Internet On Trial

Internet On Trial

Modern Day Litigation, Cyber Defamation, and Law in Sports & Entertainment

Registering copyrights: Is it really worth the $35?

Posted in Copyright

When copyright protection was created in the late 1700s, it was for books, poetry, and other written works. After all, Thomas Edison didn’t invent the phonograph until almost a century later, and sound recordings weren’t commonly made until the 1900s. But as technology allowed new ways of disseminating creative material, copyright law has evolved to protect the myriad forms of media. Today, there are copyrights for everything from musical compositions, and sound recordings on vinyl (phono record), analog tape (reel to reel and cassette), compact disc and various digital media forms, movies, videos, architectural designs, photographs, computer software, and materials specifically created for the web, and other online platforms.

Copyright protects original works of authorship and the original expression of ideas. Copyright does NOT protect ideas themselves, however. Ideas are protected by patent law. Copyright protection differs from patent, which protects useful ideas and inventions (though materials describing patentable materials can be copyrighted), and copyright differs from trademark, which protects the use of words, phrases, symbols, designs, and even colors that have acquired a close association with a particular product, company, or specifically identifiable source. Patents and trademarks are the exclusive dominion of the U.S. Patent and Trademark Office (USPTO). The U.S. Copyright Office, on the other hand, is its own sovereign entity, which is totally separate from the USPTO.

Last year, the U.S. Copyright Office processed more than 468,000 applications for which it issued over 414,000 copyright registrations. The overwhelming majority of those applications were filed electronically, and unlike patent applications (and to a slightly lesser extent, trademark applications) many, if not most copyright applications are filed by the author or creator, rather than an attorney. The filing fee for a copyright application starts at just $35, for a single work/single author, but can cost many multiples of that, depending on the number of elements to the work, and how many co-authors contributed. For example, a nautical designer can pay as much as $400 to register the various design components of a vessel’s hull.

Copyright law originates in the U.S. Constitution, but the laws we use today are primarily the U.S. Copyright Act of 1976, and the Digital Millennium Copyright Act of 1998 (a.k.a. the DMCA). Copyright law protects any original creative work that is fixed in a tangible medium of expression. That’s just white wig speak meaning that it has to be (a) an original creation, and (b) written on paper, recorded in a media file, etc. (which is what they mean by being fixed). Once you have something that meets those two criteria, you automatically have exclusive rights to:

  • Produce copies or reproductions, and to sell those copies (including, electronic copies)
  • Import or export the work
  • Create derivative works (e.g. sequel, prequel, or spinoff)
  • Publicly perform or display the work
  • Publish or broadcast the work
  • Sell, transfer, or license these exclusive rights to a third party

Registration isn’t required to establish federal copyright protections. You don’t need an attorney to register a copyright and as a matter of principle, it’s a good idea to familiarize yourself with the registration process by personally registering your own copyrights, as you embark upon your creative endeavors. Aspiring songwriters making ends meet as baristas are not likely to be able to afford or need legal assistance to help them register for copyrights on the first songs they pen. It isn’t difficult to do. People involved in imagining original materials owe it to themselves to learn the basics of how to protect their creations.

It is necessary to seek registrations for new works or when materials are substantially altered or updated, such as a redesigned website.

While a non-attorney can apply for a copyright registration, properly registering a copyright establishes who could later become crucial in a fight to establish an individual as the rightful originator of a work. A person must have registered to bring a lawsuit for copyright infringement.

If you have to legally assert your copyrights against infringement, it’s easier if your materials have been registered with the U.S. Copyright Office. I look at taking the time to register copyrights as the difference between riding on the express train or the local; a successful infringement claim will come a lot faster and easier with a valid copyright registration in hand. Better yet, by having your copyright registered, you just might be able to avoid having to go to court in the first place,that is because (smart) people don’t want to litigate copyright infringement cases where the work was previously registered.

Registration also creates a public record of a person’s claim to authorship of original materials. Works can be registered at any time, but in most situations, registrations are NOT retroactive. So, if you register a copyright after it was infringed, and then file a lawsuit for copyright infringement, unless an exception applies, you won’t be entitled to the same relief afforded to registered copyrights.

