a great job but movies are a different story. A person can go to a Redbox and rent a movie for a dollar but if they want to stream the movie from a website or cable provider the provider wants somewhere between $5 to $7 to stream the same movie and they do not have to deal with inventory or with maintenance of a box somewhere. Okay I will stop my rant and get back to Megaupload.

According to ABCnews.go.com the indictment alleges that Megaupload caused a half-billion dollars in copyright losses. A copy of the indictment can be found at onlinewsj.com. As this is a criminal indictment I am curious to see how this plays out and if the hearings will occupy the news stations as some other well known criminal trials have in the past. On ABC.com the article had a quote that was placed on Megaupload before the site was taken down. “Ira P. Rothken, a lawyer for Megaupload in Novato, Calif., said “the allegations do not appear to have support in the law, and the company is going to vigorously defend against them.”" Something tells me that they really do not have a choice but to vigorously defend themselves as they are facing criminal not civil charges.

Have a great weekend!

The Duty of Disclosure When Filing A Patent Application

Friday, 20 January, 2012 22:24 Written by Mark Malek 1 Comment

By: Mark R. Malek

When people think of most areas of law, they generally picture an adversarial process. In other words, most areas of law involve two parties in a dispute of some sort and each party having their side of the story that they want a judge (and sometimes a jury) to proclaim as being the correct side of the story. That is not the case in the field of patent prosecution. Although it may sometimes feel as though the patent Applicant is on one side of the fence fighting with the patent Examiner, it truly is not an adversarial process. Instead, it can be better described as a cooperative process wherein the patent Examiner is working with the patent Applicant in order to determine the correct level of protection to be granted from the federal government.

In order to achieve this goal, patent law requires that a patent Applicant disclose the best mode of carrying out the invention, and disclose any prior art that they know of. Many people come to me and indicate that they do not want to disclose everything about their invention, at which point I have a very serious conversation with the Applicant wherein I indicate that they must disclose all that they know about their invention. The issue that many of the clients have, and I understand where they are coming from, is that they want to maintain some of their invention as a trade secret. In patent law, that just about equates to having your cake and eating it to.

During patent prosecution, there is a trade off. Essentially, the federal government will agree to grant you a right to exclude others from making, using, selling or offering to sell you invention in exchange for you disclosing everything you know about your invention, and also working with the patent office to ensure that the patent Examiner has all the relevant information in order to make a decision as to whether or not your invention is patentable. This includes informing the patent Examiner of any prior art that you may know of. That is regardless of whether or not the patent Examiner would have found the prior art during the search that is conducted during prosecution.

This article very much so simplifies the process, as well as the duty to disclose prior art, but there is one thing that I want to leave you with. That is – your attorney is your ally in this process. Your patent attorney should walk you through the process and should instruct you to disclose any information that could be considered prior art. The risk you run of not disclosing relevant information is, in the worst case, invalidity of your patent and, in extreme circumstances, the possibility that a court finds that you engaged in inequitable conduct before the patent office, exposing you to potential liability. The moral of the story is that you should never think it is a good idea to keep something from your attorney regarding your invention. I will post additional articles about the importance of your relationship with your attorney and how the attorney-client privilege should encourage you to let your attorney in on everything that you know about your invention.

SOPA and PIPA vs The Internet: The Epic Copyright Battle

Wednesday, 18 January, 2012 15:40 Written by Danie Roy 2 Comments

Danie Roy

Before we begin, I’d like to make some statements that you may remember from when I discussed embryonic stem cells: this article is largely meant to be informative, although it is very difficult to stay completely unbiased when I am informing you about the opinions of other people. I apologize in advance if my own opinion shines through too brightly, largely because this seems to be an issue that is polarizing people more than stem cells ever could. Add the previous sentence to the list of things I never thought I’d say. Then again, this is the internet.

