Accepting Guest Blog Posts

I have accepted a position that will not allow me to write in 2016. However, I want to continue to provide information on cyber, intellectual property (IP), social media, security, privacy, and technology law and policy to you all.  So…. I am accepting  submissions from guest bloggers!

Please send me your best cyber, IP and tech law and policy posts. Many of this blog’s followers are entrepreneurs, technophiles, tech novices, bloggers, social media user and those intrigued by tech, so please cater your posts to that audience. Please send posts to thedigitalcounselor@gmail.com. I will notify you if your post is selected.

Thank you for your submission, in advance, and more importantly, THANK YOU FOR READING!

I hope the readers find previous posts and any information others are able to provide in my absence helpful! And I look forward to returning in 2017!!

Should You Trademark Your Website?

It is extremely important for companies to protect their intellectual property. Developing a comprehensive intellectual property plan is essential to protecting your investment and protecting your consumers from confusion.  Trademarking your brand names, slogans and company name as well as copyrighting blog content, original imagery, and other original works of authorship are commonly know areas of focus for companies and entrepreneurs.  You want to be in control of your brand, your content and your creations.

Now, according to one federal court, companies can use trademark law to protect the unique look and feel of their websites from imitators. As a result of this ruling, companies should consider registering their websites as trademarks with the U.S. Patent and Trademark Office (the “USPTO”).

The U.S. District Court for the Northern District of California recently ruled in Ingrid & Isabel, Inc. v. Baby Be Mine, LLC, No. 13-01806 (N.D. Cal. Oct. 1, 2014) that the look and feel of a website used to market and sell products and services can constitute protectable trade dress under Section 43 of the Lanham Act. See 15 U.S.C. § 1125(a) (2012). Trade dress, a derivative of trademark law, protects the total image of a business or product, including the arrangement of identifying features such as graphics, packaging, designs, shapes, colors, textures, and décor.

This is an important development for companies seeking to protect their brand online. Your website is an important part of your brand as a company. It is often a customer’s first impression and point of sale.  Previous case-law suggested that a website could constitute protectable trade dress only if the website itself was the product. See Conference Archives, Inc. v. Sound Images, Inc., No. 06-00076, 2010 WL 1626072 (W.D. Pa. Mar. 31, 2010) The Ingrid & Isabel case provides an opportunity to expand those protections. This decision is reminiscent of the USPTO allowing Apple, Inc. to register a trademark for the design and layout of its unique retail stores. Your website is in effect your online store. This is a great example of the law starting to catch up with the times. Companies seeking to take advantage of this protection must make sure their website is 1)distinctive or has acquired secondary meaning and is 2) nonfunctional.RegisteredTM

  1. The court noted that the “Supreme Court has held that ‘design, like color is not inherently distinctive’ [citing a case involving Wal-Mart.]  Given the conceptual similarity between ‘look and feel’ and ‘design,’ Wal-Mart suggests that Plaintiff must show that its website‘s ‘look and feel’ is distinctive through its secondary meaning.” This eludes to the fact that the design of a website is not “inherently” distinct. You want to secure these protections before someone seeks to copy your website. However, per previous case-law  “secondary meaning may be inferred from evidence of deliberate copying of the trade dress…” Therefore, if you can show that your competitor deliberately copied your website, that will help to support your claim for acquired distinctiveness.
  2. Functional elements cannot be protected as trade dress. However, according to the court in Ingrid & Isabel “the placement and arrangement of functional elements can produce a non-functional aesthetic whole.”

This is also an important decision from a cybersecurity perspective. Most consumers are lured into phishing and other fraud scams when malicious actors mimic the look and feel of a brand’s website. Armed with a similar site they can lure unsuspecting consumers to insert personally identifiable information and financial data into their fake site. This can result in identity theft and financial loss. This is another tool in a trademark owner or company’s arsenal to combat fraud and protect their customers.

If your website is distinct, talk to an attorney about protecting it. This is an important consideration and should be part of developing a comprehensive intellectual property plan.

