Outline of Intellectual Property

These observations are based on my experiences as a writer. I am not an attorney. Seek an attorney for questions about specific situations. (See note a few paragraphs below for links.)

Intellectual property is, after all, “property,” and it has its own “properties,” just as does tangible property and real property. It shares with real property the feature that its future monetary value may be very different than today’s but differs in that it is not inherently finite.

Intellectual property law is expressed in both statutory law (such matters as copyright and obscenity) and common law (several of the common torts).

Many of the concepts are tricky, and the age of the Internet and other kinds of self-publishing (low cost and low revenue but potentially large audience) may necessitate rethinking of many of them. Therefore they have a bearing on effective political speech, and important concept for the rest of this site. Some of the ideas presented here (and on successive links) are admittedly theoretical and conjectural but could come up more or less unpredictably in the age where anyone can make the whole world an audience. So it is well to outline them.

Understand that these are conceptual outlines intended to support political and social debates. They are not intended to be definitive for individual situations. Indeed, the Internet is posing scenarios for which no one know for sure how new legal doctrines may evolve. For your own situation, please visit the professional services links page to find an attorney. You can also visit findlaw or Intellectual Property Law Firms sponsored link. Web advertising and click fraud has suddenly become an important topic.

The centerpiece of American copyright law is, of course, the Copyright Act of 1976, Title 17 of United States Code, Public Law 94-553, 90 Stat. 2541. It is printed by the Library of Congress in a green softcover, circular 92. The easier place to find this on the web is the Library of Congress itself. There have been many changes since then, such as Public Law 104-39 of 1995, regarding digital sound recordings. The authority of Congress to provide for copyright is explicitly contained in Article I, Section 8 of the United States Constitution' "The Congress shall have the Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and to Inventors the exclusive Right to their exclusive Writings and Discoveries."

Copyright infringement can result (in extreme cases) criminal penalties (similar to larceny, since it is a form of theft), and (more often) civil judgments, including seizure and destruction of the infringing materials (books, periodicals, web sites, movies, videotapes, recordings). Any party (such as a printer or duplicating business) participating in an infringement can be held liable regardless of knowledge of the infringement, although actual litigation against unknowing participants has been rather rare (although one duplicating service was burnt badly in 1991 for duplicating pirated study guides)

Probably the most controversial concept in copyright law is "fair use." Technically, fair use exists only as a defense to litigation, although its application is reasonably predictable. Limited reproduction of or, especially, quoting from copyrighted works may be done without permission, depending on (1) the purpose or character of the use, with a preference intended for educational and nonprofit purposes (2) the nature of the copyrighted work (3) the amount of material copied in relation to the whole and (4) the effect of the copying on the potential market for the work.

Important fair use litigation includes Harper & Row v. Nation (1985), Harper & Row v. Liveright (1982), Hamilton v. Salinger (1986).

Here are a couple of questions not yet clearly answered by available litigation: (1) Would a non-profit organization be allowed more leeway in a fair use determination than an individual acting on his own (presumably for profit)? Could the individual's overall business conduct affect a fair-use determination? Note that for-profit enterprises can claim fair use; most publishers have policies regarding permissions required for quoting. (2) Is the forwarding of a wire-services news release to an "educational" email list-server fair use?

Sometimes companies will protect proprietary material from claims of “fair use” by maintaining that (for example, software manuals) are “unpublished” and may not even be referenced bibliographically. This may be dubious, although companies certainly may protect trade secrets and any licensed materials. Even so, when companies write their own internal manuals companies must comply with copyright laws, and there have been a few lawsuits when employees have plagiarized materials from other companies or from previous employers.

It is much more difficult to use a concept of fair use with respect to music. In fact, in 2004 the 6^th Circuit in Cincinnati ruled that rap music artists must get permission or buy a license for every sample included in their commercially performed or sold work, even (digital) samples that are unrecognizable to a reasonable person. This ruling seems to come from the DMCA and other federal laws enacted in the late 1990s against digital piracy. The case involved the 1998 move I Got the Hook Up from No Limit Films.

Another interesting concept: what is and what is not copyrightable. For example, ideas are not copyrightable. Anyone can discuss in a book, say, the military sociology underlying "Don't Ask, Don't Tell." Also, titles are not copyrightable (but see trademarks, below). So, I can't, under federal copyright law, stop a movie studio (and, here, I'm speculating!) from making an Adam Sandler comedy called Do Ask, Do Tell instead of a serious historical study of individualism like my Do Ask Do Tell book. Nevertheless, some states have "unfair competition" laws that would prevent reuse of a title if it would confuse the public. A related controversy is the practice of "parking" Internet domain names so that a commercial interest would have to pay a hefty fee to use it. This is coming to be perceived as unethical and is likely soon to be regulated by federal law.

By the way, one does not generally need permission to give a bibliographic reference or even a url link on a website (there can be problems with a link internal to a site if it bypasses advertising that the site operator intends all visitors to see). There are rare exceptions, such as with classified documents or trade secrets, or “unpublished” internal documents of corporations or for customers. But in at least one case, a consulting firm KPMG has objected to private individuals to even simple links (at least in connection with criticisms of the company) so I won’t give the direct link here (you can figure out what it is). The WiredNews story is at http://www.wirednews.com/news/business/0,1367,48874,00.html. Also, there is the article “Withdrawal of the Reference: Rights, Rules, and Remedies for Unwelcomed Web-Linking,” from 49 South Carolina Law Review 651-693 (Spring 1998) by Walter A. Effross at http://www.law.american.edu/ (at /pub/faculty/effross/withdrawl.html) where many theoretical questions regarding traditional torts and linking are examined. Although on a site like doaskdotell.com most of the links amount to bibliographic references (like in a dissertation or term paper), sometimes, in Efforss’s view, there is unfair use of the target site’s reputation or marks (as in framed references) or the original site may give an unwelcome context (such as association with pornography) to the target. Effross suggests that a “traffic light” approach be developed by the web publishing software industry, where a “red” icon means no linking is authorized or licensed, and a “yellow” means only specific sites may link, and where green implies unlimited linking licenses. In at least one case, web publishers have received cease and desist letters merely for providing links (or other descriptive information) to other sites that contain allegedly infringing copies of a plaintiff’s materials, where the purpose of the publisher had been to indicate that the plaintiff was falsely advertising or promoting its products or services. The details are at http://www.eff.org/Legal/ISP_liability/20031016_eff_pr.php Also, many major engines can index all combinations of words on a page, and the ranking may be based on the presence of other links to the page from other domains (even message boards), an observation that could potentially make unsolicited links an issue.

But (Nov. 2005) Mark Cuban (Dallas Mavericks owner and a principal player in Magnolia Pictures and some independent film ventures) suggests that major news sites pay for links to their stories when advertising revenue results for the original content owner. This is a “win-win” that would discourage print content infringement, at least, and pay for links, which have themselves been controversial. Go to http://www.blogmaverick.com/entry/1234000550066876/

One concept that original content holders will be strict about is inline “framing” – opening a pseudo-window (or a separate frame or thumbnail – thumbnails themselves are controversial) on your page to present their content, especially if it bypasses advertising. In general, one should not use the “target = _blank” keyword in HTML when linking to another’s content. Some companies have been concerned that deep linking provides a misleading view of their site, implies their endorsement to the linker, or bypasses material that they or advertisers want visitors to see. However, in the end, a simple link is like a bibliographic reference. Content owners should not place material in a public space that they do not want some visitors to find out of context.

There is an Australian website peekvid.com that reportedly (according to a story on NBC4 on January 23, 2007) offers links to downloadable pirated copies of movies, including movies not yet released. Because the site offers just links, it is more difficult for the MPAA to make a legal case to sue.

Walter S. Mossberg provides The Wall Street Journal, March 10, 2005, a “Personal Technology” column, “Google Toolbar Inserts Links in Others’ Sites And That’s A Bad Idea,” discusses the controversial Google “Autolink.”

First Amazon and then Google caused controversy by offering total-book searching. Google plans to scan most books (apparently not just those in public domain) and offer excerpts to users, with its Library Project. Google would not earn direct revenue, “only” advertising, but will pay a royalty if the user purchases a hardcopy or e-copy of the entire book through its site. Nevertheless, the Authors Guild and some other parties have filed suit claiming copyright infringement. One problem seems to be that Google is storing complete book text on its own servers rather than publishers’ servers, and most of these are books that are now out of print. In practice, the likelihood that an author or trade publisher will lose revenue or royalties due to free online display depends upon the kind of book. A reference book (or perhaps a book used as a reference like a cookbook) would seem to be more vulnerable to causing revenue loss through free searching than a fiction work or a detailed nonfiction prose narrative. Free display is likely to help sell books with great narrative value, since it is impractical to view a lot at one sitting. Still, it would seem to me that if more than a certain amount of text is offered (proportionally) royalty ought to be paid. This whole problem illustrates the many different writing paradigms, and the idea that some people are much more dependent than others on the idea of advances and income from every piece written. The major references on this are “Google Me!” by Cameron Stracher in The Wall Street Journal, Oct. 24, 2005; and a debate presentation in The Washington Post, Oct. 22, 2005, “The Digital Library Plan”: Mary Sue Coleman, “Riches We Must Share…” v. Nick Taylor “ … But Not at Writers’ Expense”. Some references: http://www.authorsguild.org/news/sues_google_citing.htm http://www.csmonitor.com/2005/0926/p03s01-ussc.html A more recent reference is Kevin Kelly "Scan This Book," The New York Times Magazine, May 14, 2006. Kelly suggests that search companies maintain a "No Scan" list of authors or publishers who do not want their works scanned (like the "do not call list" perhaps). Another issue is that scanning make make other people mentioned in a book uncomfortably easy to find for free with search engines.

