Articles Posted in Technology

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The U.S. Copyright Act, codified under 17 U.S.C. § 101 et seq., protects copyrighted works from infringement from wrongful users. This federal law aims to protect unique works while still allowing for creativity and future creations. To that end, individuals charged with copyright infringement can avoid liability entirely under a valid fair use defense. The fair use exception, which is codified under 17 U.S.C. § 107, provides that instances of work that fall within this exception do not constitute infringement.

How Do Courts Apply the Fair Use Exception?

Since courts have not adopted a test or set of factors to determine when the fair use defense applies, judges will look to the totality of circumstances on a case-by-case basis to determine whether the defense is appropriate. This exception allows the courts to avoid applying the statute so strictly that it prevents creativity. In Religious Technology Center v. Netcom On-Line Communication Services, Inc., the United States District Court for the Northern District of California found the fair use exception applies when a work is used for “criticism, comment, news reporting, teaching, scholarship or research.” Under the fair use exception, courts must consider the following factors: (1) purpose and character of the use; (2) nature of the work; (3) amount of the work used in comparison to the entire work; and (4) effect of the use on the potential value of the work. However, this is not a total list of considerations and courts will often look to any unique factors that affect the outcome of the case.

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As cyberspace becomes a larger part of everyday life, the threat of cybercrimes becomes more prevalent. Consumers conduct all sorts of business over the Internet, which involves storing and transferring personal information on various online sites. Accordingly, the wealth of personal information available over the Internet has drawn in a new type of crime–phishing and spoofing. Cybercriminals disguise as other people, or legitimate business entities, and they entice consumers to give out personal information, such as bank account numbers. These tactics also help cybercriminals steal people’s identities.

What is the Difference Between Phishing and Spoofing?

Phishing is the practice of posing as a legitimate business entity to trick consumers into turning over personal information, such as passwords and bank account numbers. The cybercriminals then use this information to break into accounts and transfer money. They may also use this personal information to apply for credit cards, spend extravagant amounts of money, and ruin people’s credit. This is how cyber criminals perpetuate identify theft through phishing. With the right personal or financial information, cybercriminals disguise as other people, building up exorbitant debt against the victim.

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Copyright protection is commonly known to apply to inventions and artwork to protect original work from copyright infringement. However, copyright protections also extend to websites. Today, the Internet, and especially personal websites extend to all avenues of the marketplace. Individuals have blogs, businesses have websites to advertise and inform about their services, and professionals maintain websites with personal information and updates in their field of work. All of this content is subject to copyright protection and copyright infringement.

Why is it Appropriate to Copyright a Website?

Anytime a website contains unique and original content, it is subject to copyright infringement. Therefore, anytime a website owner is looking to protect the text, sound, or design contained on a website, it is appropriate to copyright the website. Website owners may also have the option to copyright portions of a website, specifically the portions of the website that are original rather than a template. Often several different parties will contribute to a website by working on different aspects. Therefore, to ease the copyright process, it is often helpful to determine authorship and ownership before creating the website. For instance, a developer may own the code for the site, a designer may own the graphical and creative aspects of the site, and the owner of the site may own the content or material. Establishing ownership will make it easier to copyright the different portions of the website.

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The central provisions of the Leahy-Smith America Invents Act (the “AIA”) went into effect in March 2013, revolutionizing the United States patent system. Traditionally, the United States had maintained a “first-to-invent” patent system, which awarded patent rights to the first inventor who created a unique invention. However, as the AIA went into effect, not only did the statute change the effects of U.S. patent law, but it also affected how inventors will make the decision of whether to file patents.

How Does the AIA Change the U.S. Patent System?

Before this new provision, the United States Patent and Trademark Office (“USPTO”) awarded patents to the individual or entity that invented first, rather than the individual or entity that filed an application for a patent first. Now, an inventor could lose patent rights to another inventor who potentially created the same invention later in time, but managed to file a patent application for the same invention sooner. Essentially, regardless of who conceptualized an invention first, the first to submit a good-faith patent application secures patent rights.

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Cybersquatting has been a highly litigated issue since Congress passed the Anti-Cybersquatting Consumer Protection Act (the “ACPA”) in 1999, codified under Title 15 U.S.C. § 1125(d). The ACPA establishes a cause of action for the bad faith registration of a domain name that is substantially similar to a trademark or personal name.

Under What Circumstances Will Courts Hold Domain Name Registrants Liable Under the ACPA?

In Xereas v. Heiss, the United States District Court for the District of Columbia found that the ACPA extends to include all registrations of a domain name, not just the initial registration. This federal law’s intent to diminish cybersquatting suggests that the ACPA meant to protect property interests in domain names throughout subsequent registrations.

