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INFORMATION & RESOURCES FOR FREE EXPRESSION
Legal Jargon & Terminology
- See also Wex, a collaborative public-access law dictionary from Cornell Law School and the Legal Information Institute.
- 15 USC § --
- 15 U.S.C. refers to the U.S. trademark laws, which are found in Title 15 Chapter 22 of the United States Code.
- 17 USC § --
- 17 U.S.C. refers to the U.S. copyright laws, which are found in Title 17 of the United States Code.
- affirmative defense
- A legal argument that the conduct is permissible. Affirmative defenses may be rights such as fair use (in copyright), but procedurally they are treated as defenses, meaning the issue is only raised in response to a complaint. If a lawsuit has actually been filed, affirmative defenses must be raised in the first response (the "answer") to the complaint, or else they are waived. Common affirmative defenses in copyright and trademark law include fair use, genericness, abandonment, or other First Amendment defenses.
- answer
- In litigation, an "answer" is the defendant's response to the initial "complaint" filed by the plaintiff. If the defendant does not answer the complaint, then the court may (and likely will) hold the allegations to be true, and render a judgment for the plaintiff.
- Anticybersquatting Consumer Protection Act (ACPA)
- 5 USC §§ 1125(d) and 1117 (1999). The ACPA was enacted to protect trademark owners from third parties ("cybersquatters") who register a trademark as a domain name, with the intent to use it in commerce to trick customers to coming to the website by accident, or to sell it to the trademark owner at an above-market price.
- arbitrary or fanciful
- "Arbitrary" or "fanciful" refers to a type of trademark, with a made-up (fanciful) term, or a term that doesn't logically apply to the trademarked good. For instance, "Apple" computers is an arbitrary use of the word apple to describe computers. "Xerox" is a fanciful (made-up) term for photocopiers. Arbitrary and fanciful terms are the most inherently distinctive classifications on the spectrum of distinctiveness, and therefore are automatically protected as trademarks.
- assignment
- The practice of assigning one or more legal rights or obligations to somebody else. In copyright law, for instance, original creators may assign their rights to a publisher or record producer.
- cause confusion
- If this phrase shows up in a cease and desist letter, it probably means that the sender is making a trademark claim, arguing that your work will confuse consumers as to the source of your product or work.
- Circuit Courts of Appeals
- The intermediate level of U.S. courts, which hear appeals of trial court decisions. The U.S. Courts of Appeals are divided into 12 regional circuits plus the "Federal Circuit". Decisions from Circuit Courts (also called Federal Appellate Courts) are precedential for that Circuit, and may be influential in other Circuits as well.
- commerciality of use
- In copyright law, as distinguished from "nonprofit educational", or setting forth a continuum of uses. 17 U.S.C. §107.
- comparative advertising
- Use of a competitor's trademark in comparative advertising is permitted as a trademark fair use.
- complaint
- The formal legal document filed in court to begin a lawsuit. The complaint is considered part of the pleadings.
- confusingly similar
- A term from trademark law, meaning that one mark is similar enough to another that it might confuse a consumer.
- confusion, actual
- "Actual confusion" means that a real customer was in fact confused about the source of goods or products, because of a use of a trademark. If a trademark holder can show actual confusion, that is strongly suggestive that the use of the mark is confusing, and potentially infringing.
- conjure up test
- A test that courts use in copyright cases about parodies. A parodist can copy at least as much of the original work as needed to "conjure up" the original in the mind of the audience.
- copyright
- The right to determine who may copy, distribute, or exercise other specifically authorized rights (such as performance, display, or preparation of derivative works) over a work of authorship such as a writing, musical score, or picture.
The legal regime by which copyrights are enforced. - Copyright Act
- In the U.S., the law which governs copyright. First passed in 1790. Currently codified in Title 17 of the United States Code.
- Copyright Clause
- Also known as the patent clause or the intellectual property clause. Article 1, Section 8, clause 8 of the U.S. Constitution, which states that
The Congress shall have Power ... 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.
- copyright management information
- Also known as "CMI". Defined in 17 U.S.C. § 1202(c) as the title and other information identifying the work; name and identifying information of the author or copyright holder; and for some types of works, the name and identifying information of performers, writers, and directors. Section 1202 prohibits removal or alteration of CMI, or provision of false CMI.
- copyright misuse
- A legal doctrine that prevents copyright holders from leveraging their copyright to allow them control of areas outside the copyright.
- copyrightable subject matter
- The kinds of works that may be copyrighted. Copyright protection subsists in "original works of authorship" that have been "fixed in any tangible medium of expression" includes literary, musical, dramatic, pictorial, graphic, sculptural, audiovisual, choreographic, and architectural works. Copyright does not extend to ideas, procedures, methods, and the like.
