Chapter 4 Torts Intellectual Property and Cyber Torts
Chapter 4 Torts, Intellectual Property and Cyber Torts
Learning Objectives q. What is a tort? q. What is the purpose of tort law? What are the two basic categories of torts? q. What are the four elements of negligence? q. What is intellectual property? q. What steps have been taken to protect intellectual property rights in the digital age?
Tort Law q A tort is a civil, legal injury to a person or property caused by a breach of a legal duty. q Plaintiff (the injured party) sues the Defendant (the Tortfeasor) for damages. q Three Torts: ü Intentional ü Unintentional (negligence-no fault) ü Strict Liability (absolute liability)
Intentional Torts Against Persons q. Assault and Battery üAssault: the reasonable apprehension or fear of immediate contact üBattery: completion (contact) of the assault. üDefenses: • Consent • Self-Defense and Others • Defense of Property
Intentional Torts Against Persons q. False Imprisonment üConfinement or restraint of another person’s activities without justification. üMerchants can detain a suspected shoplifter as long as there is probable cause. q. Infliction of Emotional Distress üExtreme and outrageous conduct. üSome courts require physical symptoms.
Intentional Torts Against Persons q Defamation ü Publication of a false statement (oral or written) that injures a person’s good reputation. • Publication: third party must hear or see statement • Statements made on the internet may be actionable. • An individual who re-publishes the statement will be liable. ü Statement must hold someone up to contempt, ridicule or hatred in the community.
Intentional Torts Against Persons q. Defamation (cont’d) üSlander per se (no proof of damages is required): • Loathsome communicable disease • Professional impropriety • Imprisonment for a serious crime • Unmarried woman is unchaste
Intentional Torts Against Persons q. Defamation (cont’d) üDefenses: • Truth is normally an absolute defense • Statement was Privileged: – Absolute: judicial and legislative proceedings – Qualified: good faith, limited. • Public Figures: plaintiff must show statement made with “actual malice. ”
Intentional Torts Against Persons q. Invasion of the Right to Privacy üPerson has the right to solitude. Breach of that duty is a tort. üAppropriation üFalse Light üPublic Disclosure of Private Facts üRights of Internet users?
Intentional Torts Against Persons q. Misrepresentation (Fraud) üIntentionally deceive another to believe in a condition that is different from the condition that already exists. • • Knowing misrepresentation of fact. Intent to induce innocent party to rely Justifiable reliance by innocent party Causation and Damages. üContrast: “puffery” or statements of opinion.
Intentional Torts Against Persons q. Wrongful Interference with Contracts üValid, enforceable contract exists between two parties üThird party knows about contract üThird party intentionally causes either party to breach the original contract.
Intentional Torts Against Persons q. Wrongful Interference with Business Relationship üDistinguish competition vs. predatory behavior. Predatory behavior is unlawfully driving competitors out of market. üTo prevail, Plaintiff must show Defendant targeted only Plaintiff’s customers and product. q. Defenses to Wrongful Interference: Interference was justified or permissible.
Intentional Torts Against Property q. Trespass to Land q. Trespass to Personal Property q. Conversion q. Disparagement of Property üSlander of Quality üSlander of Title
Unintentional Torts (Negligence) q. Occurs when someone suffers injury because of the defendant’s failure to comply with a legal duty. q. Defendant (tortfeasor) creates foreseeable risk of injury. q. If no risk is created, there is no negligence.
Negligence--Analysis q. Did the Defendant owe the Plaintiff a legal duty of care? q. Did the Defendant breach that duty? q. Did the Plaintiff suffer a legal injury? q. Did the Defendant’s breach of duty cause the Plaintiff’s injury?
Negligence q. Duty of Care and Breach üDuty is based on reasonable person standard. üHow would a reasonable person have acted under the circumstances? üDuty of Landowners to business invitees and tenants to keep common areas safe. üDuty of Professionals to clients (attorneys, CPA’s, doctors)
Negligence q Injury Requirement and Damages ü Plaintiff must suffer a legally recognizable injury. ü Not all injuries can be compensated. q Causation ü Causation in Fact (“but for” test) ü Proximate Cause (foreseeably strong connection) ü Palsgraf (1928)
Negligence q Defenses ü Assumption of the Risk ü Superseding Intervening Cause • Event must be unforeseeable ü Contributory Negligence (few jurisdictions) • Plaintiff recovers nothing if he is at fault. ü Comparative Negligence (more common) • As long as Plaintiff is less than 50% at fault he can recover a pro-rata share of the verdict.
