I have felt recently that I’ve lost all interest in SL. All I read about is content theft, IP rights, legal matters, but nothing about how fun it is to create. Was it only me that felt that? I came to SL to create and to have people enjoying what I have made. Before everything that has to do with creativeness turned into fighting, people used to love my products.

Nowadays the only time I still enjoy SL is once a week when I log in to visit my oldest and best friend in SL. He has this dance garden that is non-commercial, non adult and just for fun. He doesn’t try to make money of it. He just love the fact that people like what he’s created. The group that is connected to it is for those who visit the events. There’s no money involved, the members won’t win any prizes to be part of it, they just find out when the next event is.

That is really rare in SL and I hope there still will be such people left, but maybe they have all fled to other places. Maybe I will too.

The U.S. Commerce Department estimates that piracy and counterfeiting costs U.S. businesses between $200 billion and $250 billion a year. Those ubiquitous Louis Vuitton purses sold on bedsheets by street vendors do not represent an isolated amateur act; they are directly related to fake housing components, fake vaccines and even fake airplane parts. Last year, the U.S. Air Force noted that an “unknown number” of phony airplane parts had found their way into Air Force and Navy planes. The Federal Aviation Administration estimates that 2%, or 520,000, of the 26 million airline parts installed each year are fakes-a frightening thought for anyone who flies. 

In addition, according to MarkMonitor, a San Francisco-based counterfeiting research firm, instances of “cybersquatting” (using a domain name that capitalizes on an established brand) increased steadily throughout 2008, up 18% year-over-year to more than 1.7 million instances. The number of websites devoted to selling counterfeit goods also rose to more than 87,200, up 46% from the previous year.

This is an ad campaign from inside the virtual world Second Life for the protection of I. P. Rights.  I found out about it from a blog.

The goals of the campaign seem to be to raise awareness of the issue, encourage people not to buy “stolen” items and perhaps to encourage the makers of the game to implement some kind of protections for the creators to prevent thefts in the first place.

These apparently appeared as posters in various locations throughout the game and the people portrayed are famous player avatars who sell popular products – clothing and jewelry and other things that they designed for people to use within the game.  Some players make significant amount of real money with virtual businesses like this.

So, I found this campaign interesting because it was completely within a virtual world but also because of the way the posters were designed.  They are striking and grab your attention with their simplicity, but the text is almost lost because it gets so small.  While all three people are naked (a point of the ad), the two women are posed more sexually provocatively than the man is, although he is far from neutral.  It’s clear that this campaign is designed with “sex sells” in mind, but given the names of the creators and their businesses, that’s not a surprising tactic to see here.  But does it work for this?  The products they’re trying to protect aren’t even here in the ads.  What if I didn’t already know what “intellectual property” was?  It’s not the most self-evident concept.  I think the idea behind these ads is pretty good, but in practice I wonder how effective they are.

June 5, 2008
Google Faces Louis Vuitton Trademark Case in Europe’s Highest Court
Read whole article.

Now L’s point is:

This british girl in SL™ is very clever or very dumb. Either she knows it will take a while until the Courts of Justice will decide and she can make a lot of L$ now.. or she just didn’t make her research about using trademarks.

Using original logos of high end brands will definitively bring her into discussion. L will observe how this will end up. But who knows, maybe we all didn’t know she is a certified reseller of the displayed RL brands? L will observe who will lead the opinions about this matter in Second Life ® . Who dares this experiment?

http://slurl.com/secondlife/Cheri/87/111/402

Well of course, the answer to that is no. It’s not.

But there are very few other things in Second Life which unites the grid. You don’t see any mainstream blogs coming out and saying “You know what? I love me some content theft”. You don’t chat with your friends about what you recently ripped from a popular store. The use of Copybot for theft is one of those issues where it pretty much is agreed that it’s a bad thing which we can do without.

Then there’s the active effort made to raise awareness and combat the Copybot. People run campaigns and write blogs. They post comments and chat about it with friends. They report stolen merchandise to storeowners who then file DMCA notices.. or perhaps a class action lawsuit.

The Copybot makes people think about how they can limit its effects. It rouses people to petition Linden Lab to act. It spurs storeowners to band together to support one another if their wares are copied. It convinces coders to work on ways to prevent copybotters from winning.

Read the rest of this entry over at Metaversally Speaking..

Arwyn and Vaughan in their TG Days. Image courtesy of Arwyn Quandry

A few days ago, I had the pleasure of having a long chat with Arwyn Quandry and Vaughan Vendetta about the problems that Copybot has caused on the Teen Grid (TG). Vaughan is a current resident on the Teen Grid whereas Arwyn recently came of age and made the transfer to the Main Grid (MG). I asked her for her input as she’s well placed to compare the problem of Copybot between the two grids.

The Teen Grid is estimated to have well under one thousand users logging in on a weekly basis, and seeing as this number will include alts/bots, the actual figure would be much smaller. During the school year, the number drops sharply. The grid co-exists in the same manner as MG though – you still have the same concept of user-generated content, and sim prices/tier are the same as on Main Grid.

So the main differences are that the economy is much smaller, and everyone on the grid can’t legally go out drinking.