What relief is available for infringement of registered copyrights that is unavailable for unregistered copyrights? When a copyright is registered, if you have to sue for copyright infringement, you won’t have to prove the value of the work. That is because registered works are entitled to statutory damages, which are set forth in the Copyright Act. If your work is registered, all you have to do is prove that somebody unlawfully copied it, and the minimum amount of damages the court will award is $750 per work infringed. For willful infringement, the award of statutory damages could be as high as $150,000 per work, depending on the circumstances. But the biggest benefit to registration is that as the prevailing party in a suit for infringement, you are automatically entitled to an award of attorney’s fees.

Without registration, you’ll have to pay your own legal fees, and you’ll only be entitled to actual damages (e.g., the amount of lost profits you can prove are attributable to the infringement), which are oftentimes difficult to prove, especially when the subject matter is a creative work of art.

People should seek legal guidance on registering copyrights when their materials begin to show real commercial value. Legal assistance may also be indicated if a person cannot navigate registration themselves because of problems with, for instance, understanding the terminology involved.
More complicated issues may arise from registration practices, too. For example, if you want to register a work you co-authored or contributed to, or a collection of songs, videos, drawings, etc., a computer software application, or the entire design and contents of a website, these are situations when you should at least consider hiring a copyright lawyer, or at least consulting with one to make sure you don’t make any fatal mistakes.

Chopped-up fingers and bruised egos: How can I find out who posted disparaging comments about me anonymously on the internet?

Posted in Defamation

People who believe their professional reputations or personal integrity have been unfairly impugned by materials anonymously posted on the internet are not defenseless against their unnamed tormentors.

Is it possible to discover the identity of those behind anonymous posts? Yes. But it’s not easy, especially if you don’t have experience communicating with the various webmasters, and a comprehensive understanding of not only the applicable federal laws in play, but also the various state laws, which differ, and can be especially confusing when you, the online troll, and the website are all in different jurisdictions. Sometimes the laws of more than one state may apply, which then raises an even more complicated legal issue called conflicts of law.

Nevertheless, unmasking the anonymous online troll requires a systematic and methodical approach that must be tackled step by step. The first question you must answer is — On which platform do the objectionable materials appear? Arguably you should first determine whether the objectionable material is actionable under existing law, however, the requisite standard for removing the objectionable material often differs depending on where the material is posted, which is why it’s usually best to start by identifying the medium, including ALL syndicated or duplicate publications.

Most online service providers (OSPs), like Facebook, Yelp, Google Plus, etc., have policies in their terms of service (ToS), which provide guidance for having objectionable content removed from their sites. Unfortunately, the process is different for every site. Website operators are faster, and more likely to remove objectionable materials when intellectual property violations, such as copyright or trademark infringement are involved. This is because the most important/prominent law governing online service providers, the Digital Millennium Copyright Act of 1998 (DMCA), contains “safe harbor” provisions allowing OSPs, without penalty, to take down materials that infringe on people’s copyrights if they do so “expeditiously” upon learning of the infringements contained in postings.

Many people are successful at sending DMCA takedown notices themselves, and sometimes that makes the problem go away. But if your DMCA takedown notice is unsuccessful, or the OSP doesn’t respond, if you didn’t have an attorney who specializes in intellectual property and/or internet and privacy law, you will likely need one at that point.

The identities of anonymous posters are held by the OSPs, and most providers are going to require people seeking to discover the identities of those behind anonymous postings to get a court order before they will reveal their identities.  

Materials that anonymously or falsely malign a business almost cry out for a business owner or company to respond. If you are in a situation where your business is either being hurt or is going to be hurt, then there is really nothing to think about in terms of whether to fight back (unless you don’t care about your business). If you can prove the damaging statement is not true, and it’s truly defamatory, that’s a surefire way to get a court to issue a takedown order. There is no First Amendment protection for false and defamatory statements. If somebody calls you an “asshole,” that is objectionable, but it is not defamatory. But if you are a restaurant owner, and somebody says you put chopped-up fingers in the chili, that’s a different scenario. That gives a quest for redress a lot more teeth because of how obviously detrimental that kind of allegation could be to a restaurant’s business.

