BUS LAW 1 CH. 8 & CH. 9 Notes
BUS LAW 1 CH. 8 & CH. 9 Notes 2030-H1522
Oakland Community College
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This 8 page Class Notes was uploaded by Emily Strzelecki on Sunday October 9, 2016. The Class Notes belongs to 2030-H1522 at Oakland Community College taught by TBA in Fall 2016. Since its upload, it has received 24 views. For similar materials see Business Law 1 in Business at Oakland Community College.
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Date Created: 10/09/16
Wednesday, October 5, 2016 Business Law 1 Notes From previous sections Last week we covered strict liability, and product liability and the different scenarios. There are specific scenarios such as negligence and assumption of risk. CASES IMPORTANT Chapter 8: Intellectual Property Rights Intellectual Property (IP) is becoming more important because of the more significant value of IP to many corporations, which in some cases may exceed the value of physical, tangible assets. Founders pf America understood the value of IP Article 1 sec. 8 authorizes Congress to secure for limited time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Trademark: is a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the good it produces so that it can be identified on the market and the origins are known. o Distinguish product/services from goods and other manufacturers and merchants. Statutory Protection of Trademarks: o Lanhman Trademark Act (1946): creates incentives for companies to invest; prevents unjust enrichment of companies who infringe. o Trademark Dilution: o Lanhman Act amended with Federal Trademark Dilution Act (1995). o Creates federal cause of action even when unlikely to confuse consumers. o Protects “distinctive” or “famous” marks such as McDonalds, Dell, and Apple. o Similar marks may constitute trademark dilution. o A famous mark can be diluted by an identical mark and similar mark. o Similar mark can dilute, especially when the marks provide related goods or compete in the same market. Wednesday, October 5, 2016 Trademark Registration: o Register with the U.S. Patent Trademark Office if: o Mark is currently in commerce; or o Applicant intends to put it into commerce within 6 months o Registration allows used of ® symbol. Trademark Infringement: o Registration with USPTO give national notice. o Whenever mark is substantially copied (intentionally or unintentionally), the owner has action for infringement. Remedies: o Injunction against further infringement o Damages, plus profits wrongfully received from unauthorized use. o Destruction of goods. Strong “Suggestive” Marks: Suggest something about the product nature, or quality o (i.e. Dairy Queen, Blue-Ray etc..), Descriptive, geographical terms are usually not protected, unless there is a secondary meaning. o (i.e. “London Fog” coat). Generic Terms: usually receive no protection o (i.e. aspirin, bicycle, etc.). Trade Dress: The image and overall appearance of the product or service o (i.e. distinctive packaging or shop décor). Same protection as trademark Issue is consumer confusion. Trade Names: Trademarks apply to products. o (i.e. Pepsi-Cola®). Applies to companies and are protected under federal law as well. Licensing: Allows use of trademark. Exclusive Federal Grant from USPTO to make, use, and sell and invention for 20 years and design for 14 years. Must be “novel, useful, and not currently obvious” in the light of current technology. First person to invent, not file, gets protection. What is Patentable? o Anything EXCEPT: Laws of Nature Natural Phenomenon Abstract Ideas. Wednesday, October 5, 2016 Patents on Software: Foreign Firms can apply for and obtain U.S. Patent protection on software made in international companies. Under U.S. Law no patent infringement occurs when a patented product is made and sold in another country. Remedies: o Patent holder can seek an injunction, monetary damages, and perhaps attorney fees and costs. Intangible property right is granted by federal statute to creator of literary or artistic production of a specified type. o Works created after 1978 have automatic protection for life of the author, plus 70 years. o For publishing houses, copyright expires 95 years from publication, or 120 years from creation, whichever comes first. Protected Expressions: Work must be “fixed in a durable medium.” Protection is automatic, registration is not required. Must fall into one of the following categories: o Literary Works o Musical Works o Dramatic Works and Accompanying Music o Pantomimes and Choreographic Works o Pictorial, Graphic, and sculptural Works o Motion Pictures and other Audiovisual Works (Including Multimedia) o Sound Recordings o Architectural Works Section 102 Exclusions: o Only the expression of an idea can be copyrighted not the idea itself o Thus, anyone can use the underlying ideas in a copyrighted work. Compilations of Facts are copyrightable, but the compilation must be “original”. Copyright Infringement: whenever unauthorized copying occurs. o Remedies: Actual damages to criminal prosecution. “Fair Use” Exception o No infringement if reproduced material is used for criticism. comment, news, teaching, research. Computer Software Copyright Act (1980): Classifies computer software as a “literary work”. Wednesday, October 5, 2016 Courts generally do not apply copyright protection to the “look and feel” of a computer program. Trade Secrets: Business Processes or information that cannot or should not be patented, copyrighted, or trademarked. Can include: o Customer Lists o Plans o Research o Formulae o Pricing Information o Marketing Techniques o Protection extends to ideas and expression State and Federal Law on Trade Secrets o Uniform Trade Secret Act and Economic Espionage Act (1996). o Michigan Uniform Trade Secret Act (MUTSA) Trade Secrets in Cyberspace o Berne Convention (WIPO) Every country who signed must recognize the author’s copyright. No notice required. More safeguards against infringement on the web o WIPO Copyright Treaty with USA in 1996 TRIPS Agreement of 1994 o Created the World Trade Organization o Each member country must include in its domestic laws broad IP protection and enforcement measures. Madrid Protocol o Signed by 61 countries, including