Related to this is a suit, described by Helena Spongenberg, in Europe by AFP against Google for compiling various clips from copyrighted sources and making money off of advertising. The story is “Group: Online Content Cannot Remain Free”.

Part of this article deals with the idea that the public should be willing to pay for “gold standard” content and is taking free content for granted. Are bloggers and content providers like me then part of the problem? I provide my own content.

Generally, unclassified government documents are public domain, although there are some arcane exceptions, such as zoning or building code regulations when a local government makes a contract with a local publisher for publication rights (this has already been challenged in Texas).

Copyright law for digital works has become more complicated by the DMCA, the Digital Millennium Copyright Act of 1998, which critics say compromises fair use, first sale and limited time concepts for digital works. See http://www.eff.org/IP/DMCA for more. One troubling provision is the “safe harbor” for ISP’s that encourages them (to reduce litigation risk and expense) to take down content or remove customer sites when there has been an alleged (whether substantiated well or not) copyright infringement. This portion is called Online Copyright Infringement Liability Limitation Act (OCILLA), or DMCA 512. Wikipedia has a detailed discussion and some pro and con arguments as well as a fictitious scenario at this link: http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act Search engine companies will take down specific search engine results under the "safe harbor" provision with proper good faith notification (it has to be verified; email alone is not enough). Most companies document this (Google's is under dmca.html). Takedowns may be reported to "chillingeffects.org" (below) and posted. Google has a "terms_of_service" page in which it also explains that caching (which might be perceived as copying) can be prevented by a NOARCHIVE meta-tag and that it can remove caches on case-by-case requests.

A special concern with copyright is plagiarism, the “use or passing off as one’s own ideas or writings of another” (The American Heritage College Dictionary). There have been controversies when historians have closely quoted other writers without proper attribution or use of quotations. According to the PBS Lehrer hour on January 28, 2002, Harvard University strictly includes the failure to use quotation marks, even accidentally, as plagiarism and will seriously discipline any student for even one accidental infraction. There is also controversy as to whether trade publishers should withdraw books for credible charges of plagiarism, whether they have a responsibility to make these charges public, and whether a clearinghouse should be set up to handle this kind of problem. It is not clear how this could work in the self or cooperative publishing realm.

In April 2006 publisher Little Brown withdrew the novel How Opal Mehta Got Kissed, Got Wild and Got a Life by Harvard student Kaavya Viswanathan for excessive similarity (whether subconscious and unintentional) to novels by Megan McCafferty (such as Sloppy Firsts and Second Helpings), which Viswanathan had read in high school. The new novel was popular with young readers and on the way to becoming a best seller. The AP story is by Hillel Italie, April 28, 2006, "Novel By Harvard University Sophomore Is Pulled From Store Shelves." Viswanathan had worked with a book packager which had helped her develop the story.

In August 2003 the SCO Group announced that it would puruse (or sue) individual Linux users for license infringement. The details are at Sept 1 2003 Computer Business Review, “SCO Preparing Legal Action Against Customer” by Matthew Aslett, at http://www.cbronline.com/latestnews/62cbf9d13b40711e80256d880018c80f The claim is that Unix code was illegally copied onto Linux and that any customer could be liable. It is not clear whether owners of PC’s that use Linux (even Mac OS X uses it) could be pursued. The is a bit similar to the Unisys gif problem discussed on this page. A story by Jonathan Krim, “Showdown with the Linux Gang: One Company’s Lawsuits Challenge Open Source Code,” The Washington Post, June 10, 2004, develops the story further. Servers (not just home users) that use Linux might be at risk for paying the $700 license fee, and it seems now that businesses that buy software could be liable for indirect licenses even when they buy from vendors in good faith.

One may not record movies, songs, performances, etc. and include portions of them in one’s work without permission. One should not use images of celebrities without permission (that is right of publicity, below). It is probably all right, as “common sense” (or perhaps “fair use”) to include brief incidental music excerpts or images at free (outdoor) public events or celebrations on a website as long as the use is non-commercial and the performers were not expecting to earn additional profits from their appearances.

In Britain, authors Michael Baigent and Richard Leigh of the 1982 book The Holy Blood and the Holy Grail, from Random House, are suing Random House for publishing Dan Brown's novel The Da Vinci Code (2003), which the authors claim unfairly expropriates detailed research presented in the earlier non-fiction book. Ideas cannot be copyrighted, but in Britain, at least, there is legitimate controversy about detailed factual research. It is not clear yet what effect the lawsuit could have in the United States. It could affect release of Sony-Columbia's film of the novel, at least in Britain, scheduled for May 2006. A judge in Britain (Peter Smith) turned down the plaintiffs on April 7, 2006 and since Britain has loser pays in these circumstances, the plaintiffs could have to pay up to $1.75 million in attorneys fees for both sides. (In the US, "loser pays" applies only in some cases; check with your attorney; there is a movement in general tort reform to encourage its use in the US to stop SLAPP and frivolous lawsuits.)

Work for hire is still another controversial topic. Employers own the copyrights to works created by their employees during the course of employment. Generally, employees may create intellectual property works outside of their employment with full copyright ownership of their own work, but employees may not pass along confidential information in these works, and there must be significant distinction between the work and what was done in employment. So a salaried computer programmer could write a textbook on programming techniques as long as they were generic and not specific to his own job. More difficult could be assessing “substantial similarity” of inheritable code itself. This is likely to be controversial (especially in the age of Internet self-publishing) and difficult to assess in many situations, when an attorney's advice should be sought. The work for hire provision of the Copyright Act probably provides informal support for the notion that in most circumstances a non-management salaried employee may own (outside of the scope of employment) his own "publicity rights" (although there are troubling proposals in Congress to define all salaried professionals as “management”).

Related to work for hire is the practice of making book contents searchable online (Amazon’s “Search Inside the Book) without specific author or publisher additional compensation, which might raise copyright issues with some kinds of books (“how to” books or cookbook recipies) where small excerpts could be valuable.

There has been controversy over the practice of many media companies in requiring freelance writers to agree to contracts selling all of the writers’ electronic reproduction rights for freelance contributions. The media companies to this by structuring their contracts as work-for-hire contracts. The argument is advanced that such practices violate the intent of the Copyright Act. The National Writers Union has especially vigorously protested this practice with write-in campaigns. As a legal (related to anti-trust and fair competition laws) and ethical principle, it seems that a media company should not insist that a freelance writer agree to resale contracts in situations where the concept for the article came from the writer and where the writer had invested his own money first to develop the concept. The publication should not be able to regulate where the freelance writer submits other work with non-compete clauses. On the other hand, for work in which the concept came from the publisher (that is, ordinary work assigned to journalists) this does not seem like an unfair practice. The dichotomy between a salaried writer and a freelancer writer on contract with a particular company would be similar to that faces by software developers, in those cases where the project was conceived and funded by the employer or publisher. In those cases, work-for-hire arrangements are not illegal or inherently unfair.

There has suddenly arisen a new wrinkle, the possibility of extending copyright-like protections to collections of facts as in scientific or economic databases. This is the proposed Database and Collections of Information Misappropriation Act (DCIMA, H. R. 3261). Conceivably this could threaten anyone with a bibliographic reference and quoted “fact” to litigation, although in theory I suppose I could claim “infringement” for my political concepts database under development. (Don’t worry, I wouldn’t, out of self interest.) This is dangerous departure from the tested notion that facts and ideas cannot be copyrighted. Perhaps some of the pressure for this comes from the movement towards Open Source. The EFF website reference is http://action.eff.org/action/moreinfo.asp?item=2857

(Piracy and illegal downloading of music and movies): This has been a particular problem in the age of the Internet, particularly through peer-to-peer-computing. Because of the Grokster opinion in 2005, software vendors and even ISPs face possible downstream liability if they knowingly abet in infringement (and copyright law, as noted, generally accepts the idea of downstream liability for middle parties.) Some ISPs, like book publishers, have adopted indemnification policies (see below) and now have started offering DMCA (Digital Millennium Copyright Act of 1998) copyright infringement forms for complainants to submit reports of alleged infringement. (According to EFF, ISPs apparently have safe harbor if they remove infringing material immediately upon a credible complaint; they may remove material without telling the domain owner, although this issue is still up in the air in the court system, as of June 2006.) The main area of infringement is music songs and movie piracy, as well as making or distributing pirated copies of software. Many people, especially teenagers, have trouble understanding why such downloads are and should be illegal. The Software Publisher’s Association audits businesses for compliance with software licenses.

