Welcome

Welcome to the Don't Steal My Big Idea blog. As far as I know, this is the first blog about a CLE seminar about blogging. If you want a traditional CLE outline, click on the link below titled "Primer on Blogging." If you want to know what I'll talk about tonight, keep reading.

Formats

New online formats are appearing virtually every day, so it's nearly impossible to put them in a box today in a way that will make sense tomorrow. But here are the basic three we'll talk about tonight.

Blogs
The grandaddy of them all, the blog, is the tried and true format. Basically, if you have internet access, you can have a blog. I'm not kidding --- watch. Blogs cover every topic under the sun, from a travel journal to blogging the US Supreme Court.

Podcasts

Podcasts are like a multi-media blog -- basically, instead of writing your thoughts you record them via sound or video. Here is an intellectual property lecture podcast and here is another legal podcaster.

Wikis

There's the original, Wikipedia. An online encyclopedia that has been created entirely by reader contributions, Wikipedia showed the potential. Now, however, Wikis are being used as a growing medium for online collaboration both internally and externally. For example, a marketing company with employees spread around the globe can set up a Wiki online that the employees can access to create a marketing project. Just to show you what I'm talking about, here is a Wiki created for the purpose of this seminar about intellectual property and the lawyers who practice in the field.

How Bloggers, Podcasters and Wiki-ers Get Sued

As you can already see, a blog, podcast or wiki done wrong can get its creator sued. How?

1. Copyright Infringement

-Using copyrighted material is the quickest way to be sued. For example, what if I had included a copyrighted cartoon in this blog to get a laugh when I opened the site? Like this..... It's easy --- too easy --- and the only question is whether it's worth it for the owner of the copyright to sue me.

-What about fair use? It's the most popular defense --- I couldn't find a case involving the fair use defense by a blogger, but there are plenty of cases where fair use is the defense raised by an online operator. For example, in a recent opinion by the Ninth Circuit, the court found that Google's posting of thumbnail images of copyrighted photographs as a way to lead searchers to the authorized website of the photographs' owner was a fair use. Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146 (9th Cir. 2007).

And in case you were wondering where to find the fair use defense, it's in 17 U.S.C.A. Sect. 107. That provision says that the fair use of a copyright work "for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research, is not an infringement of copyright." The factors to be considered in analyzing whether a use is a "fair use" are, in condensed form, 1) the purpose and character of the use, including whether it's being used for commercial or nonprofit/educational purposes, 2) the nature of the copyrighted work, 3) the amount of the portion used in comparison to the whole, and 4) the effect of the use upon the market or value of the original work.

-What about the DMCA provisions protecting internet operators from copyright infringement claims? Excellent question. Congress, in a relatively rare moment of foresight, has included a process for handling copyright infringement issues on the internet. The procedure for these "takedown notice" actions is detailed in 17 U.S.C.A. Sect. 512(c).

For example, consider a situation where a lonely high school student decides to become famous by posting amazingly entertaining home-made videos on the popular website Youtube. Say that this lonely high-schooler uses a famous rock song by a certain popular New Jersey-based band in his videos. The New Jersey band can contact Youtube and inform the site that a video posted there contains material that infringes the band's copyrighted song. Youtube then is obligated to remove the infringing material from its servers or face infringement liability itself. The lonely high-schooler might also face consequences --- Youtube might cancel his account, thus killing forever his dreams of fame and fortune. And there's a safeguard built in to the statutory framework to protect Youtube from being deluged by worthless copyright claims --- if the copyright owner abuses the takedown procedure (by, say, misrepresenting their ownership of a copyright), the owner is subject to liability. For a detailed discussion and application of a scenario very close to this one, check out the decision in Doe v. Geller, 533 F. Supp. 2d 996, 1001-02 (N.D. Cal. 2008).

2. Defamation Claims

I realize that defamation is not strictly an intellectual property issue. But it's a popular claim in the blogging world. The pending cases of Ward v. Cisco and Frenkel Case No. 2007-2502-AAlbritton v. Cisco and Frenkel Case No. 2008-481-CCL2 show how a patent blogger can become mixed up in a defamation suit.

The case relates to a ‘preemptive strike’ by ESN against Cisco for infringing a certain patent (for those of you who care, it was Patent No. 7283519). ESN apparently sued on October 15th (at least that's what the original docket entry on PACER reflected); however, the patent did not issue until October 16th. As you know, a patentee has no standing to sue until after the patent issues, even if they know the patent will issue the next day. Mysteriously, the PACER entry was later amended to show the case being filed on October 16.

Rick Frenkle, posting as ‘Patent Troll Tracker’ in the comment section of the patent law blog ‘Patently O’ posted the statement that he had received anonymous emails suggesting that ESN’s local counsel called the court clerk and convinced him/her to change the docket to reflect and October 16 filing date.

Within three days of that comment a defamation lawsuit had been filed in Texas state court by ESN’s local counsel against both Frenkle and his employer Cisco Systems. While Cisco is defending the suit, it has instituted a new blog policy – no anonymous blogging or comments on issues associated with your Cisco job. See also Michelle Massey, Patent Troll Tracker Sued for Defamation, The Southeast Texas Record, March 13, 2008 (discussing the suit).

3. Trademark Claims

Sometimes bloggers and other online publishers get sued for trademark violations too. For example, a blogger might want to say something about Microsoft --- maybe something critical. But a blog criticizing Microsoft that no one reads is a waste of time. So the blogger decides to put "Microsoft" into the "metatags" of his site. A metatag is an imbedded code in a website that search engines look for when searching the internet. If you went to Google and searched for "Microsoft," theoretically the search returns would include websites that had the word Microsoft in their metatags.

Since Microsoft might not like to be criticized, they might sue the blogger for trademark infringement because he put Microsoft in his metatag. If the blogger was selling software on his site, and he really was using Microsoft in his metatags to drive traffic to his site to buy his software, Microsoft might have a claim. But if the blogger was really criticizing Microsoft and his use of the metatag really was to drive traffic to read the criticism, then the use of the metatag was probably a fair use (see discussion above about copyright and the fair use defense).

The bottom line is this: if you're using trademarked names to drive traffic to your site to boost your revenues, you might be on the hook for trademark infringement. But if it really is for a fair use, then your blogger is probably okay. For a discussion of this precise scenario, read the opinion in Faegre & Benson, LLP v. Purdy, 367 F. Supp. 2d 1238 (D. Minn. 2005).