Tag Archives: Copyright (c) 2009 by Christina D. Frangiosa All Rights Reserved.

Mandatory Restitution to Victims of Identity Theft in Pennsylvania Required

by Christina Frangiosa

The Pennsylvania General Assembly recently amended its sentencing requirements to be imposed upon convicted identity thieves. On September 18, 2009, House Bill 222 was approved by Governor Rendell and became effective on November 17, 2009.

House Bill 222 amended the PA Crimes Code to mandate restitution by a convicted identity thief to “for all reasonable expenses incurred by the victim or on the victim’s behalf” to investigate the theft, bring civil and/or criminal actions in response, or to correct the victim’s credit record or negative credit reports. 18 Pa. Cons. Stat. Ann. § 1107.1(a). These expenses include: 1) attorneys’ and accountant’s fees for professional services; 2) fees or costs imposed by the credit bureaus to correct the credit reports, to undertake private investigations, or to contest “unwarranted debt collections;” and 3) court costs and filing fees. Id. § 1107.1(b).

This restitution sentence would be imposed in addition to any other restitution sentence or other order. See id. § 1107.1(a).

(Note that you can find the statutory sections cited above through West’s Unofficial Purdon’s Pennsylvania Statutes – I tried linking each separate section, but the individual links would not work. You will have to navigate through West’s table of contents and expand the listings under Title 18 to find the relevant sections discussed here.)

Prior Version of Restitution Requirement

The prior version of this restitution requirement had been codified in 42 Pa. Cons. Stat. Ann. § 9720.1 and took effect July 21, 2000. Section 9720.1 has been repealed, now that the provisions have been moved to the Crimes Code.

Amendments Recently Enacted

Section 1107.1 provides several important amendments beyond the provisions previously codified in 42 Pa. Cons. Stat. Ann. § 9720.1. Specifically, the current provision permits an identity theft victim to recover professional fees charged by an accountant as well as any costs that they incurred in connection with disputing debt collections that were undertaken without justification.

Identity Theft in PA (Generally)

Identity theft is considered an “offense against property” in Pennsylvania. A person commits identity theft if “he possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose.” 18 Pa. Cons. Stat. Ann. § 4120(a).

Identifying information includes “documents [separately defined], photographic, pictorial or computer image of another person, or any fact used to establish identity, including, but not limited to, a name, birth date, Social Security number, driver’s license number, nondriver governmental identification number, telephone number, checking account number, savings account number, student identification number, employee or payroll number or electronic signature.” Id. § 4120(f).

The term “document” is defined to include broadly “any writing,” with certain non-exclusive examples provided: “birth certificate, Social Security card, driver’s license, nondriver government-issued identification card, baptismal certificate, access device card, employee identification card, school identification card or other identifying information recorded by any other method, including, but not limited to, information stored on any computer, computer disc, computer printout, computer system, or part thereof, or by any other mechanical or electronic means.” Id.

The determination of the severity of the offense will vary, depending on the total dollar value involved, the number of times the offender has committed this offense in the past and the age of the victim. Specifically, the offense is deemed to be a misdemeanor of the first degree if the total value involved is less than $2,000. Id. § 4120(c)(1)(i). The offense will be upgraded to a felony (of the third degree) when the amount exceeds $2,000 or when the offense is committed “in furtherance of a criminal conspiracy.” Id. § 4120(c)(1)(ii) and (iii). The degree is further upgraded for recidivists – for third or subsequent offenses, the offense is deemed to be a felony of the second degree. Id. § 4120(c)(1)(iv).

Finally, if the offense is committed against a person “60 years of age or older” or against a person who is “care-dependent” under 18 Pa. Cons. Stat. Ann. § 2713, the severity of the offense will be upgraded a degree. Id. § 4120(c)(2).

As a result, the severity of the offense can range from misdemeanor of the first degree through a felony in the first degree. 204 Pa. Code § 303.15. Under Pennsylvania law, the actual penalties imposed for these offenses will be established by reference to the Sentencing Code (42 Pa. Cons. Stat. Ann. § 9701 et seq.) and Sentencing Guidelines (204 Pa. Code §§ 303.1 – 303.18), but can include imprisonment of varying terms in addition to the restitution required by 18 Pa. Cons. Stat. Ann. § 1107.1 and 42 Pa. Cons. Stat. Ann. § 9721(c).

