Software Piracy Law. Hard – working software resellers attempting to make an bona fide income are now facing a conflict with software pirates that’s hotting up.

New Battle against Piracy

Hard – working software resellers attempting to earn an bona fide income are nowadays coming to terms with a conflict with software pirates that seems to be getting more ardent every day; this is caused by burning, ripping, mod-chips and and p2p technologies that let software pirates to peddle unlawful software at discount prices at the good old folk – friendly weekend bazaar.

Brand-new tougher software laws for Australia.

Because of the Australia – US Free Trade Agreement that came into effect at the start of the year, persons who now produce illicit copies of software that are thereafter used in business or are duplicated with the intention of receiving a profit or commercial gain, could be slugged with criminal penalties, including prison terms. The software laws were designed to establish Australia on an equivalent footing with the US.

Even though piracy laws in Australia are currently not uniform to those in place in the USA, the follow developments in the States show a picture of what is to come:

One familiar fight between governments and software pirates is the appropriately named Operation Buccaneer, a continuing collection of investigations and prosecutions against pirates carried out by the the US Department of Justice.

Operation Buccaneer tries to come down on unlawfully distributed music games, movies, software, and other copyrighted products. According to the US Justice Department, no less than thirteen copyright infringers have now been sentenced to federal jail terms of as much as forty six months!

In the past month in Australia, a deluge of copyright-related cases has continued to spill out from courthouse doors. A case involving BitTorrent, ISP Swiftel and Music Industry Piracy Investigations come to a conclusion. In that case a few employees of Swiftel’s and clients allegedly made a BitTorrent system that allowed the unlawful distribution of 1000′s of video and music files.

Next was the Microsoft case, handed down on 28 Oct 2005 by Australia’s Federal Court (it’s highest court) where Microsoft hit out at Sydney’s PC Club Australia for pirating it’s software. In the end, PC Club was ordered pay a huge $1. 3 million to the software behemoth.

The new laws are tightening Australia’s stranglehold on piracy, and the heavy fines and jail sentences will create some sleepless nights for pirates. It will be intriguing to see how useful the new software laws will be.

Note: This article is only for informational purposes. It is not legal advice nor a substitute for legal advice. Readers should get legal advice in relation to their own circumstances.

About Author

Alan Arnott is a technology lawyer with qualifications in computer science and law. He is an associate of Arnotts, a software law firm in Sydney Australia.

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An attorney is a practitioner in a court of law who is entitled to prosecute and defend actions in court on the retainer of clients. Other terms that are invariably used for attorney include attorney and counselor at law, attorney-at-law, simply attorney, and lawyer. The United States legal system follows a unified legal profession where no distinction is drawn between a lawyer who practices in court and one that does not. There is a solicitor/barrister differentiation in some countries (for example, the United Kingdom and France). In the U.S. system, there is no delegation of routine work to notaries public/civil equivalent.

Job of an Attorney

Once admitted to practice by the states bar association, an attorney could file legal pleadings and argue cases in any state court (usually federal courts require separate admission), offer legal advice to clients, and play a major role in drafting important legal documents such as trusts, wills, deeds, and contracts. In some states, it is also required that real estate closings be done only by attorneys, even though the attorneys role may only involve the primarily notarization of relevant documents and disbursement of settlement money or funds through an escrow account.

Education

In almost all U.S. jurisdictions, it is required to pass the bar exam for any person to be licensed as an attorney. All but a few of these states also mandate that the candidate hold a professional law degree from an accredited law school in the country. Further, attorneys should fulfill regular CLE (Continuing Legal Education) requirements.

The degree, as earned by prospective lawyers in the U.S., is the Doctor of Jurisprudence or the Juris Doctor (J.D.). It is equivalent to LLB in many countries, and even the syllabus is comparable. The difference lies in the fact that the study for a JD is built upon a previous prior undergraduate education, whereas the LLB is just an undergraduate degree. However, those with a JD are not called doctors. Instead, they are addressed by Mr. or Ms.

The Masters in law is still offered in U.S. universities, and it is particularly pursued by foreign students, with a law degree from their respective countries. In order to get familiarized with the U.S. common law, they use their knowledge to take the bar exam in states like California or New York, where a foreign law degree is admissible qualification. Some, on the other hand, after obtaining a masters in the U.S., go back to their own native countries and work as advisers to international clients, especially those from the U.S.

The highest degree in law obtainable in the U.S. is the Scientum Juris Doctor – doctor of justice, literally – or the SJD. Dont mistake it for LLD, which is often, but not always, conferred for honorary purposes.

Unlicensed Practice of Law

In most states in the U.S., a person with a professional law degree but that had never passed a state bar, cant practice as an attorney and engage in the practice of law. In many states, in fact, lawyers practicing without having passed the bar are committing a criminal offence, even though there are certain exemptions. However, certain areas of law such as Patent Law are governed entirely by Federal jurisdiction and hence have an overall U.S. validity.

Attire

American attorneys are not required to wear wigs, robes, or typical Victorian court dresses. Instead, they are expected to don contemporary business suits. However, the United States Solicitor General is an exemption, who wears the traditional 19th-century attire that includes a morning coat with tails.

