Archive for the 'Intellectual Property' CategoryPage 2 of 11

A Murder Victim’s Facebook is Off-Limits Before Trial

In the age of technology, social media has become the new frontier for evidence gathering in criminal cases. Especially amongst the younger population, the majority of communication is not simply verbal anymore—it’s written through Facebook messages, tweets, and pings, or even conveyed through pictures via Instagram, Twitpic, and Snapchat. To some, this may seem like a gold mine of information with any potential incriminating evidence entirely recorded somewhere in the Internet ether.

However, the Constitution has long protected the right to privacy. Thus, when it comes to online communications, especially those intended to be private, lawmakers and judges alike have been extraordinarily cautious in balancing one party’s need for information against another party’s right to privacy.  Facebook Killing

A recent decision rendered by the California Court of Appeals for San Francisco County rightly explained why the careful preservation of privacy in criminal cases is so important in an increasingly digital generation. Specifically, the Court held criminal defendants may not compel social media platforms like Facebook and Twitter to disclose a victim’s private online communications before trial begins.

Can Criminal Defendants Use Victim’s Internet Profiles as Evidence?

The case involved a gang-related drive-by shooting in the Bayview District of San Francisco that resulted in the death of Jaquan Rice, Jr. and serious injuries to his girlfriend. The shooters were identified as Lee Sullivan and Derrick Hunter, both members of a gang called “Big Block.” In its case to the grand jury, the prosecution maintained Rice was a member of rival gang “West Mob,” and this gang rivalry was the driving force behind the drive-by and murder. San Francisco Police Department Gang Task Force expert Inspector Leonard Broberg testified to the grand jury that “gangsters are now in the 21st century and they … do something called cyberbanging. They will actually be gangsters on the Internet. They will issue challenges; will show signs of disrespect, whether it’s via images or whether it’s via the written word.”

Defendants Sullivan sought to obtain all public and private social media records from Facebook, Instagram, and Twitter of Rice and purported witness Renesha Lee, the former girlfriend of Sullivan, to help build his defense case prior to trial. Sullivan believed such records would expose Rice as “a violent criminal who routinely posted rap videos and other posts threatening [Hunter] and other individuals.” The defense further argued that obtaining the records before trial was necessary to ensure Sullivan’s constitutional right to present a complete defense to the charges against them for a fair trial and their rights to effective legal assistance and confrontation of adverse witnesses.

Although the lower court bought defendant Sullivan’s arguments for the records, the Court of Appeals quickly and rightly reversed the decision and denied him access. However, the Court of Appeals did not deny access to such records indefinitely. The Court emphasized that pretrial access to confidential information by the defense was off limits, but the defense could potentially access such information during trial. The Court of Appeals reasoned that if it were to allow pretrial access, a trial court might be forced to weigh the defense’s need for information against a victim or witness’ right to privacy without enough information from either side to make a truly balanced decision. Such a process would be far too risky and the price could potentially be a breach of victims or witnesses’ constitutional right to privacy. The Court further maintained that enforcing this decision would not breach Sullivan’s constitutional rights to fair trial or effective assistance, because it was limited to pretrial access and any evidence required to afford him a full and fair trial could eventually play out once trial actually began. Thus, Sullivan was denied access to Rice and Lee’s social media records until trial.

This Court of Appeals decision sheds important light on how new mediums of evidence might fit into the frameworks of evidence law and criminal procedure without disrupting constitutional individual rights.

Fan Made Power Rangers Film Shows the Limit of Copyright Law

power rangers fan film and copyright law

Anybody remember the Power Rangers?

Power Rangers was one of the biggest children’s shows during the 1990s. The popular franchise was about a group of teens who protected the earth from alien invaders. Although Saban Brands had licensed footage from Super Sentai, a popular Japanese show, Power Rangers created original material to attract an American audience. The show was a huge hit and it continues its popularity even today. With over twenty seasons, Power Rangers is one of the most profitable children’s franchises ever made.

Although Power Rangers is primarily a children’s show, it has adult fans. One of those fans is Joseph Kahn, a long-time music video director. Kahn recently tried to pay homage to Power Rangers by creating an R-rated short film version.

Kahn’s vision of Power Rangers depicts the original teens as adults who suffer from PTSD.  The film uses professional actors including James Van Der Beek and Katee Sackhoff. The tone is dramatically darker, with sex, drugs, and guns prominently featured. Kahn uploaded his film onto YouTube and Vimeo, where you can view the short film here.