Trade dress protection has existed for decades, but its usefulness for websites and other Internet-based applications has been limited. It will be interesting to see how courts continue to apply the law to websites, mobile apps, and other non-traditional mediums.

Note that the court didn’t determine the ultimate outcome of this case; that’s still in dispute. This ruling merely allowed Ingrid & Isabel’s claim on this point to proceed to trial.

Quick Tip: Don’t Make False DMCA Claims

Automattic Inc. v. Steiner, 2014 U.S. Dist. LEXIS 182295 (N.D. Cal. Oct. 6, 2014) is the first time a party which received a DMCA takedown notice with material misrepresentations has been awarded money damages.

What is DMCA?

DMCA is the Digital Millennium Copyright Act, limits the liability of the providers of online services for copyright infringement by their users but created a mechanism for those whose copyrighted works have been infringed to file a complaint to have the content removed. If they do not take appropriate action they may find themselves liable.   It is easy to file a DMCA claim and every site providing online services must have a DMCA policy to remove content that infringes the copyrights of individuals. Many sites like Facebook, Twitter, & WordPress even have forms that you can fill out to stream line the process and make sure you’re providing the information required under the law.

What happened in the case?

Automattic, the owner of WordPress.com and a major developer of the WordPress software, and blogger Oliver Hotham, Plaintiffs, sued the Defendant, Straight Pride UK, for using the notice-and-takedown provision of the Digital Millennium Copyright Act (“DMCA”) to stifle criticism. Automattic alleged that the Defendant abused the provision and are seeking damages under 17 U.S.C. § 512(f) for misrepresentation. The Court agreed.

“[T]he Court finds that Defendant knowingly misrepresented that Hotham violated his copyright because Defendant could not have reasonably believed that the Press Release he sent to Hotham was protected under copyright. Moreover, there can be no dispute that Defendant knew, and indeed, specifically intended, that the takedown notice would result in the disabling of Hotham’s article[,]” Magistrate judge Joseph Spero wrote in the opinion.

Although the court awarded damages for the costs of the suit and for “lost work and time” spent responding to a fraudulent takedown notice for copyright infringement. The Northern District denied monetary relief for Plaintiffs’ alleged reputational harm, Hotham’s alleged emotional distress, and Hotham’s alleged chilled speech.

What does that mean?

Do not file DMCA claims lightly and be prepared for a fight. People do not often fight these cases so vigorously but is does happen. Make sure you have a valid claim for copyright infringement. Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, Web sites, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Unauthorized reproductions, derivatives and distribution are illegal unless they fall under the fair use exemption. Have a good understanding of your rights and theirs before filing.

Hotham’s original blog post is now available on several other WordPress-hosted sites, including here and here.  And his account of the tale is here.

Before You Start Crowdfunding, Know the IP Concerns!

http://www.hongkiat.com/blog/crowdfunding-sites/
http://www.hongkiat.com/blog/crowdfunding-sites/

Crowdfunding has become a major financing tool for small businesses from tech start ups to small services companies. This source of funding, made available by The 2012 Jumpstart Our Business Startup Act (JOBS Act) which enables small businesses to raise funds from non-accredited investors.  An accredited investor must meet a personal net worth or income test that excludes the majority of the population. There are still rules about how much each person can invest for equity crowdfunding but Title III truly opens up the ability for the average American to invest.

If you are considering a crowdfunding platform for your new venture, or if you are contemplating investing in a crowd-funded project, attention to intellectual property protection is critical.  Often, companies considering crowdfunding are in the early stages of development and owners may not have the appropriate intellectual property (IP) protections in place yet. Here are a few things to consider about each of the major types of intellectual property:

Trademarks:
Securing federal and/or international trademark protection is an important early step to establishing a company and launching a brand.  This, however, can be hard to do or forgotten prior to using the mark in commerce, the standard set by the USPTO. Therefore, posting a project with a proposed trademarkcould serves as an open invitation for trademark infringers in the U.S. and abroad to file for registration first.  The same is true with respect to domain name registrations.  Additionally, without the proper research you could inadvertently launch a brand with a trademark already in use. This is not only bad PR but could open you up to suit before you’ve even begun.Action Items: Do a thorough search on potential marks and make sure it does not conflict with state, federal or international trademarks. Consider filing an Intent to Use trademark application if you are not at the place to file a trademark application based on use. Consult an attorney to make an informed decision based on a thorough search and knowledge of requirements for proving use such that you can file a trademark based on use.

