You’re Invited to LAUNCH: Client Contracts 2.0

Contracts

DATE: Wednesday, June 29
TIME: 9:30AM to 11:30AM
LOCATION: New York Design Center, Conference Room
ADDRESS: 200 Lexington Avenue, NYC

Have you ever had a client refuse to pay a bill, not give you credit for your work, or use your design scheme without hiring you? As loathsome as these situations sound, the reality is that they happen more often than we like to admit. The best way to avoid these issues is to arm yourself with an airtight contract. For this task, we’ve enlisted David Adler, a Chicago-based lawyer who understands the ins and outs of the design industry, to serve as your legal expert for the morning. He will address some of the biggest risk factors interior designers face today and how your contract can (and more importantly, should) cover you. You’ll leave with a better understanding of how you can tighten up your existing contract so you don’t have to learn the hard way.

Register for the event here.

Tracking Tech Case Provides Guidance on Customer Opt Outs

From healthcare apps, to mobile devices, to utilities, services are collecting and aggregating customer data across many different types of connected devices. Many mobile apps and services rely on a consumer’s location information. As more mobile apps connect to the Internet to send and receive location data, the FTC, legislators, privacy advocates, and others have identified location information as a particularly sensitive category of data. A recent study conducted by Carnegie Mellon University contained shocking revelations about the frequency with which location information is gathered and transmitted to companies through their mobile apps. At the same time, the recent settlement with in-store retail customer tracking provider Nomi highlights the FTC’s increased scrutiny of data gathering practices and disclosures of mobile application developers.

It is no secret that retailers could derive significant business intelligence from the real-time moments through stores. This is one of the areas around which companies innovate around customers’ private information. For example, Nomi Technologies, a company whose technology allows retailers to track consumers’ movements through their stores, made headlines when it agreed to settle Federal Trade Commission charges that it misled consumers about opting out of their tracking services. This is not why you want to have your company’s innovations in the news.

Business counsel both inside and outside of companies developing applications that leverage mobile geolocation data of consumers and employees should be aware of the many issues that are developing around this area such as: How is geolocation information gathered and how does data flow from device, to app to, third party? How is it shared and used in mobile advertising? When is consent required and how should stakeholders obtain such consent?

 

Copyright, Fair Use & Media

Digital Media

Digital Media

Media Creation & Consumption is Challenging Traditional Legal Notions.

At a time when #media creation & consumption has transformed, two recent cases, both involving Fox News Network on opposite sides of the “fair use” defense to copyright infringement, highlights the evolving and dynamic legal challenges facing business and content creators. In each case, Fox News loses on Summary Judgment.

Photographs, Fair Use & Social Media

The first case, North Jersey Media Group, Inc. v. Jeanine Pirro and Fox News Network, LLC, involves what many recognize as the “now iconic photograph of the firefighters raising the American flag on the ruins of the World Trade Center on September 11, 2001.” The photograph – which bears a striking resemblance to Joe Rosenthal’s World War II photograph of the Iwo Jima flag-raising – has become a similarly striking symbol of American patriotism.

That similarity was not lost on a production assistant for a Fox News program “Justice with Judge Jeanine” who posted the two images, unaltered, on the show’s Facebook Page, along with the phrase “#neverforget,” allegedly to commemorate the twelfth anniversary of the attack.

The case is noteworthy for its analysis of the “fair use” defense in a social media context. While the Copyright Act grants authors certain exclusive rights, including the rights to reproduce the copyrighted work and to distribute those copies to the public (17 U.S.C. § 106(1), (3)) one often quoted and widely misunderstood limit to those rights is the doctrine of “fair use,” which allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances. The fair use doctrine is an after-the-fact defense to infringement, not a pre-emptive justification to use another’s work without permission.

Educated in journalism and media studies, the production assistant acknowledged that she understood a copyright to be something that is owned by someone else although she had no training in copyright law either in college or during her tenure at Fox News. She had been working at Fox News for approximately three years, had previously sought legal advice regarding use of photographs on the broadcast, but never in connection with posting images to the program’s Facebook page.

The key take-away for businesses and digital marketers alike is the need for vigilance when using third-party content on social media. Employee education and training on what copyright protects, what it doesn’t, and how it works may help prevent your business form facing a similar situation.

Media Monitoring, Digital Content & Copyright Fair Use

The second case, Fox News Network, LLC v. TVEyes, Inc., involves a company that monitors and records all broadcasts by more than 1,400 television and radio stations twenty-four hours per day, seven days per week. This content is indexed and organized in a searchable database that allows subscribers to search terms, determine when, where, and how those search terms have been used, and obtain transcripts and video clips of the portions of the television show that used the search term.

Fox News Network, LLC sued to enjoin TVEyes from copying and distributing clips of Fox News programs. TVEyes asserted that its system and services are permitted under the doctrine of “fair use.”

