Law and Justice

Posts Tagged ‘Protecting’

In the world of Internet niche marketing, the greatest asset is often the chosen niche. Many marketers spend a great deal of time, energy and resources selecting a niche which they believe is going to be profitable. There are certainly no guarantees a particular niche will be profitable but there are certain strategies for choosing a niche that has a high probability of success.

One popular strategy for selecting a niche involves employing a principle similar to the concept of supply and demand. Statistical information supplied by search engines is used to determine the popularity of certain search terms. This information is significant because terms which are being searched frequently are terms which have a large audience of Internet users looking for more information on the niche subject. These are terms which are in high demand. From this statistical information you can build a list of potential niches. Once this list is compiled, it is time to begin researching the competition in each of these niches. Ideally the niche you select will be one which has a large audience and not much competition. These are niches which are in low supply.

Choose the Type of Work You Outsource Carefully

One way to protect your niche is to be selective about the type of work you outsource to others. Many Internet niche marketers are comfortable outsourcing their copywriting and their website design. However, they are more protective about outsourcing tasks such as marketing, niche selection and keyword development. This is because although copywriting and website design both involve optimization for keywords the strategies for doing so are readily available on the Internet. However, many marketers have specific methods for marketing and developing a niche and keywords and are not willing to outsource this work because it will likely involve sharing secret strategies.

Share Keywords via Email

Developing related keywords for the niche is a very important part of the success of an Internet niche marketing campaign. Keywords are absolutely critical and conventional wisdom holds that an extensive list of keywords should be developed for a particular niche to be successful. Some in the industry recommend developing approximately 200 keywords for each niche.

There is a great amount of effort put into the process of selecting keywords and those who are savvy do not want to make it possible for others to find their list of keywords on the Internet. Including a list of keywords on an advertisement seeking a copywriter or website designer will be searchable by others in the industry. For this reason it is not wise to post keyword lists where others have free access to the keywords. This may sound overly paranoid but it is commonly known that Internet marketers often make the mistake of posting their keywords on job boards and those who are interested in harvesting these keywords visit these websites frequently to gather information. Transmitting the keywords through a protected email account or via telephone is a better way to protect the work you have put into developing your niche.

Use a Non Disclosure Agreement

Finally, a non disclosure agreement (NDA) is one way for the marketer to protect his niche when he is outsourcing. An NDA is essentially a document specifying the rights of the employer and employee in regard to sensitive materials. The NDA can be drafted to include any terms the client sees fit. Some example of the restrictions the contractor may agree to by signing an NDA are:

- A definition of which materials are sensitive
- Restrictions on how materials can be transmitted
- A stipulation precluding the contractor from competing in the niche during a given time period
- A duration of time for which the contract is binding

In protecting a niche market the above terms can be used when outsourcing. The client may specify the sensitive materials to be the niche and the related keywords as well as any information regarding marketing strategy. The client may limit the methods in which the sensitive materials can be transmitted to secure emails and telephone conversations. The duration of time for which the contract is binding is up to the client. Common timeframes include the duration of the project or a set number of days, weeks, months or years. In niche marketing a timeframe of at least one year after the project is completed is recommended to prevent the contractors from entering the same niche immediately after the project ends.

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Almost everyone I talk to about ebooks mentions the dangers of stolen work and un-credited content. The cut-and-paste feature in Windows makes pirating a genuine concern.

The good news is that securities have been built into ebook creation programs. Now, the author can limit whether the file can be copied or even printed. You can stop anyone from making changes to the document. Some programs even have a time dated feature where the file will only be available for a set span, such as for a free 30-day trial. You can also create user-unique passwords and track document openings.

One thing about protection, it can only go so far. If someone is determined to steal your work, he or she will find a way. But isn’t that true of print books and manuscripts as well? Be careful that you don’t get so worried about protecting your work that you don’t move ahead.

Here is my take on the protection issue (from a man who makes 8 figures a year doing this). Yes, put protective devices on the file, but then plan for some cheating and make the most of it. By that I mean, plant links within the document for readers to buy the print book, insert links to your web site, links to other products, affiliate links to related products, links to anything and everything pertaining to your work.

Create the document in such a way that you win even if it gets passed around because you’ve got a living advertisement within the document itself. The more people that read your work, the more coverage you get. Don’t forget, anyone who takes the time to read your material is a hot prospect. Yes, you may miss out on a few dollars at that point, but if he’s truly interested, you’ll win in the long run because he’ll want the print copy or other training materials you offer.

Here’s another unusual idea that sounds like jumping off a cliff, but I’m going to give it to you anyway. Give the ebook away. I did this with my Christy Award winner Reaping the Whirlwind. I created an ebook from the book manuscript (It was self-published so I could do that) and loaded it to my web server. I created a web page with a link to download the ebook.

Then I went to a topic-related newsletter that offers free things every Friday and offered it to their giveaway program. I had so many downloads that my site crashed within a few minutes. I gave away more than 1500 ebooks within the next 2 days. But at the same time my Amazon ranking shot up higher than ever before. The reason? People don’t like reading on the computer screen for hours. And once they began reading the book, they found they liked it, so the risk of paying for the print book was gone.

Yes, take precautions to protect your work but be careful that you don’t protect yourself into obscurity.

Registered patent attorney Patricia McQueeney http BrinkleyMcNerney.com explains, Intellectual property can be broken down into four types patents, trademarks, copyrights, and trade secrets.

A patent deals with a completely new invention  a useful item, a novel look on an already existing item, or a new plant species. Depending on the type of patent, they are good for between fourteen and twenty years. The scope of a patent is defined by its claims. A claim is only one sentence but it may go on for pages, which is why its best to hire an experienced patent attorney.

Copyrights protect creative expression  books, web sites, songs. There is such a thing as common law copyright, which means that you have rights when you create something. The difficulty lies in proving you were first to create it.

For only 30 you can register with the U.S. Copyright Office httpwww.copyright.gov. The forms arenot complicated, and you have a lot more protection in an infringement suit. The copyright is good for your lifetime and seventy years after you die, and you can make it assignable to anyone upon your death.

Copyrights donot protect the information found in a book or on a web site, but they protect the lay out and presentation. For web sites, registering your first and last twenty-five pages of code protects the code for your entire web site and the creative expression of your display screens.

A trademark designates an objects source  its a mark or name associated with quality. In trade mark law, arbitrary names are encouraged  Kodak, Kleenex, Apple. The less your trademark describes your product, the stronger it is. If you sell film, using Film as a trademark wonot hold up in court. Again there are common law trademarks, but they’re hard to prove and offer less protection than a state or federal trademark

Trade secrets are governed by state laws and vary from state to state. They encompass a variety of things from formulas think Coke to customer lists to product sources. Many companies have contracts that expressly prohibit their employees and vendors from giving away any information they are exposed to while doing business with them. Commonly known facts arenot considered trade secrets so its good to be discreet with your valuable information.

Its important to remember that copyrights and patents give rights to the person who comes up with the idea, not the company that employs them. So if you hire someone to design your web site, the creator owns it unless you have the copyright assigned to you in writing. Thats why many business owners state in their employee agreements that any works or useful inventions created on company time with company funds will be assigned to the company. Cautions McQueeney, You do not own it unless you get it written over to you.

In victories against piracy, Nintendo Co Ltd (Nintendo) successfully protected its copyright. These cases illustrate that infringers can be tracked down and with serious consequences

The facts

James Burt, 24, of Sinnamon Park, Brisbane copied New Super Mario Bros — one of Nintendo’s new Wii games — and uploaded it to the internet a week before its official Australian release on 12 November 2009.

Under the Copyright Act 1968 (Cwlth), Burt should have sought Nintendo’s permission, as the copyright owner, before copying and distributing its games.

As a result of Mr Burt’s conduct, thousands of people around the world downloaded illegal copies of the game causing substantial loss to Nintendo.

What action did Nintendo take?

Once notified of the breach, Nintendo engaged a private investigator to apply sophisticated technology to determine the identity of the infringer, Burt.

On 23 November 2009, Nintendo obtained a Federal Court order to search Burt’s residence. During the search, Nintendo seized property to use as evidence to substantiate its claims against Burt. The Court ordered Burt to allow access, including passwords, to his social networking sites, email accounts and websites.

What was the outcome?

Nintendo then sued Burt in the Federal Court of Australia. Under an out-of-court settlement in January 2010, Burt is required to pay Nintendo $1.5 million in damages to compensate Nintendo for the loss of sales revenue and a further $100,000 to pay Nintendo’s legal costs.

