Posts Tagged ‘license’

Terms of Service and Your Copyrights

Thursday, 26 January, 2012 07:52 Written by Scott Nyman 3 Comments

Upon logging into my Gmail this morning, a mandatory step in my daily routine, I noticed an alert that Google is consolidating the privacy policies and terms of service for all of its various online offerings. Being in the business of law, I felt compelled to read through the changes to see how Google will handle managing information about a user.

For those that are unaware, a privacy policy generally comprises a statement from a company regarding the handling of a user’s personally identifying information. The privacy policy is typically accompanied by a terms of service, which sets out the rules a user must abide by to gain access to a service. The terms of service may often define the legal relationship between a user and a service provider, the ways in which the service may be used, and the procedure to follow in the event the terms are violated.

Of course, being an intellectual property attorney, I immediately look to see how the rights relating to user owned copyrights and other IP is handled. Google’s terms of service reads:

Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

Sounds amazing, right? But, if you read on…

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps).

So, if a user posts one of his or her copyrighted materials on onc of Google’s services, the user in effect grants Google a non-revocable license to use the material, essentially, how they see fit, for “operating, promoting, and improving service, and develop new services,” a pretty broad group of categories.

This peaked my interest as to how a user’s copyrighted materials are handled on other popular social sites, such as Facebook.  Again, things start out rosy:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.

 But the devil is in the details:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).

To my surprise, Facebook seems to make less of a grab on your copyrighted materials than Google. Of concern, Facebook claims the right to transfer and sub-license your content. However, it appears that any and all of Facebook’s rights in your content ends upon deletion of the content from Facebook’s system by the copyright holder and those with whom the content has been shared.

As a little bonus, section 5.6 of Facebook’s terms of service states, “You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission.” So, allegedly, the word “face” is now owned by Facebook. If this turns out like the Superbowl-”Big Game” situation, we may have to start referring to our faces as our “head fronts.”

The Trademark and Copyright Games Played at Disney

Sunday, 27 November, 2011 23:01 Written by Mark Malek 0 Comments

By: Mark R. Malek

As is the case on many weekends, I spent this past weekend at the Disney Theme Parks.  Mostly in part because some dear friends were in town there with their kids, and we wanted to get together with them.  (On a side note, check out their webiste – they do a lot for kids with autism.)  We spent tome time at the Magic Kingdom on Friday, Hollywood Studios yesterday to see the Osborne Family Spectacle of Lights (if you have never seen it, put it on your bucket list – absolutely amazing) and today we rounded out the weekend with a quick trip to Animal Kingdom.  I really love Animal Kingdom, and the kids seem to have a great time there.  We are usually in and out after riding one or two rides, and spending time in Dino Land.

As usual, we had another great weekend at the happiest place on earth.  As we were leaving Animal Kingdom, however, my oldest son spotted the face painters, and decided that he wanted to have it done.  In six years, and countless birthday parties that always had face painting at them, he never once let someone get near his face.  When he told me he wanted to have face painting done, I knew right then and there that I didn’t care how much it cost, he was going to get his face painted up.  Parents who have had their kids’ faces painted up know the routine.  The kid switches back and forth about ten times trying to decide which face painting they want, and right before they sit down, they lock in their choice.  We had gone through a panda bear, a lion, a dinosaur, and right before he sat down, he picked Spider Man.  Well, not Spider Man, but “Webbed Hero.”

I’m not going to lie to you – it came out great.  He sat still and the face painter did a fantastic job in about 5 minutes.  I had a happy kid when it was all said and done.  Right when he picked it out, though, I was kind of shocked.  I always thought that Spiderman was a Universal thing – the theme park just down the road, right?  Then I remembered that Disney bought Marvel Entertainment just a couple of years ago (source), and that Spiderman was a Marvel Comic.  So if Disney has some rights to Spiderman, why not call him Spiderman, instead of “Webbed Hero?”

I guarantee the answer to that has something to do with why there is still a Spiderman Ride at Universal Studios (Disney’s biggest competitor in Orlando).  I suspect there has to be some sort of deal where Disney has licensed some use of Spiderman to Universal, and has reserved for itself some copyrights that would allow face painters to paint kids up as “Webbed Heros.”  Unfortunately, when they reserved the copyrights, they probably did not reserve any trademark rights, i.e., rights in the name, which is why they did not advertise a “Spiderman” face painting option.  I am not sure what the real deal is here, but it just struck me as weird as I was watching my son get his face painted.  Just some musings from my weekend.  Hope everyone had a great Thanksgiving Day weekend.

Lodsys v. iOS Developers: Apple Tries to Intervene (Again)

Wednesday, 10 August, 2011 08:54 Written by Aaron Thalwitzer 0 Comments

Aaron Thalwitzer

More Lodsys v. Little Guy news!

As you may remember, back in May 2011, Lodsys, a patent troll, sued lots of iOS developers for patent infringement. Lodsys wants licensing fees from the developers. The iOS developers lobbied despereately for help, and, as predicted here, Apple tried to come to the rescue. However, Apple lost its first bid to intervene. More recently, on August 8, 2011, August filed a brief strenuously asserting  – BTW, I love the strenuous objection, it’s granted way more than the blasé objection – that it should be allowed to intervene. Apple didn’t want to risk its prize pig, so it really wants these developers to keep pumping out apps without threat of legal action.