By now, you’re probably aware that you can’t access Wikipedia or Craigslist as you normally would. You’ve gone to see teh lolcats or hang with your bronies, and you’ve been greeted with a popup begging you to take action. The Google doodle is now a black box. Even the news stations are talking about the sites going down. What’s going on? Just a preview of what could happen if SOPA and PIPA pass in their current forms.

SOPA and PIPA are bills in the House of Representatives and Senate, respectively, that were intended to stop online piracy from overseas sites like The Pirate Bay. Currently, nobody can touch The Pirate Bay, as evidenced by their response letters (or, as Scott called them, f/u letters). The language of the bills is entirely too broad, however, and reeks slightly of “did not do the research.” For instance, you don’t have to infringe to be taken down, you just need to be capable of infringing: that is, have a comment box, text, links, a link to someone else’s link, etc. And you may be guilty until proven innocent.

These are popping up everywhere today.

I’ll be the first to admit that most people have no idea what’s going on in Congress most of the time. I personally would rather read image file wrappers, watch paint dry, or have a root canal than watch C-SPAN. It’s boring, and in a language called “legalese.” Great for curing insomnia, though.

Before I get too far into this, I’m going to be perfectly clear: I am FOR protecting intellectual property. I’d be an out-of-work hypocrite if I wasn’t; protecting intellectual property is my job as a patent agent. However, I personally believe that SOPA and PIPA can’t protect intellectual property in their current forms.

Here’s why people are protesting and your favorite sites are dark:

A site does not necessarily have to infringe to be taken down. A site that could infringe, in other words, has a comment box, links, or any upload capability, can be targeted.
If you’ve been accused, there is no real defense: you’re assumed guilty until proven innocent, and the bill makes proving yourself innocent extremely difficult. In order to be innocent, your website must not have the functionality to infringe; which of course, all websites have. So, you’re either infringing or you’re perjuring yourself. Take your pick.
Takedowns are incredibly easy to initiate. The RIAA already has a history of using questionably ethical legal tactics to take out legitimate businesses. Imagine what they can do with SOPA and PIPA on their side.
Ever posted anything to any website? YouTube, ICanHasCheezburger?, even Facebook? Yep, you’re a potential target.
Ever used Gmail, Yahoo! mail, or AOL mail? Same deal.
Fair use will be practically considered obsolete… and ignorance will not be a defense.
Anyone working for the government (like our wonderful Congresspeople) is immune from the consequences of violating SOPA and PIPA.
The link I posted to the f/u letters? That could be a violation of SOPA/PIPA, due to The Pirate Bay’s unsavory activities.
Earlier versions (and possibly later versions) allowed for destabilizing the infrastructure of the internet in order to “protect” IP. That is, addresses could be removed from the universal internet lookup system, DNS, which would make site spoofing that much easier… hello viruses and stolen personal info!

To quote a godly entity, you “should pretend like it is a big deal, because it is.” Whether you’re for or against SOPA/PIPA, you really need to speak up about this issue. It affects the internet as we know it, and it affects intellectual property, too. If you’re like me, you’re for protecting intellectual property, but against seriously inhibiting the free flow of the internet.

Wikipedia’s two working English pages: SOPA and PIPA

LA Times: Three congresspeople drop support, including FL Senator Marco Rubio

PCWorld’s rather factual take

THE NATIONAL MEDAL OF TECHNOLOGY AND INNOVATION

Tuesday, 17 January, 2012 17:31 Written by danieldavidson 0 Comments

By Daniel Davidson

I remember the day i won an award from the President. Yes, it included a shuttle run and various other physical activities, and was presented to me by my PE teacher, but I still won an award from him! Albeit, the Presidential Physical Fitness Award is not quite the award that is presented annually to the leading innovator of our country, however, it is an award from the POTUS.

All kidding aside, it has come time for nominations to be submitted for the National Medal of Technology and Innovation. This medal is given to the individual, company, or group that has made the biggest contributions to America’s economic, environmental and social well-being through their inventions and/or innovations.