Copyrights:
Although filing is not required to benefit from copyright protection, it is a prerequisite for a U.S. copyright owner who wishes to file suit for infringement in the U.S. If you are going to post copyrighted works in connection with your project disclosure or business plan, and if those works integral to the success of the project or business make sure you protect them. Additionally, make sure if you use the copyrighted work of others in your proposal you have the proper permissions to avoid copyright infringement.

Action Items: Review your copyrighted work and consider filing for copyright registration if any of the work you will loose is integral to the business.  If you plan to use images, music, or other content from third-party sources in your proposal, be sure to obtain appropriate licensing/permission prior to posting such works publicly.

Patents:
Disclosing the details of an invention before filing a patent application may bar patent protection due to required disclosures or missing the first to file window.  Some crowdfunding sites require projects that involve the manufacture and distribution of “gadgets” to “show as much as they can about how they’re going to make their project, including things like a production plan, an estimated schedule, and any details you can provide for backers.”

Action Items: Preserve your rights, patent applications should be filed as early as possible as required by the America Invents Act, under “first to file”. By filing a patent application prior to disclosing a project, the inventor can preserve patent rights and potentially avoid problems with both the statutory bar and potentially conflicting applications.  While U.S. patent law gives the inventor a year after disclosure in which to file, the same is not true in most of the rest of the world where a prefiling disclosure bars patent protection.  Keep this in mind for projects that will rely on foreign marketing and revenue for their success.

General considerations:

  1. Think about your IP on a local and global scale. Develop a state, federal and international IP development plan. As your brand grows, depending on industry and target market you want to make sure your protections are as robust as possible.
  2. Consult an attorney early and often to help you develop your IP strategy and think through the hurdles associated with crowdfunding.
  3. Investigate services like U.K.-based Creative Barcode. that are designed to provide a provide protection for early stage intellectual property. This is NOT an endorsement of these services but this is an option to consider.

Conclusion
Your intellectual property is one of your biggest assets and the last thing you want to do is damage your IP rights while trying to secure funding through crowdfunding. This is just a high level view of the general issues associated with crowdfunding. Depending on the project, the IP issues could be substantially more complex.

Additionally, potential investors should be worried about these intellectual property issues as well. Potential Investors must conduct a due diligence assessment of any venture they seek to invest in as the success or failure of the idea may hinge, at least in part, on the strength and protection of those IP rights.

My Appearance on Chat with a Lawyer

I recently appeared on a local television show “Chat with a Lawyer.” I sat with the host Wala Blegay to discuss Intellectual Property law and protecting your business.  Please watch and enjoy!

 

 

 

If you are in the DC metro area the episode will continue to air on Channel 25 Verizon and Channel 71 Comcast twice a day starting this week!

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I have a Trademark, Now What?

Congratulations you’ve successfully secured a federally registered trademark for your business, blog, or creation!!!  

Go ahead and celebrate but remember this is not the end of your obligation. In addition to policing or searching for unauthorized use of the brand, you must maintain your trademark rights with the United States Patent & Trademark Office (USPTO). 

Trademarks require regular maintenance to continue to enjoy the use and protection of the mark. As the owner, you must complete and submit certain filings and fees with the USPTO at specified intervals.  Failing to submit these filings and fees will result in cancellation of the trademark by the USPTO. Additionally, there is an extra filing option that can further strengthen your protection. Knowledge of these intervals and timely adherence to the deadlines are a major part of maintaining a strong mark.