So why is copybot so rife on Teen Grid? There are at least 25 active TG businesses that cover the various sectors of the SL market, of which Vaughan estimates up to 75% are selling copybotted merchandise. Some retailers are also taking copybotted material and “Frankensteining” them with their own content. Unfortunately, as Vaughan does not have access to the Main Grid, he has no way of being able to check items which are copybotted without the help of those in MG through the Cross-Grid Copybotted Content Flickr group.

I’ve been through all this before when I wrote about The Forgotten Grid, but on catching up with Arwyn and Vaughan, I’ve learnt that things have only got progressively worse.

A recent comment from Vaughan caught my eye, when he despaired that Teen Grid residents were discussing ways of regulating stolen content on TG. To me, that’s become a completely new problem, which I don’t believe we have on MG.

Copybot happens on Main Grid, but there is sense amongst the masses that it is wrong, and that it’s unacceptable. On Teen Grid, copybotted products have now become mainstream, to the point where most people there will be buying stolen products without realising. Or caring that they have.

Read the rest of this article over at Metaversally Speaking..

I just got a message from a group I’m part of, Vintage Village. Oriolus Oliva is an amazing artist and his wonderful world in SL that he’s built, Verdigris has been copybotted and someone is trying to make money on his work. The name of the thief, according to Oriolus is Duoker Laszlo (Novaterra sim). Don’t buy from him, buy from the artist himself.

I’ve said this before, and I’ll say it again.

The chances of being copybotted are very slim. The chances of you suffering at the hands of copybot are very slim.

Now awareness is one thing which I’ll happily support – but there’s a sensible way of doing it. When you start panicking yourself that the grid is doomed and there’s no future for Second Life, that would class itself as hysteria.

Every now and again (usually when there are lawsuits being bandied around) the whole IP theft and copybot issue crops up and a lot of people get worked up about a minuscule proportion of the grid who are ripping content and start jumping on bandwagons and kickstarting witch hunts.

Now I’ve seen my own products copybotted and being resold, and it’s most definately heart breaking to see your designs that you spent hours having been ripped off and someone else profiting off your hard work. I don’t blame content creators for being angry, and rightly so too.

Read the rest of this entry over at Metaversally Speaking..

If you didn’t see this coming, then you really should have. It was only a matter of time before someone disgruntled enough took the legal route to take a lashing at Linden Lab. This case has arisen and has been pounced on by numerous SL blogs.

Who is it?

Well it involves two named plaintiffs. The first is Eros LLC, who’s CEO is one Kevin Aldermann (In SL, Stroker Serpentine), of Stroker’s Toys fame. The second is Shannon Grei (In SL, Munchflower Zaius) who owns Nomine. They are two of the six plaintiffs who bought a case against Thomas Simon (In SL, Rase Kenzo) for copyright and trademark infringement. That case was settled outside of court.

The defendant is Linden Research International, Inc. or as we know them, Linden Lab – Makers of the Second Life platform.

What is it?

What makes this case particularly notable? Eros LLC and Grei have filed a Class Action Suit in the US District Court, in the state of California. This means it represents not only themselves, but anyone else who is similarly situated.

Also, they’ve made the demand that this case be trailed by a jury. Judges don’t like you to make that sort of a demand as it costs a lot of money, and you better have a damn good reason for doing so.

In particular, the plaintiffs are bringing forward complaints against Linden Lab for breaching the Copyright Law of 1976 (the biggie), The Lanham Act (which covers trademark protections), two state laws governing Business and Professional Codes, and a complaint against LL for intentionally damaging resident businesses.

The lawsuit states that “Linden Lab engaged in violations of the Lanham Act and Copyright Act by directly, vicariously, and contributorily infringing Plaintiffs’ copyrights and trademarks, and by inducing others to infringe the same, Linden Lab has also knowingly and intentionally engaged in and continues to engage in unfair, deceptive, and misleading business practices under California law.”

So, it’s a pretty big complaint.

So really, what is it?

Well the plaintiffs have made a number of complaints against Linden Lab:

• violating the real-world IP rights of the owners of virtual content within Second Life.
• providing the tools to allow other SL users to infringe real world copyrights.
• profiting from illegal theft by taking a portion of the revenue.
• refusing to stop infringement as they make a healthy profit from it, despite having the technical means to do so.

So why now?

The plaintiffs make the complaint that Linden Lab will not ban anyone who uses circumvention clients (i.e. Copybots) to illicit purposes. They also make the point that the vast majority of SL businesses cannot afford to file a lawsuit due to the expense involved. Because of this, Linden Lab have allowed theft on the grid to run amok and failed to provide adequate protections.

What about the DMCA?

The complaint states that the DMCA process is flawed as the accused party will often simply ignore just takedown notices, and start a new account, reuploading the stolen content. In particular, the lawsuit states the facts which I’ve never dared publish before:

Often times, Second Life infringers will counter-file against the DMCA, which results in the restoration of the pirated content and the release of personal information to both the rights-holder and the infringer. Because many content creators in Second Life choose to remain anonymous, this aspect of the DMCA has an intimidating and chilling effect on those content creators who do not wish to jeopardize their privacy and anonymity. Additionally, some Second Life infringers threaten rights-holding merchants with the release of their protected assets for free if they file DMCA claims against the infringers. Second Life infringers are all too familiar with these aspects of the DMCA and use the DMCA as a shield to continue infringing and profiting with minimal or no consequence.