Currently, the U.S. Patent and Trademark Office is accepting nominations for the award, and information on the nomination process and a nomination form can be found here. Some of the guidelines include:

No self nominations. They will be rejected.
You can nominate an individual, a group (up to 4 people), a company, or a division of a company.
Governmental agencies and laboratories are eligible.
Finalists are subject to FBI background checks (I would only be worried if the Florida Bar was conducting the background check).

Now that you are up to speed on how to go about nominating someone, or “something,” here are some notable winners:

1985 – AT&T Bell Laboratories – For contribution over decades to modern communication systems.
1985 – Apple Computer, Inc. – For their development and introduction of the personal computer which has sparked the birth of a new industry extending the power of the computer to individual users.

Here is to the next recipient of the National Medal of Technology and Innovation. Cheers!

Asset Protection and Intellectual Property: A No-Lose Situation, Ideally

Monday, 16 January, 2012 04:31 Written by Aaron B. Thalwitzer 0 Comments

So, you want to make money from your intellectual property? First, read this article by Mark Malek here. Now that you’re primed like a lawnmower, I’m sure you’d agree that making money is more likely to happen if you’re not losing money, no? Stay with me. If you get sued, the best you can usually hope for is breaking even, and, usually, legal fees and the time you waste will result in a net loss, even if you win. If you lose, and judgment is entered against you, or you decide it is in your best interests to settle, cash is still flowing the wrong way. One of the considerations in deciding upon a settlement amount is the potential net loss. If you have no assets, you have less to lose. If you have assets (intellectual property among them, and possibly the most valuable), you have much to lose, and the other party(ies) knows this. Therefore, each and every one of you should educate yourselves on protection your assets, especially if they are valuable.

The area in and around Melbourne, Florida and Brevard County, Florida, where I practice law, are densely packed with technology and media companies, for whom intellectual property is often the substance of their business. Many of these companies know that patents, trademarks, copyrights, and trade secrets are their primary income source, without which they could not thrive or even survive. The most obvious, common, and often cheapest way to protect your IP is to properly transfer it to a separate limited liability company (LLC). For example, your company could create a business structured as follows. The founder of a company create a holding company structured as corporation. The corporation then two LLCs, one which owns and holds the IP, and one which has contact with the public.

Or, you could do without the holding company and just have the operating company lease the IP from the IP holding LLC See a lawyer for this. There are no ifs ands or buts; it is not hard to mess up the formalities which make possible the asset protection in the first place. There might even be tax advantages to such an arrangement, see a lawyer or accountant on that.

Of course, NastyCo sues your holding company, you lose big, and the holding company decides to file bankruptcy. With the asset protection structure we set up, it will probably be much more difficult for creditors (i.e. the people you owe money to) to reach your IP. As long as everything is done correctly, the LLC’s assets are reachable only by charging order — meaning the creditor gets any distributions otherwise allocated to members, but doesn’t actually control the assets. Even better, if the LLC allocates profits without distributing them , the creditor must pay taxes on those profits, even though he/she can’t touch them! Fun stuff.

There are other advantages to separating your IP assets from your operating company. You may retain more control over the assets if your company loses control to a private equity firm who lent you money. Again, more leverage. The corporate veil is tough, and expensive, to pierce, but, for experienced attorneys, relatively easy and inexpensive to create. In Florida, you can check out sunbiz.org for the basics of creating LLCs and other business entities, but to realize the full benefit of these entities, contact an attorney.

Archive for January, 2012

SOPA, PIPA, and a Criminal Copyright Indictment Against Megaupload.

The Duty of Disclosure When Filing A Patent Application

SOPA and PIPA vs The Internet: The Epic Copyright Battle

THE NATIONAL MEDAL OF TECHNOLOGY AND INNOVATION

Asset Protection and Intellectual Property: A No-Lose Situation, Ideally

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