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Pursuing Legal Action

One of the things I’ve realized is that I haven’t taken the opportunity here to really explain how a lawsuit begins. So having had a few cases under my belt now with some legal work, I’m feeling inspired to explain what can lead up to the well-known phrase: “or I will be forced to pursue legal action”.  So what happens?

1. The Issue Begins: 
Something happens that gives you the opportunity or necessity to seek recourse through the law. 

This can start in many ways: Maybe you want to hire someone with skill in order to do something that you cannot. Maybe a big corporation wants to buy the rights to your music or other media and distribute it nationally. Maybe at a party, a friend causes substantial damage to your XBox, backs into your car in your driveway, or some other sense of property damage. Maybe you stumble across your award winning piece of art being used by a corporate company or sold on merchandise without your consent.

So given these situations, what do you do? You think about talking to a lawyer…. but lawyers are expensive! So you’ll do it yourself.

2. Pro Se
Most people “represent themselves” and take steps to try and resolve the situation. 

So if you want to hire a contractor, you talk to them and set out the terms. How long it will take, what works is done, and get their estimate of how much it will cost. For a music label or media corporation, you get some forms from them that you’re being told to sign. At your party, said friend promises that they’ll pay for the damage. And as for that big company, you do everything you can to figure out how they got your piece and double check how similar the corporation’s piece is to your own.

3. The Other Shoe Drops
Unfortunately, then some people get the short end of the stick.

Your contract work is all oral agreements (without a signed contract with the terms you discussed) and they start deviating from the terms. (They take too long, use the wrong products, etc.) The record label ends up owning 100% of your works, and you have nothing to show for all your work because they wouldn’t listen to any of your requests. The friend vanishes and never pays up. And the corporation’s legal department is just too massive to fight by yourself.

Now, you’re stuck. You know you have rights, legal rights, but you’re not sure how to make the other person acknowledge that and do what you want. But you remember that your friend Nicole just opened her solo practice, or your dad gives you the number of his hockey buddy, or your friend’s bandmate gives you a business card for the person they worked with when they got signed.

All of them are lawyers, and all of them have spent an obscene amount of money and three years of their lives towards a legal education to help you out for just this reason!
4. You Get a Lawyer On Board
Now you have an advocate to educate you and send the initial letter telling the other party what they need to do “or you will be forced to pursue legal action”.

In situations like this, the lawyer acts either as your back up, giving you documents to take to the other party, or they can become the middle man, requiring the other party to talk to the lawyer before talking to  you. (This is especially true for cases where anything you say can be held against you.)

So for the situations above, these are a few of the things a lawyer could do.

– The Contractor: An attorney will look at the paper trail (emails are great for this) for what was agreed upon, and help explain to you how the law protects you in the situation. They can also help pick out what the courts would enforce as an agreed upon oral contract, and let your contracts know that as well. The hope is that this information gets the fire underneath them to make amends and complete the work. But if it doesn’t, then you can pursue other, more legal-heavy remedies like hiring another contractor and pursuing the first contractor in court for the extra money you had to pay to get the job done.

– The Music Label or Corporate Media people: An attorney will look over the documents that have been given to you and your band and help you to understand what you are selling / licensing to them. They can take you through the pieces of the Copyright law and let you make an informed decision about signing those documents. Depending on the situation, they can also step up and talk to the company directly and attempt to negotiate better terms for you.

– The Friend: (Because it wasn’t a commercial situation, this is a little harder.) An attorney can write a “nasty” letter that explains to your now frienemy what your specific legal recourses are given the situation, but this is largely an attempt to scare them into paying up. The problem is that the cost for pursuing legal action (damage to or conversion of personal property) may be more than the cost of the damage itself, and not financially responsible. If they know that, then unless you have the money to go after them, you’re kind of stuck – lawyer or not. But if they don’t know that, then they might get their act together.

