Duff on Hospitality Law

Fall is upon us and like every fall, there is no shortage of upcoming travel and tourism industry events to attend. Over the next few months, our team will be busy attending and speaking at a number of industry-related events.

Upcoming events include:

(Companion post to “Do You Know What’s Happening on Your Network? Copyright Infringement.”)

A number of organizations, such as the Electronic Frontier Foundation and Chilling Effects, keep watch on what they consider overly aggressive policing of rights on the Internet by owners of copyrights and trademarks. Lately, a couple of extremely irate attorneys have taken up the cause against Getty Images and its ilk, going so far as to call them extortionists. BMI, ASCAP and SESAC are widely loathed in every industry but their own. Copyright owners these days are, depending on who you talk to, defending their rights against millions of infringers on the Internet, or filing lawsuits they never intend to pursue to make money by forcing settlement in a last, desperate attempt to prop up a business model that is doomed to failure in the Web 2.0 age. Either way, there seems to be a significant increase in policing of potentially illegal copying and use of protected materials that may find its way to you.

Lately, we’ve been hearing from a number of our clients and friends in the industry of a startling increase in the number of letters and emails alleging patent infringement. As hospitality- and restaurant-industry businesses become bigger and bigger users of patentable technology, we expect we may see many more of these claims. In an effort to provide a straightforward set of guidelines to our clients and friends, I went to my litigation partner, Tom Richardson, who happens to be defending a number of alleged patent infringement claims right now, and good friend and patent attorney, Charles Moore, and asked them for a streamlined checklist of how to handle receipt of such a letter or email. Tom brings over 35 years of litigation experience to a broad range of complex cases, including anti-trust and business torts; securities; trademark, copyright and patent disputes; complex commercial contract cases; and product liability and warranty claims and risk avoidance. Charles is a patent attorney with the Portland, OR intellectual property firm of Alleman Hall McCoy Russell & Tuttle, LLP, where he represents clients in a variety of patent matters, including helping them defend against patent troll claims, and preparing and prosecuting patent applications before the U.S. Patent and Trademark Office. Charles also has over 13 years of in-house practice, most recently as Senior IP Counsel with Hewlett-Packard Company. Here are their suggestions:

Customer Internet access, preferably wireless, is expected in the hospitality industry. Unfortunately, some guests and customers use the Internet access and computer networks you provide to break the law. Specifically, they infringe copyrights by uploading and downloading illegally obtained copies of movies, songs and television clips that are probably themselves illegally obtained copies of copyrighted works, which enterprising persons then illegally post to publicly available Internet sites for download or further sharing (read: illegal copying).

Broadcast Music, Inc. (BMI) filed suit against the Lake Street Bar & Grill in Kirkland and its individual owners on October 20, 2010, alleging four counts of willful copyright infringement for “unauthorized public performance of musical compositions in BMI’s repertoire.”  BMI asked the court for statutory damages—not BMI’s proven lost revenue, but damages that the U.S. Copyright Act allows copyright owners to request if they don’t want to bother with calculating actual damages. The court may order damages in any amount between $750 and $30,000. Even worse for Lake Street, if the allegation of willful infringement can be proved, the court may award BMI up to $150,000 under the same statute.

Remember, this is for only four separate instances of copyright infringement.