Technology Continues to Test The Bounds of Copyright Law

The Internet is an unprecedented source of disruption. From retail services (e.g. Amazon) to media and entertainment, almost every industry has been forced to rethink its business model due to the accessibility, ubiquity and democratizing force of the Internet. Aereo was positioned to disrupt the traditional media distribution model by giving consumers greater control over what were otherwise “free” over-the-air transmissions.

The Aereo service was premised on the idea that consumers should be able to watch and record over-the-air broadcast television programming via the Internet. Major broadcast networks that owned the content made accessible through Aereo challenged the model on the grounds that Aereo was violating the exclusive “public performance” right guaranteed by the Copyright Act.

Copyright law provides copyright owners six exclusive rights. One of those rights is the exclusive right to publicly perform the copyrighted work. Because this right is a statutory construct, one must look to the statute to determine its meaning. To “perform” and to perform “publicly” means “to transmit or otherwise communicate a performance or display the work to a place … or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

While many reacted by asking whether the case would stifle innovation and have a chilling effect on start-ups, this case does highlight the increasing tension between technological advances and copyright law.

From a practical standpoint, one need not be alarmed about the impact of the decision on most types of innovation. For one thing, the Court went to some lengths to craft a reasonably narrow decision, which applies only to broadcast TV retransmitted over the Internet.

As with any type of innovation, there are different types of risk. On the one hand, there is technology risk: the risk that whatever technology is necessary for some business plan simply won’t work. On the other hand, there is legal risk, highlighted by the Aereo decision: the risk that the entrepreneur’s interpretation of some act or case law won’t ultimately prevail. That’s what happened to Aereo.

As an IP lawyer, I am somewhat perplexed. It is hard for me to understand why Aereo made such a bold move. However, at least the district court agreed with Aereo’s interpretation.

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

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.

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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Into the data jungle – in association with Huron Legal
The Lawyer
Technological developments such as cloud computing, social networking and mobile apps mean EU law is no longer fit for purpose. The EU claims current laws often conflict and cost businesses a total of nearly £2bn a year.

Saudi Arabia considers law against insulting Islam
Bangladesh News 24 hours
JEDDAH, Saudi Arabia, July 16 (bdnews24.com/Reuters) – Saudi Arabia is studying new regulations to criminalise insulting Islam, including in social media, and the law could carry heavy penalties, a Saudi paper said on Sunday.

Mind the missteps in online job dance
Lawyers Weekly
With some background check firms specializing in social media searches (U.S.-based Social Intelligence Corp. for one), how do third-party recruiters use social media when screening or finding clients for law firms in Canada?

Saudi Arabia looking to criminalize Islam insults on social media
Bikya Masr
DUBAI: The Saudi Arabia government is looking to ensure users on social media networking sites do not insult Islam or the Prophet Mohamed, al-Watan newspaper reported on Sunday, citing officials who said a new law could bring “heavy” penalties.

Watching the detectives: the case for restricting access to your social media data
Delimiter
That debate tells us something about how Australians and the media conceptualise privacy and business-government relationships in a world where mobile phones and social network services such as Facebook are ubiquitous.

10 Tactics for Integrating Photographs into Content Marketing
Business 2 Community
Acquire digital rights for images. Remember when using images, especially photographs, your legal team is your best friend. Ensure that you’ve got the right to use the photos by incorporating outtakes and additional shots for social media.

Syracuse Neighborhood Watch plans to increase social media outreach
CNYcentral.com
New program coordinator plans more email, social media contact. … CNY Biz Central – Legal. Helpful advice about finding the right attorney for your legal needs. CNY Biz Central. Get information from our team.

Reasonable Expectations of Privacy in the Digital Age
Mondaq News Alerts (registration)
In this digital age of smart phones, global positioning systems, cloud computing, and social networking, determining what constitutes private information and what lengths our legal system will go to protect it is increasingly challenging.

Sale Of Digg Reminder Of Potential Risks To Facebook And Other Social Media …
Seeking Alpha
In 2011, social media watchers may recall reading in Bloomberg that Myspace, which had been purchased by News Corporation (NWS) for $580 million in 2005 had reportedly been sold for just $35 million to private investors, including Justin Timberlake. In …

Your Social Media Tweeting & Posting Legal Rights. TV … – YouTube
Find out how legally liable you are for your Twitter Tweets and Facebook postings.

