On March 24, 2104, the U.S. Copyright Office published its final rule establishing new copyright registration fees. The new fees will reflect  increased and decreased fees. Under the new fee structure, the fee for online registration of a standard claim will increase from $35 to $55. However, a new online registration option for single works by single authors that are not works made for hire has been introduced at a lower fee of $35. In addition to fees for registration, related services, and special services, this final rule establishes updated fees for FOIA-related services.

 

Privacy Law Update: California “Do Not Track” 

Two California laws went into effect at the beginning of the year that  require additional notifications to consumers.  The California Online Privacy Protection Act (“CalOPPA”) requires that web sites, mobile apps and other online services available to California residents (in reality anyone with a web site that may be accessed by a CA resident) post a privacy policy that gives notice to consumers regarding behavioral or interest-based advertising practices (“OBA”).

Disclosures must explain:
1. If a web site operator allows other parties to use tracking technologies in connection with the site or service to collect certain user data over time and across sites and services; and
2. How it responds to browser “do not track” signals or other mechanisms designed to give consumers choice as to the collection of certain of their data over time and across sites and services

In addition, the “California Shine the Light Act” requires that companies (except non-profits and businesses with less than 20 employees) collecting broadly defined personal information from California consumers on or offline either: (a) give consumers a choice as to the sharing of that information with third parties (including affiliates) for direct marketing purposes; or (b) provide notice of, and maintain, a method by which consumers can annually obtain information on the categories of information disclosed the names and addresses of the recipients of that data, and a description of the recipients’ business.

If an e-commerce service offers tangible goods or services, or vouchers for them, to California consumers, it must give certain notices to consumers, including how they can file a complaint with the CA Department of Consumer Affairs.

Are you  concerned about how to disclose how your service responds to “Do Not Track” signals or similar tools and settings, and whether third parties are permitted to collect personally identifiable information about consumer online activities over time and across different websites when a consumer uses that online service? We may be able to help. We can review your policies, your information gathering and sharing practices, and advise on whether there is room for improvement.

Please contact us for a no-fee consultation.

I am pleased to announce a collaboration with the San Francisco Design Center:

The Protecting Original Design Package

Designers and manufacturers need to know what steps they can take to protect their designs, businesses and their profits.

Let David Adler of Adler Law Group, an intellectual property attorney, advise you about trademark and copyright laws and how they can be implemented to protect original designs in an age of knock-offs.

David is offering a special offer to SFDC Premier Members: a professional rate reduced by 25% from the standard rate.

Please contact David Adler via telephone at (866) 734-2568, via email at adlerlaw1@mac.com or using the contact from below.

In January of this year, the California Attorney General obtained $150,000 settlement, plus ongoing notification obligations, from a CA company that learned that one its computers had been sold at a thrift shop.

The ongoing obligations include a duty to: 1) notify employees as information becomes available, 2) train employees on additional methods to protect sensitive information, and 3) review and improve its policies regarding protecting sensitive information.

The CA AG’s enforcement action alleged that the company learned of the lost hard drive on September 24, 2011 and regained the drive on December 21, 2011. Within a week, forensic analysis determined employee personal information was contained on the drive. However, the company did not notify some 20,000 current and former affected by the disclosure until mid-March 2012, almost four(4) months later.

So, what is a reasonable time period to respond to a security breach and how fast does a company have to notify consumers or employees that a data breach has occurred?

Unfortunately, there is no “bright line” rule. Most state breach notification laws and, for that matter many Data/IT/Cloud contracts, require notification within a reasonable time frame, or “without delay”, subject to some qualifications. A couple of states require notification to occur no later than 45 days after discovery, there is not a bright-line, objective answer.

California’s law requires that: “The disclosure shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement . . . or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system.”

The key take away is that waiting several months after a forensic investigation to disclose the occurrence of a data breach to those affected is probably too long. Companies facing a data breach can and should take into account the legitimate needs of law enforcement and the requirements of forensic investigation. Within those parameters, a company is well-advised to begin the notification process even if it must reserve for itself the ability to conduct additional investigation and provide sole tang notification.

