Cybercrime: The Lawyers Are Coming

Part 1: Copyrights, Trademarks, and Cybersquatting

- Dyanna Culp

We expect information access at the click of a mouse, live automated lives in climate-controlled bubbles, and don’t think give much thought to the technology behind it all. The sun rises every day, the computer turns on every morning, and all is rosy with the world. But our modern lives are ruled by complex information systems built on foundations of silicon sand. Identities can be bought and sold online, savvy hackers can bring down legal and financial institutions, pirated copyrighted works appear on websites all over the world, and for a price, one can even purchase a woman or a child.

The lawyers are salivating over the explosion of cybercrime lawsuits and criminal cases. The smorgasbord main course includes: intellectual property theft in trademark/ copyright violations, hacking mischief, cyberstalking, identity theft, and cybersquatting. The Internet also serves as a stealth operation center for terrorism, Nazis, child pornography, and just about any other distasteful practice one can imagine. Cases range from “innocents” who unknowingly stepped on some one’s cyber toes to multi- million dollar lawsuits and criminal prosecutions.

Being unaware of cyber legal issues leaves you vulnerable to becoming a victim and does not make for a good legal defense when facing down a team of lawyers. Those of us “online’ in the beginning knew it was too good to last, that eventually as the community grew, the criminal element would filtrate into our little society. Concerned about electronic terrorism, viruses, fraud, child pornography… on July 15^th   the U.S. House of Representatives voted to increase online surveillance and stiffen penalties for computer crime.

Copyright / Trademark Violations

It is virtually impossible to prevent intellectual copyright property theft online. You can disable right click, but many know how to turn off Java scripts and get around such an obstacle. You can build in data bits known as watermarking, but savvy thieves find ways around this technique almost as quickly as new methods are developed. No matter what copyright protection techniques you use, others will pirate your writing, images, and programs. We even have a special name for pirated software- warez. The more preventive measures taken to establish original copyright ownership, including watermarking signature data, the easier it is to nab the culprits- once you find them. The only way to find them is actively searching online for pirated versions of your work. Then you try a nice little email warning, but if they persist your only choice is the lawyer route.

What is the “Copyright Law”? Copyright Criminal Infringement--Any person who infringes a copyright willfully either– (1) for purposes of commercial advantage or private financial gain, or (2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18, United States Code. - 17 U.S.C. 506. Criminal Offenses

The right to “fair use” presents a wrinkle in the copyright law. - U.S. Copyright law recognizes a doctrine of "fair use” with no clearly defined rules. Judges determine fair use, case by case, based on four factors listed in the Copyright statute:

1. The purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes. Fair use is more often recognized by the courts when copyrighted materials are used for nonprofit purposes.

2. The nature of the copyrighted work. Fair use rulings are more likely when the copied work is factual rather than creative.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Fair use rulings are more likely when the amount of used copyrighted material is small or insignificant in proportion to the overall work.

4.The effect of the use upon the potential market for, or value of, the copyrighted work.  Fair use rulings are more likely when the newly created work is not a substitute for the original copyrighted material.

Congress apparently does not find the existing copyright laws sufficient for the unruly Internet. Current proposed legislation, the Security Systems Standards and Certification Act (SSSCA), would require consumer electronics/ computer manufacturers and content providers to develop and install copyright protection technology. These new programs would disable the ability to copy online music, films, etc. onto CDs, DVDs, or other digital formats.

In the News: On January 22, 2002 a group known as Drink Or Die was charged with criminal copyright infringement for Internet piracy.  They distributed pirated software titles, including Windows operating systems, video games, and DVD movies online. They are awaiting trial.

On May 15, 2002 a gentleman leading an international computer software piracy ring landed 18 months in federal prison. He and his associates conspired to infringe the copyrights on thousands of software programs worth over $1 million. Those programs were available to the defendants through a hidden Internet site located at a Quebec, Canada University. The investigations of copyright infringement over the Internet were conducted by the FBI.

Cybersquatting

Technically “cybersquatting” occurs when someone else purchases a domain name for your trademarked company or product name. If you currently have, or intend to, own a trademarked name don’t waste any time. Go immediately to the nearest registrar and purchase the domain under org, biz, info, name, net, aero, coop, TV, museum…everything available.  Keep your site at the .com version and have your host redirect all other urls to the main site for a low fee, normally around $50.00 per year for each redirect. Or you can just leave the additional domains as dead links. Just make certain no one else buys them.

Be vigilant and don’t let your domain name registration expire. Once someone else purchases an expired domain, it's hard to recover. Companies that lose control of a trademarked domain name can attempt recovery through ICANN's dispute resolution system. (http://www.icann.org/udrp/udrp.htm) A request costs $1,500 and typically takes 60 days to process. If a domain doesn't have trademark protection, there's really no way to get it back, other than to buy it from the new owner.

Snapnames specializes in purchasing expired domain names the instant they become available. These domains are then resold, primarily to future porn sites that appear to be targeting expired sites of nonprofits, churches and local governments. These groups lack any trademark protection and therefore have no legal recourse to regain their expired domain names. Needless to say, local churches and governments are rather dismayed to find their urls converted to pornography sites.  “All the good new names are gone, so speculators feast entirely on expiring names.”- Ron Wiener, CEO of Snapnames. Organizations wishing to avoid this fate can sign up with services that immediately buy back and reserve their domain name if they become forgetful and allow it to expire. This service is offered by Register.com, (http://www.register.com) and of course Snapnames.

The dispute resolution road for trademarked url names. If someone purchased microsoft.org or microsoft.biz, the first offensive would be for Microsoft to utilize the Uniform Domain Name Dispute Resolution Policy (UDRP) with full resources available at http://www.icann.org/udrp.  The UDRP deals strictly with trademark name issues and will not cancel, suspend, or transfer a domain name in non-trademark url disputes without a court order or consent of the original “offending” registrant.

If you find yourself in a Cybersquatting situation, initiate the complaint procedure by filing with one of the approved dispute resolution service providers. To have the domain name cancelled or transferred to the trademark holder, you must provide evidence proving the following:

1. That the current owner/ registrant of the domain name has no legitimate rights to the trademarked name

2. That you possess a legally recognized trademark in a name that is identical or confusingly similar to the domain name

3.  That evidence exists of bad faith or abuse.

Statistics on past and current dispute claims can be found at http://www.icann.org/udrp/proceedings-stat.htm and the full set of rules for using this dispute resolution procedure are at http://www.icann.org/udrp/udrp-rules-29sept99.htm

The UDRP does not apply to country code top-level domains, as in .uk, except in specific cases where adopted by the local administrator. If you’re international then visit http://ecommerce.wipo.int/databases/cctld for an index of dispute resolution policies by country.

A final cybersquatting note on sex.com, one of the most sought after domains on the Internet. In 1995 Stephen Cohen forged documents, which resulted in the registrar Network Solutions (now known as VeriSign) transferring sex.com to him from its original owner Kremen. Cohen proceeded to turn sex.com into a massive moneymaker. Kremen sued and after years in court, recently won $65 million in damages for Cohen’s illegal take over. Cohen’s response- he claims the $65 million in damages is excessive and that now he can’t even afford to buy toilet paper. As of July Kreman was awaiting yet another court battle in appeals court as Cohen attempts to reverse the ruling.

In next month’s issue we’ll explore Hacking and Viruses, Cyberstalking, Identity Theft, and Additional Resources for battling cybercrime.