SIDE NOTES – Dinner and drinks with Rebecca, Duane, Ianiv, Arieanna, David Drucker, Tris, Tanya, Marco, John Biehler, Monica and Nadia was awesome. I really have to update Granville Room restaurant review because I think they really enjoyed the food (I’ve already had dinner, so I didn’t try anything).

I’ve just spent a few minutes with Gus who kindly got me a beer (you know me all too well, my friend!).

JEFF IS STARTING HIS TALK.

Just because you can mail something to yourself, doesn’t show that you’re the creator of something.

Things that can be protected – mere ideas have no intellectual property protection attached to them. If the idea is attached/manifested into a logo – trademark. The mere idea has no protection.

Privacy agreements – infringement of copyright – breach of contract.

If the idea doesn’t become an actual tangible thing, or embedded in a tangible manner, it’s not subject to copyright.

Permissions to use this photograph (Duane had a bad issue recently happen to him). The right of privacy and publicity. It’s completely different jurisdiction for privacy, publicity and copyright.

Copyright – federal law
Infringement – provincial law

Every single province have different laws in regards to rights of publicity and privacy.

Let’s start off with a case – one specific area of law.

UPDATE -
UPDATE – Jeff is starting his liveblog. Legal Hack Unlimited — bloggers’ liability for defamation. The stuff that caused the defamation is probably less sensational than you think. How much (or little) do we have free speech.

The first time we talked included about
- Copyright
- Trademark
- Publicity and privacy
- Misunderstandings in terms of law

News article of the case study – decision was taken around early 2007. Northern Lights Expeditions were very upset Sewid for creating a blog in a website that talked about the competitive world of kayaking. A problem that worked like this – originally some working together – Sewid gets the company upset – he creates a website that creates a kayak trip in the jurisdiction and starts something like “the best way to kayak”.

Emails are written evidence and can be produced in court and used as evidence [RAUL'S NOTE - Ouch.]

To make a claim about defamation – balance of evidence has to show that the actual – if you compliment somebody (if you say nice things even if it’s not true then it’s not defamation). What’s more important – recognize that any publishing on the internet is considered publishing, so we are all publishers for legal publishers.

The defense of truth – if you’re absolutely sure it’s true and you’re able that you have enough evidence that you are saying the truth, then you’re fine.

Except if confidentiality agreements lead to learning about the truth.

Balance of probabilities – Probably. You can win/lose the balance of probability.
51% – statements have a tendency to lower the reputation of the plaintiff.

Interesting – if more than one person is involved – all participants are liable. You work with a team, everyone is JOINTLY RESPONSIBLE. If you got 4 guys creating the site, they’re all liable for the whole thing.

[SIDE NOTE - Great question, Nancy - re: iPhone and website]

The defamatory comments were done maliciously. – So, if you’re doing things prudently,

We’re getting to commenting on blogs. Who is liable (if the blogger says “these comments are not my responsibility”)

Liable and slander used to be separated. Liable – more serious than slander, at the time.

UPDATE – 2 separate companies against a blogger.

Ianiv is asking a question about opinions about a coffee shop. Jeff says – if your website is fully focused on bringing the business down and shut them down, that’s when it starts to be a problem. If it is a legitimate coffee cost comparison, then you’re fine. If you have one specific agenda against, for example, Starbucks, then you’re not fine. If commenters are saying the same, then it doesn’t work.

Cease and desist – this is just consumer lingo. Literally, STOP.

Normal protocol, and the reason you would get a cease and desist letter – we as lawyers don’t start lawsuit right away – you have to give people a chance to stop on their own.

Giving 48 hours to take off stuff online (instead of a week) – Jeff only gives this little time because it takes very little time to take stuff off.

QUESTION – The onus (restaurant reviews) is on us to have the actual appropriate language. A bit of the responsibility is on us to be professional. Jeff – taking that attitude takes you a really long way. There are protocols – and also, do a lot of disclaimers. You can’t take your opinion into an intentional act of defamation.

QUESTION – Branding agency – for our clients – content supplied by client – if the content is defamation or wrong or whatever, if we have the signed contract – can we still be brought into a lawsuit?
Jeff – You should be more practical than that. You can deliver everything …

If we have been malicious, is because something is bugging the crap out of us. Lately, Jeff has been more sensitive to the realities of life. Play half-psychiatrist – “they ripped me off”, etc.

JUST BE OBJECTIVE.

Do we all know whether we’ve crossed all boundaries?

Trademark infringement – The test is whether something is confusingly similar. Not identical, but confusingly similar.

However, while it is contextual – Remember, it’s not about MY opinion or YOUR opinion. It’s what the judge thinks. You have got to take the time to look at cases, and see whether things were confusing or not.

The challenge is that people in this room are involved in technology.

We’re not talking about technology (patent law) – things that are covered by trademark law (art, etc.) – creating brand.

