tag:blogger.com,1999:blog-44288677083114179112024-03-05T00:25:59.309-08:00grpblawg: Intellectual Property, Patent and other Legal IssuesCommentary and analysis on legal and related issues by Gerald R. Prettyman, Intellectual Property and Patent Attorney.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.comBlogger26125tag:blogger.com,1999:blog-4428867708311417911.post-1886495187753024462013-12-01T23:04:00.000-08:002013-12-01T23:04:44.744-08:00Registration solicitations for trademarks, patents and domainsDear Client or Prospective Client,
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This is a reminder to be aware of registration solicitations for trademarks, patents and domains.
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You may already know of, and have received, solicitations and warnings to register or publish your trademark, patent or application, or Internet domain(s) with what appear to be government or other official looking entities. The solicitation may sometimes be a company offering to monitor your trademarks, patents and domains for possible infringers.
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The entity typically has a name like "United States Trademark Registration Office" or other form following <COUNTRY> <TYPE> REGISTRATION OFFICE, or <COUNTRY> <TYPE> MONITORING SERVICE, or may even purport to be a law office in another country.
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Most often these offerings are inadequate, if not unnecessary, and are almost always more expensive than if you use a legitimate service.
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As a matter of precaution, always check the address of any letter or email requesting money. Trademark or patent correspondence from the USPTO will be from its office in Alexandria, Virginia (typically P.O. Box 1450), or from the domain "@uspto.gov." Your domain registrar almost always sends email. In 12 years, I have never received snail mail from any of my several domain registrars.
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Correspondence regarding foreign registration or services, such as from the "International Register of Trademarks", or the "International Register of Patents and Trademarks" can be from anywhere in the world because they are always bogus. There is no official international registration entity of trademarks, patents, or domains or even international applications for them.
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Another bogus letter or email ties together trademarks and domains, warning you to register your trademark-like domains with them to protect your trademarks. The letter may mention the "Internet Corporation for Assigned Names and Numbers" (ICANN) or "Trademark Clearinghouse" (TMCH) and may use another abbreviation containing "TLD", such as generic top-level domains (gTLDs).
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While you may be able to legitimately register a foreign trademark or domain, you are most often wasting money if you are not conducting business in the country, and if you will be conducting business in the country, you will need a legitimate partner to monitor and work with you.
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Companies in the U.S. will state somewhere that "This is not an Invoice", or "Not a government agency" (if they want to stay out of jail), but foreign solicitations typically lack these because they are beyond U.S. fraud protections.
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If you are existing client and you receive something questionable, go ahead and send a scan or photo to me as a precaution - no charge. If you are interested in a foreign trademark, patent and domain filings, please contact me. I am already filing or handling foreign applications for other clients with local law firms in other countries, and they have the experience to know how to proceed correctly.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-2896964888462724742012-09-13T21:28:00.003-07:002012-09-13T21:28:47.172-07:00Product Design as a Trademark<div>One of the more enjoyable aspects of my work is working with clients to determine whether and how intellectual property protection is available to their ideas. For the most part, protectable ideas have function or significant creativity. How and to what degree an idea has function and significant creativity is important to both intellectual property protection and to marketability. The best ideas generally have both, while market flops usually lack one or both. </div>
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<div>There are four types of intellectual property protection. Regular patents protect ideas that have function and are thus in some way related to a definable product. Trademark protects the public aspects (name, logo, etc.) associated with the product or service, but not the product or service. Copyright protects the creative aspects of an idea, which may be incorporated into or related to a product, but like trademark, copyright does not product the actual product. Trade secrets and contracts protect ideas as long as the owner asserts proper care over the keeping the idea a secret. </div>
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<div>The products of industrial design, unfortunately, generally lack novelty (newness), or are combination of off-the-shelf goods that work as expected (which is called obviousness), or have too much function, so that patent and copyright protection are not available. In addition, a product must be put into the marketplace to make money on it, so the owners of the most product ideas can't keep the product a trade secret, and make money. </div>
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<div>In large part, the appearance of these design related ideas and products is developed by people with academic training and work experience in the design arts, and often an eye for attractive and marketable designs. Design artists, however, rarely get intellectual property protection for one or more of the reasons above. These reasons are in significant part due to a protection void that exists because of a public policy decision made many years ago. The gist of the policy is that artistic protection of products would stifle competition, while the absence of artistic protection would drive innovation through building on unprotected ideas. </div>
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<div>To a degree, both premises are correct. Patents protect the idea and ALL derivatives for 20 years, which is effectively an entire generation, while copyright protects the idea and ALL derivatives for a lifetime, plus 70 years, or up to 120 years, depending on ownership at the time of creation. Not surprisingly, some persons at Stanford Law School called this protection FOREVER. See "A Fair(y) Use Tale" at 6:08. One example might be if the design of the Model T had had patent or copyright protection, the pace of automotive design would have slowed so much that we might be driving Edsels. </div>
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<div>So fortunately for the public, the products of industrial design art are not protected. But, fortunately for designers and the companies, the dichotomy of protection is twisted in two ways. These are through design patents (a type of patent), and trade dress (a relative of trademark). </div>
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<div>While regular patents protect function, design patents reveal and protect only the design of the product. The first iteration of many products had design patent protection - gloves, shoes, bottles, cars, eyeglass and sunglass frames, a computer mouse, a Batman-like costume, purses, and electronic devices. The limitations of design patents are that the design must still meet the novelty and non-obviousness requirements, function is not protected, protection lasts only 14 years, and color distinctiveness is generally not approved. </div>
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<table><tr><td> <img src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhIyJtuseVmr5VExXFRUMP2PZd_j3InXsfV2TA-O3mnrLbtAxMVn6sAM4t5zTSdH7fLvAqQru3zaZqxCm2NvQEG7bLAccgNgBVoTPVsHZ9HrWPbcjYqKBX12DuC-Rrqc-EraPFaV6l4p6M/s1600/USD618677.jpg" width="200"> </td><td>
Though Samsung lost its design patent infringement (Apple, 2012), the iPhone design patent expires in 2020. This does not mean though, that the iPhone design might not protected. As noted above, trade dress is a relative of trademark in providing protection to the public aspects associated with the product or service. The distinction is that trademark applies to names, phrases, images, logos and sound (such as the Intel tune, the AOL mailman, and the MGM lion), which can be protected from first use. Trade dress is quite difference in that it is the appearance seen by the public that gets protection, and protection generally requires five years of use before the owner can even file for registration. </td></tr></table>
<div> </div>
<div>Most of the public would recognize trade dress when seeing it. That recognition, in fact, is the requirement for protectable trade dress. Say for example, it is night, you and the family are hungry and looking for a place to eat, but you are also in a hurry and driving too fast to read the signs (but the police are not looking, so don't worry).</div>
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<div>You first see a place with a horizontal band of an orange, green and red stripe across the doorway, but you don't stop because you know it is a 7-Eleven. Then, you see a place with a horizontal band of a red, yellow and green stripe across the doorway, but you don't stop because you know it is a Taco Bell. Then you see a big guitar with a circular pattern and stop - at a Hard Rock Cafe! </div>
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<div>These are the features of trade dress - the specific ARRANGEMENT and COLOR the public aspects associates with a product or service to the maker. Another way of looking at trademarks and trade dress is that sufficient differences mean a different company - such as the different color bands between 7 Eleven and Taco Bell, or a huge oboe in front of restaurant means the place is not a Hard Rock Cafe! Which brings us to a recent and interesting case. </div>
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<div>As stated above, a new design of shoes can the protected by a design patent, but the patent expires after a fixed time. Has the shoemaker then lost protection? Not if in the 14 years of patent protection, the shoemaker made the effort to make sure the public associates the shoe design to the shoemaker. Then, the shoe design becomes protected trade dress.</div>
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<div>For example, in 1992, Christian Louboutin introduced and started a line of shoes with a red sole. By 2008, Christian Louboutin had so many red sole shoes that the Trademark Office granted him two registrations for red colored shoe soles. </div>
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<div>Consequently, when Yves Saint Laurent began producing red shoes (soles and upper), Christian Louboutin saw red in more just his shoes. </div>
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<div>Generally in court cases, one side wins, and the other side losses. Louboutin vs. Yves Saint Laurent has the rare distinction of a win by both sides. Recall that trade dress applies to the specific ARRANGEMENT and COLORS the public aspects associates with a product or service to the maker. Unlike trademarks (words, phrases, images), the Louboutin registration is for the product (red soles) which is a rare registration, so some people thought (and Yves Saint Laurent was hoping), the registration would be overruled. The court, however, upheld the registration, so win by Louboutin, but the court also recognized that the Yves Saint Laurent shoes have both red soles and a red upper. The court said the Yves Saint Laurent design was different enough that the public would recognize the difference, so win by Yves Saint Laurent. </div>
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<div>Which just about closes this story, except for a question and conclusion. The question is whether Apple will lose iPhone design protection when the patent expires? The likely answer is no, unless Apple drops the whole line. That is because after the required five years (2006 - 2011), Apple filed for and received trade dress registration for the iPhone design!</div>
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Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-83897150600371656822012-04-01T22:29:00.000-07:002012-04-01T22:29:18.795-07:00Copyright For Critical Reading and CompCopyright protects creative ideas that are perceivably recorded in specific formats. An idea is creative if it more than minimal (a title, a fact, and Bob Spongee are minimal), not functional (furniture, instructions, or a process) and not based on a known arrangement (alphabet, logic, or syntax). <br />
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Compare Bob Spongee and SpongeBob Squarepants <br />
<img src="http://grplaw.biz/BobSpongee.png" height="100"> <img src="http://grplaw.biz/17138_SpongeBob_19sm.jpg" height="100"><br />
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An idea does not have to be wholly original for protection, but knowledge of another person's similar work negates protection of the similar ideas. Perceivably recorded means that the idea is permanently documented to be seen or heard, e.g., paper, an audio or visual recording media, digital media, or on a composition of nature, such as stone. Unrecorded ideas are not protected. <br />
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Copyright applies to (1) literary works; (2) musical works and their words; (3) dramatic works and their music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. <br />
The copyright belongs to the creator from the moment of creation. A copyright may be transferred by assignment, employment, or through law. Assignment means that the creator subsequently transfers the copyright to another person. A transfer by employment occurs concurrently at the moment of creation by the employment contract or in circumstances by which the creation occurred through and for the employer. A transfer through law, which is generally known as a work for hire, applies only to select works, such as a contribution to a collective work (newspaper or magazine), as a part of a motion picture or other audiovisual work, as a translation or supplementary work, as a compilation (anthology or atlas), as an instructional text, or as a test or answer material. A creator may reinstate ownership in certain cases.<br />
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A copyright allows the owner to do and control (1) reproduction of the work; (2) preparation of derivative works based on the work; (3) distribution of copies to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) public performance of the literary, musical, dramatic, and choreographic work, pantomime, motion pictures and other audiovisual work; (5) public display of the literary, musical, dramatic, and choreographic work, pantomime, or pictorial, graphic, or sculptural work, including the individual images of a motion picture or other audiovisual work; and (6) public performance of a digital audio transmission of sound recordings. <br />
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Copyright term is the time that an owner has copyrights. For new works, an individual owns the copyright for her or his remaining life copyright, at which time the copyright passes to the family (or company) for 70 years after the creator's death. If a company was the owner at the time of creation, the copyright expires the earlier of 120 years after creation or 95 years after publication (showing the work to the public). The copyright of works created before 1976 depends on many factors, including the money to fight corporations. Walt Disney created and published Mickey Mouse in 1928, so that copyright lapses in 2023. The Hill sisters created and published "Happy Birthday to You" before 1921 but Warner Chappel Music claims the copyright (initially registered in 1935) will not lapse <br />
until 2030. <br />
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Marking is a declaration of ownership. There are three minimal requirements for a marking. These are the word "Copyright" or the circle c (©), the year of creation, and the name of the owner. A combination of the word Copyright and the circle c may be used as these focus attention to the marking. If the work is later modified, or republished, the year of modification or republication is added (Copyright © 2010, 2012, Owner Name). <br />
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Registration is used to provide a government record of the copyright. Registration is not required to declare a copyright, but is required to show ownership in court of law. An owner should record registration within five years of creation to have incontestable proof of ownership. Registration also provides the ability for compensation not related to losses, which is how a music company gets $30,000 for infringement of a 99-cent download. <br />
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Moral rights provide an author the right to dissociate the author from a visual artwork (if for instance an owner uses a work in a repugnant way) and the right to demand maintenance of the integrity of the visual artwork. <br />
Infringement is an unauthorized act of one or more of the six copyrights, of a work protected in one of the eight classes, during the copyright term. Infringement occurs by directly performing an unauthorized act, intentionally inducing or contributing to someone else's infringement, or by having a financial interest and knowing or suspecting of infringement and having the ability to stop the infringement.<br />
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Fair use is an unlicensed and permissive exception to infringement. Fair use includes criticism, comment, news reporting, teaching, scholarship, and research, but only a detailed and complete four-factors analysis can determine whether or not a particular use is fair. The four factors look at (1) the form and originality of the original work, (2) the form of the copy as a whole and whether the copy is a non-commercial work, (3) the amount of copied material in relation to the amount in the original and in the copy; and (4) the market of the original material, the market material of the copied material, and how the copied material affects the market for the original material. Two important contrasts are that parody is fair use, but satire is infringement, and that attribution excuses plagiarism, but not infringement. <br />
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See http://www.youtube.com/watch?v=CJn_jC4FNDoGerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-28865031213763496302012-04-01T22:10:00.000-07:002012-04-01T22:10:06.656-07:00Cloud Computing, Part III - Online File Sharing and Cloud-Based Office SuitesThis is the third article on Cloud Computing. Part I discussed programs that are accessed and used via the Internet. These programs are rented from Application-Service-Providers (ASP) and Software-as-a-Service (SaaS) providers, and have the benefit that the user never needs to install or upgrade the programs. Their downside is that an active Internet connection is generally always needed to use the programs. Part II covered use of the Internet to provide electronic file backup and restore services. These services are called offsite storage and have the benefit that your electronic files are safe from harm or theft in your office. Their downside is that the files may be subject to compromise both by harm or theft at the offsite location. <br />
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Part III, provided here, discusses use of the Internet for sharing documents and for creating and editing documents. This article includes minor technical discussions so that readers may understand the legal and privacy implications for using various file sharing and document creation services.<br />
Online File Sharing<br />
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File sharing works primarily two ways, server-client and peer-to-peer. As with ASP and SaaS, server-client means a central computer (the server) holds files and controls access by another computer (the client). Peer-to-peer means two computers are sharing information with each other without regard to either computer being between other computers. <br />
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Server-client file sharing predates the Internet through newsgroups (1980), which were also called usenets, or bulletin boards. Each server had a telephone number through which people could connect a computer. The Internet allowed multiple servers and multiple users to connect via telephone connections, with cable and DSL connections later succeeding telephone service. Readers may recognize that web sites, forums, and social media are current examples of server-client file sharing.<br />
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Peer-to-peer file sharing means that people may share files without using a intermediary server. Early peer-to-peer file sharing required users to install a common program, such as Napster and Grokster, so a user could tell other users what files were available for sharing, and at least one server to facilitate the exchange of file lists. As many users unfortunately chose to share copyright protected files, the server owners were liable for contributory copyright infringement. <br />
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Yahoo took a different tactic and introduced Yahoo Groups to allow people to upload pictures and other files for sharing. Yahoo Groups isn't quite a client-server operation because you can use any web browser and it isn't peer-to-peer because the files are on a Yahoo server. In addition, the users (called "organizers") who create the group have the ability to make the files public or private to select people. Yahoo Groups is free, but there are three important issues. First, the files on Yahoo Groups are not encrypted (unless the uploaded file is encrypted) so anyone with access can read a file. Second, files are publicly available unless access is correctly set to the authorized people. Lastly, as the files are on a Yahoo server, you are trusting Yahoo with oversight that the information will not be compromised. <br />
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Like Yahoo Groups, Google's file sharing services are free at a basic level and use a web browser for file operations. Google's Picassa allows for photo uploading and editing. Google docs allows for the ability to have both document sharing and real-time editing of letters and spreadsheets. Another Google difference is being able to control access link-sharing, meaning anyone with the URL can access the document. As with Yahoo Groups, the files on Google docs are not independently encrypted so you must properly set controlled access, and trust that Google employees will not snoop. Server-client services are now generally fee-based, which helps pay for the software, the sharing services, and for file storage.<br />
Other companies allow you to store files in a designated folder on your computer, and the company then copies the files to the computers of people you designate, and its servers. The company then updates the files on all computers with automatic peer-to-peer updates. Examples of these companies include Dropbox, Box.net, FilesAnywhere, CloudMe, CrashPlan, Egnyte, iCloud, Mozy, SpiderOak, SugarSync, TitanFile, Ubuntu One, Windows Live SkyDrive, Wuala and ZumoDrive. Most of these companies have a tiered free/ fee service plan for keeping the files current regardless of whether you or another users make changes. Most companies also have applications for Android, BlackBerry, iPad or iPhone so you can keep your files current across all your devices. <br />
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There are major concerns with these services. First, the folder of your computer may be a 'public' folder that provides for public access to anyone who has the link (this is like Picassa and Google docs), so you must be careful to place sensitive files in the correct folder. Second, if you lose a mobile device, you must remotely delete the folder on the device, or the files, or remotely erase the device. Third, as with any offsite file storage scheme, you trust the integrity and confidentiality of your electronic files to a third party. As previously mentioned, personal encryption is the only way to have complete assurance of confidentiality. Lastly, these companies sometimes go out of business, so you should have a separate backup of every file you store online. <br />
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Cloud-Based Office Suites<br />
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Cloud-Based Office Suites are basically online document creation providers. Depending on the provider, you open your browser to the provider's website, login, use the provided features to create and format a document, and set permissions of who can set and edit the file. The market is still in flux, but the primary players in the field are Google Apps, Zoho, and Microsoft Office 365 (which replaces Office Live). <br />
