Quickie Techie Tips –Peer2Peer: Helping Companies Lose Data
By Jeffrey H. Albright
Over the past decade there have been many stories about Peer-to-Peer (P2P) file sharing software (e.g. Kazaa, Bearshare, LimeWire). Most of these stories have focused on the use of P2P programs to illegally share music, movies and other copyrighted works. A P2P story with fewer headlines but more relevance to business relates to the security implications from the installation and use of P2P programs.
Last fall, one pharmaceutical company disclosed that it had a data breach stemming from an employee’s use of a P2P program on his laptop. The use of this P2P program was connected to the compromise of approximately 20,000 employees’ personal information—some of whose information was actually accessed by outsiders. This latest event serves as a reminder that physical control of data is not enough. Data is constantly in motion, on laptops and other devices, and as such it is important to safeguard it. Part of this safeguarding can be accomplished through technological measures, but more importantly it is done through constant education of employees. Use of P2P file sharing systems to download music may be criminally and civilly wrong, but for corporations it can also allow outsiders to delve into those files contained on the computer systems on which the P2P program is installed. For corporations, the use of unauthorized P2P programs has always been a security problem and is a potential risk point for data breaches. For more information, please see the Dartmouth Study on P2P risks at http://www.tuck.dartmouth.edu/digital/about/press/p2p-networks-pose-serious-risks-study/.
Architectural Copyrights:What Architects, Builders and Owners Need to Know
By Michael Hammer
Most copyright owners probably take for granted the important rights the law guarantees them, such as the right to sue those who copy their work for copyright infringement. However, prior to 1990, if someone constructed an exact duplicate of a professionally designed building, the building’s architect could not sue the imitator for copyright infringement unless the infringer also made copies of the blueprints.
Architects could register a copyright in the drawings and specifications of their designs but could not register copyrights for the buildings themselves. Thus, architects could not sue imitators who managed to duplicate their designs without copying their drawings or plans.
Internationally the United States was relatively unique in affording such limited protection to architects. In 1989, Congress enacted sweeping legislation in an effort to bring all of U.S. copyright law into compliance with international standards. Shortly thereafter in 1990, Congress passed the Architectural Works Copyright Protection Act. This law made “architectural works” a distinct category for copyright protection and extended protection to any embodiment of an architect’s work, including the actual buildings.
The law restricts architects’ copyrights in several important ways. Congress was careful to state that architects can have a copyright in a building’s overall form but cannot protect the standard features common to most buildings, such as windows and doors.
Perhaps the most significant limitation on architectural copyrights is that people are free to create images of the buildings, so long as the building is visible from a public place. (Though other intellectual property laws may be implicated!)
Congress prospectively extended copyright protection to buildings. Therefore, the new law does not protect buildings constructed prior to 1990.
Further as one would expect, a building owner’s interest in its property trumps an architect’s copyright should the building owner want to alter, or even destroy the building. Thus the architect does not acquire any “moral rights” or “rights of integrity” in his work and the law does not require a building owner to acquire the architect’s consent to make modifications.
Finally, the law does not allow architects’ copyrights to interfere with certain state laws including those involving local landmarks, historic preservation, zoning or building codes.
Michael Hammer is a law student at the William S. Boyd School of Law at the University of Nevada Las Vegas. Christy Hubbard also contributed to this article. For more information about this topic, please contact Christy Hubbard at 602-262-0211 or CHubbard@lrrc.com.
TTAB Issues Significant Rule Changes
By Sean Garrison
Effective November 1st, the Trademark Trial and Appeal Board (“TTAB”) instituted several fundamental rule changes in federal trademark opposition and cancellation hearings. The most dramatic were the imposition of mandatory disclosure requirements similar to the disclosures that are required in federal court litigation. Both parties will have to make initial disclosures at the beginning of the case, expert disclosures (if applicable) and final pretrial disclosures. Initial disclosures must be made shortly after the answer is filed and a party must serve its initial disclosures before it can request traditional discovery from the other party.
The initial disclosures include the name and contact information of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses. It also includes copies or descriptions of all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party that the party may use to support its claims or defenses. If a party intends to use an expert witness, then that party must disclose the expert and his or her opinion in the same manner that is required in a federal court case. These disclosures will typically be made 30 days before the close of the discovery period. Because the standard discovery period in TTAB cases is 6 months, a party will need to decide early on whether it wishes to use an expert in order to meet the disclosure deadline.
Each party will be required to make final pretrial disclosures of its intended witnesses and exhibits 15 days before that party’s testimony period is scheduled to begin. The new disclosure rules are not retroactive, so they apply only to newer cases filed on or after November 1, 2007.Finally, the Board now automatically extends the terms of its standard protective order governing each of the parties’ discoverable materials without the need for either party to specifically request such protection. The parties may request modifications to the protective order to meet their specific needs, though the Board has traditionally favored having parties use the standard order.
For more information about this topic, please contact Sean Garrison at 602-239-7434 or SGarrison@lrrc.com.
Ask the Attorney: Trademarks
By Jeffrey H. Albright
Q. How do I determine the class in which to register my trademark and are classes important?
A. The US Patent and Trademark Office (“PTO”) lists classes of goods and services for trademarks and service marks at http://www.uspto.gov/. The PTO assigns the items listed in every trademark application a class, either as a “good”, a “service”, or both. For example, various computer hardware falls under class 9, but computer diagnostic services fall in class 42. Computer dating services are in still another class, number 45. To some degree, the classification system is created for the convenience of the PTO and whether your good is classified in class 12 or class 9 does not substantively affect your rights. Likewise, being in a different class than another mark owner does not insulate you against infringement claims since the likelihood of confusion analysis is based on whether goods and services are commercially related—not whether they share a class. If you file in the wrong class, the PTO will issue an office action and the examiner will typically direct you to the proper identification, but if your product falls into new classes you will be required to pay additional fees. You should consult with legal counsel before proceeding with your application to ensure your mark covers all of the goods and services and to ensure it stays clear of causing potential confusion.
For more information, please contact Jeffrey Albright at 505-764-5435 or JAlbright@lrrc.com.
One on One with JEFFREY H. ALBRIGHT
My wife’s homemade spaghetti—followed closely by her homemade meatloaf!
Which CD/Tape is playing on your computer right now?
Vivaldi – Four Seasons.
When you were a child, what job did you most want to have when you grew up?
A paleontologist—but it was too hard to spell.
What is the best part of being a parent?
Seeing your children become productive members of society.
What is your most marked characteristic?
What one word or phrase do you wish people would say more often?
Who have been your mentors?
Mrs. Klein, my first grade teacher; Captain Len Sapera, USN; Attorney Marilyn O’Leary.
What is the toughest decision you’ve had to make?
Removing life support from my older brother when he was 33.
How would your friends describe you?
What is the most dangerous thing you have ever done?
That’s a toss up between two events: Served a tour in Vietnam—and taught my daughter to drive!!
What food can’t you live without?
What would you like to do as a follow-on career once you retire from the practice of law?
Difficult to decide. I would either like to write historical non-fiction articles for American Heritage or, alternatively, become a school crossing guard.
Mr. Albright is a partner with the firm’s Intellectual Property, Land Use and Zoning, Telecommunications & Utilities, and Environmental and Natural Resources Practice Groups. His Intellectual Property practice emphasizes trademarks, copyrights, trade secrets, work for hire agreements, and IP licensing and assignments. Mr. Albright graduated from the University of New Mexico School of Law and received his M.A. in Electrical Engineering. JAlbright@lrrc.com Ph: 505-764-5435