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Legal Issues in Counter Brand W
ork:
A Critical Update for Activists
Speakers:
Corynne McSherry, Electronic Frontier Foundation
Melissa Gough, Business Ethics Network, Facilitator
A Business Ethics Network Webinar
9 May 2013
For screen sharing, go to:
ben.glance.net
Session code: 1024
Call / Skype into the conference line:
1-218-548-0782
Pass-code: 298305#
If you have any questions please email them to:
This webinar will be recorded.
1
Legal Issues In Brand Activism:
A Critical Update
2
Copyright
Trademark
Publicity Rights
Defamation
3
Copyright Basics
What is a copyright?
•Exclusive rights granted to auth
ors in
original expression:
–To reproduce a w
ork
–To create derivatives
–To distribute copies of the w
ork
–To publicly display or perform
the w
ork
How do you infringe a copyright?
•By doing any of th
e above w
ithout th
e
perm
ission of th
e copyright holder
4
But there are limits, e.g., fair use
The Four Factors (17 U
.S.C
. §107):
1.
the purpose and character of the use, including
whether such use is of a commercial natu
re or
is for nonprofit educational purp
oses;
2.
the nature of the copyrighted work;
3.
the amount and substantiality of the portion
usedin relation to the original work
as a
whole; and
4.
the effect of the use upon the potential market
for the original work
(e.g. licensing).
Courts can consider other factors, esp. public
interest
5
Challenge for Activists:
Online speech depends on
intermediaries
6
7
DMCA “Safe Harbors”
17 U
.S.C
. 512
Eliminate M
onetary D
amages
Lim
it Injunctions
8
To stay in safe harbors, ISP must:
•Be the right kind of service provider
•“E
xpeditiously”take down m
aterial if
compliant notice
•Restore only after counter-notice and
•10-14 days to file suit
•(plus some other things)
9
After Takedown: User Options
•Counter Notice (back up in 10-14 days)
•Sue under 17 U
.S.C
. 512(f):
“Any person w
ho knowingly m
aterially
misrepresents under this section (1) that
material or activity is infringing . . .shall be
liable for damages, including costs and
attorn
eys’fees, incurred by the alleged
infringer”
10
Stephen
Colbert on Truthiness:
http://w
ww.youtube.co
m/w
atch
?v=
sNHqX27hlz8
11
Trademark:
The Other Fair Use Front
•What is protected: word
s, symbols, colors, etc.
used in commerce to designate the source of
goods and services
•Infringement: using a m
ark
so as to cause
likelihood of confusion as to source
•Dilution: blurring or tarn
ishing nationally
famous m
ark
12
Noncommercial Use
“[T]rademark
infringement law prevents only
unauthorized uses of a trademark
in connection
with a commercial transaction in w
hich the
trademark
is being use to confuse potential
customers”Bosely Med. Inst. v. Kremer
“The Lanham Act regulates only economic, not
ideological or political, competition...
Competition in the “mark
etplace of ideas”is
precisely w
hat the First Amendment is designed
to protect.”–Koch v. Does
“The Lanham Act . . .only regulates commercial
speech . . .”Taubman v. WebFeats
13
Nominative Fair Use
•The m
ark
holder’s product or service in question
is not readily identifiable w
ithout use of the
trademark
;
•Only so m
uch of the m
ark
or mark
s w
as used
as w
as reasonably necessary to identify the
product or service; and
•The user did nothing that would, in conjunction
with the m
ark
, suggest sponsorship or
endorsement by the trademark
holder.
14
First Amendment Balancing
•Lanham Act applies “to artistic w
ork
s only
where public interest in avoiding consumer
confusion outw
eighs public interest in free
expression.”
Mattel v. Walking Mountain Prods.
=>
•Trademark
relevant to m
essage?
•Misleading as to source or content of work
?
15
16
17
For an O
SP,
Any trademark
claim
=
time + m
oney + risk
18
19
20
http://w
ww.nytimes-
se.com/nytse/wp-
content/upload
s/diamon
ds-ban
ner-336-
anim
ated
.gif
Publicity Rights
•Potential violation if: you have used
someone’s name or likeness to
yourcommercial advantage,
without consent (broader in C
A)
•Defenses vary a bit, but basically
same as trademark
(e.g. First
Amendment, noncommercial)
21
22
Defamation
•Defamation: false and unprivileged
statement of fact that hurts
someone’s reputation, and is
published as a result of negligence
or malice.
•Trade Libel: intentional + direct
negative effect
•Libel is a w
ritten defamation;
slander is a spoken defamation
23
If you are the speaker:
Principal defenses
•Tru
th
•Opinion/hyperb
ole
•Public Figure
•No $$ damage (trade libel)
24
Not defamatory:
•Calling a political foe a "thief" and
"liar" in chance encounter
•Calling a TV show participant a
"local loser," "chicken butt" and "big
skank"
•Calling someone a "son of a bitch”
25
Defamatory
•Charging someone w
ith being a
communist (in 1959)
•Calling an attorn
ey a "crook"
•Describing a w
oman as a call girl
•Accusing a m
inister of unethical
conduct
26
But what if you don’t have a lawyer to
lay out your defense?
Some practical advice.
(Note: IAAL, but IANYL)
27
•Be noncommercial.
•Don't use m
ark
alone in a domain
name.
•Have a prominent disclaim
er.
•Find a service provider with
backbone.
•Be ready w
ith altern
ative site
•Take only w
hat you need.
•Show your work
: link/cite sources
28
And if that
doesn’t work
29
Contact EFF!
30
Legal Issues in Counter Brand W
ork:
A Critical Update for Activists
Corynne McSherry, Electronic Frontier Foundation
Melissa Gough, Business Ethics Network, Facilitator
A Business Ethics Network W
ebinar
9 May 2013
www.businessethicsnetwork.org
32