What Are The Criminal And Civil Liabilities For Breaking Intellectual Property Laws?

You live in one of the richest, most developed countries on the planet — and so you’ve probably heard news about one company suing another for copyright infringement. Perhaps you’ve heard about an inventor suing a company for violating his patent protections. Or maybe a writer sued a TV producer for stealing a book’s ideas to use in another medium. These are examples of civil litigation, though. Does anyone ever go to jail for breaking intellectual property laws? Are there criminal penalties? Where does the law stand? These are the questions we hope to answer.

Remember VHS and DVD? Yeah, neither do we. But anyone who can catch those memories will recall those copyright infringement notices at the beginning of each press of the “play” button. Hundreds of thousands of dollars in fines for each violation plus the possibility for years of incarceration. 

Actual damages paid for violations are normally much smaller in civil court. Generally, criminal penalties are only applied when such violations are considered “willful.” Does that mean downloading a TV show or book without permission from the creator could land you in jail?

Technically, yes.

But realistically, that almost never happens. The people most likely hit with criminal copyright infringement penalties are the ones who are responsible for websites like The Pirate Bay. They’re the ones who make these thefts not only possible, but easy. 

Do you use a torrenting application to steal this type of content? You’re probably still safe — although internet service providers routinely watch out for big downloads by individuals (and more importantly, they know exactly what you steal). That means that this type of theft could make it more difficult to find a provider after the first one dumps you for too many infringements.

Now, let’s say you’re not only using torrenting applications, but are providing extra bandwidth to make the content even more accessible through uploads. Most pirates are content with downloading, but some go out of their way to disseminate the stolen materials for others. These individuals (or sometimes groups) are far more likely to see criminal prosecution for their actions. 

One federal case recently concluded with a guilty plea from U.K. citizen George Bridi. United States Attorney Damian Williams explained: “As he admitted in court today, George Bridi participated in an international video piracy ring that illegally distributed worldwide on the Internet nearly every movie released by major production studios, as well as television shows. Bridi circumvented copyright protections on DVDs and Blu-Ray discs to illegally share movies online, but he and his crew could not evade law enforcement scrutiny.”

Sound like you? Then you could be in trouble.

Criminal defense firms like www.ronaldfreemanlaw.com understand the differences between criminal and civil proceedings — and they have a good idea of what to expect and when. Not sure that the lawman is after you for possible breaches of someone else’s IP? Not to worry. Consult with a criminal defense attorney to find out more about the laws where you live. Keep calm and don’t speak with the police or investigators without counsel present. 

The Most Common Misconceptions About IP Law

First and foremost, any questions you might have about intellectual property law should be answered by an experienced lawyer. Internet research might give you a basic understanding of IP law, but it cannot replace years and years of dedicated education. So, you think you know IP law? Let’s find out. Here are a few of the most common misconceptions.

So you have this great idea for a new invention. To your knowledge, it seems like no one else has released a prototype. You know what to do: get a patent. Your idea is protected, right? Almost. For starters, your idea is only protected for so long. Patents expire. More importantly, are you looking for an American consumer base or a worldwide consumer base? American patents only protect your idea in America. Unfortunately, you’ll need to make a different patent filing in every single country where you might want to release the product! 

Many business owners believe that the law gives them the rights to intellectual property created by employees when that IP is devised on the job. This is not the case. Your contract with that employee needs to say that you own that IP. 

You were struck with a copyright claim because you used someone else’s IP — but you didn’t profit from it. For example, let’s say you’re an artist who draws Dragon Ball Z characters (yeah, you’re one of those fanboys or fangirls). You think you have a defense because you never sold or profited from any of the drawings — but you gave them away for free. It could still be infringement depending on how unchanged the art is. 

You’re more likely to be protected from copyright claims in this area of IP law when your art doesn’t look anything like the original. A person is far more likely to be sued for this kind of infringement when the art is professional. If your friend Joe is a professional painter and you start giving away reproductions of the same art, you’re in legal hot water.

