In part two of his interview with David Weslow, Ryan Boudreaux asks more questions about how the cloud could affect intellectual property and copyright issues.  

This is the second and final segment of the interview with David Weslow, discussing the legal aspects of being a web master or developer. In part one, we talked specifically about cyber squatting and copyright infringement.

In part two, David answers more questions about copyright infringement and intellectual property with particular reference to cloud computing and mobile content.

Ryan: With the advent of cloud computing, and mobile content coming more into the mainstream for web content, what do you see in the future for challenges with Internet intellectual property?

David: They do raise some interesting issues. For example, cloud hosting services raise the issue of whether it is permissible to copy content onto remote cloud servers. If you own a data file, music file, or a piece of software, it is probably not ownership per se, but rather a license of a single copy of the file. In a cloud computing situation where you could have multiple copies of a file, there could be an issue of whether or not you have the right to store an additional copy “in the cloud.” In the late 70s Sony was sued for copyright infringement based on an argument that Betamax machines should not be permitted to make copies of TV shows due to copyright infringement. In 1984 a Supreme Court ruling allowed for sale of Betamax machines to continue due to the limited circumstances of their private use to “time shift” programs on TV for watching in your own home at another time. That type of system is continuing to evolve today with shifting files from DVRs, to remote DVRs, and cloud computing structures. As technologies continue to evolve for “time shifting” and “space shifting” of files, copyright issues will continue to come up with respect to file storage in the cloud.

Ryan: Is there one concern, liability, or legal responsibility that sticks out which clients fear the most with respect to their websites and an Internet presence?

David: There are two issues that are at the top of the list for many organizations.

One, whether or not the domain name you want to use is clear to use based on trademark rights. Just because you can buy a domain name that is available does not mean it is clear legally to purchase or use the domain name. There may already be a product name, brand, or company name that does not have a domain, but is entitled to trademark or trade name protection. The availability of a domain name does not necessarily mean that you can own the domain name if it infringes a trademark.

Second, organizations should be very careful how they source and maintain content for websites. It is not appropriate to find content or source code from the Internet and “borrow” it. It is also important that when you hire a web developer, especially when working with a developer from outside of the U.S., to make sure that they are not borrowing source code from other sites or projects. I have had a number of clients who have paid to have their websites created, only to find out down the road in response to a copyright infringement demand that the code and site content and structure has been copied. It is important to make sure you’re getting original content and appropriate assurances from your web developer. Make sure that all text, stock photos, images, and graphics are all original content or appropriate licensing is in place before adding the materials to the website. And, even at the source code level, this generally needs to be original; lifting of code and content will result in claims of copyright infringement. The organization also needs to make sure that the code is not propriety to the web developer’s last customer. In many cases a company will pay for the entire ownership and rights to the code and structure, in which case it would not be appropriate for the web developer to resell the code to another company.

Ryan: The ICANN recently issued statements on the creation of new generic top level domains (gTLD). What do you see happening with this development and the implications for businesses?

David: The issue initially is whether or not to obtain a top level or generic or dot brand registry. A TLD registry application will require a good amount of money and effort, but in certain circumstances it might make sense for some organizations to seek to obtain their own gTLD.

ICANN has predicted between 300 – 1,000 applications for new gTLDs in 2012, followed by the 2013 launch of the new registries. Second-level domains in the new registries will be available in 2013. This will present an opportunity for organizations to obtain new domain names if the names that they wanted are not available as .coms. However, it is also important to prepare a strategy for protection of the organization’s name and brands on the Internet given the massive number of new domain names that will likely be available. When evaluating if it makes sense to spend the money on an application for a new gTLD, organizations should keep in mind that after this initial application period for new gTLDs in 2012, ICAAN has not stated if the next application period for gTLDs will be in one or five or even 10 years.

Ryan: Are there any other legal issues that I haven’t mentioned yet regarding the Internet and websites?

David: Whether you are launching a new site, or a revamped site, once you have obtained and legally cleared the name and content of the site, it is appropriate to protect the site name and register the associated copyrights and trademarks. Being proactive puts you in the best position to be protected from any future possible copyright or trademark infringement.

Creative content is automatically entitled to copyright protection. However, to seek statutory damages for copyright infringement, you must register the copyrights with the U.S. Copyright Office before someone copies the work or within 90 days of when the work is published. If you are entitled to pursue statutory damages for copyright infringement, the law provides for damages of up to $150,000 per work.

The Copyright Office fee is $45 per work, which is pretty low when you consider the benefits of registration, and the copyright registration process is fairly straightforward.

Obtaining a trademark registration from the U.S. Patent and Trademark office often involves more legal work, including communications back and forth and other legal considerations, and a government fee of $325 per class of goods or services. This process is typically more involved than copyright but is very important for protecting brand and site names.

Wrapping up
In closing, I want to thank David for taking time out of his schedule to meet with me and participate in the interview process for this article series. Several of his answers have enlightened my understanding of the issues with copyright and trademark, and their implications for domain names and website implementations for companies and organizations.

Note: In this interview, David provided general information about legal aspects of web design. His comments were not legal advice or legal opinions. You should consult an attorney for any specific legal questions.