In general, when a client comes into an attorneys’ office and alleges damage done to their businesses brand on the Internet, the immediate reaction is to commence legal proceedings – in other words, sue the bastards! However, litigation is expensive, and fees can quickly escalate during the various phases leading up to trial. Settlements are dictated through the fear, uncertainty, and doubt of litigation outcomes for both sides. The prudent corporate attorney will consider all other available means to address their client’s potential claims by seeking out-of-the-box remedies. The critical conclusion is to determine where the business remedies intersect with the legal remedies.
Protecting brand and intellectual property in the Age of Information is a much more monumental task now, and the objective should be to minimize the strength of the oppositions’ claims by establishing your client’s vested rights and interest to the intellectual property. The trick is to establish a methodology that shows the real value of the intellectual property to the enterprise. In some circumstances, your client may be unintentionally operating from a weak position if the opposition can establish that the proprietary information was not vigilantly protected. How far should one go to vigilantly protect their intellectual property? Whom should they notify of any impending infringement? Does it make sense to send the soccer mom in Anytown, Midwest, USA, a nasty cease and desist letter to takedown the YouTube video she posted of her son dancing to “Let’s Go Crazy” by the artist, Prince?
With that in mind, I recently read a great article by James Morrow, in ipbusiness, that examines how the rulings coming out of the California courts are affecting people who post material online. The fundamental question is, who should we blame? The neutral messengers, like Yahoo, YouTube, and Google, or the actual infringers themselves? This is where business judgment and legal judgment need to work in concerted action, not in opposition. Spurning on the Internet Hate Machine, by filing a lawsuit, could do more damage to your brand, than if an alternative remedy were achieved.