Kahn’s R-Rated Power Rangers quickly gained Internet press. Saban Brands condemned the short film as a violation of its copyright. Response from the cast of Power Rangers was mixed; some of the actors thought the short was well-made while other cast members cringed as Kahn’s film drifted from the children friendly atmosphere of the franchise. YouTube and Vimeo removed the short film at Saban Brands request.

After Internet outrage and Kahn’s insistence that his film was fair use, Saban Brands negotiated an agreement with Kahn. The short film is back online, but it now comes with a warning that the video is not connected to Power Rangers and is intended for a mature audience.

Fan Fiction That Adopts Too Much of the Original Violates Copyright

Internet users largely supported Joseph Kahn, calling the copyright restrictions a violation of Kahn’s free speech rights. Kahn himself defended the film as an exercise of fair use. Although Kahn and Saban Brands have already settled, the dispute has raised questions about professional directors and actors making fan fiction of copyrighted works.

First, Kahn doesn’t have a free speech defense to alleged copyright violations. The Constitution is only a restriction on government action. Private companies are not bound by the First Amendment and Saban Brands, YouTube, and Vimeo are certainly private entities. Kahn doesn’t have a right to advertise his R-Rated Power Rangers film more than Saban Brands has a right to protect the image of their copyright franchise.

Since it’s established that Kahn doesn’t have a protected free speech right here, we only have to determine whether Kahn’s R-Rated Power Rangers was a fair use of Saban Brand’s property. The fair use question involves balancing a number of different factors, including the purpose and character of the work, the proportion of the use of the copyrighted material, economical impact, and the intent and motive of the defendant.

On one hand, the short film is very distinct from Saban Brands in tone. The film is extremely dark and gritty, with the characters suffering from PTSD, where the Power Rangers were always light and family orientated (if you ignore the violence). All the material in the film is original. Kahn produced all the scenes on his own, without any footage from Saban Brand. Kahn hasn’t outright taken any work from Saban Brands; the only issue is the use of the characters and the brand name.

However, a reasonable person could believe Kahn’s film was a product of Saban Brands based on the character of the short film, even though the tone is dramatically different. The film uses the same characters and costumes. The short film was produced by a professional director and cast by professional actors. Kahn’s work preserves some of the cheesiness of the franchise, including the over-the-top acting. Although the acting is over the top, the film takes itself very seriously. It’s difficult to classify the work as a parody. All these facts could lead a person, without any background knowledge, to believe the Kahn’s work was intended to be a continuity and thus a reproduction of the original Power Rangers.

The Reality of Our Legal System

I just went through a rather long drawn out discussion about fair use, but Saban Brands and Kahn have already settled their dispute. This case never went to court. It’s important to note that one of the factors was intent and motive of the defendant. A prolonged court battle would have damaged Kahn’s reputation with producers. A protracted court battle would have drained Saban Brand’s resources.

The reality of our civil legal system is that trial is rarely the correct answer. Although lawsuits are always being filed, most of them never make it before a jury. It’s ironic that a dispute over a franchise that portrays violence to children is ended merely by talking things out.

Forever 21 Was Caught Pirating Software from Adobe

Everyone knows that stealing is wrong. If you walk out of a store without paying for merchandise, you shouldn’t be surprised when an alarm sounds.

forever 21 sued by adobeForever 21, a retail-clothing store, would agree with this premise in the context of someone stealing a blouse or a skirt. You would think that they would also agree with this premise when it comes to software programs?

In January of this year, Adobe filed a lawsuit against Forever 21 for copyright infringement. Autodesk and Corel joined Adobe in the lawsuit and alleged that Forever 21 pirated software such as:

  • Photoshop
  • Acrobat
  • Illustrator
  • WinZip
  • Autodesk
  • PaintShopPro

The companies alleged that the piracy happened on 63 different occasions. It’s still unclear how Adobe became aware of the infringing acts, but the company has been encouraging employees to turn in their employers for using unauthorized copies of its software programs.

The alarms have been set off. Now Forever 21 has to show proof of purchase or face an expensive legal battle.