– Corporate Copyright Infringer: This is my favorite, but then again I wouldn’t be an Entertainment lawyer if it wasn’t. For this and any other type of copyright infringement you can have a lawyer draw up a “Cease and Desist” Letter (while also registering your copyright, if you haven’t done so already). This is the same kind of nasty letter that they could send to the friend, except with the letter they are invoking your rights under the Copyright law.  If the work is of the appropriate media (say, posted on YouTube) they can also draft and send a “DMCA Takedown Letter” to get the material taken down. (DMCA letters are not just for Viacom and the MPAA – normal people can invoke the DMCA too.) If the case is strong for both access and substantial similarity, then this should get the corporate entity to either stop using it or pay licensing fees. (They’re likely going to try to wait you out and force you to go through the courts to actually get anything out of them, but if you have your copyright registration and it’s an award winning piece of art, you should have a solid case.)

Whatever the situation, you are hiring an attorney to educate you about your options and help you make an informed decision about how to act on your rights. They can make suggestions, but in the end, they are your counsel – not your boss. Fortunately, you can also have them do the first step of each of these remedies and write that “nasty letter” to the other party to let them know that you’ve lawyered up. If they’re smart, they’ll work with you and all you need to pay the lawyer for is that first letter. If they don’t, and you do want to pursue them, then they can help you out there, as well.

Hopefully this has answered a few questions about what lawyers do and how lawsuits begin to percolate – but also how things can and do settle long before anyone elver gets to trial. It’s easier to just get on the same page with someone and communicate about expectations than it is to fight with $150-2,500+/hr weapons.

– Your Friend, Esq.

(c) Nicole L. M. Jurkowski 2011


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eReaders, Part 2

In longstanding tradition of attempting to write an academic, researched article… I’ve been preempted. As if I needed another reason to love the Electronic Frontier Foundation  … they have just published:

2010: E-Book Buyer’s Guide to E-Book Privacy

Deeplink by Cindy Cohn  

This is what they investigated:

* Can they keep track of book searches, either on their website or on the website of other e-book sources?

* Can they monitor what you’re reading and how you’re reading it after purchase and link that information back to you? Can they do that when the e-book is obtained elsewhere?

* Is the device ONLY compatible with books purchased from an associated eBook store?

* Can they keep track of book purchases? Can they track book purchases or acquisitions made from other sources?

* With whom can they share the information collected in non-aggregated form?

* Can they share information outside the company without the customer’s consent?

* Do they lack mechanisms for customers to access, correct, or delete the information?

And here’s what I was gathering, outside of that info…

Which mostly include articles surrounding the IP of the eReaders.

Nook (Barns And Noble)

Yet Another Reminder That You Don’t Own Your Ebooks: B&N Nook Deletes Files, Blames User


Just as Barnes and Noble is updating the Nook, its ebook reader that hasn’t gotten much traction, comes reports that of an upset customer who found that the Nook deleted all of his files, and when he complained to B&N, the company basically told him it was his fault and there was nothing it could do. While B&N was able to restore the ebooks, it could not restore anything else, not from B&N, such as his own documents and notes: I tried to turn my Nook on this morning and it wouldn’t turn on. Finally, it gave me a screen that said it was updating and that I needed to leave it be, so I did. When it had finished updating it had wiped all of the files off of my nook. When I reregister the device, the books from B&N will return, but everything, including documents not from B&N, has been deleted.

When I called technical support (1-800-THE-BOOK) to complain/make sure they were aware of the problem so that it wouldn’t happen to other people, I was informed that this can happen when the device hasn’t been updated in awhile. I asked if this was something they were trying to fix and I was blamed for the fact that everything had been wiped from my device because I had not been studiously updating the device. I asked if he understood how absurdly incompetent this was, my computer, after all, does not delete all my files because I don’t update it for awhile. I was informed that my computer updates everyday, whereas I have apparently not updated my nook in a terribly long unspecified length of time, which was just too long and too many updates for it to handle without deleting all my files.

Amazon got in a lot of hot water years ago for deleting copies of an ebook. You would think Barnes & Noble would know better than to do the same.

Kobo (Borders) $149.99

This, from Kobo’s website…

? – How do I buy books for my Kobo eReader?

Simply click on the Store button in the Borders eBook Desktop App to search or browse our extensive catalog of titles. Once you have purchased your books, ensure your library is up to date by clicking “Update Library.” All your purchased books should appear in your library. Ready to transfer to your eReader? Connect your eReader to your computer and click “Sync.” When the syncing process is complete, eject and unplug your eReader and your books will be waiting for you on the device. You can also use the Desktop App to load eBooks purchased from other vendors, provided that they support Reader® Mobile Technology from Adobe Systems Inc.

