Monday, November 12, 2012

Copyright Law - A Detailed Explanation of the 'Fair Use' Clause

Copyright Law, as defined by the Berne Convention, is the right of a creator to the Intellectual Property of their work, to the marketing and general use of that work. It has many different clauses, according to the type of work being copyrighted, but is generally applied to literary works, works of art, music and Intellectual Property, the use of ideas. It does not apply to Patents or Trade Marks which each have their own laws and regulations. A work which is copyright to a specific person or company does not need to be registered, and copyright takes effect from the moment creation is begun through, according to the type of work involved, to many decades after the creator's death.
For works of literature, including shorter articles and journalism, a certain amount of a work may be used by other people or companies under the principle of Fair Use. That is, a portion of the work for review purposes, as a reference in another work or as a quotation to back up, or refute, another work. Copyrighted works used by others under the principles of Fair Use do not require the approval or permission of the copyright holder.
Whilst copyright is clearly defined by the Berne Convention, the Fair Use principle is subject to many different laws, on a national level, which may differ one from another. The laws concerning Fair Use are different, for example, between the United States and European countries and, although the term Fair Use originated in the United States, it has been a part of British legislation since 1709.
Fair Use of a work is explicitly limited in scope. The taking of a significant portion of a work to produce a new work, even when this new work has additional information added to it, is a breach of the various existing laws. The use of a smaller portion of an original work to enhance a new one, whereby knowledge made available to readers takes primary importance, is considered acceptable in most cases. Courts set up to consider what is Fair Use and what is copyright infringement are required not only to assess the size of the work being used and its placement within a new work, but also the scope of the quoted text. Thereby it has been shown, under United States laws, that a short extract taken from another work which may be considered to contain the heart of that work is a substantial extract, and falls outside the realms of Fair Use.
Fair Use is also limited when the original work is harmed by an extract or publication in another work. Courts have been required to consider whether the publication of a new work containing extracts from another will affect the market potential of the original and, effectively, the possibilities for the original author to gain financial recompense for the original. A new work which supersedes an original, pushing it from the marketplace, but which contains extracts from that work may be judged to fall outside the rules on Fair Use, as the new work potential or substantially harms the author of the first.
It is generally considered, by people using the works of others under a claim of Fair Use, that a certain length - for example, three hundred words - brings usage into the realm of Fair Use. Further, it is believed by some that a non-commercial enterprise using the works of others also falls under the Fair Use rules. In both cases the person using another's works cannot necessarily claim Fair Use, depending on the nature of what is being copied and the manner in which it is to be used. Courts have often defined the use of a shorter text as falling outside Fair Use according to its scope and substantiality but accepted longer extracts. A non-commercial enterprise using the works of another will also fall outside of the Fair Use clauses and legislation as the use may harm the originators work and income or marketing capabilities. There is no set size of a work which may be used for another, each case is judged individually upon its merits and, unlike in all other cases before a court of law, it is required that the defense justify their case of Fair Use, rather than that the prosecution should prove it.
Fair Use of copyrighted works is a very complicated area, especially with written works. It is further complicated by the use of disclaimers - which are often invalid when used against Fair Use - and the use or lack of use of attribution which may, in some cases, bring copying of a work within the scope of civil law as theft and plagiarism. Fair Use does not apply in all countries in the same way as Copyright Law, with only five countries presently having clear and concise judgments and legislation on what may be called Fair Use and what falls outside of its terms. For all other countries legislation is contained within national copyright laws and the Berne Convention.
A fair rule of thumb is: consider how substantial the extracted work is; whether the new work adds significantly to present knowledge; whether the new work is a reference, scholastic or critical work; whether the original work and its marketability will be damaged in any way. Should a chosen extract meet all the criteria the chances are that it may be considered Fair Use.
Viktoria Michaelis is an American student (born July 1992) currently resident in Germany studying Business Studies and Economics at Bremen University. She has had fictional works published in several anthologies and regularly writes in her personal Blog Viktoria Michaelis: Secrets & Desires on a wide range of subjects from Beauty and Health through to Women's Issues and Adult subjects.