What Types Of Technology Are Protected By IP Law?

The answer to our question is actually quite simple. Almost all types of technology are protected by IP law — sort of. Did you write an algorithm? IP law protects your ownership of that code. Did you write a book? IP law protects your words from plagiarism. Did you come up with a new recipe? IP law protects your secrets, even if you must disclose the ingredients to the public. But what about when you release a new invention? Are you protected?

Let’s say you invented the lightbulb. That’s a big deal! But is your invention protected against theft? First, it depends on whether or not you registered your patent. Without taking that step, there’s no real proof someone else didn’t come up with the invention. Then again, let’s say you invented the Amazon Echo’s algorithms. Are they protected? Yes — and those protections are automatic (although a smart business will register them anyway for added protections).

Back to the lightbulb. Although the patent will protect the “idea” behind your invention from being stolen, it doesn’t protect it forever. After all, there are a ton of companies out there manufacturing different kinds of lightbulbs and none of them are named “Edison.” For one thing, monopolizing a specific market is illegal — and so legally, patents need to expire to increase the chance of competition in the future.

The expiration allows anyone else to make the same or similar product, so long as they didn’t outright steal its design. That’s because its designs are considered a trade secret — and those are protected under IP law as well. There are generic brands of cereal, for example, but none of them are exactly the same as the name brand originals.

Not sure whether your business or services are protected by IP law? You can always shoot a question to our friends: https://www.woodslaw.com/.

The bottom line? Almost every type of technology is protected by IP law — at least at first. Certain protections can expire, such as the initial idea. Copyrights expire too. For example, most books become part of the public domain after a certain period of time following an author’s death (usually 70 years). This is true of any copyrighted materials. Because of the length of time before such copyrights expire, though, it’s unlikely a 70-year-old algorithm would prove useful to anyone — or that your corpse would feel as if its rights were violated.

Even though all technology can be protected by IP law, we still recommend speaking to a lawyer about strengthening these protections. Copyright and trademark protections kick in automatically, but deterring theft is important. Someone will always try to mimic popular brands, and these reproductions are almost always considered theft in court. Lawyers can help properly register these protections for additional security.

One thing you should always remember: Always take ownership of your own ideas. Companies will try to buy them. People will try to steal them. But they are, and always will be, yours — as long as you don’t give in.

Why Is Intellectual Property So Confusing?

Intellectual property is confusing because the regulatory laws are confusing. There are different types of intellectual property. Depending on which type you’re dealing with, you might need to file for different protections. Can you properly define the differences between a patent, copyright, trademark, and trade secret? Most people can’t, but that’s why we have lawyers — and legal websites like this one!

Another confusing aspect of intellectual property: Are you protected automatically or do you have to apply for protection? It depends. 

A copyright is a legal protection provided for published works such as books, music, and some types of art. Most people don’t realize that copyright protections are automatic. If you write something, you have copyright protection — primarily because plagiarism is illegal. You can (and should) still register the copyright for additional layers of protection.

Patents seem less important these days because individual inventors usually no longer exist. Most inventions come from big companies that already have legal teams who know whether or not a patent is needed. Patents protect a new product idea from being stolen before the actual product makes it to market. The idea might also be called a trade secret.

Trade secrets are specific pieces of information that, when stolen, would damage a business. For example, take the cereal you eat everyday. You know the ingredients. Could you make it yourself? Of course not. The exact recipe is a trade secret. 

Last but not least, you have trademarks. These are also automatically protected. Another company can’t simply steal your brand or copy your logo. There are notable exceptions for brands that are dissimilar enough that consumers are unlikely to become confused. Delta Faucets are obviously different from Delta Airlines even though they have similar trademarks. Words and phrases can also be trademarked. 
The words “Intellectual Property” or IP are really umbrellas that encompass all of the aforementioned protections. IP is defined as an idea-based product or service. Computer algorithms are IP. Books are IP. Paintings are IP. How an invention was made is IP. The list goes on.