ISP’s might be exposed to “contributory infringement” in copyright, trademark, defamation, and other IP situations if they have knowledge of the infringement. This has led to suggestions that ISPs (and even people who provide blogging space) not monitor their customers’ activities (“play dumb” or “play possum”). There might be more downstream liability concerns specifically for copyright than other torts because sometimes copyright laws are interpreted as holding middlemen responsible. This is all murky as there has not been a lot of conclusive experience in court, but this will surely change with all of the piracy cases. A good reference is http://www.bitlaw.com/internet/isp.html There is a position paper by Jim Harper at CATO on this problem, Spring 2005, at http://www.cato.org/pubs/regulation/regv28n1/v28n1-5.pdf

A new concept associated with copyright is copyleft, a term from Wikimedia, at http://en.wikipedia.org/wiki/Copyleft, that is "a copyleft license uses copyright law in order to ensure that every person who receives a copy or derived version of a work can use, modify, and also redistribute both the work, and derived versions of the work."

Copyright law does not protect an idea, such as a story plot or theme or motivating element. The presentation or treatment of the concept is what is protected, not the idea itself. That concept is very important to novelists and screenwriters. However, sometimes creative "ideas" can be protected as trade secrets. This concept is important in the film business. Often studios will only look at scripts or treatments (even loglines) from third-party agents because they do not want to be exposed to the risk of accidentally taking a "secret" idea. The fact is it probably happens all the time anyway, particularly in the age of the Internet. Studios that run message boards warn the public (with disclaimers and terms of service agreements) that anything posted could become the property of the studio, so be careful about posting your own storylines on movie studio message boards (like TheWB). I have wondered if I jeopardize my ownership of my own scripts by posting them online, but one could argue that by doing so I can prove that I created them. The closer they are to events or concepts in my own life, the more protection they would have, although then they could infringe on the privacy of others (below). Several times I have seen unusual ideas conspicuous in my own writings (such as "vicarious living") appear in movies or television series, and this may not be a coincidence. Generally, one is not free to use "trademarked" characters from other movie franchises (like comic book characters) in new work. There was a famous case where Art Buckwald sued a studio for taking a story about an African prince. Here is a typical legal reference: http://law.freeadvice.com/intellectual_property/copyright_law/copyright_idea.htm

Paraphrase is often suggested as an antidote to plagiarism or copyright infringement problems, but it should be done in good faith. Many news sites have disclaimers like "this material must not be published, broadcast, rewritten, or redistributed." The "rewritten" would seem to prohibit paraphrase in blogs. Ozlem Uzener and Boris Katz have a paper from MIT, "Non-Verbatim Infringement Detection for Text," at this link (PDF). The mention parallel relationships among words in a document, like "lexical attraction, association ratio" and "syntactic relationships like subject-verb-object patterns." This may be easier to detect in other languages that have strict conjugation and declension rules. Generally, a blog entry based on a story should try to mention other comparable stories, or at least provide some editorial or contextual insight not in the piece being "paraphrased." It should state the significance of the piece with respect to other issues.

X17 Inc. v. Lavanderia, Citizen Media Law Project, link here., where a gossip blogger posted other's Internet photos without permission.

Patent: A patent protects the inventor of a functional process or manufactured item. Patents are regulated by the U.S. Patent and Trademark Office. However, up to a point, software programs or “methods” may be patented. This has caused some controversy, because sometimes a patent-holder may be able to restrict the uses of his process by the end-user by charging the end-user for additional licenses or by requiring the intermediate software vendor (using the process) to properly license the specific customer uses. This is more complicated than the usual issue of copyright and software licenses (a legal compliance issue in the workplace). An example is the controversy over Unisys’s patent of the compression algorithms used in producing .gif files for the web. See http://burnallgifs.org/ or David and Rhonda Crowder, Building a Web Site for Dummies, IDG Books, 2000, p. 94. Unisys gives its side of this at http://www.unisys.com/about__unisys/lzw/. Apparently, according to burnallgifs, this patent expired in the United States on June 20, 2003 but is still valid in Europe and many other countries.

Another controversial example concerns Acacia Media Technologies Corporation, which in 1991 patented a straightforward technique for compressing digitized video. Acacia has recently been demanding royalties from adult entertainment companies for streaming video use, and has only more recently gone after cable and satellite companies, AOL and other large ISP;s, and even universities. Now, of course, the matter is in court, and the patent office has been criticized for granting patents too easily for digital products (such as methods in java libraries) given the nature of Internet technology. Jonathan Krim has a story, “Protecting Air or Protecting Property: Information Age Invents a New Problem,” The Washington Post, Dec. 11, 2003. See also http://www.fightthepatent.com/v2/Acacia.html

Apparently there are some copyright issues with caching and archiving. See the discussion below under my term "leveraging".

There has been some confusion over copyrighting of sports events. Certainly videos of MLB, NFL, NBA, NHL, etc. professional sports games are copyrighted and the major league sports franchise owners often charge subscriptions or small fees for access or viewing of some videos on their websites. There has been some controversy, especially overseas, over whether Chess and Go or similar game scores (maybe even poker or bridge, as in a casino event) are copyrighted. It appears that they probably are not. Bobby Fisher at one time may have tried to copyright his games. Here is one reference from the University of Washington. A writer or publisher would seem to be on safer ground if she keeps the collection of scores rather limited (fair use) and adds her own analysis or commentary to the games, or can make specific analytical or comparative points about the games. Commentary by other masters would be original intellectual property and would be copyrighted. See comment under right of publicity below.

There is some anecdotal evidence that search engines sometimes remove specific searches of parties who do not like to be named on certain sites, possibly because recently employers have started looking up applicants with search engines. However I cannot find specific documentation of this practice on search engine help sections. This is similar to "safe harbor" take-downs of searches under the DMCA, above.

Trademark: A trademark is a phrase (trade or service name) or graphical entity that identifies a business and its products or services. Trademarks are protected under federal (and state) patent laws. Official registration with the U.S. Patent and Trademark office is not legally required, but in practice makes it much easier to uphold an otherwise “common law” mark, and companies serious about enforcing branding nearly always register them. Generally the USPTO will recognize a mark only for a product or service that is marketed to the public in some significant repetitive volume, in such a way as to represent the legitimate concept of a “brand.” One variation of trademark is “service mark.” When registered, a trademark can be accented by the symbol “®.” Trademarks may be “weak” (commonly used words or phrases, like Todd Beamer’s “let’s roll” or like “do ask do tell,” if anyone tried to trademark either of these) or “strong” (indicative of specific branding). The U.S. Patent and Trademark Office generally will allow the same wordmark to be used (with a trademark) by different entities in different kinds of businesses (there are up to 16 of these). Book titles cannot be trademarked, although an identifier of a series of related books (like the “for Dummies” [silly!] books from IDG) can be. Abandonment of a trademark application would probably negate a future common law trademark infringement claim. Recently, there have been rather silly battles between large companies protecting their brand-names from distraction by small businesses, such as amazon.com and a women's bookstore in Minneapolis, or the Wall Street Journal and a New England kid's newspaper, the Small Street Journal. Large retailer, publishers or movie studios may fear that the opportunities for huge profits from a "public splash" can be lost to competition from very small businesses! It is possible to get into trouble with an "assumed name" for a business registered in one state if there is another business that uses the same name with a federal trademark. There have been problems (as with ISS v. Epix) in which Internet domain owners have been forced to relinquish domain names to trademark holders which the domain holders did not know to exist and which had not set up "obvious" domains matching their trademark names on their own (so small domain operators must exercise considerable diligence in choosing domain and business names to avoid infringement). [Note: Epix appears to have won this case, inasmuch the Clinton Street Theater has had to move to a different domain at considerable cost; visit http://www.epix.com/ and http://www.vpix.com/ for details; Later, it appears that ISS prevailed with the District Court and the Ninth Circuit. This is a pretty complicated case. Here is ISS’s discussion. Here is the opinion link.). (“Generic” sounding names would be “weak” wordmarks and would not be as likely to constitute accidental trademark infringement; however businesses with “weaker” wordmark names sometimes may file assumed names in all fifty states in order to anchor claims to exclusive use of their names, an expensive procedure.) Trademarks (and workmarks) are registered according to category of product or service, and domain name holders may sometimes want to consider indicating the type of product or service as part of the domain name. Trademark infringement, like copyright infringement, can result in cease-and-desist letters, judgments, and orders to destroy all offending materials.

I have wondered if ICANN should set up separate TLD suffixes for each kind of business recognized by the US Patent Office (it would have to reconcile this to international practices), and encourage the use of the .name TLD suffix for individuals. Of course, .biz (as opposed to .com) is being promoted as a suffix for “real transactional commercial use” only, and it is quite expensive.

