What Does It Mean To Own An Intellectual Property?

Most people have a general understanding of what intellectual property is. It’s not physical property that you can touch or steal in the traditional sense. Intellectual property (sometimes referred to simply as IP) is more an idea than actual property. But legally, it functions in much the same way — because stealing a person’s idea is a crime in some cases. Of course, nothing is ever quite so simple.

Cornell University’s Legal Information Institute defines the legal term “intellectual property” as “any product of the human intellect that the law protects from unauthorized use by others. The ownership of intellectual property is traditionally comprised of four categories: patent, copyright, trademark, and trade secrets.”

One way that IP is different from personal property is that it represents more of an incentive for compensation. Certain types of IP aren’t owned by the creator forever. 

For example, even a book is technically the author’s IP — but it bounces back to the public domain after a certain period of time, which means the author or his beneficiaries only have the rights to the ideas and characters but not the book itself. Pharmaceutical companies hold the rights to any drugs they create and manufacture, but other companies can use the formula to manufacture a generic version after a set period of time. 

Trade secrets mean that certain information is protected by law. These secrets normally provide the business that owns them a competitive advantage. The most obvious example of a trade secret is a recipe. Others involve software, algorithms, marketing strategies, etc. 

More often mixed up are the next three types of IP: patents, copyrights, and trademarks.

Acquiring a patent provides the IP owner with limited-time protection for that IP. The idea behind it is that the product is new and provides an obvious benefit to society. The aforementioned example of a drug manufacturer applies.

By comparison, a copyright protects authorship. The aforementioned example of a writer’s work applies. You need not apply for a copyright. Once you produce a work of art — in any form — it is automatically protected by law. This allows anyone to file a lawsuit when their work is plagiarized. 

Trademarks protect ideas normally represented by symbols or icons. For example, a brand name (such as General Mills or Charmin) can be trademarked for legal protection. Generally, an obscure shoe manufacturer could not use the name Nike because that name is already trademarked. 

Sometimes when the products behind the brand are easily distinguished from one another, the same name can legally be used for branding. For example, Delta Faucets and Delta Airlines obviously use the same brand name — but you would be hard-pressed to confuse the two companies. You need not register your trademark, but an IP lawyer would still urge you to do so, especially if your IP is still new, fresh, or relatively small and unknown.

Check our partners at sederlaw.com for more information on IP and how to protect it.



Making Sure You Have Health Insurance During The Age Of COVID

The coronavirus pandemic has successfully shown that Americans can make any topic controversial if we try hard enough. A dangerous pandemic is something we should take seriously, but somehow a group has formed to spread misinformation about how the whole thing is just a leftist hoax. This is why American case counts and death tallies are higher than any other country in the world — and will continue to skyrocket.

That means more people could lose their jobs and more people could find themselves without employer-provided health insurance. Are there any options? Thankfully, yes; there are a few.

First and foremost, most people who lose their jobs will want to try Medicaid. This option provides healthcare at low-to-no cost, and those who sign up can expect to find free coronavirus testing if needed.

Those who are wealthier might find COBRA coverage more to their liking, as it extends the coverage provided through employment after being laid-off. These plans are much more expensive — but if you liked your old plan and you want to continue using it, this could be your best bet.

The third option falls somewhere in the middle, but for anyone on unemployment it’s a real possibility. Remember the Affordable Care Act? The Obamacare that President Trump has been trying to dismantle for the last 3.5 years? Now, they want you to sign up for it to prevent the overextension of Medicaid.

People who have recently lost their jobs can sign up for the ACA anytime, while others likely need to wait for open enrollment. Plans may be subsidized for low income households. Even with subsidies, plans might still be too expensive for those out of work. High deductibles are common.

The last option is litigation, but most people won’t have a winnable case. Losing your job because of coronavirus is not enough. First, you need to prove that it was your employer’s fault! Check with a qualified personal injury attorney to discuss the details of a potential coronavirus-related lawsuit.

Should Your Business Take Coronavirus Seriously?

By now, we hope that everyone understands that the coronavirus pandemic is not a drill. It’s very serious, and tens of thousands of people — perhaps many more — will die before this is all over. And it might not actually be over for years. If that’s not a sobering thought, we’ll do our best to inform you about the realities of this virus and what the future might hold for businesses who didn’t take it seriously from the start.

First and foremost, don’t be taken in by the appeal of the constant barrage of comparisons of this virus to that of the flu. Coronavirus causes the disease COVID-19, which is far deadlier than the flu (although probably less deadly than numbers suggest right now). But the virus itself is more contagious than other dangerous ailments, and that itself means this disease will result in far more deaths if it continues to spread at exponential rates.

The seasonal flu has a reproduction rate of 1.3. That means that a person infected with the flu virus is expected to infect 1.3 other people on average. By comparison, the Spanish flu killed 50 million people with a fatality rate of only 2.5 percent because it was very infectious, having a reproduction rate of 1.8. It might not sound like much, but that half of a percentage point means a big difference in the number of overall cases when you’re talking about nearly 2 billion potential hosts.

But the times have changed. The reproduction rate of coronavirus is a whopping 2.3. Although the fatality rate is lower than that of the Spanish flu, there are 5 billion more potential hosts for it to infect — and it’s more infectious than some of the deadliest modern outbreaks.

It doesn’t help that there are still people not taking this seriously. One man was arrested recently after posting a video of himself licking products in a Wal-Mart store while asking, “Who’s scared of coronavirus?” He was charged with making a terrorist threat.

Employees who have not been provided with paid sick leave or appropriate personal protective equipment (PPE) while on the job will almost certainly line up in droves to sue their employers in the months and years ahead. The severity of this outbreak demands justice on behalf of those who should never have had their health or financial status put at risk, and employers who don’t heed these warnings now will absolutely be held accountable in civil court later.

Send sick employees home or close the business until the threat has passed. Forfeiting profit is better than being held responsible for the spread of this virus.

Why Do Copyright Protections Not Apply To Parody?

Copyright laws protect an intellectual property from theft by parties who are often seeking commercial benefits. Parody is the replication of a particular work, often copyright-protected, for exaggeration, the effect of which is often to critique the original work. In law, the phrase “fair use” is the legalized use of a particular work. What do all these definitions have to do with one another? It’s complicated.

Campbell v. Acuff-Rose Music, Inc. was the 1994 Supreme Court case that decided it all.

When rap music group “2 Live Crew” modeled a parody song after the popular Roy Orbinson song “Oh, Pretty Woman,” these legalities were as of yet undecided. That’s why 2 Live Crew’s manager actually approached those who had the authority to provide licenses for the Orbinson’s hit — a company called Acuff-Rose — to procure one for themselves. They didn’t want legal trouble when they released the parody. But they were denied the license for the song.

Because they didn’t want to give up on their parody, trouble was inevitable. They released “Pretty Woman,” which was an immediate success. They sold hundreds of thousands of copies. Predictably, they were sued by Acuff-Rose for copyright infringement. The suit named “Luke Skyywalker Records,” which was 2 Live Crew’s recording company as a defendant.

Much of the legal argument wasn’t based on whether or not 2 Live Crew had the right to make a parody of the song. That wasn’t contested by Acuff-Rose. The real problem was that 2 Live Crew benefited financially from the commercial sale of the parody, which potentially damaged the “Oh, Pretty Woman” brand. It’s one thing to parody art, they said, but to profit from it? That was something else entirely.

The District Court disagreed, ruling in favor of 2 Live Crew. But Acuff-Rose appealed the ruling, of course. The Court of Appeals argued that the parody stole the “heart” of the original content, which meant it was an “unfair use” of the original song. The fact that 2 Live Crew made a bundle in the process of selling the parody may have swayed the court’s decision somewhat. 

But an appeal can be appealed in this wonderful country of ours, and so the matter was bounced to the Supreme Court for the final word. The Supreme Court reversed the reversal, arguing that parody is parody whether the artists and commentators are making money or not. If anything, the popularity of the parody would only boost sales of the original song.

How Many Lawsuits Have Been Built Against President Trump While In Office?

By now you’ve probably realize that Trump’s behavior — whether you support it or not — has been the basis for a mounting number of lawsuits. These lawsuits extend from congressional agencies, to individuals, to states, and over a wide number of subjects. For better or worse, President Trump has used the power of his office to do everything he wants to do, and everything he promised his supporters he would do. 

So how many lawsuits are there, exactly?

It depends on when and where you start digging! Over the past 30 years, Trump and his companies have been the subject of thousands of lawsuits. He was a plaintiff in most of them, arguing on behalf of his companies in 1,900 lawsuits. He was a defendant in 1,450. Around 170 lawsuits were brought to federal court.

Many of these cases ended in dismissal. Many more ended behind closed doors, where settlements of undisclosed damages were likely bartered. Recently, there have been lawsuits arguing sexual harassment and defamation. At least 100 tax disputes have arisen, most argued by the New York State Department of Taxation and Finance.

Surprisingly, those lawsuits seemed to slow down since Trump took office. That might sound surprising since his administration is the subject of around 190 suits to date. Oh, wait: That’s just the number of lawsuits filed by a single organization, the Center for Biological Diversity. His administration more than any other has put the environment in danger, thoughtlessly ending protections against endangered species and opening national or publicly owned lands to deforestation and damaging deregulation. 

At least 47 lawsuits were collaborative efforts by dozens of states battling Trump’s abuse of authority.

16 states collaborated to sue Trump for his use of emergency powers to build his wall. 22 states argued against the repeal of the Open Internet Order. Dozens of states have argued in favor of California’s ability to limit car emissions, something Trump believes would give too much regulatory power to a single state and damage the bottom line of the auto industry. Even automakers believe the administration should give up the fight though.

Another 17 states have sued to keep migrant families together after children were separated from their parents. The president’s supporters almost always contend that it wouldn’t be happening at all if those migrants had just come across the border legally (even though they did enter the country legally).

So how many lawsuits is the Trump Administration facing? It’s a difficult question to answer, because the number goes up and up almost every day. The Trump administration as already faced a roughly equal number of state-led lawsuits in three years as the Obama administration did in eight. Wow.

Small New Mexico Oil And Gas Firms Fighting New Environmental Laws

Complaints from coal, oil, and gas companies about new environmental laws and restrictions are nothing new. But a recent article published by the Las Cruces Sun News was titled: “New environmental law would cripple New Mexico.” Wow. Sounds a little dramatic, but is it accurate? New Mexico is bigger than just coal, oil, and gas — and considering that two out of three of those industries are dying regardless of any new environmental laws, it’d better be.

According to the article, one firm owner “said that these new regulations put him ‘on a death train, economically.’”

The article — and apparently these oil and gas firms — are taking aim at a new law being considered by Congress. The Methane Waste Prevention Act is a plan to “reduce the amount of the potent greenhouse gas emitted from oil and gas wells.” But that’s somewhat of a mischaracterization of what the law does. Methane isn’t supposed to be “emitted” from these wells at all. 

Any emission is better characterized as a leak — and while leaks might happen, it isn’t absurd to implement a law that asks the companies who are responsible for these mistakes to clean up their messes, no matter how small or large those companies might be. Should we really give a free pass to a messy business just because the business is small?

The article goes on to say: “Small energy producers operating on Navajo tribal lands have to meet the same target as ExxonMobil’s $5.6 billion operation in Lea County. That doesn’t make sense — especially considering firms of all sizes recapture methane.”

But since those businesses are being asked to recapture 99 percent of the leaked methane — i.e. all of it — it does make sense.

It’s not difficult to figure out what these fossil fuel firms (and articles like the aforementioned) are trying to do. They’re laying the groundwork for legal fights against these protections. To make their cases more strategically tenable, they need public support — and to acquire public support, they need to disseminate as much misinformation as possible. 

The reality is simpler. Bills passed by Congress go through a rigid process of review. The consequences of legislation are studied — and while we’ll never know all the consequences of any piece of legislation, we don’t get it too off the mark often enough to pay much attention to junk articles like the aforementioned.

One thing the article does get right is that the new regulations “would also raise costs on energy firms.” Is anyone really still seriously crying over that? Coal, oil, gas, and other dirty methods of acquiring energy have made enough people rich. Renewable energies like solar have already become cheap enough to prioritize over coal and oil — which are now more expensive! And that’s why new regulations make sense. 

But the legal battles against new environmental laws will continue for a lot longer, it seems.

Why The Democrat And Republican Impeachment Narratives Are Irrelevant

Much of the country has become spellbound by the televised impeachment inquiry into President Donald Trump’s actions regarding a Ukraine Aid package appropriated by Congress. The Democrats say that Trump withheld the money to bribe or extort the president of Ukraine to announce a political investigation of former Vice President and current Democratic presidential candidate Joe Biden. Republicans say: no he didn’t.

This is why neither of the narratives make a lick of difference.

All you need to do in order to successfully draft articles of impeachment for a sitting president is prove that the president committed “Treason, Bribery, or other high Crimes and Misdemeanors.” The writers of the Constitution liked to keep the wording of the document vague so that future generations could decide for themselves. What that means is that all we really need to do is show that the president broke our laws.

And that makes drafting articles of impeachment really easy because Trump blatantly broke our laws. But you might not know exactly which ones, because both Democrats and Republicans have been skirting around the details for months.

Here’s what you need to know: The Impoundment Control Act (ICA) sets forth the conditions that might require a president to impound or defer monies already appropriated by Congressional authority. The wording of this law is much more direct because its framers wanted to prevent executive abuse or usurpation of authority already guaranteed to another branch of government; i.e. the legislative branch, in this case.

The ICA says that Trump would need: “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law. No officer or employee of the United States may defer any budget authority for any other purpose.”

And that’s where the story becomes much more easy to discern. Because Trump never once informed Congress that the money it allocated for Ukraine was about to be withheld on his orders. 

During publicly televised impeachment testimony, Department of Defense official Laura Cooper described the response of her office when they found out about Trump’s order to withhold the money. She said, “Immediately deputies began to raise concerns about how this could be done in a legal fashion.”

Cooper then sat down in a meeting with the White House in order to advise the Trump administration how it could legally withhold these monies in order to comply with the ICA — but the Trump administration ignored the advice, the money was withheld anyway, and at least two people quit over moral concerns that the orders they were told to follow were in fact illegal.

And the orders were illegal. Trump had no authority to defer or impound congressionally approved funds without first notifying Congress — and to make matters even worse, he certainly didn’t have authority to do it for the reasons that are only now being given by his Republican defenders. His violation of the ICA laws is impeachable, regardless of whether you believe the Democrat narrative, Republican narrative, or neither.

What Is The Emoluments Clause And Why Should You Care About It?

Our founding fathers were worried about the introduction of business interests into government from the very beginning — surely if they could see what American government, and indeed, the very concept of American “Democracy,” has been reduced to, then they would in all likelihood be rolling around in their graves. Especially since they provided blatant and specific protections that should have prevented this kind of behavior.

Article I, Section 9 of the United States Constitution is the foreign emoluments clause, and it says: 

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Emolument basically translates to business income while in office. The framers of our Constitution most probably wanted to prevent our government officials from outside influence, including foreign governments and domestic business interests.

So when Donald Trump announced that the United States will hold the next G7 Summit at one of his very own resorts, you can imagine what the writers of the Constitution would have had to say.

But then again, he also got away with keeping all of his businesses. He handed over control of those businesses to his children, but he still owns them. He still receives the income while in office. Considering the precedent of former presidents — Jimmy Carter put his failing peanut farm into a blind trust — this is hardly appropriate conduct for the most powerful man in the world.

For Trump to use his own business property to hold the next G7 Summit isn’t just a major conflict of interest — it’s illegal. A number of high profile individuals have been saying as much: if anyone but the president tried to do this, they would be promptly arrested and put in jail.

John Cassidy wrote for the New Yorker: “The even greater scandal is that Trump continues to get away with this sort of thing. If an ordinary government official awarded a valuable federal contract to a company that he had an ownership stake in, he could well be arrested and sent to prison. As President, Trump is exempt from the federal conflict-of-interest statutes — a glaring omission that must have delighted him when he found out about it.”

In other words, his own officials aren’t exactly going to be looking into his choice.

But with impeachment proceedings looming — and in all likelihood those happy articles will be drafted very soon — he could well be looking at a greater number of potential charges than any other president has faced before.

Here’s What Immigration Law Looks Like Under An Authoritarian Government

Holocaust historian Deborah Lipstadt wrote about historical comparisons between Nazi Germany and the Trump administration in the Atlantic Monthly last year: “Equating the two is not only historically wrong, it is also strategically wrong. Glib comparisons to the Nazis provide the administration and its supporters with a chance to defend their position, something they do not deserve.”

But is that necessarily the truth? After all, Hitler didn’t just eradicate millions of people on the first day of his rule. He started somewhere else.