Injuries During Birth and Medical Malpractice

The birth of your child is meant to be a time of celebration and joy, but sometimes unexpected events during birth can lead to more pain and anxiety surrounding the birth of your child than expected.
Usually, medical teams in the United States are competent and do their best to provide a safe birth for you and your baby. Injuries during birth do happen, though, and can leave lasting trauma for baby and parents.
Many birth injuries, such as facial paralysis, broken collar bones, and bruising go away fairly quickly. The most worrisome birth injury is probably traumatic brain injury, which can be caused by a prolonged lack of oxygen to the baby. This prolonged oxygen deprivation can cause long-term mental impairment or seizure disorders.
If your baby has suffered from a birth injury such as brain injury, the long-term effects can be a lot to deal with. Hopefully your doctor did everything possible to prevent harm to your baby, but there are some cases where doctors are at fault for birth injuries. When a doctor does not provide a patient with a reasonable standard of care or was negligent in their professional duties, the case can be considered for medical malpractice.
Some behaviors that might be considered medical malpractice include:
• Not responding or a delayed response to fetal distress
• Untimely ordering of a c-section
• Improper use of forceps or vacuum extractors
There can also be cases of negligence involving the maternal health, including:
• Delayed or lack of response to excessive bleeding
• Unwatched infections after surgery or birth
• Improper administration of epidurals or Pitocin
If you think that you or your baby has suffered injuries because of a negligent medical team, you should contact an attorney specializing in medical malpractice cases who can review your case to determine if you have legitimate grounds to file a claim. Most doctors do all that they can to ensure both maternal and baby health and malpractice cases should not be taken lightly.
If your medical malpractice claim seems solid, your attorney may request compensation for your injuries, including related medical bills, compensation for pain and suffering, and, in the case of long-term injuries, compensation to provide for your child throughout his or her lifetime. A medical malpractice attorney will know how to properly file a claim, how to work with insurance companies, and, if necessary, how to file a lawsuit against the responsible doctor or hospital.
Again, medical teams usually do their best to protect maternal and baby health, but medical malpractice cases do happen. If you think your child is the victim of medical malpractice, contact an attorney as soon as possible to review your options.

How to Find a Commercial Law Attorney for Your Business

Good management is essential to keeping any business afloat. So is good legal advice. One person who can help you manage your company's legal affairs is an experienced commercial law attorney. Commercial law is the term used to refer to the various statutes, regulations, and other legal requirements involved in forming, operating, and dissolving a business. Businesses are considered legal entities that must abide by various laws, including contract laws, environmental laws, employment laws, intellectual property laws, and laws governing commercial transactions, among others. Commercial law is extremely diverse and complex. To ensure that your company is complicit with the various laws affecting your business, you should consult an experienced commercial litigation attorney before start-up.
There are many lawyers to choose from, so it is best to do research to find the right person for the job. One good source of advice is other entrepreneurs who have built successful businesses. They can often refer you to commercial lawxers who helped them achieve their goals. You can also talk to other people who have experience working with lawyers. When you find a lawyer who you believe is a good fit, you should meet with him. Talk to him, ask questions. The following are important criteria to consider when choosing a lawyer for your business:
  • The lawyer you choose should have experience and expertise in commercial law. He should be able to guide you in choosing what kind of business entity to establish. He should also have experience with taxation. He should be able to create a variety of business contracts for use in all of your business dealings.

  • The lawyer should be able to defend you and the business should contract disputes arise.

  • A business lawyer should be up to date with changes to business laws and be able to give you sound advice.
A commercial law attorney can help your business in a variety of legal matters, including taxation, employment contracts, intellectual property protection and compliance with various environmental and consumer protection laws at both the state and federal level. In addition, the attorney can represent your business interests in a variety of transactions, including real estate transactions, contract disputes, product liability lawsuits, and much, much more.
To keep a business running, it takes a combination of the right people, the right ideas, and good decisions. When you choose a knowledgeable commercial attorney, you can be sure that the legal side of your business is in good hands. The Corpus Christi commercial litigation attorneys at Snapka Law Firm have the experience and resources to successfully represent your company's interests throughout the course of your business.

