Singularity Law » trademark

And Now … Admiralty Law?!?

Professor Scott — Sat, 18 Jul 2009 18:27:00 +0000

When I began practicing in the field of computer law (a quaint term today), a good computer lawyer had to know contract law, and some tax law — and that was pretty much all. Patents were available for hardware, but not software; the Copyright Office still had its doubts about the copyrightability of computer programs; and privacy issues were pretty much limited to federally-owned computer systems under the Privacy Act of 1974.

The first ten years of my practice saw a need to learn copyright law, while the second ten years required a working knowledge of patent and trademark law, and some privacy law, with a little international trade law thrown in for good measure (including U.S. export control laws and regulations). It was also the time when state and federal legislators were beginning to craft a specialized field of computer crime laws.

By the late 1980s there was a convergence of sorts between the computer and entertainment industries, primarily through videogames and CD-ROM titles. As a result, computer lawyers needed to learn about how the entertainment industry worked – again, primarily in the contracting area — but also with regard to trademarks, Hollywood guilds and unions (e.g., SAG, DGA) and right of publicity issues. It also required computer lawyers to learn a lot more about copyright and contract law in areas that had previously been limited to entertainment lawyers.

Since the 1990s we have seen the subject matter of computer law expand rapidly. We have had to learn telecommunications law, expand our knowledge of trademark law to deal with domain name issues, cope with the ever-expanding body of federal and state laws that deal with the financial laws and regulations underpinning e-commerce, privacy issues, cybercrimes, and a host of other fields that computer lawyers (now called IT lawyers) never thought they would need to deal with.

Now, cloud computing may require us to learn another body of law – admiralty law. Google has recently filed patent applications for ocean-going data centers that would be housed on large merchant ships and could be moored off-shore or sail blissfully in international waters – avoiding the problems arising from pesky local or national laws. These ships would generate their own power, provide their own cooling, have Internet connectivity (presumably from satellites or undersea cables) and generally be subject to no country’s laws. But underlying this concept is still the fact that we are dealing with ships. And ships are subject to both national and international laws – namely admiralty laws.

Dang. Just when I thought I was done learning new laws, I now find myself having to delve into the esoteric area of admiralty law. Ships containing data centers are no different than, and are subject to the same laws as, any other ship. Thus, they are subject to such things as piracy, salvage and seizure (arrest). Yet their cargoes may be infinitely more valuable than any previous ship that has ever plied international waters – the data of thousands or tens of thousands of corporations, millions of individuals, and numerous governments from around the world. How much would that cargo be worth if it fell into the hands of Somali pirates? And what if the assets of even one customer (or the ship owner itself) were subject to a seizure (arrest) order, and the entire ship was seized and the computers taken off the grid?

Far fetched? It was only a couple of months ago that the FBI, looking for assets of a company that had allegedly defraud the local telephone company, raided and seized all of the servers in several Dallas-based data centers – putting all of the data centers’ customers, not just the target of the seizure, out of business. Now multiply that by thousands of customers whose access to their data could be lost if the ship on which their servers and data are housed is arrested under existing admiralty law.

So to all of you IT lawyers representing clients that have or will be entering into cloud computing “solutions” to their data processing needs – start boning up on your admiralty law. It looks like you’re going to need it.

The Singularity Law Podcast Episode 8: Virus

Professor Scott — Mon, 08 Dec 2008 03:12:12 +0000

“Video game law” emerges as a specialty. Facebook and eBay test the limits of Section 230. Forum selection clauses become more important in Internet legal documents. Myspace tries to turn piracy into profit with a new technology. A man claims that an emoticon turned him into a pedophile against his will. Hear Professor Michael Scott and Attorney Josh Kagan tackle these issues and more on this episode of The Singularity Law Podcast!

Click the play button below to listen, or click here to subscribe to us on iTunes!

Here are the show notes for this week’s episode:

Shownotes for The Singularity Law Podcast: Episode 8 for December 8, 2008

Our Panel for Today:

Prof. Michael Scott of The Singularity Law Blog
Josh Kagan of The Josh Kagan Blog

Video Game Law as a Hot New Practice Area: Hype or Reality?

Wall Street Journal: Video-Game Law: The Niche Legal Practice Du Jour
LA Times: These Lawyers Got (Video) Game
Michael Scott’s blog: Videogame Law: New Legal Specialty or Marketing Hype?