But what about fighting anonymous postings of the “asshole” variety? People may bristle at being branded that way on the internet, where the characterization can be seen by thousands, if not millions of people. But the opinions of a critic, anonymous or otherwise, are rarely defamatory unless they contain claims of fact that can be refuted. Calling a person a “crook” or a “thief,” for instance, is often objected to by the those alleged to be “crooks” or “thieves.” Even then, claims of defamation are difficult to prove. Anonymous opinions may bruise the egos of their targets, but getting real redress may prove even more bruising to the patience (and pocketbooks) of the maligned.

Is it defamation to … tell someone to eat shit?

Posted in Defamation

This is an easy one. No. By definition, defamation is a false statement of fact, which damages another’s reputation or character. So, telling someone to eat shit, which is nothing but a more colorful way of saying ‘go fly a kite,’ is not defamation. Then why did HBO get sued along with its show host, comedian John Oliver, for saying exactly that about the owner of West Virginia coal mine? This is where the answers get (slightly) more difficult.
Continue Reading

Is there a constitutionally protected right to record police activity?

Posted in First Amendment, Privacy Law

© 2011 by Adam Katz

Spoiler alert: It depends. Continue Reading

Own a gun? Hope you like jail.

Posted in New Jersey, Privacy Law

[image - gun w/U.S. Constitution]

For all intents and purposes, it’s a crime just to have or possess a gun in the state of New Jersey—unless you’re in your own home—and with new rules just announced by the New Jersey judiciary, people charged with gun-related crimes now will go to jail immediately, denied bail, and the presumption of innocence until proven guilty is but a fairytale. This would apply even to residents of other states, simply traveling through New Jersey with guns they lawfully carry in their home states. Continue Reading

Press Release: Joseph Bahgat Named a ‘Fastcase 50’ Legal Innovator

Posted in Privacy Law

For Immediate Release

Contact: Kevin Vermeulen, COO, Good2BSocial

Kevin@good2bsocial.com | Ph: (917) 679-7571

The Privacy Firm Managing Attorney’s Newest Award Solidifies His Reputation as a Legal Innovator and Tech Leader

July 14, 2017 | New York, NY — Joseph Bahgat, managing attorney of The Privacy Firm PC, was named a 2017 “Fastcase 50” honoree. Compiled by legal publisher Fastcase, the ranking highlights professionals who are charting a new course for delivering legal services.

According to Fastcase’s nomination criteria, Joe stood out among hundreds of nominees for being one of the “smartest, most courageous innovators, techies, visionaries, and leaders in the law.” With offices in New Jersey and Ohio, his firm represents business owners, high-net-worth individuals, lawyers, and anyone affected by matters of internet and privacy law, including BitTorrent/ISP subpoena defense, defending against intellectual property trolls, cyber-defamation, and related IP litigation in entertainment and media law.

“I am honored to be featured in the Fastcase 50 along with industry leaders whom I deeply admire. Past honorees have included other lawyers, respected law professors, and many non-lawyers who truly inspire me to build bridges between my chosen profession and the modern world. I’m also humbled because this is a peer nomination, which also puts my name alongside these great legal innovators,” Joe said. “My mission is to change public perception about lawyers. I use technology to carry out that mission, and receiving this award is proof of its effectiveness.”

A rising star in New Jersey’s legal community, Joe has been one of the state’s most outspoken advocates for its courts to implement electronic filing systems, which would improve efficiency, and encourage transparency. Since joining his firm in 2010, he has lectured at the local, state, and national levels, encouraging law firms to embrace cloud-based practice management systems, and calling for courts to overhaul legal practice rules to reflect how forward-thinking lawyers use technology to deliver real-time legal services.

In 2014, Joe was a featured speaker at the inaugural Clio Cloud Conference in Chicago. He regularly blogs and writes about specific issues that need to be addressed by courts and other rulemaking bodies, including the American Bar Association, which eventually garnered the attention of the ABA Law Practice Division and resulted in his appointment to the #ABATECHSHOW Planning Board in 2014.

“I want our industry to embrace technology. When we realize its potential, it enables us to better serve our clients. This is possible because of efficiency that was unimagined 30 years ago, back when I knew I was destined to be an attorney,” Joe said. “We are at the precipice of a legal industry that looks nothing like it did even 10 years ago. The attorneys who’ll continue to survive and thrive will be the ones who embrace change. Through that, we can evolve our practices to focus on providing the legal services that can’t be replaced by technology.”