Required Maintenance Filings

All trademark maintenance filing deadlines are measured from the date that the mark was officially registered with the USPTO. There are two required filings, the Affidavit of Use and the Renewal Application.

Affidavit of Use – The USPTO requires the owners of registered trademarks to file an Affidavit of Use between five and six years after registration to prove continuous use of the mark in commerce.  After this initial filing, a trademark owner must submit an additional Affidavit of Use before the end of every ten year period.

Renewal Application – Additionally, at the end of every ten year period, a trademark owner must file a Renewal Application.

**Warning: If the Affidavit of Use and Renewal Applications are not filed in a timely manner, the registration will be cancelled.  Registrations that are cancelled because of a failure to file an Affidavit of Use and/or a Renewal Application cannot be revived or reinstated.

Timing: As you can see, the initial maintenance filings must be completed between the fifth and sixth years of registration and subsequent filings are completed once every ten years.

** Warning: All maintenance filings have a six month grace period where the filings may still be completed, but at a higher price.

Cost:  Renewal Applications are $400 per class. The additional fee for filing during the grace period is $100. Filing Affidavits are priced between $100 – $200. The additional fee for filing during the grace period is $100.These prices are subject to change so consult the USPTO.gov website for current pricing.

How to file:

  1. Visit the USPTO site and navigate to “Registration Maintenance/Renewal/Correction Forms”.
  2. Navigate to Declaration of Use and/or Excusable Nonuse of a Mark under Section 8 or Combined Declaration of Use and/or Excusable Nonuse/Application for Renewal under Sections 8 & 9 if you are filing both at the same concurrently.
  3. You must supply your registration number, then answer questions as to who is filing the declaration
  4. You must provide information as to the entity that owns the mark
  5. You must upload a specimen showing the mark as used in commerce
  6. You must execute the declaration as to whether the marks have been in continuous use on the same goods or services as originally declared when the applications was file. If not, you must supply the appropriate information.
  7. You must provide electronic signature
  8. You must pay for filing

Recommended Additional Filing

Declaration of Incontestability – This filing while not mandatory is extremely beneficial in defending and protecting your trademark rights.  A Declaration of Incontestability will make your mark’s registration conclusive evidence that the mark is valid, that you own the mark and that you as the owner have the exclusive right to use the registered mark with the goods or services on the registration in commerce.

Timing: A Declaration of Incontestability should be filed with the initial maintenance filings between the fifth and sixth years or as soon as you have five years of continuous use.

Cost: $300 per class. The additional fee for filing during the grace period is $100.

How to file:

  1. Visit the USPTO site and navigate to “Registration Maintenance/Renewal/Correction Forms”.
  2. Choose 2. Declaration of Incontestability of a Mark Under Section 15 (unless you plan on filing a combination declaration including Section 8).
  3. You must supply your registration number, then answer questions as to who is filing the declaration
  4. You must provide information as to the entity that owns the mark
  5. You must execute the declaration affirming incontestability (see above).
  6. You must provide electronic signature
  7. You must pay for filing.

Protect your investment and make sure you keep up with your maintenance fees! Consult an attorney for help with the filings.

 

New gTLDs as a Branding Tool for Entrepreneurs

The launch of new gTLDs (generic top-level domains) provide an amazing opportunity for entrepreneurs and small to medium businesses to further brand their business in their domain name. A gTLD is the part of you domain after the “.”.  Having fun with you website domain can help you stand out as you market yourself and establish your brand. Emphasize your company’s mission, expertise, experience, niche, etc through the top-level domain you use. Also if your company name or other domain you sought to register is taken on .com there are new and exciting options! Don’t miss out on companyname.rocks or company name.consulting.

You can register these new top-level domains just like you register a “.com” domain head to goDaddy, Namecheap, Name.com or your favorite registrar. This is something your should consider early in establishing your company. You don’t want to lose out on the perfect domain name.

