Newsletter

The Sixth Conference on Computers, Freedom, and Privacy


Property vs. Freedom: Beyond Copyright

By John Dillon

Copyright is not the only body of law governing online intellectual property issues. Trademark law, publicity rights and moral rights are looming legal issues in cyberspace, said Lance Rose, an Arizona attorney and author of NetLaw -- Your Rights in the Online World.

Rose, in his morning tutorial at CFP96, outlined the arguments for and against property controls in the digital age. For every advocate who feels that all information should be free, there is an aggrieved intellectual property owner who believes they have a right to own what they create, he said.

Trademark rights -- the rights of an individual or company to exclusively use a brand name or slogan for their products -- are a particularly powerful form of intellectual property ownership, according to Rose.

Trademark protection can be extended to cover slogans, designs (like the Coke bottle) -- even the floor plan of a restaurant. Trademark rights last forever, as long as the mark or brand name is used. Companies have to support these rights, but letting a trademark lay idle for a few years may not necessarily constitute abandonment of the mark.

The first to use the name gets to claim it as a trademark. Federal registration is necessary to seek penalties under counterfeiting and customs statutes. The basic test for trademark infringement is whether the use of the trademark or a similar name would confuse the consumer. Generic words that name a product can't be used as a trademark. A company could not register Beer brand beer. (Although Miller fought for and won trademark protection for Lite)

Trademark rights trump corporate name rights. A startup company calling itself Ivory Inc. can't sell its "Ivory's" white soap and get away with it. Trademark rights also trump Internet domain names. Registering a domain name does NOT give someone the right to that name as a trademark. "End of story," Rose said.

Domain names have no legal force. Companies which are paying tens of thousands of dollars those who hold domain names describing the company or its products are doing so out of expediency or to avoid a court battle, Rose said. The domain name issue will fade, Rose predicted, in part because domain names constitute the "plumbing" of the Internet and will be seen as such -- not as something to be coveted akin to trademarks.

However, online trademark situations are not resolved. Rose gave the hypothetical example of a company selling dog food under the brand name Purina. Some other firm could use that name to sell software. The two names would never create confusion in the conventional marketplace -- but they could on the Internet.

Moreover, laws around governing trademark vary around the globe. An island nation in the Pacific could allow a company to use the IBM trademark. That company in turn could beam the name around the world via the Internet. IBM might not be able to crack down on the bogus user, as long as the company was based in a country where the use of the name was allowed. "This is a huge question, one that may take international treaties to resolve," he said.

Other intellectual property rights include the right of publicity: the legal right of famous people to use their name or likeness. The use of a famous name without permission or payment can violate publicity rights. "Spoofing on the net is not categorically different. It's just another unauthorized use of someone's name or likeness," he said.

Fan sites on the Web could also be sued if the famous person decided his or her publicity rights were violated. Since publicity rights laws vary widely from state, certain states may become preferred forums for enforcing these rights.

Publicity rights may collide with First Amendment rights in parody or satire situations. For the most part, if the parody intent is clear, the First Amendment protects the use of the name or likeness. A member of the audience raised this issue by asking if he could be protected if he made a fake Microsoft advertisement with the slogan: "We aim to dominate the world."

Rose noted that Adbusters magazine routinely publishes similar parodies. "If it's clear from the context what is going on, yes" the parody is protected by the First Amendment, he said.

"Moral" rights, Rose said, are not something dreamed up by the current Congress. These are personal recognized in European countries that an artist has in his or her work. Artists in France or Germany, for example, have a moral right of integrity: they can keep others from altering their work. They also have rights of paternity in their creations: they have their right to have their name displayed or suppressed in connection with their work.

Unlike copyrights, moral rights cannot be sold. And moral rights may be asserted internationally (perhaps in the U.S.) through digitized works displayed on the Internet.

Rose also gave a brief rundown of other cyberspace property rights issues. Companies have a right to protect their trade secrets, such as the source code used in software. But that protection only extends if the owner keeps the trade secret confidential. Rose predicted that decompilation work could threaten trade secret protections for software.

"If decompilation gets really good, the source may not be protected as a trade secret because it's not kept secret," he said.


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