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Much to my dismay, the Berkman Center/Harvard University course
on Intellectual Property is drawing to a close.
It has been a fine experience. I share the last assignment as
it discusses many issues of interest to all of us who are
engaged in the creation of web sites.
Legal Protection for Websites
W. Curtiss Priest
Center for Information, Technology & Society
April 12, 1999
Berkman Center for the Internet
Harvard University Law School
Cambridge, MA
Intellectual Property in Cyberspace
Professor William W. Fisher III
Mr. David Melaugh
somewhere in California
Dear Mr. Melaugh:
We are writing in response to your request for an opinion about your
creation of the "Beckman Center for Cyberlearning"
We preface our opinion by stating that the endeavor you propose both
is risky with respect to existing law, but also buttressed by the
general leniency for web-based endeavors, primarily arising out of
your 1st Amendment Rights.
As a student, you paid tuition for an education. Part of what you
"purchased" was free access and free use of teaching materials. In
that it is common for students, upon graduating, to build on what they
were taught, you have rights to the many materials you wish to use
under both contract law and based on Section 107 of the U.S. Copyright
Act of 1976. In particularly, the "teachable moment" argues in your
favor with regard to the use of any copyrighted materials in your
course. However, be advised that the "teachable moment" passes when
the materials are no longer a matter of "current events."
In that you helped create some of the Harvard web pages, you were
engaged as creating a "work for hire" -- regardless of whether you
were paid or not. When someone has you work for a specific product,
specifies a level of effort, etc., they become the owner of the
copyrighted work. This is a weakness that we must further address.
The central issues with your endeavor relate to the copyright and
"trade dress" rights that Harvard owns. In that your pages are
clearly derivative works from the Harvard pages, you are treading on
thin ground. In your favor is the Apple vs. Microsoft case concerning
the "look and feel" of Windows(tm) when compared with the Apple
Macintosh. The courts ruled in favor of Microsoft based on the
evidence that the "look and feel" actually went back to Xerox PARC
research which predated the Apple visual interface. A similar
argument could be made with respect to your use of frames and buttons.
If we show that the "dress" of this actually predates Harvard's
specific use of the layout, your liability is eliminated.
If this is not successful, Harvard will have several arguments in
their favor. Derivative works are covered by copyright and your pages
are clearly derivative of the Harvard pages. When we look at your
pages and the Harvard pages, "as a whole" we see that they appear very
similar. "Trade Dress" protection under the Lanham Act will be a
significant problem for your proposal. Further, general
"misappropriation law" could be used against you -- though this may be
completely mitigated by your status as a student and the rights we
described above which arise out of the implicit contract between
Harvard and you about what you have purchased in the way of an
education.
Finally, your reference to associating with the Harvard site, your
mentioning of Prof. Fisher's name, and the use of the name Berkman are
very problematic. We suggest that you immediately eliminate these
areas of contention. With regard to Prof. Fisher's name, Prof. Fisher
has "publicity rights" (as does Harvard) and if you "ride" on these
rights for commercial gain, and correspondingly deprive Prof. Fisher
and Harvard of income because of this activity, you are on weak
ground. The same advice applies to your use of the word Berkman.
While it is fortunate that you have this name in your lineage, there
is the Samsung case where Samsung used a robot that looked like Vana
White to sell products. In that your intent in using the name Berkman
will both dilute the Berkman trademark (whether it has been registered
or not) and to the extent you mention the name Berkman too
prominently, you will most likely be found guilty of trademark
infringement. In the area of trademark you may only mention/use a
trademark if it is necessary in identifying another product or
service, you may only display the trademark as prominently as needed
to make mention of it, and, most importantly, you may not confuse
prospective students about the relationship between your Berkman Center
and the existing Berkman Center at Harvard.
We also note that your addition of materials about pornography helps
in distinguishing your enterprise from Harvard's, you also are at risk
when you provide access to "X-rated" materials. Various "Computer
Decency Act" proposals at the federal and state levels are attempting
to protect children from expose to such materials. We suggest that
you, at the least, make it impossible to access these materials
without "knowing your customer," i.e., knowing that your "student" is
over the age of 18 and providing password protection for such
materials.
--
W. Curtiss Priest, Director, CITS
Center for Information, Technology & Society
466 Pleasant St., Melrose, MA 02176
Voice: 781-662-4044 BMSLIB -at- MIT -dot- EDU
Fax: 781-662-6882 WWW: http://www.eff.org/pub/Groups/CITS
