Do you work with start-up companies and need a basic understanding of the various intellectual property issues that can arise?

I will be co-presenting in this online seminar that will help you:

  • understand the trademark and copyright problems your client may encounter with branding;
  • learn how to protect your client’s branding once established;
  • familiarize your practice with patents, including what they protect, timing, and strategies to prevent inadvertent loss of patent rights before filing the application;
  • understand trade secrets and the importance of non-disclosure and confidentiality agreements;
  • recognize intellectual property issues relating to technology, including open source code and the cloud;
  • establish a proactive approach toward intellectual property ownership between cofounders, employees, and vendors; understand business names, domain names, promotional issues, and website content concerns.

The program qualifies for 1.5 hours MCLE credit.

I would like to personally invite you to attend the upcoming Law Ed program titled, “Identifying Intellectual Property Issues in Start-Ups,” which I will be co-presenting via live webcast on Tuesday, May 27th.

Presented by the ISBA Business Advice and Financial Planning Section

Co-Sponsored by the ISBA Intellectual Property Section

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.


As a result of the rapid shift in marketing from unilateral one-to-many communications, to the multilateral, many-to-many or many-to-one conversations enabled by Social Media, employees and employers are struggling to manage accounts that are used for both work and personal purposes.

This new phenomenon has benefits, but it also creates a number of legal challenges. For employees, it may result in greater efficiency, more opportunities for authentic customers engagement and the ability to stay on top of the most current grands and business issues. For employers, it presents opportunity to reap substantial benefits from lower communications and customer support costs. For in-house counsel, it raises a host of legal and practical issues with few easy solutions and significant liability and regulatory risks.

First, there are hardware issues. Smartphones, tablets and other personal electronics often have social networking capabilities built in. in addition, they contain contain both personal and business data. Because these devices are always on and always connected, they are more than just personal property. They have become essential business tools. For both sides of the workplace equation, employers and employees must understand where the privacy lines fall between personal versus work-related information.

Second, there are data issues. Employers must balance their needs to monitor employee usage, employees’ privacy concerns, and the risk of liability for theft or exposure of data if a device is lost or stolen, or from lack of proper safeguards on account usage. For in-house counsel tasked with drafting policies to address these risks, , Prior to implementation of any policy, the legal team needs to educate front line employees and management on reasonable expectations of privacy and security and the harms that the organization seeks to prevent.

Lastly, recent cases such as the Cristou v. Beatport litigation, highlight the struggle to define and control the beginning and end of employee social media accounts, ownership and protection of intellectual property and the post termination risks that arise from the absence of appropriate policies.

As we prepare to start a new year, the time is ripe to establish security and privacy policies governing creation, maintenance and use of employees’ social media accounts for work functions. In-house counsel must lead the charge to educate, inform and train employees about privacy, security and evidence-recovery implications associated with use of social media.

A complete collection of the 38 federal acts governing U.S. information privacy law.

1. Bank Secrecy Act
2. Cable Communications Policy Act
3. CAN-SPAM Act
4. Children’s Online Privacy Protection Act
5. Computer Fraud and Abuse Act
6. Communication’s Assistance for Law Enforcement Act
7. Computer Security Act
8. DNA Identification Act
9. Dodd-Frank Wall Street Reform and Consumer Protection Act
10. Drivers Privacy Protection Act
11. Economic Espionage and Protection of Proprietary Information Act
12. Electronic Communications Privacy Act
13. Electronic Signatures in Global National Commerce Act (ESIGN)
14. Employee Polygraph Protection Act
15. Fair and Accurate Credit Transactions Act of 2003 (FACTA)
16. Fair Credit Reporting Act
17. Family Educational Rights and Privacy Act
18. Federal Computer Crime Act
19. Federal Privacy Act
20. Federal Trade Commission Act
21. Foreign Intelligence Surveillance Act
22. Freedom of Information Act
23. Gramm-Leach-Bliley Act
24. HIPAA Regulations
25. Identity Theft Assumption and Deterrence Act
26. Medical Computer Crime Act
27. OECD Privacy Guidelines
28. PATRIOT Act
29. PIPEDA Privacy Act
30. Privacy Protection Act
31. Real ID Act
32. Right to Financial Privacy Act
33. Safe Harbor Privacy Principles
34. Telecommunications Act
35. Telephone Consumer Protection Act
36. Uniform Computer Information Transactions Act (UCITA)
37. Veteran’s Affairs Information Security Act
38. Video Privacy Protection Act

Although courts have called the Internet “one large catalyst for rumor, innuendo, and misinformation,” nevertheless, it provides large amounts of evidence that may be relevant to litigation matters. Increasingly, courts are facing presentation of, and challenges to, data preserved from various websites. According to a survey conducted by the X1ediscovery blog, there are over 320 published cases involving social media/web data in the first half of 2012.

Evidentiary authentication of web-based data, whether it’s Internet site data available through browsers, or social media data derived from APIs or user credentials, presents challenges. Given the growing importance of social media posts and data, businesses should be prepared to offer foundational evidence to authenticate any posts that are vital to a case.