There have been a few cases where corporations have aggressively protected workmarks, even individual letters, when common sense would make one wonder if the corporations really ran business risk. Wordmarks do not always comprise the beginning of a title (as with the IDG “for Dummies” books). Possibly this eagerness to litigate comes from a misperceived sense of fiduciary duty to shareholders or from corporate bureaucracy. Adam Liptak in the New York Times reported a suit against the publishers of Oprah Winfrey’s “O” magazine by a German publisher (Ronald Brockmeyer)of a fashion magazine with a similar name (and Brockmeyer claims ownership of the “O” workmark in the U.S.) In 1996 McDonald’s tried to stop Mary Blair from opening a shop in England called McMunchies (that is “Mc” prefix was held to be trademark-protected). However letters and prefixes probably are weak marks in American law. If the letters or prefixes are embellished in a trade dress the protection claims should be much stronger. Recently, a software developer was pursued by Microsoft was pursued for the way he used his own name (whatever his right of publicity, below) in his domain name for http://www.mikerowesoft.com/, although phonetic likeness as pronounced (apart from spelling) sounds like part of the problem. (He could have avoided this by using his entire name.) The new domain is http://www.mikeroweforums.com/

Another example is the August 2003 trademark lawsuit by Fox News Channel against CNN Reporter Bob Franken (and Penguin Publishers) for using the phrase “Balanced and Fair” in the title of an upcoming book “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.” A look at the USPTO’s TESS database shows “Balanced & Fair” as a Fox trademark (from 1995) but not with the word “and.” It seems that the phrase is generic and common and that Fox’s action here is frivolous. But, again, a few companies are very aggressive and pro-active in protecting what they perceive as their own marks. Caroline E. Mayer reports in The Washington Post (“No Bend in Brand Names: Big Corporations’ Litigation is Changing Trademark Philosophy,” Jan. 29, 2003) that Kirby, a vacuum cleaner manufacturer, has challenged repair business owners for merely listing it in Yellow Pages ads (perhaps because the ad suggests dealership or the ability to do unauthorized warranty repairs); and Intel (which owns the “Intel Inside” trademark on personal computers) has challenged a trademark application by a psychic for a business called “SpiritInside,” claiming that the “Inside” component distinctly belongs to Intel’s brand (and it has challenged other applications using “Inside”). This seems to violate common sense, and furthermore trademarks are supposed to be issued within (up to 16) distinct business categories.

The United States Patent and Trademark Office (http://www.uspto.gov) is now (2005) allowing some special characters to be included in wordmarks.

Recently (April 2000), the US Patent and Trademark office has suggested that individuals should use “.org” desginations on their domain names, and that “.com” is intended for commercial organizations. Apparently .com should be used only when the individual files his business with the IRS as for-profit in the 3 out of 5 years rule. This may eventually have a bearing on domain-name disputes. The reference is http://www.uspto.gov/web/offices/tac/notices/guide299.htm.

In November 2000, the Internet Corporation for Assigned Names and Numbers (ICANN) adopted a list of additional domain suffixes. These will include .aero, .biz (for business), .coop, .info, .museum, .name (for individuals), and .pro (for professionals). These suffixes may be available by Spring 2001. It is not completely clear how qualification standards will be enforced. “.biz” will be very expensive and available only to “legitimate” businesses that actually process volumes of transaction. (As of late 2002, companies have started reproducing their sites under .biz, but relatively few consumers look them up this way.) As noted above, the same intention had been defined for .com back in 1994, but there has never been any attempt to prevent non-commercial (“self-promotional”) use of .com.. Existing .com names would probably, in practice, be protected by grandfathering, although a web site with a “.com” suffix but without commercial business paradigm would probably be in a weak position in any administrative domain name dispute (following ICANN’s low-cost administrative dispute resolution steps) with a “real” business. However, the new TLD scheme could, for future names, relieve some of the trademark issues (as with the Epix case) and even smaller existing owners of .com names could be pressured to adopt “.name” suffixes for legal self-protection eventually. There would remain the question as to how search engines will handle these, although many of them already handle “pseudo-individual” subdomains such as those on America Online (AOL) Hometown. A Long Island Newsday article on January 14, 2000 complains “.. dot-coms are, in a sense, being overused and no longer say much about the person or business using them. A dot-com can easily be the personal Web site of a writer, such as Dolinar.com [or doaskdotell.com, mine!!- ed] as it can be a commericial site for the newspaper he writes for (Newsday.com).” Network Solutions has pointed out that (as of late 1999) about 2/3 of all dot-com domain names either are unused by content or used by content with little customer interaction or genuine commercial intent (as opposed to individual “self-promotion”). Perhaps, in the future, domain-name disputes will consider whether the alleged infringer has a legitimate, potentially profitable commercial operation behind his or her “.com” domain, or perhaps the new “.biz” will draw away the controversy. There will be definite constraints on the use of some TLC suffixes (.pro will require a professional license, for example).

In April 2001, ICANN reported that eventually there may eventually be enforcement of the original idea that .org should refer to non-profit organizations (after .name is available to individuals, as noted above) and even that .com (as wellas .biz) refer only to legitimately operational businesses, with eviction of current non-complying holders possibly by 2003 or 2004. Possibly at some point in the future all free editorial or literary content would have to use a different TLD, and possibly (when individually owned) a main name indicative of a personal name (as well as a .name TLD). There has been concern by some in Congress that in the future companies will become much more aggressive with trademark claims against entities using domain names remotely resembling established trademarks or brands. It is unclear whether future trademark holders (that is, for marks that are not registered yet) could evict users of established domain names (and similar names with all TLD suffixes) for domains that do not conduct business capable of branding.

Another trademark controversy has arisen out of the attempt by smaller companies to stage “ambush marketing” at the Super Bowl or similar events. See the story over the controversy between the NFL and Subjex, in “NFL sacks local dot-com’s promo,” Minneapolis Star Tribune, Jan. 25, 2001, article by Melissa Levy.

Some domain name v. mark issues remain unresolved. What happens if a person with a name identical to a celebrity’s wants to use that for his domain name (see “right of publicity” below)?

Another possibility is that a company uses a domain name as an internal mail server only, and then finds out that people misspell the name in email and it goes to another domain, giving away confidential information. Domains, especially those with short names, should always have automatic bounce mechanisms in place to prevent the email from other businesses with coincidentally similar domain names from being disrupted. However, a domain name used only internally could not claim trademark infringement from a similarly named domain (say one with a real web address for content) because by definition trademark involves publicly promoting a brand. Companies sometimes avoid using these names as domain names because they fear confusion with a similarly spelled by very different content-concept site and believe that the general public will not understand the confusion that can come from spelling of names or from the way names and slogans are used in public discourse.

Televangelist Jerry Falwell won a trademark claim against a gay activist who set up a domain with the name “falwell.com” which the 4^th Circuit in Richmond (Judge Claude Hilton) ruled as confusingly similar to the registered name “Jerry Falwell” and that the domain name had been set up in bad faith, to confuse traffic intended to visit one of the evangelist’s own sites. In this case, Jerry Falwell’s First Amendment rights, underneath his trademark claim, seem legitimate, even though one may be offended by his message. See http://www.cnn.com/2004/LAW/08/10/falwell.website.ap/index.html in the CNN Law Center Aug. 10, 2004.

Sometimes people have had trouble using their own names as domain names if their names match those of companies or celebrities. For example, Jeopardy (TV quiz show) contestant Morgan Chase had a fight with a bank over using his own name. Would the ".name" suffix provide a solution? How would search engines treat these since they are obviously personal (although search engines seem eager to index personal blogs and profiles on social networking sites).

The Washington Nationals baseball team and Major League Baseball find themselves in a dispute with Bygone Sports in Cincinnati, Ohio, which had registered a trademark by the name Nationals in 2002 based on the old Nationals team for clothing. "Washington Nationals DC" has been registered as the wordmark for the baseball team. It would seem that this ought to be acceptable since a sports team is a different line of business from clothing, except perhaps that the clothing mark was based on the historical team from the past (remember that the name of the old team was changed to Washington Senators in the 1950s, a team which moved to Minnesota in 1961, with a "new" team from 1961-1971, which then moved to Texas). Thomas Heath has a story in The Washington Post, Sect E, Feb. 22, 2006. The main issue seems to be whether the Nats will be allowed to use their own name on their own apparel merchandise.

In early 2006, it appears that trademark searching technology has been advancing rapidly. Some ISPs (such as Verio) now offer much more comprehensive trademark research facilities to subscribers without extra fees than before. One such service is ActiveIP (SearchSmart), both of which are themselves trademarks and servicemarks. You can learn more at http://www.activeip.com/about.html . I expect to take their training soon and can report more about this soon. Again, you can also do reasonable searches at http://www.uspto.gov and follow the links; generally the information is current within about a month and is updated most mornings Tue-Sat.

Despite the concerns over domain names and trademarks, David Kesmodel of The Wall Street Journal reports on Feb. 22, 2006, sec B, "'Drop catchers' Buy and Sell Web Names Others Let Slip."

A related problem is called phishing, which is the intentionally deceptive misuse of a commercial trademark or wordmark, sometimes for identity theft or fraud purposes, especially “attempts to trick account holders to give their account authentication details away.” A software company, Netcraft (providing the definition just quoted), is offering services to look for abuse of workmarks and slogans on the Internet, including in spam. The eWeek story by Larry Seltzer, “Internet Security Firm offers Anti-Phishing Service” is at http://www.eweek.com/article2/0,4149,1426008,00.asp

Another important concept is “DomainPark” (parked domains) in which the domain name owner is paid for hits or sales resulting from placing of ads at the domain by a third party. This is popular with common word names (airlineticket.com), and it is not likely to result in trademark infringement as long as “common words” are used for the names. Sometimes these domain names are sold for high prices because of the potential for quick advertising profits. I am not aware at this time that a third party could take away an existing domain for this purpose from an existing domain name owner if the domain is renewed on time, but some companies are offering “next registration rights” subscriptions for backordering domain names. The relevant news story is Bob Tedeschi, “E-Commerce Report: High prices for domain names are one helpful sign that the economy may be turning around a bit,” The New York Times, March 1, 2003, p. C5.