Bail Jumping for Beginners in Washington State

In Washington State, a person commits the crime of "Bail Jumping" if he or she has been released on their personal recognizance, or on bail, and released with the knowledge they are required to return to court for a subsequent hearing. Revised Code of Washington 9A.76.170(1). A person is also guilty of bail jumping if they have knowledge of the requirement to report to a correctional facility to serve a sentence and fail to do so. Id. In layman's terms, if you are charged with a crime and do not show up to court when you know you are supposed to, or if you do not report to jail (or prison) to serve your sentence when you know you are supposed to, you are guilty of the crime of bail jumping.
The crime of bail jumping can be a felony or a misdemeanor. The class, or level, of the bail jumping charge depends on the offense you are originally charged with and fail to appear for. Bail jumping is:
(a) A class A felony if the person was held for, charged with, or convicted of murder in the first degree;(b) A class B felony if the person was held for, charged with, or convicted of a class A felony other than murder in the first degree;
(c) A class C felony if the person was held for, charged with, or convicted of a class B or class C felony;
(d) A misdemeanor if the person was held for, charged with, or convicted of a gross misdemeanor or misdemeanor.
Revised Code of W`shington 9A.76.170(3).
Is there any defense to bail jumping? Yes. There is an affirmative defense. An affirmative defense means you admit that you committed the act, but it was legally justified. The defense is laid out in the bail jumping statute. It states:
It is an affirmative defense to a prosecution under this sectionthat uncontrollable circumstances prevented the person from
appearing or surrendering, and that the person did not contribute
to the creation of such circumstances in reckless disregard of the
requirement to appear or surrender, and that the person appeared
or surrendered as soon as such circumstances ceased to exist.
Revised Code of Washington 9A.76.170(2).
The question is: What is considered "uncontrollable circumstances"? Uncontrollable circumstances mean you have no control over the circumstances that caused you to miss court. An act of God may qualify. For example, if you miss court because a tornado picks up your car (or you) and smashes it (or you) to the ground, then you may have a pretty good defense that you missed your required court date based on uncontrollable circumstances. If you are in the hospital, that may qualify if you can get a note from your doctor that you were hospitalized and were physically unable to go to court. Be careful, however, if you were in the hospital because of something you did, the prosecutor may argue that you "contributed to the creation of such circumstances". If you are kidnapped and being held hostage, that may also qualify as a defense. Whatever the uncontrollable circumstance that keeps you from making your court date, just make sure that as soon as you are able, you get yourself on the court calendar so that you comply with the requirement of appearing or surrendering as soon as your uncontrollable circumstance, ceases to exist.
There may be other defenses that would fall under the category "burden of proof". That means the prosecuting authority simply does not have enough evidence to prove each element of the charge beyond a reasonable doubt. For example, they may not have any record that you were given notice of the required court date and therefore, could not prove the element of knowledge.
Generally speaking however, proving a charge of bail jumping is relatively easy for the prosecutors. All they need is 1) a certified copy of the promise to appear to court on the specific day that was signed by the defendant when they received the court date, and 2) a witness, such as a court clerk who can testify that on the date the defendant was required to appear, the court record indicates he or she did not appear.
A copy of the promise to appear signed by the defendant shows knowledge of the requirement to appear. In the county where I practice, the language in the order setting the next mandatory court date states:
The Defendant is ordered to appear at all Fit for Trial Hearings[a pretrial or status hearing]... The Defendant's failure to appear
at Trial or at the Fit for Trial or any other hearings set by the
Court may result in issuance of a Bench Warrant, Forfeiture of
Bail and/or criminal prosecution for Bail Jumping pursuant to
Revised Code of Washington 9A.76.170.
A bail jumping charge can be very difficult to defend against. Simply forgetting your court date is not a defense. Division Two of the Washington State Court of Appeals held that based on a plain reading of the statute, "I forgot" is not a defense. The prosecution only has to prove that he received knowledge of the court date, not that he had knowledge of the date everyday thereafter.
For the defense attorney, they must research the law and the records in the case. They must determine whether the hearing was one for which the defendant was actually required to appear. There are different types of hearings and not all require mandatory appearances. They must research and determine if the defendant actually had knowledge of the requirement to appear at the hearing and if so, if there is any actual evidence to prove it. Is there a live witness like a clerk that will be called by the prosecution? Is there a certified copy of a signed promise to appear? Finally, they must investigate the reason for the failure to appear and determine if it was an "uncontrollable circumstance".
As stated above, bail jumping is a misdemeanor if the defendant "was held for, charged with, or convicted of a gross misdemeanor or misdemeanor." Revised Code of Washington 9A.76.170(3)(d). The maximum penalty for a misdemeanor is 90 days in jail and a $1000 fine. In those cases, the sentencing judge has the authority to sentence the bail jumper anywhere from 0 to 90 days in jail and up to a $1000 fine. In addition, the defendant may be placed on probation and be required to pay probation fees.
If the bail jump offense falls into one of the felony classes, it becomes a little more cnmplicated. In Washington, the sentencing scheme basically works on a grid system. The vertical edge of the grid is the "seriousness level". The horizontal edge is the "offender score". There are 16 levels of seriousness in the Washington system. Level sixteen has only one offense: Aggravated First Degree Murder. The only two penalties for that offense are Life in Prison Without the Possibility of Parole and the Death Penalty, regardless of your offender score. The lowest seriousness level is One. That level includes crimes such as Second Degree Theft (theft of property valued between $750 and $5000) and Forgery. The offender score consists of qualifying prior felony convictions. When you determine the seriousness level of the offense and the offender score, you will find the "standard range" sentence the court must impose. There are exceptions to imposing a sentence within the standard range but that is a discussion for another day. Generally, the court must impose a sentence within the standard range. If that happens, no one may appeal that sentence. If the court imposes an "exceptional" sentence outside the standard range, either party may appeal.
Bail Jumping on a charge of First Degree Murder has a seriousness level of six. With an offender score of 0 (zero), the standard range sentence is twelve months plus one day (which means prison) to fourteen months. The offender score only goes to nine on the sentencing grid. Anything higher than nine will fall into the standard range for an offender score of nine. The standard range for Bail Jumping with First Degree Murder with an offender score of nine is 77 to 102 months in prison.
Bail Jumping on an original charge of a Class A felony has a seriousness level of Five. The standard sentencing range begins with 6 to 12 in your local county jail. For an offender score of nine-plus, the range is 72 to 96 months in prison.
Finally, Bail Jumping on a Class B or C felony has a seriousness level of Three. With an offender score of 0, the range is one to three months in jail. The range for an offender score of nine-plus is 51 to 60 months. Sixty months, or five years, is the maximum sentence.
As you can see, the offense of bail jumping is easy to commit. If you simply forget your court date, you can be charged and convicted of bail jumping. You can also see it is easy to prove for the prosecution and difficult to defend against for the defense and the consequences are serious.
So, the word to the wise is DO NOT MISS COURT! The wise will not even be late. If they call your name and you are not there, you risk getting a Failure To Appear, a bench warrant and a charge of bail jumping. Assist in your defense, not your prosecution; do not miss your court date.