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Google packages it's Apps' service as a combined email, document, and calendar/ ToDo service with tiered free/ fee plans. You register for a google email (gmail) address, such as yourname@gmail.com, and for free, you get 7 GB of storage for email and documents. There is a slight perk that free file storage slowly increases at 128 MB per day. For a nominal $50 per year, the storage is bumped up to 25 GB per year. As an online office suite, Google Apps is austere. You get the basic font formats, plus nine paragraph formats, most of which apply to titles and headings. The basic file, edit and insert toolbars, functions and symbols are available, as is an equation toolbar. You also have the ability to share documents by assigning read or write privileges to individuals (collaborators) through weblinks, or to the public, or to publish the file on a webpage. Google services are also available for Droid and Blackberry Smartphones. Google also has a Groups (discussions) feature, and is getting into the online meeting business (openmeetings) though at this time I would classify the openmeetings service as being in beta testing stage. <br />
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Zoho (which has a corporate office in Pleasanton) touts itself as an online provider of 22 collaboration services. Some are the same services as Google (including a Zoho.com email address), and in fact, Zoho allows you both to register using your Google login, and "lets you seamlessly manage members of your private community from Google, attach files from Google Docs and much more, from within Zoho apps." Zoho, however, surpasses Google as a business service provider by providing an accounting application, a CRM (customer resource management) application, HR services, discussion groups, project management, online meetings and other applications. Like other online providers, Zoho is a free/ tiered fee service provider. All Zoho services have a free minimum level with 1 GB of storage (total). Each service also has an enhanced paid service, such as $3 per month per additional 5GB of storage. The free HR service tracks up to 10 employees, with more than 10 employees costing $49 per month, The free online meeting service is one host-one participant-one hour per meeting, while one year of one host - five participant unlimited meetings is $115. This is much less than gotomeeting, which is $49 per month, though gotomeeting allows for more attendees. The advantage and yet drawback to Zoho is its pricing structure. You can buy only the services you want, but to get bulk pricing, you'll have to call Zoho and talk to a customer service representative (unless you work in the 4900 Hopyard Road building). <br />
After years of sticking to packaged software, Microsoft finally relented in 2011 to the 21st Century and introduced Microsoft Office 365 as its cloud-based application suite. The advantages of Office 365 are that if you are used to Office 2007 or Office 2010, you'll likely be comfortable with the ribbon features of Office 365, it has more office suite features than other online applications, and the pricing isn't bad. Office 365 is just $6 per month per user for the usual office suite applications with 25 GB of storage. Businesses with corporate email and IT functions might consider the enterprise-level packages which have file sharing and online meetings, though the lower level enterprise package bizarrely does not allow office suite file editing. <br />
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Overall, moving some work to the "cloud" is beneficial for mobile access, sharing, and storage. Google docs allows me to type notes on my smartphone during meetings, then to upload the file for safe storage, share the file, and make changes later, regardless of whether I'm at my desk or elsewhere. A free Zoho account allows for in-office and remote business administration work. <br />
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Heavy Use Disruption<br />
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If there will be one significant problem to Cloud Computing, it will be resistance from Internet Service Providers regarding the amount of data (files and programs) sent through their service lines. For example, Comcast instituted in 2010 a zero-tolerance rule for heavy Internet users, which Comcast saw at the time primarily as people illegally downloading movies. Under the zero-tolerance rule, any user exceeding 250GB of broadband use in a calendar month, which means both downloads (office suite use and movies) and uploads (storage) gets cut-off - with no notice or appeal. At the time of putting the rule in place, 250GB of use was both rare and generally due to illegal downloads. Now, however, the combinations of online storage uploads, online Office Suite downloads and legal movie (Netflix, etc.) downloads will and has raised monthly usage to a significant fraction of the 250GB limit. The rule, however, is blind to legal use of the Internet, and these services may cause a Comcast user to permanently lose service without notice. Consequently, Comcast users should monitor their use to prevent disruption, or upgrade to a business plan. <br />
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Online File Sharing and Cloud-Based Office Suites provide ease and assurance for backup storage, sharing and collaboration, automatic updates, and remote access to improve personal and business operations for both office and mobile situations. These are tempered by concerns for confidentiality and generally minor, but potentially significant uncertainties. In the balance of relieving apprehension and uncertainty in office administration, and adding complications, Online File Sharing and Cloud-Based Office Suites have significant benefits for the legal office.<br />
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Copyright ©2011 Gerald R. Prettyman. Gerald R. Prettyman is an Intellectual Property and Patent Attorney serving entrepreneurs, start-ups, and established businesses seeking to protect and profit from their ideas. Please visit http://GotABrightIdea.com.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-37950632849070770282012-04-01T22:08:00.001-07:002012-04-07T19:47:44.991-07:00Cloud Computing, Part II - Electronic File BackupGoing paperless has been a computing mantra for decades. Lawyers have experienced the opposite result - more paper files than ever, but this is because the computer era generated more information for review. As electronic files are sensitive to media failure, backups are needed. <br />
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Onsite electronic file backup use attached servers, drives and network-attached storage (NAS). These are generally low tech, making them inexpensive, and even portable. These advantages are offset by the risk of data loss from hardware failure, disaster damage, and of hardware theft or data breach with the resulting worries about client and office data security. (This is a reason to use encryption software in your office). <br />
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The fast-pace of electronic storage development also created a problem for the recovery of data stored on media which became obsolete in as little as 5 years. <br />
Offsite electronic file backup and online document storage reduce these problems by moving data and its inherent problems to the data storage company. Offsite electronic file backup refers to an offsite company with servers to which onsite files are copied. Some users even keep their files offsite and download the documents for viewing and editing, then upload the changed document. This was called online document storage, but the inability to handle multiple users and the upload and download efforts limited the attractiveness of both solutions. <br />
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In 2010, Application-Service-Providers (ASP) and Software-as-a-Service (SaaS) providers developed software that could handle multiple users and made offsite electronic file storage and recovery easy and inexpensive. For clarity, we'll address offsite electronic file backup first and then online document storage. <br />
Offsite (online) backup software may be ASP, SaaS or both. The major benefit of online backup is the assurance that a hard drive failure, theft, or local disaster does not wipe out your data. With some companies, you also have remote access as well when you are out of the office. <br />
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There is though two points of concern regarding data security. The first is during data transfer where if you are on an unsecured (public) Internet system, your files are available to snooping during transfer. The second is during storage, where your files might be accessible to anyone with electronic or physical access to the servers. <br />
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While the online backup companies state your data is protected, the actual circumstance might be different. Unless the data is encrypted before leaving your computer, your protection is dependent on the online backup company not snooping, and on employees adhering to a 'privacy' policy. Employee data breaches (theft) were a common way to farm email addresses for the spam market, which led to several lawsuits (Ameritrade, among them). These breaches resulted in some companies paying for credit monitoring for the affected individuals, and forced the companies to use data encryption. Electronic file backup companies, however, are not required to encrypt your data. (This is another reason to use encryption software in your office). <br />
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Another concern with online electronic file backup regards the tolerance of Internet Service Providers to heavy Internet use. Electronic file backup counts against your monthly limit, so if your ISP limits you to 250 GB of monthly service, your first backup should be spaced over an end and start of two months. Here is some information about a few online electronic file backup companies as of July 2011. <br />
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Adrive (adrive.com) provides three levels of manual (not automatic) backup service, Basic, Signature, and Premium. The Basic plan provides 50 GB of free storage using a SaaS (browser) interface, and it has file sharing (discussed in Part 3). To use the Basic plan, you open your browser, logon to Adrive, which opens a special window, and then select and transfer files.<br />
The Signature plan is $6.95 per month for 50 GB of storage and includes ASP desktop software, which has more functionality than the basic (browser) plan, and some useful additional services. The Premium plan starts with 100 GB of storage at $13.95 per month and includes the same services as the Signature plan. Two other selling points are that Adrive allows you to backup any computer or drive connected to your computer, and ADrive has Zoho online editing (discussed in Part 3). <br />
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Adrive has two significant disadvantages. First, Adrive lacks both transfer and storage encryption, so you MUST encrypt confidential files before uploading them. Second, Adrive storage is prone to file redundancy and orphans. If you rename or delete files on your local drive, you would have to manually rename or delete the files from the 'Adrive' backup, or have the old files still in Adrive storage. This can be good if you like keeping old files, but it also increases your storage use and expense. <br />
To recover your files, you access Adrive through your browser or the ASP desktop software, and manually select and download the files. This may take a significant amount of time for a total data loss and would count towards your monthly ISP service limit. <br />
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Carbonite (carbonite.com) is a two-tier automated and encrypted backup service. You download and install the Carbonite software. It then runs in the background, waiting for you to walk away so it can backup your files. Carbonite automatically copies and encrypts your files and transmits them to the Carbonite server for storage. Carbonite also allows you to create a custom encryption key.<br />
The Carbonite Home/Office plan provides unlimited online backups for $59 per computer per year. Carbonite automatically deletes from its files any files that you renamed or deleted, but with a 30-day delay, so there is usually enough time to realize and recover files you want to keep. To recover files from Carbonite, you go online, log in and download the files. Carbonite also has a smartphone application that allows file access from the iPhone, iPad, Android or BlackBerry, except for custom encryption users. <br />
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Carbonite 'unlimited' backups are not really unlimited. Carbonite does not automatically backup software programs (executable files), temporary files, system files, or files from network or external drives. You can manually backup videos, executable files, files larger than 4GB, and additional internal hard drives, but these are manual operations in the Home/Office plan. Carbonite also slows uploads when over 200 GB is on its servers. <br />
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The Carbonite Business plan allows an unlimited number of computers, and permits external hard drive backups, but limits the account to 250GB of backup at a pricey $229. Additional backup space in 50GB increments is available for $46 per year. Unless there are five or more computers, Carbonite might be overly expensive compared to other services. <br />
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Mozy (mozy.com) is also a two-tier plan automated and encrypted backup service. While easy to use, Mozy has quirky pricing plans. Mozy charges $71.88 per year for 50GB and one computer, which is more expensive than Carbonite, or $119.88 for 125 GB. Additional computers are another $24 per year per computer plus an additional $24 per year for a mere 20 GB of storage. A comparison to other services and actual conditions would require a spreadsheet. On the plus side, recovery via Mozy is somewhat smooth through the restore manager in the software that allows file streaming directly to your computer. Mozy also has free iPhone, iPad, and Android applications so monitoring and viewing your backups. <br />
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Backblaze (backblaze.com) is a single-tier automated and encrypted backup service. Like Carbonite and Mozy, the program runs in the background, waiting for you to walk away so it can copy, encrypt and transmit your files. You can also set Backblaze for manual activation, meaning you can walk away for a break and not have the computer occupied in a backup that takes a couple minutes to disengage. <br />
At $5 per month per computer (or save $10 by purchasing a year for $50!) with unlimited storage, Backblaze is effective in both ease and expense. Backblaze also allows you to create a custom encryption key. This free service means that no one but you can decrypt the files - not even Backblaze, so there is no encryption breach-risk. <br />
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On addition, you can change the settings and backup executable files and large files, and backup multiple internal and external (USB) drives, but not network drives. Adding these files can result in significant data streaming, which might cause a problem with your ISP limit. <br />
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Recovery with Backblaze over the Internet is free, but as with the other services, file streaming is time-consuming. Backblaze offers a DVD recovery at $99 per disk and a USB drive is $189. Backblaze also has a computer location tracking function, but not mobile applications. <br />
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IDrive (idrive.com) also provides tiered service. IDrive allows 5 GB free, 150 GB at $4.95 per month per PC, 500 GB at $14.95 per month for up to 5 PCs, unlimited storage for $49.50 per year for one computer with there is another plan of $9.95 per 50 GB per month for multiple PCs, and higher storage of a higher price. As with other companies, if you delete the data from your desktop, the company deletes the corresponding data from its servers after 30 days. The problem with IDrive is that after 150GB of data, IDrive throttles your upload rate, so uploads are slower. <br />
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There are many other companies in the market, and some companies now work with you to provide both local and offsite backups. For lawyers, the primary consideration should be encryption (more on this in Part 3). Data breaches are a substantial risk and at a minimum could result in paying for credit monitoring for clients plus other expenses and fees. The other considerations of the amount of storage and the ease of use for backups, access, and recovery, are essentially a matter of price. This author has used Backblaze for over a year, primarily because the balance of encryption, limited functionality, and price work well in this office. Offices with several computers or sites would likely select a different service. Another consideration is the use of local encrypted backups as well. <br />
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Gerald R. Prettyman is an Intellectual Property and Patent Attorney serving entrepreneurs, start-ups, and established businesses seeking to protect and profit from their ideas. Please visit http://GotABrightIdea.com.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-74053354338398031692012-04-01T22:06:00.001-07:002012-04-07T19:48:25.189-07:00Cloud Computing, Part I - Software: ASP and SaaSMarketing hype (illusion) portrays cloud computing as the newest revolution in computers. In reality, cloud computing started about the same time Joni Mitchell sang "Both Sides Now", to create an interactive network ("from both sides") of computers and information transfer with many users distributed over a wide area. The term cloud with respect to information transfer is even older, having its origin in the use of a cloud to represent a network of interconnected users in telephone network patent applications and other documents. So if you "really don't know clouds at all," these articles are for you. (Use of "Both Sides Now" is fair use for purposes of education.)<br />
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The abbreviations ASP and SaaS respectively mean Application-Service-Provider and Software-as-a-Service. To a legal office, they are essentially the same. The legal office has a personal computer, laptop, tablet or other computing device that receives one or more programs via the Internet (cloud) from a provider company that stores the programs on its own computers, and that provider company is responsible for writing, providing and updating the software. <br />
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Corporations and academic centers of the 1960's to the mid-90's used a similar concept with the mainframe and 'dumb' terminals. The major distinction between then and now is that the mainframe both stored the program, and handled all the computing tasks. The terminal was merely an interface and output display, hence the 'dumb' term. ASP and SaaS push the program to the personal computer, which with its significant electronics and operating system handles the computing tasks, the data storage, the interface devices and the display. <br />
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As with the mainframe and dumb terminals, the cloud is the communication network between the program storage computer, and the display. The major distinction of ASP and SaaS is in reducing program storage and redundancy in the personal computer network. <br />
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An ASP program mimics the traditional form of a personal computer (PC) loaded software by handling the information computing, interface, and display. In other words, ASP programs take the place of your PC stored program, including software for the menu bar that displays commands, and the programs performs the commands for local operations such as opening and closing files, viewing and printing information, and passing instructions to the computer on performing these tasks. <br />
The ASP advantage is that the software company can lower its efforts (time, expense, etc.) of writing software for these common local operations, and the legal office avoids installing the same program on multiple computers. ASP, however, can still have conflicts with hardware or other software running on the PC. <br />
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SaaS programs, on the other hand, handle the computing work on your PC, but lets your computer handle the local operations through another program on the PC, such as the browser. Thus, SaaS additionally reduces conflicts at the user's end, and because every SaaS program has the same interface for all programs, the SaaS user doesn't have to learn multiple menu bars (or ribbons) or configure multiple programs for viewing and printing information. <br />
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Theoretically at least, ASP and SaaS software is less expensive as well since the software company has lower expenses, and the ASP and SaaS user doesn’t have to spend effort, time and money loading and updating software. <br />
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In a sense, ASP and SaaS provide a somewhat back-to-the-future theme. There are discussions, and certain components already in place, to lower PC costs by returning to dumb-terminals, i.e., a personal computer that lacks even an on-board operating system. Microsoft, not surprisingly, is not enamored with the idea. <br />
For the legal office, most software categories are or soon will be available by ASP or SaaS. An online search for "asp legal software" for example, returned many links for Case Management Software, Litigation Support Software, and Document Databases. The American Bar Association has a free website titled "FYI: Software as a Service (SaaS) for Lawyers" at http://tinyurl.com/ABASaaS. The website has several pages of current information on multiple topics, including features to look at, such as: <br />
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Time & Billing Software: Comparison Chart<br />
Practice & Case Management Software Comparison<br />
Litigation Support Software Comparison Chart<br />
FYI: Starting a Website<br />
FYI: Software as a Service (SaaS) for Lawyers<br />
FYI: Feature Comparison - Major Blog Providers<br />
FYI: Playing it Safe With Encryption<br />
FYI: Technology Terms Defined<br />
Metadata Ethics Opinions Around the U.S.<br />
Metadata Comparison Chart: 50 State Map<br />
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The primary disadvantages to ASP and SaaS are service interruptions. These occur if Internet service is not available or slow, the ASP and SaaS provider is offline, or if an upgrade of any software, installed or cloud-based, causes a problem. The first three conditions are equivalent in frustration to a power interruption, while the second is a constant threat to any software use. <br />
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The due diligence is researching the Internet and other users to be certain the cloud-based software will not cause a service interruption, and determining in advance how to deal with a service interruption. When properly balanced and licensed between service and fees, ASP and SaaS are worthwhile to effortlessly keep software up-to-date without on-hand 'IT' effort.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-10887580730104953912011-11-17T23:06:00.000-08:002011-11-17T23:06:17.167-08:00Why file your corporation or LLC in CaliforniaI received a question about filing for a business outside of California. While I agree that paying $800 year for a small business is ridiculous, the solution is not becoming a foreign (out-of-California) entity. I'll explain below, but the best solution sometimes a simple proprietorship or partnership. Here's why. <br />
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Any limited liability entity headquartered in California needs to register in California.<br />
1) Filing in California gives you the privilege of enforcing your contractual rights in California. A court will dismiss a non-registered plaintiff because the privilege to enforce your contractual rights is in the state of the headquarters, as documented by the Articles. <br />
2) California requires entities doing business in California but registered outside of California to file as a foreign entity. The filing expenses are the same and this provides full rights (including name protection through registration), but at the same annual cost of income tax (Franchise Fee). A foreign entity can omit the foreign entity registration if its operations in California are insubstantial, as by being transient or without an instate office, officers, or employees. If a person with the entity lives and conducts business for the entity in California, it qualifies as a foreign entity. Another way of thinking about registration is whether the entity is active in California. If the assets and operations are in another state, foreign entity registration is less likely a requirement. <br />
3) While its true that other states do not require disclosure of officer names, a good sleuth can get the names without a lot of effort. <br />