U.S. copyright law defines the subject matter of copyright in 17 U.S.C. § 102. - counternotice
- A response to a notice. The term is used in copyright law to describe a DMCA (Digital Millennium Copyright Act) § 512(g) counternotice, which may be filed in response to a DMCA § 512 takedown notice.
- Creative Commons
- An organization offering easy-to-use copyright licenses that encourage distribution of works, while preserving other copyright holder rights. It was founded in the belief that current copyright law in the U.S. is too restrictive and thus harms creative expression and the free exchange of information and ideas. Creative Commons licenses are available at CreativeCommons.org.
- criminal penalties
- Punishments that the state or federal government choose to impose on a criminal defendant. Distinguished from civil penalties, in which a plaintiff who feels wronged sues a civil defendant and seeks an injunction or damages. U.S. law provides criminal penalties of fines and/or imprisonment for copyright infringements of more than $1,000 worth of materials in a six-month period.
- cybersquatting
- A term used to describe someone who has purchased or uses a domain name that includes a trademark. The U.S. has passed the Anticybersquatting Consumer Protection Act (ACPA) and ICANN (the Internet Corporation for Assigned Names and Numbers) has developed the Uniform Dispute Resolution Process (UDRP) to handle claims of cybersquatting.
- damages
- Court-awarded payments of money. Damages can be "actual" or "statutory".
- damages, actual
- "Actual" damages means the losses that the plaintiff can prove she incurred, sometimes including costs of litigation or profits gained by the plaintiff.
- damages, statutory
- "Statutory" damages means a set amount established by law. In copyright law, statutory damages can range from $200 per infringement for an innocent infringement, to $750-$30,000 for an ordinary infringement, to $150,000 for a "willful" infringement.
- de minimis
- A legal doctrine that means the harm is so minimal, it is not worth the effort for a court to deal with it. In copyright law, the doctrine may be used where the amount of copying, for instance, is inconsequential or unrecognizable.
- derivative works right
- The derivative works right is one of the exclusive rights of the copyright holder as defined in 17 U.S.C. § 106. Section 101 defines derivative works as:
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
- descriptive
- In trademark law, "descriptive" is one of the categories of marks on the spectrum of distinctiveness. For instance, "New York Apple Company", if used to name a company that distributes apples from the State of New York, is a "descriptive" mark. "Descriptive" marks are inherently less source-identifying, and therefore are more subject to trademark fair use.
- Digital Millennium Copyright Act
- The Digital Millennium Copyright Act (or "DMCA") was passed by the U.S. Congress in 1998. It includes prohibitions against circumventing "technical protection measures", such as encryption, or distributing circumvention tools. (17 U.S.C. § 1201 et seq.) It also includes a "safe harbor" that protects ISPs from secondary copyright liability, so long as they "expeditiously" remove content or links to materials that a copyright owner claims infringe. (17 U.S.C. § 512.)
- dilution
- A concept in state and federal trademark law that allows holders of famous trademarks to prevent uses that might dilute the mark, by tarnishing or blurring its distinctiveness. Dilution goes beyond traditional trademark infringement to restrict uses even if there is no possibility of consumer confusion. However, federal dilution claims are limited to famous marks, and according to a recent Supreme Court decision, the trademark owner must show evidence of actual dilution, not merely potential dilution. (As of 2006, a bill currently before Congress would eliminate the "actual dilution" requirement.)
- discovery
- In U.S. litigation, discovery is the process of plaintiff and defendant requesting and sharing information relevant to the litigation with each other.
- distinctiveness
- How uniquely a mark identifies its source. If a term, phrase, or logo is very distinctive, its use as a mark makes the source of that good readily distinguishable by a consumer. The more distinctive a mark, therefore, the greater the level of protection it receives against confusing uses.
- distribution right
- In copyright, the distribution right is one of the exclusive rights of the copyright holder (17 U.S.C. § 106), but the right is only to control first distribution, and is limited by 17 U.S.C. § 109), the "first sale" doctrine.
- enjoin
- To order someone to stop doing something. See "injunction".
- exhaustion
- In copyright, patent, and trademark law, the "exhaustion" doctrine means that after the rightsholder has sold the good, she has "exhausted" her rights to control its distribution. In U.S. copyright law, the doctrine is called the "first sale" doctrine.
- fair dealing
- An element of copyright law in British Commonwealth countries, roughly analogous to "fair use" in the United States, but narrower in scope.
- fair use
- The name of separate doctrines in both copyright and trademark law that protect uses, without permission from the rightsholder, of trademarks or copyrighted information.
- fair use doctrine (copyright)
- A test that looks at four nonexclusive factors to assess whether an alleged copyright infringement is actually considered to be a legally permissible "fair use", or not. Learn more: Fair Use of Copyrighted Works.