Securing a Patent Is the First Step in Realizing a Return for Your IP Invention

Obtaining a patent is the first step in monetizing or selling your intellectual property patent for a profit on the open market. IP brokers are experts in assessing the value of and selling patents to U.S. based or global investors. Patents sales take place in industries such as computer and other technology, medical devises, communications including mobile technology, and other intellectual property assets to a range of inventors and entrepreneurs who are always looking for new and improved IP products.
A patent for your invention ensures you have "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or importing the invention into the United States," according to the U.S. Patent and Trademark Office. Granted for new inventions, patents are also granted for improvements on existing patents, including the invention itself or the design of a new invention.
The U.S. Patent and Trade Office (USPTO) is the institution that awards patents. The process of obtaining a patent requires that you keep a detailed record of your invention including every step taken in creating the invention, including how you came up with the idea. Along with this description, diagrams of each step, including modifications and prototypes are most often required. Although USPTO mandate is to give assistance in helping you secure a patent, they strongly recommend you secure a patent attorney or other experienced professional to guide you through the patent process.
At the time of application, your invention cannot be for sale. You should also research the approximate value of your invention or have the professional you hired help you in this process. There are associated fees to get a patent so you will want to make sure that your invention is worth at least the cost of obtaining the patent. Small entity fees are much less than those that apply to those not meeting the definition. The official designation of "small entities" includes individuals, small businesses, and nonprofit organizations. Small businesses industry-specific, and based on the number of employees and annual receipts.
You will also need to complete a thorough patent search to make sure your invention is new. While this part of the process is time-consuming, it is a necessary step. You or your representative will need to search scientific and technical journals as well as a Patent and Trademark Depository Library. Not only should you search for U.S. patents, but depending on your invention and the degree of protection you are seeking, foreign patents may be applicable as well. You are likely to find similar patents and be able to prove how your patent is different or improves on earlier designs.
When it comes time to file an application, there are two primary options. You can file a provisional patent application or PPA that provides you with a patent pending status, essentially locking in the date of your application. This step involves a smaller upfront outlay of cash, however a regular patent application is required within one year.
An oath or declaration claiming that the inventor is the first to have invented the subject or product accompanies the application material. There are many other fees associated with the patent process, depending on whether you are seeking domestic and/or global protection, if you want to apply for an expedited process, and other options.
What follows your submission of application is an examination process that involves an USPTO examiner who will gather precise information about your invention to verify that it is indeed unique and to define the scope of the protection you are seeking. The entire patent issuance process generally takes 12 to 36 months, depending on the industry associated with your invention. Paying for a prioritized examination generally reduces that time to colder to the 12-month period. Once your invention is in the patent pending phase, you may begin the process of selling or monetizing your invention as it then that you have secured the rights to the invention.
Jillynn Stevens, Ph.D. is a writer with a vast array of subject matter expertise. Along with publishing articles for large and small businesses, she researches, writes and publishes reports on various public policy issues.

Trademark and Brand Enforcement in Social Networking - Using Terms of Use

In today's Web 2.0 world, businesses face new ways to broadcast their presence and advertise their goods and services, and the Internet is an effective, far-reaching tool for brand marketing. As businesses explore new ways to advertise online, it has become apparent that brand marketing has transcended buying ad space on popular search engines and other informational sites to actively engaging with their consumers in conversations and sharing information. Now businesses must embrace social networking as a marketing strategy.