4) In every state, you must name an agent for service of process. Outside of California, that means 'hiring' a company to have a doorway and a person inside the door during regular business hours. The job of the person is to receive lawsuits and notices. The job of the person is NOT to make sure you receive the lawsuit or notice. An entity is subject to a default judgment and registration suspension if the entity fails to timely and properly reply. <br />
5) Some states require you to effectively include portions of the operating agreement (bylaws) in your articles. This can tell people far more about your company than the company name, and require significant effort making sure the articles comply with the requirement.<br />
6) California is comparatively lax about how the owners run the entity. Don't commit fraud, or break financial or security laws, and you are OK. Other states tell you how to run your business and require these statements in your articles or operating agreement. <br />
7) Lastly - failure to register in California may result in substantial fines based on income and the minimum franchise fees. <br />
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As to non-registration (a simple partnership):<br />
The usual goal of small business registration is limited liability. Liability arises from contractual obligations or negligence. If the business hasn't signed contracts of obligation and is not yet providing a product or service, the risk of liability is basically the same as having a hobby. If an obligation would risk more than you have on-hand to fulfill the obligation, then limited liability is warranted. Otherwise- what is there to worry about? If at some time you must register and quickly, there are ways to get registration within a week or two for the expense of a few hundred dollars, which is much less than the annual minimum franchise fee. <br />
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Also - many insurance companies offer errors and omission insurance. O&E covers you for business losses based on circumstances outside your control, generally including simple negligence, and some contractual obligations based on the policy. You are not covered for gross or intention negligence, fraud or breaking financial or security laws - but then limited liability does not cover those either. <br />
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Lastly - if you want name or brand protection, the filing of a city business license, county fictitious statement, and state and federal trademarks decently provide that protection. Caveat - the California Secretary of State does not crosscheck the business entity and trademark registrations. You get that security ONLY by registration.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-3558701165271272292011-10-14T01:39:00.000-07:002011-10-14T01:39:06.399-07:00What Is a Nursing Home?I received a question about the definition of a Nursing Home. Over the years, I have visited many family members in such facilities. When I worked as a laboratory medical technician, I worked in the acute care areas of hospitals, in their care units and clinics, and in their adjacent nursing facilities. Thus, I have many, many memories of such places, and it turns out, the definition of a Nursing Home is a legal question suitable for this Blog. <br />
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In California, a 'nursing home' is not legally defined, but taking the term and words 'nursing home' generically, 'nursing' infers nursing care is provided while 'home' infers the facility provides long-term care. This seems reasonable in that California defines certain patient care services as within the practice of nursing. (Cal. Business & Professions Code Sec. 2725 et. seq.). <br />
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Under California law, there are many different types of facilities that could fit the generic term above. In reading these definitions, the rational for defining facilities seems to be based on (1) the different types of services provided, and (2) the facilities' staffing availabilities. <br />
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For example, a "general acute care hospital" provides medical, nursing, surgical, anesthesia, laboratory, radiology, pharmacy, and dietary services. (Cal. Health & Safety Code Sec. 1250(a). A Skilled Nursing Facility (SNF) "means a health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis." (Cal. Health & Safety Code Sec. 1250(c)). An "intermediate care facility", on the other hand, provides "skilled nursing supervision" but not "continuous skilled nursing care". (Cal. Health & Safety Code Sec. 1250(d)). So for most people, a nursing home is likely a Skilled Nursing Facility or at least an Intermediate Care Facility. These should also fit the definition of a "nursing facility" under the Medicare and Medicaid programs. (Cal. Health & Safety Code Sec. 1250(k)).<br />
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California also differentiates based on patient and resident needs, as by whether the patient or resident is ambulatory (able to walk) and whether the person's infirmity is physical or mental, temporary (rehabilitative) or degrading, chemically related, developmentally related or generally age related or some other type. <br />
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Another distinction is by the vocation of the person providing the services. A doctor is present at all times at an acute care center. (Cal. Health & Safety Code Sec. 1250(a)). The definition of Skilled Nursing Facility, however, omits "medical staff". The SNFs I've seen though, were adjacent to or close to a hospital so medical staff was at least close by. <br />
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The legal definitions may also have developed to provide for nursing supervision (an "intermediate care facility") rather than nursing care (SNF). When I worked as a laboratory medical technician, a doctor made periodic visits while a seasoned Registered Nurse (RN) was present at all times in the facility and supervised the care given by less experienced RNs and the Certified Nursing Assistants (CNA) (a.k.a. Licensed Vocational Nurse outside of California). <br />
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Later in my career, I observed that the person making the periodic visits wasn't the doctor, but rather the seasoned RN, with a less experienced RN supervising the care given by the CNAs.<br />
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Now, with the exception of an acute care facility (a.k.a. hospital), it seems RNs are gone from most nursing facilities, and the only CNA is the pill-passer. The other care providers may have vocational training but it seems they are not certified or equivalently licensed. <br />
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My other observation is that many facilities have silently dropped the term "Nursing" from the business name because (seemingly to me) no one in administration, on staff or visiting has any significant nursing care training. Instead, they have "care managers". I'm told "care managers" have at least 'minimal care training but in my ten years of dealing with them, it seems more 'minimal' than 'care'. <br />
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As such, this article has gone full-circle. Based on law and my observations, a place with the word 'nursing' in its name likely provides nursing care and has (I hope) an RN on hand at some time during the day with CNAs providing nursing care and pill passing. If 'nursing' is not in the name, there is likely no RN, no CNA or otherwise, in the building - except perhaps for a patient or resident.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-56632062008668045602011-05-26T10:33:00.000-07:002011-05-26T10:33:37.105-07:00Tattoos and CopyrightThere's a sort of a boxing match going on now whether Mike Tyson's tattooist has a legal interest in the tattoo on the face of Ed Helms in the Warner Brothers movie, "The Hangover, Part II". The lawyers for S. Victor Whitmill, the tattooist, will disagree with me, but my answer is no. <br />
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Copyright protects "original works of authorship [that] can be perceived, reproduced, or otherwise communicated". (17 U.S.C. §102 (abridged)). Like most ideas, many works of art are not wholly original as there is some background in a previous work. Many people, including S. Victor Whitmill, call this inspiration. As a hard rule, requiring complete originality would disallow copyright because inspiration would negate originality to the whole of the work. Fortunately, the U.S. Supreme Court opened originality to "a two-fold requirement of independent creation and some minimal degree of creativity." (Feist.) <br />
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The benefit of this two-part independent creation and creativity rule is that a tattoo artist can get copyright protection in the portion not copied from the original. Thus, a tattoo artist does not get copyright protection by making a tattoo of a picture (because that is not independent creation), but the tattoo artist can get copyright protection in the inspired portion that has at least a minimal degree of creativity. In other words, the copyright protection may include an inspired portion, but not a copied portion. <br />
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Which brings us to whether S. Victor Whitmill has a copyright. He admitted his work was not independent creation. The crux of Whitmill's success will be in showing his work is creatively different, and not just different than the Maori tattoos that inspired him. That's because there is more to creativity than inspiration. The Warner Brothers lawyers will attempt to show that the Tyson tattoo is a combination of Maori tattoos, other tattoos, and even other art as well. This type of debate is common in copyright disputes to disallow the claimed creativity by showing that the parts that are independent from a major inspiration are common elements in the theme of the work, in essence, copied from elsewhere in the field of the art. <br />
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For example, movies often contain common elements, guns in westerns, jumps in car chases, etc. Even tattoos contain common elements. Many tattoos are a kind of 'warrior' brand of art by including knives, other weapons, pseudo-weapons, slogans, etc. The Warner Brothers lawyers will likely parade people and photos to the judge's discontent to show the Tyson tattoo is merely a combination of tattoos and weapons.<br />
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This anti-copyright argument has its basis in that we as a society do not want someone to use a variation on a theme to lock up copyright protection to the theme. In other words, Maori tattoos have been in existence for a long time, there are many books on Maori tattoos, and tattoo artists study tattoos just as any artist studies works of their peers and predecessors. As a society, we do not want art to lock up a marginally creative idea that prevents its enjoyment by everyone. <br />
<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh-9kdRjBexvZzSL1bBPA1g7bEnWSuLYO5d2gr0qjYjnEjou6ATPmanu37D78X_Zvvh4EbZqtt3dGBu52mJm2jjyFfoSH-CRwCwEZrAl8pAvJ6vlukrQ8PiYTk921NjusDdm7wDAdmJKoLE/s1600/side-by-side_tyson-maori_tattoos.jpg" imageanchor="1" style="margin-left:1em; margin-right:1em"><img border="0" height="204" width="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh-9kdRjBexvZzSL1bBPA1g7bEnWSuLYO5d2gr0qjYjnEjou6ATPmanu37D78X_Zvvh4EbZqtt3dGBu52mJm2jjyFfoSH-CRwCwEZrAl8pAvJ6vlukrQ8PiYTk921NjusDdm7wDAdmJKoLE/s320/side-by-side_tyson-maori_tattoos.jpg" /></a></div>Looking at the Tyson tattoo, in fact, reveals the elements of knife-like tips, curves, and double and triple parallel lines that are thematic to Maori tattoos. The three-piece knuckle slasher, meanwhile, is akin to that of Wolverine, i.e., a weapon. As they say in law, in the totality of circumstances, the creativity of the Tyson tattoo is thin, so thin in fact, that Warner Brothers is free to copy it. <br />
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If you are or know a tattoo artist, do not be discouraged. Tattoos are art, and copyright will protect sufficiently creative art. Before you ponder on, though, consider copyright registration for your tattoo art, the filing fee is only $35. The Copyright Office rarely denies registration and registration is proof of both your creation of the art and the date of creation. Besides being inexpensive, registration is a requirement before you can sue for copyright infringement.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com1tag:blogger.com,1999:blog-4428867708311417911.post-53361165611958016372010-11-29T15:05:00.000-08:002010-11-29T15:05:23.226-08:00Latest Car Rental ScamLatest Car Rental Scam – Charges for Pre-existing Damage and Loss of Use<br />
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It's practically a law of economics that when corporate business falls in a recession, each consumer must pay more to make up the difference. Case in point: You rent a car, have an accident, and under the contract, you are responsible for the costs of repairing and lost use of the car, but minor scratches are no-cost normal wear. Right?<br />
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Not anymore. Several articles in the last two years note that car rental agencies are dinging renters for damages that don't even qualify as dings. One renter failed to receive his $763 deposit, which according to Thrifty was forfeit for damage. The damage in the photograph, however, was a "barely visible nick on the car door and a small scratch on one bumper." <br />
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One Enterprise renter received a bill for $600, with a photo of the damages – except that the car in the photo was not the car he had rented. An Enterprise renter failed to mark normal wear damages on the check out sheet, and was charged several hundreds of dollar for the cost of repair and the time off the lot to repair the "damages." <br />
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So, what's a car renter to do? The first step before leaving home is to check whether your insurance or credit card coverage includes rental cars. It is also always a good idea to travel with your proof of insurance and agent contact information.<br />
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The first step on the lot is to carefully inspect the car – outside and inside - before starting the car, and mark the checkout sheet with every scratch, spot, or smudge. Be sure also to completely check the headliner, seats and carpeting for food stains and tears. Document everything. <br />
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The second step is to photograph the car before leaving the lot, include the built-in date & time stamp – so you can use your evidence against theirs. As one former car rental agent said, "From my experience, many customers were blamed for damage they did not cause.”<br />
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Another option, as much as it pains me to say to say this, is to purchase the Collision Damage Waiver (CDW) or Loss Damage Waiver (LDW). CDW and LDW are not collision insurance. It just means that the rental car company will pay for accident damage or loss of use that occurs to the vehicle. <br />
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Lastly, when returning the vehicle, either demand a full drop-off inspection before you leave the lot, or again photograph or videotape the car – and let the agent know that you did. As the former car rental agent also said, "agency employees aren’t in the customer service business. They’re paid a commission [based on] the dollar amount we’ve brought in each month and quarter." <br />
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If after all that, you do get dinged, you have a few options. If your credit card is charged, call your card service number and dispute the charge with a demand that the car rental agency provide a body shop repair invoice. <br />
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Then call the rental office, get the name of the person you are talking to, demand a retraction of the charge until you are provided proof of damage and proof of repair and remind them that you have evidence that contradicts them. <br />
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Don't be surprised if you are told regional office approval is required. It's may be another stall tactic, but ask the agent for the name and telephone and fax number of the person at the regional office. If that fails, write a letter of dispute to the corporate level and copy the state insurance commissioner in the state in which you rented the car. Be sure to include copies of your evidence and that you are disputing the charge with a demand that the car rental agency provide proof of damage and a body shop repair invoice.<br />
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Your last option is small claims court, although don't be surprised to hear from the rental agency that the contract states that disputes must first be arbitrated somewhere outside your state, and likely not even the in the state where you rented the car. If so, contact the insurance commissioner in both states, and a consumer advocate agency in the company's 'home' state. Your local TV station also provide consumer advocate service – rip-offs make for good news.<br />
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References<br />
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Christopher Elliott, Washington Post, Paying upfront for rental car nicks and scratches, 11/14/2010, http://www.mercurynews.com/travel/ci_16596785.<br />
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Christopher Elliott, Tribune Media Services, Broadsided by a rental car bill, July 29, 2009, http://articles.cnn.com/2009-07-29/travel/rental.car.repair_1_rental-car-car-from-enterprise-rent-a-car-significant-scratches?_s=PM:TRAVEL<br />
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Christopher Elliott, Washington Post, 6 secrets car rental companies don’t want you to know, April 16, 2008, http://www.elliott.org/blog/6-secrets-car-rental-companies-dont-want-you-to-know/<br />
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Christopher Elliott, Tribune Media Services, Who should pay for scratch on rental car? 9/3/2010, <br />
http://www.msnbc.msn.com/id/38937917/ns/travel-travel_tips<br />
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http://www.startribune.com/lifestyle/travel/102215919.html<br />
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Rent A Car – Preparation, 9/4/2010, http://www.smartmotorist.com/auto-financing-warranties-and-leasing/rent-a-car.html<br />
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http://www.failingenterprise.com/forums/enterprise-rent-car-customers-forum/11817-rental-scratch.htmlGerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-51972716032121650322010-11-23T23:28:00.000-08:002010-11-23T23:28:17.378-08:00Introduction to Copyright(FN1) Copyright provides the creator of a qualified work the legal authority to prohibit, or conversely, the right, to grant and limit another person to make a copy of the creator's work. The legal considerations regarding copyright include the qualified work, limitations on the copyright, registration, and licensing. Copyright is a property right, meaning that the creator may sell, give, exclusively license or assign, or even grant non-exclusive licenses. Other laws describe the creator's right to recover an assignment, as well as defining circumstances when the nature of employment grants ownership in the work to another person. <br />
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QUALIFIED WORKS<br />
Copyright applies to eights types of works. These are (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, (such as a play or musical) including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (FN2).<br />
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As indicated by the list of the qualified works, some works may include other types of work. A musical composition may have multiple copyright owners because one person authored a literary work, such as a poem or book, which became the lyrics, and another person authored the notes of the musical composition. Conversely, the producer of a play, a musical or a screenplay could create and own the copyright in the words of the work, and in the music accompanying the work if the same author also created the music. <br />
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In other situations, a song composer might grant a license to a band play a song. The band might then perform the song for a recording studio, which would own the sound recording rights, while a movie studio may hire the band and a choreographer for a movie. In a majority of cases, the band still owns its performance rights, the choreographer gets the rights to the dance moves the choreographer wrote for the backup performers, while the movie studio would own the movie rights. Along the way are artists creating posters (pictorial and graphic works) for the band, the recording studio, or the movie studio. <br />
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One point of clarification regards a confusion of copyright with patents and trademarks. Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (FN3). These protections apply only to patents, if the idea is eligible, or to trade secrets, if the idea is used in business and is properly kept a secret. A copyright protected work, generally artwork, may be used as a trademark, if the work is properly used to identify a brand of product or service. <br />
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LIMITATIONS ON COPYRIGHT<br />
While there are eight types of works protected by copyright, there are only six legal rights to the power of a copyright owner to prohibit, or conversely, the right, to grant and limit another person to make a copy of the creator's work. (FN4). The six legal rights fall into two categories, the right to copy, and the right of public performance. If a type of work is not covered by a copyright, then the public may freely exploit that type of work. As a matter of implicit exception, people have the right of private performance. The qualifications of a private performance, however, are limited. Home performances are usually private, although any commercial activity related to the performance is often enough to qualify as a public performance.<br />
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The first of the rights applies to all eight types of work. The creator may grant permission to anyone to reproduce the work in copies, or in the case the sound recordings, as phonorecords. A copy literally means exact reproductions. A song composer or the composers of the music and lyrics the composers may grant a license to a sheet music publisher to reproduce the sheet music. A band may record an album at home or rent a studio, and grant a license to a music publisher to reproduce the recording. <br />
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The second of the rights applies to disposition of the copies, i.e. the reproductions. The creator may grant permission to anyone to copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending. <br />
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The third of the rights applies to the creation of derivative works based on the work. A derivative work is something other than an exact copy of the original work, such as taking a photograph of a painting, a painting a picture onto a tile, creating a motion picture based on a play, or even taking an image and distorting it for artistic purposes. The protection of derivative works is important for creators that create a work in one format (film), and then license a company to create the derivative work another form, such as a digital copy. <br />
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The fourth of the rights applies to allowing people to perform the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. This right protects authors and artists by requiring permission to use the protected work as part of a public performance. This right is often the subject of a performance license, which is discussed below.<br />
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The fifth of the rights applies to allowing people to display the work publicly. This right applies specifically to literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work. This right protects authors and artists by requiring permission for people to publicly display, as for commercial purposes, works that they acquired for private display. Motion picture owners are the people who primarily enforce this right, although it legally applies to the use of paintings and sculpture in a commercial setting. This right is also discussed below.<br />
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The sixth right applies to people publicly performing sound recordings by means of a digital audio transmission (DAT). As suggested by the technology of digital audio transmission, this is a relatively new copyright, and generally applies to Internet and Broadband broadcasting. It would also apply, however, to the use of mp3 and other digital audio players used in a public setting. This right is discussed below in the licensing section.<br />
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THE BENEFITS OF REGISTRATION<br />