About Fastcase and the Fastcase 50

An American company based in Washington, D.C., Fastcase is a leading legal publisher focused on smarter legal software that democratizes the law. Using patented software that combines the best of legal research with the best of Web search, Fastcase helps busy users sift through the clutter, ranking the best cases first and enabling the re-sorting of results to find answers fast. Founded in 1999, Fastcase has more than 800,000 subscribers from around the world. Since the inaugural awards in 2011, the Fastcase 50 has spotlighted and applauded the most fascinating trailblazers and architects of the future of law and legal technology. For more information, visit fastcase.com and the Fastcase 50 award winners list.

About The Privacy Firm

The Privacy Firm (fka Bahgat + Bahgat LLC) focuses matters involving Internet and Privacy, BitTorrent/ISP Subpoena Defense and various aspects of Business Law, from offices in Philadelphia, Central New Jersey, and Ohio. The firm was founded in 1987 by Abe Bahgat, a renowned presence in Ohio’s criminal justice system. He was joined by son, Joseph in 2010, who has helped expand the firm’s practice areas. Recognized in the industry as an innovative law practice, The Privacy Firm is powered by a cloud practice management system and produces many freelance legal technology articles and popular blog, which helps other attorneys stay on top of protecting client information and discover the latest practice management news. Visit https://PrivacyFirm.law for more information.

Supreme Court Justices Battle Over The “Internet”

Posted in Internet & Media Law, Social Media Law

image

I admit I’m a grammar snob. Sue me. I’ve been this way as long as I can remember, long before I became an attorney. When I read something in which the author doesn’t know the difference between your and you’re, I instantly tune out. You’ve lost me at that point. Sure, I begin and even end sentences with prepositions, when appropriate. Contrary to popular belief, there’s nothing wrong with that. Continue Reading

Judge “Likes” Service of Process Via Facebook

Posted in Internet & Media Law, New Jersey, Social Media Law

facebook thumbsWhen you get your mail out of the mailbox, have you ever received a small, orange, or other bright-ish colored paper notice indicating that they tried to deliver certified mail to you? Sometimes the mailman will make another attempt to deliver it to you, but more often than not, the certified mail will sit on a shelf at your local post office, until (a) you come pick it up, or (b) if nobody comes to claim it, then it’s returned to the sender, after a week or ten days . Depending on the state where you live, you could receive notice of a lawsuit via certified mail, but more often than not, people use certified mail so they can Continue Reading

If You Think Copyright Trolling is Over You Aren’t Paying Attention

Posted in Copyright, Privacy Law

Matthew Sag

Malibu Media recently filed 42 new copyright troll cases in the U.S. District Court for the District of New Jersey alone, and including New York, Pennsylvania, and Texas, Malibu Media has filed nearly 150 new copyright cases in 2017. Needless to say, copyright trolling is far from over, Continue Reading

What is the “single publication rule,” and why should you care?

Posted in Cyber-defamation, Defamation, First Amendment, New Jersey, Ohio

 

© 2007 by inacheapwestern

© 2007 by inacheapwestern

You’ve probably heard the term statute of limitations before, and you might even know what it is — the time limit for filing a lawsuit, which is established by a state legislature or Congress, and defines the absolute deadline that a suit can be filed after the occurrence of the event that gave rise to the lawsuit in the first place. Statutes of limitation vary greatly from state to state, and also vary depending on the type of lawsuit at issue. For example, in Pennsylvania, you have only two years to file any lawsuit for personal injury, medical malpractice, products liability, or wrongful death; these limits are the same in New Jersey, but in New Jersey, you have six years to bring a claim for breach of a contract, while in Pennsylvania the limit is only four years. Ohio shares NJ’s limitation periods for personal injury, products liability, wrongful death, and oral contracts, but allows additional time to file suit on a written contract; Ohio also allows only one year to file a medical malpractice claim. All three states, however (along with a host of others) share the same one-year limitation period for claims of defamation. There are a few states, such as Florida, Missouri, and Indiana, which have a two-year limitation period for defamation cases, and Massachusetts is known for having the longest statute of limitations — three years. Continue Reading