This is an opportunity to accent your personal brand as well. As you establish your expertise and want to develop a website that showcases your skills you no longer are limited to firstnamelastname.com you can register firstnamelastname.esq, firstnamelastname.photography, or firstnamelastname.guru.  Grab your new domains as soon as they roll out!

Over 175 new domains have been released or delegated to date, with hundreds more on the horizon. You can view the available domains by visiting this page: http://newgtlds.icann.org/en/program-status/delegated-strings . This page lists the delegated domains, which means they are available for registration. This site will be updated as others are available.

Take advantage of this branding opportunity before others catch on!!
Examples of some new gTLDs that can make for a creative domain name:

.guru
.consulting
.cooking
.ventures
.photography
.active 
.expert 
.coach
.lifestyle
.shopping
.bar 
.pub
.events
.buzz
.solutions
.careers
.company
.management
.enterprises
.technology
.holdings
.rocks
 
Visit my older posts for more information on this launch: What do you know about the new top level domains?Will You Be Confused When The New Generic Top Level Domains (gTLDs) Launch?​; &​ Five things you should know as the new gTLDs launch.  And as always ask questions in the comments and share your successes and observations re: new gTLDs!​
 

Five things you should know as the new gTLDs launch

What is a gTLD? gTLD stands for generic top-level domain and is an Internet extension such as “.COM,” “.NET” or “.ORG.” Right now there are a little over two dozen gTLDs, but soon, there could be hundreds. The Internet Corporation for Assigned Names and Numbers (ICANN) is responsible for the coordination of the global Internet’s systems of unique identifiers and, in particular, ensuring its stable and secure operation. According to ICANN the new gTLD program was developed to increase competition and choice in the domain name space. As the new gTLDs launch and threaten to change the Internet as we know it there are a lot of things you should know but here are five to start. For additional background information about new gTLDs, please visit some of my previous posts “What do you know about the new top level domains?” & “Will You Be Confused When The New Generic Top Level Domains (gTLDs) Launch?”

1. Be careful of services “guaranteeing” to get a domain name for you

Cyrus Namazi, Vice President of DNS Industry Engagement for ICANN, published a blog post today titled “Pre-Reserve a Domain Name, or Not? ICANN Answers the QuestionNamazi warns against services that “guarantee” they’ll get the domain name for you:
 
 
As responsible Registrars are advising, successful pre-registration of a domain cannot be guaranteed. ICANN seconds that advice, cautioning that registrants should be wary of anyone who claims to be able to guarantee a domain registration on a new gTLD. There are several situations that can impact the availability of a domain name and some domain names may never be available for purchase.”
 
 
Namazi points out that competition between registrars for a single domain, domains claimed in sunrise, reserved domains, premium domains, and name collision domains make it impossible to guarantee. He also notes that some TLDs may not even end up being delegated.

 

2. The first non-Latin character new gTLDs were delegated 

What does delegated mean? This means that the gTLDs or strings have successfully completed the new gTLD Program and has officially been selected as a new gTLD that will go live for use. This will be the first time non-Latin characters can be used in a TLD and not just in the second level domain. Click here for more information from ICANN. 

One is شبكة, the Arabic word for “web” or “network”, while another is 游戏, which means “game” in Chinese.The other two – онлайн and сайт – are both Russian words, meaning “online” and “website” respectively

3. First nine LATIN new gTLDs​ were delegated

The first nine new gTLDs delegated last week were:

  • .CAMERA
  • .CLOTHING
  • .EQUIPMENT
  • .GURU
  • .HOLDINGS
  • .LIGHTING
  • .SINGLES
  • .VENTURES
  • .VOYAGE

The “sunrise period” for registration of the first seven gTLDs is “.BIKE,” “.CLOTHING,” “.GURU,” “.HOLDINGS,” “.PLUMBING,” “.SINGLES,” “.VENTURES.” will begin November 26 and general availability to anyone will begin January 29, 2014.  Keep any eye out for new gTLDs as they are delegated. Consider whether you or your company wants to purchase a domain. And monitor the official launch of these new gTLDs starting in January. Monitor how your brand and ineffectual property are being used on this new gTLDs. To keep up with delegated strings click here.