? – Can I read the ebooks in my Kobo eReader library on other devices?

Absolutely. The Kobo reading service allows you to read your eBooks across multiple platforms, including your Kobo eReader, select smartphones, and your computer, using the free Borders Apps available for those platforms. You can also download the ePub versions of your purchased books and load them on to any eReader that supports Reader® Mobile Technology from Adobe Systems Inc.

? – How do I load documents to my Kobo eReader?

You can add your own PDF documents to your Kobo eReader by connecting your eReader to your PC or laptop using the supplied USB cable. The eReader will become available as a removable storage device. Drag-and-drop your PDF files onto the eReader. If you have an external SD card (up to 4 GB), you can load PDFs on that, insert it into your eReader and your eReader will automatically detect new content.

? – Can I share the eBooks in my library?

The license type determines whether or not you can share eBooks. Many eBook products sold have a “Single Reader” license. This means only you (and your immediate family) may view the eBook.

[And additionally…]  eBooks supporting Reader® Mobile Technology from Adobe Systems can be shared with up to 6 devices authorized to the same account. For more information regarding Adobe Reader® technology, please visit: http://www.adobe.com/products/digitaleditions/faq/#section-2. This Kobo eReader contains Reader® Mobile software under license from Adobe Systems Incorporated, Copyright © 1995-2010 Adobe Systems Incorporated. All rights reserved. Adobe and Reader are trademarks of Adobe Systems Incorporated.

Account Requirement: You’ll need a Borders.com account to purchase and sync eBooks with your eReader.

Kindle (Amazon)

Kindle To Let You Lend Books, Just Like A Real Book… Except Not

from Techdirt by Mike Masnick

Apparently, Amazon is adding a feature to the Kindle that will let you “lend” books to other Kindle users. Of course, it sounds quite like the ridiculously limited lending found on the Barnes & Noble Nook ebook reader as well. You see, when you “lend” the book, you can’t read it yourself… “just like a real book.” But, um, you can only lend it to other Kindle users, just like a real book (oh, no actually). And, you can only lend it for 14 days, just like a real book (oh, no actually). And… you can only lend it out once, just like a real book (oh, no actually). It really makes me wonder how incredibly soul-deadening it must be to be a developer working on products like this where you’re focused on limiting what the technology allows.

Irony: Book About Recording Industry’s Mishandling Of Digital Priced Higher As Ebook Than Physical Book

from Techdirt by Mike Masnick

A few weeks back, we noted that book publishers apparently simply did not learn from the mistakes of the recording industry — specifically pointing to DRM and (more importantly) the fact that they’ve started pricing ebooks higher than physical books. Now, in a moment of supreme irony, Copycense (who has been highlighting various ebooks priced over corresponding physical books) is noting that Steve Knopper’s excellent book Appetite for Self-Destruction (subtitled “The Spectacular Crash of the Record Industry in the Digital Age”) is one of those books. Indeed, Amazon shows the ebook priced at $17.99, while the paperback is $11.53 from Amazon (and available new from others at $7.50 or used at $4.42).

If you go to the ebook page itself, Amazon clearly states, “This price was set by the publisher” (a clear response to complaints about the rapidly rising price of ebooks lately). It kinda makes you wonder if the decision makers at Simon and Schuster even read the book they’re pricing? They might want to crack open a used copy of the paperback (it’s cheaper) to learn why not understanding digital, and therefore thinking you can price digital things super high, is not the smartest move…



aTtorney, Esq.


(c) Nicole L. M. Jurkowski 2010

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eReaders, Part 1

Readers are huge this season, and arguably a very progressive way to go about having an extensive collection of books. They’re also a cool digital toy that is apparently on the hot list for kids 6-12. (I’m not kidding! ) But when everyone is comparing the specs for the devises… I’m more interested in how the readers interact with the Copyright law.