The complaint also highlights that Linden Lab often fail to return the content back to the rightful IP holder in a usable manner. This is assuming Linden Lab take any action on a filed DMCA notice.

Wait – how are Linden Lab making money out of this?

The plaintiffs state that Linden Lab are profiting from stolen SL content in five ways:

1. The infringers are renting land from Linden Lab (directly or indirectly) in order to sell their stolen products.
2. The infringers are paying the 10L$ fee to upload the stolen content which LL charge to allow content onto the Second Life grid.
3. LL operate the most widely used Currency Exchange – the LindeX – which charges a 3.5% exchange fee.
4. LL own and operate XStreetSL, which also takes a cut from sales of stolen products.
5. Linden Lab operates the inworld classified system, which charges residents on a weekly basis.

The lawsuit argues that Linden Lab have provided the tools to allow infringement, and that they engage and profit directly as a result.

Linden Lab do this despite being made aware that a substantial amount of content in Second Life is protected by real life trademarks and copyrights.

But this is Second Life!

The plaintiffs maintain that trademark infringement is still a crime within Second Life. They liken the case to that of Canal Street in New York City. Of the handbags and purses sold near Canal Street, some (although authentic brand names) have been stolen and sold on at discounted prices, others are fakes which are simply using the brand name trademarks.

Eros LLC likens this to their SexGen line of products, which Aldermann claims are widely ripped across the grid.

Read the rest of this analysis over at Metaversally Speaking..!

http://www.slideshare.net/theoryshaw/community-assessment-system-studio-wikitecture

In our pursuit of exploring the methods behind an open source approach to architectural practice, we have continually wondered - if a project is truly open and contributions can come from anywhere and anyone, can a system be devised that can pay contributors fairly for their contributions?

Like any open project, contributions vary widely in size and in quality, and are in times hard to quantify and hard to parse out who did what and to what extent.  So, how, in this highly collaborative approach, could contributors get paid fairly for their work?

If, in the end, an open and highly collaborative approach produces a final product that is better, cheaper, and quicker to build then the traditional siloed approach to designing and constructing buildings, it seems logical to seek a system whereby all the parties involved can be assured they will be rewarded fairly for their quality efforts.

This is a tremendously complicated problem to solve, if it can be solved at all.  Although we are far from knowing all the answers, we can at least take a rough stab.

The preceding slideshare, is that rough stab.  As you will see, it’s far from polished, but in the spirit of ‘releasing early and releasing often’, I wanted to share what I have so far and would be grateful for any feedback you might have.

In order to facilitate a more effective way of hearing community feedback around this idea, we have set up an ‘Ideascale’ site…

http://studiowikitecture.ideascale.com/akira/ideafactory.do?discussionID=6519

Well after years and years of us wondering, Linden Lab have finally spoken up about Intellectual Property rights of content creators in Second Life.

There’s quite a lot to digest in their blogpost, which firstly focuses on the much criticised DMCA process. The long paperwork trail was indeed cumbersome, and a digital process is certainly welcome. But it’s going to need a lot of protections in place to make it work. The easier you make something, the more prone it becomes to abuse. The last thing we need is content randomly disappearing every other week because someone with a grudge felt like griefing, and think they can hide behind their keyboard.

The Permissions system in Second Life has long been outdated for the needs of creators too – I’d quite like to see flexibility such as the “ability to permit non-commercial distribution but prohibit resale”. This, in my eyes, represents a positive move for a lot of content. A system which allows texture/scultpy maps to be resold on prims, but not as the textures themselves would be handy too.

I’ll admit the “sticky licenses” flew right over my head, but it sounds rather plush, to be able to attach metadata to content. Kinda like digimarking your products so you can check up on any suspicious content.

Read the rest of this entry over at Metaversally Speaking..

Origins of the FCTAA

The Tribunal Federal de Justicia Fiscal y Administrativa or Federal Court of Tax and Administrative Affairs (FCTAA) is a relatively new court. It was enacted in 2001, and its immediate predecessor was the Federal Tax Court. Most of the judges of the FCTAA are tax specialists. However, amendments to several statutes, particularly the modifications of April and May 2000 to the Federal Law of Administrative Procedures, broadened the scope of the old Federal Tax Court to decide a large number of administrative matters, (i.e. trademark registration, public officials liability, environmental protection, mining permits… etc.) until it became the FCTAA in December 2000. 

From mid 2000 to late 2008, appeals regarding IP matters were decided by on the thirteen non-specialized chambers of the FCTAA in Mexico City. Since January 2009, IP appeals are being decided by a specialized chamber, also located in Mexico City. 

The Federal Law of Contentious Administrative Procedures (FLCAP) rules the appeal procedure with the FCTAA. The immediate predecessor of the FLCAP was the contentious chapter of the Federal Tax Code, that governed the appeals with the now extinct Federal Tax Court. 

