On December 4, 2012, I delivered an "Intellectual Property in Plain English" seminar to over 60 members of Vancouver Business Network.
Those who attended the seminar walked away with:
– 5 big ideas about intellectual property and the law in general that will answer 80% of all questions about IP;
– 5 reasons to register trademarks;
– 7 one-word shortcuts to instantly identify different types of intellectual property.
Below, you can watch highlights and testimonials from the seminar.
If you would like to see the whole seminar, please sign up in the form below.
Today, I saw an avalanche of my Facebook friends posting the following statement in their timeline:
In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, postings, writings, comments, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!
(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).
Facebook is now an open capital entity. All FB members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...
As an intellectual property lawyer and someone who is known for saying that if you require complete privacy, you shouldn’t post anything on the internet, I just couldn’t pass up this opportunity to comment why the quoted statement makes very little sense.
First of all, users’ relationships with Facebook are governed by a contract, namely their Statement of Rights and Responsibilities, which clearly state:
By using or accessing Facebook, you agree to this Statement, as updated from time to time…
Essentially, publicly traded or not, our relationship with Facebook is the same as in the case of any other continuing framework agreement – it’s contractual, like any other.
Think, for example, of a library. When we get a library card, we agree to stick to certain rules that govern our use of the books and the premises. Until we actually go to the library and borrow a book, we care very little about our mutual rights and responsibilities (unless there’s an annual fee payable for the privilege of continuing to hold the library card). Once we walk out of the library holding a book, however, we have suddenly assumed many responsibilities: to take good care of the book, to return it on time, to pay a fine if we don’t.
Similarly, just because we signed up to Facebook, very little has changed in our lives until we actually started posting stuff – comments, status updates, photographs, etc.
Like any other contract, it can only be changed unilaterally if both parties agreed to such a possibility. Section 14 of the Statement of Rights and Responsibilities states that Facebook can change the rules at any time, by giving users notice and, in some cases, an opportunity to comment on the changes – and users agree to it by continuing to use Facebook:
Your continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms.
Not surprisingly, no such possibility exists for unilateral changes initiated by users.
What this means is that if a user does not like the rules, the user has two options:
1. negotiate a direct deal with Facebook pursuant to which the user (or everyone else as well) will be accorded other terms;
2. stop using Facebook or even close down the account.
That’s pretty much it.
Posting a statement that is inconsistent with Facebook’s Statement of Rights and Obligations is akin to borrowing a book from a library and then sending a library a napkin with a note on it stating that you will return the book in a couple of years, maybe. Wouldn’t be very helpful, would it?
Second, you own copyright in your works automatically, you don’t need to declare anything to place your works under protection of copyright laws, that is as long as your works CAN be protected by copyright at all. In other words, if you created something that is an original literary, dramatic, musical or artistic work, that work is automatically protected in Canada and – through a number of international treaties – virtually worldwide. On the other hand, if what you are trying to protect is not a work capable of copyright protection, then no declaration will render the work copyrightable. So stating that you “declare that your copyright is attached to all” of that stuff listed in the declaration is absolutely meaningless, because the declaration does not give or take away any rights to and from you.
Third, Facebook cannot legally exist unless users allow it to use what users post. It’s not that users post their comments in a vacuum. All of these comments go to Facebook’s servers. Facebook stores these comments and displays them according to the users’ privacy settings. Unless Facebook secures permission to store user content on its servers, Facebook would be violating its users’ intellectual property. The nature of any license is precisely that – to make what would have otherwise been an infringement allowable to the licensee.
Section 2(1) of Facebook Statement of Rights and Responsibilities states:
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
With one small exception, this is perfectly reasonable. Facebook cannot expose itself to a hundreds of thousands of copyright infringement lawsuits per minute: according to these statistics, 684,478 pieces of content are shared on Facebook every minute.
The small exception is that the license that you grant to Facebook says that it is “sub-licensable” but it does not say that it can only be sublicensed for non-commercial purposes. Technically, this could mean that Facebook could publish a book of best photographs and comments. There are a few safeguards, however. On the one hand, the license automatically terminates when a user deletes the post (unless someone else has reposted and not deleted the post). On the other hand, it’s hard to imagine that Facebook is run by suicidal people. How many people are going to continue posting about their private lives if Facebook does anything even closely resembling publishing such book?