About Author

Palumbo & Associates, P.C. is a full service boutique law firm which focuses its practice on giving high quality, cost effective litigation representation to its clients in both state and federal court. They treat their clients as what they are, people and not simply case files. Whether youve been arrested and require criminal defense services, received traffic tickets, have been injured in an accident, or find yourself in need of an estate or matrimonial attorney, the staff at Palumbo & Associates, P.C. stands ready to advocate on your behalf.

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The recent decision of the Full Federal Court of Australia in Knight v Beyond Properties Pty Ltd looks at whether the producers and distributors of the popular TV series, Mythbusters, engaged in misleading or deceptive conduct and passing off. The case highlights the importance of obtaining a trade mark registration to protect your rights in a trade name which is to some extent descriptive.

The Full Federal Court unanimously dismissed a claim that Beyond Productions, the Discovery Channel, SBS and Foxtel (“Beyond“) engaged in misleading and deceptive conduct (under section 52 of the Trade Practices Act) and passing off in producing and distributing a series of television programs entitled “MYTHBUSTERS” (“the Mythbusters TV Show“) and three spin-off books from the series.

Facts

The allegations of misleading and deceptive conduct and passing off were made by author, Mr Andrew Knight who, in the early to mid 1990s, wrote the fictional children’s books “Mythbusters: First Cases“, “Mythbusters: Nut Cases” and “Mythbusters: Real Life Adventures in the World of the Supernatural” (“the Mythbuster books“). The books deal with themes of fantasy and are about a group of people who pursue mystery, myths and ghost stories. Mr Knight also had plans to produce a Mythbusters television series based on the concept of his books.

In 1997, Beyond started work on preliminary concepts which, although different from the Mythbusters TV Show, ultimately led to the show’s creation. In January, 1999 Mr Knight (and his partner) wrote to Beyond enclosing material concerning the Mythbusters Books’ concept for television. Although it was clear that Beyond were at that time aware of the name “MYTHBUSTERS”, the primary judge found no-one at Beyond ever considered the material sent by Mr Knight and that the material contained in the Mythbuster Books did not have any significant resemblance to that contained in the Mythbusters TV show.

Pre-production work on the Mythbusters TV Show commenced in late October 2001 and shooting commenced in June 2002. Between October 2002 and November 2006, 70 episodes were produced. The Mythbusters TV show uses modern day science to separate fact from fiction using semi-scientific experimentation and methodology to demonstrate the incorrectness of common misconceptions about physical phenomena. The Mythbusters TV Show first aired (in Australia) on Foxtel in September, 2004 and has become a popular series.

Findings

Insufficient reputation amongst the television viewing public

The Full Court upheld the primary judge’s finding that Mr Knight did not have a sufficient reputation among members of the television viewing public such that Beyond’s use of the name “MYTHBUSTERS” in the Mythbusters TV Show would cause the viewers to incorrectly associate the Mythbusters TV Show with Mr Knight’s Mythbuster Books.

In particular, the Full Court noted that:

(a) although Mr Knight had some reputation amongst the general public in Australia as the author of children’s books bearing the name Mythbusters, he did not have the requisite reputation among members of the television viewing public;

(b) Mr Knight failed to produce satisfactory evidence of the sales of the Mythbuster Books and did not provide any convincing explanation about the absence of this evidence. The Full Court therefore accepted the primary judge’s conclusion that the evidence concerning the sales was insufficient to reach a conclusion that a viewer would make the connection between the Mythbusters TV Show and the Mythbusters Books; and

(c) a number of the events and activities Mr Knight relied upon to establish his reputation occurred either overseas or in private (as part of his attempts to generate interest in producing a TV series based on his Mythbuster Books) and few of these activities occurred during the period in which the Mythbusters TV Show was being produced and screened.

The name “MYTHBUSTERS” is broadly descriptive

Mr Knight did not have a registered trade mark for the name “MYTHBUSTERS”. The primary judge therefore found that as the name “MYTHBUSTERS” is, “to an extent at least, descriptive” of busting myths, Mr Knight needed to show that the name “MYTHBUSTERS” had acquired a secondary meaning such that the name was distinctively associated with him. According to the primary judge, Mr Knight failed to establish that “MYTHBUSTERS” had become associated with him in this way.

According to the Full Court, “MYTHBUSTERS” describes in general terms the breaking of beliefs or understandings wrongly held in relation to a certain topic or proposition. On this basis, the Full Court accepted that the name is broadly descriptive. On the other hand, the Full Court acknowledged that MYTHBUSTERS is not descriptive in the sense that it does not describe the types of myths addressed, the format or methods used in the Mythbusters TV Show. In any event, the Full Court accepted that the term “MYTHBUSTERS” is broadly descriptive and upheld the finding that Mr Knight had not shown that “MYTHBUSTERS” was distinctively associated with him.