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Any company conducting e-commerce with consumers in the United States must follow the applicable U.S. Internet laws. Otherwise, the company and its managers may face civil liability and criminal prosecution for violating U.S. laws. However, in the event that a business’s website is also accessible internationally, that business may also need to comply with applicable international Internet and business regulations.

Online businesses should be aware of issues relating to contracts, intellectual property violations (e.g., patent, trademark and copyright), email, spam, antitrust, privacy issues, affiliate marketing programs, online fraud, cyber piracy, cloud computing, cybersquatting, compliance and regulatory actions. For example, if a business uses an image or text on its website, it must ensure that doing so does not violate any copyright or trademark laws.

There are also jurisdictional considerations affecting websites in American and international markets. Different countries have different approaches for determining whether respective courts have jurisdiction over Internet material. Generally, jurisdictional considerations will take into account the physical locations of parties. Although, a website is not a physical being, it nonetheless maintains a physical presence in its operations. As such, an Internet transaction over a website may implicate three different jurisdictional laws: (1) the laws that apply to the user’s physical location, (2) the laws that apply to the server’s physical location, and (3) the laws that apply to the business’s physical location. In the event that a business does not maintain any physical location, courts will look to the owner or manager’s location, or the location of any warehouse that helps facilitate business. For instance, websites such as Amazon and eBay may charge a sales tax on an online transaction if such a company maintains a physical presence in a jurisdiction that charges sales tax. In February 2, 1998, in an effort to help facilitate online business, U.S. Congress passed the Digital Signature and Electronic Authentication Law (“SEAL”). SEAL provides for legal recognition of electronic signatures sent over the Internet to complete transactions. As such, SEAL expands online business, making it easier for consumers and merchants to conduct business entirely online.

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Few crimes affect as broad a scope of people as identity theft. With social networks, credit cards, personal information, and contact information so interconnected, perpetrators can trespass into a person’s life by breaking past a single password-protected account. Accordingly, the Los Angeles County District Attorney’s Office has created a special division to aggressively prosecute this serious crime. Indeed, the District Attorney’s Office has indicated that it would pursue all cases of identity theft, regardless of how minor. This category of illegal activity includes everything from simply possessing information on another’s identity without their permission to using such information to obtain a credit card or make purchases.

In California, identity theft laws are especially strict because perpetrators can be convicted of felony identity theft regardless of whether the victim suffers financial harm as a result of the identity theft. In fact, signing someone else’s name on an official document may constitute identity theft, depending on the circumstances. Often, identity thieves work as members of larger organizations, which assemble and carry on large networks of identity theft. Someone may be accused of identity theft simply by association with members of such a network. Under California Penal Code § 530.5(a) to maintain a case of identity theft, the district attorney will need to show that a defendant intentionally obtained “personal identifying information” without the consent of the person, to use “for any unlawful purpose.” Defendants may be able to avoid prosecution for identity theft if they can present evidence to show that they obtained the identifying information with the person’s consent.

The most common identity theft cases include illegal credit cards, fake identification cards, stolen social security numbers, purchases with stolen credit cards, and skimming. Skimming involves installing a skimmer to illegal obtain identification and credit card information from card machines in retail stores and gas stations. Identity theft also involves cyber crimes such as phishing or spoofing.

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The illegal downloads of music and movies, and the corresponding financial consequences for music labels and movie production companies, introduced online piracy to the forefront of newsworthy discussions. Today, online piracy has expanded into an online market that allows criminals to profit from stealing intellectual property (such as patents, trademarks, copyrights) from American owners and selling such valuable property online. Such “rogue sites” are usually located outside of America and organizations are able to maintain these sites by circumventing U.S. laws. The rogue sites will sell everything from movies and music, to medicine and automotive parts. In fact, counterfeit baby food comprises a large sector of the online piracy market, endangering the health and wellbeing of American consumers.

In light of this growing threat to American consumers, and their intellectual property rights, there is a call for more stringent online privacy laws to protect against these threats. Illegal piracy costs America $100 billion and thousands of jobs each year. Accordingly, Congress proposed the Stop Online Piracy Act (“SOPA”) to protect American consumers and American intellectual property. SOPA intends to target foreign websites that manage the sale and traffic of counterfeit products.

However, opponents of the bill have spread misinformation over the Internet to block SOPA’s passage. For example, Google openly opposes SOPA. To that effect, Google paid $500 million to settle a case alleging that Google promotes illegal foreign online pharmacies. The case suggested that these pharmacies pose a health risk for American consumers. Google argues that SOPA will allow for online censorship. Proponents of SOPA argue that the law does not aim to censor the Internet. Instead, this law only focuses on online activity that is already illegal. Furthermore, SOPA only covers foreign websites that are specifically involved in infringing activity. The National Association of Manufacturers, International Union of Police Associations, United States Conference of Mayors, National Songwriters Association, and the National Center for Victims of Crime all support SOPA and its overall purpose. Additionally, both the United States Chamber of Commerce and the American Federation of Labor and Congress of Industrial Organizations have formed a unique bond to support SOPA.

