Contracts & Copyright: Issues for Authors, Writers & Creative Professionals

To find out more about how the Adler Law Group can help your business identify risk and issues related to intellectual property ownership, corporation or LLC formation, or just assess risk associated with your business, contact us for a freeno-obligation consultation by emailing David @ adler-law.com, visiting our web site www.adler-law.com, or calling toll free to (866) 734-2568.

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.

#Bank Information #Security: The Evolving Threat From Insiders

VIDEO: The Evolving Insider Threat– Dawn Cappelli, Randy Trzeciak of CMU’s Insider Threat Center

This video from RSA Conference 2013 discusses:

  • Who typically commits insider crimes – and how;
  • How employees are being victimized from outside;
  • Why our critical infrastructure is at heightened risk.

Even if you are an employer using standard commercial verification measures, you should be cautious about misuse of any information by employees, managers and contractors. Accordingly, you should be careful with training and education and not on only newly-hired employees. Further, plan on how login credential and access to sensitive information will be handled and/or turned over when training or when terminating, suspending, withholding pay, lowering pay, or taking any other adverse action against an employee.

Managing Risk: Legal Issues for Merchants & Affiliate Managers

I will be speaking at Affiliate Management Days SF 2013 (April 16-17, 2013) on the topic of “Managing Risk: Legal Issues for Merchants & Affiliate Managers.”

 

Affiliate marketing is one of the most cost-effective techniques for monetizing web site traffic and driving sales. Unfortunately, it has a reputation for high risk. While the industry is unlikely to ever be risk-free, it is possible to manage risk by: (1) understanding how techniques like behavioral and contextual targeting affect consumers, affiliates and merchants, (2) understanding the legal and regulatory environment, (3) understating risks involved with prospective marketing partners, (4) using and maintaining proper contracts that allocate risk and provide appropriate indemnifications, and (5) keeping informed about the changes in technology, marketing practices and the regulatory environment. Attendees will learn how to identify these issues and develop policies and procedures to keep informed about the current technology, marketing strategies and regulatory compliance.

 

Topics covered include:

 

  • Behavioral/Contextual Advertising
  • Regulatory/Industry Compliance : FTC Guides & Enforcement Actions
  • CAN-SPAM compliance
  • IP Law: Rules governing use of others™ Trademarks/Keywords, Right of Publicity/Endorsement Issues.
  • Identifying, protecting against, and disputing accusations of Click-Fraud

 

Geno Prussakov, the Founder & Chair of Affiliate Management Days and the CEO & founder of AM Navigator LLC did a pre-interview with me on Small Business Trends that can be found here.

 

 

 

Entertainment & Fashion Law News Update

Entertainment Law News & Events

Entertainment Law Initiative Luncheon Set For Feb. 8 | GRAMMY.com
The GRAMMY Foundation announced today that the keynote discussion at the 15th Annual Entertainment Law Initiative Luncheon & Scholarship Presentation

Colorado IP and entertainment lawyer David Ratner forms ‘Creative …
‘Creative Law Network,’ a Denver-based law firm, will focus on small to mid-size businesses and artists.

Florida Bar Hosts Entertainment Law Event | Billboard
NEW YORK–The Florida Bar Assn.’s Entertainment Arts and Sports Law Section will host its sixth annual legal symposium on music, film and TV on March 26.

UNH Law to debut sports and entertainment law institute
Concord Monitor
The University of New Hampshire’s School of Law will open a Sports and Entertainment Law Institute next fall, giving students the opportunity to focus their studies for a law career in either field.

Entertainment lawyer Mike Novak dies
The Macomb Daily
For nearly three decades, Mike Novak’s name was synonymous with entertainment in the Detroit area. During his career the Troy-based attorney, a resident of Grosse Pointe Shores, represented the likes of artists such as Bob Seger and Kid Rock.

Use a Law Degree to Enter Environmental or Entertainment Fields
U.S. News & World Report (blog)
If you have a question about law school, E-mail me for a chance to be featured next month. This week, I will address questions from readers about pursuing environmental and entertainment law.

Fashion Law News

Minnetonka’s Trademark Suit Against Target Tip-Toes Away http://t.co/sF6vtszP via @FemmeLegale

VIDEO: First Ever Northern California Fashion Law Panel Produced …
First Ever Northern California Fashion Law Panel

Following the Dress Code: Fundamentals of Fashion Law with BK
February 13th – 6:00-8:00pm 2 MCLE Credits (Professional Practice) 123 Remsen Street, BrooklyModerator: Allegra Selvaggio, Esq.

About The Author

David M. Adler, Esq. is a 2012 Illinois SuperLawyer, 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.

Act Of Uploading Photos To Web Site Is Sufficient to Assign Copyrights

website is down
website is down (Photo credit: Sean MacEntee)

In today’s business world, web sites are no longer simply a static online presence. Today’s web sites are highly interactive and often make use of content (photos, text, images, videos, etc.) that have bee uploaded by visitors and registered users. With the speed of search engines, social networking platforms and mobile computing technologies, any online problem can quickly have far reaching effects well beyond the initial issue.