Donald Trump created a stir with his NBC Apprentice series when he filed a trademark application for his dreaded words: “You’re fired,” by only to sell on clothing and novelty items, not for general uses (the phrase is too generic).

There is a bill, the TradeMark Dilution Revision Act of 2005, HR 683, which would reduce the requirement that a trademark holder have been harmed—the holder could litigate in advance of dilution of the mark, even possibly in a different line of business. Go to http://trademark.blog.us/blog/2005/03/14.html#a1628 or http://www.doaskdotell.com/refer/tradedil.htm This would seem to affect domain names that use common words normally regarded as “weak marks” in today’s trademark law. It apparently would not affect domains already in use before a company gets a new mark.

We notice that for Richard Warren’s 2002 book The Purpose-Driven Life, publisher Zondervan-Inspirio claims a trademark registry (®) for the “purpose-driven” phrase in the title (at least on the bn.com publisher’s notes). According to uspto.gov, the registry occurred in 1996. Again, generally commonly used words are not supposed to be suitable for strong trademarks, and I was a little surprised to see this. (They may be more suitable for book series or franchises.)

While I personally disapprove of “parasites” and “squatters,” I want to point out that some domain name and trademark disputes may involve matters of public literacy. That is, a literate and critically thinking person realizes that one word can have more than one meaning (because English borrows from many languages), and very different words can have similar spelling as can unrelated names. Different companies in different lines of business may have the same or similar names. Unfortunately, market and bottom-line-driven mentality forces companies to look at the “lowest common denominator” in what may attract or confuse potential customers. Education improvements, especially in reading comprehension and literacy, would reduce the urgency of some trademark and domain name disputes. Public schools should educate high school students on theses issues, as with other ethical matters (like copyright infringement and file-sharing).

Despite the controversy over domain names and trademarks, Jon Swartz wrote a report for USA Today, April 14, 2006, "Sellers of Internet addresses surf for -- and get -- some big payoffs: Sales of 5,851 domain names drew $29M in '05".

Software licensing: Businesses sometimes get into trouble inadvertently by not keeping proper receipts or documentation to show that their associates have the proper licenses to use all of their software copies at their workstations. Software publishers use the Business Software Alliance (BSA) to obtain warrants and search business premises and to sue or settle for infringements. For a detailed discussion, see Brian O’Connell, “Compliance Stormtroopers at the Gates,” Computer User, Feb. 2002.

Confidentiality: Trade secrets: A trade secret is a set of business information items or plans which, if revealed, could harm the business in relation to its competitors. Employees of a business may not use trade secrets for their own purposes or release them to the public. A related concept is "insider," a individual whose commercial (securities trading) activities can be regulated because of his inside knowledge of his employer's business plans.

The social networking site Facebook faces litigation for trade secret compromise by a college student from a rival ConnectU. The AP story by Jay Lindsay on July 24, 2007 is "Lawsuit seeks to shut down Facebook," link here.

Obscenity refers to intellectual property (writing, pictures, recordings, etc.) which appeals primarily to the prurient interest and is, according to community standards, utterly without redeeming social value. The community standards concept is troubling with a medium like the Internet (which cannot be excluded in a particular area the way a book or movie can).

Indeceny refers to content which is sexually explicit in a patently offensive way, regardless of redeeming social value. But the Supreme Court overturned the Communications Decency Act in 1997.

Harmful to minors means, essentially, "obscene with respect to minors." See discussion on the Child Online Protection Act (now under federal injunction) for details.

Child pornography, in federal law, refers to images (usually visual or images but sometimes text) of minors (under 18) in explicit or simulated sexual activities. Federal law, discussed more below, deals only with visual images (photos, movies, sometimes animation or cartoons). Some states, such as California, include verbal passages intended to incite others to produce visual child pornography. See http://www.adultweblaw.com/laws/childporn.htm and http://www.efc.ca/pages/law/cc/cc.163.1.html, or http://en.wikipedia.org/wiki/Child_pornography#United_States . It is not necessary for genital or breast parts to be nude if the visual presentation is intended to be laviscuous. Also, and this is important, material can be illegal child pornography without being obscene (although obscenity does factor in to a new 2003 federal law, below). Under federal law, computer images that intentionally suggest minors having sex are also considered illegal child pornography, and this is controversial since minors obviously need not be used to produce such images.. Also, (also of the Child Pornography Prevention Act of 1996) when animation, cartoons, or actors over 18 are used to produce images that look like child pornography, the resulting images meet the federal legal definition of child pornography. It should be noted that in 2002 (Ashcroft v. Free Speech Coalition) the Supreme Court ruled the CPPA unconstitutional. A good reference, by Michael Landau (“The First Amendment and ‘Virtual’ Child Pornography”) of Gigalaw can be found at http://www.gigalaw.com/articles/2002-all/landau-2002-07-all.html . Also, see

Congress went to work trying to “fix” the CPPA. There was H.R. 4623 The Child Obscenity and Pornography Prevention Act, filed Apr 30, 2002, is described at http://www.aclj.org/News/Read.aspx?ID=557 . http://www.aclu.org/Privacy/Privacy.cfm?ID=10364&c=252 also at http://www.govtrack.us/congress/bill.xpd?bill=h107-4623 ) This eventually led to another bill filed in 2003, H.R. 1161, the Child Pornography and Obscenity Prevention Act of 2003, which tries to narrow the language to “indistinguishable images.” http://thomas.loc.gov/cgi-bin/bdquery/z?d108:HR01161:@@@L&summ2=m& Finally this e evolved into a bill that (to meet first amendment questions) focuses largely on obscenity, USC 1466A “Obscene Representation of the Sexual Abuse of Children” / 2251 “Sexual Exploitation of Children”/ 2252 “Material Involving the Sexual Exploitation of Minors” / 2252A “Material Constituting or Containing Child Pornography” aka PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) / 2256 (the latest federal definition of child pornography), / 13032 (“Reporting of Child Pornography by Electronic Communications Service Providers”). Go to http://www.missingkids.com/missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=1476#5 All of this became the new body of law (it is questionable whether it addresses all of the first amendment issues) and on December 1, 2005 the Associated Press reported that a man in Richmond, VA had been convicted under the law when he received cartoon images and drawings showing sexual abuse of children at a Virginia Employment Commission office. http://www.dailypress.com/news/local/virginia/dp-va--childpornconvicti1201dec01,0,4123312.story?coll=dp-headlines-virginia It is technically illegal to possess even one such image, either a photograph or even a “deleted” image on one’s computer hard drive, even in private. Stings have been set up to entice child pornography users on computer networks, and persons have been imprisoned for participating in trading child pornography over networks. (A major sting involving Yahoo! and a Houston federal prosecutor was reported by Wired in early 2002; like chat room stings on Dateline, these have gone on for several years now.). Child pornography law does not provide an escape clause or affirmative defense of “serious social value.” It does appear that material is illegal under this concept, however, only when the intention is to show or closely depict actual (as by simulation) genital (or breast) sexual activity (or at least “sexual” nudity) involving minors. Although most prosecutions are based on cases of images of real underage persons engaged in sexually explicit activities, the laws in some states would seem to allow persons not actually involved in sexually explicit images of children to be targeted, as by business competitors or by eager district attorneys seeking convictions. Some motion pictures have strongly suggested sexual activity involving minors, however, without prosecution. Generally, operators of “adult web sites” (even with the adult verification envisioned by COPA) can easily run afoul of child pornography laws if they are not “careful.”

A major issue is the possibility of doctoring legitimate photos. "Realistic fake photos challenge child porn prosecutors," on CNN in Feb. 2008, here.

The main "moral" justification for making mere possession of child pornography a crime (sometimes even as a strict liability offense) is that "consumer demand" drives the production of it and the subsequent abuse of minors. (Similar logic exists with drugs or controlled substances laws.) However, some of it is produced free, and some minors, as teens, are in a practical sense more competent to make their own decisions than others. Those observations have been used by some libertarians as to challenge the draconian nature of our current child pornography laws.

An important case is Charles Rust-Tierney, former president of the VA ACLU, convicted and sentenced in 2007 for possession of several hundred images in several web visits in 2005-2006. Wikipedia story here.

Child pornography is defined as any visual depiction, including any photograph, film, video, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where

· the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

· such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

· such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

In 2003, (as an implementation of the CPOPA of 2003), producers of visual pornography will have to maintain records that prove that actors are 18 or older. See http://www.cnn.com/2005/US/05/17/childporn.regs/index.html (This site has no visual pornography and no visual nudity).

As Wilipedia points out well, many other countries (even Canada, Britain, and especially New Zealand) make some forms of textual child pornography illegal. In a few countries it is actually illegal to maintain private diaries that contain such text. Generally, these laws refer only to specific sexual acts being described in detail in print. In a few cases there have been concerns that novels or fiction or movies that suggest such activities but that don’t explicitly depict them still can become illegal in some countries. For example, not only Lolita but even Shakespeare’s Romeo and Juliet, often taught in high school, could theoretically be viewed as child pornography, Generally, fiction, drama, films of legitimate artistic merit (like these) are considered legal even in these countries. It is possible that questions could be raised about the origin of the work, whether the author was already established. This argument was raised in the overturning of the 1996 CPPA law (above) in the U.S. Again, most people view “pornography” as the depiction of specific sexual acts or body parts, particularly in a lewd manner. The Webster definition (check http://www.m-w.com) , however, emphasizes the depiction of erotic behavior with the intention of provoking arousal in the reader or viewer. All of this reflects the different cultural values at issue in trying to come up with a common standard of acceptable public display in a pluralistic society where not only religious values but the ability to make and maintain family commitments, in the face of distraction, are serious practical issues for many people.