Authentication of social media and web data is a relatively novel issue for many courts. Courts have been extremely strict in applying foundation requirements due to the ease of creating a profile or posting while masquerading as someone else. Therefore it is important to go beyond the surface of a social media profile or a post to provide the foundation necessary to authenticate what he evidence for use in court.

Regardless of the type of data, it must be authenticated in all cases. The authentication standard is found in Federal Rule of Evidence 901(a), “The requirement of authentication … is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998).

The foundational requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. See US v. Tank, 200 F. 3d 627, 630 (9th Circuit 2000) (citing Fed.R.Evid. 901(a)). This burden is met when “sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity.” This burden was met where the producer of chat room web logs explained how he created the logs with his computer and stated that the printouts appeared to be accurate representations. Additionally, the government established the connection between the defendant and the chat room log printouts based on IP addresses.

See also, Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154, and Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and referencing additional elements of “circumstantial indicia” for authentication of electronic evidence).

Clearly, there is an emerging trend in the use of social media and web data as evidence. As the use of this type of evidence increases, so too will the consistency and predictability of the foundational matters required by courts. Thus, businesses are well advised to include web collection and social media support in the investigation process so they are prepared to offer the necessary foundational evidence to authenticate any social media posts that may be vital to a case.

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1. Content & Marketing

MutualMind Signs Agreement With LexisNexis to Offer Advanced Social Media
MarketWatch (press release)

PRNewswire via COMTEX/ — MutualMind, an award-winning social media technology developer based in Dallas, Texas, announced an agreement today with LexisNexis, a leading provider of legal content and technology solutions.

Facebook: Should Law Firms Bother?
Business 2 Community

While consumer brands have embraced Facebook as a key tool in building deeper customer engagement, the biggest social network largely remains terra incognita in the legal world. The sector has certainly harnessed professional networking sites.

2. International

Bahrain may act against social media abuse
Trade Arabia

Legal action could be taken against people in Bahrain, who incite violence and spread sectarianism on social media, said a top official. The initiative comes as a new code of honour for social media users is set to be launched by the Bahrain Bloc.

3. Law Enforcement

Infographic: How police investigators are using social media
Police News

An overwhelming majority of investigators using social media for investigative purposes are “self taught,” according to a new survey of 1200 Federal, state, and local law enforcement professionals.

Social media for investigators: Why Police departments should invest in training
Police News

That’s but one of the many conclusions found in a comprehensive new survey — conducted in a partnership between PoliceOne and LexisNexis Risk Solutions — focused on the impact of social media on law enforcement in criminal investigations. Among the …

4. Employees & Workplace

What your social media profile is telling future employers? (Take our poll)
Plain Dealer

The State of Maryland already has passed a law forbidding employers from asking job candidates for their passwords to Facebook and other social media sites, and California is considering a similar law. 01fgSCREEN2.jpg View full size · The Society for …

Social Media in the Workplace – July 2012
JD Supra (press release)

With an understanding of some of the relevant issues, employers can implement meaningful and reasonable policies and guidelines for employees and respond appropriately and legally to social media issues that arise. Below are a few of the discrete issues …

5. Financial Services

Quest IRA, Inc. Develops New Interactive Website & Social Media Campaign
Equities.com

The trick for us is trying to provide legally correct information, in such a way that is easy to understand, to the American public so that investors truly understand their options with retirement savings.” “Internet, the online experience and social media are the 21st Century.”

The New Social Metrics
Bank Technology News

Below are methodologies and metrics for determining the ROI of these specific social media use cases. The metrics roll up to three major categories of benefits: revenue impact, operational efficiencies, and legal and compliance risk avoidance.

David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner with Leavens, Strand, Glover & Adler, LLC, a boutique law firm in Chicago, Illinois created with a specific mission: provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in order to drive innovation and increase overall business value.

We meet this challenge by providing legal counsel on issues related to creation, protection and commercialization of intangible assets, our comprehensive understating of the relevant law, our team of seasoned professionals and our client service philosophy.

Statute Puts Online Libraries and Other Service Providers at Risk
Kansas City infoZine

A New Washington State Law Intends to Make Online Service Providers Criminally Liable For Online Postings. The Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to block the enforcement of SB 6251, a law aimed at combating advertisements for underage sex workers but with vague and overbroad language that is squarely in conflict with federal law.

NLRB General Counsel Issues Further Guidance on Social Media
National Labor Relations Board (“NLRB”) is closely scrutinizing employer social media policies.

Legal issues in the media
Social Media Legal, Regulatory & Compliance: Risks & Issues Social Media Slideshare presentation.

Putting the Consumer Privacy Bill of Rights into Practice
Providing transparency in how consumer data is handled by mobile applications – this is the first topic for the National Telecommunications and Information…

US lawmakers propose digital bill of rights to safeguard privacy …
Two US lawmakers have proposed a digital bill of rights to safeguard consumer privacy rights and ensure internet freedom.

Stakeholders to Discuss Consumer Privacy Bill of Rights
The National Telecommunications and Information Administration (NTIA) will convene stakeholders July 12, 2012 in Washington, DC to develop a privacy code of conduct.

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