PROFESSOR MARC GREENBERG
INTERNET & ONLINE LAW- GOLDEN GATE UNIVERSITY
Remember the Yahoo Case outcome - the French Court found a violation of their hate crime laws, but the USDC
found that the First Amendment protected this speech, and held that the French Court Order could not, therefore,
be enforced in the USA.
This poses several problems. As to the currently alive authors, there will be possible copyright claims,
subject to fair use defenses. As to those who died within the last 55 years, if they had copyright protection,
the copyrights may have expired under the 1909 act which allowed for two 28 year periods, if renewal was
accomplished.
Conquest does not have any permission from anyone to post these excerpts, and both they, and their Internet
Service Provider, a Texas company called Albeit, have been sued for copyright infringement.
Arbeit may have a safe harbor under the DMCA as an Internet Service Provider, provided they had no prior
notice before being sued. If they had prior notice, and took no action to remove the content or suspend the site
while the parties resolved their dispute, then Arbeit may be found contributorily liable.
German Suit - a likely stalemate. They will be found liable in Germany, but a US court will refuse to enforce
the judgement. If they have assets in Germany, they could lose them. Conquest can argue that the German court
lacks jurisdiction because Conquest is located solely in Texas, but the German Court will likely find jurisdiction
because the harm occurred there, not in Texas. The passive nature of their site offers no help in their defense,
because the tort principal that jurisdiction lies where harm occurs will govern.
US Suit - Living Authors - a likely loss for Conquest. Their only hope here is fair use. The nature of the material
they took is commercial books, which doesn't help them. Their use is for profit, which also doesn't help them. The
amount and substantiality of the work they took may help them, if what they took was a small and insubstantial
amount of the material in each book. Lastly, the impact on the market may be significant. Based on this analysis,
the outlook for Conquest is not great for success on the fair use argument - but not an absolute easy win for either
side.
US Suit - Dead Authors - the outcome depends on whether the work is in the public domain. If it is, no infringement.
If not, possible infringement, subject to the same fair use analysis.
Arbeit's Liability - Arbeit may have a safe harbor under the DMCA as an Internet Service Provider, provided they had
no prior notice before being sued. If they had prior notice, and took no action to remove the content or suspend the
site while the parties resolved their dispute, then Arbeit may be found contributorily liable.
First thought - are the operating system adn the application package the same for copyright protection?
Probably not - the operating system, which tells the computer how to operate, may contain more functional
elements than the application software. How to find out what is or is not patentable about these two software
systems? In the 9th circuit we use the Altai system for filtration. Begin by filtering out all abstract aspects
of the program, then look at public domain material. Then look at elements dictated by efficiency or the
marketplace. What's left may be copyrightable expression. Then look to see if it is original and expressive in
nature.
The Authority plans to secure worldwide rights, both online and in the real world, to the name "Planetary".
When considering international copyright protection for software, remember that the "sweat of the brow" concept
is not accepted in the entire world. The software will have to be registered in each nation where you seek
protection.
To secure its place in the market, The Authority plans to offer major, well known software developers such as
Adobe and Symantec generous cash incentives if they will only write software to run on the Planetary system,
and cease writing software for Windows, Apple, or Linux. After driving competition out of the
marketplace, their inside office memos reflect that they plan to drive the price of the Planetary
system very high, based on the fact that they will then be the only such system on the marketplace.
Antitrust violation possibility - their conduct appears to be anti-competitive.
This goes to the trademark system in the US and the rest of the world. Protection in the US means going through
our TM system as follows:
a. Choose your TM categories, then search for any conflicting names;
b. Prepare and file your application, including affidavit of use in interstate commerce, drawing page, and satisfy
the deposit requirement;
c. Submit your application; wait for office actions, if none, the mark will be registered on the Principal Register -
good for 10 years, file affidavit of continued use and request certificate of uncontestability between 5th and 6th
years.
As far as the rest of the world, you should look to the CTM or Madrid Protocol system for registration in EU, and
separate countries' registration for the rest of the world.
As far as online, they could approach ICANN for domain name registration worldwide. Disputes could then be handled
by UDRP via WIPO.