EU Seeks to Extend “Right to Be Forgotten”

It’s rare for legal decisions in European Courts to affect Americans. However, the fight over the “right to be forgotten” could be the exception. Last year, EU courts created a “right to be forgotten,” mandating that Google remove links at an individual’s request.

google eu internet privacyFor example, suppose that your home was foreclosed and you were arrested for punching the sheriff who posted the notice to your door. A decade later, you’ve paid off the mortgage and the assault charges have been cleared. However, Google still has your mug shot and your foreclosure record.

If you live in Europe, you could request that Google remove links to information about your arrest and foreclosure from European servers like Google.de or Google.fr.

The main server, Google.com, however, will still retain these links, despite your request. In fact, European privacy groups believe that Europeans are turning to Google.com now that Google’s European servers have been compromised. And that’s exactly why European privacy groups are targeting Google.com next.

Here Today, Gone Tomorrow

The problem is that Europeans aren’t the only ones who use Google.com. The .com server is the server that most Americans use. If European countries require that Google censor web links on its .com server, then that information would also be censored in the United States as well. The consequences are too vast to be predictable, but I can think of a few.

For instance, Darren Wilson, the Ferguson police officer who shot Michael Brown, could move to Europe and convincingly erase his name from Internet archives. Or what if an American opens a business with a European investor? It’s much harder to tell whether the investor has any shady dealings. Or what if you’re trying to sue a European citizen living in the United States? Although a competent attorney would not rely on the Internet during discovery, writing that claim might be harder if the defendant can magically hide his Internet presence.

What happens if the EU tries to force Google to restrict Google.com? First, it’s debatable whether EU courts have jurisdiction over a foreign company such that the EU could affect how Google manages its website overseas. Second, if the EU did have that power, I am currently unaware of an American law that would compel Google to keep information up. Or Google could ignore EU courts and accept whatever consequences that might entail.

If Google.com is such a problem, why can’t European countries just restrict citizens to European servers? Actually, that is a solution that some countries have taken up. The most prominent country that has limited its citizen’s Internet access is China.

If you’re in China, Google.com is inaccessible and you have to use Google.cn or Google.hk. In China, the purpose of blocking Google.com and restricting access to certain web pages is to keep the state, the Communist Party, and party leaders safe from political critique. Ironically, the EU will be enforcing a type of Internet censorship based on privacy rather than political oppression, but the outcome might still be the same.

Artists vs. Online Retailers: The reality of online copyright infringement

The term “sharing” has become a normal part of our 21st century lives, allowing us to engage with people around the world. By sharing, small time artists can promote their works on deviantART, Instagram, and Tumblr. Artists can even earn a living by selling their works on e-commerce sites like RedBubble, Etsy, Teefury, or Society6.

800px-UrbanOutfittersUnfortunately, being able to share your content with the world is a double-edged sword. As an artist you get to create, exhibit, and profit from your labor of love, but this also means your work can easily be stolen, reproduced, and sold without your knowledge.

Copyright protection laws give a copyright holder the right of reproduction and to create derivative works. A reproduction right means the copyright owner is the only one that can make copies of the original work. Derivative works are adaptations based on the original copyrighted work (e.g. a movie can be a derivative work of a book).

Independent online artists will often create an image, design, or comic and they usually reproduce their images on products like shirts, postcards, bags, phone cases, or other products. Derivative works, in this context, are usually merchandise created for other copyrightable works like web comic series.

The right of reproduction is the most infringed upon right for artists. Usually, an artist will upload an image and another person will take it and reprint that image on posters or tee shirts. This problem is common, even on sites like Etsy.

Although most online retail websites, including Etsy, have copyright infringement policies, enforcement and getting results can be difficult for artists. Common problems are:

  • The infringing party is in another country.
  • The websites themselves fail to take down the infringing products or images.

Besides having another person steal your work, some artists even fall victim to large retail stores like Urban Outfitters. Urban Outfitters has been accused, on multiple occasions, for copyright infringement and some artists accept this as part of the norm.

So what is an artist to do when engaging with online retail stores? Refuse to use these sites? Ignore the problem altogether?

Artists and designers take copyright infringement seriously and end up policing their own communities. Often, they will notify each other about the infringing party or will take an active role and reverse search their own images.

Reverse searching an image allows artists to see where their copyrighted works are being used on the web. Popular search engines are:

This may not be the ideal for independent online artists, but it’s the most proactive approach when dealing with infringers. The best thing to do is to know the copyright policies on whatever website you use to promote your work, and actively reverse search your images to stop copyright infringers from profiting off your work.



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