Now where books are concerned – some people, like myself, highly enjoy the physical experience of owning books – the smell, the touch, and the library one collects over a life time. However, others put more value in the ability to access to a large number of potential reading material at any point in time, and/or to not have an enormous library of physical books. (In effect: to do to books what the walkman, CD player and the MP3 player have done for music.) And we all know how important value  is when attempting to get someone to purchase merchandise.

So with that in mind, I am interested in investigating how the top eReader companies are addressing this need – especially where the licensing and use is concerned for consumers. I’ve heard plenty of rumors about various eReader users loosing entire libraries of content for X reason, and Y company being unable to help them recover the data or say that it’s their fault for not backing up the device, etc. I’ve also heard (substantiated) rumors that the Kindle has a “book sharing” system, where you can lend books to other Kindles – which means that there is value in possessing a pseudo-physical piece of property.

All of these concerns, in my opinion, come from the reality that eReader users put both physical and non-physical value in the same devise. Consumers want:
(1) the value of an electronic library which can be electronically stored, backed up, and recovered should something happen to the physical device, and

(2) the value of a physical device which can trade the non-physical, licensed books like they are real property. (Talk about a double edged sword!)

As I see it, the first situation (1) should be dealt with by the company providing the device in the form of customer support. If you have a proprietary eReader, where by you can only download books from that point source, you arguably have an account with that point source that has a record of your purchases. If you loose the file, for whatever reason (other than some how permanently giving the file to another user (another physical/non-physical paradox)), you should arguably be able to download new copies of the books you have already purchased because they will have a record of that sale. If you have an open eReader, where you can put any book from any point source on your device, then it would lend itself to a more traditional situation – you have to back up the files so that you don’t loose them. This second option is more like a traditional, physical book purchase; if you loose your physical book, then it’s gone.

The second situation (2) is something more of a problem because it starts to play foul with what we lawyers know as the First Sale Doctrine  – and the rest of the world knows as the secondary market of used books. The First Sale Doctrine means that you cannot be sued by a publisher for selling a book you bought at Borders from them to a friend. The reality with eReaders is that they are “licensing” copies and to you, which means they are selling you the right to own a copy. It is very similar to a software license with it’s End User License Agreement  that restricts you from re-selling software that you have previously used. (Plenty of current legal cases to go with that thought – but unless I turn this into a legal article to be published academically, y’all won’t care so much.)

The eReader’s problem is that they are both treating eBooks as being licensed (they can only be used on proprietary eReaders (the license is only for the Nook, say) or  they are treating the eBook as having some hint of real property by allowing you to “lend” it to other users. Now granted, the companies licensing these books could very well be including the ability to “lend” in the license, but we all know that if you give a mouse a cookie, they’re going to want a glass of milk. It is very easy to imagine consumers demanding a secondary digital market for books – which despite being extremely hard to pull off in my opinion, could theoretically be viable. But that’s slightly beyond the point of this post.

What I’m actually looking into with the eReaders is what they are licensing (digital rights in books, either exclusively or non-exclusively) and how they are attempting to control what is on the reader (proprietary DRM or other controls). There’s also the fact that all throughout this intro I haven’t mentioned that the readers are still a middle man – the digital rights to the books are licensed to the store, either exclusively or not, and if the store provides the reader, then the store can still claim some modicum of control over the digital rights to the book (you can’t reproduce it or sell it to others, etc.). It’s a whole chain of “I sell X Store the digital rights and the ability to license those rights to Y consumer. X Store can then limit Y consumer from using the book on Z reader through DRM (digital rights management)” –  in a worst case scenario. In a better picture – “X store get the digital rights and sells it to Y consumer in a format that be read on all readers”.

Wow – even my head is spinning, now.

So in an effort to provide some sort of guidance to people buying eReaders this gift-giving season…
I am investigating the legal aspect of the three big readers: Nook (Barns and Noble), Kobo (Borders), and Kindle (Amazon). I’m also going to look into Apple’s iBook appication for the iPad – but that seems to be a slightly different market, as I doubt someone would by a $500 eReader. (They would by a $500 mini-computer with an eReader application, though – so I’ll check). And yes, I know there are many other eReaders out there, but for the purpose of this thought experiment I want to focus on the groups that already sell a majority of the hard copy books in the mass market.

