2014 Crowdfunding and Intellectual Property 101
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A presentation from 2014 on intellectual property concerns and crowdfunding in which I addressed copyright, trademarks, trade secrets, patents, the DMCA, and litigation.
2014 Crowdfunding and Intellectual Property 101
- 1. Illinois State Bar Association
- 2. Crowdfunding and Intellectual Property All slides 息 2014 Mudd Law Offices (except design elements)
- 3. Exciting time for entrepreneurs, inventors, founders, and more.
- 5. Additional Perspectives on Top CF Sites
- 6. U.S. Constitution, Art. 1, Sec. 8, Cl. 8 Congress has the power to promote the Progress of Science and the useful Arts by granting authors and inventors exclusive rights in their works for a limited time.
- 7. United States Copyright Exclusive Jurisdiction
- 8. Copyright Manifests Upon Creation Jon Lovitz and Im Picasso
- 9. Protecting Your Ideas Ideas not protected by copyright Idea Must Manifest
- 10. Ideas not protected by copyright Idea Must Manifest
- 11. When You Begin Your Project Your Original Work Works of Others
- 12. United States Copyright Act 17 U.S.C. 則 501, et seq.
- 13. Accessing and making copies of someone elses copyrighted work might involve: Copyright Act (copying) Digital Millennium Copyright Act (accessing/enabling others to access)
- 14. Protects expressive elements, but not underlying functional elements. Broadly prohibits infringement of copyrighted works
- 15. Protects software from literal copying Williams Elec., Inc. v. Artic Intl, Inc. Program in Written Form (Object Code) and Imbedded in ROM
- 16. Protects software from literal copying Apple v. Franklin Operating System
- 17. Protects structure, sequence, and organization Whelan v. Jaslow What does this mean?
- 18. Be Original in Writing Do Not Copy (Infringe) Ideas May Be Same
- 19. Its OK to use copyrighted material for purposes such as research, news reporting, commentary, criticism, and scholarship under certain circumstances.
- 20. If reverse engineering is necessary to gain access to functional processes and ideas, intermediate copies are fair use.
- 21. Be sure that youre legitimately in possession of the software, and dont use someone elses work in your final product unless absolutely necessary.
- 22. Not all liability must be direct infringement Secondary Liability .
- 23. Liability placed on an individual/entity that did not directly infringe the copyright but helped the infringer or benefited from the infringer For secondary liability, there must be primary liability, i.e. direct infringement by someone else.
- 24. When a defendant, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another
- 25. Knowledge of infringing activity is key element Often one party actively encourages another to infringe Material contribution to infringing activity
- 26. Sony Corp. v. Universal City Studios, Inc. Universal sued Sony for contributory infringement Universal claimed a Betamax player allowed users to make infringing copies of their TV shows.
- 27. Sony Corp. v. Universal City Studios, Inc. No Contributory Infringement Betamax was capable of commercially significant noninfringing uses.
- 28. Sony Corp. v. Universal City Studios, Inc. It was impossible for Sony to know whether any particular machine will in fact be used for infringing purpose.
- 30. Some agreements forbid reverse engineering. Can they do that? So far, the courts say yes.
- 31. 17 U.S.C. 則 512 gives service providers a few safe harbor protections against liability for copyright infringement.
- 32. 17 U.S.C. 則 512 gives service providers a few safe harbor protections against liability for copyright infringement. One of them shields conduit service providers that transmit, route, or provide connections to infringing material through their systems, as long as.
- 33. The transmission is automatic and doesnt involve any selection by the provider; The material is only temporarily stored on the providers system; and The provider doesnt modify the material in any way.
- 34. To qualify for the safe harbor, you must have a policy for terminating service to repeat infringers in appropriate circumstances, which you let users know about.
- 35. If youre relaying someone elses packets, youve got some strong legal protections. But there are a few things to keep in mind.
- 36. If someone sends you a nasty letter for doing something protected by Sections 230 or 512, explain the situation, which may help avoid suit. You can work with an attorney to develop a form letter for such occasions. Be transparent.
- 37. Cant circumvent technological measures that effectively protect or control access to copyrighted works.
- 38. Cant circumvent technological measures that effectively protect or control access to copyrighted works. No trafficking in tools that are primarily designed, valuable or marketed for (1).
- 39. When you need to jailbreak or root a mobile device for purposes of software development/testing.
- 40. Reverse engineering Encryption research Security testing Disabling the collection of your own personally identifiable information
- 41. Library of Congress made clear in 2010 and 2012 that jailbreaking phones doesnt violate the DMCA.
- 42. Library of Congress made clear in 2010 and 2012 that jailbreaking phones doesnt violate the DMCA. Doesnt apply to jailbreaking other devices (at least, not yet).