As with other forms of intellectual property, copyright registration provides several benefits. The first benefit is that registration establishes a public record of the copyright claim as of the date of registration. Additionally, copyright registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies. Published works in particular benefit in that registration establishes prima facie evidence of the validity of the copyright and of the facts stated in the certificate if registration is made before or within five years of publication. (FN5). <br />
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Unlike other forms of intellectual property, copyright registration is needed in the U.S. to assert protection. This is because registration is required for works of U. S. origin before the copyright owner can even file an action for infringement. (FN6). <br />
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Saving the best for last, however, is the benefit of statutory damages and attorney's fees for infringing activity. For infringing activity before the date of registration, a copyright owner may recover only actual damages (lost profits) and the profits from the infringing activity. If however, registration is made within three months after publication of the work and for infringing activity as of the date of registration, the copyright owner may recovery statutory damages of $750 to $30,000 per infringement, plus attorney's fees, and up to $150,000 if the infringer knew the copying activity was infringement. (FN7). In instances of file sharing, where lost profits are generally small and there are no profits from the infringing activity, registration immediately after creation is practically a mandate for any recovery. <br />
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THE REGISTRATION PROCESS<br />
The categories of copyright registration are a little different than the categories of works or of licensing. The categories of works are groups created by Congress according to the order in which Congress passed legislation protecting that class of works. The categories of licensing exist according to the order in which companies organized to license works that did not have organized protection. Registration, on the other hand, developed after legislation, but the Copyright Office used its rule-making capacity to categorize registration. So while there are eight classes of works and four classes of organized licensing, there are six classes of registration that only in part match the works and licensing classes. These are literary works, visual arts work, performing arts work, motion picture/AV work, sound recordings, and serial issue works.<br />
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The good news is that if something qualifies for copyright protection, it generally qualifies for copyright registration, and copyright registration is both simple and inexpensive. The easiest form of registration is electronic filing with a digital copy of the work uploaded for registration. <br />
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The copyright registrant (or the registered attorney) first provides information about the work, including the date of creation and the date of publication (if published) and the author's information. The next sections ask for the owner's contact information, the contact information for people who might want to license the work, the contact information and address for the Copyright Office to use, and finally, a certifying signature. <br />
The copyright registrant (or registered attorney) then uploads the digital file, which is often in native format as the Copyright Office accepts 44 file formats. Acceptable formats for images include jpg, tif or tiff; the formats for word processing documents may be doc, rtf, pdf, htm, and txt. The Copyright Office also accepts database and presentation formats and compressed files of these files as well. (FN8). The last step is fee payment, which for electronic filing is currently $35, and may be by credit card. (FN9). <br />
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In the rare instance of file incompatibility, or due to the lack of capable Internet service, a registrant may send the copyright registration documents by mail or courier. For these occasions, the Copyright Office prefers the registrant to download Form CO from the Copyright Office website. (FN10). Form CO is a computer fillable form. When used with Adobe Reader or Adobe Acrobat, Form CO converts the information typed into the fields into a 2-dimensionable bar code, which allows the Copyright Office to scan the form information directly into the Copyright Office computer. After filling out Form CO, the registrant prints the form, writes a check for $50 to the Copyright Office, and sends the Form CO, plus the check and the work for registration to the Copyright Office. Using Adobe Reader (which is free) or Adobe Acrobat is important, as other programs do not create the 2-dimensionable bar code, in which case the Copyright Office charges $65.<br />
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The last alternative is filing the old-fashioned way, using forms that are customized according to the type of work. There is Form TX for literary works, Form VA for visual arts works, Form PA for performing arts works, including motion pictures, Form SR for sound recordings, and lastly, Form SE for single serials. As these forms require manual handling, the filing fee is $65.<br />
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Although the Copyright Office still accepts microform, photographs, slick advertisements and color photocopies, electronic media such as audiocassettes, videocassettes, CDs, and DVDs are also accepted. (FN11). An important consideration for mailed material is that the Copyright Office is irradiating all mail to kill harmful organisms The Copyright Office suggests that any CD and DVD be packaged in standard full-sized jewel box as mail irradiation weakens slim-line cases.<br />
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FN1) This posting is Part 1 of a series on Copyright.<br />
FN2) 17 U.S.C. § 102(a).<br />
FN3) 17 U.S.C. § 102(b).<br />
FN4) 17 U.S.C. § 106.<br />
FN5) 17 U.S.C. § 410(c).<br />
FN6) 17 U.S.C. § 411(a).<br />
FN7) 17 U.S.C. §§ 412, 504(c), 505.<br />
FN8) U.S. Copyright Office, Help: List of Acceptable File Types, Revised: 16-Jun-2009, http://www.copyright.gov/eco/help-file-types.html<br />
FN9) U.S. Copyright Office, Fees, Revised: 17-Sep-2009, http://www.copyright.gov/docs/fees.html.<br />
FN10) U.S. Copyright Office, Copyright Notices, http://www.copyright.gov/forms/. <br />
FN11) Copyright Office, Form CO Instructions, Revised 08/2009, http://www.copyright.gov/forms/formco2d-ins.pdfGerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-43224356348399860792010-11-01T15:55:00.000-07:002010-11-01T15:55:11.994-07:00Minnesota White Deer<table><tbody>
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<div class="separator" style="clear: both; text-align: left;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj7d_RObVvXf05UU2wKwwgwptxmuu9eyT85RLRMND0x5yJtQKK12apYFuc9cfjleMRjBftYxb0fEkmz6okBpz6zLHXyUIay6KXOkRcDmWM4ZseG5qC1sbTnKtSjqMNUi5vHZndbPCXETMRg/s1600/101005Simon.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj7d_RObVvXf05UU2wKwwgwptxmuu9eyT85RLRMND0x5yJtQKK12apYFuc9cfjleMRjBftYxb0fEkmz6okBpz6zLHXyUIay6KXOkRcDmWM4ZseG5qC1sbTnKtSjqMNUi5vHZndbPCXETMRg/s320/101005Simon.jpg" width="247" /></a></div></td><td><br />
<div class="separator" style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px; clear: both; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: center;">November 1, 2010</div><br />
<div style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="text-align: center;"></div><br />
</div><div style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px; margin-bottom: 0px; margin-left: 5px; margin-right: 0px; margin-top: 0px;"><div style="text-align: left;">Dennis E. Simon, Chief, Wildlife Management Section, Division of Fish and Wildlife, 500 Lafayette Road, DNR Building, Saint Paul, Minnesota 55155-4020<br />
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</div></div><div style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="text-align: center;">FAX to 651-297-4916</div></div><div style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="text-align: center;"><br />
</div></div><div class="separator" style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px; clear: both; margin-bottom: 0px; margin-left: 5px; margin-right: 0px; margin-top: 0px; text-align: left;">Dear Chief Simon,</div><div class="Contract15" style="-webkit-border-horizontal-spacing: 5px; -webkit-border-vertical-spacing: 2px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="text-align: center;"><br />
</div></div></div><div class="Contract15" style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px;"><div style="margin-bottom: 0px; margin-left: 5px; margin-right: 0px; margin-top: 0px;"><div style="text-align: left;">This letter is in response to your arguments in your October 5th letter to Mr. and Mrs. Dreher regarding the hunting of white deer. As you are likely aware, your letter is posted on <a href="http://www.facebook.com/pages/Minnesota-White-Deer/145733555446194">Facebook</a>, to which a friend directed me.</div></div></div><div style="text-align: center;"></div><div class="Contract15"><br />
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<div class="Contract15">You argued, "protecting albino animals would be endorsing a rare genetic anomaly that could lead to other long-term problems in the local deer population." Your argument is valid only if protecting albino animals actually leads to other long-term problems in the local deer population. The facts, however, do not support your theory as the albinism trait and its associated problems die with the white deer unless it successfully mates, which is unlikely unless three factors occur. Instead, hunting deprives a natural predator of its prey and assures the destruction of the white deer.</div><div class="Contract15"><br />
</div><div class="Contract15">First, the white deer young must survive long enough to reach maturity. You note that "[a]lbino animals lack pigments in their eyes and skin; thus, they are more susceptible to other problems such as vision loss and skin lesions." In other words, white deer young are more susceptible to death from natural predation and illness than their non-albino brethren. Thus, young white deer are less likely to reach maturity, and as young deer, albino or not, may not be hunted, hunting adult white deer does not affect prevent any suffering of the young white deer. </div><div class="Contract15"><br />
</div><div class="Contract15">Second, to propagate the white deer gene and its associated anomalies, the adult white deer must survive long enough to mate. You note that "[a]lbinos [] suffer much higher natural mortality rates because they are much more visible to predators." Because of their vision problems, white deer are also less likely to see natural predators and if in addition are ill, as you stated, the white deer is too weak to flee danger. With this triple hazard to their lives, the white deer are more likely to die of natural predation, and are less likely to survive long enough to mate, even without hunting. </div><div class="Contract15"><br />
</div><div class="Contract15">Third, the white deer must actually mate to propagate the trait. As you noted "[a]lbinism is a recessive genetic trait." As you may recall from genetics, two genes are present in each deer for color, each parent contributes one gene, a white deer carries two recessive albinism genes, and a normal appearing deer may carry one albinism gene and one normal gene, or carries two normal genes. Thus, a white deer mating with any deer would cause the fawn to carry at least one of the recessive white deer genes, i.e., nature as nature intended, but the odds of a white deer propagating another white deer depends on the prevalence of the recessive white gene in the deer population. </div><div class="Contract15"><br />
</div><div class="Contract15">Based on the statistics of recessive genetics, and that according to one Facebook post there are only six white deer in the park (or less, now that one was shot and killed), I believe that less than one in sixty-four (64) deer in the general population of the park carry one of the recessive white deer genes. (Perhaps you have actual statistics?)</div><div class="Contract15"><br />
</div><div class="Contract15">As such, the probability of a white deer mating with another deer and propagating a white deer fawn is 1/64 times 1/4 (the recessive cross mix), or one in two hundred fifty-six (256). This 256 number assumes that a white deer is just as likely to survive to maturity and is equally likely to mate as a normal deer. </div><div class="Contract15"><br />
</div><div class="Contract15">Both of these assumptions, however, are likely false and overstate the odds. As you noted, a white deer is less likely to survive to maturity and to mate. Include that defective (vision loss) and ill (skin lesions) animals are generally shunned from mating, the likelihood of a white deer mating is less likely, which means that a white deer is unlikely to propagate its long-term problems in the local deer population. </div><div class="Contract15"><br />
</div><div class="Contract15">Lastly, your arguments imply that white deer hunting aids nature. Humans, however, are the only predators capable of seeing deer with magnification and killing them without bodily contact, i.e., with guns or arrows from afar. As the white fur of the white deer increases the likelihood that a hunter would see an adult white deer, and their poor eyesight and health decrease their chance of escape, allowing white deer hunting assures a 100% kill. This kill then deprives a natural predator of its prey, and forces the natural predator to kill another animal perhaps not as defective or ill. Consequently, the hunting of white deer interferes the natural predation in the park, and with their very low numbers, unnecessarily ensures their destruction. </div><div class="Contract15"><br />
</div><div class="Contract15">In summary, allowing the hunting of white deer does not affect "other long-term problems in the local deer population," interferes with the usual deer predators, and unnecessarily ensures their destruction. Thus, your arguments against protecting white deer from hunting are unfounded. Please reconsider, and ban the hunting of white deer. Thank you.</div><div class="Contract15"><br />
</div><div class="Contract15">Best Regards,</div><br />
Gerald R. PrettymanGerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-78590307431905838192010-04-22T21:24:00.000-07:002010-04-22T21:24:53.854-07:00On Heart Attacks, Aspirin and Lying DownThere is another urban story in the rounds regarding what to do when a life-threatening event strikes. As is usual with these stories, the story of taking aspirin for a heart attack but not lying down is true in part, largely false, and needs a HUGE caution sign with further information.<br />
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The idea of taking aspirin for a heart attack dates back to 1991 with a public statement by an emergency medical doctor, but who had not done an actual study. (1). Even though almost 20 years have passed, the research regarding using aspirin to treat heart attacks is still from informal observation, i.e. reviewing the charts of people after a heart attack and seeing that people on aspirin generally lived longer. There is as yet no actual medical research study of placing some people on aspirin and using others as 'controls.' That is likely because the patent on aspirin expired decades ago and no drug company will fund an expensive test without a patent to control the market.<br />
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The first flag on this email is that it states an EMT (unnamed) suggested this treatment, but the email did not also include a confirmation from a named doctor or pharmacist, or cite another medical authority. Bayer (the aspirin company), in fact, received a warning letter from the FDA that such labeling and advertisement is illegal. (2). As the FDA warned Bayer, there are several situations in which aspirin should NOT be taken, even during a heart attack, and the consumer labeling would be too complex for a layperson to understand.<br />
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Even the American Heart Association has retreated to cautiously state that "research shows that getting an aspirin early in the treatment of a heart attack, <b>along with other treatments EMTs and Emergency Department physicians provide</b>, can significantly improve your chances of survival." (3, Emphasis added.)<br />
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Second, while the FDA acknowledges the idea of taking aspirin during the onset of a heart attack, the FDA does not discuss dosage, and in light of the Bayer warning, no authority likely would without a test that no one will perform. (4). Outside of the U.S., one or two of the 81-mg (a.k.a., child's aspirin) seems to be the suggested dose. (5). Bayer reported to the FDA that AspirinCardio, an aspirin-drug it markets OUTSIDE the U.S., states to take two of the 81-mg sizes in the event of a heart attack. (6). Bayer, however, did not state whether they made an actual study, or decided that recommending 2 pills would double the profit over recommending 1 pill.<br />
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Importantly, in the event of a heart attack, DO NOT take extra-strength size aspirin, and especially do not take the Bayer "crystal" aspirin. This formulation is dangerous because it contains 850 mg of aspirin (five times Bayer's suggested dose, which may cause stomach bleeding) plus caffeine, which raises blood pressure. (7).<br />
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The third concern is that if you are going to take aspirin during a heart attack, consider a chewable aspirin instead of swallowing a whole pill. The chewable version seems to work faster to reduce clotting than swallowing a whole pill. (8).<br />
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Lastly, challenge every email-based health advisory. This root of this "don't lie down" myth is well over a year old, yet EMTs and hospitals continue to place heart attack patients flat on a gurney or flat on a bed. (3). This fact alone is a certain signal that the whole email is to some degree false.<br />
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Also raising the caution flag is that this email is a revision of a March 2009 version that also lacks authoritative references. (1). Two other troubling aspects of this email are that early distributors that failed to substantiate the facts. One was a member of a group generally better known for name calling than fact checking. (9). Another source recommended Crystal Bayer for heart attacks under the title "Aspirin Crystal: Heart Attack’s New Dear Friend" from Bonsai International News and Reviews – of India. (10). Since when does heart attack have a "dear friend?"<br />
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(1) Barbara and David P. Mikkelson, Snopes.com, Bedside Companion, last updated: 1/12/2010, http://www.snopes.com/medical/drugs/aspirin.asp.<br />
(2) Public Health Service, Food and Drug Administration, Warning Letter to Bayer HealthCare LLC, 10/27/2008, last updated: 07/08/2009, http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2008/ucm1048456.htm.<br />
(3) Aspirin in Heart Attack and Stroke Prevention, American Heart Association, undated, http://www.americanheart.org/presenter.jhtml?identifier=4456.<br />
(4) Dept. of Health and Human Services, Food and Drug Administration, Aspirin: Questions and Answers, last updated: 06/18/2009, http://www.fda.gov/Drugs/ResourcesForYou/Consumers/QuestionsAnswers/ucm071879.htm<br />
(5) Robin Parks, MS, Aspirin for heart attack and unstable angina, last updated: May 14, 2007, http://health.yahoo.com/heart-medications/aspirin-for-heart-attack-and-unstable-angina/healthwise--tx4214.html, (citing Danchin N, Durand E (2006). Acute myocardial infarction, search date August 2004. Online version of BMJ Clinical Evidence. http://www.clinicalevidence.com.)<br />
(6) Bayer, AspirinCardio, 11/26/03, Aspirin® in cardiovascular indications including primary prevention indications, http://www.fda.gov/ohrms/dockets/ac/03/briefing/4012B1_05_Appd%202-%20Cardiovascular%20Indications.pdf.<br />
(7) Bayer Aspirin Pain Reliever Extra-Strength Quick Release Crystals, 20-Count Pouches (Pack of 2), http://www.amazon.com/exec/obidos/ASIN/B002GU79LK/, http://www.snopes.com/medical/drugs/aspirin.asp<br />
(8) Harvard Health Publications, Aspirin for heart attack: Chew or swallow?, May 2005, http://www.health.harvard.edu/fhg/updates/update0505a.shtml.<br />
(9) John Vescuso, NEW Aspirin - a reminder!, 2/27/2010, Valley Forge Patriots - Tea Party Conservatives, http://www.meetup.com/VFP-TeaParty09/messages/9324021.<br />
(10) Bonsai International News and Reviews, Aspirin Crystal: Heart Attack’s New Dear Friend, 1/7/2010, http://www.newsandreviews.in/index.php/KnowNow/?title=aspirin-crystal-heart-attack-s-new-dear-.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com1tag:blogger.com,1999:blog-4428867708311417911.post-1437793523083155892010-04-05T21:48:00.000-07:002010-04-05T21:48:35.368-07:00Copyright – Part I: Out-of-print and out-of-touchCongress has a duty to "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." (1) Of these rights, the most contested and contentious area is undoubtedly the copyright. This article looks at a significant copyright issue in the print media and in the entertainment industry and how consumers drive infringement.<br />
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Print Media<br />
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In 2004, Google drew both praise and criticism by scanning and posting on Google a copy of almost every book and magazine from select libraries. <br />
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On the praise side, researchers and the public were finally able to access out-of-print books and periodicals, which are notoriously time consuming and expensive to find. Where but Google Books, for example, could a modern day person find the 1904 series "The Works of Daniel Defoe" by Daniel Defoe and Howard Maynadier (2) or read the June 15, 1953 edition of Life magazine about the coronation of Queen Elizabeth? (3)<br />
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The criticism came from The Authors Guild, the Association of American University Presses, the Association of American Publishers and other publishers. The posting rankled some people so much that The Authors Guild sued on behalf of three of its author members stating, "[i]t's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied." (4)<br />
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Google's defense was to assert fair use (discussed later), and a concept called "sampling," i.e., "[a]t most we show only a brief snippet of text where their search term appears." (5) The Electronic Frontier Foundation, which "battles for digital freedom" also weighed in, asserting that fair use favored Google. (6) Neither defense was really successful, however, because fair use has statutorily defined applications, which did not apply, and sampling really means a small part, and half or more is clearly not a sample. <br />
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Fortunately, The Authors Guild and Google settled. (7) The authors and publishers are to receive $60 per copy, for at least $45 million, with $34.5 million to set up a Book Rights Registry, i.e. an ASCAP equivalent entity for writers, and of course, a chunk for the lawyers. (Note: The settlement consolidates multiple lawsuits, which will likely be appealed separately on different points of law.)<br />
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Entertainment<br />
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The other high visibility aspect of copyright is in the field of music and video entertainment. Until 1984, there weren't many problems with copyright infringement of either. Disc records (33, 45, etc.) has so many flaws that the public could not make a good copy, and copied magnetic tape (cassette or 8-track) suffered from distortion and degradation. <br />
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Meanwhile, Sony released the Betamax video cassette for the time-shifted viewing of television, and even the Supreme Court accepted that "time-shifting may enlarge the total viewing audience and that many producers are willing to allow private time-shifting to continue." (8) The central issue feared by the entertainment studios was the home or commercial storage of copied content that would result in a "great deal of harm" because "the copyright owner has lost control over his program." (9) By a 5-4 margin, the studios lost because they failed to show this was true.<br />
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Since then, the studios and industry groups have been careful to monitor and adopt technology only when it could either control the technology, persuade Congress to legislate penalties for unauthorized copying, or both. For example, in the 1990's, as Congress was harmonizing U.S. copyright law with international treaty, the studios enlisted the help of Rep. Sonny Bono to revise copyright law to forbid the time-honored concept of reverse engineering if the product was subject to copyright protection. (10) <br />