Fourth, when you share your information with anybody but yourself, there is always a risk that someone else will make that public. We all have heard the horror stories about someone accidentally hitting REPLY ALL instead of just REPLY. We’ve all heard stories about someone forwarding too much of a confidential correspondence to the wrong person. Even if you tell Facebook to disallow others to “share” your content, there is always such thing as “copy-paste”.
The answer is very simple, if you want your stuff to remain private, don’t post it on the web, ever – not through Facebook, not via Twitter, not on your blog, not on your website, not in YouTube comments, not through a game server of a new cool app – EVER!
There is always a balancing act between privacy and convenience. Think about your desktop computer. You may use a single password on all of your platforms, save all the cookies and have no passwords wherever possible. This will save a lot of time but your system will be a hacker’s dream.
On the other hand, you can install firewalls, unique 30-character passwords for every website, social media and email account, disconnect from the internet unless you are actively using it, never store any personal information on computers with internet access, etc. This will make things much safer, but much less fun to use.
Facebook is no exception. You can’t expect to be selectively social. You can’t push the toothpaste back in the tube. If you want to be on Facebook, use your brains and don’t post stuff that you wouldn’t want someone 3 years down the road to see. Don’t expect someone else, including Facebook, to fix things for you. Take responsibility for your actions.
Don’t get me wrong. I’m a sucker for conspiracy theories about Google, Facebook, communist implant in the White House and the global caliphate. But I also love the gadgets, the apps, and the web.
Yet, I know that everything I post will leave a trace, however weak that trace may be. So I approach the web accordingly, knowing full well that if I want a guarantee that something does not become public, I just keep it to myself. And if I post something, I am prepared to face the consequences.
Like anything about law, it’s all about risk management.
I will be delivering an information-packed presentation on intellectual property at the VBN (Vancouver Business Network) meetup on December 4, 2012.
You will walk away with at least:
– 5 big ideas about intellectual property and the law in general that will answer 80% of your questions about IP;
– 5 reasons to register your trademarks;
– 7 one-word shortcuts that will allow you to instantly identify different types of intellectual property.
You will never be intimidated by IP and IP lawyers again!
Please RSVP for the event at MEETUP.COM.
This is an event you and your business can’t afford to miss.
This is to let you know that you can now view Canadian Copyright, Trademarks and Patent Regulations on our website:
Industrial Designs Regulations
Patent Designs Regulations
And so, round one of Apple v. Samsung court saga is over.
A jury of nine Americans have unanimously handed Apple a victory in the form of a verdict for $1,049,343,540.00 in damages. Imagine a cheque for this amount: “One Billion Forty Nine Million Three Hundred Forty Three Thousand Five Hundred Forty Dollars and 00 Cents.”
Kyle Vanhemert has a great day-by-day rendition of the trial.
Wall Street Journal has an equally great chart showing the mutual patent and design patent claims of Apple and Samsung, and the jury’s decision as to each of these claims with respect to each of the allegedly infringing phone models.
Apple spokeswoman Katie Cotton in a statement to the New York Times said:
“We are grateful to the jury for their service and for investing the time to listen to our story and we were thrilled to be able to finally tell it. The mountain of evidence presented during the trail showed that Samsung’s copying went far deeper than even we knew. The lawsuits between Apple and Samsung were about much more than patents or money. They were about values. At Apple, we value originality and innovation and pour our lives into making the best products on earth. We make these products to delight our customers, not for our competitors to flagrantly copy. We applaud the court for finding Samsung’s behavior willful and for sending a loud and clear message that stealing isn’t right.”
Samsung Electronics issued the following statement:
“Today’s verdict should not be viewed as a win for Apple, but as a loss for the American consumer. It will lead to fewer choices, less innovation, and potentially higher prices. It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies. Consumers have the right to choices, and they know what they are buying when they purchase Samsung products. This is not the final word in this case or in battles being waged in courts and tribunals around the world, some of which have already rejected many of Apple’s claims. Samsung will continue to innovate and offer choices for the consumer.”
Google, the force behind Android OS, released the following statement:
“The court of appeals will review both infringement and the validity of the patent claims. Most of these don’t relate to the core Android operating system, and several are being re-examined by the US Patent Office. The mobile industry is moving fast and all players – including newcomers – are building upon ideas that have been around for decades. We work with our partners to give consumers innovative and affordable products, and we don’t want anything to limit that.”