As you may see, a tax court and a tax law were the predecessors of the current specialized IP Chamber of the FCTAA and of the statute that govern the procedure for appeals involving IP. 

In a typical procedure concerning taxes, there are two parties with opposing interests: the State and the tax payer. The statute that governs the appeals in IP matters took this model. The problem is that in many IP matters, there may be more than one opposing party (such as the proprietor of a registered trademark that was cited as anticipation in a case involving the rejection of a trademark application, or the adversary in a patent invalidation or infringement action). 

At Law School, my Tax Law teacher told us that the purpose of Tax Law was defending tax payers, and many of the provisions (not all) stated in the Federal Tax Code, and later in the FLCAP reflect this way of thinking. Tax law tends to be very formalistic about the decisions and procedures to determine the existence of taxes and liabilities related to unpaid taxes. The lack of fulfillment of a formal or procedural requirement may result in the invalidation of the decision and the procedure, and all the Chambers of the FCTAA must review ex officio that the challenged decision complies with all formal requirements, regardless the arguments of the appellant. 

While such rigor may be desirable in a tax case, it may not be justifiable in a case where the decision of the Mexican Patent and Trademark Office (MPTO) was the result of a “trial-shaped” procedure or did not impose a fine but rejected a trademark or patent application. 

The FLCAP makes no distinction between decisions arising from a purely administrative procedure (such as the abandonment of a patent or the rejection of a trademark application) and decisions rendered as the result of an administrative procedure where the MPTO acted as a court to decide a dispute between two parties, such as a trademark or patent infringement case. 

Therefore, all the rigor that the FCTAA must use to review the compliance of formalities of a tax related decision, regardless the merits of the appeal, are being also applied to review all the decisions from the MPTO. 

The precedents 

A very important issue in Mexican administrative law, and especially in tax law, refers to the authority of the government agencies and the officials to decide taxes, administrative sanctions and impose fines. 

Historically, the government has exercised it power abusively. As a consequence, the Constitution and legislation have provided a number of requirements and limits to protect individuals and private entities from such abuses (whether such protections actually work or if they work only in the benefit of a privileged few would be subject of another discussion). 

One of the above-stated requirements is that the authority of any government agency to impose some burden or extinguishing some right of a private person must be expressly provided in an act of a federal o state legislature (Ley) or in a body of rules issued by the President or Governor himself (Reglamento). 

Certain bodies of rules, such as the estatutos orgánicos or “organizing regulations and the acuerdos delegatorios or “decisions to delegate authority” may provide a government agency with authority for certain actions, but in no case such authority may be broader than the one provided in the legislation or rules, and may not stipulate authority to impose burdens or limit or extinguish rights, if the legislation or the rules did not explicitly stated such authority. 

The requirement for all government officials to have explicit authority provided in the statute or in the rules to decide a case where the official imposes a burden or extinguishes or limits a right does not stop there. There is a binding precedent from the Supreme Court that demands that the official that decides a case must state all the statutes and rules that provide the authority to render the decision, including the article, section, paragraph, subparagraph, etc.** The FCTAA must review this issue ex-officio***, and if it finds one mistake, it must invalidate the decision due lack of authority of the issuing official, even if such lack of authority was never argued by any of the parties, or if it is irrelevant to decide the merits of the case. 

As I explained above, such rigor may be desirable in a tax case, because it has the clear intention of protecting the tax-payer against the abusive behavior of the executive branch. However, in a trademark infringement or cancellation case, this sort of ruling does not result in the enhanced protection of intellectual property rights. On the contrary, it seriously harms intellectual property owners and their activities; the delay of a final decision causes doubts and uncertainty about the enforceability and validity of IP rights, because the effect of the invalidation due apparent or actual lack of authority of the MPTO’s officials is the issuance a new decision signed by an official with authority to do so, or simply correcting the typing flaw that refers to the applicable provision of the statute that originates the authority of such official. 

Of course, given the some voids in the regulations that govern the activities of the MPTO’s officials, the new decision is not always free of formal flaws that may also cause, again, their invalidation, without ever looking at the merits of the appeal. 

Unfortunately, an IP case does not always stop at the FCTAA. The final instance is the Federal Court of Appeals. There are eleven non-specialized courts of appeals with jurisdiction to review the decisions rendered by the IP Specialized Chamber of the FCTAA. The courts of appeals issue contradictory rulings from time to time. When contradictory rulings arise, the Supreme Court may review the cases and decide what ruling should prevail; the Supreme Court’s decisions are binding for all the courts of appeals and the FCTAA. 

Finally, if the patent, trademark or copyright owner wants some indemnification related to a patent, trademark or copyright, the MPTO’s infringement decision must become final (after all the appeals), and then the right-holder may file an action with a court of common jurisdiction, which means to start all over again, but now to try to claim damages and lost of profits. 

The future 

One thing is clear: The current system does not work. Even a relatively simple case may take many years to be decided just because all the time wasted in irrelevant appeals. 