Can You Be Sued For Sharing A Photo To Instagram?

We live in a strange world. Each of us has access to everything someone else has shared or posted to social media. That’s the point, right? …To feel more connected to peers, friends, family, and even those who we’ve never met? And why shouldn’t we share the posts we like? For the most part, it’s all perfectly legal. Sharing a photo to social media — like Instagram — rarely lands someone in legal hot water. But one time in a million, it does.

There are a few things to keep in mind. What types of content are copyright or trademark protected under the law, where you share these photos, what country you live in, etc.

In Israel, there was an interesting case wherein a plaintiff uploaded a photo personally taken to the aforementioned social media. The eventual defendant shared the photo to Instagram and Facebook. Eventually the plaintiff launched the suit. Is there a legal basis for the action?

The court decided that the defendant had the right to report the picture. But here’s the rub: the plaintiff had tagged the defendant in the picture before it was reposted. The court ruled that “tagging” someone in a photo might as well be permission. And the plaintiff’s case was even weaker because the defendant tagged the plaintiff in the picture after reposting — which means the defendant gave credit where credit was due. 

Our friends at https://www.sederlaw.com/ in Massachusetts have experienced a recent barrage of similar cases. The more content people put out there, the more legal action is taken to defend its fair use.

One of the most important sticking points is that reposting someone else’s media on Instagram is a legal gray area and laws do not clearly define what can and cannot be done. One of the biggest questions asked in court in recent years is whether or not it should be done at all — because many influences make their living posting unique content. Why should you get to share it for free and potentially reduce their earning potential?

One huge concern is what happens when a brand or company shares content created and posted by another brand or company. This is assuredly illegal. Don’t do it without permission. And if you own a brand or company and would like to use an individual’s content, then ask. Permission will set you free from the legal restraints you might find yourself bound by later if you don’t ask for it.

Some studies show that around 65 percent of users who are asked whether or not content can be shared will say yes — and within 24 hours. In other words, it never hurts to ask. Just do it.

If you are the creator of certain content and prefer to keep it out of anyone else’s feed, then you should add a postscript to any update describing it as the sole property of the creator (you) and copyrighted material under federal law. Let people know that there could be legal consequences for the theft of such content. It’s not legally binding, but it should dissuade others from content pilfering!

Why Did Team Four Star’s Popular Anime Dragon Ball Z Abridged Really End?

The very first episode of Dragon Ball Z Abridged was released by novice voice actors on their shared YouTube channel Team Four Star on June 6, 2008. Over the next decade fans of the original show would clamor in anticipation of the next episode. Sometimes each new release would take months — and the last batch (a three-part episode) before the show’s cancellation took over a year to finish. 

Why did the show finally end?

Many fans believe the show’s creators simply got tired of making it. Over the decade of production of Dragon Ball Z Abridged, Team Four Star started other projects as well (albeit not as popular) and was also provided with professional work. Even a popular fan-made anime like theirs wouldn’t make them nearly as much — and so perhaps it simply became untenable for them to continue.

However, the real reason seemed to be alleged copyright infringement. No one knows whether Team Four Star hired a professional legal team to help them sift through relevant laws. 

Here’s what you need to know. The original show that Abridged was based on was created by Akira Toriyama over in Japan decades ago but its popularity has persisted to this day. It spawned many movies and a recent sequel series called Dragon Ball Super. All the content used by Team Four Star belonged to someone else. BUT Team Four Star’s version of the show was a blatant parody. And parody is protected free speech under the First Amendment.

So might the team have been lying when they suggested one of the biggest reasons for the show’s end was the constant pressure from the trademark holders? Maybe. Maybe not. Truthfully, we’ll probably never really know because the matter never made it to court. 

Small ventures under pressure from larger ones will sometimes fold and give up, even when they’re on the right side of the law. No one should expect anything else. More resources means more power.

