Originally posted on TechCrunch:
The good folks at the new Beijing and San Francisco-based startup Landscape Mobile have launched Sight today, an app that makes it easier to organize articles on mobile devices.
Copying and pasting on mobile devices is a huge pain in the caboose, and Sight solves that problem by allowing users to take a screen shot of whatever they’re reading through the Sight app (available on iOS and Android), which then scours the web for the story and saves it to the app’s own clipboard.
The technology and talent behind Sight was persuasive enough for IDG Capital to sign on for a $1.85 million seed round.
“An image is the new URL on the mobile web,” says Landscape Mobile’s co-founder and chief executive Yue Zhuge. Yue, a former executive at Yahoo and Microsoft in Beijing and Silicon Valley, has a lot of experience with mobile advertising.
“Because of mobile devices, the…
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June 11, 2014
Contracts for Interior Design Professionals
This crash course on legal contracts is designed for interior designers who are drafting a contract for the first time or wanting to make an existing one airtight.
There’s a reason you became a designer, and it probably didn’t have anything to do with lawyers and contracts.
You’re the expert in color, fabric, floor plans, and furniture schemes, not intellectual property and arbitration provisions. If you’re already confused, don’t fret. This crash course is designed for those drafting a contract for the first time or wanting to make an existing one airtight. Led by David Adler, an actual lawyer who understands the ins and outs of the design industry, this workshop will cover the clauses you need to protect yourself in the unfortunate event that something doesn’t work out as planned. Clients can be difficult enough. Don’t let legal trouble slow you down.
In this class, you will learn how to:
- Define what you are doing for your client, as well as NOT doing for them
- Make sure you get paid on time and in full
- Protect yourself against outside factors that may affect cost and ability to complete a project
- Give yourself a way to get out of your contract if things aren’t working
By the end of class, you will have:
- A basic understanding of key contract terms and the reasons as to why they are there
- A basic client agreement that you can use or customize
The Instructor, David Adler, is an attorney, nationally-recognized speaker, and founder of a boutique law practice focused on serving the needs of creative professionals in the areas of intellectual property, media, and entertainment law. He provides advice on choosing business structures, protecting creative concepts and ideas through copyright, trademark, related intellectual property laws and contracts, and structuring professional relationships. He has 17 years experience practicing law, including drafting and negotiating complex contracts and licenses with Fortune 500 companies, advising on securities laws (fundraising) and corporate governance, prosecuting and defending trademark applications, registrations, oppositions, and cancellations before the US Patent & Trademark Office (USPTO), and managing outside counsel. Currently recognized as an Illinois SuperLawyer® in the areas of Media and Entertainment Law, he was also a “Rising Star” for three years prior. He received his law degree from DePaul University College of Law in 1997 and a double BA in English and History from Indiana University in Bloomington, Indiana. Outside the practice of law, David is an Adjunct Professor of Music Law at DePaul College of Law, formerly chaired the Chicago Bar Association’s Media and Entertainment Law Committee, and is currently a member of the Illinois State Bar Association Intellectual Property Committee.
A recent case involving a Spanish lawyer and his lawsuit to remove information about decade old yet repaid debts from a widely-circulated Spanish newspaper and Google Internet search engine results, was a case of first impression for the European Court of Justice (ECJ), requiring the examination of the EU Privacy Directive in the context internet search engines.
Of note to U.S. companies are the ECJ’s discussions relating to the legal position of an Internet search engine service provider and the so-called “right to be forgotten,” e.g., the right to request that some or all search results related to the individual be removed. More specifically, the classification of Google’s search engine as a “Data Processor” has broad implications for digital business applications such as cloud services and web-based information.
By statute, the European Union (EU) protects the personal data of individuals and regulates both the processing and free movement of such data. Generally known as the EU Privacy Directive, this law applies to defined players called “Data Processors” and “Data Controllers.” A Data Controller is a legal person or any other entity that determines the purposes and means of the processing of “personal data.” A Data Processor is one who processes data on behalf of a Controller.
For companies doing business on the Internet, the ECJ’s decision has four key take-aways: 1) certain automated processes conducted over the Internet are inherently “data processing” subject to the Directive; 2) it is almost axiomatic that a service operator will also be a “controller” because the operator determines the purpose and method of processing the data; 3) a territorial nexus to an EU member state exists where the data processing is in relation other commercial activities that occur within or are directed at the member state; and 4) an individual has the right to request removal of links to information related to his name because the additional information has the potential to create a broader data profile affecting the subject’s privacy rights.