- fair use doctrine (trademark)
- A test that considers whether an alleged trademark infringement is actually considered to be a legally permissible "fair use", or not. Learn more: "Fair Use" and Free Expression Defenses in Trademark Law
- famous marks
- Marks that are "famous" receive additional protections, over and above trademark law; they are also protected from "dilution". Courts examine several factors to determine whether a mark is famous, including duration and extent of use and advertising of the mark; geographic area in which the mark was used; distinctiveness of the mark; recognition of the mark; channels of trade; use of the mark by third parties; and federal registration.
- First Amendment (to the US Constitution)
- The First Amendment to the U.S. Constitution is part of the "Bill of Rights", and it protects freedom of religion, freedom of speech and press, freedom of assembly, and freedom to petition the government.
The First Amendment is the principal protection for free expression in the United States. It is the underpinning of many doctrines in other areas of law, such as the fair use doctrine in copyright law.Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
- First Sale Doctrine
- Related to "exhaustion doctrines", the First Sale Doctrine is a provision in copyright law that limits the control copyright holders can exert over a copy of a work, once they have sold it for the first time. Encoded in 17 U.S.C. § 109.
- generic
- In trademark law, "generic" is a classification on the spectrum of distinctiveness. A generic mark is one that does not identify the source of the product, but the product itself. Generic marks may not be registered as trademarks, and registered marks may be cancelled if they become generic ("genericide").
- genericide
- Cancellation of, or recognition by a court, that a mark is generic and no longer serves to identify a source of a product, and therefore cannot be protected as a trademark.
- i.e.
- Abbreviation meaning "in other words".
- ICANN
- The Internet Corporation for Assigned Names and Numbers. The organization that develops the naming systems and procedures for acquiring domain names and IP addresses. See icann.org.
- idea-expression dichotomy
- Defines what may be copyrighted (expression of particular ideas) and what may not be copyrighted (the ideas themselves, or facts).
- injunction
- An order from a court prohibiting a party from doing something.
- ISP
- "Internet Service Provider". Sometimes used synonymously with the term "OSP", or "Online Service Provider". In the DMCA Safe Harbor provisions (17 U.S.C. § 512), Congress used the term "Online Service Provider", distinguishing between providers of Internet access, search engines, hosting services, and other services.
- joint authorship
- In copyright, a term meaning that two or more creators are the legal "authors". Each joint author has a full copyright over the work, and the work stays copyrighted until seventy years after the death of the last author.
- Lanham Act
- The name of the trademark statute. Found in 15 USC §§ 1051 et seq. Sometimes referred to as Section 43, after the numbering in the Act as passed by Congress.
- legal advice
- "Legal advice" means advice from a lawyer, to a client, in a lawyer-client relationship. Legal advice is tailored and particular to that client and her situation. It is distinguished from general "legal information", which is basic information about the law or legal doctrines, but is not tailored to the client's situation. Offering legal advice constitutes the practice of law, which must be licensed on a state-by-state basis.
- likelihood of confusion
- The probability that a consumer would be confused about the source or origin of particular marked goods, due to a similarity between the mark on the goods and a different trademark.
- mark
- Shorthand term referencing trademarks, service marks, collective marks, and certification marks. Lanham Act § 45; 15 USC § 1127.
- Ninth Circuit
- One of the United States' "Circuit Courts of Appeals". The Ninth Circuit is a particularly influential circuit for copyright and trademark law, since it hears many copyright and trademark cases coming from the LA entertainment industry and the Silicon Valley computer industry.
- open source
- A type of software in which the code is available for perusal, copying, and modification, notwithstanding the copyright status of the software.
- opposition
- A procedure in the U.S. Patent & Trademark Office that allows interested people or organizations to oppose the registration of a mark.
- P.L.
- Acronym for "Public Law" or "Public Laws". Refers to a specific law or act passed by the U.S. Congress. The P.L. is arranged chronologically. Laws are then organized and "codified" by subject and placed into the U.S.C. (United States Code).
- parody / parodies
- In copyright, parody is distinguished from satire. Typically a "fair use", but may depend on the amount copied, and the amount of parodic expression relative to the amount copied. (See Campbell v. Acuff-Rose Music; "conjure up" test.)
In trademark law, parody is generally protected by First Amendment or "fair use" exceptions, but may depend on whether or not bad faith or intent to confuse is involved, or whether more of the mark was taken or used than necessary. - piracy
- A rhetorical term referring, usually, to infringement of copyrighted works or trademarked goods. Originally used to describe large-scale commercial distribution of unauthorized goods, the term has been used by the copyright industry as a generic term for copyright infringement
- pleadings
- The set of documents submitted to a court in the beginning stages of litigation.
