by eclewis | Dec 18, 2014 | IP Law
Recent developments coming to light regarding the use of music in torture by the CIA in Guantanamo indicated that Canadian industrial band Skinny Puppy’s music was one of the artists whose music was being used. As a semi-serious response, Skinny Puppy has since invoiced the Federal Government for $666,000 for the use of their music without permission or licensing from the group and is considering a lawsuit.
Skinny Puppy’s self-described “unsettling” music being used in torture was not surprising to them, but they were not very happy about it. It is interesting given the group’s history as well. Skinny Puppy has been a long-time proponent for animal rights and against animal dissection and other practices that Skinny Puppy considers akin to torture of animals.
While there have been numerous reports over the years of different music from Metallica to Sesame Street being used in such ways, nobody has appeared to try and take legal action for it yet. Nevertheless, it would likely end up being a long and unsuccessful road trying to fight the Federal Government against these practices.
Owners of copyrights have the exclusive rights to all of the following under 17 U.S.C. § 106, and if you do one of the following without being an owner then it would classify as copyright infringement:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Since there is no evidence the government copied or distributed Skinny Puppy’s music, it looks like the big question is whether or not using the music in a prison in Cuba would constitute a “public performance” under the law or if the government is otherwise protected in its use. It will be interesting to see how much further this action goes.
If you have questions about copyright or other intellectual property rights for your music or business, contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Lawyer, Elizabeth Lewis, 720-258-6647 or email her at Elizabeth.Lewis@eclewis.com.
by eclewis | Oct 22, 2014 | IP Law
As part of our series on open source software licenses, we have already discussed the GNU General Public License, the GNU Lesser GPL, and the Apache License. This time, we will discuss two other popular open source software licenses that are much shorter and simpler. However, while these licenses are arguably the most unrestricted licenses available, they can still be important in protecting you from legal liability.
Both the MIT License and the BSD License discussed below, like the Apache License, do not impose any of the “copyleft” tactics found in the GPL and LGPL that restrict use of the software to only other open source and freely distributable software. Like Apache, MIT and BSD do not require the source to be distributed with the software, but unlike Apache, GPL, and LGPL, the MIT and BSD Licenses do not require notation of modifications or prevent people from acquiring patents based on your original work.
The BSD and MIT Licenses do still protect you by disclaiming warranties and limiting liability, as well as make sure you are credited for the original work.
BSD License
The newer BSD Licenses are short and come in two varieties, a three-clause or two-clause version. The three-clause version is seen below and the two-clause version simply eliminates clause three to allow for use of the copyright holder’s name in advertising of derivative works. If you do not wish to have your name associated with such works, you should use the three clause version and also avoid the MIT License below, since it does not offer such limitation.
Copyright (c) <YEAR>, <OWNER>
All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
3. Neither the name of the copyright holder nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
The MIT License (MIT)
The MIT License is an even shorter license, that is very similar to the two-clause version of BSD. The entirety of this license is seen below.
Copyright (c) <year> <copyright holders>
Permission is hereby granted, free of charge, to any person obtaining a copy
of this software and associated documentation files (the “Software”), to deal
in the Software without restriction, including without limitation the rights
to use, copy, modify, merge, publish, distribute, sublicense, and/or sell
copies of the Software, and to permit persons to whom the Software is
furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in
all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN
THE SOFTWARE.
If you have any questions about deciding on a license or creating specialized license for your software, contact the Law Office of E.C. Lewis, PC, home of your Denver Small Business Lawyer, Elizabeth Lewis at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | Oct 15, 2014 | IP Law
We’ve already discussed the most popular open source software license, the GNU General Public License (GPL), as part of our series on open source software licenses, but this time we will review a common variation of the GPL known as the Lesser GPL and the Apache License.
As a reminder, open source software licenses generally allows users to make use of, change, and share the software with others without limitation, while also providing the complete source code to the user.
