The government and entertainment conglomerates have been battling with technology for several decades now – the debates we now see have their roots in the 1984 case that pitted Sony’s VCR technology against University City Studios. Yet here we are, some 28 years later, still wondering whether there is any way to put an end or substantially dampen the use of technology for copyright infringement.

Some put the blame on businesses themselves for failing to adapt to consumers’ wants. Illegal MP3 file sharing grew so rapidly, some argue, because consumers grew tired of paying $15 or more for an album when they only wanted a song or two. Now, multiple music services like Amazon.com MP3 or Apple’s iTunes offer consumers the chance to buy songs individually at substantially lower prices while providing record companies with a cut of their profits.

Did your company have to transition from traditional methods to digital delivery? How did it adjust?

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Are we ready for new systems? Outdated systems are what some are claiming as the reason for the drop in sales. It may hard to believe, but the Xbox360 has already been out nearly seven years now. The PlayStation3 and Nintendo Wii are over five years old. Last summer, Nintendo announced that its next generation console, the Wii U, would be coming out sometime in 2012.

A trend we will probably see with forthcoming video game consoles is their having more integrated features. The consoles already offer streaming movies through Netflix. We can probably expect the new systems to offer digital video recording (“DVR”) capabilities, Blu-ray playback, and the ability to seamlessly transfer digital music and movies between consoles and handheld devices like personal video players and smartphones.

Interoperability, it almost goes without saying, should be a focus of any business in the video game or technology industries. Along with interoperability, though, comes a host of intellectual property legal concerns – When is it legal to reverse engineer competitors’ intellectual property to ensure interoperability? Does your technology assist copyright infringers? How close should you work with competitors?

If you do business in the video game sector, what changes is your company preparing for?

Klein Trial Lawyers – Los Angeles business litigation lawyers

Depending on whom you talk to, e-books have both advantages and drawbacks. We already mentioned several of their advantages. Some of the drawbacks and concerns of moving to an increasingly digital way of reading include the following:

• Decreased sales for companies in between writers and their readers; there is less of a need for all of the middlemen like distributors, publishers, and marketers if writers can publish things themselves and sell directly to consumers
• Copyright infringement is easier when works are available in a digital format; more authors may be less likely to earn a living from writing if many people do not have to pay for their favorite works
• It is easier for copyrighted works to find themselves swept into compendiums, raising copyright infringement concerns (think of Google Books, which has faced multiple lawsuits over the past eight years as it seeks to scan and make available for free millions and millions of books)

Are you involved in the book industry? How have you adapted to the growing e-book trend?

Klein Trial Lawyers – Los Angeles business litigation attorneys

Megaupload is different from torrent file-sharing services in that Megaupload is more like a drop box for files. Internet users upload their files and then receive a hyperlink that they can share with others. Many internet users and companies used Megaupload’s services legitimately. They could upload files too large for e-mail or large files like software and then receive a unique hyperlink that they could share with others. Like most file-sharing services, though, you can also share anything else, like copyrighted music and movies. And, whereas with bit torrents you download a piece of a file from numerous places, Megaupload’s files are entirely on Megaupload’s servers.

The repercussions from the Justice Department’s actions will probably be a mixture of good and bad. Infamous hacker group Anonymous has already attacked web sites for government agencies that were involved in the Megaupload take down. Other file-sharing sites – FileSonic.com and Uploaded.to – cut file-sharing features in the wake of the Megaupload seizure. Will the Megaupload seizure actually end up helping copyright owners by returning their lost profits to them? Maybe, but probably not much. Internet users have already said that they simply switched file-sharing services.

Are you involved in the technology sector? What copyright infringement issues affect your business or how do you deal with them?

Klein Trial Lawyers – Los Angeles business litigation attorneys

The protests from technology companies and users seemed to have worked, as both the Senate and the House Judiciary Committee canceled forthcoming action regarding the bills. This likely means that the bills – at least in their controversial forms – will not be moving forward. This does not mean, however, that copyright laws will stay put. The same day as the protests, January 18, California representative Darrell Issa introduced the Online Protection and Enforcement of Digital Trade Act (it goes by “OPEN”). Several Californian members of Congress who were critical of SOPA and PIPA support OPEN.

OPEN appears to better balance the competing interests of those owning copyrights (the companies behind movies and music) and technology companies and those supporting an open internet. For one, there is no automatic shutdown of websites that SOPA would have permitted. Under OPEN, the US International Trade Commission investigates complaints and determines whether to cut off funding for overseas sites behind infringement activities. The target of all of these pieces of legislation – OPEN, SOPA and PIPA – remains overseas sites that encourage copyright infringement.

Do you work in the technology or video game industry? What concerns does your business have for these developments in anti-piracy laws?

Klein Trial Lawyers – Los Angeles business litigation lawyers

Copyrights protect the games themselves. When software piracy is discussed, this means copyright infringement, as video games are works of expression that receive copyright protection just as novels and paintings do.

Trademarks cover video game companies’ logos and names. Trademarks also come into play with video games that are becoming more and more realistic, since companies often try to incorporate real-life trademarks that belong to companies outside of the video game world. For example, video game giant Electronic Arts (“EA”) recently filed a lawsuit against an Indiana company for EA’s use of Bell helicopters in its popular Battlefield 3 video game.