Copyright infringement is taken seriously by the courts. This case illustrates the broad range of orders and remedies that can be obtained from the courts to successfully protect your copyright.

The lesson

This case highlights the severe penalties that are imposed on individuals or companies that infringe copyright laws. Be cautious when dealing with copyright material. Even if your breach is unintentional, action can be brought against you. Companies such as Nintendo are becoming more pro-active and innovative in pursuing offenders. In a statement, Nintendo commented that it guards its intellectual property rights to protect the interests of its consumers, its own interests and the interests of game development companies.

Another win for Nintendo

Since this decision, Nintendo has won another Australian Federal Court case. This case was against online console and accessory seller IT Solutions Pty Ltd trading as GadgetGear — involving the gadgets known as R4 cards, which pirate games for its handheld DS system.

GadgetGear and its directors have acknowledged that:

the game copying devices infringe both Nintendo’s copyright and Nintendo’s trademarks; and
they are illegal circumvention devices.

As a result of this case, GadgetGear and the directors have agreed to permanently refrain from importing, offering for sale and/or selling game copier devices.

GadgetGear and directors Patrick and James Li were ordered to pay Nintendo $620,000 in damages and hand over all their stock of copiers to Nintendo for destruction.

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“Lawsuits primarily benefit the attorneys and nobody else.”
- Bryce’s Law

INTRODUCTION

The protection of intellectual property should be a significant concern to all
Information Technology organizations. Without protection, commercial
hardware/software vendors would quickly evaporate as others would inevitably
steal their designs and programs. Corporate developers would also suffer if
their ideas, inventions, and programs were misappropriated thereby causing
them to lose their competitive advantage. In fact, our corporate landscape
and standard of living would be radically different if we had no such
protection. Fortunately, the framers of the U.S. Constitution were wise
enough to implement legislation safeguarding the authorship and ownership
of literature, art, and inventions, thus causing the United States to flourish in
the arts and sciences. But the advent of the computer caused us to reconsider
how we safeguard such property. For example, the concept of a computer
program has been a bit nebulous to some people; should the source code be
protected by copyright? What about the object code (executable)? Attorneys
have been debating this subject over the last thirty years and there is still
general confusion in the field.

In 1974, MBA embarked on our own lawsuit to protect the “PRIDE” methodology.
This was a lengthy legal battle which took the courts into unchartered waters. At
the time, “PRIDE” was nothing more than a methodology implemented with
printed manuals and forms (no software support at the time). To safeguard our
product, our lawyers drafted a standard nondisclosure agreement which all
prospective buyers would sign prior to our sales presentation. Further, our
contracts included similar verbiage instructing the customer to safeguard the
physical embodiment of the product and not to divulge it to unauthorized third parties.

We were contacted by Arthur Young & Company in 1974 to conduct a “PRIDE” sales
presentation for one of their consulting clients in Milwaukee, Wisconsin; the
Harley Davidson Motorcycle Company (then a division of AMF). The attendees
signed the nondisclosure agreement and the presentation was conducted as
usual. Following the presentation, MBA was informed that Harley wouldn’t be
purchasing our product, and that Arthur Young would be developing a similar
methodology for Harley instead. This made MBA suspicious, particularly since one
of Young’s consultants was a former “PRIDE” user. Consequently, MBA initiated a
lawsuit over misappropriation of trade secrets.

This turned into a long and ugly legal battle which lasted eight years. Basically,
the lawyers for the opposition contended that since the “PRIDE” materials had
copyright notation printed on them, they were in the public domain. In contrast,
it was our contention that “PRIDE” was a trade secret, In the end, we won the
lawsuit and “PRIDE” was proven to be a trade secret in a court of law. This
litigation established many precedents and is often referenced in similar cases;
for additional information, see:

Chicago-Kent College of Law

http://www.kentlaw.edu/perritt/honorsseminar/honorssemts2.htm

Library Law

http://www.librarylaw.com/ip-kirschner3.html

Many years have gone by since the verdict was passed. In 1989, Arthur
Young & Company merged with Ernst and Ernst (now called Ernst & Young),
the principals of the case have moved on and we no longer bear any ill-will
towards the company. Further, “PRIDE” was placed on the Internet
in 2004 (with copyright notation).

As a result of the lawsuit, MBA learned a lot about the protection of
intellectual property. I may not be an attorney, but you may look upon this
as a convenient primer to protect yourself.

COPYRIGHTS

Copyright is primarily concerned with the authorized reproduction of such things as text, graphics, music, and audio/video recordings. As such, it protects publishers, authors,
artists, and designers from unauthorized republication or redistribution of their work. Not too long ago, in order for a copyright to be enforceable, it had to be registered with the copyright office. However, the laws were somewhat loosened in 1976 whereby copyright protection is now effective from the moment the work is first created in fixed form. Although the
use of copyright notation is no longer mandatory, it is highly beneficial to include it whenever possible to indicate your work is protected by copyright. Notation typically appears as:

“Copyright © 2002 ABC Company”

Since computer program source code is written as text, it is a wise idea to add such notation in the source code. But understand this, copyright only protects the work from unauthorized reproduction, it does not protect the author’s ideas (which is how the lawyers of Arthur Young argued against us). Although the exact source code cannot be reused, it does not protect the logic of the program. To illustrate, suppose a new
employee brings with him some source code from his last place of employment. Copyright protection would prohibit him from reusing the source code, but it wouldn’t stop him from using the ideas contained in the program. Unfortunately, most programmers do not like to reinvent the wheel and, as such, frequently reuse source code over and over again. From this perspective, probably every company with an I.T. department is guilty of some form of copyright infringement.

TRADE SECRETS

A trade secret is much different than a copyright. Basically, it represents some unique formula, design or idea. Perhaps the best known example of a trade secret is the Coca-Cola syrup formula which is strictly protected in a vault. There are essentially two elements for establishing a trade secret; first, that it is a “unique” idea or formula, that it has distinguishable characteristics or properties to differentiate it from others, and;
second, that you can demonstrate you are taking effective safeguards to protect it from unauthorized use (hence, making it a “secret”). In the lawsuit over “PRIDE”, we were able to successfully demonstrate that “PRIDE” was unique and that we had taken adequate steps to safeguard unauthorized use (our nondisclosure agreement).

PATENTS

A patent is similar to a trade secret in that the inventor has a unique idea or device he wishes to prevent others from producing. To implement a patent, the idea or device must be registered with the U.S. Patent and Trademark Office. A registration process is required which includes a fee. For an invention to be patented, it must be proven to be unique, useful, and not of an obvious nature. If a patent is granted, the inventor is protected from others producing a similar invention for a limited period of time (20 years). The patent is renewable
at the end of this period.

The computer field makes active use of patents to establish unique inventions and protect them from others For example, IBM typically registers the most patents each year, both hardware and software.

TRADE MARKS/SERVICE MARKS

A trademark is an arbitrary word, name, symbol, or device used to distinguish a particular product. A service mark is similar except it is used to distinguish a particular service. For example, “PRIDE” is the registered trademark of M. Bryce & Associates.

Like a patent, the trade/service mark has to be registered with the U.S. Patent and Trademark Office. And, Yes, a registration fee is required. Notation normally accompanies the trademark
to indicate it is registered ®. Use of such notation should be encouraged so that others know your product or service is a trademark.

A trade/service mark means no other company can use it to offer a competing product or service unless authorized by the company holding its title. As such, it is closely related to the integrity of the title company. If a competitor uses it, the public will assume they are somehow aligned with your business and, as customers of your competitor, are entitled to the same level of service or quality your business offers. If the competitor fails in this regards, it is a reflection of both your product/service and your company which could damage your business.

CONCLUSION

When MBA was founded, we were very lucky to get good, sound legal advice for protecting our intellectual property. Because of this, I encourage anyone concerned in this regard to seek such advice from a qualified attorney.

Another way to assist in the protection of your intellectual property is to enact some form of employee agreement, whereby the employee agrees not to misappropriate your products (such as designs and software), or use other intellectual property without expressed authorization. This puts your employees on notice.

Devices such as copyrights, trade secrets, patents, trade/service marks are very helpful for preventing the unauthorized use or distribution of your products. However, if someone really wants to pirate your products, they will. When you catch someone in the act though, try to give them a way out. I always recommend that you try to avoid litigation whenever possible. I find such
lawsuits primarily benefit the attorneys and nobody else. But if your livelihood is genuinely threatened, as ours was, then you have no alternative but to use the full force of the law.