A great comment came from Al Sabawi, a former IBM executive, who wrote:
“To all the lazy copycats out there who think cutting and pasting is an intellectual achievement, that hard work, sweat and tears don’t matter, that ideas, designs, and innovations can be stolen willy-nilly with no consequences: This is to you.”
It comes as no surprise that Samsung will now appeal the decision, and this is the decision of the appelate courts that would be of extreme interest to everybody – IP lawyers, innovators, copy-cats and consumers alike.
For now, I would like to share a couple of observations and comments about this case.
First of all, despite all today’s attacks against intellectual property and the forced “let’s all share” mentality, we have a unanimous decision of 9 non-lawyers who confirmed that patents as tools for protecting innovation are still worth something. In this case, they were worth a Billion bucks. In my opinion, Apple’s statement was very on point. The verdict is about values, it is about sending the message, as clearly as it gets, that taking something that’s not yours is improper.
Second, I’m baffled (although, not really) to read a great number of comments to the effect that Apple’s patents and the jury’s verdict will kill competition and rip off consumers of legitimate options. By definition, patents are about building a monopoly based on something you managed to invent, which had not existed before. Granted, there are tons of nonsense patents out there and a great number of patent trolls, we all know that. The real issue is that legitimate patents always create a monopoly, and there is absolutely nothing wrong with that monopoly.
Just because iPhones had tremendous success does not mean that the monopoly should be destroyed. This goes back to my argument on copyright laws when I reject that public interest should have a role in copyright protection: we don’t have copyright laws to protect works that no one wants to use, while creating loopholes for unauthorized use of works that are popular with the public. If no one wants to use a work, there is no need to have laws to protect it.
I remember the day when the first iPhone was released and all the usual Apple fans vs. Anti-Apple fan battles raging with renewed force. Essentially, after that day the world was divided into three groups: those who owned or dreamed of owning an iPhone; those who had no money or desire to buy an iPhone but wanted their phone to have an interface resembling the one of an iPhone as closely as possible; and those who for one reason or another disliked anything that Apple might put out on the market, didn’t want their phones to be like an iPhone but wanted them to have similar functionality.
The iPhone became and still is the measure of comparison for all cell phones on the market.
Apple knew the value of the innovation that it brought to the market with the release of the iPhone, and so it spent a lot of money in an attempt to protect this innovation. Its efforts have paid off – first with the massive acceptance by the market, and now when the jury confirmed the validity of its patents.
Is this a loss for consumers? Even if so, it is a loss of illegitimate advantage. To avoid an analogy with theft of tangible goods, imagine a situation when somebody came up with a way to trick PayPal into adding $10 a day to everyone’s balance. If at some point PayPal decided to fix the problem, would that be a loss to those who would stop receiving the undeserved benefits? Of course!
Samsung is a serious competitor with a pile of patents of its own. They certainly know how to innovate. Otherwise, it would be difficult for Samsung to win a record almost 20% market share for all LCD TVs sold worldwide. Don’t tell me they can’t come up with technologies that wouldn’t infringe on other company’s patents. At least, don’t tell me they can’t properly license such technologies from those who invented them first.
This is what competition in the XXI century is all about. It’s not about who can manufacture the best and cheapest version of a gadget, it’s about who can come up with a gadget that will redefine the way people live their lives.
Love it or hate it, but this is exactly what Apple did when it released the iPhone and the iPad.
And Apple didn’t precisely intend to prevent Samsung from selling competing phones. Apple actually offered Samsung to license its patents at $30 per smartphone and $40 per tablet.
Finally, and I’ve commented on this issue already, in my opinion, the litigation between the giants (especially, after it will have gone through all available appeals) gives us all a great benefit of having a better understanding of the limits of the modern patent system. Very few patent owners can afford to go out and start a full-blown patent litigation war. So we have been left with a plurality of lawyers’ opinions as to what should be considered obvious, what should be considered novel, and what is the proper subject-matter for a tech patent.
We will soon find out.
PS. Full disclosure: I don’t have an iPhone because it’s too heavy and too big for my taste. However, I’m slowly getting fed up with my current phone and will be investigating my options soon.
Would I, as a consumer, benefit from someone making a 3” version of an iPhone? Absolutely! Do I have a right to expect Apple to allow others to manufacture versions of Apple’s patented products simply because Apple does not see a big enough market for 3” iPhones? Absolutely not!
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