US in 2003 o Allows a single country to apply for simultaneous trademark protection in all member countries. Counterfeit Goods Importation of goods that bear a fake (counterfeit) trademark damages U.S. businesses and may present serious health risks (nutritional supplements and drugs). Stop Counterfeit Manufactured Goods Act (2006) established penalties up to $2M or 10 years in prison. Anti-Counterfeiting Trade Agreement (2011) ACTA signed by USA in 2011 o Facilitate law enforcement cooperation o Border searches. Wednesday, October 5, 2016 Business Law 1 Notes From previous sections - Last week we covered strict liability, and product liability and the different scenarios. There are specific scenarios such as negligence and assumption of risk. CASES IMPORTANT Chapter 9: Internet Law, Social Media, and Privacy Spam: Unsolicited “junk” emails with ads, solicitations, and other messages. State Regulation of Spam o 36 states have legislation requiring an “opt-out” of further email ads. Federal CAN-SPAM Act: o US Safe Web Act o Allows FTC to share information with foreign agencies investigating and prosecution cyber-crimes. o Provides ISP’s with immunity from liability for supplying subscriber information to FTC. Domain Names: An internet address consisting of: o A “top level domain” to the right of the dot .com .org .edu o A “second level domain” to the left of the “.” chosen entity creating the domain name. www.centage.com Distribution System: o Internet Corporation for Assigned Names and Numbers (ICANN) overseas distribution of top-level domain names. Overhauled its system to attempt to stop cybersquatting. Cybersquatting: o Anti-Cybersquatting Consumer Protection Act (1999) amended the Lanham Act. Typocybersquatting: Applicability and Sanctions of ACPA. Meta Tags o The Tabari’s and the Lexus Trademark Dilution in the Online World o Does not require proof consumers would be confused. Wednesday, October 5, 2016 o Hasbro, Inc. v. Internet Entertainment Group, LTD (1996). o Based on the Copyright Act of 1976 Infringement may occur when a song (or any part of it) is copied or downloaded into a computer. Digital Millennium Copyright Act o Provides criminal penalties to circumvent encryption software EX: DVDs o Limits ISP liability for subscriber acts o “Fair Use” Exception for libraries, universities, and others. MP3 and File Sharing Technology: Methods of File Sharing o Peer to Peer (P2P) networking. o Shared stored music files EX: Napster, Kazaa, Gnutella and vicarious liability. o Cloud Computing o DVDs an File Sharing The US Supreme Court has held that companies are vicariously liable when they distribute file-sharing software intending that it be used to violate copyright laws. “TorrentSpy” owners order to pay $111 Million Legal Issues: Does infringement occur if a Facebook user posts copyrighted material? Is there a “Fair Use” exception? What if the material is only for comment or discussion, not profit? Discovery in litigation almost always includes social media content. o Criminal investigations o Administrative Agencies Employer Social Media Policies o If an employee violates company policy on social media (during work), the employee may be disciplined. Electronic Communications Privacy Act o Prohibits interception of any wire, oral, or electronic communication o Also prohibits the intentional disclosure of said information. o Exclusions: What employer authorizes in the “ordinary course” of its business. Wednesday, October 5, 2016 Stored Communications: prohibited, provides both criminal and civil penalties. Protection of Social Media Passwords: o 2013: Four states have passed laws to protect users from disclosing passwords (including virtually any online storage – iTunes, iCloud etc.) Company-Wide Social Media Networks: o Often referred to as an ‘intranet’ these are online places for employees to discuss company services and products o Intranets afford protection of Trade Secrets. Cyber torts arise on the internet Identifying the Author of Online Defamation o Threshold barrier to suing an internet service provider (ISP) o Suits are not brought by “John Does” until discovery is completed. Liability of ISPs: o Communication Decency Act provides broad protection for ISPs but there are limits to immunity o General Rule: ISPs treated differently than publishers in defamation suits. o Exceptions: Roommate.com was ordered to pay $500,000 for invasive questions that prompted ‘discriminatory’ preferences. o Major social media and internet sites have been accused of violating users’ privacy rights. o To prevail in an invasion of privacy lawsuit, the plaintiff must have had a reasonable expectation of privacy. Does the plaintiff have a reasonable expectation of privacy on Facebook? Distinguish from online banking or credit card sites Data Collection and Cookies: o Does collection information on consumers violate any privacy right? o Should retailers be allowed to “sell” that information to a 3rdParty? o What about “targeted advertising’? Internet Companies’ Privacy Policies FTC investigates consumer’s complaints Wednesday, October 5, 2016 The Consumer Privacy Bill of Rights Individual Control: Consumers have a right to exercise control over what personal data companies collect from them and how they use it. Transparency: Consumers have a right to easily understandable and accessible information about privacy and security practices. Respect for Context: Consumers have a right to expect that companies will collect, use, and disclose personal data in ways that are consistent with the context in which consumers provide the data. Security: Consumers have a right to secure and responsible handling of personal data. Access and Accuracy: Consumers have a right to access and correct personal data in usable formats, in a manner that is appropriate to the sensitivity of the data and the risk of adverse consequences to consumers if the data is inaccurate. Focused Collection: Consumers have a right to reasonable limits on the personal data that companies collect and retain. Accountability: Consumers have a right to have personal data handled by companies with appropriate measures in place to assure they adhere to the Consumer Privacy Bill of Rights.
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