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The studios then used technology called "Content Scramble System" (CSS) and coded DVDs so people could not copy a DVD or watch imported DVDs. Of course, the new law is only a U.S. law, so a teenager in Norway reverse engineered a DVD player and created a program he called De-CSS so he watch a DVD he had bought but couldn't watch on his DVD player. He gave the program to a friend, and in short time, millions of people became criminals. The studios, not surprisingly, starting suing U.S. users of the De-CSS program and similar encoding-cracking programs. (11) In 2004, the studios also adopted the now familiar hard-line warning seen before every movie.<br />
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The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.<br />
<br />
While encryption, law and threats have had some curtailing affect to copyright infringement, the real disincentive occurs when the economics of rental and purchase prices achieve what many people have long said was the best option - the studios need to lower the acquisition price of purchases. There are two examples of this affect.<br />
<br />
Driving Infringement<br />
<br />
Currently, there are 50 million DVD sales monthly for about $18 each. (12) This sounds great for the studios until you factor in that DVD sales fell almost 14% to $5.4 billion in the first half of 2009. (13) While the move to downloaded content for the Apple iPod and similar portable players accounts for part of the decrease, the 8% rise in DVD rentals to 175 million DVD rentals each month at an average price of $3.50 says that the DVD is still a strong force in American video entertainment.<br />
<br />
In addition, there are companies still trying to legally break CSS encryption. To legally sell a CD or DVD player, a device maker must have a CSS license. Kaleidescape bought such a license and sells an $8000 system for copying a DVD, and then playing the digital content without the DVD. Sued by the licensor for breach of contract, Kaleidescape lost an appeal on the scope of the contract, and is likely to lose on remand. <br />
<br />
Here's the interesting part: The complaint did not allege copyright infringement, probably because the Kaleidescape system cannot replicate or distribute the copied DVD or CD. The real issue, however, is that the Kaleidescape system cannot distinguish between the user's purchased movies and those the user may have borrowed or rented. (14) Kaleidescape attempted to divert its liability by including a license agreement that mandates that a user will "never to load or permit someone else to load a commercial DVD or CD onto your Kaleidescape System ... that you do not rightfully own and possess." (15) Even so, a user can copy a DVD and create a library for unauthorized time-shifting, just as Sony feared.<br />
<br />
Real Networks developed DVD copying software in 2008 and a $30 DVD copying system in early 2009. For its efforts, Real Networks received preliminary injunctions on both. The studios' attorney, Bart Williams, analogized DVD copying as using renting a car, buying a theatre ticket, or having a locker room press pass, and then keeping the car, filming the movie in the theatre, or stealing from the players. (16)<br />
<br />
At one point, Kaleidescape tried a defense that people are not going to spend $8000 just to copy a bunch of $3.50 rentals. They know better. Apple's iTunes store (17) and the Napster file-sharing case (18) show that people want and will get inexpensive information and entertainment legally, illegally or in combination. <br />
<br />
Overall, the intellectual property system works as envisioned more than 200 years ago. The public receives the promoted Progress of Science and useful Arts, and the Authors get compensated. The studios and industry groups need to pay attention. The more they continue to squeeze for high profit margins, the more out-of-touch they become with their market and technology.<br />
<br />
Endnotes<br />
(1) U.S. Constitution. Article I, Section 8.<br />
(2) Volume 9 is available at: http://books.google.com/books?id=VioVAAAAYAAJ.<br />
(3) Available at: http://books.google.com/books?id=A0gEAAAAMBAJ.<br />
(4) Elinor Mills, CNET News, "Authors Guild sues Google over library project", September 20, 2005, available at: http://news.cnet.com/Authors-Guild-sues-Google-over-library-project/2100-1030_3-5875384.html.<br />
(5) Available at: http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html.<br />
(6) Fred von Lohmann, Electronic Frontier Foundation, "Authors Guild Sues Google", September 20th, 2005, available at: http://www.eff.org/deeplinks/2005/09/authors-guild-sues-google.<br />
(7) Roy Blount Jr., The Authors Guild, "$125 Million Settlement in Authors Guild v. Google", October 28, 2008, available at: http://www.authorsguild.org/advocacy/articles/member-alert-google.html.<br />
(8) Sony Corp. V. Universal City Studios, Inc., 464 U.S. 417, 443 (US 1984).<br />
(9) Sony, 464 U.S. at 451, citing 480 F. Supp. at 467.<br />
(10) Digital Millennium Copyright Act, 17 U.S.C. §1201 (2009).<br />
(11) See e.g., Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000); and United States v. Elcom, Ltd., 203 F. Supp. 2d 1111 (ND Cal. 2002).<br />
(12) Bart Williams Munger, Tolles & Olson, State Bar of California Telephone Seminar, "Winning Strategies for Securing a TRO and/or Preliminary Injunction in IP Cases," October 27, 2009.<br />
(13) Douglas A. McIntyre, "DVD Sales Crushed By Rentals, As Apple (AAPL) And Amazon (AMZN) Rise", September 22, 2009, available at http://247wallst.com/2009/09/22/dvd-sales-crushed-by-rentals-as-apple-aapl-and-amazon-amzn-rise/.<br />
(14) DVD Copy Control Association, Inc., v. Kaleidescape, Inc., H031631 at 4, Santa Clara County Super. Ct. No. CV031829, Filed 8/12/09.<br />
(15) Kaleidescape Service and License Agreement, provision 7, available at https://www.kaleidescape.com/activate/index.php.<br />
(16) Bart Williams, State Bar of California, supra.<br />
(17) Dawn C. Chmielewski, L.A. Times, "Hottest tracks to cost $1.29 at ITunes starting April 7", March 26, 2009, available at: http://articles.latimes.com/2009/mar/26/business/fi-cotown-itunes26.<br />
(18) David Kravets, Wired, "Napster Trial Ends Seven Years Later, Defining Online Sharing Along the Way" August 31, 2007, available at: http://www.wired.com/threatlevel/2007/08/napster-trial-e/.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-59948553040434479362009-12-14T11:36:00.000-08:002009-12-14T11:38:26.891-08:00Wasted money on a provisional patent applicationHere are six reasons not to waste money on a provisional patent application.<br /><br />(1) Informed people know that only an issued patent from a non-provisional application has patent rights and that there is no such thing as a provisional patent. At best, a provisional patent application allows you to mark your product as "patent pending," which is like having a toy gun in your pocket. You must file a non-provisional application within 12-months to seek a patent.<br /><br />(2) That "no one else has a patent on it" is not the sole test for a patent. The 'obviousness' requirement (35 U.S.C. § 103) is so easy to fail that over 99% of all non-provisional patent applications receive a first-review rejection for obviousness. The patent office even grades examiners on how quickly and well they reject patent applications. Overcoming an obviousness rejection is so difficult that only 50% of all patent applications even become a patent. Look at the following Patent Office website: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm.<br /><br />(3) A patentability search is flawed if the search omits patent applications, as these are the basis of many obviousness rejections.<br /><br />(4) Patents issued before 1976 are not searchable by the idea. To properly search these patents, you have to understand the patent classification system, so many patent searches omit them. Look at the following Patent Office website and think, would a $149 patent search really cover all this? http://www.uspto.gov/web/patents/classification/selectnumwithtitle.htm (this is only the first level class, click GO for any one to see the second level.)<br /><br />(5) All patent applications must still meet the legal requirements of teaching how to make and use the invention. (35 U.S.C. § 112(1)). A one to three-page provisional patent application is not likely to be able to meet the novelty and non-obviousness requirements (35 U.S.C. § 102 & 103) and show how to make and use the invention. (If anyone down-talks the legal requirements - run. While a provisional application is not generally reviewed, IF the examiner must look at the provisional application to prove your date of invention, and the provisional application fails - you lose the filing date, the reason you filed the provisional application, and the money you paid the company and to the Patent Office).<br /><br />(6) Now that you know all this - do you really want someone to rush draft your idea in 8-hours? (No one works 24-hours around the clock - how awake would you be after working even 16 hours?)Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-68623899930848858612009-11-14T16:36:00.000-08:002009-11-14T16:52:16.617-08:00Applying Copyright Registration to Subsequent Works by the AuthorI received a call from a programmer asking whether the copyright registration of software written in one code language applies to the same program written in another code language. The answer was important to him because someone had taken his registered DOS language program and adapted it to different code languages. Since an author can sue for derivative infringement, I thought the answer would automatically be yes. I learned, however, that the answer is not so clear, but is more of a 'it depends'.<br /><br />Copyright provides an author the right to "secur[e] for [a] limited Time[] … the exclusive Right to [his] respective Writing." U.S. Constitution, Article I § 8. Binary software code, and hardware embedded code are protectable under copyright. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246-48 (3rd Cir.1983), cert. denied, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984). The copyright owner has the exclusive right "to distribute copies … of the copyrighted work to the public by sale or other transfer of ownership." 17 U.S.C. § 106(3). A copyright also includes the exclusive right "to reproduce the copyrighted work in copies" and "to prepare derivative works based upon the copyrighted work." 17 U.S.C. § 106(1) and (2). To bring an action for copyright infringement, the work must be registered with the Copyright Office. 17 U.S.C. § 411(b).<br /><br /><div>To qualify for registration, the work must be an "original work of authorship." 17 U.S.C. § 102(a). The work may be a derivative work "based upon preexisting works, such as a translation, … or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101. This originality must be "something of substance added making the piece to some extent a new work." Woods v. Bourne Co., 60 F.3d 978, 991 (2d Cir. 1995) (Woods II). Thus, to qualify for, i.e., to require registration, the new work must have an "unmistakable dash of originality." Weissmann v. Freeman, 868 F.2d 1313 (2d Cir.), cert. denied, 493 U.S. 883 (1989). (Holding that a separate copyright protection existed in a derivative work based upon a jointly authored work.).<br /><br /></div><div>There is a distinction, however, between a translation of another work, i.e., a work "recast, transformed, or adapted" and a translation of software. "Translation" as historically used in § 101 applies to the translation of literary works, performance works and similar works. The 1870 Copyright Act reversed a ruling that a German translation of "Uncle Tom's Cabin" was not infringement. Stowe v. Thomas, 23 F. Cas. 201, 207 (C.C.E.D. Pa. 1853). Only then could "authors … reserve the right to dramatize or to translate their own works." Act of July 8, 1870, ch. 230 § 86, 41st Cong., 2d Sess., 16 Stat. 198. The subsequent revision to the Copyright Act gave the author the right "to translate the copyrighted work into other languages or dialects." 1909 Copyright Act §1(b). In fact, the term "derivative work" with "translation" first appeared in the 1976 Copyright Act, four years before the definition of "computer program" first appeared in the Copyright Act. Pub. L. 96-517, Dec. 12, 1980, 94 Stat. 3015. Consequently, the term "translation" as a derivative work does not apply to software.<br /><br /></div><div>To require registration of something rewritten, there must be "editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship." 17 U.S.C. § 101. For example, new registration is required when the derivative work adds new voices, horns and lyrics. Murray Hill Publications Inc. v. ABC Communications Inc., 264 F.3d 622 (6th Cir. 2001). (Affirming dismissal of suit on grounds of non-registration as required by §411(a) of contested derivative work).<br /><br /></div><div>The key aspect of rewriting software from one code language to another code language, however, is to have identicalness of program ideas, structure and overall organization between the programs, irrespective of the code language. Whelan Assoc. v. Jaslow Dental Lab, Inc., 797 F.2d 1222, 1229, 230 USPQ 481 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987). (Affirming infringement on substantial similarity of program ideas, structure and overall organization.). In the Second Circuit, this is the "Substantial Similarity" test for copyright infringement. Steinberg v. Columbia Pictures, 663 F. Supp. 706 (D.C.S.D.N.Y. 1987).<br /><br /></div><div>The "Substantial Similarity" test demonstrates that the continuity of registration through language translation exists for the same reason that software is infringed, i.e. because of the substantial similarity remaining after "filtering out the unprotected aspects of an allegedly infringed program and then comparing the end product to the structure of the suspect program." Computer Associates International v. Altai Inc., 982 F.2d 693, 714, (2d Cir. 1992).<br /><br /></div><div>There are, however, some distinctions to be made. The Copyright statutes require that when "the work has been prepared in different versions, each version constitutes a separate work." 17 U.S.C. §101(14). This is not applicable to software where the same essential function remains between the versions. Montgomery v. Noga, 168 F.3d 1282 (11th Cir. 1999). (Holding for infringement of a software program containing only 70% of the registered version despite that the infringed 'version' was not separately registered).<br /><br /></div><div>Another important distinction is that translating a software program from one code language to another code language is not the same as making a copy for the "essential step" of use of the program, archival storage, maintenance, or repair which in not copyright infringement. 17 U.S.C. § 117. Likewise, registration does not extend protection to the standardized information, a.k.a. "externalities" that decided the sequence and organization of the software, making them unprotectable. Plains Cotton Coop. Ass'n v. Goodpasture Computer Serv., 807 F.2d 1256 (5th Cir. 1987). Code translation, however, provides the same expression of the same idea as in the original code. Only the computer or a programmer could tell the difference.<br /><br /></div><div>In other words, software requires separate registration only when it is "different enough from the original to be regarded as a new work or must contain a substantial amount of new material." Circular 14, U.S. Copyright Office, Rev. 01/2009. Consequently, the registration of software in one code language applies to the software in another code language having the same program ideas, structure and overall organization. Changes to any of these creates a new work - and requires a separate registration.<br /></div>Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-45798972326235778462009-09-01T20:59:00.000-07:002011-09-07T03:11:09.935-07:00To insure, or not to insure: that is the questionOn August 6, 2009, Zane F. Pollard, M.D. posted his view on the current health care crisis. In his view, nothing should change. His posting, "ObamaCare and me" is at <br />
http://www.americanthinker.com/2009/08/obamacare_and_me.html.<br />
<br />
Reply to Dr. Pollard, by Gerald R. Prettyman, J.D., LL.M. (Intellectual Property), B.S.M.E, Certified Quality Engineer (1999-2001), Medical Laboratory Technician and Hospital Corpsman, U.S. Navy (1976-1982).<br />
<br />
"I have been sitting quietly on the sidelines watching all of this national debate on healthcare. It is time for me to bring some clarity to the table by explaining many of the problems from the perspective of a" guy that actually pays the full cost for his family's private insurance.<br />
<br />
As usual, the distractors are distorting history and overlooking facts to predict a false future as certainty, and making unsupported conclusions. <br />
<br />
Dr. Pollard first cites "three young children on Medicaid who had corneal ulcers" and complains that" the antibiotic needed for the eradication of the infection was not on the approved Medicaid list." He overlooks that they were on Medicaid because of poverty or disability (the requirement to be on Medicaid), so that means that their mother did not have and could not afford or qualify for private insurance. <br />
<br />
Dr. Pollard also overlooks the fact that the private health insurers also have "approved" medication lists. A drug is not prohibited if not approved. It has less or no subsidy from the insurer. My private insurer constantly sends me letters demanding that I drop my life-saving brand name medication and suggests I take an almost useless generic drug. I'm lucky enough to afford the higher out-of-pocket cost - at least for now. My private insurer also suggests that my doctor should write an illegal prescription for more than one-month's worth of medication. How's that for ethical behavior?<br />
<br />
Dr. Pollard cites a doctor that quit the practice of medicine. Some doctors are happy with the current private insurer system. Many are not. One of my doctors (and a good one too) quit medicine in 2001 because the private insurers coding program (a.k.a. DRG) and different forms for every insurer were just too much work. One of the network news programs just last week (around August 24th) interviewed a doctor who has a staff of 5 people - just to handle private insurer billing. That alone significantly drives her expenses to overwhelming. <br />
<br />
Some persons are very happy with their private insurer - many others and I are not. As a self-employed person, my family's private insurance costs me $11,640 a year - this year. Based on "past performance," my cost next year will be $12,200, and a thousand dollars more each year thereafter. By 2020, my private medical insurance premiums will be about $25,000 per year.<br />
<br />
So, where does my premium money go? Here's some fact.<br />
<br />
In 2001, Anthem's CEO Glasscock got $3.1 million in salary and bonuses, as well as a $12.4 million long-term incentive payout. (A doctor challenged this at a board meeting).<br />
<br />
Here's a chart of Health Care CEO compensation in 2002.<br />
First line: Company and Executive <br />
Second line: 2002 Salary, Bonus, Other*, 2002 Compensation<br />
Aetna, John W. Rowe, MD chair and CEO<br />
$1,000,000 -----$2,500,000 -----$89,490 -----$3,589,490<br />
Anthem, Larry C. Glasscock, chair and CEO<br />
$980,000 -----$2,352,000 -----$3,525,839 -----$6,857,839 (big drop from 2001)<br />
CIGNA, H. Edward Hanway, chair and CEO<br />
$1,021,900 -----$0 -----$1,169,100 -----$2,191,000<br />
Health Net, Jay M. Gellert, president and CEO<br />
$754,808 -----$700,000 -----$72,011 -----$1,526,819<br />
Humana, Michael B. McCallister, president and CEO<br />
$700,000 -----$612,500 -----$336,472 -----$1,648,972<br />
PacifiCare, Howard G. Phanstiel, president and CEO<br />
$917,309 -----$1,690,000 -----$398,472 -----$3,005,781<br />
WellPoint, Leonard D. Schaeffer, chair and CEO<br />
$1,246,155 -----$5,690,916 -----$347,724 -----$7,284,795<br />
UnitedHealth, Group William W. McGuire, MD, chair and CEO<br />
$1,896,154 -----$5,275,000 -----$2,286,243 -----$9,457,397<br />
* "Other" may include long-term compensation payouts of either cash or restricted stock, 401(k) matching contributions, transportation such as cars and plane travel, expense allowances and insurance premiums. <br />
<br />
Here are some of the numbers for 2003.<br />
Company, CEO --- 2003 Pay (millions) <br />
Anthem Inc., Larry Glasscock --- $50.9 million (guess the drop in pay didn't last long)<br />
Coventry Health, Allen Wise --- $14.6 million<br />
Wellpoint Health, Leonard Schaeffer --- $27.4 million<br />
Sierra Health, Anthony Marlon --- $3.6 million<br />
UnitedHealth Grp., William McGuire --- $30.0 million<br />
Amerigroup Corp., Jeffrey McWaters --- $2.9 million<br />
Wellchoice Inc., Michael Stocker --- $6.9 million<br />
Aetna Inc., John Rowe --- $16.2 million<br />
Pacificare Health, Howard Phanstiel --- $10.2 million<br />
Oxford Health, Charles Berg --- $5.4 million<br />
Health Net Inc., Jay Gellert --- $7.9 million<br />
Humana Inc., Michael McCallister --- $6.6 million<br />
<br />
Private insurance premiums DO NOT go to the doctors. <br />
Family practice, $47.28 per hour<br />
Internal medicine, $51.38 per hour<br />
Neurology, $63.00 per hour<br />
Ob-gyn, $79.58 per hour<br />
General surgery, $83.74 per hour<br />
Otolaryngology, $84.99 per hour<br />
Cardiology, $96.31 per hour<br />
Physicians Search 2002 survey (physicians with three or more years experience).<br />
<br />
Dr. Pollard also says that the new plan will drive physicians out of specialties. As shown above, specialists earn more than family practice doctors, who are supposed to be our front line to medical care. We already have a tremendous shortage of family practice physicians because of the pay disparity. The wait time to see a family practice doctor can be as long as two weeks or more. The lack of general practitioners in some locations causes people to use the emergency room when a general practitioner is better suited - but there just isn't a family practice doctor available for two weeks. This drives up hospital costs so hospitals close their emergency rooms. Trauma patients in Galveston, Texas have to be airlifted to Houston because there isn't an emergency room at the hospital anymore. <br />
<br />
And contrary to the bigoted viewpoint, 98% of these people are not illegal immigrants. Even Dr. Polland admits that he operates on only 2 illegal immigrants each month. I suspect he sees well more than 100 patients per month, so the true percentage of illegal immigrants is much lower.<br />
<br />
Dr. Pollard also says that that the new plan will make it illegal for any doctor to accept more than the government-allowed rate. This is not true. The law applies to, and has for a long time, as Dr. Pollard admitted, a doctor receiving federal funds (e.g., Medicare). Don't worry about the rich, though. The rich will still have well-paid private personal doctors (just like Michael Jackson - his doctor received $150,000 per month!) So much for the 'best.'<br />
<br />
Dr. Pollard also says that the current system is best. On the contrary, private insurance premiums DO NOT go for top of the line patient care.<br />
<br />
In 2004, a good friend of mine suffered a massive stroke that has left him partially paralyzed. Before his stroke, he suffered several TIAs (a.k.a. mini-strokes), but his private insurance refused to pay for a diagnostic test that would have detected the source of his stroke risk. Lifeline Screening even warns that private insurance will not pay for such testing. (Not that they don't lie - the test is recommended only for persons over 60, but Lifeline Screening fails to add that bit of clarification). <br />
<br />
After the stroke, the private insurer booted him out of therapy because his recovery was 'good enough' for him to survive. He still has trouble walking and cannot use his right arm, but that's good enough for the private insurer.<br />
<br />
I was also stationed at the Naval Hospital in Oakland, California (Oak Knoll), albeit from 1977 to 1982. Dr. Pollard failed to mention that until mid-war, Oak Knoll had only the same barracks-style facilities that were constructed during World War II. From 1969 until its closure in 1996, Oak Knoll had a beautiful nine-story hospital with 20 plus wards and many clinics excelling at treating many, many thousands of patients every year - active duty, dependents, retirees and local civilian trauma patients. <br />
<br />
Dependent care was a topic of concern then, as well during the Vietnam war. As Dr. Pollard alluded, the difficulty always was that Oak Knoll was first and foremost a facility for treating wounded active duty personnel who were not closer to Honolulu, San Diego, or Bremerton, Washington - Oak Knoll was responsible for a BIG area. During the Vietnam war, about 25% of the San Francisco Bay Area was eligible for care at Oak Knoll. All the while, Oak Knoll received many overseas causalities for long-term care and rehabilitation. At times, the onslaught of dependent civilians coming in for unnecessary or untimely treatment was ridiculous. The fact was treatment was free meant we had a lot of civilians coming in for treatment when they should have gone to the drugstore for an over the counter medicine. That Dr. Pollard's wife had a "private internist in Beverly Hills" merely demonstrates his bourgeoisie attitude towards the unprivileged.<br />
<br />
