chapter 4 torts, intellectual property and cyber torts

Chapter 4Torts, Intellectual

Property and Cyber Torts

Chapter 4Torts, Intellectual

Property and Cyber Torts

What is a tort?What is the purpose of tort law? What are

the two basic categories of torts?What are the four elements of negligence?What is intellectual property?What steps have been taken to protect

intellectual property rights in the digital age?

What is a tort?What is the purpose of tort law? What are

the two basic categories of torts?What are the four elements of negligence?What is intellectual property?What steps have been taken to protect

intellectual property rights in the digital age?

Learning ObjectivesLearning ObjectivesLearning ObjectivesLearning Objectives

Tort LawTort Law A tort is a civil, legal injury to a person

or property caused by a breach of a legal duty.

Plaintiff (the injured party) sues the Defendant (the Tortfeasor) for damages.

Three Torts: IntentionalUnintentional (negligence-no fault)Strict Liability (absolute liability)

A tort is a civil, legal injury to a person or property caused by a breach of a legal duty.

Plaintiff (the injured party) sues the Defendant (the Tortfeasor) for damages.

Three Torts: IntentionalUnintentional (negligence-no fault)Strict Liability (absolute liability)

Intentional Torts Against Persons


Assault and BatteryAssault: the reasonable apprehension or fear of

immediate contactBattery: completion (contact) of the assault.Defenses:

• Consent

• Self-Defense and Others

• Defense of Property

Assault and BatteryAssault: the reasonable apprehension or fear of

immediate contactBattery: completion (contact) of the assault.Defenses:

• Consent

• Self-Defense and Others

• Defense of Property

False ImprisonmentConfinement or restraint of another person’s

activities without justification.Merchants can detain a suspected shoplifter as

long as there is probable cause.

Infliction of Emotional DistressExtreme and outrageous conduct.Some courts require physical symptoms.

False ImprisonmentConfinement or restraint of another person’s

activities without justification.Merchants can detain a suspected shoplifter as

long as there is probable cause.

Infliction of Emotional DistressExtreme and outrageous conduct.Some courts require physical symptoms.



DefamationPublication of a false statement (oral or written)

that injures a person’s good reputation.• Publication: third party must hear or see statement• Statements made on the internet may be actionable.• An individual who re-publishes the statement will be

liable.Statement must hold someone up to contempt,

ridicule or hatred in the community.

DefamationPublication of a false statement (oral or written)

that injures a person’s good reputation.• Publication: third party must hear or see statement• Statements made on the internet may be actionable.• An individual who re-publishes the statement will be

liable.Statement must hold someone up to contempt,

ridicule or hatred in the community.



Defamation (cont’d)Slander per se (no proof of damages is

required):• Loathsome communicable disease• Professional impropriety• Imprisonment for a serious crime• Unmarried woman is unchaste

Defamation (cont’d)Slander per se (no proof of damages is

required):• Loathsome communicable disease• Professional impropriety• Imprisonment for a serious crime• Unmarried woman is unchaste



Defamation (cont’d)Defenses:

• Truth is normally an absolute defense• Statement was Privileged:

– Absolute: judicial and legislative proceedings

– Qualified: good faith, limited.

• Public Figures: plaintiff must show statement made with “actual malice.”

Defamation (cont’d)Defenses:

• Truth is normally an absolute defense• Statement was Privileged:

– Absolute: judicial and legislative proceedings

– Qualified: good faith, limited.

• Public Figures: plaintiff must show statement made with “actual malice.”



Invasion of the Right to PrivacyPerson has the right to solitude. Breach

of that duty is a tort.Appropriation False LightPublic Disclosure of Private FactsRights of Internet users?

Invasion of the Right to PrivacyPerson has the right to solitude. Breach

of that duty is a tort.Appropriation False LightPublic Disclosure of Private FactsRights of Internet users?



Misrepresentation (Fraud)Intentionally deceive another to believe in a

condition that is different from the condition that already exists.

• Knowing misrepresentation of fact.

• Intent to induce innocent party to rely

• Justifiable reliance by innocent party

• Causation and Damages.

Contrast: “puffery” or statements of opinion.

Misrepresentation (Fraud)Intentionally deceive another to believe in a

condition that is different from the condition that already exists.

• Knowing misrepresentation of fact.

• Intent to induce innocent party to rely

• Justifiable reliance by innocent party

• Causation and Damages.

Contrast: “puffery” or statements of opinion.



Wrongful Interference with ContractsValid, enforceable contract exists

between two partiesThird party knows about contractThird party intentionally causes either

party to breach the original contract.

Wrongful Interference with ContractsValid, enforceable contract exists

between two partiesThird party knows about contractThird party intentionally causes either

party to breach the original contract.



Wrongful Interference with Business RelationshipDistinguish competition vs. predatory behavior.

Predatory behavior is unlawfully driving competitors out of market.

To prevail, Plaintiff must show Defendant targeted only Plaintiff’s customers and product.

Defenses to Wrongful Interference: Interference was justified or permissible.

Wrongful Interference with Business RelationshipDistinguish competition vs. predatory behavior.

Predatory behavior is unlawfully driving competitors out of market.