Learn more about me here: www.ecommerceattorney.com and follow me here

Israel’s Ban on Ultra-Thin Models

FASHION-SAFRICA-NIGERIA-BAKARE

FASHION-SAFRICA-NIGERIA-BAKARE (Photo credit: Bohan Shen_沈伯韩)

 

The Atlantic

By Talya Minsberg A new Israeli law prohibits fashion media and advertising from using Photoshop or models who fall below the World Health Organization’s standard for malnutrition. When a 14-year-old girl delivered a 25,000-signature petition this week to Seventeen asking them to curb their use of Photoshop, the magazine issued a press statement that congratulated the girl on her ambition but was conspicuously silent on changing their editorial practices.

An Impossible Conversation About the Met’s Spring 2012 Costume Institute Exhibit

Huffington Post (satire)

So, culturally and historically, the reason women care so much about fashion is that until very recently, we weren’t allowed professional, legal or vocal ways of expressing ourselves. Fashion was a way of articulating our feelings about ourselves.

Small Aussie fashion label turns George Lucas legal threat into ‘Star 
Dallas News Small Aussie fashion label turns George Lucas legal threat into ‘Star Wars‘ clothing deal.

AsianFashionLaw | Page 5
Fashion lawyers are legal experts too. Sometimes I feel as though people think I am in design studios all day twiddling my thumbs as I look at models wearing 
www.asianfashionlaw.com/page/5/

Adidas-India’s ex-MD slaps legal notice on company - Fashion United
The Adidas-saga in India seems to be taking a different turn. - Fashion India News, Network, Business Community, fashion industry, international, platform for 
www.fashionunited.in/…/adidas-indias-ex-md-slaps-legal-notic…

US consumers are waking up to privacy issues related to smartphone use. About two-thirds of search engine users disapprove of the collection of information on their searches for the purpose of personalizing their future search results and an equal proportion of all internet users disapprove of being tracked for the purpose of getting targeted ads.

Interestingly, the two most popular smartphone platforms treat application data gathering differently. While Apple reviews prospective applications before launching them into its iPhone app store, Google’s open-source Android platform has no such system in place. But while the Android system runs each application separately and explicitly lists the services or data each application accesses, Apple’s iPhone system treats all applications as equal and allows them to access many resources by default.

Until application developers and hardware makers start taking Privacy-By Design” seriously, users must pro-actively protect their privacy. If you have a smartphone and use it to download apps, there’s little you can do to completely lock down your personal information. But there are a number of precautions you can take to ensure minimal risk exposure.

So, here are seven basic basic smartphone privacy tips you can take to cut down on risks:

  1. Don’t download apps form unknown sources. If you have not heard of an app, read its user reviews. Even better, look it up online and see what has been said about it.
  2. When possible, opt out of information sharing capabilities.
  3. Get acquainted with your phone’s GPS features. Most smartphones allow one to adjust which applications have access to GPS. Turn this feature off for all but the most essential of apps.
  4. On Android: Before you download an app, check its user permissions. This should give you a breakdown of what information the app will access. Ask yourself if a simple game apps really needs to access the contact list?
  5. For Android: If you’ve opted to “root” (obtain privileged access) your device, be wary of granting apps root access. Doing so grants them complete control over your phone.
  6. For iPhone: If you have “jailbroken” (circumvented the proprietary programming restrixtions) your phone, be sure to change its root password. You can find guides online, or else get a trusted technician to do so for you.
  7. If you are no longer using an app, uninstall it.

While there is no easy way to figure out which apps are the riskiest, paid apps tend to pass less data on than free ones. Remember, “free” content is usually monetized in other ways, most often by selling user data.

Abraham Lincoln, the sixteenth President of th...

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Hiring a lawyer

While small businesses often need some legal advice, they can’t always find a professional with the right expertise at a budget the small business can afford.  Since small businesses usually don’t need lawyers that often, when it comes time to review a contract, buy out a partner or protect their brand and trademark, they often don’t know where to start.  The purpose of this article is to give executives a business owners a guide on how to ask a prospective lawyer the right questions to get the service one needs at a price that one can afford.

To get answers to questions about hiring a lawyer, please select one of the links below.


How do I hire a lawyer?

Lawyers are highly-trained professionals who counsel individuals and businesses in a full range of personal and corporate legal matters. Many business transactions have legal implications, so you should try to find a lawyer whom you can treat as a trusted advisor. These questions are designed to help you choose the right lawyer for your situation.