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After an investigation by U.S. Immigration Customs Enforcement’s Homeland Security Investigations unit, U.S. District Judge Arenda L. Wright found members of IMAGiNE Group guilty of criminal copyright infringement. The court found IMAGiNE Group, an Internet piracy circle, guilty of perpetuating an effort to release movies available only in movie theaters. A representative of the Motion Picture Association of America testified that IMAGiNE was responsible for the most expansive effort to release pirated films between September 2009 and September 2011.

Judge Wright sentenced Jeremiah B. Perkins, a leading member of IMAGiNE, to prison and ordered him to pay $15,000 in restitution damages. After prison, Perkins will also face three years of supervised release. Perkins was responsible for recording films in theaters and compiling data into complete movie files to share on the Internet. Perkins admitted to renting computers, registering domain names, and opening email and PayPal accounts to help run IMAGiNE’s operation.

The National Intellectual Property Rights Coordination Center (“IPR Center”) within the United States Department of Homeland Security has supported the underlying investigation in this case. This center is one of the federal government’s greatest weapons in the fight against counterfeiting and piracy. The IPR Center works closely with other agencies within the Department of Justice to facilitate information sharing in an effort to establish and enforce initiatives that deter intellectual property theft. This case was part of the IPR Center’s greater effort to hinder and stop the spread of intellectual property theft. Attorney General Eric Holder instigated these efforts in response to the increasing crimes against intellectual property. Additionally, in light of recent news concerning threats of international cyber attacks, these efforts also go a long way towards protecting American consumers, their health, and their safety. Preventing intellectually property theft also protects the American economy by prohibiting outside parties from profiting on American products and intellectual property. The IPR Center aims to increase intellectual property right protections by implementing stricter criminal and civil liability for property right infringements. Additionally, the IPR Center seeks to organize greater coordination among federal, state, and local law enforcement agencies. Finally, the task force aims to refocus efforts on international property right protections by establishing and strengthening relationships with foreign governments.

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The news outlets have been reporting that the Chinese have allegedly been hacking into American infrastructures. Assuming this report is accurate, the United States is not equipped to handle the consequences of such an attack. These hackers would possess the power to disable the critical infrastructure in this country, eliminating electricity, gas, water, and all major transit systems. Indeed, earlier this year, both The New York Times and The Wall Street reported that hackers had infiltrated their systems and stolen confidential employee information. The New York Times has further reported that it has been experiencing constant attacks from the Chinese in an attempt to control information that pertains to China. The Ministry of National Defense in China denies any such cyberattack on The New York Times. In light of these recent developments, it has become increasingly important for individuals and businesses to take steps to ensure their cyber protection. By serving California and Washington D.C., the skilled attorneys at the Law Offices of Salar Atrizadeh successfully work on legal matters pertaining to cybersecurity and Internet law.

The former Secretary of Defense, Leon Panetta, has described the scene that will unfold after such an attack as a “cyber Pearl Harbor.” Indeed, these hackers could possess software with the capacity to destroy infrastructure hardware. Such an attack would spread chaos throughout the country for months while the government works to restore its vital systems. Pointing to the failed Cybersecurity Act of 2012, Panetta has called upon the private citizens and businesses to act to secure their cybersecurity. Hillary Clinton, former Secretary of State, confirmed that this was a crisis that required global attention.

These instances of “cyberterrorism” threaten to cause damage far beyond the destruction of 9/11. Mandiant, a cyber-security company based in the United States, traces these cyber-attacks to the People’s Liberation Army, the Chinese military. The efforts in America to make sense of these attacks have not led to any definitive answers. The dangers of cyber-attacks are apparent in the recent attack on Aramco, the Saudi Arabian oil company. The attack consisted of a virus, which destroyed 30,000 Aramco computers, and replaced essential files within the system with an image of an American flag burning. There was also a reported cyber-attack on Telvent (now known as Schneider Electric), an international corporation that provides companies with the network and connections to remotely control power grids, oil pipelines, and gas pipelines. It remains unclear whether the hacking efforts are meant to steal confidential information, or whether the hacking is part of a larger scheme to derail vital American infrastructures. Indeed, the threat may not be limited to the Chinese, but rather part of a greater effort to launch an attack against American cybersecurity. This certainly poses a threat not only for national security, but also for individual cyber-security involving consumers and businesses that compose and participate in the crucial business and technology infrastructures.

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