IACC Starts Next Week – May 18-20, Boston MA

The 2010 Annual Meeting of the International Anticounterfeiting Coaltion (the “IACC:) is next week in Boston, MA and yours truly will be attending along with Online Guy, Rob Holmes. We will be tweeting and reporting on the conference from the site and hope to see some of you peeps there.

Check out http://www.iacc.org

If you don't know where Holmes and Montan are - you aren't trying very hard.

The Online Guys

A little bit about Wikis and Blogs

Categories: Uncategorized

The AntiCounterfeiting Agreement – by Tom Walsh

The first issue I will pass upon regarding the recently released ACTA text is the definition of “willful trademark counterfeiting or related rights piracy on a commercial scale.” This concept is defined in Section 3, Article 2.14 of Chapter 2. The definition is quite broad in scope and encapsulates “(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and (b) willful copyright or related rights infringements for purposes of commercial advantage or financial gain.”

Even though Subsection (b) generally conforms to traditional views of counterfeiting, Subsection (a) has been the subject of much controversy and merits further examination. At first glance, there appears to be a conflict between the concept’s requirement that the infringement or piracy be on a “commercial scale” and the definition’s clear statement that the infringement or piracy need not have any financial motivation. However, it is clear that Subsection (a) targets large-scale, anti-copyright file sharing networks such as The Pirate Bay.

The drafters are correct to permit rights holders to press claims against anti-copyright groups who distribute protected content. When a tangible product is counterfeited, supply of the actual product is increased. An increase in the supply of the aggregate market for the product should create undesired downward pressure on the price of the actual product. Conversely, in cases of file-sharing, the counterfeit product is digital in nature and supply is virtually unlimited. Each time a file is shared, demand decreases while the supply of that file remains unchanged. Rights holders therefore require tools to control supply of their digital assets in order to preserve equity.

However, while I commend the drafters of ACTA for providing rights holders with addressing piracy by anti-copyright persons and organizations, Subsection (a) is ripe for abuse, or at the least heavy-handedness, on two fronts as a result of its present vagueness. First, the released ACTA text does not define the term “significant”. The lack of precision in drafting this term may lead to the unintended prosecution of smaller-scale infringers as member states struggle to quantify “significant” piracy. In the United States, we have seen this in prosecution of commercial claims by the RIAA against music piracy. In an effort to publicize the issue and deter future piracy, the RIAA initiated lawsuits against individual infringers. While the lawsuits were effective at deterrence, it was by no means popular.

A second concern for individuals under Subsection (a) is the use of conspiracy laws to target P2P networks. Under this legal theory, even a legitimate user of a P2P network could face criminal liability if other users of that same network engaged in illegal file sharing. While large-scale infringers would be subject to criminal prosecution, such prosecution may also envelope small-scale or “insignificant” infringers, contrary to the intentions of the drafters.

Fake Wine: Notes of Ripe Fruit, Peppercorns and…Radioactive Carbon Dioxide

April 19, 2010 Leave a comment

On March 21, scientists presented research at the 239th National Meeting of the American Chemical Society that will help wine collectors and auction houses determine whether that $4,700 bottle is an 1870 Chateau Laffite or Two Buck Chuck in a VERY expensive bottle.

Graham Jones, Ph.D., with the University of Adelaide in Adelaide, Australia led a group of researchers in developing a test to determine the vintage of a bottle of wine by examining the level of radioactive carbon dioxide contained within the wine.

Atmospheric atomic testing in the 1940s through 1963 increased the levels of carbon-14 (C-14) isotopes in the atmosphere. Grapes on the vine then absorbed the increased amount of C-14 naturally and the isotope remained with the grapes as the grapes were processed into wine. Today, by applying Dr. Jones’ research scientists are able to identify a wine’s vintage by testing the ratio of C-14 present in the bottle.
Dr. Jones’ publication is timely given a recent counterfeit wine claim filed in U.S. District Court, New York. In late March, attorneys for William Koch filed a lawsuit in the U.S. District Court, New York claiming that auction house Christie’s International “engaged in a pattern of racketeering activity” along with a German citizen named Meinhard Gorke. Mr. Gorke, who goes by the self-adorned sobriquet Hardy Rodenstock, is alleged to have colluded with J. Michael Broadbent of Christie’s to sell high-end fake wine. Suspicion fell on Mr. Gorke, as he became well known for several incredible discoveries of rare wines.

Unfortunately in Mr. Koch’s case, Dr. Jones’ test is only effective for wines produced after the commencement of atmospheric atomic testing and thus incapable of proving whether wine he purchased at auction through Christie’s International was in fact part of President Thomas Jefferson’s fabled collection. However, the test may be useful in cases where a wine made since the 1940s is placed in a much older bottle. Dr. Jones’ test will therefore make it much more difficult for counterfeiters to replicate older wines. Additionally, the test also provides litigators with an unbiased, scientifically tested evidentiary tool.

For coverage of the lawsuit by the Wall Street Journal, please follow this link: http://bit.ly/99DDDl

For further reading on the science behind Dr. Jones’ research, follow this link to the American Chemical Society: http://bit.ly/cbLC6v

For an in-depth look at fake-wine and the players in the William Koch case, please follow this link to a fantastic 2007 article by Patrick Redden Keefe of the New Yorker: http://bit.ly/bL2FJp

This post was written by Tom Walsh, of Walsh IP Law, Denver, Colorado

Fake and counterfeit goods promote unethical behaviour | Not Exactly Rocket Science | Discover Magazine

April 12, 2010 Leave a comment

Fake and counterfeit goods promote unethical behavior | Not Exactly Rocket Science | Discover Magazine.

Adorning yourself in fake goods, be it a replica Gucci handbag or knock-off Armani sunglasses, makes a statement. It says that you want to feel, or be seen as, wealthier than you actually are. It signals an aspiration towards a richer lifestyle. Of course, such products can’t actually change a person’s status, but a new study suggests that they can change people’s behavior, and for the worse.

Should I buy an iPad? � The Maniachis

April 12, 2010 1 comment

 

 

 

 

Should I buy an iPad? � The Maniachis

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Categories: tech toys

NBCU, CBS strike back in ‘Bruno’ defamation case

Categories: Uncategorized