To prevail, Plaintiff must show Defendant targeted only Plaintiff’s customers and product.

Defenses to Wrongful Interference: Interference was justified or permissible.



Trespass to LandTrespass to Personal PropertyConversionDisparagement of Property

Slander of QualitySlander of Title

Trespass to LandTrespass to Personal PropertyConversionDisparagement of Property

Slander of QualitySlander of Title

Intentional Torts Against Property

Intentional Torts Against Property

Unintentional Torts (Negligence)

Unintentional Torts (Negligence)

Occurs when someone suffers injury because of the defendant’s failure to comply with a legal duty.

Defendant (tortfeasor) creates foreseeable risk of injury.

If no risk is created, there is no negligence.

Occurs when someone suffers injury because of the defendant’s failure to comply with a legal duty.

Defendant (tortfeasor) creates foreseeable risk of injury.

If no risk is created, there is no negligence.

Negligence--Analysis Negligence--Analysis

Did the Defendant owe the Plaintiff a legal duty of care?

Did the Defendant breach that duty?Did the Plaintiff suffer a legal

injury?Did the Defendant’s breach of duty

cause the Plaintiff’s injury?

Did the Defendant owe the Plaintiff a legal duty of care?

Did the Defendant breach that duty?Did the Plaintiff suffer a legal

injury?Did the Defendant’s breach of duty

cause the Plaintiff’s injury?

NegligenceNegligence

Duty of Care and BreachDuty is based on reasonable person standard. How would a reasonable person have acted

under the circumstances?Duty of Landowners to business invitees and

tenants to keep common areas safe.Duty of Professionals to clients (attorneys,

CPA’s, doctors)

Duty of Care and BreachDuty is based on reasonable person standard. How would a reasonable person have acted

under the circumstances?Duty of Landowners to business invitees and

tenants to keep common areas safe.Duty of Professionals to clients (attorneys,

CPA’s, doctors)


Injury Requirement and DamagesPlaintiff must suffer a legally recognizable

injury.Not all injuries can be compensated.

CausationCausation in Fact (“but for” test)Proximate Cause (foreseeably strong

connection)Palsgraf (1928)

Injury Requirement and DamagesPlaintiff must suffer a legally recognizable

injury.Not all injuries can be compensated.

CausationCausation in Fact (“but for” test)Proximate Cause (foreseeably strong

connection)Palsgraf (1928)


DefensesAssumption of the RiskSuperseding Intervening Cause

• Event must be unforeseeableContributory Negligence (few jurisdictions)

• Plaintiff recovers nothing if he is at fault.Comparative Negligence (more common)

• As long as Plaintiff is less than 50% at fault he can recover a pro-rata share of the verdict.

DefensesAssumption of the RiskSuperseding Intervening Cause

• Event must be unforeseeableContributory Negligence (few jurisdictions)

• Plaintiff recovers nothing if he is at fault.Comparative Negligence (more common)

• As long as Plaintiff is less than 50% at fault he can recover a pro-rata share of the verdict.

Strict LiabilityStrict Liability

Does not require fault, intent or breach of duty.

Usually involves ‘abnormally dangerous’ activities and risk cannot be prevented.

Dangerous Animals.Product Liability—manufacturers and

sellers of harmful or defective products.

Does not require fault, intent or breach of duty.

Usually involves ‘abnormally dangerous’ activities and risk cannot be prevented.

Dangerous Animals.Product Liability—manufacturers and

sellers of harmful or defective products.

Cyber TortsCyber Torts

Can a person be liable for a tort committed in cyberspace?

Should an Internet Service Provider (ISP) be liable for the actions of its subscriber?

Who should be liable for “spam” and computer viruses that cause injury?

Can a person be liable for a tort committed in cyberspace?

Should an Internet Service Provider (ISP) be liable for the actions of its subscriber?

Who should be liable for “spam” and computer viruses that cause injury?

Intellectual PropertyIntellectual Property Intellectual Property (I.P.) is any property

that is the product of an individual’s mind, e.g, books, software, movies, music.

U.S. Constitution protects I.P. in Article I Section 8. Congress shall “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.”

Ownership of I.P. is strategically important in the global economy.

Intellectual Property (I.P.) is any property that is the product of an individual’s mind, e.g, books, software, movies, music.

U.S. Constitution protects I.P. in Article I Section 8. Congress shall “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.”

Ownership of I.P. is strategically important in the global economy.

Trademarks & Related Property


TrademarkDistinctive motto, mark or emblemStamped or affixed to a productSo that it can be identified in the market.

Statutory Protection for TrademarksFederal Lanham Act of 1946Federal Trademark Dilution Act of 1995

TrademarkDistinctive motto, mark or emblemStamped or affixed to a productSo that it can be identified in the market.

Statutory Protection for TrademarksFederal Lanham Act of 1946Federal Trademark Dilution Act of 1995



Trademark RegistrationU.S. Patent and Trademark Office

www.uspto.gov gives notice to 3rd parties.A mark can be registered if in use or mark will

be used within 6 months. Trademark Infringement

Unintentional or intentional substantial copying of mark.