Resources to Combat Identity Theft

If you need further information about identity theft, there are numerous resources you can use. For instance:

Government & Consumer Advocate Links
* Better Business Bureau’s Information for Consumers about Identity Theft
* Credit Reporting Companies: Equifax, Experian, and Transunion.
* Federal Trade Commission’s Identity Theft Site
* Pennsylvania Attorney General Tom Corbett’s Identity Theft Toolkit
* Pennsylvania State Police – Identity Theft Prevention Guidelines (PDF document)
* US Postal Service – Report ID Theft by Mail

Commercial Providers or Evaluation Tools
* IDTheft.com – has some information about police reports and dealing with governmental agencies to start correcting their records.
* Comparison of the “Top 5” Identity Theft Protection Companies on the market
* Identity Theft Labs – also provides a comparison of the most popular ID Theft Protection sites
* Identity Theft Protection and Survival – offers books and other educational materials for sale

This is a non-exhaustive list, but should get you started. In addition to these resources, you may also want to consider checking resources offered by your bank, credit union or credit card companies; many of them offer tools to assist you in avoiding or recovering from identity theft.

(Please note that I have not thoroughly researched companies providing ID theft protection services – so what appears above are suggestions only of some of the third-parties that provide these services. Their listing here should not be taken to be an endorsement or any other support for the products or services that they offer.)

Update on Google Book Settlement

by Christina Frangiosa

On November 13, 2009, the parties to the Author’s Guild, Inc. v. Google, Inc. lawsuit submitted a revised settlement agreement, for which it sought court approval. Prior posts about the lawsuit and its implications can be found here.

The revised settlement agreement is 171 pages (the original agreement was a mere 134 pages) – so it will take some time before all of the pivotal terms and conditions are understood and vetted by the media, government agencies and the public. I have only briefly scanned the revised agreement, and may decide at a later date to enhance my own written analysis of its implications as I become more familiar with its terms.

In the meantime, here are some provisions of interest of the revised Agreement for your preliminary consideration:

* Google will pay “a minimum of $45 million into the Settlement Fund to pay Settlement Class members whose Books and Inserts have been Digitized prior to the May 5, 2009.” Agreement ¶ 2.1(b).

* Anyone who wishes to receive a cash payment under the revised settlement agreement must file their claim form by March 31, 2011.

* Plaintiffs’ attorneys can receive up to $30 million in fees after the effective date of the Agreement (assuming that it obtains final approval by the Court). Agreement ¶ 5.5.

* The Agreement proposes to distribute “at least $60 per Principal Work,” and less for entire copies of “inserts” ($15) or partial copies of “inserts” ($5). Agreement ¶ 5.1(a).

* Certain foreign works have been removed from coverage by the Agreement (although works published in Britain, Canada or Australia are still covered). Agreement ¶ 1.19.

* Other online book distributors may participate in the distribution of out-of-print and unclaimed works (a right that previously had been reserved for Google exclusively). Agreement ¶ 2.4.

* Rights holders can direct Google to exclude their works (with some limitations) provided that the request is received no later than March 9, 2012. Agreement ¶ 3.5(a)(iii).

* Google may still elect to exclude works from the database for any “editorial or non-editorial” reasons, although it must provide a digital copy of the excluded work (along with an explanation of why it was excluded) to the Book Rights Registry. Agreement ¶¶ 3.7(e) & (e)(i).

* Google apparently will be allowed to continue scanning works that are not subject to payment under the Agreement. Agreement ¶ 3.1(a). Thus, even this revision appears to severely limit the online distribution rights of authors and publishers.

* Books and inserts can be designated as either “Display” or “No Display” – in other words, the author/publisher can request that the book not be displayed in search results. Agreement ¶¶ 3.3, 3.4. It appears, however, that the scanned copy of a book designed “No Display” will continue to exist in the database, even if Google is not permitted to display it in the search results.

Other Analyses of the Revised Settlement Agreement

Others have opined about the impact of this revision, including the following:

* Jonathan Band’s A Guide for the Perplexed, Part III, analyzing the November 13 amendments to the settlement agreement in great detail;

* Copyright Clearance Center seminars and webinars about the impact of the settlement;

* Electronic Frontier Foundation’s Deep Links Blog covered the revised settlement agreement from the perspective of the pros and cons, access, competition, and privacy;

* Dr. James Grimmelman’s Blog, The Laboratorium;

* The Official Settlement Web Site;

* The Public Index and its annotated copy of the revised settlement agreement;

(*Note that I have not fully analyzed or reviewed each of these external links – and therefore do not endorse their opinions or recommendations. I am providing links to these sources, however, in the interest of fostering a diverse and robust discussion of the impact of this agreement on copyright law and electronic book publishing into the future.)

