Chapter 4
Torts, Intellectual Property
and Cyber Torts
Learning Objectives
What is a tort?
What is the purpose of tort law? What are
the two basic categories of torts?
What are the four elements of negligence?
What is intellectual property?
What steps have been taken to protect
intellectual property rights in the digital
age?
Tort Law
 A tort is a civil, legal injury to a person
or property caused by a breach of a legal
duty.
 Plaintiff (the injured party) sues the
Defendant (the Tortfeasor) for damages.
 Three Torts:
 Intentional
 Unintentional (negligence-no fault)
 Strict Liability (absolute liability)
Intentional Torts Against Persons
Assault and Battery
Assault: the reasonable apprehension or fear of
immediate contact
Battery: completion (contact) of the assault.
Defenses:
• Consent
• Self-Defense and Others
• Defense of Property
Intentional Torts Against Persons
False Imprisonment
Confinement or restraint of another person’s
activities without justification.
Merchants can detain a suspected shoplifter as
long as there is probable cause.
Infliction of Emotional Distress
Extreme and outrageous conduct.
Some courts require physical symptoms.
Intentional Torts Against Persons
 Defamation
 Publication of a false statement (oral or written)
that injures a person’s good reputation.
• Publication: third party must hear or see statement
• Statements made on the internet may be actionable.
• An individual who re-publishes the statement will be
liable.
 Statement must hold someone up to contempt,
ridicule or hatred in the community.
Intentional Torts Against Persons
Defamation (cont’d)
Slander per se (no proof of damages is
required):
• Loathsome communicable disease
• Professional impropriety
• Imprisonment for a serious crime
• Unmarried woman is unchaste
Intentional Torts Against Persons
Defamation (cont’d)
Defenses:
• Truth is normally an absolute defense
• Statement was Privileged:
– Absolute: judicial and legislative proceedings
– Qualified: good faith, limited.
• Public Figures: plaintiff must show
statement made with “actual malice.”
Intentional Torts Against Persons
Invasion of the Right to Privacy
Person has the right to solitude. Breach
of that duty is a tort.
Appropriation
False Light
Public Disclosure of Private Facts
Rights of Internet users?
Intentional Torts Against Persons
Misrepresentation (Fraud)
Intentionally deceive another to believe in a
condition that is different from the condition that
already exists.
•
•
•
•
Knowing misrepresentation of fact.
Intent to induce innocent party to rely
Justifiable reliance by innocent party
Causation and Damages.
Contrast: “puffery” or statements of opinion.
Intentional Torts Against Persons
Wrongful Interference with
Contracts
Valid, enforceable contract exists
between two parties
Third party knows about contract
Third party intentionally causes either
party to breach the original contract.
Intentional Torts Against Persons
Wrongful Interference with Business
Relationship
Distinguish competition vs. predatory behavior.
Predatory behavior is unlawfully driving
competitors out of market.
To prevail, Plaintiff must show Defendant
targeted only Plaintiff’s customers and product.
Defenses to Wrongful Interference:
Interference was justified or permissible.
Intentional Torts Against Property
Trespass to Land
Trespass to Personal Property
Conversion
Disparagement of Property
Slander of Quality
Slander of Title
Unintentional Torts
(Negligence)
Occurs when someone suffers injury
because of the defendant’s failure to
comply with a legal duty.
Defendant (tortfeasor) creates
foreseeable risk of injury.
If no risk is created, there is no
negligence.
Negligence--Analysis
Did the Defendant owe the Plaintiff
a legal duty of care?
Did the Defendant breach that duty?
Did the Plaintiff suffer a legal
injury?
Did the Defendant’s breach of duty
cause the Plaintiff’s injury?
Negligence
Duty of Care and Breach
Duty is based on reasonable person standard.
How would a reasonable person have acted
under the circumstances?
Duty of Landowners to business invitees and
tenants to keep common areas safe.
Duty of Professionals to clients (attorneys,
CPA’s, doctors)
Negligence
 Injury Requirement and Damages
 Plaintiff must suffer a legally recognizable
injury.
 Not all injuries can be compensated.
 Causation
 Causation in Fact (“but for” test)
 Proximate Cause (foreseeably strong
connection)
 Palsgraf (1928)
Negligence
 Defenses
 Assumption of the Risk
 Superseding Intervening Cause
• Event must be unforeseeable
 Contributory Negligence (few jurisdictions)
• Plaintiff recovers nothing if he is at fault.