It is noteworthy that often the applicable age for child pornography laws is 18, even in countries or states for which there is a lower age of consent. Sometimes it does not apply to legally married couples (where one or both persons is under age; that could be a theoretical defense for Romeo and Juliet even with the 1996 law). A minor or person under 18 sometimes is prohibited from making or distributing pornography of himself or herself.

On Thursday, July 19, 2007, The New York Times (p A1) ran a story by Julian Sher and Benedict Carey, "Study of Pornography and Molesting Stirs Debate," this link: http://www.nytimes.com/2007/07/19/us/19sex.html?_r=1&oref=slogin (may require registration and purchase). In one government study, 85% of those convicted of child pornography offenses admitted to illegal sexual activity with minors, even if never arrested or convicted. The pattern seems to occur also in Canada and Europe. The samples chosen, however, may be misleading.

Other references: These EFF references are simpler to read and comprehend than many of the others.

http://www.eff.org/bloggers/lg/faq-adult.php (note the discussion of record keeping requirements for production and distribution (commercial/non-commercial) of certain kinds of explicit photos or videos of performers)

"(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains—

(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or

(ii) a visual depiction of an actual minor engaging in sexually explicit conduct"

was added in 2003 and thought to make it possible to prosecute for making R-rated films suggesting teen sex, or even talking or trying to promote child pornography. It is true that one can be prosecuted for trying to distribute child pornography that one does not possess. On May 19, 2008 The Supreme Court upheld the section 7-2, but Justice Scalia said that the statute is quite narrow, and only applies to images or video with explicit sex, able to convince the viewer that sex with a minor really takes place in some physical sense. I discuss the opinion on blogger here. The PDF for the Supreme Court slip opinion is here.

Offenders are typically caught in stings, where prosecutors run or enter user groups and chat rooms and pose as distributors of kiddie porn (in a like manner prosecutors or police often pose as minors in an attempt to lure pedophiles or ephebophiles into making arrangements to meet persons whom they believe to be minors), or when prosecutors seize illegal distributors and find the names of “customers.” Sometimes arrests occur because of overseas investigations. Generally, one can be arrested from an investigation initiated overseas if the violation would be illegal in the United States.

There has been a rapid growth of webcam-related child pornography, often started by teenagers themselves when they set up dynamic websites showing pictures of themselves through webcams, and connect to sites that lead them to “customers.” Kurt Eichenwald has a shocking and detailed account (“Through his Webcam, a Boy joins a Sordid Online World”) of this development in The New York Times, Dec. 19, 2005. The newspaper included a lengthy disclaimer reassuring the public that it did not violate laws against possessing illegal images while doing its journalism. One observation is that many kids enter this to make money from their bedrooms; often they are kids in families with job loss, divorce, and other common problems. The moral question of culpability arises, since the teenager has “intentionally” offered his or her own images on the web (which is illegal). Anyone associated with such a venture can be prosecuted, including customers who pay for illegal images with credit cards or Paypal. One question would be the downstream liability of companies that enable the business and process the payments; they may be immune, but often there are state laws against promoting child pornography or illegal sex through communications devices (below). It is important to note that the teenagers themselves can be and sometimes have been prosecuted. The New York Times link is http://www.nytimes.com/2005/12/19/national/19kids.ready.html?hp&ex=1135054800&en=5eb58e4d773204ee&ei=5094&partner=homepage but the user needs a subscription to view this article (for a small fee once archived). The story is so sordid that I need to reassure readers myself that I do not purchase, view or possess or otherwise handle such illegal images myself, and I do not visit such websites and chatrooms. NBC Today show reported the story on Dec 21, 2005, interviewed the writer Eichenwald, and also the boy, Justin Berry, who is now 19 and a federal witness. Apparently Mr. Berry could have been prosecuted.

Eichenwald followed up with another story on Dec. 30, 2005, “Child Pornography Sites Face New Obstacles,” on p. A17 of The New York Times. Many portal sites that directed visitors to illegal webcam sites set up by minors have shut down, and others have removed links to illegal sites. The story points out that “customers” may prefer webcam sites because they can ascertain that they are talking to actual minors and not to police or volunteer decoys in stings (as in the recent NBC “Dateline” reports). I must add that I never knowingly provide links to sites set up for illegal purposes. For the record, I’ll give the link for the National Center for Missing and Exploited Children: http://www.missingkids.com/

On Sunday, Aug. 20, 2005 Eichenwald started a 2-part series "Dark Corners: With Child Sex Sites on the Run, Nearly Nude Photos Hit the Web". The legality of barely clad images of minors is controversial, and involves a complicated test that tries to determine the "intent" in publishing the image. There is a controversial site called Play Toy Entertainment. It is conceivable then, in my view at least, the the closing scenes of the film Little Miss Sunshine could raise legal questions.

Both Justin Berry and Kurt Eichenwald appeared on the Ophrah Winfrey show on Feb. 15, 2006. Justin said that he had forfeited a lucrative book deal by appearing on Oprah. Justin also said that Internet filters do not work against kids determined to beat them (this is relevant to COPA). Mr. Eichenwald said that teenagers should not be allowed to own webcams for their own computers, that they generally do not have legitimate uses, at least not in a kid's own room. He talked about a conversation with a retail clerk in which the clerk told him that the main use of webcams was "porn." Of course, many experts advocate not allowing kids to have computers in their own rooms, although they are becoming increasingly important for legitimate uses, like homework (especially in AP courses).

USA Today followed up with a story by Wendy Koch on Oct. 17, 2006, p 13A "In shadows of Net, war on child porn rages: Despite tough new measures, authorities say it's outracing attempts to control it." The story makes a number of claims or points. The Internet Crimes Against Children Task Force has reportedly identified 6.5 million pictures in the past two years, whereas only 3600 had been identified by 2003. The National Center for Missing & Exploited Children (missingkids.com) feeds pictures to some large companies to scan customers for matches. It also provides a mechanism for reporting sites with child pornography to ISPs, which could lead to sites being removed even if there is no law enforcement action. Credit card companies are supposed to be gearing up to let police know about child pornography sites. The story claims that web hosting companies are not required to report child pornography on their sites (unlike ISP's). That may be true for sites hosted overseas in countries (122 of them) where child pornography is legal. But in the US, larger ISPs near always say in their AUP's or TOS policies that they must report known child pornography to law enforcement and shut down sites, when complaints of abuse are actually verified. All major providers now have abuse departments for reporting illegal content. Apparently, it is also illegal to "approximate" nudity involving minors with scanty clothing, suggesting certain body parts.

A Long Island politician Jeffrey Toback, a Nassau County state representative filed suit in New York State court against Google claiming that it facilitates and profits from child pornography. It claimed that Google has paid links to sites containing child pornography. Google insists that it has a safe search and that it removes sites containing child pornography from its search results, as it gets complaints from various watch groups (reported by Chilling Effects). Here is the link: http://www.nbc4.com/technology/9166072/detail.html It would seem questionable whether the legislator has real standing to sue.

The July 29, 2007 New York Times has a disturbing story by Jennifer Steinhauer, "Parents' Ire Grows at Pedophile's Unabashed Blog," here: (requires purchase)

The story concerns a particular person (Jack McClellan, a rather common name to search for that would have many duplicates) who was "run out of Seattle" for a blog in which he describes pedophilic fantasies and posts pictures of individual children, though clothed. The reaction to him is similar to the reaction of the pedophile in the movie "Little Children", which is mentioned in the story. There was fear that his family would be attacked in Seattle. The police in Los Angeles, where he moved, say that there is nothing illegal because there is no pornography, and he has never been convicted of a sex offense. However, there is a movement in California to make it illegal to post a picture of a minor, even if clothed, in connection with a sexual solicitation or sexually explicit content. It would seem to be illegal in many states to post a picture of someone else against their consent (except incidentally from a distance in a public space) if the obvious intention is to target them for sexual interest. The Peachhead Families site is here. The CBS news clip in Los Angeles from June 14, 2007 is here. Here is another blog about it from Ohio. The ABC "Good Morning America" News Story is "Mothers Fight Back Against Pedophile Web Site; Law enforcement says there is little it can do to stop it," July 30, 2007, here. One message board comment on ABC was "Anyone who promotes exploitation of young children does not deserve to have the freedoms that we have. I bet legal beagle is not a parent." But another comment seemed to be a caricature of the whole problem (another example of offensive speech until read more closely).

On Aug. 3, 2007 Newsweek ran a detailed article "A lad-abiding pedophile? Jack McClellan blogs openly about where best to meet girls under the age of 12. The local authorities are watching him, warily. Should just talking about such matters be enough to get him locked up?" here. That story characterizes him as a "self-described pedophile." Of course, a state of being is not illegal; only actions are illegal. The idea that talking about a disturbing topic could be illegal is itself legal nonsense. "Disturbia!" A live vote on MSNBC on that page of over 85000 responses by Aug. 7 on "Should Jack McClellan be locked up for blogging about pedophilia, including places to see young girls?" showed a 70% yes response. Again, that's totally wrong legally. If he made threats, stalked, took and showed pictures without permission (which allegedly he did), or displayed obscenity (or child pornography) that would be actionable and prosecutable. The Newsweek report suggests that he was rating meeting places of his "LG" 's. In most cases, listing public "places" would not convey meaningful information. Authorities have noted that NAMBLA defends its advocacy on First Amendment grounds (there is nothing wrong with advocating changing age of consent laws through normal legislative channels), but the gay community does not want to be associated with that group because of the perception that it defames gays and links them, in people's minds, with inappropriate interest in minors. The McClellan situation, however, is entirely "heterosexual" (as have been most of NBC Dateline's "To Catch a Predator", the chatroom stings, covered here.)

Even so, on Aug. 3, a circuit court in Los Angeles issued a civil restraining order, which was served on him at LAX, to stay 30 feet away from those under 18 and take no pictures of minors. (See story above.) Somehow McClellan's motives seem related to limelight and resentment of what he perceives as "oppressive" social norms; what is sounds like he is sharing is pain, like John Mark Carr with his false confession in 2006.

A company has been purchasing domain names based on supposed pedophiles, and then setting up sites relating to their supposed activities. Off hand, this sounds like it could risk libel litigation--the web publisher would need to be sure that all facts presented were true. It's complicated; there is the "opinion rule" and I wonder about the legality of calling someone a "pedophile" online if he has not been convicted, or at least arrested with a trial pending (as in one of the NBC Dateline stings). It sounds risky. Comments? Check my contact link before and send an email and I'll post on the reader's page. I may make a blogger entry soon. Mob rule is not a good reaction. The visitor can check this "child safety club and blogs."

A sixteen year old in Arizona was charged with possession of child pornography when Yahoo! monitors detected downloads of known child pornography onto his family computer. Police showed up at the family home at 6 AM in December. The boy thought he was looking at adult pornography. For a while there was a concern that hackers could have placed the pornography on the computer. He could have faced 90 years in prison. Prosecutors allowed a deal where he plead guilty to distributing Playboy-like materials to other minors. The ABC story is "Prison time for viewing porn?" at http://abcnews.go.com/2020/LegalCenter/story?id=2785054&page=1 (I believe that in some states it is illegal to possess pornography, even adult pornography, in one's car when on school premises, just as it is illegal to possess otherwise legal weapons.) The judge finally agreed that he would not have to register as a sex offender. The boy's family does not allow Internet connections in the home because "computers are not safe." ABC has a related story "Closing the Door to Internet Predators: How to Protect your Home Computer from Illegal Access." http://abcnews.go.com/2020/story?id=2791407&page=1 The possibility that a home computer user could be charged because of undetected activities of a hacker is disturbing, but actual incidents seem to be very rare. However, parents are definitely at legal liability risk (and even prosecutorial risk) what their kids, unbeknownst to them, do on computers in their homes. Some states regard possession of c.p. as a "strict liability offense." This was apparently an ABC 20/20 News story on Jan 12, 2005. Home and workplace users should eyeball subject lines of emails before opening them, and place emails that appear illegal in ISP or employer provided "report spam" folders when possible without opening them. Possession of a single c.p. image on a home or work computer, even if from opening a page with embedded html or MIME, could be illegal if the user knew or believed that it contained illegal content, although prosecutions from isolated incidents like this seem to be very rare. Deleting the image does not remove it from the hard drive. Of course, some users tend to open emails very quickly without noticing subject lines. Also, it is a good idea to spam-report emails with "no subject" and not open them. (I wish that AOL and other ISPs would simply not allow them to be sent.) Some such emails probably would result from computer viruses or worms and could have spoofed sender-ids.

Another man (Morton R. Berger, a 57-year-old former high school teacher) in Arizona was sentenced to 200 years for possessing twenty images of child pornography. Arizona law required sentences for each count to be served consecutively for this offense. This is longer than the sentence that could have been incurred in any other state or according to federal sentencing guidelines. The story by Linda Greenhouse in The New York Times appeared Feb. 27, 2007, here (may require subscription). The story concerns the refusal of the Supreme Court to hear the appeal on grounds of cruel and unusual punishment.

On Monday April 9, 2007 Adam Liptak wrote a sidebar ("Locking Up the Crucial Evidence and Crippling the Defense: A law meant to protect children rewrites the rules for the accused" in The New York Times, p. A10, about the Adam Walsh Child Protection and Safety Act, which characterizes child pornography as so toxic that defense lawyers may examine it only in a secured facility. This can hamper defenses, such as the possibility that a hacker could have placed it there (a grave situation to be sure), or that the images are computer-generated and not real kids, in conjunction with the overturning of the law cited above. My blogger entry on this is at http://billsinternetsafety.blogspot.com/2007/02/be-wary-of-possibility-of-strict.html

Most chatroom stings catching sexual predators seem to be prosecuted at the state level (based on the state in which the law enforcement agent posed as a minor over the Internet), but in some cases federal prosecutions occur, as with USC 2422, the "enticement" statute, where it is unlawful to use any interstate commerce medium to entice a minor into sexual activity, or to entice travel, or to actually do the interstate travel for criminal purposes. In practice, this statute seems to be limited to cases where there is a clear intent for specific criminal behavior. http://www.fbi.gov/congress/congress01/gallagher062101.htm http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002422----000-.html An example of the statute occurred as a result of the Aug. 2005 Dateline sting in Virginia, at NBC4: http://www.nbc4.com/news/9256973/detail.html

ABC "Good Morning America" reported on Feb 16 2006 that middle school kids were making "fight club" videos and posting them on the Internet, and that a few kids had been arrested and processed as juveniles for disorderly conduct. Again, self-published Web materials depicting illegal activities can be used as evidence in court.

People have been arrested for turning in film for development when child pornography was found on it. However, in Randy Cohen, "The Ethicist" column, "The Boss's Computer," The New York Times Magazine, Dec 4, 2006, p. 30, Cohen advises a computer technician that he should not report child pornography that he finds on a work computer to the police, because the circumstances are too ambiguous and risky for everyone; he says that the technician is under no legal obligation to do so. (Other attorneys might disagree, I think.)

Freestudents blog reports a case (2007) in which a sales clerk in Texas was arrested for selling a dildo from a shop "Something Sexy" in Lubbock, Texas. She could be required to register as a sex offender. In Phoenix, AZ a teenager was almost forced to register as a sex offender for showing Playboy to another kid, and in Utah two minors may be forced to register for consensual sex -- with each other, not with adults.

A typical law is Virginia’s, at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-374.3 Here it would be helpful if the adverb “directly” were used in the statute to narrow it to what I think legislators really intended. As it is, one could get into a Socratic discussion of “purpose.” Speech could have First Amendment protection, but not just for an unlawful purpose. Ironically (in contrast with COPA), commercial speech, where the purpose is clearly defined to be profit from a credit third party, might not be as exposed as the free content of an unsupervised individual. If the purpose is less bureaucractically constructed political debate, fine, but does the debate have to be narrowly crafted to a particular cause? Then it loses objectivity. One can go on with this with all kinds of speculative padagims. The external circumstances in the speaker’s life could matter, apart from the speech content itself. At least, an individual speaker should always have a disclaimer that any initiated return contact should be for lawful purposes, and not behave ,in a manner that shows that one would actually answer any illegal return solicitations (such as some of those sent by spam).

Here are a few sites for parents concerned about protecting their children from exploitation (by chatrooms, webcams, pornography, or anything else):

One of the most prudent ways right now is to limit the sites that immature kids can see to a specific pre-approved list. Larger ISPs (like AOL) provide this capability. Then try the filters. At a certain point, kids (by the time they are teenagers) need to have the ability to understand mature-level information that they may find through search engines in context of a larger whole. Kids need to learn to recognize the difference between subject matter and the inappropriate method of presentation of some subject matter in a public space (that is, often, pornography), (as well as inappropriate contact with strangers on the Internet). Of course, middle and high school English courses teach this by teaching the context of literature in other historical periods (Romeo and Juliet is the obvious example), but the need is to learn the meaning of larger context as soon in life as possible given the world we have today.

Although many of the laws regarding illegal content are worded mainly to target content that is produced and displayed for profit or for directly commercial purposes (and although the government maintains this in defending some of the laws against constitutional challenges), it is clear that the self-publication of certain materials by individuals for expressive or recognition but non-monetary purposes can bring on some theoretical risks not experienced when larger companies deal with the same materials. This can even be the case with fiction, screenplays, poems, and the like, where there is a chance that others may interpret the material as indicative of the writer’s intentions or may perceive that others associated with the writer could be affected. The risk of actual harm to others is remote and more theoretical than practical.

There is also an issue with misleading domain names. USC 2252B makes it illegal to use a misleading domain name to entice a child into viewing material that is "harmful to minors." This would appear to be related to COPA.