Misleading or deceptive conduct – transient misapprehension

The primary judge considered that any misapprehension on the part of the television viewing public that there was an association between the Mythbusters TV Show and the Mythbusters books would be “insubstantial and impermanent” and therefore not sufficiently misleading. Any misconception which might arise from the use of the name “MYTHBUSTERS” in the Mythbusters TV Show would last for only “a few seconds” and be “immediately dispelled” on watching the show and observing the differences in content, style and context.

When characterising a course of conduct as misleading or deceptive, the practical consequences and effect which the conduct is likely to have must be taken into account. The Full Court accepted the primary judge’s findings regarding the transitory nature of the misapprehension but also noted that transient misapprehensions would not always mean there was no misleading and deceptive conduct. The Full Court observed that if the conduct which has resulted in transient misapprehension leads the person under the misapprehension to take action of a substantive nature and causes significant detriment or financial loss, the conduct may still be characterised as misleading or deceptive. The commercial significance of the misapprehension is therefore important in determining whether the conduct is misleading or deceptive.

Conclusions

Mr Knight failed in his action against Beyond and his appeal for the following reasons:

(a) Mr Knight failed to establish a sufficient reputation in the name “MYTHBUSTERS” amongst members of the television viewing public;

(b) the name “MYTHBUSTERS” is broadly descriptive; and

(c) any misapprehension resulting from Beyond’s conduct would be almost immediately corrected and would not lead a person to take action of a substantive and commercially significant nature.

Implications

1. If Mr Knight had obtained an earlier trade mark registration for “MYTHBUSTERS” in relation to books and TV programs he would also have had recourse available under the Trade Marks Act 1995.

2. Misapprehensions that are immediately corrected, for example, by a comparison of the products, may not be enough to constitute misleading or deceptive conduct or passing off. Misleading or deceptive conduct and/or passing off is more likely to be found if the fleeting or transient misapprehension causes the person/s under the misapprehension to take substantive action or causes some significant detriment or financial loss.

3. It is important to keep accurate and sufficiently detailed business records of product sales or services rendered so reliable calculations of actual sales can be made and used to substantiate reputation based claims like the ones raised in this case.

About Author

Davies Collison Cave intellectual property and patent attorneys offer a comprehensive range of related advice and services covering a range of commercial matters including: trademark registration, copyright, design protection, and litigation.

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All employers are required by state and federal laws to provide the minimum wage to its workers and employees. If an employer would not comply, an employee may file a complaint with the Division of Labor Standards Enforcement (the Labor Commissioners office) or file a lawsuit in court against the employer to recover for lost wages.

If the claim is made, the government representative will do the following tasks:

Have you been informed on what Social Security Administration really is? Well, you should be so aware of such because it could truly bring great benefits to you and to your family as well. With this query in mind, you really need to acquire the legal assistance and expertise of Social Security Attorneys.

Primarily, these Social Security Attorneys would emphasize that the SSA can grant benefits in three different categories – when someone retires, if he becomes disabled and when he dies. This individual merely qualifies for a Social Security benefit by earning Social Security credits. Such may happen when he works in a job, pays the Social Security taxes and makes his contributions.

Each credit is based on his earnings and compensations, job description, the nature and background of his employment. These determine his eligibility and qualification on retirement and disability.

Meanwhile, there are specified special rules, which are applicable for each credit. As of this year, 2007, one may acquire one credit if he has $ 1000 of earnings – with the maximum of four credits annually. Each earned credit per a year always varies and depends on the level of average earnings.

Although, it has been stated on its terms and conditions that the received credits of each Social Security member remain into his record. This implies that his personal accounts in the SSA are all in tact even if he transfers from one job to another or stops working for quite some time.

With this, SSA has been implementing and conducting beneficial programs that have been able to reach out to a wide range of people for several years. One of these is social security disability insurance program, which is considered certainly practical and effective in giving financial assistance to those who need such.

Consequently, one starts to experience the privilege and benefits from his social security claims immediately right after his petition has been approved by the SSA agency. If these authorized personnel have been commended or have been agreed such application with all those pertinent and necessary data and documents, he may undergo procedures related to its approval and eligibility. This is where he mostly needs the legal representation of a judicial expert.

However, some people would still intend to file Social Security claims on their own, many would still want and even prefer to hire Social Security Attorneys. These professionals could really extend to them the need, assistance and support that they should acquire and truly deserve.

They also render competent legal services particularly in this field. In fact, they not only increase and strengthen the chances of obtaining higher chances of much favorable outcome, but also create positive outcome on their claims.

Furthermore, the Social Security Attorneys, experienced on claim and benefit approval, have indeed the edge and advantage among the other general practitioners.

For more information about how SSA attorneys can help you with matters concerning your social security, consult with the Los Angeles Lawyers website.

About Author

Rainier used to work in a publishing company as a writer and eventually became an associate editor. He dealt in writing instructional materials for secondary and tertiary students. His passion in writing inspired him to read a lot and subsequently enabled him to gain more knowledge and skills.

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Engaging in business exposes you to the risks of being sued. To save your personal and business assets from the lawsuits, you must take legal steps to protect it.

Incorporating is a means of guarding against the potential threat of lawsuits and various claims: