fundamentals of business law summarized cases, 8 th ed., and excerpted cases, 2 nd ed. roger leroy...
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Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 3Introduction Intellectual Property (I.P.) is any property that is the product of an individual’s mind, e.g, books, software, movies, music. U.S. Constitution protects I.P. in Article I Section 8. Congress shall: “promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” Ownership of I.P. is strategically important in the global economy.TRANSCRIPT
Fundamentals of Business Fundamentals of Business LawLaw
Summarized Cases, 8th Ed., and Excerpted Cases, 2nd Ed.
ROGER LeROY MILLERInstitute for University Studies
Arlington, Texas
GAYLORD A. JENTZHerbert D. Kelleher Emeritus Professor in Business Law
University of Texas at Austin
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Learning ObjectivesLearning Objectives• What is intellectual property?• Why are trademarks and patents protected
by law?• What laws protects authors’ rights in works
they produce?• What are trade secrets, and what laws offer
protection for this form of intellectual property?
• What steps have been taken to protect intellectual property rights in the digital age?
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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IntroductionIntroduction• Intellectual Property (I.P.) is any property
that is the product of an individual’s mind, e.g, books, software, movies, music.
• U.S. Constitution protects I.P. in Article I Section 8. Congress shall:“promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.”
• Ownership of I.P. is strategically important in the global economy.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Trademarks and Trademarks and Related PropertyRelated Property
• Trademark.– Distinctive motto, mark or emblem.– Stamped or affixed to a product.– So that it can be identified in the market.
• Statutory Protection of Trademarks.– Federal Lanham Act of 1946.
• This is where this week’s DB question comes from.– Federal Trademark Dilution Act of 1995.
• Think: Kleenex.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Trademarks and Trademarks and Related PropertyRelated Property
• Trademark Registration.– U.S. Patent and Trademark Office
www.uspto.gov gives notice to 3rd parties.– A mark can be registered if in use or mark will
be used within 6 months.• Trademark Infringement.
– Unintentional or intentional substantial copying of mark.
– Strong marks vs. generic terms.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Trademarks and Trademarks and Related PropertyRelated Property
• Distinctiveness of Mark: reduce likelihood of confusion.– Strong Marks: Kodak, Dairy Queen.– Secondary Meaning.– Generic Terms. What happens when a
trademark becomes “common” like aspirin or escalator?
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Trademarks andTrademarks andRelated PropertyRelated Property
• Service Mark.– Similar to trademark but used for services.– Includes characters in TV and radio.
• Certification Mark.– Used to certify accuracy of owner’s goods or
services. “Good Housekeeping”.• Collective Mark.
– Certification used by members of an organization.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Trademarks and Trademarks and Related PropertyRelated Property
• Trade Dress.– Image and appearance of a product or shop
(Example: Starbucks coffee stores).• Counterfeit Goods.
– Stop Counterfeiting in Manufactured Goods Act (2006).
• Trade Names.– Applies to a business (not a product).
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Cyber MarksCyber Marks• Domain Names.
– Trademarks in Cyberspace (example: Nike.com).
• Anticybersquatting Legislation.– Cyber squatting occurs when 3d party registers
a domain name that is the same or similar to another company’s own trade name.
– 1999 Anticybersquatting Consumer Protection Act.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Cyber MarksCyber Marks• Meta Tags
– Keywords in web pages used by internet search engines.
• Dilution in the Online World.– Trademarks can be diluted on the web.
• Licensing.– Permits use of trademark, copyright, or other
IP.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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PatentsPatents• Patent.
– A Government monopoly that gives inventor the exclusive right to make, use or sell and invention for 20 years.
• What is Patentable? – Invention.– Design.– Process (software patent).
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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PatentsPatents• Patent Infringement.
– Manufacture, use or sale of another’s product or design without permission (license).
• Remedies for Infringement.– Patent holder may sue for relief in federal
court.– Can also seek injunction and damages for
royalties, attorney’s fees.– If willful infringement, court may award treble
damages.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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CopyrightsCopyrights• Copyright:
– Intangible property right granted by federal statute to the author for life plus 70 years.
– Automatic protection.– Work must be original and “fixed in a durable
medium.” Ideas are not protected, but the expression of an idea is.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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CopyrightsCopyrights• Infringement.
– Form or expression is copied (does not have to be in its entirety).
– Penalties, damages and criminal action are possible.
• Exception: “Fair Use”.– Certain persons or organization can copy
materials without penalty (e.g., education, news, research, parody).
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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• Copyright Protection for Software.– Computer Software Copyright Act (1980).
• Copyrights in Digital Information.– Copyrights is the most important IP on the
internet; internet requires the data/work be “copied” across the web to view/listen.
– Copyright Act of 1976: Copy of a program into RAM is infringement.
– Revision or re-sale of freelance authors works can be infringement.
Digital CopyrightsDigital Copyrights
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Further Developments Further Developments in Copyright Lawin Copyright Law
• No Electronic Theft Act of 1997: penalties for making copies for personal use (modifies fair use doctrine).
• Digital Millennium Copyright Act updates copyright law with World Intellectual Property Organization treaty.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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MP3 and File SharingMP3 and File Sharing• MP3 and File-Sharing Technology.
– Napster case.– P2P sharing, distributed network.
• Evolution of File Sharing.– New software decentralizes storage making it
difficulty to apply traditional doctrines of copyright infringement.
• Grokster decision.• SOPA—dead but more to come?