It is also unfortunate that Dr. Pollard is a sexist. He says, "the US government has mandated gender equity in admissions to medical schools. That means that for the past 15 years somewhere between 49 and 51% of each entering class are females." He thinks women should stay out of medicine, because he says, "the average career of a woman in medicine now is only 8-10 years and the average work week for a female in medicine is only 3-4 days." Is Dr. Pollard really the person we want to listen to for public policy?<br />
<br />
The bashing of foreign healthcare systems is both incorrect and irrelevant. Those lies were disproved TWO years ago, before Obama was even nominated to run.<br />
<br />
After thirty plus years of working with many thousands of people both in the private and public sectors, I've learned that 99% of people are both honest and work for the benefit of society as a whole. There is, however, a one per cent of the population with such greed and self-interest, that they must feed on society in whatever form they can - by violence, deception, or sowing graft. Our society is well rehearsed at finding the first, somewhat uncertain in finding and handling the second, but only capable of even detecting the last only after enormous harm has occurred. Thus, I can conclusively say that BOTH SECTORS ARE BROKEN! (Expletive Deleted.) The distinction in either sector is always the people managing the organization and operating it on a day-to-day basis.<br />
<br />
Dr. Pollard is likely a good person, and a great doctor. His detachment from his patients' condition, in spite of his service to them, is a disservice. Dr. Pollard is unpaid for some his services because those patients cannot afford private insurance. <br />
<br />
The private insurance industry in the U.S. has an oligopoly, which is a near-monopoly, on health care. The high entrance costs bar small competitors from having an affect, but once they do reach such a size, they are bought out - capitalism at its best. Capitalism is best adept at providing goods and services at a price that suits most of society. Capitalism, however, is not adept at providing social services to all sectors of society. Our Dwight D. Eisenhower National System of Interstate and Defense Highways provides transportation access regardless of social and income strata. The private insurance system, on the other hand, will always leave some persons without ready-access to medical care. Medicare requires poverty or disability - for which the recent out-of-work or under employed do not qualify. Unfortunately, this country's finances have been stretched too thin by war, whether true or fabricated, graft by government contractors, and shoring of the finances of the wealthy and the well connected.<br />
<br />
Irrespective of your political party and beliefs - the health care system is clearly broken, but obviously not broke. The top 12 health care CEOs earn collectively over $182 million annually. The Obama plan is not good for these 12 CEOs. They are spending millions against it - but they can afford it. Private health insurance started as a post-WWII incentive for workers to join a company. Instead of bartering with the doctor, people could pass the cost of medical care to the insurance company, which merely raised rates as expenses and CEO wages increased. As the recession goes on, more people will lose their jobs and their health insurance. At a cost of $12,000 a year, many people cannot afford private health care insurance. The question is whether as a society, can we afford to keep the current system?<br />
<br />
Is there anyone intelligent enough and not in conflict to solve this?Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-64933490735279358882009-07-13T22:54:00.000-07:002009-07-13T22:59:45.053-07:00Should product features of touch, smell or taste be eligible for trademark?Duets Blog asked about the use of texture as a trademark. <br /><br />I'm in favor of registering anything (compatible with public policy) that can put the public on reasonable notice that the thing is used a trademark. By reasonable notice, I mean there is consistent reproducibility in the product or service and adequacy of the description in the registration.<br /><br />As a former manufacturing engineer, I am familiar with the problems of reproducible manufacturability and in reliable measurement (description). Fortunately, technology has reduced both to essentially 'no problem' for many fields of manufacture.<br /><br />As such, the question of reasonable notice now shifts to adequacy of the description for public notice. While an embossed sample apparently sufficed for OLD PARR (Ecuador?), current electronic searches (via TESS, the Internet, etc.) require a textual description with a reasonable pictorial facsimile for non-word visual marks. This is not to prohibit embossed masters for registration, but the public needs reasonable notice without having to seek and buy every competitive product in the field. Some tactile marks could meet the textual description with a reasonable pictorial facsimile criterion. More complicated tactile marks might require dimensional (surface finish) descriptions, the measurement of which is now standardized and is therefore adequate for putting the public on notice. Holography would also be a good descriptive viewer with proper technology (but not on my monitor as yet).<br />Moving on to scent, non-functional single description scents have had minor success for registration as a trademark, but a description as a mix of scents failed (http://www.caslon.com.au/trademarkprofile11.htm). From an engineering and forensic point of view, a description based on gas-liquid chromatography results would likely have reproducibility, adequacy of the description, and be electronically searchable. Multiple blends of scents might be registered if the GLC description truly described the scent as reproduced with pure chemicals. Even if there were some difficulty to electronic searches, the difficulty would likely not be more than patent lawyers (like me) currently work with for prior art searches (and yes, it leaves a lot to be desired).<br /><br />This leaves the fifth sense, taste, but taste analysis sufficient for reproducible manufacturing is still a skilled talent outside of an engineered metric. As evident by the description of fruit flavor and oak tone in wine, taste relies considerably on smell. The wide range of genetic ability to taste various compounds combined with age and culture related considerations makes an adequate description likely impossible at any stage of technology.<br /><br />CHEERS!Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-71430822833508702542009-07-11T22:25:00.000-07:002009-07-12T22:51:44.219-07:00LifeLine Screening - Stretching fluff into false advertising?<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiq21JpWFLG9KCJXeCntOceNuC53CpnclrV5dSk6HzQJA5lia5VDCxR10_ztj4kcRBWsvGs1f7HMu1TyOrJV65RxiryrT5eC0qZPD2_4dDCy6PNmp6NaTvqwzoWX55GxCRuvqLBuV-PGIYv/s1600-h/LifeLineLetter.jpg"><img style="float:left; margin:0 5px 5px 0;cursor:pointer; cursor:hand;width: 247px; height: 320px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiq21JpWFLG9KCJXeCntOceNuC53CpnclrV5dSk6HzQJA5lia5VDCxR10_ztj4kcRBWsvGs1f7HMu1TyOrJV65RxiryrT5eC0qZPD2_4dDCy6PNmp6NaTvqwzoWX55GxCRuvqLBuV-PGIYv/s320/LifeLineLetter.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5357816935577002130" /></a><br />To: Karen R. Law<br />Director of Clinical Operations <br />LifeLine Screening<br />6150 Oak Tree Blvd. <br />Independence OH 44131<br /><br />Dear Ms. Law, <br /><br />Thank you for your letter of invitation for LifeLine Screening in Pleasanton on July 17th. Two of your statements are quite interesting. <br /><br />"Unfortunately, 4 out of 5 people that suffer a stroke have no apparent symptoms or warning signs."<br /><br />and<br /><br />"Ultrasound screenings have proven to be accurate in detecting vascular disease prior to active warning signs and before a major medical incident such as stoke or sudden death from aneurysm rupture."<br /><br />Your first statement is, "unfortunately," unsubstantiated, and as shown below, appears to be an outright lie, while your second statement takes out of context the position of the Society for Vascular Surgery. <br /><br />Your letter lacks a reference for the first statement, and I have not found a reference to authenticate it. None of the information I found from by American Heart Association (1), the National Stroke Association (2) or the Society for Vascular Surgery (3) support your statement. The AHA, NSA and SVS information, in fact, regarding silent cerebral infarction strongly suggests your statement is untrue.<br /><br />There are some related facts that I found. "Four out of five American families will be touched by stroke at some time." (4) "About four out of five people who die of coronary heart disease are 65 or older."(5) "Up to 80% of strokes are preventable."(6) These related facts, even taken together and with inferences, however, do not support that your statement is true.<br /><br />Every reference I found containing your "4 out of 5" statement was an advertisement for your services. These include the Larry King Cardiac Foundation, the American Senior Benefits Association, and other organizations, such as a letter like yours that I received in April from the American Society for Mechanical Engineers. Based on the lack of authentication, I conclude that your statement is fabricated.<br /><br />The closest independent supporting statement I found was from a doctor who stated that Peggy Fleming said in 2004, "50% of all strokes occur in people who show no symptoms." (7) I am unaware of where or how Ms. Fleming gained her expertise to make that statement. If true, I suspect the rise from 50% to 80% (4 of 5) of asymptomatic stroke in five years would undoubtedly raise alarm and be in the publications of the American Heart Association and the National Stroke Association. While proving a negative is generally not possible, the absence of support for a statement is accepted as disproving the statement, particularly when, as here, other facts fail to support the statement. At best, is the statement of SVS that "[v]ascular disease is … generally asymptomatic until a catastrophic event occurs." As an educated person, you are aware that "generally" is meaningless. Based on the lack of authentication, I conclude that your statement is fabricated.<br /><br />Your second statement, attributed to the Society for Vascular Surgery, omitted the sentence before ihttp://www.blogger.com/img/blank.gift. If you are not aware of the sentence, here it is:<br /><br /><blockquote>Individuals 55 years of age or older with cardiovascular risk factors such as a history of hypertension, diabetes mellitus, smoking, hypercholesterolemia, or known cardiovascular disease may benefit from preventive screening for vascular disease.(8)</blockquote><br /><br />Taken in proper context, the paragraph clearly limits the benefits of "preventive screening for vascular disease" to "individuals 55 years of age or older WITH cardiovascular risk factors." Your letter omits this important fact. Thus, your statement plainly takes the Society for Vascular Surgery position out of context. For that reason, I am copying them this letter and your letter.<br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh50VW7EMZRcP3eLIv13WZR5BwD26yTfoQ93wq4mfm0YLnR62IFnOrKH0KsgEzFfiFhIDold1T8GKTQ9iJcHzhjuks6NoYmpCtF4oOxu8yvSeuaisezvESlNwd_I78GYek3zRMzBqEn3bRN/s1600-h/LifeLineFlyer-B.jpg"><img style="display:block; margin:0px auto 5px; text-align:center;cursor:pointer; cursor:hand;width: 320px; height: 131px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh50VW7EMZRcP3eLIv13WZR5BwD26yTfoQ93wq4mfm0YLnR62IFnOrKH0KsgEzFfiFhIDold1T8GKTQ9iJcHzhjuks6NoYmpCtF4oOxu8yvSeuaisezvESlNwd_I78GYek3zRMzBqEn3bRN/s320/LifeLineFlyer-B.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5357817759291416354" /></a><br />Furthermore, the accompanying tiny leaflet magnifies the distortion under the question of "Who needs to be screened?" As with many 3-point marketing misrepresentations, (9) the answer of "anyone over 50 who wants to be proactive about his or her health" misconstrues the NSA fact following it. Neither these statements nor those in the letter substantiate the conclusion that people with risk factors "may wish to be screened, even if you are in your 40s." This conclusion, in fact, clearly misrepresents the SVS position above suggesting screening of people with risk factors over the age of 55. While 55 may be the new 40, being 40 with risk factors for stroke does not equate to being 55 with such risk factors. For this misrepresentation, I am copying this letter and your letter to SVS.<br /><br />I also found other inconsistencies. Your letter says, "LifeLine Screening is … important to keep you and your loved ones healthy and independent." As a Registered Diagnostic Medical Sonographer, Registered Diagnostic Cardiac Sonographer, and Registered Vascular Technologist, you know that screening does not "keep [a person] healthy and independent." Those come with a beneficial diet, exercising, negating risk factors, and treatment. Your use of your credentials to appear to authenticate these lies is a discredit to the medical profession (I was formerly a medical technician). For that reason, I am copying to ARDMS this letter and your letter. <br /><br />In addition, your letter states the cost as $149. Just two months ago the cost was $135. (10) In 2005, the cost was $109. (11) Collectively, it appears that LifeLine is more interested in inflating its price and fluffing its advertising, and not in keeping its price and facts current with reality. <br /><br />Wishing you the best of health,<br /><br />/s/ Gerald R. Prettyman<br /><br />cc: Society for Vascular Surgery, 633 N. St. Clair, 24th Floor; Chicago, IL 60611; <br />ARDMS, 51 Monroe Street, Plaza East One, Rockville, Maryland 20850-2400.<br /><br /><br /><br />cc: Society for Vascular Surgery, 633 N. St. Clair, 24th Floor; Chicago, IL 60611<br /><br />---Endnotes---<br />((1) Stroke Warning Signs, American Heart Association, 2009. Available at http://www.americanheart.org/presenter.jhtml?identifier=4742.<br />(2) Stroke 101, National Stroke Association, 2009. Available at http://www.stroke.org/site/DocServer/STROKE_101_Fact_Sheet.pdf?docID=4541<br />(3) Society for Vascular Surgery, SVS Position Statement On Vascular Screenings, 2009. Available at: http://www.vascularweb.org/patients/screenings/SVS_Position_Statement_on_Vascular_Screenings.html<br />(4) USC Neurosurgery - Stroke / Brain Attack - Cause Symptoms Treatment Risk, USC Neurosurgeons, Inc., Last Modified 5-9-2009. Available at: http://www.uscneurosurgery.com/stroke.html.<br />(5) Heart Attack / Stroke, Kent Fire/Fire District 37, Brochure fdfp6714, 10/05. Available at: http://www.ci.kent.wa.us/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=7142.<br />(6) What is Stroke? National Stroke Association, 2009. Available at: http://www.stroke.org/site/PageServer?pagename=STROKE.<br />(7) Dentist Saves Lives!!! (Oral Cancer), Ralph Parkin D.M.D., citing a 2004 letter. Available at: http://www.myhealthymouth.com/Content/DisplayArticle.aspx?ArticleID=1.<br />(8) Society for Vascular Surgery, SVS Position Statement On Vascular Screenings, 2009. Available at: http://www.vascularweb.org/patients/screenings/SVS_Position_Statement_on_Vascular_Screenings.html.<br />(9) Gerald R. Prettyman, Life Line Screening - Turning Facts and Half-truths into a Marketing Marvel, April 23, 2009. Available at: http://grpblawg.blogspot.com/.<br />(10) American Society Of Mechanical Engineers, LifeLine Screening in Dublin, CA, April 6, 2009, Letter on file. <br />(11) January W. Payne, Screening With Holes in It? July 19, 2005, HE01, http://www.washingtonpost.com/wp-dyn/content/article/2005/07/18/AR2005071801175.html.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com2tag:blogger.com,1999:blog-4428867708311417911.post-68431571814537551072009-06-15T01:48:00.000-07:002009-06-15T01:52:38.401-07:00Trademarks as verbs and the significant of meaningDuetsBlog.com (1) asked in the LinkedIn group Intellectual Property Professionals, "What do you think about brands being used as verbs?" A number of the serious answers generally favored allowing the use of trademarks as verbs or said it at least is inevitable. Of the first nineteen answers, only one used the word "confusion," and no one (including any of my first four postings) stated the rational of a trademark as a symbol to avoid consumer confusion as to the source of the goods. In fairness, all the posters were attorneys who knew this and an early poster noted the protectionist act of "admonish[ing] their admiring public … that their precious brand is an adjective denoting a source of these fantastic goods or services (and a registered trademark to boot), and not merely a generic moniker."<br /><br />In my first post, I discussed the objective and subjective aspects of trademarks validity.<br /><br />"The objective test of validity is still the public perception (measured by on the street interviews) of whether the mark pertains only to the single brand or to the class of products. Mark owners hoping for a subjective test of advertisements reminding the public of the single brand meaning may be in for a rude awakening by a competitor who monitors public perception, then challenges the validity of the mark."<br /><br />In my second post, I responded to a poster who stated that "[o]ne of the ways companies have buttressed their protection is through the licensing of their trademarks into categories that are beyond their core business." This somewhat surprised me.<br /><br />"TRIPS Article 21 allows trademark assignment without transfer of the business. This is not the law in the US. (15 U.S.C. § 1060). A US mark owner may exchange the goodwill of the mark to another of its own goods or services. The US mark owner may not license (assign) a mark to another company's product or service. Such naked licensing inherently confuses consumers as to the source of the goods or service, and risks invalidity of the mark. (Sugar Busters LLC v. Brennan) (Use by others without control diminishes the strength of the mark.)"<br /><br />In my third post, I responded to a poster who remarked that a cornstarch manufacturer successfully held off a trademark challenge using cookbooks as evidence of genericide by "showing that over the years they had written cease and desist letters to loads of publishers demanding that they stopped using their brand as generic."<br /><br />I responded, the "example is on point that a trademark challenge requires the proper segment of the public. The cookbooks submitted did not show the public perception of the right persons. The proper audience for the public perception survey (and trademark challenge) would have been the persons who buy and use cornstarch. As long as people using search engines recognize there is a search engine brand named Google, the public can google along on any search engine and say they "googled it."<br /><br />The poster disagreed with me, saying "the recipes in magazines showed the public perception of the right people: homemakers who used corn starch in their cooking, and for whom Maizena had become such a staple and a household name that it had reached their "top of mind" so that they thought of all corn starch being Maizena." The poster added that the "[s]ame happens with Henkel's glue stick "Pritt"; since I was a child doing school pro[j]ects I've never heard any one go to a stationary store and ask for a stick of glue; people will ask for a "Pritt". He added that, "people here will refer to all sticks of glue as "Pritts", even if they're holding a stick of UHU glue in their hand ... however I've never heard anyone say they "Pritted" a picture on their album or so."<br /><br />In my fourth posting, I replied slightly more on topic, but still focused on mark validation.<br /> <br />"Whether the misuse of the mark is as a verb or as a generic noun is irrelevant. "The primary significance of the registered mark to the relevant public [is] the test for determining whether the registered mark has become [] generic." (5 U.S.C. § 1064(3)). <br /><br />Invalidation of a trademark is a two-part test. The first test is to establish the relevant product market. (A. J. Canfield Co. v. Honickman, 808 F.2d 291 (3d 1986) (holding that there is a difference in the relevant market for a diet chocolate fudge soda as a chocolate diet soda, or as a chocolate fudge soda.)) Maizena is a mark for cornstarch, not a mark for an ingredient in a cookbook recipe. <br /><br />The second step is determining whether "the term [is] understood by the relevant public primarily to refer to that genus of goods or services?” ((In re Reed Elsevier Properties Inc., 06-1309 at 3 (Fed. Cir. 2006) (citing H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 990 (Fed. Cir. 1986)). The relevant public is "in the minds of the consuming public." (A. J. Canfield Co. v. Honickman, 808 F.2d 291 (3d 1986)). Maizena sending individual letters to the publisher could not change public perception because the consumer purchasers of Maizena never saw the letters. <br /><br />Evidence of the mind of the consuming public may be "any competent source [that] show[s] the relevant public’s understanding of a contested term, including purchaser testimony, consumer surveys, dictionary definitions, trade journals, newspapers, and other publications. (In re Reed Elsevier Properties Inc., 06-1309 at 3 (Fed. Cir. 2006) (citing In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 1570 (Fed. Cir. 1987)). Were the cookbook publishers truly the relevant public, then the court would have invalided the Maizena mark because Maizena had already lost the strength of the mark. Closing the barn door after the horse is gone does not recover the horse. <br /><br />[The] Pritt example is a prime case of a mark about to die from genericide."<br /><br />In my fifth posting, I finally addressed the affect of trademark verbing.<br /><br />"The purpose of a trademark is to associate a specific brand of product or service to its source (to prevent consumer confusion). Use of a trademark as a verb is therefore only a generic use if the interpretation is subjectively open to another source and the source was objectively different.<br /><br />In a one-brand market, use of the trademark as a verb inherently refers to the source (e.g., "barting to San Francisco," for riding the BART train to San Francisco from the East Bay area. The mark would similarly be safe from genericide when the speaker and listener share by a common experience that the verb refers to the same source of the specific product or service. Such an example occurs between two employees of one company referring to a contracted product or service from one source (e.g., FEDEX as above) for their company. The last example of inherent meaning is in the association to the overwhelming monopolist in the market. Talking about the Office Suite software implies Microsoft for most offices. Google may be 'safe' from genericide for now, but Microsoft Bing just knocked Google down to 72% of the market.<br /><br />Outside of these circumstances, use of the trademark as a verb becomes less specific, subject to interpretation, with an increased risk of genericide. As stated above, the understanding and meaning of the consumer is paramount to the success of a trademark. Thus, CalTrain and DHL would likely object to the BART and FEDEX examples as they compete with BART and FEDEX respectively, but in limited markets. Taking the train from Millbrae to San Francisco is open to interpretation to both BART and CalTrain as both trains carry passengers between those cities. A passenger could still speak of barting to San Francisco from Millbrae without injury to the trademark if the user had ridden BART and the listener understood the speaker had ridden BART. <br /><br />The true injury of using a trademark as a verb occurs when the user and listener or reader do not have the common experience. A Baby Boomer might receive a confused look after asking a Generation Y employee to 'xerox' something because with competition and time there is now an entire generation with many people who have likely never used a Xerox brand copier and do not know 'xerox' as a verb. Similarly, I might say that I googled "trademarks" and love the way the images jump up from the page. This would confuse a Google, Yahoo or Internet Explorer user because that is a feature of Bing.com. <br /><br />Thus, verbing a trademark is not necessarily an injury to the mark. The significance is in whether the use is open to interpretation and whether user and listener or reader understood the verb-mark to apply to the same source of the product or service."<br /><br />(1) http://www.duetsblog.com/2009/06/articles/just-verb-it-a-legal-perspective-on-using-brands-as-verbs-part-i/Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-13234874615824622162009-04-23T05:36:00.000-07:002009-04-23T05:38:57.366-07:00Life Line Screening - Turning Facts and Half-truths into a Marketing MarvelLife Line Screening of America is a Cleveland-based mobile ultrasound company. (1) Life Line performs four tests to "screen for: plaque buildup in the carotid artery of the neck, which can lead to a stroke; an enlarged abdominal aorta, a higher risk for a potentially deadly rupture; peripheral arterial disease, a hardening of the arteries of the leg; and low bone density in the heel, which can indicate the bone-thinning disease osteoporosis." (2) Life Line has screened over 6 million people, which translates to about $600,000,000 in revenue from its humble beginnings in 1993. (3)<br /><br />These tests raise a lot of debate, in part because medical insurance does not cover the cost, and for other reasons as discussed below. The Life Line website cites several examples of people crediting Life Line for saving them or a loved one from a stroke. (4) Conversely, at least one doctor calls Life Line a scam. (5) As with all marketing stories, there is more to the story than the flyer states.