Some practitioners have suggested that the law should be amended to exclude IP from the scope of the FCTAA. Actually there is a bill that the Chamber of Representatives approved in late 2006 to exclude IP from the scope of the Federal Law of Administrative Procedures, and as a consequence, from the FCTAA. The bill is pending at the Senate. 

Although the lack of efficiency of the FCTAA is obvious, I am not sure that this is a good solution. District Courts may decide faster than the FCTAA, but the MPTO’s decisions tend to have many procedural and forma errors that may result in decisions from the District Judges just to cure formal and procedural flaws, with no actual benefit as for the time it takes to reach a final decision would be concerned. 

Finally, most District Judges have not been in regular contact with IP law since 2002, after the FCTAA took over the appeals for IP matters, so their decisions show in general less analysis of the case that the decisions of the FCTAA. 

From my perspective, Mexican IP law needs a structural change. The MPTO should not have authority any long to decide infringement and invalidation cases; such authority should be on specialized federal district courts, which may decide in the same decision if the trademark registration or patent is valid, if it has been infringed and award damages and/or attorney’s fees to the prevailing party.

 Of course, it is a complex issue and any solution would have to be more complex than what I just stated above. In any case, what all practitioners agree is that we need a change, and we have to start working on it now.

 * Ninth Era, Weekly Judicial Journal of the Federation, Courts of Appeals, XXIX, April, 2009, page: 1925, Thesis: I.7o.A.617 A, Registry 167451

 ** Ninth Era, Weekly Journal of the Federation, Supreme Court, Second Chamber, XXV, June 2007, page 287, Thesis: 2a./J. 99/2007

 *** Ninth Era, Weekly Journal of the Federation, Supreme Court, Second Chamber, XXVI, December 2007, page 154, Thesis: 2a./J. 218/2007

Above: The Creative Commons logo is, for many, a symbol of a new way of dealing with copyright more applicable to the information era. It certainly holds out promise for museums, archives and other public repositories that hold collections in trust for the public good.

Copyright and Creative Commons

I am delighted that distinguished copyright lawyers Tobias Schonwetter and Andrew Rens will be joining Digital Imaging consultant Graeme Cookson, metadata expert, Sarah Saunders and myself in giving input at the Heritage Digital Campus to be held in Cape Town from August 17 to 21.

I met Andrew some years ago through one of our advisory board members, Dwayne Bailey of Translate.org.za. Andrew is Intellectual Property Fellow at the Shuttleworth Foundation and has initiated a number of innovative initiatives in the area of intellectual rights. Tobias has his PhD in copyright exceptions and limitations and, among other distinguished positions, is legal lead of Creative Commons South Africa. Both are sought after speakers on intellectual property issues and I believe they will be of immense assistance to participants in the 2009 Heritage Digital Campus, particularly in relation to the advent of Creative Commons licenses which I believe give the legal framework for heritage institutions to both grant access to collections held in their trust for the common good, while at the same time ensuring that the collections are not exploited.

Above: Andrew Rens was the initiator of the African Commons Project and Freedom to Innovate South Africa. Andrew is an active blogger and two of his blogs can be found here and here.

Tobias sent me an outline of what he and Andrew will be dealing with in their afternoon sessions:

What is copyright?
Copyright terms, the public domain, orphan works etc.
What happens when you digitise?
Introduction to CC licenses
How to use CC licenses

I am very excited about the star line up with have for this first Heritage Digital Campus. Those of you who have signed up for the full week and those signed up for Sarah Saunders’ course will have Tobias and Andrew’s sessions included in your training. If you have already booked and are still to pay, please be in touch with Jacqui Cook (+27-33-345-9445) as soon as possible to secure your place. If you are a government department this can be done by giving her a purchase order number. If you have not yet booked please urgently be in touch with Sue Hadcroft on +27-83-445-6042 so that she can secure your place.

Download the Masterclass Outline
Download the Booking Form

Once in 1998, I sat down with my manager (the only manager I’ve ever had who could program), and we banged out some code for about 2 days. It was a very fast paced synergistic activity where one idea fed another and at the end of 2 days our initial idea morphed into something completely different and a heck of a lot better.

Well, tonight 11 years later, I’ve convinced my colleague Ben Alabaster to come over and pair program. I don’t know how it will go, I’ve got high hopes, but I am confident at the end of the night both Ben and myself will be a little better as programmers, and might have even started something worth finishing.

But two things I do know: 1) if we come up with something good, we’re both going to want to use it. And 2) if we ever get to the point of needing an agreement outlining our IP rights, it will be too late to draft one. So, Ben & I threw together some basic rules yesterday. Frankly, I’m surprised I couldn’t find any on the net already, maybe I over think this stuff more than most people, or perhaps it’s because I just didn’t look that hard.

So here’s what we agreed to:

1. Each of us, individually, is free to use any programming concept shared, discovered, or created.
2. Each of us, individually, is free to use anything we cocreate as part of a larger project with a significant amount of additional functionality. This can be a personal project, business project, or consulting project.
3. Each of us must agree to release any code or binaries either as a commercial product or open source. Each of us will share any credit and/or financial profits equally.

I’d love to hear other people’s perspective and comments about this.