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Trade SecretsTrade Secrets• Trade secrets are confidential, not filed
with the government.• Can be customer lists, formulas,
pricing, etc.• Theft of trade secrets is now a federal
crime under the Economic Espionage Act of 1996.
• Cyberspace: employees can easily email information to competitors.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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International Protection for International Protection for
Intellectual PropertyIntellectual Property• Berne Convention (1886).• TRIPS Agreement (1994).
– Each member must include domestic laws protecting intellectual property of other nation-members.
• World Intellectual Property Organization. (WIPO) (1996).– Provides for Dispute resolution.
• Madrigal Protocol.– Single application to secure international trademark
protection.
Fundamentals of Business Fundamentals of Business LawLaw
Summarized Cases, 8th Ed., and Excerpted Cases, 2nd Ed.
ROGER LeROY MILLERInstitute for University Studies
Arlington, Texas
GAYLORD A. JENTZHerbert D. Kelleher Emeritus Professor in Business Law
University of Texas at Austin
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Learning ObjectivesLearning Objectives• What two elements must exist before a person can
be convicted of a crime? Can a corporation commit crimes?
• What are five broad categories of crimes? What is white-collar crime?
• What defenses might be raised by criminal defendants to avoid liability for criminal acts?
• What constitutional protections exist to protect a person accused of crimes? What are the basic steps in the criminal process?
• What is a cyber crime? What laws apply to crimes committed in cyberspace?
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Civil Law vs. Criminal LawCivil Law vs. Criminal LawKey Differences
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Civil Liability for Criminal Civil Liability for Criminal ActsActs
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Criminal LiabilityCriminal Liability• To be convicted of a crime, the State
must show beyond a reasonable doubt that the Defendant: – Performed an illegal act (actus reus) AND– While performing the act, had the required
intent or specific state of mind (mens rea).• Without the required intent there can be
no conviction.
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Corporate Criminal Corporate Criminal LiabilityLiability
• A corporation is a legal “person.”• A corporation can be fined or denied
legal privileges (license) for criminal activity.
• “Responsible Corporate Officer” Doctrine: officers and directors can be criminally liable.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Types of CrimesTypes of Crimes• Violent Crimes.
– Crimes against persons (murder, rape).– Robbery is a violent crime.
• Property Crimes - Most common, involves money or property:– Burglary.– Larceny.– Receiving Stolen Goods.– Arson.– Forgery.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Types of CrimesTypes of Crimes• White Collar Crimes: non-violent crimes
involving a business transaction:– Embezzlement. – Bribery.– Bankruptcy Fraud.– Theft of Trade Secrets.– Insider Trading.– Mail and Wire Fraud.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Organized CrimeOrganized Crime• Organized crime generally provides
illegal services and goods. – Gambling, prostitution, illegal narcotics, and
loan sharking, counterfeiting and credit card scams.
– Money laundering.• RICO.
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Classification of CrimesClassification of Crimes• A person’s wrongful act may hold him
liable (or guilty) in civil actions (tort) and criminal actions.
• Classification of Crimes:– Felony: serious crimes punished by death or
imprisonment for at least 1 year.– Misdemeanor: punished by fine or
confinement for less than 1 year.
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Types of CrimesTypes of Crimes
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Immunity.Consent.Statute of Limitations. Mistake.
Entrapment.Insanity.
Justifiable Use of Force.
Intoxication.
Duress. Infancy (juvenile).
Defenses to Criminal Defenses to Criminal LiabilityLiability
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• Fourth Amendment Protections.– Search Warrants:
• Officer must have Probable Cause.• Exceptions to Warrant.
– Search and Seizure in Businesses.• Warrant required in some cases.• No warrant required for contaminated food
or highly regulated liquor or gun businesses.
Constitutional SafeguardsConstitutional Safeguards
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Constitutional SafeguardsConstitutional Safeguards• Fifth Amendment.
– Due Process of Law.• Opportunity to Object.• Hearing before a neutral Magistrate.
– Double Jeopardy.• Person cannot be retried for the same offense in the
same court.• Civil action, however, is permitted.
– Self-Incrimination.• “Right to Remain Silent” or not testify against yourself
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Constitutional SafeguardsConstitutional Safeguards• Sixth and Eighth Amendments.
– Right to Speedy Trial.– Right to Jury Trial.– Right to Public Trial.– Right to Confront Witnesses.– Right to Counsel.– Prohibition on cruel and unusual punishment.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Exclusionary and Exclusionary and MirandaMiranda RulesRules
• Evidence obtained in violation of constitutional procedures must be excluded.
• Evidence derived from illegal evidence is “fruit of the poisonous tree.”– Deters police from misconduct.
• Miranda Rule.– Inform suspect of his rights. Exceptions:
coercion, illegally obtained evidence.
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Criminal ProcessCriminal Process
Arrest Initial AppearBooking
ChargesFiled
PrelimHearing
Plea Bargain
Trial
Guilty Plea
Arraign-ment
Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.
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Cyber CrimeCyber Crime• Cyber crimes involve the use of computers in
cyberspace to injure a person or property.• Most cyber crimes are based on existing
common law crimes, with exceptions:– Financial Crimes & Identity Theft.– Cyber Stalking – Cyber bullying– Hacking & Cyber Terrorism.
• Computer Fraud and Abuse Act helps prosecute computer crime.– Jeremy Jaynes: First Conviction for Felony Spamming.