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Legal Concepts Worksheet - Essay Example

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Summary
Property - Is divided in to several distinctions. There is real property, which means real estate, intellectual property, which is covered by patent and copyright law and finally there is chattel. Chattel refers to actual articles or items that we have such as books and cars.
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Legal Concepts Worksheet
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MBA/560 Concept Outline Week One-Identifying Legal Risks Concept Outline Examine the structure and processes of the American legal system Law - Lawis the rules that we as a society must live by. The laws of each state are crafted by our legislatures.
Rule of law - The rule of law is a statute that is crafted by the legislation and we as citizens must obey it. It is printed.
Property - Is divided in to several distinctions. There is real property, which means real estate, intellectual property, which is covered by patent and copyright law and finally there is chattel. Chattel refers to actual articles or items that we have such as books and cars.
Classifications of law - There are two types. Criminal and Civil
Sources of law - the courts, the statutes and caselaw
Legal sanctions
For criminal conduct - jail time, a penalty or probation
For tortious conduct - monetary fines
Organization of the court system
State courts - each state has its own laws which apply to the state only. For example, Florida residents are not beholden to the laws of the state of New Jersey. Unless of course you enter the state of New Jersey. Incidentally, if you are caught breaking the law
Federal courts - supercede jurisdiction over state courts. In order to file a lawsuit in federal court there must be a federal question or diversity in jurisdiction. A state action will not lie in federal court.
Decisions by the U.S. Supreme Court - The US supreme court trumps all courts. It is the law of the land and all courts bow to it. The decisions of the supreme court guide all courts in the nation on how to rule on a specific issue. A judge must not rule in a manner that is contra to established supreme court law.
The power of judicial review - broad in scope.
Judicial restraint - The court will restrain itself from ruling on areas not with in the ambit of the legal question before them. However sometimes, we can take a guess on their stance on a particular issue by reading the dissenting opinion, stare decisis or dicta.
The nature of the judicial process - two types, civil and criminal
Litigation overview
Parties - Plaintiff and Defendant
Standing to sue - you must have in personam jurisdiction and subject matter jurisdiction and you must be a stakeholder in the suit.
Subject-matter jurisdiction - the court must have the authority to decide a particular issue. For example, the small claims courts in New York cannot have jurisdiction in a matter that requests over three thousand in damages.
Personal jurisdiction - the defendant must either reside, or live in the state that the action is commenced in or there is no jurisdiction. When this happens, you start to look at long arm jurisdiction possibilities.
Class-action suits - an action that is brought by a class of people. This does not mean that a group of friends get together to bring a suit. It means, for example, x amount of people take a specific type of fat burner, and all of those people had a heart attack within three days of ingestion of the fat burner. That consists of a class to file an action. The proceeds of the suit are then split among the members of the class.
Differentiate between civil and criminal law
Civil law - no jail time, burden of proof is substantial showing, usually punishment if a fine of some sort.
Criminal law - definite possibility of jail time, standard of proof is beyond a reasonable doubt and burden is always on the prosecution.
Differentiate among federal, state, and local law
Federal law - supreme law of the land. Local and state rules may not
State law - Governs the conduct of each person residing and working in the state.
Local law - Lower form of government, may embellish but may not curtail the authority of the state law.
Identify risks associated with current trends in intellectual property law
Trade secret law
Patent law - Patents grant an inventor the right to exclude others from producing or using the inventor's discovery or invention for a limited period of time. U.S. patent laws were enacted by Congress under its Constitutional grant of authority to protect the discoveries of inventors. See U.S. Constitution, Article I, Section 8.
Obtaining a patent - You must apply to congress. The main body of law concerning patents is found in Title 35 of the United States Code. In order to be patented an invention must be novel, useful, and not of an obvious nature
Patentable subject matter - Such "utility" patents are issued for four general types of inventions/discoveries: machines, human made products, compositions of matter, and processing methods.
Nonobviousness, novelty, and usefulness - Changing technology has led to an ever expanding understanding of what constitutes a human made product. Specific additions to the Patent Act provide, in addition, for design and plant patents
Patent duration and enforcement - Under the amended provision (which took effect June 8, 1995) the term will be twenty years measured from the date of application.
Trademark law - Trademarks are generally distinctive symbols, pictures, or words that sellers affix to distinguish and identify the origin of their products.
Types of trademarks - Trademark status may also be granted to distinctive and unique packaging, color combinations, building designs, product styles, and overall presentations. It is also possible to receive trademark status for identification that is not on its face distinct or unique but which has developed a secondary meaning over time that identifies it with the product or seller.
Trademark registration - In the United States trademarks may be protected by both Federal statute under the Lanham Act, 15 U.S.C. 1051 - 1127, and states' statutory and/or common laws. Congress enacted the Lanham Act under its Constitutional grant of authority to regulate interstate and foreign commerce. See U.S. Constitution, Article 1, Section 8, Clause 3. A trademark registered under the Lanham Act has nationwide protection. See 1115 of the Act. Trademark enforcement.
Trademarks and the Internet - same law applies
Trademark dilution - Illegal
Copyright law - Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works
Copyright protection - Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
2) Copyright in the cyber age - Section 106 of the Copyright Act grants certain exclusive rights to the owner of a copyrighted work. 17 U.S.C. 106. Among these exclusive rights are the right to make or authorize the making of copies of the work, to distribute or authorize the distribution of the work and, in the case of television broadcast programming and other audiovisual works, the right to publicly perform or authorize the performance of the copyrighted work. As a result, unless a compulsory license is available, anybody who wishes to retransmit copyrighted broadcast programming--whether over the Internet or by more established means of transmission such as cable or satellite--may do so only by obtaining the consent of the copyright owners.
3) Digital Millennium Copyright Act - Makes it a crime to circumvent anti-piracy measures built into most commercial software.
Outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software.
Does permit the cracking of copyright protection devices, however, to conduct encryption research, assess product interoperability, and test computer security systems.
Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances.
In general, limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet.
Service providers, however, are expected to remove material from users' web sites that appears to constitute copyright infringement.
Limits liability of nonprofit institutions of higher education -- when they serve as online service providers and under certain circumstances -- for copyright infringement by faculty members or graduate students.
Requires that "webcasters" pay licensing fees to record companies.
Requires that the Register of Copyrights, after consultation with relevant parties, submit to Congress recommendations regarding how to promote distance education through digital technologies while "maintaining an appropriate balance between the rights of copyright owners and the needs of users."
States explicitly that "[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use..." Read More
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