Copyright: Sword Not Shield


The article below contains several examples of copyright wrongfully employed to either: (1.) silence critics; or (2) attempt to drum competitors out of business by making false accusations. I had a case once where a company tried to trademark and copyright a “type” of Chinese tea. Apparently, there is a great deal of money to be made selling tea. My client changed the name of their product and website. The competitor still sued and would accept nothing less than my client closing its doors and ceasing business.  Ultimately the trademark office denied the Plaintiff’s application stating that the name was merely descriptive of a type of tea, and the case settled.  Unfortunately, that was after months of litigation in federal court.  So you can imagine my reticence to hand Plaintiffs like that tools such as SOPA.  Tools that will be abused, and initially impossible to defend. You may not get any due process until you are already ruined financially as a business. In the example above my client would have been forced to “cease business” under SOPA, because their website visibility and ability to process payments would have been gone. There are many examples of unfair competition (or censorship) executed under the cover of intellectual property enforcement.    

Dumb Examples of Copyright Enforcement:

"Paranormalist" Uri Geller got YouTube to remove a video of a 1993 PBS piece that Geller did not own which debunked the psychic’s special abilities. The poster’s YouTube account was also suspended.

Competitors of dancer/model/actress Elizabeth "Sky" Ordonez registered the trademark ELIZABETH SKY and got Twitter, MySpace and Facebook to take down the actress’ pages based on nonsense claims of trademark infringement.

Most recently, Warner Bros. admitted that it did not bother to confirm whether a slew of content that it asked cyberlocker website to take down actually infringed on its copyrights. (In a rare show of support for its users, the content publisher sued Warner Bros. for violating the DMCA by making a false take-down request.

Given the DMCA’s great "success" in fighting online copyright infringement, Congress has decided that copyright owners (read: Hollywood studios) should have even more tools to fight copyright infringement.

Accordingly, SOPA provides online advertising platforms and payment processors with DMCA-like immunity from lawsuits if they voluntarily cut ties with accused copyright infringers.

This means that parties who previously liked to use the DMCA to hamper their innocent competitors with inconvenient two-week content "time outs" will be able to use SOPA to freeze legitimate business advertising and payments as well.

A great breakdown of what you should and should not do with the internet as it relates to intellectual property. Second, EFF has kicked off a project to demonstrate copyright’s relationship to censorship.

Five things you should know about intellectual copyright and online sharing

Global censorship tracked by new project

Electronic Frontier Foundation (EFF), in collaboration with over a dozen civil society organizations worldwide, today launched Global Chokepoints at to document how copyright enforcement is being used to censor online free expression in countries around the world.

About Timothy Powers O'Neill

Timothy O’Neill, an attorney with the firm of Cohen Norris practices in the areas of business litigation, real estate litigation, and intellectual property litigation. Timothy received his Bachelor of Science Degree from the University of Evansville and graduated from the University of Missouri-Columbia School of Law in 1997. Following law school, Timothy clerked for two years in the State of Florida's Fifteenth Judicial Circuit in Palm Beach County, and served as a law clerk in the United States District Court for the Southern District of Florida. Timothy serves as an executive board member of the Busch Wildlife Sanctuary, a non-profit entity dedicated to preserving Florida’s wildlife through rehabilitation and education. Timothy is admitted to practice before all of the state courts of Florida as well as: The Supreme Court of the United States; United States Court of Appeals, Eleventh Circuit; United States Court of Appeals, Ninth Circuit; United States District Court, Southern District of Florida; United States District Court for the Middle District of Florida, United States District Court of Colorado, and is a member of the Palm Beach County, Florida, and Federal Bar Associations.


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