Activision And Infinity Ward Embroiled In Copyright Infringement Dispute

The apparent copyright owner of a story called November Renaissance — and through that story, a character named Cade Janus — is suing video game production companies Activision, Infinity Ward, and Major League Gaming Corp for the alleged theft and reproduction of the aforementioned character. Clayton Haugen says that his character Janus was reproduced almost exactly in a recently released Call of Duty game.

Here we go again!

Haugen says that his primary driver for creating that character was an eventual movie. He used a popular Twitch streamer named Alex Zedra to further refine that character, using her likeness to copyright a number of photographs he had taken. He used those photos, a biography of the character, and the story of the character to approach film studios. He also used the photos to sell calendars. He published the likeness to Instagram.

Haugen’s complaint alleges that the Call of Duty: Modern Warfare makers also hired Zedra — something that isn’t at all illegal. But if the other allegations are true, then what those makers did is illegal. According to Haugen, the video game companies asked Zedra to dress and pose exactly as she had in the previous photoshoot. Haugen says they even went as far as hiring the same makeup artist!

Haugen is demanding all the profits that are directly attributable to that infringement. That means a lot of lost revenue for Activision and the like.

In their response, the video game companies admit to most of the minor details when designing their own character named Mara. But they also said they “lack knowledge or information…[to] form a brief.” In other words, they’re not ready to wholly deny the accusations. They could be true. Or they might just be a money grab from someone who thinks he can win a case. Who knows?

The companies did, however, deny that they used Janus photographs to model their own character.

They wrote in their response, “A claim for infringer’s profits is an equitable one and is not triable of right by a jury. Furthermore, a claim for statutory damages is not triable of right by a jury.”

They also said they don’t believe Haugen is entitled to damages at all. Following their denials, the companies provided a number of legal excuses that might mean they wouldn’t have to pay damages even if Haugen’s claims were true. When you’re not sure what will work, why not fling enough crap at the wall that something is bound to stick?

They wrote, “Any use of Plaintiff’s copyrighted materials is protected by the First Amendment of the United States Constitution and/or 17 U.S.C. 107.”

For the record, the First Amendment does not protect those who steal copyrighted ideas. That’s not quite how it works.

There are, however, limits on when and how lawsuits can be brought to a court’s attention and then resolved — and Haugen may have jumped on that train far too late.

IP Laws Squirreled Away Into COVID-19 Package

Most people didn’t even notice any of the tiny itty bitty reforms squirreled away into the COVID-19 package that Biden’s administration passed in March, but one had major implications for IP law moving forward. It was called the Consolidated Appropriations Act, and it contained a small clause called the Copyright Alternative in Small-Claims Enforcement Act of 2020.

One of the biggest changes is how federal law approaches the pirating of TV, movies, and music through online platforms. The most important thing to know? If you get caught streaming copyrighted materials to turn a buck, you can be charged with a felony. That means you won’t be going to the county jail if they catch you — you’ll be going to federal prison, and maybe not for a short stint.

We previously mentioned a separate stipulation of the law, which allows for the creation of a new dispute resolution process — something that was sorely needed for copyright and IP law. 

Do you believe your copyrighted material was stolen or used without your consent? All you need to do is file a claim with the Copyright Claims Board, which is situated in the U.S. Copyright Office. This is for small claims only. The board is made up of three claims officers who will be appointed by the Librarian of Congress. The board will decide whether or not you have a solid case.

The good news is that this claims process does not require you to have an attorney. However, a defendant can opt out of the process so long as they do it within 60 days of receiving the notice. Failure to opt out means the defendant cannot fight the claim in front of a jury or in federal court.

The law also limits the types of discovery available to both plaintiff and defendant. Discovery might include documentary evidence, depositions, or written requests for additional information.

Netflix Poaching Lawsuit Could Result In A Changed Industry

To say that Netflix is under assault is an understatement. The popular streaming provider had deals with most major broadcast providers and has purchased the rights to stream many popular TV shows. But those same networks have started to launch their own streaming services, which means that content Netflix once relied upon is being sapped away over the years — and it now has to rely on its own original content to survive. So far, Netflix is doing more than holding its own. It’s dominating the streaming industry.