Copyright © John MacIntyre 2009, All rights reserved

A very common complaint from IP owners is the extremely long time it takes to obtain a final decision in an IP infringement action or a patent invalidation or trademark cancellation case.

The purpose of this post is explaining the structure of IP litigation in Mexico, and of the appeals system in this field of law; why appeals have been taking so long in being decided; why they may take longer; why the courts appear to be so unreasonably formalistic about the authority of the officials of the Mexican Patent and Trademark Office that decide cases; and what can we expect in the close future.

In Mexico, most IP litigation involves administrative instances, such as the Mexican Patent and Trademark Office.

It is possible to file criminal charges in connection to trademark forgery and illegal reproduction of works protected by copyright, and file actions for damages with a civil court, and the Mexican Patent and Trademark Office would have little involvement, if any, in these sorts of procedures.

However, administrative cases involving infringement and invalidation of IP rights largely outnumber the matters currently handled by the General Attorney’s Office and the criminal and civil courts, thus this post with make only reference to the administrative litigation.

Having said the above, the basic structure of an IP litigation process is the following:

A. The first instance is the Instituto Mexicano de la Propiedad Industrial or Mexican Patent and Trademark Office (MPTO).

The MPTO not only issues patents and registers trademarks; it also has authority to decide infringement actions involving patents, trademarks and some cases of copyright, and the invalidation or cancellation of patents and trademarks.

An infringement or cancellation or invalidation action involves a full administrative trial, with the filing of a complaint, and answer, filing and review of evidence, final arguments and a decision.

The MPTO typically takes from 10 to 18 months to decide a trademark cancellation/infringement action. A patent infringement/invalidation action may take from one to three years, sometimes more, if the substantive matter of the patents is complex, as in the case of biotechnology.

The MPTO may not award damages or attorneys’ fees. It may only impose a fine of the infringer; order the preliminary and/or definitive seizure of infringing product issue a preliminary/definitive order to stop the manufacture and/or commercialization of infringing goods; or remove a trademark from the registry or invalidate the patent.

B. Appeals against the MPTO

There are three possible ways to challenge a final decision from the MPTO, no matter if the decision is the result of litigation or of a purely administrative procedure (final rejection of a trademark or patent application).

B1. Administrative Review. It is possible to file a petition for administrative review with a higher-rank official of the MPTO itself.

The filing of the petition for Administrative Review is optional. The appellant may choose not to file it and appeal the decision with the Tribunal Federal de Justicia Fiscal y Administrativa or Federal Court of Tax and Administrative Affairs (FCTAA) –see B2- or file an Amparo claim (constitutional appeal) with a Federal District Court –see B3-.

The higher rank officials of the MPTO tend to confirm the decisions, unless there was a clear procedural or formal error.

Filing a petition for Administrative Review using substantive arguments against the decision is usually a waste of time, or an effective way to delay a final decision, given that the MPTO may take one year or more to simply confirm the earlier decision.

The decision issued in connection Administrative Review may be subject of an appeal with the FCTAA (see B2) or an amparo claim (see B3).

From a technical perspective, the appeal with the FCTAA and the amparo claim are completely different procedures in nature and structure, but in order to keep it simple, I will make emphasis only in practical issues.

B2. Appeal with the FCTAA. The appeal with the FCTAA is the most usual way to challenge the decisions of the MPTO. The appellant has 45 business days to file the appeal with the FCTAA.

The FCTAA is divided in salas or chambers of three judges each, and a Highest Chamber of eleven judges.

The FCTAA started reviewing appeals concerning IP in mid 2000, as a consequence of an amendment to the Federal Law of Administrative Procedures (FLAP). Since January 2009, appeals concerning IP matters are decided by a specialized chamber.

The FCTAA takes between one and two years to decide an appeal. The FCTAA has authority to order the MPTO to cure some formal or procedural flaw and render a new decision, or to decide on the merits of the case instead of the MPTO.

The general rule is that the parties are allowed to file new evidence and arguments, not previously submitted with the MPTO. However, there is a recent non-binding decision from the Seventh Court of Appeals in Mexico City, that intends to limit the filing of new evidence and arguments to prove the use of a trademark in appeals associated to cancellation actions due lack of use*.

B3. Amparo claim. The amparo claim involves a constitutional review of a final authority’s decision by a federal district judge to verify if there was a breach of a garantía individual or constitutional basic right.

One basic constitutional right in Mexico is that all decisions should be issued in accordance to the law. If the decision breaches the law, then it may also be unconstitutional.

As a general rule, the consequences of the amparo are limited to the invalidation of the authority’s decision, if found against the constitution, and the issuance of a new decision, which under certain circumstances, may be subject of a new amparo claim or an appeal with the FCTAA.

The amparo was the usual way to challenge decisions from the MPTO, until mid 2000, when the amendment to the FLAP gave the FCTAA authority to review appeals against the decisions o the MPTO, among other government agencies.

Notwithstanding the above, the amparo claim is still available to challenge most decisions of the MPTO, although practitioners do not use it, given the shorter time they would have to prepare the appeal. Further, the district judges tend to invalidate decisions only to order the MPTO to cure a formal or procedural flaw and render a new decision, instead of deciding the merits of the case. Finally, and from my very personal perspective, the FCTAA’s decisions usually show more careful analysis of the parties’ arguments than the decisions from the district judges.

