Intellectual Property

The world and laws of Intellectual Property is ever evolving. The three podcasts discuss different areas of IP and offers brief insight on the specific area. In Deciding between Patents and Trade Secrets Protection, Professor Andrew Beckerman-Rodau gives a brief historical overview of patent and trade secret protection. He explains that, “generally anything protected by patent law is also protected by trade secret law, but not vice versa.” He gives five business considerations to help any business owner or brand manager to avoid any litigation procedures or keep your company properly protected:
• Commercial Life- what is the life span of your patent? Will the patent need an update?
• Reverse Engineering-Can the molecular structure be reversed? Is it too complex to be reversed? Ex. Coca-Cola
• Independent invention-Does your invention stand-alone? Is it a replica or a mockery of another invention?
• Educating your competitors-
In the second podcast, The Mystery of Fair Use, Pt. 1, University of Minnesota Law Professor Bill MGeveran discusses the effects and difference between common fair use and nominative fair use. We all know that “fair use is an exception to the exclusive right granted by copyright law to the author of a creative work “ (en.wikipedia.org). There are many controversies that arise from deciphering between common and nominative fair use, i.e. Internet use, expansion of concepts, trademark users’ intentions. Some practical concerns that Professor McGeveran gives to avoid confusion and litigation are:
• If you’re doing a parody, make it clear that it’s a parody
• If you think that you’re trying to stick under classic fair use, be VERY descriptive
• If you end up on the receiving end, you want to put your ducks in a row and proceed with an explanation as to what are the intentions for the use of the trademark.
By doing so, it “unravels some of the complexities involving trademarks” (McGoveran, 2011).

Attorney William F, Lee discusses how trials involving IP can be strenuous on all parties involved. In the Yale University Law School podcast Jury Trials in Complex Intellectual Property Cases: Do They Work? Attorney Lee says, “Yes” the do work. As complex and time consuming as they may be, it is best to avoid court. But in some cases, Plaintiffs feel the need to take a case to court. Attorney Lee explains that, “IP is sort of a quaint area”, meaning it’s not mainstream or critical to the economy only the parties involved. He gives rules that should be followed when and if a case should proceed to court:
• You have three audiences- trial judge, jury, court of appeals
• You need to be the educator
• Jurors don’t like monopolies, they like challenges
• Build the technical details of your case, i.e., history, success of your patent, etc.
• Never underestimate the trial judge

All three deal with a different area but it gives the reader a different outlook in each are of IP.

Beckerman-Roadau, Andrew. (November 23, 2009). Deciding between Patents and Trade Secrets Protection Podcast. Podcast retrieved from www.law.suffolk.edu/itunes

Lee, William F. (March 8, 2007). Jury Trials in Complex Intellectual Property Cases: Do They Work? Podcast. Podcast retrieved from http://cs.law.yale.edu/blogs/podcasts/archive/2007/03/23/jury-trials-in-complex-intellectual-property-cases-do-they-work.aspx

McGeveran, Bill. (February 7, 2011). The Mystery of Fair Use, Pt. 1 Podcast. Podcast retrieved from http://bpgradio.podbean.com/

Legal issues on the Music Front

In the music industry the most controversial issue that is probably the most popular deals with online music piracy. Since the inception of sites such as Napster, Lime wire, Kazaa, and other sites that music can be downloaded for free, the music industry has suffered greatly. Allowing consumers to download music of any of their choice for free poses a threat not only the artists but to the record companies. Sales are lost and songs are ill treated when they are used to generate revenue for a third party company. There are an endless number of cases dealing with music piracy and infringement, royalty underpayment and such. I located three that I felt would be beneficial to this topic. It seems that ringtones have become an issue in the world of music downloads. In the case of US v. ASCAP, ASCAP and BMI claim that AT&T was using songs to selfishly make a profit and not compensate the artist “the way everyone else does.” The court ruled in ASCAP’s favor, concluding that the ringtone included the chorus, which is the “most melodious” of the song. It is not fair use to the artist. I feel that whatever part is used from a copy written song, the artist should be compensated in some fashion or form. Another big issue with the music industry is protecting copyrights. The 2004 court case involving the RIAA and Verizon Internet Services is a perfect example. The RIAA wanted VIS to turn over the names of uses trading music online. The court ruled in VIS’ favor, giving “copyright holders broad powers over their works.” A work is copy written for a reason right? To stamp out infringers, but in the case the RIAA lost and was stunned by the decision that was over-turned from a previous case.

As an artist, we expect to receive royalty off of everything involving our music, right? Well in the case involving Universal Music and FBT Productions, who the rapper Eminem recorded records with before he was signed to Universal demanded 50% royalty off of digital sales. This was before the invention on iTunes and other sites containing digital music. Universal was ordered to pat FBT 50% of royalty revenue from all downloads. Although they were entitled to a 12% royalty on “records sold”. The courts were in favor of FBT’s argument, ruling that the contracts were “unambiguous”.

In all three of these cases, as different as they may be, it is a clear pattern. The music industry is forever evolving and there will always be legal issues, whether it is involving royalties, piracy, copyright, or trademark. It is best to research and educate yourself to gain a clear understanding of what can and cannot be done.

Reproducing 30 second clips of music is not fair use. US v. ASCAP (SDNY 2009) Retrieved on March 4, 2011 from www.nmpa.org/legal/cases.asp

Michael Grebb (2004 October 12). Music Industry Spurned by Court. Retrieved on March 5, 2011 from www.wired.com/entertainment/music/news/2004/10/65321

Sean Michaels (6 September 2010). Eminem label loses court battle over digital royalties. Retrieved March 6, 2011 from www.guardian.co.uk/music/2010/Sep/06/eminem-label-loses-court-battle