Strong marks vs. generic terms.

Trademark RegistrationU.S. Patent and Trademark Office

www.uspto.gov gives notice to 3rd parties.A mark can be registered if in use or mark will

be used within 6 months. Trademark Infringement

Unintentional or intentional substantial copying of mark.

Strong marks vs. generic terms.

http://www.uspto.gov/

http://www.uspto.gov/



Service MarkSimilar to trademark but used for services. Includes characters in TV and radio.

Trade NamesApplies to a business (not a product).

Trade Dress Image and appearance of a product or shop

(Example: Starbucks coffee stores)

Service MarkSimilar to trademark but used for services. Includes characters in TV and radio.

Trade NamesApplies to a business (not a product).

Trade Dress Image and appearance of a product or shop

(Example: Starbucks coffee stores)

Cyber MarksCyber Marks

Trademarks in Cyberspace Domain Names

Trademarks in Cyberspace (example: Nike.com)Conflicts—ICANN

Cybersquatting Occurs when 3d party registers a domain name

that is the same or similar to another company’s own trade name.

1999 Anticybersquatting Consumer Protection Act

Trademarks in Cyberspace Domain Names

Trademarks in Cyberspace (example: Nike.com)Conflicts—ICANN

Cybersquatting Occurs when 3d party registers a domain name

that is the same or similar to another company’s own trade name.

1999 Anticybersquatting Consumer Protection Act

Cyber MarksCyber Marks

Meta TagsKeywords in web pages used by internet

search engines.Playboy vs. Calvin Designer Label

Online Trademark DilutionTrademarks can be diluted on the web.Hasbro v. IEG (over candyland.com)

Meta TagsKeywords in web pages used by internet

search engines.Playboy vs. Calvin Designer Label

Online Trademark DilutionTrademarks can be diluted on the web.Hasbro v. IEG (over candyland.com)

PatentsPatents

PatentA Government monopoly thatGives inventor the exclusive right toMake, use or sell and invention for 20 years.

Patents for: InventionDesignProcess (software patent)

PatentA Government monopoly thatGives inventor the exclusive right toMake, use or sell and invention for 20 years.

Patents for: InventionDesignProcess (software patent)

PatentsPatents

InfringementManufacture, use or sale of another’s product

or design without permission (license).

Business Process Patents1998 State Street Bank v. Signature Financial

ruled that a method of doing business could be patented.

Amazon.com’s “one-click” patent.

InfringementManufacture, use or sale of another’s product

or design without permission (license).

Business Process Patents1998 State Street Bank v. Signature Financial

ruled that a method of doing business could be patented.

Amazon.com’s “one-click” patent.

CopyrightsCopyrights

Copyright:Intangible property right granted by federal

statute to the author for life plus 70 years.Automatic protection.Work must be original and “fixed in a durable

medium.” Ideas are not protected, but the expression of an idea is.

Copyright:Intangible property right granted by federal

statute to the author for life plus 70 years.Automatic protection.Work must be original and “fixed in a durable

medium.” Ideas are not protected, but the expression of an idea is.

CopyrightsCopyrights

InfringementForm or expression is copied (does not have to

be in its entirety)Penalties, damages and criminal action are

possible. Exception: “Fair Use”

Certain persons or organization can copy materials without penalty (e.g., education, news, research)

InfringementForm or expression is copied (does not have to

be in its entirety)Penalties, damages and criminal action are

possible. Exception: “Fair Use”

Certain persons or organization can copy materials without penalty (e.g., education, news, research)

Copyrights in Digital Information

Copyrights in Digital Information

Digital media can easily be copied. Copyright Act of 1976

Copy of a program into RAM is infringement.Revision or re-sale of freelance authors works

can be infringement. NY Times v. Tasini (2001).

MP3 and File-Sharing.Napster case.

Digital media can easily be copied. Copyright Act of 1976

Copy of a program into RAM is infringement.Revision or re-sale of freelance authors works

can be infringement. NY Times v. Tasini (2001).

MP3 and File-Sharing.Napster case.

Trade SecretsTrade Secrets Trade secrets are confidential, not filed

with the government. Can be customer lists, formulas, pricing,

etc. Theft of trade secrets is now a federal

crime under the Economic Espionage Act of 1996.

Cyberspace: employees can easily email information to competitors.

Trade secrets are confidential, not filed with the government.

Can be customer lists, formulas, pricing, etc.

Theft of trade secrets is now a federal crime under the Economic Espionage Act of 1996.

Cyberspace: employees can easily email information to competitors.

LicensingLicensing

Allows a third party to lawfully use a patent, trademark, copyright or trade secret.

The licensee pays the licensor (the owner of the IP) a fee for use.

U.C.I.T.A. is a uniform code that licenses the use of software.

Allows a third party to lawfully use a patent, trademark, copyright or trade secret.

The licensee pays the licensor (the owner of the IP) a fee for use.

U.C.I.T.A. is a uniform code that licenses the use of software.

chapter 4 torts, intellectual property and cyber torts

Documents

unchasteintentional

basic categories of

injured party

partiesthird party

contractthird party

personswrongful interference

intellectual property

false statement oral