In a decision released last week, the domain name yellowpage.ca walked away from a challenge mounted by the Yellow Pages Group Co.

In Yellow Pages Group Co. v. Coolfred Co.  (March 13, 2007), the three-member panel reviewed a complaint by the owners of the famous YELLOW PAGES family of trade-marks.  In its complaint, the trade-mark owner alleged that an Ontario registrant registered the domain name yellowpage.ca in violation of the dispute resolution policy.  To succeed, the complainant had to establish three things:

• that the domain name is identical or confusingly similar to the complainant’s trade-mark;
• that the registrant has no legitimate interest in the disputed domain name; and
• that the domain name was registered in “bad faith”.

The trade-mark owner was able to meet the first two tests but failed on the third. Despite creative arguments to paint the registrant as a career cybersquatter, the complainant failed to convince the panel that the domain name was registered in bad faith.  The complaint was dismissed and the registrant held on to the domain name. 

One other point is worth noting: Under paragraph 4.6 of the CDRP, a $5,000 penalty may be imposed on unsuccessful complainants who are engaged in reverse hijacking of domain names.  In this case, the registrant countered with its own claim that Yellow Pages Group should be obliged to pay out the $5,000 to defray the registrant’s costs.  Such a counter-claim can only succeed where the complainant mounted its challenge “unfairly and without colour of right”.  The panel correctly denied this relief, but it serves as a useful reminder of the potential costs of failed complaints.

Calgary – 12:35 MST

 

 

A Nevada federal court has decided that the mere operation of a website accessible to Nevada users is, by itself, not enough for a Nevada court to assert jurisdiction over the operators of the site.  This case, Mullally v. Jones, Civil No. 06-14867, 2007 WL 628367, dealt with a website operator based in the UK who tried to avoid the jurisdiction of the Nevada court.  If the same analysis is applied, the reasoning should also hold true for a website operator based in Canada.  The Nevada court applied the Ninth Circuit’s analysis from the 1997 case Cybersell v. Cybersell in reviewing the nature of the site and the contacts between the site and the state in question.  In Mullally v. Jones the website operator did not have any other contacts with Nevada and did not purposefully direct business to Nevada residents.

Calgary – 10:45 MST 

 

Digital music has come a long way since the revolutionary CD was first introduced in 1983. Now a computer company – Apple Inc. – dominates the music market and the Copyright Board of Canada has just decided that 7.9 cents on every 99-cent iTunes download must make its way back to the copyright collective.

The Board issued its decision on Friday on the tariff covering online music in Canada. The Board ruled that in the case of permanent downloads, 7.9% of the price of a song must be paid back to copyright holders as a royalty. For subscription-based downloads, the tariff is 5.9% of the cost of a month’s subscription, and for on-demand streaming music, the rate is 4.6% of the monthly subscription cost. This brings to an end several years of debate on the tariff and represents a compromise between the music stores and representatives of copyright holders.

Calgary – 21:00 MST

The owner of the trade-mark CHEAP TICKETS has struck out in Canadian Federal Court in a decision handed down on March 2, 2007. This is the second blow, coming after the owner’s loss in a 2003 domain name arbitration decision.  

In Emall.ca Inc. v. Cheap Tickets and Travel Inc. (2007 FC 243), the court dealt with a challenge brought by Emall that the trade-mark CHEAP TICKETS, owned by Cheap Tickets and Travel Inc., was too descriptive or generic to function as a valid trade-mark.  Trade-mark law insists that a trade-mark must be distinctive of the products or services of the trade-mark owner.  Where the trade-mark is descriptive of the products or services themselves or is so generic that it fails to distinguish the owner’s products or services, it can’t function as a trade-mark (just like SHREDDED WHEAT can’t be used as a trade-mark for shredded wheat cereal).  The court agreed with Emall’s challenge and concluded that the trade-marks should never have been registered in the first place.  The registered trade-marks were ordered struck from the register.

In 2003, Cheap Tickets and Travel Inc. launched an unsuccessful CDRP challenge to Emall’s registration of the cheaptickets.ca domain name.  Emall’s lawyers defended, claiming that the trade-mark was generic and that the complaint constituted an attempt to hijack the domain name.  In the arbitration decision, the panel agreed with Emall and dismissed the complaint since the domain name was registered before the Complainant had any rights to the CHEAP TICKETS trade-mark. 

 

Calgary – 14:35 MST

What is the scope of intellectual property protection for two- and three-dimensional articles or images? 