Social networking sites have continual membership growth. Facebook, for example, is estimated to have more than 350 million active users. Twitter now boasts around 32.1 million users. MySpace attracts about 115 million people to its site each month. With such a wide consumer base at the ready, how have businesses used these social networking sites to their advantage? As businesses move into the cyber frontier, how they protect their brands is critical. To help businesses police their brands and leverage the power of social media, these social networking giants have put mechanisms in place to help guard against fraud, impersonation, and rights infringement. After all, social networking strategies only work if everyone plays by the same rules.
Social Media as a Marketing Tool
Facebook, the largest social networking site, is a good example of how social networking sites have become an effective marketing tool for businesses. Facebook has developed its website to allow for Pages, customizable mini-sites geared toward organizations, products, or public personalities, to join the conversation with Facebook users. A Page essentially allows fans to become brand advocates. It allows users to post comments, view news and information about a certain product, and learn more about a company. Businesses have jumped on this viral form of advertising.
Facebook now has more than 1.6 million active Pages. More than 700,000 local businesses have created Pages to reach their target demographics. In fact, it is estimated that Pages have created more than 5.3 billion fans. The Page form on Facebook requires the creator of the Page to be the official representative of an organization, business, celebrity, or brand. As such, the representative becomes the Page Organizer, able to add and remove content, manage the information appearing on the site, and increase the viral effects of the advertising. Each Page (depending on the type of organization selected) comes equipped with pre-selected formatting options, such as tabs for Discussion Boards, Events, Information about the organization, and Photos. The Info tab, for example, lets you share key information about your company, such as Website, mission, overview of the business, and products. Fans can post comments on a company's wall, view videos, and read about upcoming events or promotions. Every time a Page has activity, such as postings or announcements, this activity becomes visible on the NewsFeed. Information about your fans regarding their activities on your Page also becomes available for viewing by their friends, thus opening the door for others to become a fan of your Page.
This is what causes the viral nature of advertising on Facebook. Businesses can capitalize on this market and gain valuable information from tools such as Facebook Insights, which, includes data on fans' engagement with posts from a business's Page. Businesses have also "opened up shop" on Twitter and MySpace. Some businesses have launched official Twitter accounts and allow (or require) employees to post daily or weekly Tweets, often about promotions or events.
What's interesting about these sites is that there isn't a filter that blocks out negative or unflattering information. As such, questions arise as to what a business can do once the angry "fan" or follower posts negative comments on a wall, if a disgruntled former employee opens a page in your name, or if someone poses as a representative of your business claiming your company name or brand as their username.
Social Networking Sites and Their Terms of Use
The simplest and most cost-effective way to protect a brand on social networking sites is to utilize the site's dispute resolutions mechanism. Most of the social networking giants have procedures in place for submitting complaints about copyright infringement, trademark infringement, and privacy concerns.
Facebook: The Facebook Statement of Rights and Responsibilities asks users to agree that they are the rightful owners of all the content and information they post on Facebook. They are also asked to agree that they will not create accounts for anyone without their permission. Users are not allowed to post content or take any action on Facebook that infringes or violates other's rights or otherwise violates the law and Facebook reserves the right to take down content or remove a webpage that is found to be infringing on those rights. Facebook provides its users with tools to help address intellectual property issues. Most of these tools are forms that are submitted electronically.
Twitter: The Twitter rules specifically state that they don't monitor user's content and will not censor such content except in limited circumstances. Twitter does not allow impersonation of others that does or is intended to confuse, mislead, or deceive others. However, ways for monitoring such impersonation has proved to be a problem for Twitter since their biggest concern is fake accounts. Twitter also reserves the right to reclaim usernames on behalf of businesses or individuals that hold legal right or trademarks in those user names. To prevent name squatting, Twitter suspends accounts that are inactive for more than six months.
Business owners using social networking sites would be wise to read the terms of use to be well-versed in protective actions these companies have put in place to help police brands. It's a new marketing world, and greater tools can lead to greater risks if a business isn't careful. Just as businesses benefit from social networking sites, the social networks rely on businesses to leverage their power. It's a symbiotic relationship-and must be protected.