Unlike the appeal with the FCTAA, the general rule is that the parties are not allowed to file new evidence or arguments.

The appellant has 15 business days to file the amparo claim, and the judge may take from 6 to 12 months to issue a decision.

C. Final appeals

As explained above, the decision issued by a higher rank official of the MPTO in connection to a petition for administrative review (see B1) may be challenged with the FCTAA or a federal district judge.

The decisions issued by the FCTAA and the district judge may be subject of a final appeal with a tribunal colegiado de circuito or federal court of appeals, or with the Mexican Supreme Court in some extraordinary cases, such as the direct interpretation of the Federal Constitution or the constitutionality of a statute or statutory provision.

The final appeal may be decided by any of the seventeen courts of appeals specialized in administrative matters located in Mexico City. A federal court of appeals takes about six to ten months to decide a final appeal. The Supreme Court may take a little longer.

In the second part of this post, I will explain some of the reasons why the appeals take so long to be decided, and why they may take longer.

* Ninth Era, Weekly Judicial Journal of the Federation, Courts of Appeals, XXIX, April, 2009, page: 1925, Thesis: I.7o.A.617 A, Registry 167451

A Tasar Collar sold on XStreet SL

A story like this really just writes its own title.

Taser International Inc. have filed a suit against Linden Lab, XStreetSL and the former owners of XSL, VirtuaTrade. Taser are the biggest producers of stun guns, of course, and it seems they’re unhappy about those residents who are infringing their trademark in SL.

It’s interesting to note however, that Taser are going straight to Linden Lab with this legal action, specifically naming Philip Rosendale, Mark Kingdon and John Zdanowski (who’s actually left LL now – nothing like jumping off the ship and getting caught on the anchor, eh?). They’ve not filed against John Doe avatars, but instead are applying pressure on Linden Lab, presumably to put pressure on them to stop the trademark violations in world.

In particular, Taser Inc. are unhappy that the Taser brand is being used in.. wait for it.. sex products! Unsuprisingly, the Taser Collar by Oni Horan (pictured above) has now been removed from XStreet SL.

This raises the question, are Linden Lab responsible for us and our actions? When circumstances like these occur, finding those directly responsible are harder to deal with in terms of First Life (FL) information, not to mention proving that they are the guilty party. So the result is that Linden Lab will have to take action and remove the offending items themselves, and clean up the mess we’re making.

And then what happens? Will Linden Lab enforce stricter guidelines on what can be created and prevent the use of FL copyrights? Do residents who use FL brands to sell wares in Second Life suddenly find their accounts disabled?

Read the rest of this article over at Metaversally Speaking..

NRDC Invention and Innovation Awards for the Year 2009

Organizer:

National Research Development Corporation (NRDC), on behalf of the Department of Scientific and Industrial Research (DSIR)

Key Dates
Last date for receipt of completed application for all categories:: July 31, 2009

weblink:

Website: http://nrdcindia.com/PA%20Application%202009.pdf

National Research Development Corporation (NRDC), on behalf of the Department of Scientific and Industrial Research (DSIR) provides Tax Free cash awards in the following three categories to stimulate the spirit of inventiveness among the scientific, technical persons, industrial workers, technicians, artisans, craftsman and students in order to recognize the creative talent which could be harnessed to benefit the Nation.

AWARD CATEGORIES

NRDC Innovation Award of the Year 2009

IP Driven Innovation
Premium Innovation
Innovation in high tech area

Number of Awards: 2 (max.)
Amount of Award: Rs. 5 lakhs (each)

NRDC Societal Innovation Award of the Year 2009

Agriculture
Environment
Rural
Energy

Number of Awards: 3 (max.)
Amount of Award: Rs. 3 lakhs (each)

NRDC Budding Innovators Award of the Year 2009
[For students only]

Student(s) registered for Bachelors or Masters in academic or research institutions, universities or affiliated colleges at the time of applying.
Maximum age limit is 28 Years
The application should be forwarded through Head of the Institution
Number of Awards: 5 (max.)
Amount of Award: Rs. 1 lakh (each)

Management Development Programme on Management of Technology and Innovation

Organizer:

SJMSOM, IIT-Bombay

Key Dates
Last date for submission of Application form: April 23, 2009
Workshop begins: May 4, 2009
Workshop ends: May 8, 2009

weblink:

Email Address: kjain@som.iitb.ac.in

Website: http://www.som.iitb.ac.in/events/2009/mdp-moti-2009/index.htm

Technology has always been considered as a major source of wealth creation and upgrading the quality of life of the society. To enhance the process of wealth creation, the management of technology has been identified as one of the most critical resources for both the nation and industrial firm. The objective of the programme is to build capability to manage technology and innovations by training the academician, researchers and technology managers. This course aims at developing professionals and trainers in management of technology and innovation.

Coverage:

This course aims to provide a comprehensive perspective on Management of Technology and Innovation. This program uses a combination of case studies, interactive group exercise and lectures in which participants will have the opportunity to learn from other organizations, receive immediate feedback from faculty and to network with peers.