What can a lawyer do for me?

Lawyers provide legal guidance. This doesn’t mean that they can make your business decisions for you. A lawyer should identify legal issues of concern to you or your small business, tell you what the law says about these issues, and advise you on how to address them.


How can a lawyer help me in setting up a business?

A lawyer can:

  • Explain the advantages and disadvantages of a sole proprietorship, a partnership or a corporation;
  • draft a partnership agreement or incorporate your company;
  • review financial documents for your business such as a loan;
  • review leases of premises or equipment;
  • act for you in the purchase of property;
  • review franchise agreements;
  • draft standard form contracts for use in your business;
  • advise you how to best protect your ideas, trademarks, designs and know-how.

How can a lawyer help when my business is up and running?

A lawyer can:

  • help you negotiate contracts and put them in writing;
  • advise you on hiring and firing employees;
  • advise you about doing business in other provinces and countries;
  • help you collect unpaid bills;
  • defend any lawsuits against you;
  • advise you about taxes.

If I decide to get out of business, how can a lawyer help me?

A lawyer can:

  • help you sell your business;
  • help you sell you ownership interest if you are one of several owners;
  • arrange for the transfer of the business to your children;
  • dissolve a corporation or LLC.

When do you need a lawyer?

The recommended approach is to seek the advice of a lawyer whenever a legal issue arises that involves your business. Since it is not always clear when that happens, many problems are solved without resorting to lawyers. When an issue arises, you must first decide whether you need a lawyer at all. In order to know if you should solve your problem on your own, ask yourself the following questions:

  1. What are the consequences if you are unsuccessful?
  2. How complex is the law in your situation?
  3. Do you have the time and energy?

If you are still unsure, some outside professionals, advisors or para-professionals may be useful:

Check with your Board of Directors or Board of Advisors; they can provide information about the steps they went through and the resources they used in solving their problems. Contact government and non-profit organizations for income tax, legal aid, consumer protection, employment standards, etc.

Check with other professionals: accountants, bank officers, insurance agents. For some routine matters, legal assistants, para-legals and notaries public are useful. While not allowed to give legal advice, they can provide added value in familiarity with standard corporate forms and filing requirements.

Also, don’t forget public libraries, legal aid services, student legal services, small claims courts, reading self-help books and other resources such as books, pamphlets and videos.


How do I contact a lawyer?

Give him a call. Most lawyers are happy to steer people in the right direction and calm fears about the legal process. There are several advantages to this approach. The main one is that a lawyer can quickly cut to the heart of your problem, distinguish between legal and non-legal problems. Another advantage is that you usually will not be charged for this phone call. Finally, a lawyer will not only keep your problem confidential, but has the ability to assess it from a less emotional perspective.

Please feel free to call us at (866) 734-2568 should you have any questions.


How do I find a lawyer?

First, try to identify the areas of law in which your problems fall so that you can find a lawyer capable with dealing with all these areas. Some of the main areas of legal practice linked to business are:

  • Corporate/commercial/securities law (incorporation, buying/selling a business, drafting shareholders/partnership agreement)
  • Labor/employment law (negotiating and interpreting collective agreements, resolving disputes, explaining obligations, advising about restrictive covenants, dismissals)
  • Civil litigation law (suing, being sued, collecting debts, negotiating and settling)
  • Real Estate law (buying or selling land or property, negotiating a lease, solving landlord/tenant disputes, mortgaging property)
  • Wills and estates (drafting or challenging a will, probate)

What should I ask a prospective lawyer?

Some questions you should ask a prospective lawyer are:

  • How many years are you in practice?
  • How long have you been with your current firm?
  • What areas of law do you practice?
  • Are you a partner or an associate?
  • Time and accessibility
  • How quickly can I expect a resolution?
  • When can we meet?
  • How much can I expect top pay?
  • How do you charge for your services?
  • Do you provide your clients with a detailed written statement of fees?
  • Do you charge anything for the first meeting?
  • Do you communicate via telephone, cell phone, fax or email?

How can I help my lawyer?