Apple’s brief argues that it should be allowed to intervene since the developers are its business partners, Apple has a material interest in protecting the developers interest over it’s previously-licensed technology. The crux of the argument is that:

[N]one of the [current] defendants have the technical information, expertise, and knowledge regarding how Apple’s technology works or the negotiation and intent of the License itself to fully articulate and develop Apple’s exhaustion defense.

Pursuant to the exhaustion doctrine, the first unrestricted sale of a patented item exhausts the patentee’s control over that item. Apple wants to use exhaustion as an affirmative defense; the developers are asserting it as a plea for a Declaratory Judgment. Apple has told Lodsys that because the developers use licensed Apple products they are not infringing on any Lodsys patent. As applied, Apple’s argument is that the developers are using a patent that Apple licensed and which covers Lodsys’ claims; therefore, the developers have every right to use the allegedly infringing products and services.

The terms of Apple’s license agreement are unknown, so  it’s too early to comment on Apple’s success on the merits. There may be merit in the “business partners” claim. Again, too little information for conclusions, yet.

However, Apple is still using the White Knight defense – let us in because we’re coming to the rescue of the poor, innocent developers, who can’t defend themselves. This, in my view, should absolutely not be allowed. Apple can give money to the developers to fund their legal defense, or indemnify them against losses, if they are so concerned about their “partners” well-being, all without being a party to the lawsuit. Apple is seeking to protect its own interests, and no one else’s, by intervening. If Apple can score some public relations brownie points, so much the better, but that is a purely collateral issue – and should not be legal grounds for intervention.

 

Made for Apple, OR ELSE!

Sunday, 10 April, 2011 21:01 Written by Scott Nyman 0 Comments

By Scott Nyman

It’s no surprise that Apple holds a large portfolio of intellectual properties. In fact, there are websites dedicated to tracking new patents and trademarks issued to Apple, such as www.patentlyapple.com. It should come to no further surprise that the company would desire to control and profit from such intellectual properties.

A few years ago, Apple began a licensing program as a requirement to market and sell iPod, called the “Made For Apple” program. This program has since transformed into the “MFi Program,” which has expanded licencing to include Apple’s iPod, iPhone, and iPad. Apple describes the MFi as a  “licensing program to develop electronic accessories that connect to iPod, iPhone, and iPad” and allow “licensed developers gain access to technical documentation, hardware components, technical support and certification logos.”

Joining the program allows a developer a license to market and use Apple’s patented technologies without provoking the wrath of the company’s litigation department. Of course, Apple charges for the licenses it provides, and sometimes for each device manufactured. For example, when the program was still called “Made for Apple,” accessory makers were required pay $4.00 for each unit that used Apple’s proprietary connector.

Some companies, including eForCity, decided to manufacture and distribute accessories for Apple’s iDevices without bothering with those pesky licensing fees. I don’t know if these companies thought they could fly under Apple’s radar or just didn’t care, but Apple noticed. In fact, this past July Apple filed a complaint with the U.S. District Court for the Northern District of California alleging infringement on their patents and trademarks and unfair competition. The defendants attempted to have the suit dismissed on procedural issue, but District Judge Jeremy Fogel has since ordered the case to proceed.

Where the case goes from here is anyone’s guess. Patent and trademark litigation can get very expensive very fast, and I am in no position to guess the financial ability of the Defendant companies to put up a fight against Apple. If history is any indication, eForCity and the others may look to settlement as the best alternative, as similar other Defendants have over an alleged infringement of Apple’s “MagSafe” power connector.

Microsoft on Android – Not So Free. The Role of Patent Infringement Litigation

Friday, 24 September, 2010 11:15 Written by Scott Nyman 2 Comments

By: Scott Nyman

The battleground for supremacy in the mobile space has never been fiercer. Mobile dominance has passed between the big contenders throughout the years. Windows Mobile and Blackberry OS had their days at the top, much like Apple’s iOS has ruled the last couple years. Lately, the crown has been shifting to Google’s Android mobile platform, with new devices seemingly arriving every couple weeks.

One reason for Android’s rapid adoption is the open-source model it is built upon. Not only may Android be installed on devices from any manufacturer, but these manufacturers may do so without payment of licensing fees. Some competitor models, such as those used by Apple and Blackberry’s RIM, lock their respective operating systems to devices manufactured in house. Other competitors, such as Microsoft, allow their operating systems to be installed onto devices from multiple manufacturers, albeit with a licensing cost. With smartphone manufacturers continually looking to improve their bottom line, it’s not hard to understand why many choose Google’s open-source option.

But Microsoft suggests that Android is not free. Chief financial officer for Microsoft’s mobile communications division, Tivanek Ellawala, raises the issue of hidden legal costs due to infringement disputes resulting from adoption of Google’s Android operating system. Although Microsoft offers this friendly advice with no personal motivation, as they finalize a revamped Windows Mobile 7 for launch later this year, there may be some weight to Ellawala’s comments. Earlier this year, Apple sued smartphone manufacturer HTC for infringement of at least 10 U.S. patents relating to features used in HTC’s implementation of the Android operating system. Oracle has also recently sued Google for infringement relating to the use of Oracle’s Java software in the development of Android. Apple and Oracle may only be first players in the battle of patent portfolios, with potentially more suits to follow.

 Whether a hidden legal cost exists with the use of Google’s mobile platform will likely be determined as the juggernauts continue to battle. Smartphones and other low power portable devices are rapidly becoming the new frontier in computing. With increased competition for dominance in this much lauded market, we can bet all contenders will continue to fight for their position at the top.

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