Court Grants Preliminary Approval and Sets Deadlines

On November 19, 2009, the Court granted preliminary approval of the Amended Settlement Agreement, and set February 18, 2010 as the new hearing date for the Final Fairness Hearing. Any opposition to the revised settlement agreement must be filed by January 28, 2010. Any class member who wishes to appear at the hearing must file a Notice of Intent to Appear no later than February 4, 2010.

USPTO Trademark Public Advisory Committee Meeting Tomorrow

by Christina Frangiosa

On November 20, 2009, the U.S. Patent & Trademark Office’s Trademark Public Advisory Committee will be holding a public meeting to discuss, among other things, the impact that the Federal Circuit’s recent decision in the In re Bose Corp. case will have on the USPTO’s “Trademark Operation.” (More information on the In re Bose Corp. case and some of its predecessors in the Medinol line of cases can be found in my prior blog entries.)

The meeting will be webcast, and runs from 9:00am – 12:00pm Eastern Time. You can also dial in by phone to hear the audio only, if you prefer. (Instructions for participating and the proposed agenda can be found here.)

Based on the published agenda, the segments relevant to the In re Bose opinion will likely be the following:

* 10:15 a.m. (20 minutes) – Discussion with TTAB Judge Gerard Rogers regarding TTAB matters, including “What steps has the TTAB taken, and what steps (if any) does it plan to take, in the wake of the Federal Circuit decision in In re Bose Corp.”

* 10:35 a.m. (60 minutes) – Discussion with Trademarks Commissioner Lynne Beresford about “what steps the Trademark Operation should take, if any, in the wake of the [In re Bose Corp. decision] to minimize the amount of ‘deadwood’ on the trademark registers.” Some of the suggested subtopics in this category are:

“* Should any special action be taken regarding applications claiming a large
number of goods/services?
* Should proof of mark usage be required on each
item of goods/services?
* Should there be a procedure by which a third party
can require an interim proof of use of a mark by a mark registrant on some or
all goods/services covered in a registration?”

Also of interest in this section is the discussion of a proposal to update TMEP (the USPTO’s Trademark Manual of Examining Procedure) on a continuous basis.

If you cannot participate in the meeting, but are interested in reading about it afterward, the transcript will likely be posted on TPAC’s main page at some point after the meeting concludes. Transcripts from prior meetings can also be found there.

Basic Questions – Differences between Copyrights and Trademarks

by Christina Frangiosa

While it seems that this topic may be rather basic, the differences between types of protection under the broader heading of “intellectual property law,” are commonly confused. Not only have I been asked this question directly, but also I have heard folks frequently using the words “copyright,” “trademark” and “patents” interchangeably. These terms have very separate meanings, however, and the doctrines and black letter assumptions applicable to each are very different.

(Note that because I do not practice in the area of patent law, I am omitting patents from this discussion. Recognize, however, that patent law is a pivotal component of the larger intellectual property law environment and should not be ignored when considering what protections to pursue for various intellectual property assets.)

Copyrights (17 U.S.C. § 101 et seq.)

In a nutshell, U.S. copyright law protects an “original work of authorship fixed in a tangible medium of expression” from being copied and/or used by others. The phrase “works of authorship” generally refers to creative works such as books, movies, scripts, computer software, sculptures, paintings, music, and lyrics, although myriad other works are also covered.
What is protected is the expression itself, not the idea underlying the expression. As a result, if you wrote a book that describes a conflict between two family members, you could not prevent another author from writing a book that also describes such a conflict. If the new book copied your precise language (in whole or in significant part), you might have some remedies against infringement under the Copyright Act – but note that what is protected is the way that you expressed the idea, not the underlying idea itself.

Trademarks (15 U.S.C. § 1051 et seq.)

Generally, trademark law protects words, symbols, logos, sounds and other mechanisms of identifying brand names. The key to determining whether a particular mark has trademark value is whether or not consumers recognize it as identifying a single source of goods or services in the market. As a result, “use” of (or a bona fide “intent to use”) the mark in connection with particular goods or services governs the scope of the mark’s protection.

