Transcript

Brett Tabke: This is Brett Tabke Tabke. We are back here today with Deborah Wilcox of Baker Hostetler in Cleveland. Lead Attorney, what is your title?

Deborah Wilcox: I head upright intellectual property litigation practice, and my focus is on the copyright and trademark side of things and I have a partner who co-chairs it with me, who handles patent litigation.

Brett Tabke: Ok. so your main focus is on copyright and trademarks.

Deborah Wilcox: Correct.

Brett Tabke: Which there is just a whole barrel of monkeys we can get into about the Internet.

Deborah Wilcox: Yes.

Brett Tabke: Probably the biggest case going on right now is the YouTube case, uh. What are your thoughts on that?

Deborah Wilcox: Well it is an interesting case. You saw a lot of different plaintiffs jump on the bandwagon to sue YouTube and Google over the copyright infringements, and of course there are many materials that are copyrighted and are protected under the copyright laws and that you find unauthorized distribution of on YouTube and other kind of sites like that and it's a big issue for rights owners because they want to control the distribution of their materials, uh so I wasn't surprised to see the lawsuits, but I do know that Google has the takedown policy. At YouTube as well and that they will work with the rights owners when you identify a problem to remove the material.

Brett Tabke: So you think Google does qualify for safe harbor under the DMCA act?

Deborah Wilcox: uh, I think so. The problem is that it is such an immense problem basically. There was so many different copyright owners having so many of their materials being infringed. An infringement means an unauthorized distribution or copy, and sometimes there could be a defense that there was just a snipit that was taken and it's a fair use, but you are seeing wholesale copying going on, and the medium is very popular so when there is a demand there will be a supply of this kind of unauthorized activity.

Brett Tabke: I guess that is the crux of the situation for me is, is Google an ISP and is YouTube an ISP or are they merely a distribution service, um?

Deborah Wilcox: Well, I think they qualify for the ISP's. This is just my personal opinion, but there is a similar case that has been pending for a while too, against eBay because they have you know hundreds of thousands of millions of auctions going on, and a lot of the auctions are for a product that might be counterfeit, and eBay takes a share of the profits in any given auction and Tiffany has sued eBay thinking that that's an unlawful activity on the part of eBay facilitating this kind of counterfeiting that is going on and profiting from it, but again eBay will comply with takedown notices and will shut down an auction when you give proper information to eBay, and it works very efficiently. The problem is for someone like Tiffany, they have literally hundreds of auctions going on at any given time and they could constantly keep feeding these notices. So their position is that eBay should do something about it. It's a tough one because under the law it seems like the eBay's and the YouTube's and the Google's of the world have generally complied with the copyright and trademark laws.

Brett Tabke: Do you think the courts today have become technologically savvy enough to be able to understand the distinctions we are talking about here? We are talking fine razor thin lines of distinction with what is going on.

Deborah Wilcox: Well there are certain judges who are up to date on technology. They can't know everything that some of us specialists are just looking at, the search engine world for example, um know so much about by following it day in and day out. Keep in mind that a judge has a huge criminal docket, and when they get these kinds of cases they are usually very excited because it is something other than the norm, but there is a learning curve and it is up to the lawyers and the experts and up to the parties to educate the judge as to what is going on in their position and that's why these cases can be expensive and time consuming because you can't expect a judge to understand all of this just in an instant, and if anything is worth litigating over that generally means there is some kind of dispute on the other side of it and you can have you know, a worthy adversary presenting things in a different light, so it really takes some work on the part of the judges to get involved. Some judges don't even like to use email or don't trust anything electronic, um maybe that have been around for a long time and it's a new generation of business and everything that needs to really be explained very much in detail, but yet not so detailed that you lose the forest or the trees.

[pause]

Deborah Wilcox: The law can't keep up with the technology, um any given case, even in federal court they usually go a little bit more quickly than at state court and most IP cases are in federal court. You will have a year to a year and a half to two years, from filing of the complaint to getting through to a verdict and then often there is an appeal, and so that can take another couple of years. So any given case can take five or six or seven years to get through to maybe a definitive decision, at which time technology has completely changed and when the courts were talking about meta tags you know being the hidden language that you know consumers are being duped by, well that's sort of all changed now, but they still in today's rulings look back at meta tags and if you use the word meta tag, um you might have a better chance at prevailing at your case because there is some case law saying that you can't use someone elses trademark as your meta tag.

Brett Tabke: Right.

Deborah Wilcox: But, you know, and the consumer perception out there it is very hard to measure. You can hire an expert to see if someone feels like they are being duped or not, by looking at an advertisement in a certain way that has a certain trademark in it and a lot of research needs to be done to see what does the average consumer think when they see these things. Does it really support a trademark infringement case. Are people likely to be confused and those kind of issues take a lot of work and a lot of energy to develop. Those facts are critical to any of these cases.

Brett Tabke: Uh huh. Ok, well very good. Um, what's the top thing to know about what's going on at PPC these days with uh,

Deborah Wilcox: Well, uh and the law is all over the place as you might expect in this area, um for example buying a keyword that is someone's trademark is litigated day in and day out. American Airlines just filed a lawsuit last week against Google. Same issues that we have seen before, saying they shouldn't be selling the American Airlines trademark to my competitor's, um and uh the courts are kind of all over the board with that. A lot of times I think it's important if you see an issue that a competitor, you think has crossed the line using your trademark in any way, keyword buying, in the text, you need to take a look at that and again see if you think consumers are likely to be confused, and if so deal with the competitor. Um and you can use the Google policies and the Ask and MSN policies for whether or not they permit keyword buying by competitors. You know Google does, but you can't use the trademark in the title and the text, and Yahoo and some of the others say competitors can't buy it and you have to show there is a competitor. Use those measures to help, but I think it's really a huge burden to take on a lawsuit against one of the search engines. You know they provide a valuable service to a large degree, but they profit from what some people view as trademark infringement, but I think if you think there is a problem with your competitor, you have to deal with the competitor too and then decide if you want to take on the search engines as well.

Brett Tabke: Right. Well, we are just about out of time. I want to thank you for being with us.

Deborah Wilcox: Okay. Thank you very much.

Brett Tabke: Thank you.

Deborah Wilcox: Nice to see you.

Brett Tabke: That was great.