Internet Law

150 150 Cynthia Conlin

Anti-Cybersquatting: Brief Overview

Do you have a company or sell a product and want to register a domain, but find that the domain is already taken? If the person refuses to give up the domain, what can you do? One possible recourse is provided in the Anti-Cybersquatting Consumer Protection Act (ACPA).

The ACPA is a federal law enacted in 1999. It allows someone with a valid trademark that is distinctive or famous to sue someone who purchased a domain that is identical, confusingly similar, or dilutive of the owner’s mark, in instances where the alleged cybersquatter used or registered the domain name with a bad faith intent to profit.

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150 150 Cynthia Conlin

Addicted to gaming: Lineage II player sues game manufactuer

From 2004 to 2009, Plaintiff Craig Smallwood clocked more than 20,000 hours on Lineage II, a fantasy massive multiplayer online role playing game (MMORPG), he claims in a current lawsuit. For perspective, that averages out to nine hours a day, seven days a week, for six full years.

Lineage II gave Smallwood such great feelings of euphoria and satisfaction that he became psychologically dependent and addicted, he claims. The psychological dependence and addiction caused by MMORPGs has been recognized; however, the games makers, NC Interactive Inc. and NCsoft Corporation, never gave any notice or warning of such dangers, Smallwood alleges.

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150 150 Cynthia Conlin

Exactly what is ‘Fair Use’?

As you probably know, it is generally an infringement to use another’s copyrighted work without authorization. However, one common defense to infringement actions is “fair use.” But how can you determine whether something is used in “fair use”?

The courts follow a four-step balancing test, which can be quite complex and examines both the original and the copied works in much detail. Only after examining and weighing all four factors will the courts decide whether an item was used in “fair use.”

The first factor is the “purpose and character of the use.” For instance, non-profit educational purposes will weigh more in favor of fair use than for-profit uses. Uses exploiting an original work for commercial gain tend to weigh in the other direction. This factor also considers the transformative nature of the new work. For instance, a “parody” (assuming it’s a true parody) will weigh in factor of fair use in this factor.

The second factor is the “nature of the copyrighted work.” The more informational and functional the original work, the broader the scope of the fair use defense. For original creative expressions such as many songs and paintings, this factor generally weighs against fair use.

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