Protecting Intellectual Property in the Digital Millennium
The concept of intellectual property allows the economy to flourish. In essence, intellectual property ("IP") constitutes property that is created by original thought as opposed to a physical thing in someone's possession. For example, patents, copyrights, and trademarks usually protect this kind of property. However, the pervasiveness of the Internet has put strains on these traditional protections. Books, movies, music, and even trade secrets can be stored digitally without any physical component. Once these ideas are accessed through the web, they become susceptible to theft and cyber piracy. Information on the web is easily copied and shared and can be done anonymously. Has someone infringed upon your digital IP? Are you unsure who is liable and legally responsible? You may contact us to discuss how modern intellectual property laws apply to information shared online.
Federal copyright law-under 17 U.S.C.§ 106-states that the owner of a copyright has the sole right to reproduce, display, or distribute the copyrighted work. When someone anonymously copies your IP digitally and then shares it with others, this protection is violated. As such, how should we balance the benefits of the Internet and protection of IP? The federal government responded to this concern by passing the Digital Millennium Copyright Act ("DMCA"). It protects Internet Service Providers ("ISPs") from liability if a user infringes on a copyright when using its services. However, the DMCA also provides for claims of contributory and vicarious infringement against an ISP (e.g., peer-to-peer network or illegal file-sharing website). ISPs can be held liable if they have knowledge of the infringing activity, encourage that activity, or have a financial interest in that activity. So, even though you may not know the infringer's identity, you may have a claim against a third-party (i.e., ISP).
The best way to protect your digital IP is to control who can access and copy your work with encryption or password protection. Under the DMCA, the circumvention of an access control is illegal. In addition, providing a tool for circumvention, such as software or even a hyperlink, is a violation of the DMCA. Violators may be subject to both civil and criminal penalties. The law defines an access control as a mechanism that "in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." IP owners should strive to implement the strongest access controls, but the law does not require the best controls. In sum, the courts will still enforce the DMCA to punish those who circumvent weak or easily-bypassed access controls.
For more information, you should consult with a qualified attorney. At our law firm, we assist clients in legal matters by staying informed and using knowledge and expertise to create solutions.