And, finally, on the topic of patent rights, video game companies have created innovative hardware and design technologies that patents protect. Technologies subject to patents at one point or another have included security features, design of internal circuit boards, proprietary information needed to run software on a console, and the motion sensor technology that the Nintendo Wii made popular.

Does your company do work in the video game industry? What growth have you seen in recent years?

Klein Trial Lawyers – Los Angeles business litigation attorneys

There is no doubt that SOPA and PIPA deal with an important issue – copyright infringement – but many technology companies and internet users feel that they go too far. SOPA and PIPA did come from the Motion Picture Association of America and the Recording Industry Association of America, two organizations that often made negative headlines for their aggressive pursuit of alleged file sharers of copyrighted music and movies. With SOPA and PIPA, if a company complains that infringing material is accessible through a particular website, that company can obtain a court order that would make that site inaccessible to American internet users. As such, critics have likened the power of SOPA and PIPA to that of China’s “Great Firewall.”

Last Wednesday’s web protests did seem to have an effect, with many Congressional sponsors of the laws withdrawing their names from SOPA and PIPA. How has your business handled intellectual property infringement? What kind of impact would SOPA and PIPA have on your operations?

Klein Trial Lawyers – Los Angeles business litigation lawyers

The gathering has since changed to invite-only for industry professionals, but the buzz surrounding E3 has continued to grow nevertheless. Numerous media sites like IGN and Gamespot cover the event live, and one network, G4, even broadcasts live during the week of the event.

An important issue for E3 and the entity behind the expo, the Entertainment Software Association, is piracy and for good reason – some estimate the losses due to piracy amount to almost $10 billion a year worldwide. While methods to put a dollar amount on video game piracy vary widely, almost everyone agrees that piracy is widespread and continuing to grow. The problem that always remains is how to tackle it.

While here in the United States we have a legal system that helps companies put an end to intellectual property infringement, other countries, where piracy is more rampant, do not yet offer such protections. Eastern Europe, Russia and Southeast Asia are three areas of the world where piracy is widespread, but where law enforcement and court systems are often helpless to put an end to infringing activities.

American companies often find themselves unable to stop infringers overseas, as foreign courts may not be as responsive to the problem as those here. Even obtaining a judgment here in the US does not mean that law enforcement or justice systems overseas will honor that judgment. Alternatively, companies may be able to work with international groups like the World Intellectual Property Organization to monitor and combat piracy abroad.

Has your company faced copyright or trademark infringement activities from foreign companies? How did you address the problem?

Klein Trial Lawyers – Los Angeles business litigation attorneys

An example of a descriptive mark that acquired secondary meaning that we have mentioned in the past is the fast food giant Kentucky Fried Chicken. Originally, Kentucky Fried Chicken simply described a location and the way that the restaurant prepared its food. Kentucky Fried Chicken became associated with the fast food restaurant to such an extent in consumers’ minds, though, that it acquired enough secondary meaning to merit trademark protection.

Here are some of the factors that courts and the US Patent and Trademark Office consider when determining whether your descriptive mark has acquired enough secondary meaning:

• Surveys that indicate that consumers associate the trademark with specific goods or services that come from your company
• The amount of sales that the product or service generates
• Advertising and marketing costs that your company puts into promoting the product or service to consumers
• The length of time that the product or service has been in consumer markets

The essential question that the courts look to answer is this: does the product or service make consumers think of the company behind the product instead of the product itself? An affirmative response likely means that the trademark has acquired secondary meaning. How has your company tried to associate your product with your company in the public’s eye?

Klein Trial Lawyers – Los Angeles business litigation attorneys

PhoneDog is a website that reviews mobile devices and mobile apps. Noah Kravitz worked for PhoneDog for four years, using his company’s Twitter account to accumulate a bevy of followers who enjoyed his perspective on mobile developments. Kravtiz left PhoneDog towards the end of 2010 and changed his Twitter handle from “@Phonedog_Noah” to “@NoahKravitz.” And with that simple handle change, Kravitz also took his 17,000+ followers with him and away from PhoneDog. PhoneDog sued Kravtiz in federal court in San Francisco and seeks $340,000 for the Twitter followers he took.

The case pits PhoneDog, which wants to protect its business clients, against Kravitz’s free speech interests, but it is far from clear cut. Some of the other facts and issues that make the decision difficult include:

• Kravtiz was already popular amongst mobile technology fans before he joined PhoneDog, so many of his @Phonedog_Noah followers were probably following him more so than PhoneDog
• Kravitz’s Twitter handle – at least during his time at PhoneDog – did have the company name in it, which is a sign that it is more business than personal
• Who were Kravitz’s followers during his time at PhoneDog? Was much of the Twitter traffic going to the PhoneDog website, in turn generating revenue for PhoneDog?
• During Kravitz’s time at PhoneDog, were his tweets mostly business-related or was there a mix of personal and business tweets?

One way that companies can deal with this problem is with something we discussed last week – better computer and technology use policies. If a company Twitter account is strictly for business-related tweets, a company can specify that and have its employees responsible for social media work sign an agreement that says as much.
Does your business use social media? What policies, if any, do you have your employees agree to?

Klein Trial Lawyers – Los Angeles business litigation attorneys