The GNU Lesser General Public License (LGPL)
The LGPL is essentially the same as the GPL and it will keep the LGPL licensed software free, but there is one critical distinction. It allows users of the LGPL software to combine it with other software, whether it is free or proprietary. This is done in a relatively simple fashion by taking the original GPL and adding permissions to it (this is done by removing section 3 of the GPL and replacing it with the LGPL language).
If you want to permit your software to be combined with proprietary software, use the LGPL, if you want to restrict it to being combined with freely distributable software, go with the GPL. To release software under the LGPL, simply add “Lesser” before “General” in all three places found in the instructions to the GPL, and include the text of the LGPL in addition to that of the GPL with the software and source code.
Apache License
Apache is another popular open source software license that is used for the Apache Web Server software, which is and has been the most popular web server on the internet since 1996. It is also the license used by Google for the Android mobile operating system.
The Apache License is different from the GPL in that it does not use any “copyleft,” meaning it does not require modifications or derivative works of the software to also be licensed under the same terms as the original software. You are also not required to provide the source code when you distribute the software to others.
Like the GPL and LGPL, the Apache license disclaims warranties, protect you from liability and others patenting your work, and requires them to give you credit in their future works, as well as note any modifications to it. Therefore, if you are not interested in “copyleft” limitations, the Apache license may make sense for you.
This is the language you use to apply the Apache License to your software, which includes a link to the full language:
Copyright YEAR NAME OF COPYRIGHT OWNER
Licensed under the Apache License, Version 2.0 (the “License”);
you may not use this file except in compliance with the License.
You may obtain a copy of the License at
http://www.apache.org/licenses/LICENSE-2.0
Unless required by applicable law or agreed to in writing, software
distributed under the License is distributed on an “AS IS” BASIS,
WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.
See the License for the specific language governing permissions and
limitations under the License.
Need An Attorney to Create a License for Software?
Elizabeth Lewis is an experienced software licensing attorney in Denver. If you have questions about how to create a license for a software, Contact the Law Office of E.C. Lewis today!
by eclewis | Oct 8, 2014 | IP Law
This post begins a series on open source software licenses. Look forward to forthcoming posts covering more open source software licenses, as well as the differences between them.
First of all, what is an open source software license? Open source software licenses are a license that copyright holders (the original creators) apply to their software which generally allows users to make use of, change, and share the software with others without (much) limitation, while also making the source code available, but still protecting themselves from legal liability.
One of the most popular of such licenses is GNU’s General Public License. To see the complete language, visit https://www.gnu.org/licenses/gpl.html. Not only does this license make your software open source, but it also takes measures to ensure that it stays that way, even if someone modifies and redistributes it. This practice is known as “copyleft,” which grants licensees the right to freely use, change, and share the software, but it also requires licensees to provide the program, or any modified version, under the same license, in order to keep it freely distributable.
Now we will do an overview of the features and requirements of the latest version (v3) of the GNU GPL.
- You must provide a full copy of the license with the program.
- You must make the source code available to the user of the program.
- You have the option to charge a fee for the program.
- There is no warranty of any kind with the program, but one can be provided separately for a fee.
- Any modified versions of the program must be clearly marked as such and licensed under the GNU GPL also.
- Users can sell modified versions of the program or programs of their own containing code licensed under GNU GPL, if they provide the source code and users can freely redistribute and modify it just as under the GNU GPL.
- Patents cannot be used to render the program non-freely usable, modifiable, or distributable.
- Users have unlimited permission to run the software but if a user fails to comply with the license in some way, it is terminated. (Generally, if the user ceases all violations, the license is provisionally reinstated unless the copyright holder terminates your license completely within 60 days.)
- All recipients of the program are automatically granted this license to use the program.
- There is a limited ability to supplement the license with additional terms.
- The option to use either the stated version of the license or any future versions of the GNU GPL is provided within the license.
- Your liability is limited by this license.
In order to use the GNU GPL for your software you must include all of the following language in your program and at least the first section below in each file, along with a notation to where the complete notice and license can be located. You should also provide information on how you can be contacted as well.
<one line to give the program’s name and a brief idea of what it does.> Copyright (C) <year> <name of author>
This program is free software: you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation, either version 3 of the License, or (at your option) any later version.