The Limits of Section 230 Immunity, Part 1: Malware

47 U.S.C. §230
Venkat Balasubramani’s SPAM NOTES blog: Could Facebook Be Liable for Spreading the Koobface Virus?
Green v. AOL

The Limits of Section 230 Immunity, Part 2: Trademarks

Practice Pointer: The Continued Importance of Forum Selection Clauses

“Internet Cases” blog: Court enforces forum selection clause in web hosting agreement
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)

Turning Piracy Into Profit: The Myspace Experiment and Other DMCA Issues

Reuters: MySpace, MTV Test Piracy-Profit Plan
Michael Scott’s blog: Priming the Pump – Copyright Style

Final Thoughts: Entrapment by Emoticon

Wall Street Journal: Emoticons on Trial at the Nebraska Supreme Court

This recording is an informational resource only. It is not designed to offer legal advice.

The Singularity Law Podcast Episode 4: The Elephant in the Room

Professor Scott — Mon, 20 Oct 2008 03:48:32 +0000

Will DRM be the final nail in the coffin of PC gaming? How anonymous can the Internet be? Why won’t YouTube grant a full legal review of all DMCA takedown requests on election campaign videos? Will trademark owners be forced to monitor domain name registrations? Can libraries go digital? Can a record label infringe its own copyright? Michael and Josh tackle these questions and more on this week’s edition of The Singularity Law Podcast.

Click the play button below to listen, or click here to subscribe to us on iTunes!

Here are the show notes for this week’s episode:

Shownotes for The Singularity Law Podcast: Episode 4 for October 19, 2008

Our Panel for Today:

Josh Kagan, author of The Josh Kagan Blog
Prof. Michael Scott of The Singularity Law Blog

DRM and Activation in Video Games

EA’s CEO speaks to Gamasutra about DRM.
Ars Technica: EA’s DRM, arrogance may cause gamers to skip good titles

Anonymity on the Internet

Google and YouTube refuse to grant special DMCA treatment to McCain Campaign Videos

Cybersquatters: The Hidden Trademark Danger

Trademark Owners Must Pursue Cybersquatters or Potentially Lose Their Trademark Rights
Southern Grouts & Mortars, Inc. v. 3M Co., 2008 WL 4346798 (S.D. Fla. Sept. 17, 2008)
Southern Grouts and Mortars v. 3M Co., Second Amended Complaint

The Elephant is in the Library: Digital Libraries Online

Universities launch elephantine digital library

Final Thoughts: Can a record label infringe its own copyright? One hosting provider thinks so.

Record Label ‘Infringes’ Own Copyright, Site Pulled

Consistency Needed

Professor Scott — Wed, 15 Nov 2006 22:24:36 +0000

Ralph Waldo Emerson is quoted as saying: “A foolish consistency is the hobgoblin of little minds.” Ralph Waldo Emerson, “Self Reliance,” reprinted in Self-Reliance and Other Essays (Dover Thrift Eds. 1993). Consistency, whether foolish or not, is something that business people rely upon in making long-term decisions. Unfortunately, consistency has not been the order of the day on many issues of cyber law.

Of course, this is nothing new. When the computer law field was just getting started, the courts were all over the place on many significant issues – such as where to draw the line between protectable expression and unprotectable ideas under copyright law. Such cases as Whelan v. Jaslow [Whelan Assoc. v. Jaslow Dental Lab, Inc., 797 F.2d 1222, 230 U.S.P.Q. (BNA) 481 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987)] and the lower court decision in Lotus v. Borland [Lotus Development Corp. v. Borland Int’l, Inc., 831 F. Supp. 202, 30 U.S.P.Q.2d (BNA) 1081 (D. Mass. 1993), rev’d, 49 F.3d 807, 34 U.S.P.Q.2d (BNA) 1014 (1st Cir. 1995), aff’d by equally divided court, 516 U.S. 233 (1996)] created significant uncertainties as to what aspects of computer software could be protected by copyright. Those decisions caused much consternation in the software development field, particularity for those who were developing competitive software for popular applications. While the courts finally sorted out the issues, a number of promising start-ups were unable to get funding and some established software developers shied away from developing compatible applications due to the fear of litigation.

There are many examples of different courts providing different decisions in the cyber law field. For example, the courts are split on whether a search engine’s sale of trademarked terms as keywords is a “use in commerce,” and therefore a trademark infringement, or not. While not important for most of us, it can be a key issue in whether a new search engine company gets funding, or whether investors buy or sell Google stock.

Consistency and predictability are critical issues in the growth of the Internet and electronic commerce. The conflicting results in court may make for interesting discussions in newsletter and online forums, but do not provide the certainty that companies need to move forward.