 Comparative Negligence (more common)
• As long as Plaintiff is less than 50% at fault he can
recover a pro-rata share of the verdict.
Strict Liability
Does not require fault, intent or breach of
duty.
Usually involves ‘abnormally dangerous’
activities and risk cannot be prevented.
Dangerous Animals.
Product Liability—manufacturers and
sellers of harmful or defective products.
Cyber Torts
Can a person be liable for a tort
committed in cyberspace?
Should an Internet Service Provider
(ISP) be liable for the actions of its
subscriber?
Who should be liable for “spam” and
computer viruses that cause injury?
Intellectual Property
 Intellectual Property (I.P.) is any
property that is the product of an
individual’s mind, e.g, books, software,
movies, music.
 U.S. Constitution protects I.P. in Article
I Section 8. Congress shall
“promote the Progress of Science and useful
Arts, by securing for limited times to Authors and
Inventors the exclusive right to their respective
Writings and Discoveries.”
 Ownership of I.P. is strategically
Trademarks & Related Property
Trademark
Distinctive motto, mark or emblem
Stamped or affixed to a product
So that it can be identified in the market.
Statutory Protection for Trademarks
Federal Lanham Act of 1946
Federal Trademark Dilution Act of 1995
Trademarks & Related Property
 Trademark Registration
 U.S. Patent and Trademark Office
www.uspto.gov gives notice to 3rd parties.
 A mark can be registered if in use or mark will
be used within 6 months.
 Trademark Infringement
 Unintentional or intentional substantial
copying of mark.
 Strong marks vs. generic terms.
Trademarks & Related Property
 Service Mark
 Similar to trademark but used for services.
 Includes characters in TV and radio.
 Trade Names
 Applies to a business (not a product).
 Trade Dress
 Image and appearance of a product or shop
(Example: Starbucks coffee stores)
Cyber Marks
 Trademarks in Cyberspace
 Domain Names
 Trademarks in Cyberspace (example:
Nike.com)
 Conflicts—ICANN
 Cybersquatting
 Occurs when 3d party registers a domain
name that is the same or similar to another
company’s own trade name.
 1999 Anticybersquatting Consumer Protection
Cyber Marks
Meta Tags
Keywords in web pages used by internet
search engines.
Playboy vs. Calvin Designer Label
Online Trademark Dilution
Trademarks can be diluted on the web.
Hasbro v. IEG (over candyland.com)
Patents
 Patent
 A Government monopoly that
 Gives inventor the exclusive right to
 Make, use or sell and invention for 20 years.
 Patents for:
 Invention
 Design
 Process (software patent)
Patents
Infringement
Manufacture, use or sale of another’s product or
design without permission (license).
Business Process Patents
1998 State Street Bank v. Signature Financial
ruled that a method of doing business could be
patented.
Amazon.com’s “one-click” patent.
Copyrights
Copyright:
Intangible property right granted by federal
statute to the author for life plus 70 years.
Automatic protection.
Work must be original and “fixed in a durable
medium.” Ideas are not protected, but the
expression of an idea is.
Copyrights
 Infringement
 Form or expression is copied (does not have to
be in its entirety)
 Penalties, damages and criminal action are
possible.
 Exception: “Fair Use”
 Certain persons or organization can copy
materials without penalty (e.g., education,
news, research)
Copyrights in Digital Information
 Digital media can easily be copied.
 Copyright Act of 1976
 Copy of a program into RAM is infringement.
 Revision or re-sale of freelance authors works
can be infringement. NY Times v. Tasini
(2001).
 MP3 and File-Sharing.
 Napster case.
Trade Secrets
 Trade secrets are confidential, not filed
with the government.
 Can be customer lists, formulas, pricing,
etc.
 Theft of trade secrets is now a federal
crime under the Economic Espionage Act
of 1996.
 Cyberspace: employees can easily email
information to competitors.
Licensing
Allows a third party to lawfully use
a patent, trademark, copyright or
trade secret.
The licensee pays the licensor (the
owner of the IP) a fee for use.
U.C.I.T.A. is a uniform code that
licenses the use of software.