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Estates, copyrights, realtors, MLSs, living trusts and the DMCA

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Should you use living trusts to transfer ownership of copyrights as part of your estate? Most importantly you must own the copyrights with no one having the ability to challenge that ownership. The trust could be declared invalid if the ownership is challenged. Living wills and living trusts are items that for some reason seem to get mixed up. Simple thing is that a living will concerns your medical condition and living trust concerns your property. Now as you have seen copyrights are worth a lot of money in many cases. They have been and should be a matter of concern for wills and living trusts. A couple of things about a living trust concerning copyrights and protecting copyrights for their families.

Each state in the US has a little different take on them. I know that Arizona, Indiana and Florida are very close in how they handle them. With that in mind I will use general terms found in them. They are simple, private and can be done pretty easily. There are a couple of things about them that you may need to know. If you transfer real estate to a living trust you have to issue a new deed and record it. Without doing that the trust may not be binding or even legal. If you do not transfer all the property to the trust there is no trust. Another issue is that a Federal Court has issued a ruling that Homestead Exemptions are not allowed in a trust as the trust is not a living person. The property tax exemption is probably the same. What does that mean? It means higher taxes due on the property. If there is no real estate involved things are simpler as real estate has some very strict laws that apply to it. You have no issue transferring personal property to a trust but remember it has to be listed not just a blanket statement. My position on the copyrights is to do an instrument of conveyance, have it notarized and recorded in the copyright office. That should pretty much do it. But consult an attorney concerning the process of the living trust including the copyright transfer. The mortgage may or may not be accelerated but when the person dies who put the house in the trust(the trustee) the mortgage will in all likely hood have to be paid under the terms of the mortgage regardless of the trust. Again check with a legal authority in this area for your state or country.

The questions continue on the copyright infringement and DMCA CMI violations. Just remember a few things. They are not the same. Some courts are suggesting that a CMI violation is a copyright infringement. In the provisions of the DMCA it provides for independent causes of action for (a) circumvention of certain technological measures like passwords and encryption. Those protect and control access to copyrighted works (Sec. 1201), and (b) the falsification, alteration, removal, distribution, or importation of the Copyright Management Information. ( Sec.1202). The registration of images is not actually addressed in the DMCA . The courts did not enforce that in Real Networks, Inc. v. Streambox, Inc. Violations of 1201 and 1202 have remedies totally different and separate from those in copyright infringement violations. Another interesting point has been made about the fact that others besides the copyright holder may claim damages under the DMCA also in Real Networks, Inc. v.Streambox, Inc... You might also check Medical Broadcasting Company v. Flaiz, No. Civ. 02-8554 (E.D. Pa. Jun. 12, 2003) for more information on registration. Now for the simple thing, register your images and it solves the questions.

Another difference between copyright infringement and the DMCA CMI violations is that infringement is per work infringed (Section 504). The DMCA violation damages are figured on each violation. This is a huge difference as with the MLSs it can entail the whole real estate vertical as they used the images. It could be a monumental case if one is filed.

The realtor and MLSs issues are just coming into focus for several people and multiple listing services. Some brokers are pushing them and some of the MLSs are pushing back. The main issue for me is the posting of their name on images that they do not own. No matter how they got the images, they have no right to claim ownership as putting their name on them suggests unless they have a conveyance signed by both parties transferring the ownership. I would not hold my breath that terms of service agreements would be considered a conveyance as it is not specific like the conveyance is supposed to be. And unless you are part of their system those terms of services do not apply anyway. There may be an issue if you directly upload your images to them or their website but if like in my case it was done by someone else and who was told not to do it. There were very specific reasons for that. None of those reasons involved copyright or DMCA issues.

I am not an attorney. These are my personal opinions and general information only. These are not legal advice and should not be used as such.

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