The program will address the importance of MOT & Innovation:

Importance of Management of Technology

Technology Policy and Environment

National Technology Systems

Technological Change and competition

Management of R&D

Technology Transfer

New Product Development

Intellectual Property Rights

Programme Faculty:

The program faculty is drawn from the SJM School of Management and associated departments at IIT-Bombay and DSIR. Eminent persons from industry, consulting firms including law firms, will provide valuable insights to the participants.

Business Link website talking about the importance of protecting ip and the different ways of doing so.

Being a business information site it does have some information that can be linked into the e-business side of things.

Link

We are trying an experiment here. Rather than rewrite a post we have made on another of our blogs we have set forth the link below. That blog is for general counsel but the point is applicable to startups, too.

Here is a summary:

An article in The New York Times Magazine on Sunday March 14th on basketball provides an object lesson that you should own whatever data may emerge from any digital initiatives memorialized in a legal agreement.

http://globalgeneralcounsel.wordpress.com

This is the second in a series of posts about the landmines startups face when they skip using lawyers.  You can indeed not use a lawyer, just pay attention to what has to be done.  And, as usual, this is not legal advice.

OK, so you have a few employees and some independenet contractors–let’s say someone building your website and someone programming your nifty new mobile app.

So who owns what gets created?  The basic principle is that the person that creates something owns it, with some exceptions–among them employment or an agreement assigning rights.

You Make It, You Own it.

Generally, what employees create while employed is owned by the employer, without the need for a written agreement.  But to be safe, many companies have employees sign an assignment agreement, also known as a Proprietary Rights & Inventions Agreement.  This expressly specifies what is and is not owned by the employer.

Look at it this way.  It is rare that a company does not have employment agreements for key employees (say, the core management team).  If you are looking for venture capital, you can be certain that such agreements will be nothing short of mandatory.

For the independent contractors, the law is pretty explicit.  Typically, an agreement is necessary, one that either assigns the rights or makes it clear that the work being done is, by the nature of the engagement, owned by the party contracting the services of the independent contractor–i.e., the startup.  The latter sort of relationship and agreement is called “Work-for-hire” under federal law;  the former is usually called an “assignment agreement.”  Be careful:  usually, you cannot have a work-for-hire agreement that applies to work already started.

When it comes to the website itself and the programming, you’ll have to pay attention to just what is being owned.  Well, you say, it is the website.  Well, yes, but does the website include technology already created by the developer?  Similarly, does the programming include code written by the programmer that he or she used in a previous job?  Do you own it?

Next up:  What happens to the entrepreneur with the initial idea?

Here is a good pdf which is called ‘Understanding Copyright and Related Rights’.

It covers areas including the enforcement of rights, duration and limitations of copyright and ownership information.

There is something mentioned called the Berne Convention that I think is about the different types of media that are covered by copyright but i will look into this more later.

Link to Site

Maybe I missed something along the line, but there’s not really much advice in the SL Blogosphere for what you should do when someone infringes your IP rights. Everyone rants and raves about how bad it is, and that’s great and all, but what do you do when someone steals your work?

As someone who’s had worked ripped off in the past, I know how heartbreaking it can be the first time someone replicates something which took you days or weeks in a matter of minutes or hours.

The most important thing to note is that you’re not alone – designers have been facing this problem for many years in Second Life, and content theft is not anything new. The more people talk about it, the more ideas are exchanged, and the more we can alienate it from our online community.

So why do people steal our content? As Second Life grows, so does the number of designers producing clothes, skins, hair, accessories, furniture, prefabs, gadgets, etc.. the bigger the web of content, the lower the risk of being caught stealing.

The primary reason (after greed, or the feeling they think they can get away with it) would be that someone wants to make an identity for themselves within Second Life, and we are defined by what we do. Someone who lacks skill and talent will find the easiest way to gain respect will be to steal content from somebody else. The irony is that if/when they’re caught, they lose all respect and trust from everyone.

However, they thrive on the short term and think they won’t get caught because of the size of SL.

Copyright laws are designed to protect the work of those who are creative souls, and produce content that we enjoy. The serve the needs of the artist to protect the wares they produce – where a doctor, lawyer or mechanic will render a service which we compensate for, with an artist there is somewhat a feeling of entitlement. Residents in Second Life devalue artistic creations because they’re “not real” even though very real number of hours go into producing them. They will decry anything which represents a proportional compensation to the time and effort that went into an artwork.

This sense of entitlement enhances the content theft in Second Life, and some residents feel they have the right to replicate your work to save cost to themselves. It peaks with immorality and breaches your intellectual property rights.

Read the rest of this entry over at Metaversally Speaking..

An article i found talking about intellectual property entitled ‘Intellectual property is theft’.

Could be useful for Holly as it does focus on music organisations quite a bit.

Link to Site

There have been some issues raised surrounding the Kindle 2 in the US to do with a feature that converts the text to speech and royalty payment that related to these. I might use this as one of the things i talk about keeping things more related to the business side and what effect this argument has on the authors and amazon.

Link 1
Link 2