4. The launch of new gTLDs multiplies the size of the Internet and presents increased security and intellectual property infringement risks.

  • Pay attention to the gTLD in the address bar. New gTLDs give malicious actors more platforms to attack the unsuspecting. Pay attention to the address you are trying to get to and make sure all parts of the address are correct.  Also if you search for a website make sure the site that comes up is the legitimate website.
  • Companies must monitor the use of their intellectual property on new gTLDs. Companies should currently have a plan in place to protect their IP investments through motoring, preemptive registrations, the Trademark Clearinghouse and other rights protection mechanisms provided by ICANN. Be proactive!

5. Launch of new gTLDs presents a number of opportunities to market your brand or yourself. This will present business and consumers with a new and unique user experience and online footprint. There will be a lot more room for customization online and opportunities for marketers to be creative with how to reach consumers. I am excited to see the innovative means of reaching the public that are birthed from the new gTLD launch.Please ask any questions you have about new gTLDs, protecting yourself, rights mechanisms, IP protection, security concerns etc. Start the discussion!

A Victory for Twitter Users!

We all enjoy when our tweets become popular and travel the globe through retweets. Have you ever wondered what happens to your ownership rights after the tweet is retweeted. Does it now belong to the retweeter? Do you still have a protectable interest? Is it now public?

Well you now have an answer!

Daniel Morel, a Haitian-born photojournalist, was in Port-au-Prince when the big earthquake occurred in 2010. He was one of very few journalists on the ground and was able to take some really powerful pictures of the devastation.  He uploaded and disseminated his photos using his Twitter account and a third-party app called Twitpic. The Twitpic terms of service provide that owners of images retain copyright in them. Twitter’s, like Twitpic’s, terms of service allow users to “retain your rights to any content you… post on or through the services.” Although there were no copyright notices on the images, Morel’s twitter page did include the attributions “Morel” and “by photo morel” next to the images, as well as the copyright notice (c)2010 Twitpic, Inc. All Rights Reserved.”

A Twitter user in neighboring Dominican Republic re-tweeted them and they spread over the internet, without any credit being given to Morel, though the Twitter trail could have been followed if anyone was really interested in seeing who originally posted the pictures. Getty then disseminated them to news outlets including the Washington Post without any accreditation or attempt to find the photographer responsible for the breathtaking images.  Agence France-Presse also downloaded the images, but credited them to its own stringer and sold them to third parties (including Getty Images). AFP, with a certain amount of chutzpah, sought a declaration that it had not infringed Morel’s copyright; he counterclaimed: Agence France Presse v Morel, US Dist LEXIS 5636.

Morel later got credit for his work, winning two World Press Photo awards. The district court in Manhattan found for Morel with respect to his claims of direct infringement. AFP could not establish that it was a third-party beneficiary of Morel’s agreement with Twitpic or that a sub-licence was somehow granted through retweeting, given the clarity of the Twitpic terms of service, which stated that retransmission of images merely granted a licence to use someone else’s images on Twitpic.com or an affiliated site. The judge did think, however, that damages should be limited to a figure based on the number of works infringed, not the number of infringements (which would be much larger, given the number of retweets involved). Issues related to Getty’s knowledge and intent, wilful infringement by AFP and Getty, and contributory or vicarious liability were left for another day, as they turned on questions of fact which could not be decided summarily.

The copyright law governing this case is pretty clear. The person who takes the photo has the copyright and anyone making a commercial use, even a derivative use, of the image is liable for copyright infringement. Any other decision would have severely cripple copyrights and discouraged the use of social media to disseminate work. This curtailment would severely limit innovation because artists and innovators would not have this means of advertising and might slow innovation because of renewed barriers to entry and access. Merely Tweeting your picture does not allow others to use it for commercial gain. The terms of service on sites like Facebook and Twitter allow for their use, they do not provide an opportunity for third parties to capitalize on the works of users.