1. Certain Automated Processes Are Inherently “Data Processing”
The ECJ began its analysis by discussing the services offered by Google. The ECJ held that by searching automatically, constantly and systematically for information published on the Internet, by indexing, storing and retrieving those information records, by organizing the data in question, and storing it on servers and, ultimately, disclosing and making it available in the form of structured lists of results, Google is expressly and unconditionally a “Processor” of data, regardless of the fact that it conducts these activities without distinguishing personal data from other types of information, even under circumstances that exclusively concern material that has already been published as it stands in the media.
For U.S. companies the implication is clear. Whether providing or utilizing most, if not all, of today’s cloud-based digital business services, the acts of automatically searching, indexing, storing, organizing, retrieving, disclosing or otherwise making data available, makes such companies data processors subject to the Directive.
2. A Service Operator Will Almost Always Be A “Controller”
After determining that Google was a data processor, it was nearly a forgone conclusion that Google was also a “Processor” of data. According to the ECJ, Google is the controller since it determines the purposes and means of the processing. Without saying as much, the ECJ concluded that Google’s activity of locating, indexing, storing and retrieving information published by third-parties (e.g. original source web sites such as the newspaper) was in addition to that of publishers of web sites and, therefore, liable to affect the fundamental rights to privacy and to the protection of personal data. Google’s liability was derivative of the original publisher with the same responsibilities, powers and capabilities, to ensure compliance with the Directive.
3. Commercial Activities Directed At A Member State Create A Territorial Nexus
U.S. based companies would do well to note the territorial scope of the Directive since a U.S.-based company could be subject to the ECJ’s jurisdiction on questions of compliance with the Directive. With respect to the territorial scope, the ECJ stated that Google Spain – a subsidiary of Google Inc. – was located on Spanish territory and, therefore, an ‘establishment’ within the meaning of the Directive. Importantly, the ECJ explicitly rejected the argument that processing of personal data by Google Search is not carried out as part of the business activities conducted in Spain. According to the ECJ “data processed for the purposes of a search engine operated by an entity that has an establishment in a Member State [has] a nexus if [it conducts] other commercial activities within in the Member State.” For example, Google search engine results were connected to Google’s commercial activity of selling advertising to users located in Span.
4. An Individual Has The Right To Request Removal Of Personally-identifiable Links
One aspect of the judgment has gotten the most media coverage: “the right to be forgotten.” This stems largely from the fact that there is no U.S. equivalent. Given our broad freedom of speech and press, enshrined in the nation’s Constitution, the idea that one’s past can be ‘scrubbed’ is anathema to most U.S. citizens. Nevertheless, given the broad EU focus on protecting the privacy of the individual, the ECJ upheld an individual’s right to request removal of links to information related to the individual’s name on the theory that the additional information has the potential to create a broader data profile affecting the subject’s privacy rights. According to the Court the real risk is that an Internet user, who searches an individual’s name, can obtain other information concerning “a vast number of aspects” of his private life enabling Internet users to establish a detailed profile of the person. This “profiling effect is heightened since the Internet and search engines now make access to such information ubiquitous. Hence, Google is, in certain circumstances, obliged to remove links to web pages that are published by third parties and contain information relating to a person from the list of results displayed following a search made on the basis of that person’s name. The ECJ underscored that the obligation may also exist in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even when its publication on those pages is lawful.
A Murky Future
Recognizing that the information sought may affect a legitimate interest in having access to that information, the ECJ cautioned in its holding that “a fair balance should be sought in particular between [the data subject’s privacy] interest and the data subject’s fundamental rights, in particular the right to privacy and the right to protection of personal data.” Unfortunately, the ECJ’s framework for achieving that balance was anything but clear: “the balance may … depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.” The touchstone inquiry appears to be an examination of whether “even initially lawful processing of accurate data may, over time, become incompatible … where the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.” The ECJ gave no insight as to how or under what circumstances that would occur.
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As more devices are connected, there is a real opportunity to enhance security. The DropCam Tab is a “connected device” that isn’t creepy.
April 2, 2014
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.
March 11, 2014
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 email@example.com or using the contact from below.
February 25, 2014
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.
February 12, 2014
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.