If you are JUST creating art, for art’s sake for display, those things are not being used as brands. You’re out of trademark law and into copyright law and the tests are different.

You have to get the right area of law before you start getting into this. If you have an invention and you want to trademark it, then you’re doing the wrong thing (it has to be PATENTED).

A patent has a 20 year life, you can’t renew it. A trademark lasts forever as long as you remember to renew it.

Great example. LEGO.

How does Epinions survive – you are allowed to have opinions, and they are moderated.

The trademark is PERPETUALLY RENEWABLE.

QUESTION – Defamation – by association – being paid by someone.

You can’t go “Small Claims” for defamation, just so you know.

QUESTION – Before there was blogging – Jeremy Cooperstock – Untied.com – crappy service he got from United Airlines – got a cease-and-desist. If you had a really crappy experience, where you would write that up, and maybe get other people to link to it and drive it up to the top of Google – don’t recall hearing something about this.

Jeff – When you get yourself sued, you don’t talk about it.

QUESTION FROM DUANE – Flickr photos – licensing (Creative Commons)
Duane makes his photos available licensed through CC (see my post on the topic). He had an issue (you can read Duane’s post here).

Jeff – Letter asking for damages – infringement of copyright lawsuit. There was clear license infringement.

In Canada there is no concept of “fair use” – it’s only prevalent in the US.

BUNCH OF QUESTIONS

W/defamation – does out of country protect you? Answer – no, it doesn’t because you’re here.

The World Intellectual Property Organization can help solve issues of cyber-squatting – the domain can go back to you.

Domain name law is NONE OF THE ABOVE.

QUESTION – Should I trademark a domain name? It’s tricky.

Anti-Cyber Squatting Protection Act.

[SIDE NOTE - I still have battery but I'm kind of tired, so I suggest you go back to Rebecca's awesome liveblog and read it. She did such a wonderful job!]

Related posts:

1. Some challenges of intellectual property law and Creative Commons
2. Northern Voice 2009 – Nora Young on Buried Hatchets and Better Tomorrows (Liveblog)
3. Third Tuesday Liveblog – Tris Hussey on the Paradox of Communications in the 21st Century

I have tried to keep a minimal blogosphere/Twitter presence, but I just couldn’t resist writing about this topic. My friend Duane has a day job which is NOT being a photographer, although he does some fantastic photography work. Thus, when Duane has to police the internet to find whether someone is lifting his photos AND violating his Creative Commons license he expends time, money and it is in general, an overall headache.

Given that I can’t ask these questions to my Dad (who would be my go-to guy, normally), and armed with my own understanding of intellectual property law (having taken these courses during my Masters degree), I went to examine the recent case where one of Duane’s photos was lifted, apparently violating the Creative Commons License.

The first thing I did was read the Creative Commons that Duane has on this particular photo. I couldn’t find it off the website of the realtor, because there is no link back to Duane’s Flickr photo stream (the first red flag - no clear attribution).

The second thing I did was to read the realtor’s website upside down. As it turns out, the footer of one of his images says “All images (c) — the realtor’s name —”. Well, sorry to disappoint, but the photo above that exact footer is the property of whomever took it. From what I read on the site, the site owner did not take the photo, so, how can he claim copyright over an image that isn’t his?

The third issue is that for the Vancouver photo of the month promotional, this realtor’s site is using one of Duane’s images WITHOUT ATTRIBUTION. And the fourth issue is that of Duane being the copyright holder. Since the earlier footer implies that ALL images are (c) — the realtor’s name —, by association, this would imply that the photo of Vancouver at night (which you can find here on Duane’s Flickr stream) is also copyrighted by the site owner. Which it can’t because, well, Duane is the owner of that photo!

So what are the implications? First of all, I checked Duane’s CC license on that particular photo. The license is “Attribution-Non-Commercial-Non Derivative“. This means that (a) it should be attributed to Duane Storey (attribution that I can’t find for the life of me on the site that lifted this photo). That also means that no derivative can be done. Therefore, the site is violating the CC license because the composite photo IS a derivative of Duane’s original work.

Why is this a big deal? Well, for starters, because it’s one of those gray areas where people seem to just be entitled to use Creative-Commons licensed photos in whatever shape or form they want. Secondly, it makes (at least me) worried about whether I should even license my photos on Flickr. One of the reasons why I opened some of my own personal photos to licensing is precisely that I expect attribution!

I look forward to hearing from Duane how this issue was resolved. I can understand why Duane is upset, and I hope that this can be resolved quickly. Particularly since this seems to be a worrisome trend as of late!

Related posts:

1. Quick Flickr and Creative Commons rant
2. Third Tuesday Liveblog – Jeff Young on intellectual property and Web 2.0
3. Guest post: Sharing content online and the Creative Commons License by Steve Anderson

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