I would still advise photographers, poets, writers, and anyone posting material they want protected, to include a copyright notice in their bios and each individual photograph or work, if possible. 

Uh Oh Are You in Trouble? The “Six Strikes” Copyright Warning System

Tired of illegal file sharing of copyrighted works, the Center for Copyright Information (“CCI”) and its partners, the Recording Industry Association of America (“RIAA”), Motion Picture Association of America (“MPAA”), and leading U.S. Internet Service Providers (“ISPs”) began implementing the Copyright Alert System (“CAS”), also referred to as the “Six Strikes” system in February.  The Copyright Alert System (“CAS”), also referred to as the “Six Strikes” system, is a subscriber notice system in which the ISPs will monitor Internet traffic to identify illegal downloads of copyrighted works.

Under the CAS, internet subscribers whose accounts are used illegally to share copyright material may receive one or more alerts from their internet service provider (ISP).  If the subscriber receives five or six alerts (a.k.a strikes), their account may be subject to the application of a ‘mitigation measure’ such as temporarily slowing down the connection speed.The CAS follows on from the ‘graduated’ response schemes aimed at reducing internet-facilitated copyright infringements that have been introduced in other countries, including New Zealand, France, South Korea and Ireland.

CCI’s stated objectives are to “educate consumers about the importance of copyright protection” and to “alleviate confusion and help Internet users find legal ways to enjoy the digital content they love”.

CCI’s website details the operation of CAS and contains links to legal sources for downloading content and links to information about copyright.

The initial alerts are intended to be educational in nature.  However, if copyright infringement continues on a subscriber’s account after multiple alerts (generally five or six depending on the ISP), the ISP may take steps that, according to CCI, “temporarily affect that subscriber’s internet experience”.  This is referred to as the mitigation stage.

Steps to be taken in the mitigation stage vary across the different ISPs.  For example:

  • Cablevision will suspend a subscriber’s internet access for 24 hours;
  • Comcast will place a persistent, in-browser alert that will only be removed if a customer contacts Comcast;
  • Time Warner will direct the subscriber to a landing page requiring the subscriber to agree not to engage in illegal activity before having internet access restored and, if that does not work, will use a pop up which includes a phone number that the subscriber must call before internet access is restored; and
  • Verizon will reduce the dial-up speeds of the subscriber for a few days to approximately 256 Kbps.

CCI has said that consequences under the mitigation stage are designed to protect a subscriber’s ability to access important services, such as medical-monitoring or home security services.

Subscribers may only challenge previous alerts once they have entered the mitigation stage.  A challenge occurs through the Independent Review Process and is handled by the American Arbitration Association to ensure impartiality. A request for a review requires payment of a filing fee of US$35 (although a waiver based on hardship may be granted) and may be based on one or more of the following grounds: misidentification of account; unauthorised use of account; use authorised by copyright owner; fair use; misidentification of file and work published before 1923 (and therefore not subject to copyright under US law).

HOW WILL THIS AFFECT YOU?

Well that remains to be seen but as it becomes easier to knowingly and unknowingly steal copyrighted material this system will serve to both educate users and protect the investment of companies and innovators. Most of the entities involved place a high value on their intellectual property but also understand the importance of exposure online. Therefore any actions taken will keep both of these interests in mind. Additionally, this is not legislation so it is a self-regulation effort therefore how strict they are with penalties or this “mitigation stage” is hard to predict. Which is also great for the user, experiencing these consequences instead of being taken to court is definitely a plus.  However, abuse of this process could lead to severe prosecution. Another interesting fact, the 5 ISPs cover an estimated 85% of US residential customers, which although significant is not exhaustive.  There will be sites not subject to this regulation at all. It will be hard for the average user to know the difference and users are still subject to other legal action.

Users should always be careful when using the intellectual property of other because even without this system you open yourself up to potential litigation when you use picture, video, music, etc. that was not created by you. Always seek permission before using someone else’s intellectual property.