If a term is generic, it cannot act as a trademark or achieve federal registration, lacking any value as an indicator of source of goods or services. Beyond generic terms, various types of marks can be registered if certain circumstances exist, requiring an analysis of the underlying facts. A sliding scale describes the strength of these types of marks, ranging from merely descriptive on the one side (moderately strong source indicators) to arbitrary or fanciful on the other (very strong source indicators), with descriptive and suggestive marks falling in the middle.

How do Domain Names Fit into these Definitions?

Domain names are simply addresses at which a user of the Internet can locate a particular web site. They can be equated to mailing addresses or even 1-800 phone numbers and typically appear in a www.name.com or www.name.net (etc.) format. The domain names may contain trademarks or they may contain more generic or descriptive terms.

When a domain name contains a trademark owned by another, the trademark owner has several options to enforce his or her rights, including negotiations with the domain name owner, other pre-litigation strategies or ultimately, filing claims in either federal court (pursuant to the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125) or through a domain name dispute resolution provider (pursuant to the Uniform Dispute Resolution Policy). Which forum is appropriate in a particular case depends on an analysis of the specific circumstances, but each option has specific benefits and detriments to proceeding within its boundaries.

Future blog entries will be based on new developments in these areas. Please let me know if you have comments or questions.

NJ Federal Court Issues Notice about Redaction of Private Information from Court Filings

by Christina Frangiosa

I received this notice today from the U.S. District Court for the District of New Jersey, and thought it worthwhile to post in its entirety:

It has come to our attention that electronic filers may be using inappropriate procedures or software to redact documents. We encourage all electronic filers to review their software guides and/or check with your systems’ staff regarding this issue. The redaction techniques below can also be found on the court’s web site at http://www.njd.uscourts.gov/cm-ecf/RedactTips.pdf.

Effective Personal-Identity and Metadata Redaction Techniques for E-Filing

When you e-file a PDF document, you may be providing more information in that document than you can see via your PDF reader software. Some redaction techniques used when e-filing are ineffective, in that the text intended to be hidden or deleted can be read via a variety of techniques. And, because information about the document, called “metadata”, is also stored inside the document, it is often viewable as well. Examples of metadata and hidden data include the name and type of file, the name of the author, the location of the file on your file server, the full-sized version of a cropped picture, and prior revisions of the text.

E-filers must use extra care to make sure that the PDF documents to be submitted to ECF are fully and completely free of any hidden data which may contain redacted information. The protection of sensitive data can be compromised if improper redaction techniques are used. Here are a couple of examples of sensitive-data visibility issues:

* Highlighting text in black or using a black box over the data in MS Word or Adobe Acrobat will not protect the data from being able to be seen. Changing the text color to white so it disappears against the white screen/paper is similarly ineffective.

* Previous revisions and deleted text may be able to be seen by manipulating an Adobe Acrobat file.

Fortunately, there are effective means of eliminating this metadata from electronic documents. Probably the simplest method is to omit the information from the original document and save the redacted version with a new name, for example, “REDACTED”, then convert to PDF.

While the court does not endorse any specific method, and the responsibility for redacting personal identifiers rests solely with the parties, commercially-available software can be used to redact, not just hide, the sensitive information. Redax (http://www.blogger.com/www.appligent.com) and RapidRedact (http://www.blogger.com/www.rapidredact.com) are two examples of commercial products used by some. Adobe Acrobat 8.0 Professional and above and WordPerfect XIV both contain redaction tools. Search the web for references that may be useful to you.

While this notice clearly applies to cases filed in the federal court of New Jersey, electronic court filing is also available in the federal court in the Eastern District of Pennsylvania (Philadelphia, Allentown), which has a local rule requiring that certain personal information of the parties be removed from public filings. E.D. Pa. Local Rule of Civil Procedure 5.1.3 (“Modification or Redaction of Personal Identifiers: As documents in civil cases may be made available for personal inspection in the office of the clerk of court at the United States Courthouse, or, if filed electronically, may be made available on the court’s Electronic Case Filing system, such personal identifiers as Social Security numbers, dates of birth, financial account numbers and names of minor children should be modified or partially redacted in all documents filed either in traditional paper form or electronically.”).

UPDATE: This notice is also available on the Court’s web site. See Personal-Identity and Metadata Redaction Notice, October 23, 2009.