Ways you can help your lawyer include:

  • Be honesty and open
  • Tell the lawyer all the facts, even the ones that you think are “bad”.
  • Keep your lawyer up to date on any events or any changes relating to your file.
  • Ask for advice in plain language and summarize how you understand it.
  • Ask to be directed to any reading that you could do to better understand.
  • Ask for a description of the steps your lawyer plans to take and think about the way you could help at each step.
  • Stay informed and keep track of what transpires on your file.
  • Take notes at all meetings and list tasks to be completed.
  • Ask for copies of all correspondence on file.
  • Have confidence in your lawyer’s advice and follow his/her instructions.
  • Do not harass your lawyer. If you need more attention, discuss way in which he/she can keep you informed.
  • Be prepared to accept both positive and negative advice.
  • Never do anything concerning your case without consulting your lawyer.
  • Provide information to your lawyer as soon as possible after he/she requests it.
  • Pay your bills on time and be available if your lawyer needs you.

How do lawyers calculate their fees?

Depending on the complexity of the issues, the services required, and the degree of experience of the lawyer, fees can be charged in different ways:

  • Billed hourly: charged a rate for the time they spend working for you (e.g. the time spent reading a letter or talking on the phone).
  • Flat Fee: charge a flat rate for a particular matter, usually when they can predict how long the work will take: incorporations, trademarks.
  • Contingency Fee: in some matters, the lawyer’s fee will be a stated percentage of the amount of money collected from the lawsuit.
  • Retainer: provide a range of specified services for a fixed monthly or annual fee.

In addition, lawyers will also bill for disbursements such as long distance phone calls, photocopies, document filling fees, experts’ reports and travel expenses.


Safeguarding Ideas, Relationships & Talent®

Executives face an often confusing and changing set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment. Adler & Franczyk is a boutique law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.

We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.

On the web: www.ecommerceattorney.com
On Twitter: http://www.twitter.com/adlerlaw
On LinkedIn: http://www.linkedin.com/in/adlerlaw

Subscribe to Ping® The Legal eNewsletter

We look forward to the opportunity to discuss any questions you may have regarding the range of business, technology and intellectual property services we offer. Please feel free to call us at (866) 734-2568 should you have any questions.

IP & Technlogy Update

August 25, 2010

MEDIA & COMMUNICATIONS LAW
Blogger Beware: You Can Be Sued Over ‘Anonymous’ Posts http://bit.ly/9yfYfF

PRIVACY LAW
Beyond Big Brother: Some Web Hosts Are Watching Your Every Keystroke

http://www.abajournal.com/mobile/article/some_web_hosts_are_watching_your_every_keystroke

  1. Creative Content. RIAA’s victory against LimeWire marks a major victory for content creators. Holding software companies responsible for copyright infringement occasioned by individual users is a huge incentive to the creative community’s use of the Internet as a platform for commerce.
  2. Personal Development. Find a Mentor. (One who can answer your questions.) Follow these steps: 1) Find Mentor, 2) Create a Shared Need (Do a market study); 3) Build a Vision statement; 4) Clearly define the goal; 5) Discuss your plan; 6) Write down the Dependencies, e.g. Open Issues, Risks, etc…; 7) Identify Stakeholders, e.g. Partners, Employees, Vendors, Service Providers, Government, Public/Private institutions; 8) Mobilize commitment; 9) Draft an execution plan; 10) EXECUTE; 11) In the immortal words of my father, Irv Adler: follow up, follow up, FOLLOW UP! (Monitor and Control your execution) 12) If its not working, go back to Step 5. [Excerpted from Execution, by Ram Charan]
  3. Entertainment. Monetizing Original Web Content Micro-transactions (iTunes or YouTube) are real revenue drivers for episodic web programming. Combine that with advertising and sponsorship and you have a winning model. Content has to be extraordinarily compelling. You can help a video go viral by making sure the right people see it and share it with their sphere of influence.
  4. Start-ups. You Don’t need a PR agency. You DO need know how to turn a good idea into a great message that can be easily told, and easily spread.
  5. Technology. Top Ten Blackberry Apps for Small Business.

|Safeguarding Ideas, Relationships & Talent®|

Executives face an often confusing and dynamic set of challenges trying to ensure that their business remains legally compliant.  Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment.

Adler & Franczyk is a boutique law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.

We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.

Sincerely,

Adler & Franczyk, LLC

On the web: www.ecommerceattorney.com

On Twitter: www.twitter.com/adlerlaw

On LinkedIn: www.linkedin.com/in/adlerlaw

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