When reporting on a public proceeding, there is a privilege against defamation called the fair report privilege. That requires that the statements made in reporting on the proceeding or the record have to be full and fair. This varies from one jurisdiction to another, but some jurisdictions also require that it has to be impartial as well. Then if that is done, then there would be a qualified privilege against defamation.
Generally, in commercial litigation, the first stage is the pleading stage where the parties set forth the complaint and there’s answers. Sometimes there’s motion such as in the form of a motion to dismiss for failure to state a claim. Then there’s the discovery phase where the parties ask either written questions or demand for documents and request for admissions and take depositions. And that’s where people sit in front of a court reporter and their testimony is taken down for later use at trial.
And then there’s the motion practice. Usually, some re-judgment stage where one side or the other will move for some re-judgment asking the court that based on the evidence that’s in the documents so far, that either the complaint should be dismissed or judgment should be granted in favor of the plaintiff. And then finally there’s the trial stage. And that’s, of course, where witnesses are called to testify in each side, puts on their evidence, and the case is decided by the fact finder, either a judge or a jury.
Almost every state has passed some version of the Uniform Trade Secrets Act, which sets forth what a trade secret is and when it is actionable because of a misappropriation of that trade secret. Generally, it’s information which can be a formula, a method, a practice, a technique, a business compilation, or business data that is not generally known, or not readily accessible, and from which the company derives independent economic value. As long as that trade secret is kept secret, then that company has a right to protect it.
For as long as I can recall, I always wanted to be an attorney. I’m a third generation attorney, and I guess partially being an attorney is in my blood. I began as a litigation attorney, and over the years I have also done transactional work, especially in the business and intellectual property area. And I find that having been and still am a litigation attorney gives me a particular insight when doing transactional work, because when doing transactional work, if at the end of the day there’s a dispute, it’s going to wind up in court. So I feel that I have a good perspective in that respect. And I enjoy litigation and trial work. So that’s why I’m still an attorney.
Invasion of privacy is the intrusion into the personal life of another without just cause. So in this case, the suit would lie for invasion of privacy, not for defamation. Defamation requires that the statement be false. Invasion of privacy does not require the statement be false, and the plaintiff can sue for damages.
A breach of contract requires a material breach by one party. That means that an obligation has not been performed in a material way, giving the right to the other party to sue for damages. Those damages can be actual damages, and depending on what they contract provides, possibly could be consequential and incidental damages that flow from the breach.
Also, it’s possible under certain circumstances that injunctive relief can be obtained as well, but really, you have to look at the agreement to find out what the parties themselves said about what happens when there’s a breach.
The Digital Millennium Copyright Act provides for a safe harbor for online service providers from copyright infringement if they put on their website a Digital Millennium Copyright Act agent, a DMC agent that can be notified by copyright owners if they are claiming infringement of a copyrighted work on the website.
The copyright owner then provides notice to this agent. If the website operator, the online service provider expeditiously removes or disables access to the copyrighted material, then that will give the copyright owner an opportunity to take legal action. If this is followed, then the online service provider will be protected from liability for that infringement.
Fair use is the limited copying of a copyrighted work done for transformative purposes. It can be done to comment, criticize, or parody the original work. Permission of the copyright owner is not needed, and in doing so, would not be infringement.
The Anti-Cybersquatting Consumer Protection Act (ACPA) was an amendment to the Lanham Act to fill a gap. The problem was the trademark and service mark owners didn’t have a way to sue under the Lanham Act for improper use of their trademarks and service marks incorporated in domain names because the Lanham Act is limited to trademarks and service marks. With this amendment it allows trademark and service mark owners to sue claiming that the registration of the domain name was done so in bad faith because the domain name registrant does not a have a good faith, or legitimate, purpose in using the domain name that incorporates the plaintiff’s trademark or service mark. See 15 U.S.C. 1125(d)
Section 362(a) of the Bankruptcy Code provides that there is an automatic stay that commences at the beginning of the case against recovering for any claims by a creditor for any pre-petitioned debt. This means that once the bankruptcy case is filed, a creditor cannot take any action against the debtor to recover debts that arose prior to the filing of the bankruptcy, and this would include property that is owned by the debtor.