- 43. Library of Congress made clear in 2010 and 2012 that jailbreaking phones doesnt violate the DMCA. Doesnt apply to jailbreaking other devices (at least, not yet). Doesnt authorize the distribution of jailbreaking tools.
- 44. a design, phrase, symbol, or word that (or combination thereof) identifies & distinguishes source of goods or services from those of others
- 45. Generic Descriptive Fanciful Arbitrary
- 46. Surnames Other Nuances
- 47. From the Legal Perspective: Yesterday
- 48. From the Legal Perspective (contd): NO LATER THAN: When you identify a design, phrase, symbol, or word you want to use
- 49. From the Business Perspective: As soon as you begin branding discussions
- 50. United States Concurrent Jurisdiction State and Federal Trademarks
- 51. International
- 52. Focus on United 皆岳温岳艶壊
- 53. Why wont you discuss state trademark law? Interstate Commerce and the Internet Federal Trumps State
- 54. Unless you intend to be limited in one state, there exists no incentive or need to focus on State trademarks
- 55. Example: Apple App Store Interstate Commerce Internet Advertising Interstate Commerce
- 56. Sogiven focus of United 皆岳温岳艶壊 next distinction Prosecution and Litigation
- 57. Like Patent Prosecution, the filing of the application and the registration process
- 58. Solets use Trademark Registration (again, focusing on federal trademark registration)
- 59. Word versus Stylized Mark
- 60. In Use versus Intent to Use
- 62. Classes of Goods and Services
- 63. Timing Office Actions Publication
- 65. Exclusive Right to Use in Class Except for Use Prior to Registration
- 66. Publication in Register Use of 速 Additional Remedies in Litigation
- 68. 15 U.S.C. 則則 1114,1125: Infringement 15 U.S.C. 則 1125: Dilution (Tarnishment/Blurring) 15 U.S.C. 則 1125: Unfair Competition Law State Unfair Competition Law Passing off Reverse Passing Off Misappropriation Trade/Product Disparagement
- 70. Search USPTO Search Engines Due Diligence
- 71. Avoid Similar Marks Be Creative Protect Your Marks
- 72. U.S. Constitution, Art. 1, Sec. 8, Cl. 8 Same authority that gives congress the power to enact copyright protection gives Congress the authority to enact patent protection
- 73. Exclusivity with United States PTO Except Internationally
- 74. Not everything is patentable New, Non-Obvious, Useful Inventions
- 75. some things once patented may be available
- 76. Due Diligence Helps Avoid the Trolls
- 77. America Invents Act More than First to File
- 78. From the Legal Perspective: Yesterday
- 79. From the Legal Perspective (contd): NO LATER THAN: As soon as you have an idea
- 80. From the Business Perspective: As soon as you have your idea
- 81. United States United States Patent Act 35 U.S.C. 則則 1, et seq.
- 82. Various types of patents: utility, process, plant, design business method
- 83. and software but falls within one or more of other categories
- 84. Owner of patent obtains exclusive rights to patented material for a limited period of time
- 85. Which means Right to exclude others from making, using, selling, offering to sell, distributing or importing things that practice the patented invention
- 86. Not everyone agrees with software patents even among software developers
- 87. software inventions too incremental to justify costs questions whether incentive exists for software patents
- 88. Remedies On finding infringement of a valid patent shall not be less than reasonable royalty
- 89. Remedies determination of reasonable 姻看霞温鉛岳霞
- 90. Remedies 25% RULE Reasonable royalty 25% of expected profits not so fast
- 91. Remedies Estimate made of profits divided by expected net sales resulting profit rate x 25% = royalty rate
- 92. Remedies Critique of 25% Rule
- 93. Remedies Together with interest and costs
- 94. Diamond v. Diehr, 450 U.S. 175 (1981) Opened door to software patents
- 95. In re Bilski Upheld software patents but w/ caveats Some software-related inventions may not qualify as patentable subject matter Some may lack sufficient novelty or are obvious (to a person skilled in the art of computer programming)
- 97. Search USPTO Search Engines Due Diligence
- 98. NDAs and. The Politics of NDAs
- 99. What are Trade Secrets? Copyright and Patents v. Trade Secrets
- 100. Kickstarter and IP
- 101. TOU
- 102. Conclusion
- 103. Charles Lee Mudd Jr. Mudd Law Offices clm@muddlaw.com Chicago, Illinois 3114 West Irving Park Road Suite 1W Chicago, Illinois 60618 773.588.5410 Telephone 773.588.5440 Facsimile Park City, Utah 311 Main Street P.O. Box 483 Park City, Utah 84060 435.640.1786 Telephone 435.603.1035 Facsimile 息 2014 Mudd Law Offices