- PTO
- The U.S. Patent & Trademark Office, which handles applications for patents and trademarks.
- public domain
- Works are in the public domain when their copyright term has expired; they are then freely available for use by anybody. Works may be dedicated to the public domain by their copyright-holder; for instance, the U.S. government has determined that all of its works are in the public domain.
- registration
- In U.S. copyright law, refers to the registration of a copyrighted work with the U.S. Copyright Office. Registration is not required for a work to be "copyrighted", but it is required before the copyright holder can file a lawsuit claiming infringement of the work. Registration within three months of publication or prior to infringement also provides the rightsholder the possibility of statutory damages for infringement.
In trademark law, registration refers to the registration of a mark with the U.S. Patent & Trademark Office, or with a state trademark registration office. Registration of trademarks provides certain presumptions of validity of the mark and access to statutory damages if the mark is infringed. - remand
- Send a case back to the lower court. Generally, the appellate court has issued a decision on a particular point of law, and remands the case to the lower court for reconsideration in light of the appellate court's opinion.
- rights enforcement company
- Companies whose business is to seek out and initiate enforcement of copyrights or other rights against alleged infringers. In the early 21st century, numerous agencies such as GrayZone, MediaForce, and others, work for entertainment and software industries seeking infringements on "warez" sites and peer-to-peer networks.
- rightsholder
- Someone who "holds" or "owns" a right to do something; for instance, a trademark holder or a copyright holder.
- safe harbor
- A protection ("safe harbor") from legal liability that might otherwise exist. The DMCA Section 512 (17 U.S.C. § 512) provides a conditional safe harbor from secondary copyright liability for ISPs who take down their users' allegedly infringing content on notice and request by copyright owners. Section 230 (47 USC § 230) provides an absolute safe harbor for ISPs from publisher liability for actions such as defamation.
- Second Circuit
- One of the United States' "Circuit Courts of Appeals". The Second Circuit is sometimes colloquially described as the "Copyright Circuit", since it handles many copyright cases arising out of New York's major publishing and entertainment industries.
- secondary liability
- The legal concept that someone might be liable for another person's wrongdoing, even if they, themselves, did nothing wrong. Secondary liability is generally based on the relationship between the wrongdoer and the secondarily liable party. In copyright law, there are two main types of secondary liability: contributory infringement and vicarious liability.
- suggestive
- In trademark law, "suggestive" is a classification on the spectrum of distinctiveness. A "suggestive" mark is inherently distinctive and therefore automatically protected by the law because it "naturally ... identif[y] a particular source of a product". (Two Pesos at 768.)
- terms of service
- Also known as "TOS", "terms of use", "TOU". The terms of service are the agreement by which one entity performs services for another; for example, the terms under which an ISP provides service to its customers. ISPs frequently reserve the right in their TOS to cancel service if any violation of the TOS occurs.
- thin copyright
- A thin copyright typically means that there is not much original copyrightable expression in a particular work; consequently, the scope of fair use of the work is likely greater.
- Title 15
- Title 15 refers to the U.S. trademark laws, which are found in Title 15 Chapter 3 of the United States Code.
- Title 17
- Title 17 refers to the U.S. copyright laws, which are found in Title 17 of the United States Code.
- trademark
- A word, symbol, phrase, or other identifying mark used to identify the source of a product.
The legal regime by which trademarks are enforced; the goal is to protect consumers' rights to identify a product by its mark. - Trademark Trial & Appeal Board ("TTAB")
- An office within the U.S. PTO, the TTAB holds hearings about oppositions, petitions to cancel, and applications for concurrent use of trademark registrations. See TTAB website.
- U.D.R.P. or UDRP
- The Uniform Domain-Name Dispute-Resolution Procedure. A relatively inexpensive and quick procedure for resolving disputes over domain names between trademark-owners and domain name registrants. See the UDRP website at ICANN.
- U.S.C.; U.S.C.A. (USC; USCA)
- Acronym for United States Code, or United States Code Annotated. The U.S.C. is a comiplation of federal laws, organized ("codified") into 50 subject sections, called "Titles", and published by the United States government. For instance, "Title 17" contains the copyright statutes. The USCA contains the full text and same organization as the USC, but also includes notes about case law, legislative history, etc. When referring to individual sections in a particular title, the short format is "17 U.S.C. § 101".
- unfair competition
- Unfair competition is a "tort" (or a wrong) based on the laws of the different states. In cease-and-desist letters, unfair competition claims might be based on acts of copying or using information that a competitor developed.
- work for hire
- A copyright doctrine that holds that works created by individuals in the course of their employment are owned and, legally, "authored" by the employer.
© and first publication: June 15, 2006
Last modified: July 30 2007.