No one can argue that Hitler didn’t stoke nationalist and anti-immigrant sentiments. He did. Trump has been doing the same for about as long as Hitler did before his own rise to power. Hitler published a regularly released document summarizing the crimes of immigrants, something the Trump administration has also done. Why can’t we, then, compare Trump’s incarceration of immigrants and blatant disregard for immigration laws to Hitler’s concentration camps? 

Is it really so impossible to believe that it could all happen a second time — and on American soil, no less?

Not everyone thinks so.

But then again those comparisons serve to highlight a liberal talking point: the constant escalation is leading somewhere, and that place can’t possibly be good. Trump’s vitriol has led to increased attacks on minority populations here at home, and just because we’re not rounding up immigrants who already live here doesn’t mean it won’t happen someday soon. Even politicians take their crappy ideas and enact them one step at a time.

Right now, the Trump administration is trying to make it virtually impossible for anyone to seek asylum in the United States if they’re not coming from Canada or Mexico. The people who’ve been rounded up so far? They haven’t broken any laws (even though that’s not what you’ll hear from Trump supporters, many of whom think it’s perfectly okay to keep these “illegal immigrants” locked away even though that’s not what they are). 

Trump said, “We are taking unprecedented action to secure our Southern border and stop illegal immigration.”

Unprecedented is most definitely an accurate word to use when characterizing his actions, especially when the imprisoned people aren’t even immigrants. They’re asylum-seeking refugees. There’s a big difference. And all this when immigrants are among the least likely to commit violent crimes here at home.

But the real problem with Trump’s immigration policy isn’t the reality of the change — it’s what that change says about today’s America. No longer are we a country willing to accept the sick or poor or starving. Trump has distorted policy so much that only skilled workers will be accepted into the country. And certainly, Trump doesn’t want anyone coming into our country from foreign countries with predominantly Muslim populations.

So much for the great American melting pot.

Much of what trump has done and continues to do is blatantly illegal based on current laws (which is why he’s trying to change them), and he’s been sued for his disregard for the law dozens of times. That trend will likely continue for as long as he’s president.

California Brick-And-Mortar Liquor Stores Take Aim At Amazon’s Shady Business Practices

California law stipulates that in order for a retailer to sell wine and spirits online, the company must first have a brick-and-mortar location. Because Amazon wants to sell as much alcohol online as possible, the internet giant went about securing liquor licenses in seven locations throughout the state. Where are the company’s new “stores” located? Directly next to seven of its giant warehouses. And you might be surprised what you’ll find there if you decide to go on a booze run.

Alcoholic beverage control (or ABC) laws exist for a number of reasons — like reducing the amount of under-age drinking or illegal alcohol purchases — but brick-and-mortar liquor stores contend that the aforementioned ABC law was actually designed specifically to eliminate online sales of alcohol for big companies like Amazon. The online retailer simply found a loophole and ran with it. 

That might be why Amazon doesn’t seem to be taking the brick-and-mortar law very seriously. Many opponents of the company’s policies are intent of reining in its shady brick-and-mortar business practices.

One undercover consumer decided to take a look at Amazon’s brick-and-mortar stores for himself. What did he find?

The store in Sacramento sold about four types of wine and a few spirits. That’s not much considering what you can buy online in the same Sacramento zip code. With a few clicks you can purchase 230 different bottles of wine and 82 kinds of whiskey, along with dozens of other kinds of spirits. The numbers are similar at other locations. You can always find more to buy online than in person. 

What did Amazon have to say about this practice? “We are not required to offer the full selection for sale in person,” the spokesperson said. “We are in compliance with the law.”

Amazon is now the proud owner of Whole Foods and Sousa’s Wine Beer Spirits as well, which means the company really can sell alcohol at a brick-and-mortar location. Amazon Go in Seattle is a popular tourist destination, so why not set up a number of similar shops in California — with the attached liquor licenses to guarantee better compliance with the laws?

In the future, Amazon might just do that. But it’s easier for Amazon to do the bare minimum now, knowing that the company can still make a quick mountain of cash through online sales. Brick-and-mortar stores — real stores — require a lot of groundwork, and maybe Amazon just isn’t ready for the commitment. Especially since it does already have the ultra-popular Whole Foods. 

Smaller alcohol retailers have made veiled threats of lawsuits, but likely nothing would come of them.