Monday, March 16, 2009

Protecting Your Brand without Being a Jerk: Intellectual Property in the online era

Intellectual property theft...peer to peer music downloads for example...all present oppotunities for brand theft. But what about the more ambiguous notions of copyright and intellectual property online? Open source development and mashups are consumer generated coontent that push the boundaries of fair use.

A panel discussion including Electronic Frontier Foundation (, HIQI media, Volunteer Lawyers for the Arts, and Creative Commons talks among themselves about sharing, licensing and a kinder, gentler philosophy of intellectual property protection.


If someone is pirating your work, what can/should you do?

VLA: first step is to be sure you have title/ownership. Registering things is an important step. Suing should usually be the last step, but working with a credible lawyer can help get to a solution.

EFF: Registering preserves the flexibility of options for pursuing a solution. Part of the idea of a personal brand online is that people copy/quote and disseminate you...this is a hard concept even for lawyers to grasp: Do you have to aggressively defend trademarks or risk losing them? It can be great to have a brand genericized...because the biggest challenge is obscurity [in social/online its about allowing control to be relinquished for its own good/ this sense, the ownership and definition of the brand truly exists in the minds of the users].

VLA: With copyright, you don't lose ownership without pursuit. With trademarks, its important to understand what could trigger a trademark loss. 

Creative Commons: There is space for pursuing protection without having to order cease and desist letters or asking moims to quit using music in their YouTube videos of their children.

HIQI: Important to monitor your mark, but segregate where someone is putting a confusing mark in the marketplace versus where someone is merely using the mark for another purpose. Journalists have always had speech protected when using trademarks in criticism or reporting. But with the definition of journalist changing, some have pursued people for using the trademark in unflattering ways. 

EFF: Intellectual property law is sometime being used to chill speech.  The distinction is when someone is masquerading as you...tradaemarks are intended to prevent this...they are not about owning the words. You are preventing fraud with intellectual property and trademark laws...its not about assigning ownership of the words.

If someone is stealing content from your site?

EFF: DMCA Take down notification is there to protect wholesale theft of copyright. 

HIQI: Takedown notices are the first step. It basically identifies the content, alerts the site to teh ownership you claim and asks that they take down the content...only after they've received a takedown can they be held liable.

EFF: If you receive one, you can counter notice if you beleive you have a fair use or copyright. These notices go thru the third parties (hosting services, etc.) to protect them. This prevents infinite liability online. 

VLA: It's imperative that ownership clearly be established before taking legal action. Copyright is automatic at creation, but there is benefit to registering have documentation and legal standing to gain compensatory damages. Copyright can be registered at

EFF: People freak when they hear the formal tone of lawyer speak in these areas. Most times it is sufficient just to explain what your position is in a polite way...especially if you are certain you have ownership.


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