That’s why Netflix takes trademark and copyright infringement very seriously. All users can find information on the company’s policies on its platform or website. Last year, there were rumors that the Trump administration might sue Netflix over the trademark for Space Force, a branch of the military that the former president kick-started. But because the Netflix show is basically a parody, there’s little doubt that the outcome of that lawsuit would’ve been a dismissal. 

But trademark suits aren’t the only problem that Netflix is dealing with. One lawsuit argues that Netflix is poaching executives from other studios despite contractual obligations that would bar those executives from going elsewhere. Some acknowledge that lawsuits like these will end up transforming the industry.

An anonymous attorney who works for sexual abuse lawfirm Paul Mones PC said, “The entertainment industry has been plagued by sexual assault allegations for years, and more are coming monthly. It’s still reeling from that. The pandemic was another blow. More people started pirating content. And now there’s fighting to see who will win the streaming wars. It’s naive to think the industry won’t change as a result of this cascade of transformative events.

Injunctions in the poaching battle now prevent Netflix from recruiting executives who are bound by fixed-term contracts for Disney, the company that sued Netflix — which isn’t a huge surprise since Disney just launched a massive streaming service of its own, and became one of Netflix’s biggest competitors almost overnight.

But SAG-AFTRA is worried that the suit and subsequent appeals decision will affect how some producers can leverage actors in one market or another.

SAG-AFTRA briefs described the concerns: “George Clooney. Tom Hanks. Michelle Williams. Melissa McCarthy. Even the late Robin Williams. Why are some of Hollywood’s biggest stars relevant to a fight between two entertainment megaliths relating to the hiring of two corporate vice presidents?”

The brief continued, “Because the lower court’s decision in this case has potential significance far beyond the executive suite. Long before these critically and internationally acclaimed actors became film stars, they got their start on television. And long before these actors found fame, the California Legislature recognized that all workers, including actors, should be free to seek and obtain new employment.”

In other words, agreements like the ones that executives are bound by shouldn’t necessarily be held in high regard because they prevent competition. 

Ironhawk Smart Sync Lawsuit Revived On Appeal

Popular internet file sharing website Dropbox launched a feature called “Smart Sync” back in 2017. Smart Sync lets Dropbox users to view or move files via the cloud instead of downloading them directly to a computer’s hard drive. The feature is great for users who want to save space or avoid wasting time downloading huge files. But a Navy contractor you’ve never heard of called “Ironhawk Technologies” then sued Dropbox for trademark theft because it has its own feature with the exact same name.

When Ironhawk requested a jury trial to resolve the dispute, a Los Angeles federal court denied them the opportunity — but the 9th Circuit reversed the decision on appeal with a 2-1 opinion.

Ironhawk attorney Keith Wesley said, “We are grateful that the Court of Appeals reiterated its commitment to the reverse confusion doctrine and the protection of trademark rights of brands of all shapes and sizes.”

Ironhawk originally sued Dropbox based on the reverse confusion theory facet of trademark law, which iterates that a well-known trademark cannot be duplicated. For example, if a video game company unaffiliated with “Nintendo” tried to build a product or start a business called “Nintendo,” the reverse confusion theory would undoubtedly apply. However, it’s not certain whether or not enough people know about Ironhawk or it’s trademarked feature to confuse it with Dropbox’s. 

It’s also worth noting that reverse confusion theory does not apply when a product or service is wholly unrecognizable from the allegedly infringed upon trademark. For example, both Delta faucets and Delta airlines are very well known trademarks — but neither infringes upon the other because they’re completely different from one another. Ultimately, it will be left to a jury to decide whether or not Ironhawk is well-known enough for the theory to apply, or whether the Ironhawk feature is different enough from Dropbox’s to not apply.