NOTE: This is not legal advice. Every situation is unique and if you or your company is dealing with a data breach or its consequences you should engage a qualified attorney.

Please feel free to tweet, like, and share this article. You can contact me at (866) 734-2568 for a no-fee consultation.

One of the key issues that must be examined when negotiating or drafting any contract is how the parties may get out of, or “terminate,” that contract. While many attorneys will rest on standard “termination for breach with notice and cure” language, the recent case of Powertech Tech. v. Tessera, Inc. demonstrates how artful drafting can put limitations on a party’s right to terminate. The Opinion in U.S. District Court for the Northern District of California case No. C 11-6121 can be found here.

Powertech and Tessera were parties to a patent license agreement, although the court’s reasoning does not seem limited to only those types of agreements. The license agreement allowed Powertech to use Tessera’s patents in exchange for payment of license fees.

The contract contained the following clause regarding termination for breach:

“Termination for Breach. Either party may terminate this Agreement due to the other party’s breach of this Agreement, such as failure to perform its duties, obligations, or responsibilities herein (including, without limitation, failure to pay royalties and provide reports as set forth herein). The parties agree that such breach will cause substantial damages to the party not in breach. Therefore, the parties agree to work together to mitigate the effect of any such breach; however, the non-breaching party may terminate this Agreement if such breach is not cured or sufficiently mitigated (to the non-breaching party’s satisfaction) within sixty (60) days of notice thereof.”

The court held that Powertech was not permitted to terminate a license agreement with Tessera for Tessera’s breach because Powertech itself was in breach of the agreement by its failure to pay royalties to Tessera.

Acknowledging Powertech’s argument that Tessera was itself in breach, that in and of itself did not give Powertech the right to terminate the contract. Only a “non-breaching” party may terminate the agreement. Said the court “[a]lthough the first sentence of the termination clause is broad – ‘Either party may terminate this Agreement due to the other party’s breach’ — the language of the clause as a whole makes clear that only a non-breaching party may terminate. Reading the clause as a whole, the court concluded “[t]he termination clause refers to a “breaching party” and a “non-breaching party” in every sentence after the first… [therefore]…the clause requires the party seeking to terminate for the other party’s purported breach to be substantially in compliance with its own obligations first.

The Powertech agreement’s termination clause is useful because it put conditions on a party’s ability to terminate the agreement even when the other party was in breach.

David:

Digital media continues to befuddle courts and push traditional legal boundaries.

Originally posted on Gigaom:

When Montana blogger Crystal Cox lost her defamation case in 2011, the decision was greeted by a chorus of cheers from journalists, who were quick to argue that Cox wasn’t a journalist in any real sense of the word, and therefore didn’t deserve any protection from the First Amendment. An appeals court for the Ninth Circuit has disagreed, however: on Friday, a panel of judges overturned the original decision and said that Cox was in fact entitled to protection.

The implications of this ruling go beyond just a single defamation case. It’s another link in a chain of decisions that are gradually helping to extend the principle of free-speech protection beyond professional journalism to anyone who is publishing information with public value — and as such, it helps shift the focus away from trying to define who is a journalist and puts it where it should be: on protecting…

View original 715 more words

At the end of August, the California passed an amendment to the California Online Privacy Protection Act that will require commercial websites and services that collect personal data to disclose how they respond to Do Not Track signals from Web browsers.

AB 370, as introduced by California Assemblyman Al Muratsuchi, requires a business that discloses a customer’s personal information to a third party for direct marketing purposes to provide the customer, within 30 days after the customer’s request, as specified, in writing or by e-mail the names and addresses of the recipients of that information and specified details regarding the information disclosed.

This bill, available here, would declare the intent of the Legislature to enact legislation that would regulate online behavioral tracking of consumers.


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