So here’s what I’m looking for:

* What is in the license for the copyright of the books purchased? (Digital Rights)

* Storage and the ability retrieve “lost” books (Digital Copy Value, Customer Support)

* The Ability to trade books with other users. (Hard Copy Value, Secondary Accessibility)

* The Ability to buy and read eBooks from multiple sources. (Non-Proprietary market)

* The effect of DRM on eBooks (Proprietary mark)

* … and anything else that comes up that I didn’t expect.
And I’ll get back to y’all soon with what I find… This is going to take some digging through fine-print

aTtorney, Esq.


(c) Nicole L. M. Jurkowski 2010

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Copymark my Traderight

Today’s post is a very special one, close to my heart. Why? Well… usually, I’m very good about not “lawerying-out” on my friends or other non Intellectual Property lawyers. I don’t want to subject them to the full spectrum of why such and such is the law, and why things are they way they are. My friends didn’t go to law school and the non-IP lawyers didn’t study it for years like I did. I respect everyone’s right to bitch about the way things are or appear to be.


Any time anyone says “I really need to Trademark my poetry”, I can’t help myself. Instead of launching into some nice explanation, I just say “Copyright” in response. They say “Huh?”, and I come back with “You want to copyright your poetry.” At which point they indulge me and Miss Lawyer Pants explains herself.

So having done it more times than I can count – here’s the break down:


(First I start with the technical mumbo-jumbo.)

Technically speaking, a trademark is protection given by the US government over the mental association that a consumer has with the source of a product.

(My friends are generally smart enough to latch onto a few of those phrases, thankfully.)

So anything that creates a mental association with a product is considered a trademark.

(Then I launch into examples.)

Anything that you would consider a logo, a motto, or associated with a marketing / branding campaign is likely to be trademarked.

(Most people are nodding their heads by now, or offering examples of famous trademarks at this point – which is very good.)


(Now for the more difficult one.)

A copyright is protection over any type of artwork which can be and has been recored in some permanent medium.

(OR “Original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” But you know, that’s “lawyering out” a little too hard. We had a whole class in law school dissecting that one.)

It protects novels, songs, sculptures, choreography, and anything else you could think of creating.

(Then for the fun stuff.)

Under the Copyright Act, your rights attach whenever you create something: write it down, video tape it, write choreography notes for it, etc. But in order to actualize those rights…

(again, my friends are smart)

…you have to register the copyright with the Copyright Office. Basically, you give them a copy when you make it so that they have something for the Library of Congress (Cool!) and you have a registration that proves you wrote it.

(At this point, someone usually asks me about the validity of mailing yourself a copy of your work, and I sigh.)

The so-called “poor man’s copyright” is not a way to go about registering your copyright. The best it will do for you is act as one piece of evidence in a court case where you’re arguing that you wrote something first. Even if they stole the – let’s say, novel – from you verbatim, if they registered it they have what’s called “prima facie” evidence against you.

(Half the time, I then launch into the latin meaning of “prima facie”… but I won’t do it here. Lucky you, that’s for another whole caliber of posts!)

That means that the court will assume that their registration is valid, and it’s your (heavy) burden to prove otherwise.

(And at that point, you’ll wish you had just paid the $45 registration fee, because we lawyers don’t come cheap!)

So… getting back on point (yes, I am prone to tangents), A copyright is something that you have when you create a work of art, and it’s something you get a registration for to ensure that you have all the rights guaranteed to you for creating it.

(Those being: Reproduction, Derivative Works, Distribution, Public Performance, and Public Display)

And there my tangent usually ends, because they’ve gotten the point. And honestly, of all the lawyerly-ness that I can keep out of normal conversation, it doesn’t surprise me in the least that I can’t keep this quiet. I’m an educator. I learned all of this law stuff so that I could educate myself and other artists about what it means to have the law protect their work – and it is my end-goal to end up in a position where I do this for a living. This very conversation – except I’ll be doing it to many people at a time at conferences, or with particular clients who want to use that law for their own benefit.

That’s what I do. Or as I say about my own art, that’s what I can’t not do.

So, my friends, now you know that one copyrights their novel – and trademarks their band logo. Simple as that!

Miss Understood, Esq.

(c) Nicole L. M. Jurkowski 2010

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