A recent US case (Eliya Inc. v. Kohl’s Department Stores, S.D.N.Y., No. 06 Civ 195 (S.D.N.Y. Sept. 13, 2006)) determined that making a three-dimensional object (in this case, a designer shoe), based on a two-dimensional image of that object, did not constitute copyright infringement.  This was the case despite the registration of the two-dimensional image under the Copyright Act.  The court concluded that the scope of protection under copyright law only extended to the reproduction of the 2-D image or drawing of the shoe, not the creation of a functional 3-D shoe which was copied from the 2-D image.  However, the plaintiff also claimed trade dress infringement under the US Lanham Act, and this claim survived.

In another recent US decision (Meshwerks Inc. v. Toyota Motor Sales U.S.A. Inc., D. Utah, No. 2:06 CV 97), the court decided that animated three-dimensional digital images of car designs did not enjoy copyright protection since they lacked the creative spark required for copyright to apply.  In this case Meshwerks was hired by Toyota to create the 3-D digital replicas of cars for use in advertisements.  Meshwerks went so far as to register copyright in their 3-D images and then they turned around and sued Toyota for copyright infringement.  The court denied that the images enjoyed copyright protection since they were merely “product-accurate representation without the introduction of new creative elements.”

In Canada, Pyrrha Design Inc. v. 623735 Saskatchewan Ltd., 2004 FC 423, (2004), 30 C.P.R. (4th) 310 dealt with a claim for infringement based on the defendant’s copying of certain jewellery designs.  The plaintiff sued under copyright.  The defendant argued that the Copyright Act didn’t apply since, because of the exceptions and stipulations under Section 64 of the Act, the jewellery designs were covered by the Industrial Design Act, not the Copyright Act.  The court agreed and since the lawsuit was founded solely on copyright infringement, the claim was dismissed.

The lessons for business?  Several things come to mind:

(1) There may be concurrent protection under both copyright and industrial design.  Determine where you can get the best protection and, if necessary, obtain a registration.  To obtain an industrial design registration, certain conditions need to be satisfied, so ensure that you have reviewed your options in advance.

(2) Where you are entering into an agreement (like the one between Meshwerks and Toyota), ensure that ownership of copyright in the resulting images or designs is clearly dealt with.  Even though Toyota won the case, the lawsuit might have been avoided altogether if the agreement was clear on copyright ownership.

Calgary – 14:28 MST

Proposed legislation has been introduced to focus specifically on the protection of Olympic trade-marks.  The Olympic and Paralympic Marks Act (Bill C-47), introduced last week, will attempt to prevent unauthorized use of the Olympic trade-marks by anyone other than corporate licensees who have paid handsomely for the privilege of associating themselves with the 2010 Games.  Oops, I just used two protected words which appear in the Bill, along with Winter, Gold, Silver, Bronze, Medals and Canada’s Games.  In my earlier post, I queried why such legislation was required in light of the extraordinary protection already provided under Section 9 of the Trade-marks Act.  Other commentators have also expressed concern over this special-interest legislation. If passed, the law will grandfather all potentially infringing uses which were in use prior to March 2nd.  Enforcement will be interesting to watch. 

 Calgary – 15:06 MST   

On Jan. 9, 2007, the US Supreme Court handed down its decision in MedImmune, Inc. v. Genentech, Inc. resulting in a significant change to the licensing landscape.  In this case, MedImmune had entered into a licensing agreement with Genentech under which MedImmune was to pay royalties for the use of Genentech’s “Cabilly I” patent and (when it issued) the “Cabilly II” patent.  When the second patent issued, Genentech sent a letter requiring the payment of royalties for the use of the second patent.  MedImmune paid under protest, then turned around and sued the licensor on the basis that the second patent was not valid or enforceable.  By continuing to make the payments, MedImmune kept the license alive.

The essential question in the case was whether a patent licensee was obliged to withhold its royalty payments and therefore commit a material breach of the license agreement before it had grounds to sue to declare the patent invalid?  Prior case law said that a licensee did have to effectively breach the agreement before it had standing to sue.  This decision overturns that line of cases and permits a licensee to challege the validity of the patent in court, while still making payments as a licensee and keeping the license.  For MedImmune, breaching and terminating the license would have effectively shut down its own business.

For patent licensors, there are two practical points to remember:

1.  Watch how you word your letters to licensees when politely requesting (or aggressively demanding) royalty payments, as such letters can be construed as a threat of litigation, providing grounds for a declaratory suit by the licensee;

2.  Consider reviewing language in the patent license to see if licensees can be forced to waive any right to challenge the validity of the licensed patent.

The fallout from this decision will be watched closely by both patent holders and their licensees.

Calgary – 12:32 MST

 

Last night I had the opportunity to hear Don Tapscott speak about his book Wikinomics and the Web 2.0 phenomenon. Yes, I’m sure the term Web 2.0 will eventually be like “Y2K” or “Information Superhighway” — a term which dates those who use it and places them on the historical continuum of the internet’s evolution. However, for the moment it is a term which captures a certain approach to technology’s possibilities. It’s not new by the internet’s standards. The term was coined in 2004 and has been percolating since then, gaining momentum as a way to define the collaborative and community-based development of internet-related technologies. To think of the internet or the Web as one technology among many is itself a bit contrary to the spirit of Web 2.0 — the internet is becoming seamless with the use of other tools, all of which interact and are interacted with, to the point where it’s not clear where one leaves off and the next picks up.

This brings me to the idea of the practice of law: Web 2.0 for lawyers? Lawyers have been described (by one of their own) as a “medieval guild“; in other words, a conservative profession which is resistant to change. That’s not exactly a revolutionary statement. The question is whether you can teach old lawyers new tricks. The legal bankruptcy of the RIAA’s efforts to sue its own customers into compliance is one obvious example where the old thinking about intellectual property rights has to give way. I have two thoughts on this: first, yes I believe lawyers can and will change the way they do business, particularly as their clients demand it. Lawyers all over the country are already showing signs of change: blogs, RSS feeds, podcasts, wikis and client intranets. There’s no shortage of legal information and content. The lawyer’s role will be not only to change the way information is disseminated, but also to continue doing what they do now: provide analysis, recommendations and advice to place that information in context and help clients order their affairs and manage risks. Secondly, the growth and development of Web 2.0 will continue to depend on the underlying foundation provided by intellectual property rights and contract law. Even open sourcing and crowdsourcing depend on copyright law and contract law to function and flourish.

Let me illustrate it this way: health information is more open and available than ever before and patients are no longer passive recipients of health care services: but when you need surgery, all the health information, wikis and blogs won’t replace the role of an experienced surgeon. Some things you don’t leave to the collaborative community.

Calgary – 15:49 MST

Apple and Cisco announced yesterday that they have inked a Settlement Agreement on the use of the iPhone trademark.  Under the agreement, both companies are free to use the iPhone trademark on their products throughout the world.  Pending lawsuits will be dismissed. 

For the two companies to use the same trademark in the same channel of trade and still maintain distinctiveness for the purposes of trademark law they will have to tread carefully: Cisco could license the use of the trademark to Apple, or Apple could license it to Cisco or they could set up a separate holding company to own the trademark and license it out to both companies.  Financial details are confidential, so we can only speculate about the price Apple had to pay for coming late to this trademark game.

Calgary – 15:46 MST

 

In an earlier post we answered some common questions about trade-marks. Here are a few more practical issues about usage guidelines:

Q: What are “trade-mark usage guidelines”?

A: A set of “trade-mark usage guidelines” is like a rule-book on how a trade-mark should be used and displayed. These guidelines are designed to guide those who might not otherwise know (or care about) the specifics of how the trade-mark should appear. Guidelines of this type might specify the type of font, the particular colours which should be used, the size and relative position, and the placement of the trade-mark in relation to other elements on the label, or page or ad copy. They should go into enough detail to direct someone in the proper and consistent use of the trade-mark.

Q: Why are they necessary?

A: Trade-mark usage guidelines are necessary because consistency in the appearance of the trade-mark is very important to maintain the validity and strength of the mark over time. If a trade-mark changes too much over time or is inconsistent in the way it is used, it may lose distinctiveness and be open to attack by competitors. Look at the distinctive script used in the Coca-cola trademark. It has been used in the same way since the 1880s and strict guidelines ensure that the relative size, colour and shape of the script remain consistent across time and across a multitude of uses, from bottle and pop can labels to every conceivable type of spin-off merchandising.

Q: When would trade-mark usage guidelines be necessary?

A:  Trade-mark usage guidelines are necessary when others within your company, or others outside your company who are licensed to use your mark, need to reproduce the trade-mark regularly in the course of advertising, labelling, packaging or corporate communications. It is a way of setting and maintaining certain standards when you don’t have direct control over the use of the mark. Here are a few examples: In a large company, guidelines can be distributed to the marketing department, so that the person in charge of the online advertising can be reading from the same set of standards as someone producing corporate T-shirts, or someone sending instructions to an ad agency producing magazine ads or the intern designing the annual report. These are all uses that technically take place within the company or within the direct control of the company. Another trade-mark owner may have franchised its business model so that a hundred individual franchisees all use the mark for their own local advertising across the country or in different countries. Usage guidelines will ensure brand consistency across the entire franchise. Guidelines can also be useful for resellers, authorized distributors or service providers.

Q: Can you give me some tips on trade-mark usage guidelines?

A: Yes, when developing trade-mark usage guidelines, you should keep in mind several things: Who is your audience? Present your guidelines in a way that makes sense for those using the mark. It may make sense to keep the guidelines confidential within the company. It may make sense to publish guidelines on the internet, if that is the most effective way to protect the integrity of the brand. Your marketing department may simply need some basic guidance by email, with a designated “official” file attachment containing the approved form of the mark. Or, you may need a more involved explanation of trademark usage. Some companies prepare detailed guidelines that explain exactly what to do and what not to do. Also, look at what marks you are trying to control. Make sure you list and identify the marks governed by the guidelines. Some marks may not need to be covered by the guidelines. Sone marks may be old forms of the trade-mark that you wish to phase out in favour of a new colour scheme or style as part of a controlled evolution to a new brand.

For a few examples of effective trade-mark usage guidelines, see:
Sun Microsystems
Macromedia
Apple

Calgary – 00:06 MST

Cisco has agreed to temporarily suspend its litigation against Apple and talk about possible settlement of the iPhone trademark dispute. Cisco doesn’t appear to be backing down if its recent New York Times ad is any indication of its approach. In early February, Cisco took out a full-page ad for its own iPhone-branded device. Nevertheless, rumours are now circulating that a settlement with Apple is in the works. Perhaps Steve Jobs is in the mood to get along. A few weeks ago Apple arrived at another settlement with Apple Records in the decades-long dispute about their overlapping use of the Apple logo.

Calgary – 14:17 MST

It is hard to guage how proposed ISP tracking legislation will impact Canadian ISPs if the new bill is passed in the US. Certainly, Canadians who use US-based ISPs would be impacted.

The bill was introduced in the US Congress last week, and if passed, it would compel internet service providers (ISPs) to track their customers’ online activities to aid police in possible future investigations. ISPs who fail to retain the data could face fines and their employees could even face prison terms. There doesn’t seem to be any time limit on the data retention obligations, nor does there seem to be constrains on the scope of the data covered: CNET speculates that data which records details of web browsing, instant messages, or e-mail exchanges might all be fair game under the proposed law.

Calgary – 15:43 MST

As I’ve noted in past posts, privacy and internet law often overlap. In a very interesting Federal Court decision on Monday, the Privacy Commissioner of Canada has been ordered to re-open its investigation into the privacy practices of an American company. A Canadian complainant asked the Privacy Commissioner to investigate Accusearch Inc. for possible violations of the Personal Information Protection and Electronic Documents Act (PIPEDA). In 2005, the Privacy Commissioner’s office closed its file after concluding that it lacked the jurisdiction to investigate a foreign company. In coming to this decision, the Commissioner stated that “Canadian legislation will only apply to the persons, property, juridical acts and events that occur within the territorial boundaries of the enacting body’s jurisdiction.” That decision was appealed to the Federal Court, resulting in Monday’s judgement.

The Federal Court disagreed with the Commissioner and clearly stated that “PIPEDA gives the Privacy Commissioner jurisdiction to investigate complaints relating to the transborder flow of personal information.” The court also noted that absent an investigation and a corresponding report, the complainant’s avenue to an award of damages would be closed. Citing Pro Swing v. Elta, the court noted that “A money judgment may be enforced in another jurisdiction.” This is a curious observation, since Pro Swing is a Canadian decision about enforcement of a foreign judgement in Canada, and any possible order against Accusearch would involve the enforcement of a Canadian judgment in the US, a matter for a U.S. court to decide. This decision will open the door to investigations of foreign companies and will result in some interesting enforcement challenges.

Calgary – 21:28 MST

Any owner who has tried to stop copyright and trade-mark infringement can attest to the difficulty of pursuing an effective practical remedy; websites come and go, distributors of pirated software disappear and rematerialize under a different name, and servers are taken down merely to pop up in a different jurisdiction.

Microsoft Canada can chalk up a win in a recent Canadian Federal Court decision (Case name: Microsoft Corporation v. 9038-3746 Quebec Inc., 2006 FC 1509).  In the decision, the Federal court slapped a Quebec-based distributor of pirated Microsoft software with a $700,000 damage award for copyright and trade-mark infringement.  The award was based on the maximum statutory damages under the Copyright Act of $20,000 per infringement, for a total of half a million dollars, plus punitive damages of $200,000.  Cerrelli, the director of the corporate defendant was personally liable with the corporation, due to his personal involvement and knowledge of the infringement.  The total damages may not come close to Microsoft’s actual loss in sales, nor the infringer’s profits, but the number is enough to drive a point home.

This case underscores two points: there can be a practical and effective remedy for copyright infringement, with a carefully prepared case. Secondly, directors can and will be held personally liable with their corporations, when the circumstances are right.  

 

Calgary – 11:20 MST

Wired has picked up on the Canadian site zunior.com which operates an online music store dedicated to Canadian independent music.  The obvious question is whether the name ZUNIOR may be confusingly similar with the ZUNE trade-mark of Microsoft fame.   

According to Wired, Dave Ullrich isn’t worried: “We’ve been selling digital music [since] 2004… well before the Zune.  I always assumed someone there [at Microsoft] must have heard of us, but maybe not.  [When] I heard of the Zune, I immediately applied for copyright but I don’t really know if it matters.”

He means trade-mark, not copyright.  But anyway, he’s got the right form of protection, even if the wrong terminology.  Whether this is on Microsoft’s radar screen is anybody’s guess but chances are, it is.  Would Microsoft take a run at him?  On the face of it, they shouldn’t be entitled to if he’s been using it since 2004.  But this wouldn’t be the first time they used the force of legal persuasion, even when trade-mark law isn’t technically on their side.  They shut down an attempt to trade-mark MICROSOFT for use with soft contact lenses, even though it’s safe to say they’ll never be in the contact lens business. 

Calgary - 13:08 MST

In what is the first jury conviction of a “phisher” under the US CAN-SPAM Act of 2003, Jeffrey Goodin faces significant jail time when the case goes to sentencing in June, 2007.  Goodin used an elaborate phishing scheme to defraud AOL users out of sensitive credit card and personal information.  Aside from the obvious financial harm done to victims whose credit card information is harvested and misused, this kind of scheme invariably includes trade-mark infringement and other intellectual property rights violations.  In this case, Goodin sent authentic-looking email (displaying the AOL trade-mark) to AOL customers posing as AOL’s billing department.  Victims were directed to a fraudulent web page (also displaying AOL trade-marks), where their credit card information was collected.

While there is no anti-spam legislation in Canada, the problem is just as pervasive here as it is south of the border.  A few weeks ago, the Federal Department of Finance issued a news release warning of an email fraud scheme in which a phisher tried to lure victims to disclose personal financial information through a “tax refund request” form.  This is just one example among many of the overlap of privacy rights, internet law and intellectual property law in the world of phishing.

Calgary – 22:28 MST

Chances are you can still recall a jingle from your childhood – a memorable snippet of song advertising your favourite cartoon, fast-food restaurant or a coveted toy.  Sound can be a very effective way for marketers to distinguish their products from those of competitors.  Think of the way the Oscar Mayer jingle gets lodged in your brain (“My baloney has a first name; it’s O-S-C-A-R….”  If you really want to hear it again, just click here).

Sound can function — and can be registered — as a trade-mark.  Registering sound as a trade-mark is a relatively recent phenomenon, and as a result only a small fraction of registered trade-marks are “sound marks”.  One famous example is the effort by Harley-Davidson to register “the exhaust sound of applicant’s motorcycles, produced by V-twin, common crankpin motorcycle engines when the goods are in use” in the United States.  Predictably, this application was opposed by 9 competing motorcycle manufacturers. The opponents asserted that the exhaust sound was purely functional and not eligible to be registered as a trade-mark.

Internationally, trade-mark practice varies widely and local counsel is required.  In the United States, there are only about 100 registered sound marks.  In Canada, this practice is still in its infancy.  In Australia only 25 have been registered.  Under the European Community Trade-mark regime, there are 31 registered sound marks.  Interestingly, the trade-mark laws of some countries, such as Egypt, China and Saudi Arabia, expressly prohibit the registration of sound marks. 

For a Canadian example, Tellme Networks, Inc. (a US company) applied to register a sound mark consisting of “a musical jingle in the key of C, comprised of two notes in sequence of F, C and any relative equivalent thereof.”  The description of the mark makes it very difficult to determine what the mark is without musical training, but this type of description satisfies the application requirements. 