It is likely that there will be legislation trying to limit hate speech, and the dissemination of weapons and drug information (such as the proposed Hatch-Feinstein Methamphetamine Antiproliferation Act of 1999), and the constitutionality of such legislation would be dubious. For example, with respect to "hate speech," it sounds reasonable to suppose that an "inductive definition" could be developed in a manner similar to that used for obscenity ("I know it when I see it.") Similar concerns would apply to publishing material deliberately intended for illegal or destructive use (such as information on how to manufacture of deploy weapons of mass destruction, or to overthrow the federal government), although First Amendment law generally would say that this may only be illegal if it presents an “immediate threat of lawless action.” Tort law recognizes negligent publication, the provision of incorrect technical instruction that cause injury (or death) to the customer if followed. (Here is a typical law firm's explanation.) A recent (3/2004) example is a recall and disclaimer by Southern Living magazine for publishing a recipe that, if followed, could cause household kitchen fires (even cookbooks can pose risks!) There is controversy today over whether ISP’s (Internet Service Providers) could be held concurrently liable for these offenses without a chilling effect—are they utilites or are they publishers?

Common law concepts (not dependent of specific statutes, but upon public notions of equity and fairness):

Publication: The transmission of a written (or electronic) message to at least one other person who understands it (for purpose of libel and invasion of privacy). For other purposes, the term means the offering and distribution to the public of a completed piece of intellectual property. Usually, a piece of writing cannot have legal consequences unless it is presented to at least one person. (There are rare exceptions. In Ohio, a man on probation was convicted for pandering when a probation officer found a diary of fictitious child pornography in his home; conceivably similar situations could occur with drug information or weapons.) See also the definition at my vocabulary link.

Another meaning of the concept of "publication" however is the placing of content in a public space where any member of the public can view it for a fair market price, or for free (as is often true of the Web). The term could also apply when material is placed in a space in such a way that only a known list of people can see it (as a corporate Intranet, or whitelisted blog or social networking profile). (The related term is "whitelisting").

Libel: This concept refers to publication of written false, defamatory statements about another (living) person or corporate or organizational entity. ( “Slander” is the oral form of libel.) Truth is an absolute defense to libel in the United States (although a few states have statutes requiring that the author have behaved in good faith). (There is some controversy about this in Britain and other European countries, although the Peter Zenger trial in colonial New York in the 18^th Century should be relevant.) There are qualified defenses (or "qualified privileges") such as self-protection and neutral reporting, or the Audubon Privilege (Edwards v. National Audubon Society, 1977). Whether a statement is “defamatory” may depend on community standards or general societal values as well as the subject’s livelihood. For example, it would be libelous to falsely claim in published writing that a particular member of the U.S. Armed Forces is (“subjunctive mood”) in a homosexual relationship (even with an adult civilian).

A serious concern is "indirect libel" in fiction, if even one reader can identify a poorly disguised (renamed or unnamed) character (and if that reader did not otherwise know about the implied defamation). Important cases are The Bell Jar and Touching, Bindrim v. Mitchell (1979).

Another point is that a false defamatory written (or oral) statement need be made available to one person (say, someone's boss or spouse) to instantiate the possibility of libel (or slander). In the context of libel, “publication” means a written statement to at least one other person who understands it (it could be an email or a letter), whereas generally “publication” refers to making intellectual property available to a large universe. See more discussion at my “vocabulary” link.

It is permissible (under First Amendment protection) to parody or to express unfavorable opinions about a public person under the "opinion rule" (also called "fair comment"). However, there sometimes is controversy over where to draw the line between reporting “fact” and opinion, as when a newspaper reporter writes an unfavorable review of a restaurant. See the case Pegasus v Reno Newspapers (1999) http://www.gannett.com/go/newswatch/2002/december/nw1206-3.htm The restaurant owners would subsequently take out an ad in the Washington Times claiming that all small business owners can be treated by the press as “public figures” and harmed by unfavorable publicity.

Libertarian columnist Deroy Murdoch notes that a person who refers to a person acquitted from a crime by reason of insanity as if he were legally a felon might be construed as libel. This has been advanced as an argument for the idea of a verdict of “guilty but insane.”

Reposters of putatively defamatory material previously published by others on Internet newsgroups, chat rooms or discussion boards are probably protected from liability (see the notes on the Rosenthal case in July, 2001 at the dadt chronology or http://www.eff.org/. Generally, Internet postings that express concern about the behavior of public figures or of corporations in a responsible manner (and that don’t divulge legally confidential information), even if the concerns could not be conclusively validated, would be protected by the “opinion rule.” However, writers (even in Internet blogs or for small publications) should be wary of disclosing “observed” behavior of other persons (even public figures) that the subjects reasonably behave is private and irrelevant to the public. On the “Judge Judy” show there was a case where a college newspaper writer was assessed a judgment of $5000 for disclosing that an interview subject, a musician, had used marijuana in his presence, when a hair follicle drug test did not confirm (for a 51% “preponderance of the evidence”, which is a lesser standard than “reasonable doubt” for a civil defendant to meet) that the interview subject had actually used illegal drugs within the reasonable past. This situation might also lead to invasion of privacy claims (next section).

There have been recent (late 2005) media reports about incorrect derogatory information about individuals (especially politicians and political candidates) in online encyclopedias and blogs offering free content, often run by unpaid writers. Often these sites have legal disclaimers. It would sound like liability for libel would exist, even if lawsuits against free content providers have been relatively rare. A recent incident involving apparently inaccurate information on Wikipedia on John Seigenthaler, AP story by Dan Goodin, at http://hosted.ap.org/dynamic/stories/W/WIKIPEDIA_RULES?SITE=PASUN&SECTION=HOME&TEMPLATE=DEFAULT There have been concerns that large amounts of disparaging postings in an election season could lead to new attempts at regulation, and there are also concerns that the Federal Election Commission will have to regulate some blogging regarding political candidates and parties.

The law recognizes a lower standard of capability by the press or media in the case of a false statement against a public figure. In this case, actual malice must be shown to sustain a libel claim. Generally, corporate officers are not considered public figures in this regard (I think they should be, for conflict of interest reasons!!). The relevant case is Santa Barbara News-Press v. Ross (1989-1993; 1994), which the Supreme Court refused to hear in 2004. Even here, the statement must be false (for example, that a particular corporate officer was investigated for embezzlement or insider trading when it was just another party, even if there was no conviction)

European countries tend to recognize a concept of "blood libel" where whole groups can be stigmatized.

A professional golfer has filed a libel suit against a Miami law firm, claiming that a vandalistic defamatory posting about him on Wikipedia originated on the firm's computer. The posting would appear to have been intentionally made to harm his reputation. The "Sports Illustrated" story (2/22/2007) is here.

"Fair Report Privilege" encourages journalists to use official public records and government agency reports. Reprinting false defamatory information already published by others, even if attributed properly, could expose one to a libel claim (even if this is rather infrequent).

Mike Hiestand, of the Student Press Law Center, National Scholastic Press Association, gives some valuable analysis in "Fair report privilege: A valuable, pitfall-laden defense," Feb. 5, 2003, here.

Autolibel or “self-libel” (or self-slander if verbal) in a Socratic speculation (as in a fictive presentation) can sometimes present problems. My own William and Mary expulsion in 1961 for calling myself a “latent homosexual” (given the values of that historical period) provides an example. The military, according to federal law, can treat certain statements as indicating a propensity to break military law (against homosexual conduct) as (according to a rebuttable presumption doctrine) as predictive or real future conduct, the legal basis of the notorious “don’t ask don’t tell” policy. Since so far this has stood up at the appellate level in court, could this happen in other areas (like with teachers) or even in the interpretation of vaguely worded criminal statues dealing with intent or solicitation? This is a disturbing example of where a statute set up for sensitive areas like the military could have an impact (as a legal or constitutional precedent) in other previously unrelated areas.

The law does have a built in bias that persons must protect their reputations even against somewhat irrational biases of others, particularly with fiction, which presumably is viewed as "entertainment" and is more likely to be perceived according to cultural prejudices of the reader, a reality than an author is expected to respect. (The exception occurs when a literary work is really well known and established enough, eg, "Romeo and Juliet"). Therefore, if a novel or movie portrays someone unfavorable with respect to some problem and that person is identifiable (even if not named) that target could probably win a libel judgment against the author and publisher or distributor. The "fiction" paradigm would likely extend this notion to self-libel and allow the legal idea of rebuttable presumption to take over.

Imagine, for example, that a college student on an ROTC scholarship writes a play in which a character that closely resembles him is portrayed as having engaged in homosexual acts. The military probably expects that that person would sue for libel if someone else falsely portrays him as engaging in homosexual conduct. Therefore the military can use the play as a credible statement that the person has a propensity to engage in homosexual acts, according to the 1993 Defense Authorization Law. This law could set a bad precedent for other areas. Suppose a teacher writes a play in which a character identifiably resembling him becomes involved with a minor and is punished as a sex offender. The incident did not happen in real life, but according to this reasoning a school district could "rebuttably" presume that the teacher has a propensity to engage minors if provoked and fire the teacher (even under doctrines like Tinker and Pickering-Connick). Because of this reasoning, it is even conceivable in some states that such a play could be regarded as an indirect criminal solicitation, if the writer cannot show a legitimate "purpose" in writing the story or play. See also "first amendment in reverse" below.

This issue also comes up with "bragging" about illegal behavior on social networking sites (like myspace.com). Such postings can be used as evidence in court, and might be prejudicial even if they were factually untrue. Or, such content may be objectively legal but be viewed by employers as disloyal to the sensibilities of customers or stakeholders and indicate unsuitability for the job, as if the posted or published comment had been made in an actual conversation at work. A self-publisher or poster cannot always presume "literary" respect and associated freed