Following up on last week’s Dancing Baby post, it’s worth exploring the Digital Millennium Copyright Act (DMCA) a little more. Put code here The DMCA can protect websites from claims of copyright infringement. The DMCA protects four categories of Internet service providers: (1) new media services and websites that host servicers; (2) simple conduits that simply pass data; (3) services that cache information temporarily for users; and (4) information location services like search engines. The protection works like this. A website invites users to post content. The user uploads content that violates a third party’s copyright. The third party notifies the website with a “Take Down Notice”. The website has a reasonable time to remove the offending content. If the website removes the offending content, it’s protected from a copyright infringement law suit. In order to get the advantage of DMCA, the website has to register an agent with the Copyright Office.

Who would have thought that literal and figurative music icon Prince would go after Stephanie Lenz who posted her adorable children dancing to his “Let’s Go Crazy” on YouTube. Well, he did. And litigation ensued. Prince, who is notorious for protecting every facet of his art, sent a takedown notice to YouTube under the Digital Millennium Copyright Act (“DMCA"). The DMCA allows a copyright owner to ask that content be removed from a website if he has a "good faith" belief that the use of the work interferes with his copyright. YouTube complied stating that the video infringed. Stephanie sent a counter-notification claiming that the video was not infringing. YouTube reposted the video . Stephanie sued on the basis that YouTube misrepresented in the take down notice that the use was infringing. The case made its way to the Ninth Circuit Court of Appeals which held that, before sending a takedown notice under the DMCA, the copyright owner’s “good faith” belief requires consideration of fair use. The case now goes back to the trial court. Dance on baby, even though you are probably about 10 years old by now.

The great Michael Jordan can teach us all some things about how to exploit our Intellectual Property. Most recently to the tune of $8.9 million. MJ obtained a jury verdict against the now defunct Dominicks food stores for violating his Right to Publicity which is the right to protect one's persona from unauthorized commercial use. Dominicks had placed an ad in a Sports Illustrated magazine that commemorated MJ's career. The ad used MJ's name and image and included a coupon. The court held that the ad went too far into commercial use without MJ's permission. Then the issue of damages was decided by a jury. They didn't give MJ all he asked for. But it's still a lot of money. MJ says he's going to donate any recovery he gets. MJ also has a suit pending against Jewel Food Stores for an ad it placed in the same magazine. We'll see how that goes.

The New York Times Small Business Blog published an article about the fate of non-disclosure agreements (“NDA”) for emerging and seed companies (Why More Start-Ups Are Sharing Ideas Without Legal Protection, New York Times, July 2, 2014). The article makes it appear that initial stage companies shouldn’t bother with a written NDA. This is dangerous advice. Sharing ideas without some protection could put an entire business model at risk. The article has some good suggestions like (a) make sure you have something to protect and (b) know your audience. But the article also suggests filing a provisional patent. The problem is that not every great idea is patentable. The article also doesn’t cover a critical issue which is how a lack of confidentiality would destroy protection for your trade secret.

Two Federal Appellate Courts are duking out whether putting your own spin on someone else’s copyrighted work is enough for a fair use defense. The Copyright Act gives us four factors to look at for fair use: (1) the purpose of the use; (2) the nature of the work; (3) how much of the work is used; and (4) the effect the use has on the market for the original work.

McDonalds Corporation won a victory before the Trademark Trial and Appeal Board (TTAB) against a food company named McSweet LLC. McSweet wanted to register its name for pickled vegetables. McSweet argued that the mark was a play on the company founder’s name, Leo McIntyre. The TTAB rejected the argument. It held the public is likely to associate “McSweet” with McDonald’s family of “Mc” marks. The TTAB also rejected McSweet’s argument that no one would be confused between fast food and pickles.

Intellectual Property. Patents, copyrights, trademarks, trade secrets, domain name, right of publicity! I know what you’re thinking. What do these things have to do with my business? This blog is going to answer that question. In short bites, I want to let you know what’s going on in the legal world around Intellectual Property. For an Intellectual Property geek like myself, that can be enough. But, I’m going to take it one step further. I’m going to give you a TAKE AWAY that shows how this news helps your protect your business and make it more productive. My posts will be relevant to your business whether your revenues are $500,000 a year or $5 million a year.