Movie DVD producers go to great lengths to prevent DVD movie piracy.  To protect their revenues they use technology as a preventative measure and their copyrights as an enforcement tool.  However, there is a new threat on the horizon for the movie DVD producers. 

Last week major movie DVD producers including Paramount Pictures^®, Sony Pictures and Walt Disney Studios brought suit against RealNetworks^® Inc. to prevent RealNetworks^® from selling RealDVD^®, its new DVD copying software.  The software allows customers to make copies of movie DVDs regardless of the encryption or security software protecting the movies on the movie DVDs.  The DVD producers fear that RealNetworks’^® copying software will ruin DVD movie sales.  The DVD movie producers claim the software would allow individuals to rent movie DVDs, copy them and then take the movie back, thus, bypassing any purchase of the movie DVDs.

Currently, distribution of movies on DVD is a $15 billion a year industry.  But imagine how much these revenues would be affected if a potential customer, instead of paying $18 dollars for a movie DVD, could pay $3.75 to rent a movie and copy it at home.  It is easy to see how RealNetworks’^® software could affect the movie DVD business.

A federal district court in San Francisco has barred RealNetworks^® from distributing RealDVD^® software temporarily.  RealNetworks^® asserts use of its software to make such copies constitutes a “fair use”.  The fair use doctrine allows limited use of copyrighted material without requiring permission from the copyright owner.  Typical uses which fall under the fair use doctrine are copies for the purpose of criticism, comment, news reporting, teaching, scholarship or research. 

Copyright law and advanced technology have been at odds for quite some time.  As technology advances we discover new, faster and simpler ways to pass information and sometimes this information is copyrighted.  One only needs to recall the litigation surrounding Napster^®.  It appears this battle between copyright law and technology will be going on for some time to come.

Jim Paige          (612) 392-7310           Jim.Paige@nm-iplaw.com

So you have a great idea, a revolutionary idea, an idea that could be worth a fortune.  What is the best way to protect the idea so that you can profit from it?

That depends.  U.S. law provides several forms of intellectual property protection.  The right form(s) of protection will depend on the nature of the information to be protected and how it will be used.

• Patent rights protect inventions for a limited period of time.
• Trade secret rights protect confidential information from unlawful disclosure for so long as the secret can be kept.
• Copyrights protect original works of authorship fixed in a tangible medium of expression.
• Trademark, service mark and trade name rights protect words, phrases, pictures, symbols, shapes or other means identifying the source of origin of goods or services.
• Semiconductor works protect mask works fixed in a semiconductor chip product. 

It is important to remember that the various forms of intellectual property protection are not mutually exclusive.

In fact, all may apply to a single product launch.  For at least a period of time, information related to the nature of the product, how it will be priced and how it will be sold must be kept secret.  Even after launch, business information surrounding the product and business plans related to the future are to be held in confidence.  Thus, securing and protecting trade secret rights is important.  The product may involve one or more inventions related to how it works and even how it looks.  Thus, utility and design patents may be available to keep others from using such inventions.  If the product includes semiconductor chips, mask work protection may be available.  Every product has a name and many can be readily identified by their ornamental features or the features employed in packaging.  Trademark and trade dress rights therefore come into play.  Various pieces of literature are typically associated with the product launch including advertising pieces, instruction manuals and software code, all of which give rise to copyright protection.

With each new product introduction, two basic questions need to be asked.  Will I be infringing any intellectual property rights of others? And how can I best protect the substantial investment I am making to bring the product to market?  The earlier these questions are asked, the better.  We, of course, would appreciate the opportunity to help you find the right answers.

At Nikolai & Mersereau we can help you sort out these issues and select the most appropriate types of protection for your ideas. 

Jim Nikolai       (612) 392-7302           Jim.Nikolai@nm-iplaw.com