This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details.
You should have received a copy of the GNU General Public License along with this program. If not, see <http://www.gnu.org/licenses/>.
If you have any questions about deciding on a license or creating specialized license for your software, contact the Law Office of E.C. Lewis, PC, home of your Denver Small Business Lawyer, Elizabeth Lewis at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | Jul 31, 2014 | Internet Law
Did you know that if you do business with someone or sell to consumers in the European Union, that you must comply with EU law, even if your business is located in the United States? This post will review both EU and Canadian Privacy Policy Laws and what it means for US businesses.
In the EU, organizations that collect personal data must do so in accordance with the Data Protection Directive. US businesses must also provide an “adequate level of protection” if they do business with the EU. Personal data can only be gathered under strict conditions and for a legitimate purpose. Further, this information must be managed by the organization in a way that protects certain rights and prevents misuse.
If you are a US company, you can comply with the requirements by joining the US-EU Safe Harbor Program. To do so, you must adhere to the following seven Safe Harbor Privacy Principles:
- Notice-Organizations must notify individuals about the purpose for which they collect and use information about them, contact information of the organization, the means the organization provides for limiting its use and disclosure, and the kind of third parties that the organization discloses your information to if any.
- Choice-Organizations must provide the opportunity to opt out (and if the information is sensitive like health information, it must be in the form of an opt in) of the collection of personal information that will be disclosed to a third party or used for any purpose beyond that of its original collection.
- Onward Transfer-In order to disclose to a third party, an organization must comply with the above Notice and Choice principles.
- Access-Individuals must be able to view, correct, amend, or delete their personal information, with some exceptions.
- Security-Reasonable precautions must be made by organizations to protect personal information.
- Data Integrity-Personal information collected must be relevant to all the purposes it will be used for.
- Enforcement-Organizations must have accessible independent recourse mechanisms for complaints to be resolved and have damages awarded if applicable. They must also have procedures for verifying the adherence to all principles, and to correct problems from any failures to comply.
In Canada, the applicable law is the Personal Information Protection and Electronic Documents Act or “PIPEDA.” It applies to any organization that collects, uses, or discloses personal information in the course of commercial activities. As a US company, you will still fall within the scope of PIPEDA if you have operations in Canada. Also, even if you do not have any Canadian operations but are collecting the personal information of Canadian citizens, you may be found to be within the scope of the law.
Any collection, use, or disclosure of personal information under this law can only be for purposes that a reasonable person would consider appropriate under the circumstances. In addition to this, there are ten principles that are to be followed to comply.
- Accountability-There must be people responsible for your organization’s compliance with the ten principles, protect all personal information, and implement personal information policies and practices.
- Identifying Purposes-The organization must identify, document, and inform the user the reasons for collecting personal information at the time of collection or beforehand.
- Consent-The user must be meaningfully informed of the purposes for collection and use or disclosure of the personal information and then consent to them.
- Limiting Collection-An organization cannot deceive, mislead, or be indiscriminate with their collection of personal information or statements of reasons for collecting it.
- Limiting Use, Disclosure, and Retention-Personal information cannot be used beyond its original purpose for collection or kept longer than is necessary. There must also be procedures in place for retention, destruction, and the resolution of grievances in relation to the data.
- Accuracy-The possibility of disclosing or making a decision based on personal information that is incorrect must be minimized.
- Safeguards-The personal information must be protected from loss, theft, unauthorized access, disclosure, copying, use, or modification, regardless of the information’s form.
- Openness-The organization must have understandable policies for the management of personal information that are readily available to users.
- Individual Access-Users should generally be given the opportunity to access the personal information that the organization possesses.
- Challenging Compliance-The organization must provide simple and easily understandable complaint procedures that inform of all avenues of recourse, investigate all complaints, and take appropriate corrective measures.
If you need help creating or updating the privacy policy for your business’ website, please contact the Law Office of E.C. Lewis PC, home of your Denver Business Lawyer, Elizabeth Lewis at 720-258-6647 or email her at Elizabeth.Lewis@eclewis.com.