Strict Liability q. Does not require fault, intent or breach of duty. q. Usually involves ‘abnormally dangerous’ activities and risk cannot be prevented. q. Dangerous Animals. q. Product Liability—manufacturers and sellers of harmful or defective products.
Cyber Torts q. Can a person be liable for a tort committed in cyberspace? q. Should an Internet Service Provider (ISP) be liable for the actions of its subscriber? q. Who should be liable for “spam” and computer viruses that cause injury?
Intellectual Property q Intellectual Property (I. P. ) is any property that is the product of an individual’s mind, e. g, books, software, movies, music. q U. S. Constitution protects I. P. in Article I Section 8. Congress shall “promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries. ” q Ownership of I. P. is strategically
Trademarks & Related Property q. Trademark üDistinctive motto, mark or emblem üStamped or affixed to a product üSo that it can be identified in the market. q. Statutory Protection for Trademarks üFederal Lanham Act of 1946 üFederal Trademark Dilution Act of 1995
Trademarks & Related Property q Trademark Registration ü U. S. Patent and Trademark Office www. uspto. gov gives notice to 3 rd parties. ü A mark can be registered if in use or mark will be used within 6 months. q Trademark Infringement ü Unintentional or intentional substantial copying of mark. ü Strong marks vs. generic terms.
Trademarks & Related Property q Service Mark ü Similar to trademark but used for services. ü Includes characters in TV and radio. q Trade Names ü Applies to a business (not a product). q Trade Dress ü Image and appearance of a product or shop (Example: Starbucks coffee stores)
Cyber Marks q Trademarks in Cyberspace q Domain Names ü Trademarks in Cyberspace (example: Nike. com) ü Conflicts—ICANN q Cybersquatting ü Occurs when 3 d party registers a domain name that is the same or similar to another company’s own trade name. ü 1999 Anticybersquatting Consumer Protection
Cyber Marks q. Meta Tags üKeywords in web pages used by internet search engines. üPlayboy vs. Calvin Designer Label q. Online Trademark Dilution üTrademarks can be diluted on the web. üHasbro v. IEG (over candyland. com)
Patents q Patent ü A Government monopoly that ü Gives inventor the exclusive right to ü Make, use or sell and invention for 20 years. q Patents for: ü Invention ü Design ü Process (software patent)
Patents q. Infringement üManufacture, use or sale of another’s product or design without permission (license). q. Business Process Patents ü 1998 State Street Bank v. Signature Financial ruled that a method of doing business could be patented. üAmazon. com’s “one-click” patent.
Copyrights q. Copyright: üIntangible property right granted by federal statute to the author for life plus 70 years. üAutomatic protection. üWork must be original and “fixed in a durable medium. ” Ideas are not protected, but the expression of an idea is.
Copyrights q Infringement ü Form or expression is copied (does not have to be in its entirety) ü Penalties, damages and criminal action are possible. q Exception: “Fair Use” ü Certain persons or organization can copy materials without penalty (e. g. , education, news, research)
Copyrights in Digital Information q Digital media can easily be copied. q Copyright Act of 1976 ü Copy of a program into RAM is infringement. ü Revision or re-sale of freelance authors works can be infringement. NY Times v. Tasini (2001). q MP 3 and File-Sharing. ü Napster case.
Trade Secrets q Trade secrets are confidential, not filed with the government. q Can be customer lists, formulas, pricing, etc. q Theft of trade secrets is now a federal crime under the Economic Espionage Act of 1996. q Cyberspace: employees can easily email information to competitors.
Licensing q. Allows a third party to lawfully use a patent, trademark, copyright or trade secret. q. The licensee pays the licensor (the owner of the IP) a fee for use. q. U. C. I. T. A. is a uniform code that licenses the use of software.
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