<br /><br />First up, when you make your reservation, be ready for a not-so-inexpensive credit card hit. The current cost is $140 ($139.99 but that's $140 in my checkbook), although group tie-in marketing drops the price to $135.00. (6) A trip to the doctor generally costs half as much. (7) Life Line also seems to follow the fast rising cost of medicine. In 2005, the cost was $109. (8) The cost was $119 in 2007. (9) The 2009 cost is 28% higher than the 2005 cost. Wow, talk about inflation. (N.B. to everyone, the "specially priced" package that every group gets is $135.00 - what a savings from the public price (not)).<br /><br />The other debates focus on the usefulness of the tests, and the marketing ploys. <br /><br />Arterial plaque disease occurs in several areas of the body, not just the carotid (neck) or coronary (heart) arteries. Many tests may detect arterial plaque disease. These include lipid blood tests, blood pressure monitoring, carotid pulse palpitation, ultrasound (external and intravenous), catheterization, cardiac stress test and heart monitoring. (10) There is no single test for diagnosing the likelihood of a stroke. Each test suffers from detecting only one or more aspects of arterial plaque disease or the test is specific to the measured locale only. In addition, some methods, such as ultrasound, are subject to technical error. (11) Thus, a good testing regime uses multiple tests or views as the case may be. More important, however, is a good preliminary oral screening to select the proper test. <br /><br />Oral screening starts with questions such as, do you or anyone on either side of your family have a history of heart disease, stroke, or signs of peripheral artery disease? Some information indicates that coldness in the legs or arms, or recurrent cramping or pain in one location may indicate blockage or "a problem with blood flow in the arteries." (12) If so, skip Life Line, talk to your doctor, and do not be bashful about demanding more than just a measurement of your blood pressure or the doctor feeling your pulse in your neck. Neither of these detect all vascular problems that may cause a stroke or heart attack from dislodged plaque. <br /><br />A problem with Line Line, and with every screener for that matter, is that even a battery of tests can miss a diagnostic opportunity if the preliminary oral screening missed a question, or the answer did not alert the screener to call for the proper spot-on diagnostic test. A good friend of mine with a history of smoking had a series of dizzy spells (TIA for you medical types) at about age 60. His bean-counting health care plan (corporation) failed to perform, or misread the result of the diagnostic procedure that would have detected the arterial blockage that led to his stroke that disabled him completely on one side of his body. One year later, as he was recuperating, his wife took him to Life Line because his health plan would not do the scan. Shortly into the procedure, Life Line sent him to the hospital because of the severity of the blockage Life Line found. 'K' re-checked him, and cleaned out the artery. He was a semi-walking killer-stroke waiting to happen. (He is doing much better, but many effects of the first stroke persist). While this seems like a Life Line success story, the gist of it was that he already had one severe stroke preceded by multiple TIA's so a reasonable doctor would look for compounding problems. This was more a failure with the health care corporation than a Life Line success story.<br /><br />A good example of a less decisive 'get-scanned' example is my family. Both sides of my family have a history of debilitating stroke or heart disease, although each afflicted person was in the 70's, 80's or 90's years of age at the time of the first event. Rather expectedly, the age of onset followed the risk factors. (13) The latter-afflicted persons were non-smokers, not too over-weight, non-or light drinkers, with low cholesterol, had some form of regular activity and they did not live in air-polluted areas, which is also linked to heart disease. (14) The earlier-afflicted persons were overweight by 25% or more, with less activity, drank alcohol, had related health problems, and in some cases, smoked. <br /><br />With this family history, those of us that are younger are wondering like crazy whether we should go to Life Line for screening. This is where the rest of the debate comes in. The Line Line advertising, whether by flyer or other posting, uses three to four common marketing tactics, or as lawyers call them, arguments. The debate focuses on the truthfulness of the arguments. Generally, the first arguments are wholly or mostly true (fluff), with the truth getting more lost as more arguments are used. What the debate ignores, however, is who makes the statement, and that is the crux of misrepresentation.<br /><br />In its opening arguments, Life Line uses two bold bullets that combine statistics with fear: <br />· Stroke is the number one reason that people move into nursing homes and the third leading cause of death in the United States. Yet, many strokes can be prevented.<br />· Amazingly, 4 out of 5 strokes occur in people who show no prior symptoms.<br /><br />As noted above, the first bullet point is true, or at least "many strokes can be prevented" is true (diet, exercise, medicine, etc.), as is the statistic that stroke is "the third leading cause of death in the United States." (15) Life Line and Peggy Fleming, however, seem to be the only authorities of the statistic that "[s]troke is the number one reason that people move into nursing homes." (16) This former medical technician turned lawyer has been to many nursing homes over many years. Having seen many residents, infirmity is, in my experience, the number one reason that people move into nursing homes. There is an article from the Wall Street Journal that "[s]troke is the leading cause of disability in the U.S." (17) Once released from the hospital, however, many stroke victims live at home, in assisted living, or in skilled nursing facilities (which are not nursing homes), so the Life Line statement is at best a fuzzy exaggeration.<br /><br />Under the principle of tiered arguments (marketing), the second argument is somewhat fuzzy compared to the first, but follows the same reasoning. Life Line has it here with the second bullet point, again a statistic with fear, but with a fuzzy 4 of 5 (not 80%, see the difference). Life Line also follows the tier rule that the second argument does not have to be as true, i.e., there can be more exaggeration. In this case, the statistic seems unsubstantiated, or is perhaps a fluffy exaggeration, as Peggy Fleming said it was only 50%, but two of four does not sound as dire as 4 out of 5. (18) <br /><br />The next stage is to tie the first two arguments with a third argument, and then close with a super coupe implication. To do so, Life Line starts with an apparent authority. Citing the Wall Street Journal of September 24, 2004, the Life Line flyer states: "Many vascular specialists say two diagnostic tests - carotid ultrasound an the ankle-brachial test - can provide a clear window into artery disease that can lead to strokes …" At this point, however, Life Line crosses the line from fuzzy marketing to a half-truth. While the cited line is directly quoted from the Wall Street Journal article, the title and topic of the article is "Screening for Artery Disease Is Good Idea for People Over 60." (19) At best, the Wall Street Journal supports Life Line's half-truth only for the portion of those under 60, "with a variety of risk factors for stroke." (20) The rest of the population can and should ignore Life Line. What is important for Life Line, however, is that it did not lie.<br /><br />Despite the half-truths, Life Line is not finished, as the flyer or posting adds a second apparent authority that is not really so much an authority as a pitchperson duped into delivering the closing (and untrue) coupe. For Life Line, the apparent authority is the person who signs the flyer (an executive of the tie-in organization) and who "encourage[s] you to read … about these … life-saving tests." Obviously, the pitch is that Life Line screening is life saving. The wise reader will recognize, however, that the screening is not life saving. The life saving comes in changing your diet, exercising, taking medicine, other treatment, etc. <br /><br />There is another interesting aspect to the life-saving test statement. For clarification, "bait and switch" is illegal because the seller does not intend to sell the advertised product or service. (21) Advertising a need for a product or service is not illegal unless the ad is directed to a specific person to sell "a part, replacement, or repair service [a]s needed when it is not." (22) Even if someone proved the life-saving test statement was directed to a specific person, Life Line is not on the hook because the flyer expresses the statement as the opinion of the executive of the tie-in organization, and Life Line is not responsible for what the organization says. <br /><br />Consequently, Life Line has done its homework of turning facts and half-truths into a marketing marvel. So now that I have reviewed all this, I suppose the best thing for me is to watch what I eat and weigh, exercise, routinely check my blood pressure, take my medications, and have a check-up each year. Guess I'll get the Life Line scan at age 60.<br /><br />Gerald R. Prettyman is an Attorney at Law licensed in California and Minnesota and with the U.S. Patent Office as a Registered Patent Attorney. His contact information is at http://grpjrlaw.com.<br /><br />(1) See http://www.lifelinescreening.com/aboutus/Pages/default.aspx.<br />(2) January W. Payne, Screening With Holes in It?, July 19, 2005, HE01, http://www.washingtonpost.com/wp-dyn/content/article/2005/07/18/AR2005071801175.html.<br />(3) Screening value from Life Line. See http://www.lifelinescreening.com/aboutus/Pages/default.aspx. Gross revenue estimated as 6 million times $100 per screening. Simply Hired reports revenue as less than $5 million year. See http://www.simplyhired.com/job-id/woa7rs64ou/crossover-med-jobs/. <br />(4) See http://www.lifelinescreening.com/aboutus/personalstories/Pages/default.aspx.<br />(5) Ed Zimney, MD, October 21, 2008, Life Line Screening: A scambuster report. http://www.everydayhealth.com/blog/zimney-health-and-medical-news-you-can-use/life-line-screening-a-scambuster-report/.<br />(6) American Society for Mechanical Engineers, April 6, 2009, Priority Code BEJA-045.<br />(7) The current price of Life Line screening is $140 while "the national average doctor's office visit is approximately $60." See Life Line website and Doctor's Office Versus E.R. Visits. Blue Cross Blue Shield of Texas, (citing American Medical Association, "Physician Socioeconomic Statistics," 2001), http://www.bcbstx.com/employer/hccc/topic6.htm.<br />(8) January W. Payne, Screening With Holes in It?, July 19, 2005, HE01, http://www.washingtonpost.com/wp-dyn/content/article/2005/07/18/AR2005071801175.html.<br />(9) Monroe Clinic and Life Line Screening Partner to Promote Healthier Communities, August 23, 2007, http://www.monroeclinic.org/News/Releases/2007/Monroe+Clinic+and+Life+Line+Screening+Partner+to+Promote+Healthier+Communities.htm.<br />(10) While I'm not an M.D., I was formally schooled in medical technology, I'm familiar with all of these tests, and I have been a patient for many of them. <br />(11) "Carotid tests … [in] a hospital … is the best [as the] tests can be hard to read for an untrained eye." Thomas M. Burton, The Wall Street Journal, Screening for Artery Disease Is Good Idea for People Over 60, September 24, 2004; Page B3, http://engs.net/health/WSJstrokescreen.html.<br />(12) National Institutes of Health, Department of Health & Human Services, Peripheral artery disease, Page last updated: 24 March 2009, http://www.nlm.nih.gov/medlineplus/ency/article/003184.htm<br />(13) American Heart Association, Inc., Stroke Risk Factors, April 22, 2009, http://www.americanheart.org/presenter.jhtml?identifier=4716.<br />(14) American Physiological Society, March 23, 2009, Inhaling A Heart Attack: How Air Pollution Can Cause Heart Disease, http://www.the-aps.org/press/releases/09/8.htm.<br />(15) American Heart Association, Inc., Stroke Statistics, April 22, 2009, http://www.americanheart.org/presenter.jhtml?identifier=4725<br />(16) The online references this author found stating this information were hawking Life Line or other screening companies. One dental surgeon (D.M.D.) cited Peggy Fleming (the ice skater) as his authority! See http://www.myhealthymouth.com/Content/DisplayArticle.aspx?ArticleID=1. The most credible authority was from an advertisement in 2007 (the time of the screening), who was the Chief Nurse Executive of a clinic, but she was hawking the Life Line tie-in to the clinic and repeating what Life Line states in its promotions, so that negates her credibility. See: http://www.monroeclinic.org/News/Releases/2007/Monroe+Clinic+and+Life+Line+Screening+Partner+to+Promote+Healthier+Communities.htm http://www.monroeclinic.org/News/Releases/2006/Elmer+and+Weldon+Promoted+at+Monroe+Clinic.htm<br />(17) Thomas M. Burton, The Wall Street Journal, Screening for Artery Disease Is Good Idea for People Over 60, September 24, 2004; Page B3, http://engs.net/health/WSJstrokescreen.html.<br />(18) This author could not independently substantiate this so-called fact, although Peggy Fleming (cited above) supposedly wrote in 2004, "50% of all strokes occur in people who show no symptoms." <br />(19) Thomas M. Burton, The Wall Street Journal, Screening for Artery Disease Is Good Idea for People Over 60, September 24, 2004; Page B3, http://engs.net/health/WSJstrokescreen.html.<br />(20) Thomas M. Burton, The Wall Street Journal, Screening for Artery Disease Is Good Idea for People Over 60, September 24, 2004; Page B3, http://engs.net/health/WSJstrokescreen.html.<br />(21) Cal. Civil Code § 1770(9). The law of your jurisdiction may vary.<br />(22) Cal. Civil Code § 1770(15). The law of your jurisdiction may vary.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com1tag:blogger.com,1999:blog-4428867708311417911.post-68550378122993521452009-02-11T11:10:00.000-08:002009-02-11T12:11:59.683-08:00Has Spare the Air Spared the Penalty and Raised a Constitutional Question?On July 9, 2008, the Bay Area Air Quality Management District (BAAQMD) adopted "a regulation that makes it illegal to burn wood or firelogs in household fireplaces and woodstoves" on Spare the Air days and nights. (1). Regulation 6 Rule 3, "limit[s] emissions of particulate matter and visible emissions from wood-burning devices." (2). These limits are in effect during the months of November through February as declared on a day-by-day basis by the BAAQMD. (3). The BAAQMD posts the wood burning status by noon each day on its Spare the Air website. (4). The news media, which publicly reported the regulation, also reports the Spare the Air declarations of the Air Pollution Control Officer. (5). <br /><br />This article does not dispute the need for the regulation. "[F]ireplace and woodstove burning … make up 30 percent to 40 percent of soot emissions." (6). By one estimate, one million wood-burning fireplaces produce about ten tons of lung-trashing particles and gases per day during the winter months. (7,8). At this rate, the "estimated 1.4 million fireplaces and wood stoves in the nine-county district" kick out 14 tons of this pollution per day. (9). <br /><br />The BAAQMD and the regulation have practical flaws and constitutional issues. Once the district declares a Spare the Air day, the public must proactively determine the legality of burning wood that afternoon and evening. At least one organization has noted that morning newspapers and other morning reports cannot report a Spare the Air day "because the air quality district doesn't decide until noon to declare a 24-hour no-burn period." (10). Undoubtedly, there are people who cannot access public media that day. As such, the regulation is burdensome to these people. While there is an exemption from the regulation for people lacking another source of heat, stopping the activities of a busy family to learn if a morning fire has become illegal may be a problem. (11). <br /><br />The next flaw is that the BAAQMD has limited enforcement capacity. The BAAQMD has about 70 inspectors to cover its year round routine work of the commercial and residential sites in the district. (12). These inspectors must also handle responding to calls of winter wood-burning violations as well. (13). With so few inspectors, the BAAQMD has to ask the public to report "wood smoke concerns in their area." (14). This reliance on neighborhood informers was evident early on with the first Spare the Air days, when nine violators received warning letters, and "[s]ix of the nine violators were reported by neighbors." (15). <br /><br />In addition, the BAAQMD has led people to believe that it has banned wood burning entirely on Spare the Air days. (16). In fact, the regulation only bans wood burning that produces more than a certain level of smoke. (17). People calling in the mere smell of smoke are potentially calling in a false alarm. With a limited number of inspectors, this quasi-policing policy is creating unproductive work for the district. The BAAQMD acknowledged the problem when it received 50 complaints but issued only six warnings on the first Spare the Air day. (18). <br /><br />The next flaw is in the purported standard. Under the regulation, a violation occurs if the smoke from a wood-burning device exceeds "No. 1 on the Ringelmann Chart or 20 percent opacity for … more than six consecutive minutes in any one-hour period." (). For those persons unfamiliar with measuring the density of smoke from oil or coal-fired power plants, the Ringelmann Chart, and its opacity test, is a series of rectangular grills of black lines on paper published by the Bureau of Mines that an inspector holds up while eye-balling a smoke plume to determine the approximate combustion efficiency of the power plant. (20). The method of determining a measurement is so subjective, that even the Bureau of Mines admits that use of the Ringelmann Smoke Chart is empirical in nature with many limitations, although "it gives good practical results in the hands of well-trained operators." (21). With fines of possibly "several thousand dollars," we can only hope that the BAAQMD inspectors have reflective-laser reliable eyesight. (22). <br /><br />The final flaws in the regulation relate to the purported penalties. To enforce penalties depriving a person of property or liberty, such as fines or jail time, the government must give advance notice that an act was illegal at the time committed, and the government must give advance notice of the severity of the penalty in relation to the regulated act. (23). Concisely, a person must have reasonable access to know in advance the proscribed act and the penalty. <br /><br />BAAQMD, however, has not published the fine schedule, so the public does not actually know how BAAQMD will assess fines. (24). Regulation 6 Rule 3 lacks a provision for a penalty, none of the other regulations cite it, and the BAAQMD web site titled, "New Wood Burning Regulation 6, Rule 3: Wood-Burning Devices" merely states that "wood burning [is restricted] when air quality is unhealthy and a Spare the Air Advisory is issued." (25). The web site at www.sparetheair.org refers back to the Wood-Burning Devices page "for more information." (26). An email sent on December 13, 2008 to Susan Adams, the Assistant Counsel for the District Office Bay Area Air Quality Management, recounted a review of the regulations listed in the bibliography below. The email stated that the review of the regulations was "unable to locate the regulation providing the fine schedule. Please provide the name of the regulation providing for the fine schedule, and if possible, a link to, or copy of the regulation." She did not reply. On January 28, 2009, a couple of very nice people at the District Office of BAAQMD confirmed that there is not a written fine schedule for the public to view. A voice message was also left then for Ms. Adams, but she has not returned the call. For BAAQMD to impose fines without public knowledge of the fine schedule violates the due process requirement, and as shown below, other provisions of the Constitution.<br /><br />The next flaw with the regulation is the amount of the fines. According to BAAQMD's CEO, the fines will be set to match the severity of the problem, with "some offenders [getting] little or no fine if the circumstances merited." (27). The constitutional issue here is that, as BAAQMD admits, "a $50 fine isn't enough to deter repeat offenders, [so] subsequent violations [will be] punished with fines of hundreds or even thousands of dollars." (28). Thus, some wood burning would be legal, but a violator would not know whether the fine for a repeat violation would be in the hundreds or the thousands of dollars until receiving a notice of violation. Such significantly high fines violate the proportionality requirement of the Eighth Amendment of the U.S. Constitution unless the penalty is clearly applicable to the crime of burning wood in a fireplace. (29). <br /><br />This is not to argue that having penalties for violating the wood-burning regulation is unconstitutional. The air quality districts around Sacramento and the South Coast regions have properly worded penalty regulations. Rule 445 (h) of the South Coast Air Quality Management District clearly sets fixed fine penalties or constitutional alternatives. (30). Fines in other jurisdictions are similarly reasonable. (31). The issue here is that BAAQMD lacks a readily available fixed fine schedule and may impose arbitrary and discretionary penalties. That is unconstitutional. <br /><br />The legislature has authorized BAAQMD to assess fees and fines through the Health and Safety Code. The misdemeanor penalties applying to air quality, however, are for outdoor fires, the burning of waste and for toxic pollution sources. (32). At worst, a fireplace or wood-burning stove that spews emissions (smoke) over No. 2 on the Ringelmann Chart and that causes actual bodily injury can carry penalties of $15,000 to $100,000 and jail time of up to one year, depending on the severity of the actual injury. (33). The lesser misdemeanors of §§39000 to 41500 are punishable by "a fine of not more than one thousand dollars ($1,000) or imprisonment in the county jail for not more than six months, or both."(34). These penalties have been law for some time. The legislature did not intend BAAQMD to threaten the public inside their homes with substantial fines "in the thousands of dollars" for merely staying warm next to an indoor fireplace or a wood burning stove. (35).<br /><br />If anyone wants to challenge BAAQMD on the word-burning regulations, there is a likelihood of success in a procedural due process challenge. The substantial penalties circulated by BAAQMD in the public media are outside the range of the legislation and are arbitrary and capricious. Despite the amount of harm that burning wood in a fireplace or wood burning stove might cause, the BAAQMD would violate due process and the Eighth Amendment for imposing penalties in the thousands of dollars without a well-written and published regulation or fact-related legislation. (36). <br /><br />Bibliography<br />The following regulations were reviewed in preparation for this article.<br />--General Provisions & Definitions - (http://www.baaqmd.gov/dst/regulations/rg0100.pdf).<br />--Notice to Comply - (http://www.baaqmd.gov/dst/regulations/rg0102.pdf).<br />--Permits - General Requirements - (http://www.baaqmd.gov/dst/regulations/rg0201.pdf).<br />--Fees - (http://www.baaqmd.gov/dst/regulations/rg0300.pdf).<br />--Open Burning - (http://www.baaqmd.gov/dst/regulations/rg0500.pdf).<br />--Particulate Matter - General Requirements - (http://www.baaqmd.gov/dst/regulations/rg0601.pdf).<br />--Wood-burning Devices - (http://www.baaqmd.gov/dst/regulations/rg0603.pdf).<br />--Users Guide - (http://www.baaqmd.gov/dst/regulations/users_guide_regs.pdf).<br /><br />Footnotes<br />1. Welcome! Bay Area Air Quality Management District. http://www.baaqmd.gov/. *Viewed and saved February 7, 2009.<br />2. Regulation 6-3-101. Adopted July 9, 2008.<br />3. Regulation 6-3-301. Adopted July 9, 2008.<br />4. Winter Spare the Air Program, Bay Area Air Quality Management District. http://sparetheair.org/. *Viewed and saved February 7, 2009.<br />5. Regulation 6-3-203. Adopted July 9, 2008.<br />6. Mike Taugher. "Duraflame sues over fireplace restrictions." Contra Costa Times. January 27, 2009. Available at: http://m.contracostatimes.com/contracosta/db_10589/contentdetail.htm. *<br />7. Daniel Tedford. "Air quality officials want wood-burning fireplace out of the home." Inland Valley Daily Bulletin. October 29, 2008. Available at: http://www.dailybulletin.com/ci_10843491. *<br />8. FN6, Taugher, supra.<br />9. "Letting everyone know is crucial to success of no-burn days." Marin Independent Journal. February 3, 2009. Available at: http://www.marinij.com/opinion/ci_11615634. *<br />10. Id. <br />11. Regulations 6-3-110, -111, -112. Adopted July 9, 2008.<br />12. Compliance and Enforcement Division, Bay Area Air Quality Management District. http://www.baaqmd.gov/enf/index.htm. * <br />13. Denis Cuff. "First Bay Area burn violators get warnings." Contra Costa Times, November 20, 2008. Available at: http://www.contracostatimes.com/ci_11036070. *<br />14. FN4, sparetheair.org, supra.