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Dave Branfman

New Tools For Policing Internet Piracy: One Step Forward or One Step Back?

It is probably nothing less than a given these days that on multiple levels the Internet can be seen as both a blessing and a curse. One of those levelhttp://www.blogger.com/img/blank.gifs - the hijacking and pirating of copyrightable content and brands/trademarks - is perhaps amongst the most obvious. Trademark and brand owners and content owners like motion picture studios and record labels have tried a variety of techniques to cut down on Internet piracy - including filing lawsuits first against individual unauthorized downloaders and now against anywhere from 500 - 20,000 "John Does". [Initially the "John Does" are only known by their Internet addresses - not their true names]. Those techniques have been less than overwhelmingly successful.

Now there are efforts afoot to create a new tool to try to stop counterfeiting, piracy and bootlegging: Senate Bill S 968 is designed to get online advertising networks, companies that process payments and search engines to shut off support for any website that is found by a court to be dedicated to copyright or trademark infringement. Here is a good short analysis of some of the pros and cons of Senate Bill S 968. It makes for very interesting reading.

Sequels, Prequels & Fourquels: Is The Film Biz Playing It Too Safe?

The serialization of movies is really not a new phenomenon. If you are old enough - or enough of a film lover - you might remember the Charlie Chan, Andy Hardy and The Thin Man series of films. And let us not forget the 22 James Bond films that have been made since the early 60s. But with the recent success of the fifth film in the "Fast & Furious" series and the upcoming release of the fourth film in the "Pirates of the Caribbean" series - as well as plans for more "X-Men", "Twilight" and "Spy Kids" movies, it seems like the trend is turbo-charged for the 21st century. Here is a good article which examines the current trend in more detail. Needless to say, this trend does not bode all that well for independent filmmakers.

"The Social Network 2": More Facebook War Stories

I liked the movie, but I can't say I thought it was a great candidate for an Academy Award for Best Picture. But as interesting as "The Social Network" was as a movie, the story didn't end there. As you may recall, the Winklevoss twins famously claimed that Mark Zuckerberg stole the idea for Facebook from them. As it often does, litigation (but not hilarity) ensued. The lawsuit was eventually settled. But then the Winklevoss twins decided that they had been defrauded by Facebook in the settlement negotiations. They took the somewhat unusual step of suing again - this time to unwind the settlement - now worth about $180 million in cash and Facebook stock. Since we're on the subject of movies, I am reminded of the title of one of Woody Allen's earliest and funniest movies: "Take the Money and Run". But that's just me.

Now a three-Judge panel of the 9th Circuit Court of Appeals has tossed the Winklevoss' legal claim. The opinion is written by Judge Alex Kozinski, who is well known in legal circles for writing cogent and occasionally humorous opinions. This one is worth reading, if for no other reason than it describes in some detail many of the steps that were taken during the settlement negotiations and afterwards. You can see the sequel to "The Social Network" in the works. Apparently the Winklevoss' are still not satisfied. News reports indicate that they intend to ask a full panel of 9th Circuit judges to review their case. It would appear that the Winklevoss' can afford to pursue their claims. Or perhaps, as Judge Kozinski wrote in the opinion itself: "The ensuing litigation.....gave bread to many lawyers".

Copyright Wars: $100 Million Copyright Infringement Lawsuit Against Oprah Dismissed

We believe in the copyright law. It's been part of our laws since the Constitution was enacted. It's there for a good reason: "to promote the progress of science and useful arts". We advised and represent quite a few copyright owners. But every so often an over-zealous copyright owner goes too far. This could be one of those cases.

Charles Harris wrote a booklet called "How America Elects Her Presidents". During the 2008 election, Oprah read aloud on her tv show questions that were based on material in the book. Apparently one of the questions was literally taken from Harris' book: "Which one of our presidents weighed the most?". [Answer: William Howard Taft at over 325 pounds]. Harris filed a lawsuit which requested millions of dollars in damages. Oprah filed a Motion to Dismiss the lawsuit and the judge agreed when he ruled that the allegedly infringed parts of his book were not original, and that Oprah's recitation of the Taft fact, even if she did take it from Harris' book, was not an actionable copyright infringement.

The Problem With the Music Business Isn't the Music

For reasons I can't exactly put my finger on, in the last three weeks I've had the great fortune to see a series of remarkable live musical performances. They range from Eric Clapton to Los Lobos, KD Lang, Daniel Lanois' Black Dub, Steve Poltz, Lucy Schwartz, Bushwalla and Black Joe Lewis and the Honeybears. I know I keep reading that the music business is in trouble. And I'm sure it is. But there's nothing wrong with the music that's being written and performed. Great music is still out there. For my money, there is still no substitute for seeing a great performer do it live. The music business may be having trouble figuring out how to adjust to the changes brought about by the rise of the Internet, but as long people LOVE music - and I'm betting that's never going to stop - there will always be a way for great music to get out there. Just as long as people who love it support it.

Why Bother Registering A Trademark?

This is a question we get asked all the time: Why bothering registering a trademark? Is it really worth it? In other words, what are the advantages of going to the trouble of registering a trademark as opposed to simply continuing to use an unregistered trademark?

In general, there are three main benefits to registering a trademark:
* (1) stronger protection for your trademark;
* (2) it tends to deter others from copying your trademark; and
* (3) better/stronger remedies in court if you have to sue someone for infringing your trademark.

More specifically, some of the advantages are:

1. The owner of a U.S. trademark registration certificate is entitled to a legal presumption that it is the valid nationwide owner of the trademark;

2. Trademark registration provides the trademark owner with the ability to recover up to triple financial damages and attorney's fees from a trademark infringer in a lawsuit;

3. Potential buyers of businesses usually see increased value when the seller’s trademarks have been registered;

4. Judges tend to give more weight to a registered trademark than an unregistered trademark in trademark infringement lawsuits;

5. A trademark registration increases the likelihood of successfully obtaining an infringing Internet domain name from a cybersquatter;

6. A trademark registration provides presumptive notice to others that your trademark is already being used; thus a company that later adopts a confusingly similar trademark will have trouble claiming ignorance of the trademark;

7. A U.S. trademark registration can be used as a basis for obtaining a trademark registration in foreign countries;

8. A trademark registration (like a copyright registration and an issued patent) can be recorded with the U.S. Customs & Border Protection service and used as a basis for seizing counterfeit products before they enter the U.S;

9. The owner of a U.S. trademark registration has the right to use the ® symbol after the trademark; that alerts third parties to the trademark registration and helps to eliminate the defense of "innocent infringement";

10. The trademark will appear in trademark search/clearance reports conducted by third parties; that tends to discourage those third parties from proceeding with using your trademark or filing a trademark application; and

11. The U.S. Patent and Trademark Office ("PTO") will refuse to grant a trademark registration for any trademark it believe is "confusingly similar" to your trademark.

Those are eleven pretty good reasons for going to the trouble and expense of registering a trademark.