Presentation at ITECHLAW 2012 Conference by Erik M. Pelton: Recent developments in internet law affecting:
Copyrights, Trademarks, Social Media Accounts, Keywords, and Legislation.
2. ®
Online Advertising Issues in the United States
Recent developments in internet law affecting:
• Copyrights
• Trademarks
• Social Media Accounts
• Keywords
• Legislation
3. ®
Copyright
Viacom International, Inc. v YouTube, Inc.,
10-3270-cv, 2012 WL 1130851 (2d Cir. April 5, 2012)
• Litigation revived: Viacom won appeal which overturned District
Court finding that YouTube was protected under DMCA
• Issues are somewhat moot: case began 5 yrs ago; copyright owners
now have access to “Content ID” system
• Opens some potential holes in DMCA §512(c) safe harbors, which
court says would protect YouTube from both direct and secondary
infringement
• YouTube satisfied most of the 512(c) elements, but if found to have
failed on one, the defense fails
4. ®
Copyright continued
Pinterest
• Fast growing social media network
• Already number 3, after Facebook and Twitter?
• Dealing with complaints from copyright owners that the site/service makes it
too simple for users to misuse or share copyrighted works
– Quickly created a tool to allow a site to block users from sharing on
Pinterest
– Quickly updated the “Terms of Use” and policies
5. ®
Trademarks
As the types of media grow…
so too do the ways in which trademarks are affected
• Social media user names
• Mobile application names
» see Justin Bieber v. Joustin’ Beaver (RC3, Inc.)
Domain names
• 2011: .XXX
• 2012: “.brand” and “brand.TLD”
• How will brand owners enforce their trademarks?
6. ®
Social Media Accounts
• Who owns an account when an employee leaves?
– Social media network? Employer? Employee?
– Employment law?
– Terms of Use?
– Many potential causes of action
• PhoneDog v. Kravitz, No. C 11-03474 MEJ (N.D. Cal.)
– Former employer sued employee for keeping Twitter account
after the employee left
– Claims that survived Defendant’s motions to dismiss:
• intentional interference with prospective economic advantage
• negligent interference with prospective economic advantage
• conversion
• misappropriation of trade secrets
7. ®
Keyword Advertising
Rosetta Stone Ltd. v. Google, Inc., No. 10-2007 (4th Cir. April 9, 2012)
– Appeals court overturned denial of Rosetta Stone’s claims of direct trademark
infringement, contributory infringement, and dilution
– Remanded to district court for further proceedings regarding these claims
– Likely to create a new wave of actions against Google
– Though many experts still believe it is very unlikely that
Google will be found liable for trademark infringement
– Key question in keyword cases: is it a “use in commerce”?
Network Automation, Inc. v. Advanced System Concepts, Inc.,
2011 WL 815806 (9th Cir. March 8, 2011)
– Network Automation sought Declaratory Judgment of non-infringement
– Defendant counterclaimed and rec’d injunction preventing purchase of keyword
advertising for “Active Batch”
– Court said that buying keywords is a trademark “use in commerce”
– Ninth Circuit reversed preliminary injunction and remanded to District Court, noting
that keyword purchase was not inherently a trademark infringement
8. ®
Legislative Issues
After SOPA & PIPA (PROTECT IP ACT), what is next?
Congress was truly surprised by the attention and resistance
received
Congress likely to re-visit issue: helping brand and website owners
combat infringements and counterfeits in a quicker, cheaper
manner than litigation
New bill: CISPA
However, election year in US