The court found that TVEyes service was a fair use. Unlike other services that simply “crawl” the Internet, culling existing content available to anyone willing to perform enough searches to gather it, the indexing and excerpting of news articles, where the printed word conveys the same meaning no matter the forum or medium in which it is viewed, the service provided by TVEyes is transformative. By indexing and excerpting all content appearing in television, every hour of the day and every day of the week, month, and year, TVEyes provides a service that no content provider provides. Subscribers to TVEyes gain access, not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified, and enlarged by news broadcasts.

The key take away for technology companies that rely on content is what the court says about features of the Services (as opposed to the technology itself, e.g. the software/platform): the issue of fair use is for the full extent of the service, TVEyes provides features that allow subscribers to save, archive, download, email, and share clips of Fox News’ television programs. The parties have not presented sufficient evidence showing that these features either are integral to the transformative purpose of indexing and providing clips and snippets of transcript to subscribers, or threatening to Fox News’ derivative businesses.”

In other words, evidence that certain features are essential to the use of a service, may be sufficient to show how the features (service) exist above- and-beyond what stale or static content can show.

You Don’t Have to Muddle Through

When it comes to understating evolving technology legal risks, your business can’t simply muddle through. The professionals at the Adler Law Group can help you adopt conduct risk assessments, provide employee training and methodologies for approaching these challenges by setting objectives, determining scope, allocating resources, and developing practices that will efficiently and effective manage risks, while keeping pace with the business.

For a free consultation, call us at (866) 734-2568, send and email to info@ecommerceattorney.com or visit our web site www.adler-law.com

DATA PRIVACY DAY 

Do You Understand Your Data Privacy Rights?

Data Privacy Day was started in 2007 in response to widespread lack of understanding about how personal data was being protected. Today, 91% of adults “agree” or “strongly agree” that consumers have lost control over how personal information is collected and used by companies, according to a recent Pew Research Center Survey.

Data is one of the natural resources of the 21st century. It should be treated like all other precious resources. Understanding, responsibility, and accountability are key. Ubiquitous Internet connections, unprecedented processing power and speed combined with staggeringly large databases have the ability to help both the private and public sectors. However, there is a growing split between the benefits of data-driven activities and perceptions of decreased privacy rights needs to be addressed. There is a balance that needs to be found between the responsibility of governments and that of businesses in ensuring an adequate level of protection to citizens and consumers, while supporting technological innovation.

The purpose of Data Privacy Day is raise awareness among digital citizens and empower them with understanding how their data is being collected, stored and consumed. Often, that starts with being educated about the privacy policies of online companies and web properties.

The National Cyber Security Alliance (NCSA) officially kicked off today’s Data Privacy Day events with a broadcast from George Washington University Law School featuring Federal Trade Commissioner Maureen Ohlhausen and privacy and security experts from industry and government.

Whether you are a consumer, an application developer, a technology platform provider, consultant, or enterprise that relies on the collection, analysis and commercialization of data (who doesn’t these days) Adler Law Group can help you navigate this emerging area by 1) assessing and prioritizing privacy risks, 2) creating a baseline understanding of data assets, data flows and contractual commitments, 3) developing internal Privacy Polciies and processes, and 4) creating and delivering training programs for executives and employees that increases awareness and mitigate risk.

Three Things To Improve Your Law Firm’s Social Media Marketing in 2015

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When I committed myself to social media marketing a few years ago, like most lawyers, I wasn’t quit sure what I was getting myself into. One thing I knew for sure: I had to just start.

I’m sure my early posts were fairly mundane and added little value, let alone acted as a catalyst for a conversation. As most social media experts will posit, social media is about identifying and engaging with customers, employees and prospects. Over time, I increased my engagement, learned to participate and learned what worked and what didn’t. What follows are a couple of things that I try to keep in mind as part of my legal social media marketing efforts.

1. Have a voice. As lawyers we have instant credibility. Use this to your advantage. Whether you are a personal injury lawyer or in house counsel to a pharmaceutical company, you probably follow certain topics or have expertise in a particular area. You can use your area of expertise to talk about events, trends or interesting developments. Even if all you do is post a link to something that interests you, you are developing your online persona.

2. Cultivate your followers. One of the most powerful aspects of social media marketing is the network effect. As followers like, share or favorite your content, your message gets spread exponentially. Don’t be afraid to engage with those followers to cultivate and strengthen those relationships.

3. Always evaluate. Sometimes I am shocked that a post gets shared or favorited. For whatever reason, the subject matter resonates with my followers and my followers’ followers. When I see that, I try to note the subject area or topic, how it was shared an by whom. Focusing on content that others find useful enhances the value of my voice and my content.

As we look forward to 2015, now is an opportune time to take a look at what work last year, what didn’t and how we can improve our focus going forward.

If you find my posts uself, I encourage you to share, comment, follow or just get in touch.

Best of luck for your legal marketing efforts in 2015!

AEREO LOSES COPYRIGHT CASE

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.

Identifying Intellectual Property Issues in Start-Ups – Live Webcast!

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