The Benefits of Hiring an Experienced Lawyer

Unfortunately for many of us, sometimes accidents happen and legal proceedings have to be taken. There are many different people who believe that hiring a lawyer should be the last line of defense against the thing you feel wronged by, whether it's a corporation, business, store or individual. This is simply not the case, because every single situation is different, especially in the case of wrongful arrest. It is important to realize that hiring, or at the very least contacting, an experienced lawyer should be one of the first options on your list of things to do. Included below are the most crucial reasons why.
Hiring a Lawyer Can Prevent Charges From Even Being Filed
In the event of the arrest of you or someone you know, emotions tend to run high and it's easy to feel scared or overwhelmed. One of the first things that you should do is call a lawyer or call someone who can get a lawyer for you. It is a common misunderstanding that being arrested equates to having charges filed against you. It does not. Often when you request a lawyer early, it deters charges from being filed against you at all and you are then released. A classic example of this is when people immediately proclaim that they won't say anything to police without having their lawyer present. This is for their protection, is precautionary and often works.
Early Representation Can Often Lead to Mitigation
There are many facts that experienced lawyers will be able to relay to you once they are called. In the event, charges have been brought on you, a knowledgeable attorney can assist you with a list of ways that you may be able to mitigate your case, get a lesser sentence or even plea bargain. These are all best case scenarios when it comes to the options they lay out for you versus serving jail time.
Make Sure You Hire a Specialized Lawyer
Those who are on the other end of the spectrum, those who may wish to file claims against either a separated spouse or a doctor that is incompetent, or something that deals with a specific person in a particular entity, it is best to get a lawyer who specializes in that field. So whether it's a divorce lawyer, personal injury lawyer, malpractice lawyer and so on: it's vital to hire the right kind of lawyer. A family health lawyer is more versed in illness and claims than a corporate lawyer is.
Understand That It Isn't That Expensive to Get Legal Representation
Many people are under the assumption that it costs an arm and a leg for a good attorney. This is not always the case. Especially when you take into account the fact that many law firms are required by the state to do a certain number of pro bono cases, or cases where they do not charge any fees. It's important to realize that even if you do have to shell out a bit of money in the end, it will be worth it to feel like you were adequately represented and your issues or problems were extinguished.