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Apple / Cisco iPhone litigation primer, part 1 - what's in a trademark?
Legal analysis by Sarah Calvert, Jason McInnes, and Scott McMillan, and edited by Trevor Adler and Jonathan Coronel, law student members of the Columbia Science & Technology Law Review.We know there's a lot of Cisco-said-Jobs-said going on right now with iPhone vs. iPhone, so we turned the mic over to our wonderful crew at The Columbia Science & Technology Law Review to spell it out for us. Part one might be of interest to you entrepreneurial types out there -- we're gonna get down and dirty with trademark law, and how a trademark functions in the US. In part two we'll get into the legal issues facing Apple, possible consequences and outcomes, and whether or not "iPhone" really even is defensible. -Ed. We're all pretty well familiar with the term trademark, and what it represents: a unique "mark" used to identify a product's source, and to distinguish the product from goods made by others. But before we can get into iPhone vs. iPhone (in part 2), we have to dot our Is and cross our Ts, so to speak, when it comes to the finer points of trademark law. More specifically, a trademark can range from something simple, like a word or symbol, to something more abstract, like a sound, fragrance, or color1; trademarkable products can include material goods (like Coca-Cola), services (like Engadget), and their corresponding images and appearances.2 Read on.
Microsoft's war waged with FairUse4WM
Legal analysis courtesy of Scott McMillan, Zachary Sharpe, and Trevor Adler of The Columbia Science and Technology Law Review. The press and blogosphere have recently been abuzz over programs that remove copyright protections technologies known as Digital Rights Management (DRM) from purchased or rented media files. These DRMs restrict a consumer's use of the media – morality notwithstanding, they are the only thing preventing you from copying your music or video files onto all of your friends' computers. DRM-stripping programs remove such restrictions from the file (and typically violate your terms of service agreement, to say the least). In September, Microsoft filed suit against the hacker(s) responsible for one such DRM-stripping program, FairUse4WM, purportedly created by the now notorious Viodentia. Other such programs reportedly target the DRM protections of the iTunes Music Store and AllOfMP3, among others. What will become of Microsoft's lawsuit? What does this have to do with "fair use" and the Digital Millennium Copyright Act (DMCA)? What follows is a brief overview in two parts. In the first, we'll discuss current issues surrounding fair use with regard to the DMCA, and in the second we'll approach Microsoft's legal actions against Viodentia for FairUse4WM.What fair use is, and how it works alongside the DMCA"Fair use" is a doctrine under US copyright law that permits certain acts that might otherwise be considered copyright infringement. Copyright law gives authors the right to exclude others from their work, and can sometimes get in the way of the ultimate goal of copyright, which is to promote progress in art and science. The theory here is that without copyright protections, many artists and authors would be discouraged from distributing their work. The fair use exception allows copyright protections to remain in place while enabling consumers some degree of freedom in their use of purchased media. For example, it was generally understood that ripping CDs for personal use was legal because it fell under the fair use exception. However, fair use was dealt a serious blow with the enactment of the DMCA in 1998 and the widespread use of DRM protections. Indeed, fair use is not a defense to a DMCA claim.