<br />15. FN13, Cuff, supra. <br />16. Wood Burning Rule Compliance. Bay Area Air Quality Management District. http://www.sparetheair.org/about/wbrulesummary.htm *<br />17. Regulation 6-3-302. Adopted July 9, 2008. <br />18. Christopher Heredia, "Wood burning banned today across Bay Area," S.F. Chronicle, Nov. 25, 2008. Available at: <br />http://www.valleyair.org/Recent_news/News_Clippings/2008/In%20the%20News%2011-25-08.pdf.<br />19. Regulation 6-3-217. Adopted July 9, 2008.<br />20. Ringelmann Smoke Chart, Information Circular 8333, Revision of IC 7718, By Staff, Bureau of Mines (May 1967), pages 1-2. Available at: http://www.cdc.gov/Niosh/mining/pubs/pdfs/ic8333.pdf. The Ringelmann chart was already old in Europe when adopted by the USA in 1897. Why BAAQMD still uses such archaic technology in Silicon Valley in this high-tech era is not clear.<br />21. FN20, Ringelmann, supra.<br />22. FN6, Taugher, supra.<br />23. Unites States v. Booker, 543 U.S. 220 (2005). ((Holding that the statute mandating courts to follow the Federal Sentencing Guidelines violated the Sixth Amendment because "the statutes put a potential federal defendant on notice that a judge conceivably might sentence him anywhere within the range provided by statute." J. Breyer, dissenting). (Emphasis added). (N.B., See Footnote 6 to Justice Thomas's dissent in part on the commentary to statute §6A1.3, at which the Court notes the Guidelines violated due process with a mistaken belief in the burden of proof).)<br />24. Denis Cuff. "Fireplace ban, fines effective today." Oakland Tribune. FindArticles.com. October 31, 2008. Available at: http://findarticles.com/p/articles/mi_qn4176/is_20081031/ai_n30969996. *<br />25. New Wood Burning Regulation 6, Rule 3: Wood-Burning Devices, Bay Area Air Quality Management District, http://www.baaqmd.gov/enf/woodsmoke/woodsmoke_portal.htm. * (The word "advisory" is a clue that the BAAQMD knows the penalties are just smoke.)<br />26. See the bibliography for the list of regulations and articles reviewed in the attempt to find the fine schedule.<br />27. FN24, Cuff, supra.<br />28. FN24, Cuff, supra.<br />29. Furman v. Georgia, 408 U.S. 238, 249 (1972) ("A penalty . . . should be considered `unusually' imposed if it is administered arbitrarily or discriminatorily." (quoting Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1790.))<br />30. South Coast Air Quality Management District, Rule 445, Wood Burning Device, §(h) Penalties. Adopted March 7, 2008. Available at http://www.aqmd.gov/rules/reg/reg04/r445.pdf.<br />31. FN24, Cuff, supra.<br />32. See Cal. Health & Safety Code §41700, et. seq., §41800, et. seq., and §42400 et. seq.<br />33. Cal. Health & Safety Code §42400 et. seq. <br />34. Cal. Health & Safety Code §42400(a). <br />35. FN24, Cuff, supra. <br />36. United States v. Jordan, 256 F.3d 922 (9th Cir. 2001). (holding when a sentencing factor has extremely disproportionate effect on the sentence relative to offense of conviction, due process requires that government prove the facts underlying the enhancement by clear and convincing evidence).Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com1tag:blogger.com,1999:blog-4428867708311417911.post-7530371999220361002009-01-09T16:54:00.000-08:002009-01-09T23:19:16.796-08:00The Debate over Bees and Seedless Crops.As we generally learn in primary school, bees collect pollen to make honey, and cross-pollinate the flowers they visit. Bees are so important to agriculture, that California law provides for "regulations necessary to minimize the hazard to bees, while still providing for the reasonable and necessary application of pesticides toxic to bees to blossoming plant."(1) <br /><br />A legal battle, however, is now taking flight in central California challenging the role of the bees, as in the birds and the bees. Growers of many crops, in and out of California, hire beekeepers, in the fashion of nomads of the nation, to bring in bees for crop pollination.(2) The beekeepers need the pollen for the bees to make honey so this is one of nature's win-win symbiosis.<br /><br />Some citrus and melon growers, however, raise seedless fruit, for which consumers will pay a premium to enjoy, but which happens only if the bees do not pollinate the fruit. Pollination causes seeds, so at contest, then, is that the seedless crop growers do not want bees around their crops, but other growers and the beekeepers want them present.<br /><br />Caught in the middle are the bees, who besides the income role of pollination and honey, are suffering from colony collapse, a bee disorder of undetermined cause that results in death of 10% to 90% of a bee colony.(3) A bee ban would aid citrus growers, but cause hardship to other crop growers, and decrease the livelihood of the bees. <br /><br />Mediation efforts have so far been unsuccessful. The State of California is proposing notice regulation to encourage beekeepers to move their hives during pesticide spraying.(4) Unfortunately, this soft-touch of the debate does not include the voice of the consumer, so I'll add my two-bits worth. <br /><br />First, I enjoy honey - a lot. Honey improves toast and peanut butter and jelly sandwiches, and of course, baklava is not baklava without honey and nuts. And yes, I enjoy seedless fruit. I had three seedless tangerines the morning of the day before I read about the issue. But then, watermelon seed-spitting contests are futile without large seeds, so who needs seedless watermelons?<br /><br />In the balance, is the cost of a resolution. The bee-side forces suggest that the seedless growers place nets over the trees. A fair solution, except that trying to net over 31,000 acres of growing trees to block out bees would require fishing-trawler-style nets, and thousands of hours of effort, or a lot of helicopter time. In addition, the small net matrix might affect photosynthesis of the plants, which requires a balance of sun and water.(5) Those of us from northern latitudes are familiar with the effect of reduced sunlight, which results in smaller plants and crops. Consumers are less likely to pay more for less, especially in this economic condition. <br /><br />The seedless camp has suggested that beekeepers reduce the number of bees, which in turn, reduces the distance that the bees travel. In this way the bees would be less likely to enter seedless orchards. One option is for growers to change crops, but this is also expensive and time-consuming, especially in the face that some growers recently switched to seedless crops after the market premium made its glowing sunrise.(6) <br /><br />In reality, the consumers will lose this battle over seedless crops, nuts and the bees. The price of something, if not everything, will rise. From this viewpoint, two options are present.<br /><br />One is to do nothing. If growers are successful in raising seedless crop prices due to losses, then growers would accommodate losses by increasing seedless acreage, which they would likely would do anyway to earn the premium. On the other hand, the economy may drive premium purchases down anyway, so the reduction in yield will help keep prices up.<br /><br />Another option, and I'll admit to proposing it only if it is popular, is to provide for a minor subsidy to seedless growers who lose seedless crops to bee incursion. A penny or two honey bottle (t-word) or a nut package (t-word) would aid seedless growers in expenses to keep growing seedless crops. Overall, however, my economic background and arguments suggest that the first proposal seems the better solution. <br /><br />So, and I hate to admit it, the notice regulation by the California Department of Food and Agriculture may be the best solution. The beekeepers will either move or reduce their hives, as the seedless growers want, or the bee-favoring growers will pay to compensate the beekeepers for their pesticide losses. The seedless growers already get a market premium for their product, so any bee incursion loss is either de minimis, or gets accounted for in the market premium.<br /><br />Laissez-faire.<br /><br />(1) Cal. Food & Ag Code S 29102(a).<br />(2) Tangerine growers tell beekeepers to buzz off, Tracie Cone, Associated Press, 1/9/2009, http://news.lp.findlaw.com/ap/f/1310/01-09-2009/20090109005006_06.html.<br />(3) See e.g., Questions and Answers: Colony Collapse Disorder, U.S.D.A. Agricultural Research Service http://www.ars.usda.gov/News/docs.htm?docid=15572, Last Modified: 05/29/2008.<br />(4) Tangerine growers tell beekeepers to buzz off, Tracie Cone, Associated Press, 1/9/2009, http://news.lp.findlaw.com/ap/f/1310/01-09-2009/20090109005006_06.html.<br />(5) Scientists Decode How Plants Avoid Sunburn, ScienceDaily, July 20, 2006, http://www.sciencedaily.com /releases/2006/07/060720094251.htm.<br />(6) Tangerine growers tell beekeepers to buzz off, Tracie Cone, Associated Press, 1/9/2009, http://news.lp.findlaw.com/ap/f/1310/01-09-2009/20090109005006_06.html.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-18541626052853275132009-01-07T00:58:00.000-08:002009-01-07T01:06:18.215-08:00Detecting Targeted Email Scams – The New PhishingThe souring of the global economy has in a two-factor way encouraged the growth and success of three new email and internet scams known as targeted scams. These scams are called targeted scams because the phishing form sent generally not only contains the name of a legitimate company of which you are familiar, but also contains your personal name. In addition, the email, letter, website or pop-up page so closely copies a real one that detection of the scam is almost not possible until you've been 'had.' This blawg will identify to the lay-user and busy professional ways to identify these scams before becoming a victim.<br /><br />As evidence of the growth of the success of the new spam email, both the American Bar Association (1), and the esteemed publication, American Banker (2), recently sent out memorandums warning their professionals of these new and ingenious scams. In addition, a user of the online network Linkedin.com, recently posted a warning about domain name owners receiving emails pretending to 'warn' the domain name owner of a registration problem. (3). The responses indicated that this is a common occurrence. This author has received similar scam letters. <br /><br />The first factor in the success of these scams, is that the spam emails are more convincing than ever, as is discussed below. The second factor, is that the victim lacks good anti-spamware, or fails to recognize the email as spam. An apparent ancillary factor may be that with anti-spamware in place, the victims were perhaps are paying less attention in looking for scams. Regardless, the number of successful scams is rising. <br /><br />The new scams, however, do share traits with their less complicated brethren. We'll first review the scams noted by the ABA, American Banker, and the domain name scam, and relate them to common scam forms, along with ways to detect the scams.<br /><br />For legal professionals, the ABA warned of usual phishing and spoofing emails, and of an interesting, and yet bizarre set-up that makes the "Nigerian scam" (4) seem like child's play. In a targeted scam, the email pretends to be from a legitimate company seeking assistance in receiving payment from another person. What makes the scheme so peculiar, is the email may provide for a fee agreement, confidentiality agreement, etc., and so seems completely legitimate. Once the 'paperwork' is finished, the attorney receives a check (maybe even a cashiers check), along with a separate request from the seemingly legitimate company asking for a quick transfer of the funds, less the attorney's fee. Complying with the client's request, however, proves to be costly when the lawyer learns that the check is phony, and that the contact and wire transfer information had nothing to do with the legitimate company.<br /><br />Some people may already be familiar with this scam from emails promising a person to work at home as an escrow agent, or 'representative,' of a sort, and earning a "commission" by receiving checks and then sending on the funds. As with the "Nigerian scam," either the check is not good, or the goods are poor quality, or never shipped. Either way, the representative is left alone to explain the scam to the police.<br /><br />American Banker, on the other hand, directed it's warning to computer professionals. In its memorandum, American Banker said that computer professionals who handle domain name registration were receiving letters advising them to change information about a domain name. The change would, in effect, allow the sender to hijack the domain name. While we would hope that the computer professionals would be alert to the scam, they are busy people too, and sometimes details get missed.<br /><br />This brings us to the third scam, which may involve a domain name, or more often a financial account. In this scam, the email or letter warns the recipient of a problem that must be immediately resolved. For domain name owners, the alleged problem is often that someone else is trying to register the recipient's domain name, or that the domain name is going abandoned for some reason, and that the recipient must pay the letter sender immediately to avoid losing the domain name. In other cases, the financial account will be locked or closed unless action is immediately taken.<br /><br />In reality, a close look at the email or letter will reveal one or two, if not more, scam clues. If the letter addresses a domain name issue, the letter sender is likely NOT the same company with whom the domain name was last registered. As with the Nigerian scam, the funds are not spent to your benefit. <br /><br />The second scam clue is more common, in that domain name is somehow different from the registered domain name. For example, we are used to seeing domain names like nikon.com, kfc.com, or cocacola.com. In one scam form, the domain name may include a couple of extra letters at the end, such as nikon.com.cn, kfc.com.cn, or cocacola.com.cn. In this case, the '.cn' means that the domain name is registered in China. Similarly, the end letters '.ru' stand for Russia, '.ca.' is Canada, and so forth, for the well-over 200 country codes called top level domain names. If you have a world-wide business, you might want to register these domain names in those countries, just as did Nikon, KFC, and Coca-Cola. If you do not plan to have a world-wide business, why worry about it? (5)<br /><br />Another form of the second scam clue includes a familiar company name, with other words in the domain name. One example is http://paypal.confirm-updates.com/login.php. In this case, the email seems to be from paypal, but is in fact, directed to a website called paypal.confirm-updates.com, which is NOT paypal.com. You can see the difference from a link on paypal's website, such as https://www.paypal.com/us/cgi-bin/webscr?cmd=_login-run. All the special code is AFTER the '.com.' There are even examples of the two scam forms appearing together, such as one I received to immediately go to a website with a true link of:<br />http://www.login.chase.com.ru/sossaht?e=5BbuujDubwwjCrKNjrSzz9UzC. <br />This one has both a Russian registered domain name, and a phony chase.com-like domain name.<br /><br />The second scam form is more likely to appear in an email, as it is easier to hide, which brings us to the third way to discover a spam email, which is to look at the true link in an email. <br /><br />This clue is a little more difficult to detect, as the email reader has to find the way in which the email program shows the true link in an email. For many email programs, you can simply place the cursor over the link show in the email, then look at the lower left corner of the program window. For example, in one case, I received an email saying there was a disputed transaction, and that I should click on the link, which looked like this:<br />https://www.paypal.com/login?secure=ssl32?caseid=7YW39066PT601?=disputeTRANSACTION. <br /><br />In the lower left corner of the program window, however, the true link was shown, which was http://paypal.user-data-confirmation.com/index.htm. As noted above, the website, "paypal.com" is not the same website as "paypal.user-data-confirmation.com." In other words, caveat lector (reader beware).<br /><br />Not all email programs readily show the true link and it is possible to block display of the web address from the lower left corner of the email or browser. In such a case, you may be able to determine the true link by opening the Properties command in the menu. You may need to click a Details tab and then Message Source to see the actual web address. This is tedious in some cases, but is at least, safe. The safest way, of course, is to visit the web site as you usually do, and look for a message or alert on the website. <br /><br />Safe Browsing.<br /><br /><br />(1) "Three Internet scams and solutions lawyers should know about," Your ABA, American Bar Association, November 2008, http://www.abanet.org/media/youraba/200811/article12.html<br />(2) "Data Hackers Shift to Phishing for Domain Name Credentials," American Banker, January 2, 2009, http://www.americanbanker.com/article.html?id=20081231QS6OX4TQ.<br />(3) "Solicitations mails .. from china claiming to be a domain name registration authority," Intellectual Property Professionals, 1/ 5/2009, http://www.linkedin.com/groupAnswers?viewQuestionAndAnswers=&gid=89700&discussionID=922425 (Registration and login may be required.) <br />(4) Nigerian scam, Snopes.com, 9/6/2003, http://www.snopes.com/crime/fraud/nigeria.asp.<br />(5) This is not to suggest ignoring possible foreign trademark protection. The interested reader is encouraged to contact the author or other competent trademark authority for more information.Gerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0tag:blogger.com,1999:blog-4428867708311417911.post-53354926366918722242009-01-03T21:22:00.000-08:002009-01-03T21:27:47.623-08:00Cell phones, Radiation and CancerCell phones, Radiation and Cancer<br /><br />A few months ago, a "prominent-cancer-doctor-warn[ed]-about-cellphones" and the risk of brain cancer. (1). To avoid worldwide panic, the modern person should be better informed. First, cellphones are not high-powered radio transmitters. The power output of cellphones in the U.S. has been regulated by law to about the strength of a night-light or holiday LED decoration.(2). Second, as the doctor states, "the evidence about a cellphone-cancer link remains unclear." Third, other incriminating statements clearly point to heavy use (30 hours per month), if not extreme use (50 hours per month) of headside cellphone use.(3)(4). <br /><br />On the flip side is that radio waves are in use to cure cancer.(5)(6)(7)(8)(9). Thus, there is a certain irony that radio waves both cause and cure cancer. <br /><br />Another problem with modern living cancer scares is confusion over the causative agent. Uninformed people confuse radio and microwave energy with nuclear radiation. See (10)(11) but compare (12). Radio waves are part of the electromagnetic spectrum of radiation. See e.g., (13). The danger, however, is not in the length of the wave as asserted by some, (14), but rather in the amount of energy received by the body. See e.g.,(15). <br /><br />Cooks and electricians can vouch for the danger of heat and electrical sources, see e.g.,(16), neither of which we think of as "radiation" per se, but both of which are also part of the electromagnetic spectrum of radiation, heat as infrared radiation, and electricity as beta radiation, (15). Radio waves, such as emitted by cellphones, have the lowest energy, (13), although there are conflicting reports that even AM transmitting towers are dangerous to children, (17)(18). Another popular thought, albeit somewhat discredited, is that high-voltage transmission towers also cause cancer.(19). <br /><br />The actual danger, as this former medical technician, then nuclear engineer now patent attorney is well-aware, is in whether the energy is enough to harm the DNA or RNA in the nucleus of the cells of the body.(20). If you can, in a prolonged exposure, fry an egg on a hot sidewalk, think of what happens to our brains next to a continuous stream of many hours electromagnetic radiation. Consequently, the correct viewpoint is not that cellphones are dangerous, but that prolonged exposure is dangerous. <br /><br />The astute reader will realize, however, that our environment is awash in radiation in many forms. Besides cellphones, our homes, offices and outdoors are bathed in electromagnetic radiation from and to cellphones and to our AM and FM radios, televisions, from satellite broadcasts such as XM, Sirius and GPS signals. <br /><br />Another ignored cancer risk is high-altitude living as well as traveling by air. As stated by one Stanford University authority, "[b]ackground radiation exposure for a person living in a brick house in Denver, Colorado is approximately three times larger than the exposure of a person living in a wooden home in Palo Alto, California."(21). Frequent flyers, who tend to double-dip as cellphone-using bodies, might particularly be at risk, in that a mere two-hour flight doubles a person's daily radiation exposure.(22). At those levels, one cross-country flight is a week's worth of ground-level radiation. <br /><br />In summary, do not believe everything the sound bite harps on, but in a society that purports to care for its children, "people should take precautions, particularly for children."(1). <br /><br />For more information, the EMFacts Consultancy, founded in 1994 by Don Maisch, has produced a wide range of reports and papers dealing with various health issues related to human exposure to Electromagnetic Radiation.(23).<br /><br /><br /><br /><br />(1) Prominent Cancer Doctor Warns About Cellphones, The New York Times, Tat Parker, 7/24/2008, http://well.blogs.nytimes.com/2008/07/24/prominent-cancer-doctor-warns-about-cellphones/.<br />(2) Information On Human Exposure To Radiofrequency Fields From Cellular and PCS Radio Transmitters, FCC, Office of Engineering and Technology, last reviewed/updated 12/11/08, http://www.fcc.gov/oet/rfsafety/cellpcs.html. The regulations are posted at http://www.fcc.gov/oet/info/rules/part15/PART15_07-10-08.pdf.<br />(3) Comment 107, "2000 to 3000 minutes per month," http://well.blogs.nytimes.com/2008/07/24/prominent-cancer-doctor-warns-about-cellphones/?apage=5#comment-46525.<br />(4) Comment 108, thirteen years of heavy use, http://well.blogs.nytimes.com/2008/07/24/prominent-cancer-doctor-warns-about-cellphones/?apage=5#comment-46518<br />(5) Radio waves used to destroy cancer, http://www.rd.com/living-healthy/radio-waves-and-the-search-for-a-cancer-cure/article26497.html.<br />(6) Radio Waves Fire Up Nanotubes Embedded in Tumors, Destroying Liver Cancer , M. D. Anderson News Release 11/01/07, http://www.nanohealthalliance.org/news-items/radio-waves-fire-up-nanotubes-embedded-in-tumors-destroying-liver-cancer.<br />(7) Patient Becomes Unlikely Inventor Of Cancer-Fighting Technology, David Templeton, Pittsburgh Post-Gazette, 9/3/2007, http://www.wbko.com/news/headlines/9554822.html.<br />(8) The Kanzius Machine: A Cancer Cure? CBS News, 7/20/2008, http://www.cbsnews.com/stories/2008/04/10/60minutes/main4006951.shtml. <br />(9) Combination Of Radio Waves With Pharmacologically Active Substances, United States Patent Application 20070184020 A1, http://www.freepatentsonline.com/70184020.html.<br />(10) Comment 4, http://well.blogs.nytimes.com/2008/07/24/prominent-cancer-doctor-warns-about-cellphones/?apage=1#comment-46594.<br />(11) Comment 36, http://well.blogs.nytimes.com/2008/07/24/prominent-cancer-doctor-warns-about-cellphones/?apage=2#comment-46597.<br />(12) Comment 14, http://well.blogs.nytimes.com/2008/07/24/prominent-cancer-doctor-warns-about-cellphones/?apage=1#comment-46582<br />(13) http://en.wikipedia.org/wiki/Electromagnetic_spectrum<br />(14) Comment 18, http://well.blogs.nytimes.com/2008/07/24/prominent-cancer-doctor-warns-about-cellphones/?apage=1#comment-46574.<br />(15) http://en.wikipedia.org/wiki/Radiation<br />(16) http://en.wikipedia.org/wiki/Electric_shock<br />(17) Radio-frequency radiation exposure from AM radio transmitters and childhood leukemia and brain cancer, Am J Epidemiol. 2007 Aug 1;166(3):270-9. Epub 2007 Jun 7. http://www.ncbi.nlm.nih.gov/pubmed/17556764. "Brain cancer and infantile cancer were not associated with AM RFR."<br />(18) AM Towers Fingered as Cancer Cause, Radio World, Randy J. Stine, 11/21/2007, http://www.rwonline.com/pages/s.0052/t.9812.html.<br />(19) Exposure to power-frequency magnetic fields and the risk of childhood cancer. UK Childhood Cancer Study Investigators, Lancet. 1999 Dec 4;354(9194):1918-9, http://www.ncbi.nlm.nih.gov/pubmed/10622294, "This study provides no evidence that exposure to magnetic fields associated with the electricity supply in the UK increases risks for childhood leukaemia, cancers of the central nervous system, or any other childhood cancer."<br />(20) http://en.wikipedia.org/wiki/Ionizing_radiation <br />(21) Radiation, Stanford University National Accelerator Laboratory, Last update: 10/31/2008, http://www2.slac.stanford.edu/vvc/theory/radiation.html<br />(22) Natural Radiation Hazard at Aircraft Altitudes, NOAA / Space Weather Prediction Center, Updated: October 1, 2007, http://www.swpc.noaa.gov/info/RadHaz.html.<br />(23) EMF Health-effect Research, Don Maisch, http://electricwords.emfacts.com/index-epi.htmlGerald R. Prettyman, Esq.http://www.blogger.com/profile/00554110399186276690noreply@blogger.com0