With increasing competition and the use of more imaginative ways for advertisers to reach their targets, sound marks and other non-traditional marks will likely increase in importance, particularly given the power of sound or music to transcend cultural or language barriers.

Calgary – 14:05 MST

Seemingly benign technologies can be pressed into service as privacy offenders. 

Internet-based companies are slowly becoming aware of the importance of maintaining customer confidence in the handling of personal information.  Even traditional companies are waking up to privacy issues.  A stolen laptop is the easiest way to understand the risks: a commonly-used piece of technology loaded with customer data makes mobile employees more productive; it can also present a public relations nightmare if the laptop is pinched while your employee is grabbing a coffee.

Whether the technology is simple (such as data loaded onto a laptop) or complex (cloaked software which conducts surreptitious surveillance on users), the issue is the same: personal information must be safeguarded in the face of “function creep”.   Function creep is the phenomenon of a particular technology’s function to “creep” beyond its original scope, to include other nefarious purposes.  The temptation to use the technology to harvest valuable personal information is seemingly irresistible.  The Sony Rootkit case is a classic example where efforts at copyright protection crossed the line into privacy violation. 

In Canada, the Federal Privacy Commissioner recently considered this issue in a complaint by employees that their employer was conducting surveillance on them via a GPS system installed in company vehicles.  Interestingly, the Privacy Commissioner found that the data collected by the GPS system did qualify as “personal information” under the relevant Act, even though the system only collected metrics about the use of the vehicle – speed, location, start and stop-times, etc.  The system did not collect any information about the identity of the person driving it, although company records could be used to determine who used which vehicle.  In the end the complaint was resolved in the employer’s favour since the purpose of the technology (safety, productivity and asset management) could be balanced effectively against the potential invasion of employee privacy.

Calgary – 10:48 MST

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If you go through Google’s AdWords program and buy a competitor’s trademark as a keyword, are you infringing on that competitor’s trademarks rights?

US courts are still struggling to sort out the law on this issue and while there have been a few Canadian skirmishes over the use of meta-tags, Canadian courts have yet to tackle the adwords issue directly.  The US decision in J.G. Wentworth SSC Ltd v. Settlement Funding LLC d.b.a. Peachtree Settlement Funding No. 06-0597 (E.D. Pa. Jan. 4, 2007) scores a point for advertisers.  In this case the defendant Peachtree bought its competitor’s name “J.G. Wentworth” as an adword and included the same name in its metatags.   J.G. Wentworth sued for trademark infringement.  

Although past cases have gone both ways on this issue, this decision shows that the courts will examine what is ultimately displayed to the consumer.  Here, the use of the competitor’s trademarks was entirely behind the scenes.  J.G. Wentworth’s trademarks were never displayed in search results or ad copy.  Therefore, the court reasoned, consumers never have a chance to confuse the defendant’s services or links for those of the plaintiff.   The case was dismissed. 

Calgary – 14:30 MST

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Every once and while a story comes along that seems to capture an essential quality of the times. This is one of those stories: In December, CNET News.com interviewed Second Life entrepreneur Anshe Chung, the virtual identity of real-life entrepreneur Aillin Graef.

The interview took place in CNET’s virtual Second Life studio in front of dozens of virtual audience members. Video taken during the interview was sabotaged by digital hecklers who harrassed both Anshe Chung and her real-life owner, Ailin Graef. Afterward (like any other video taken in the real world), a video of the harrassment was posted on YouTube.  Real-life company Anshe Chung Studios filed a complaint against YouTube, claiming that real-life Graef’s copyright in the virtual character Anshe Chung had been infringed because the images had been used in the video without her permission. YouTube removed the offending video. (Link to story)

A news report in the (real-life) Syndey Morning Herald was also the subject of a complaint by Graef, since the news story reproduced a screen shot of the offending video image. However, in the real world, fair-use or fair-dealing exceptions allow reproduction of copyright-protected content for the purpose of news reporting.

It seems that the more distortion we see in layers of reality (the digital alter-ego of a real person is digitally harrassed in a digital world and a digital video of the harassment is digitally posted in the real world, prompting the real person to complain to the real-life company that hosts the digital video), the more fascinating the intellectual property issues become. At its most basic level, the (virtual) Anshe Chung character is merely a string of code protected by (real-world) copyright.  In the Second Life, however, was it copyright that was infringed, or were the personality rights of Anshe Chung infringed? If Ms. Chung can’t bring an action for defamation of character in the virtual world, I’m sure those days aren’t far in the future.

Calgary – 09:13 MST