In order to ensure that web site operators may make as broad a use of this content as possible and that these web sites do not violate the rights of those whose content has been uploaded, many web site have Terms of Use that contain intellectual property licenses, assignments and indemnifications.

A recent federal District Court in Maryland examined whether the mere act of uploading photographs to a website met the requirements of forming a valid electronic contract sufficient to assign copyrights in the photographs under Section 204(a) of the Copyright Act, which requires assignments to be in writing and signed by the assignor.

In Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., No. 12-cv-00954 (D. Md. Nov. 13, 2012) the defendant argued plaintiff could not state a claim for infringement on the photographs because the assignments of these photographs to plaintiff were void. Defendant argued that the web site Terms of Use Agreement (“TOU”) and the electronic process in which subscribers assigned copyrights in the photographs to plaintiff did not comply with Section 204(a) of the Copyright Act. The Court disagreed.

The Court first looked at Section 204(a). That section provides that “[a] transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” 17 U.S.C. § 204(a). The Court then turned to the Electronic Signatures in Global and National Commerce Act (“E-SIGN”), 15 U.S.C. §§ 7001 et seq., to reject defendant’s argument that the assignments were invalid. E-SIGN provides, in relevant part:

“[n]otwithstanding any statute, regulation, or other rule of law . . . with respect to any transaction in or affecting interstate or foreign commerce–
(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and

(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

15 U.S.C. § 7001(a).

“The term ‘electronic signature’ means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” Id. § 7006(5). The Court concluded that the  TOU was clear in its terms and that the electronic process by which  subscribers assigned the copyrights in the photographs met E-SIGN and Section 204(a) requirements. Accordingly, the Court held that the assignments were not invalid as a matter of law.

Outrageous! Seven Rent To Own Firms Used Nefarious Software to Spy on Customers in Their Homes

On September 25, 2012, the Federal Trade Commission announced a settlement with seven rent-to-own companies that secretly installed software on rented computers, clandestinely collected information, took pictures of consumers in their homes (WTF?!) and tracked these consumers’ locations.

If you haven’t vomited on your computer from the sickening outrage, you can read the FTC press release here.

Software design firm DesignerWare, LLC licensed software to rent-to-own stores ostensibly to help them track and recover rented computers. The software collected the data that enabled rent-to-own stores, including franchisees of Aaron’s, ColorTyme, and Premier Rental Purchase, to track the location of rented computers without consumers’ knowledge

According to the FTC, the software enabled remote computer disabling if it was stolen, or if the renter failed to make payments. It included an add-on purportedly to help stores locate rented computers and collect late payments. Alarmingly, the software also collected data that allowed the rent-to-own operators to secretly track the location of rented computers, and thus the computers’ users.

When activated, the nefarious feature logged key strokes, captured screen shots and took photographs using a computer’s webcam, according to the FTC. It also presented a fake software program registration screen that tricked consumers into providing their personal contact information.

“An agreement to rent a computer doesn’t give a company license to access consumers’ private emails, bank account information, and medical records, or, even worse, webcam photos of people in the privacy of their own homes,” said Jon Leibowitz, Chairman of the FTC. “The FTC orders today will put an end to their cyber spying.”

“There is no justification for spying on customers. These tactics are offensive invasions of personal privacy,” said Illinois Attorney General Lisa Madigan.

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

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

World Social Media Legal News Roundup

Newsmakers Q&A | Law slow to address workers’ social-media privacy
Columbus Dispatch

Colorado shooting: Public calls on Christian Bale to swoop in
Los Angeles Times

July 21, 2012, 12:04 p.m.. People are calling upon the caped crusader in the wake of the Colorado theater shooting with the 21st century bat signal: social media.

Afghan social media war steps up with new campaign
Reuters UK

And with the government mulling a media law to tighten its grip over the fledgling but lively Afghan press corps, Nai hoped social media could help safeguard political and social freedoms, as occurred during the wave of uprisings across the Middle East.

A social media win on merger
Philadelphia Inquirer

It’s a bracing lesson, on a local stage, in the power of social media to create community around an issue and ratchet up pressure on key players – in this case, the members of the Abington board and its president and CEO, Laurence Merlis. “It’s amazing to me just how fast word spread,” …. A community-conscious and activist community, with a high concentration of concerned, committed people who work in industries such as law, medicine, public relations, and journalism.

Valley reacts via social media regarding Colorado shooting
KGBT-TV

Once new information began streaming in about the shooting, over 100 viewers began responding to the Action 4 News Facebook page and Twitter feed. As the day progressed, over 500 comments came into valleycentral.com andAction 4 social media

Media Wise Parents to the rescue
Windsor This Week
Media Wise Parents helps parents, educators and churches become more aware with social media and the internet. Tweet · Bookmark and … It’s certainly in my background with law and marketing, it’s always something that interests me.

We Want To Hear From You: Take This Two-Minute Social Media Survey
Business Insider

This Is The Gun Used In The Colorado Shooting That Everyone Can’t Believe Is Actually Legal

In Focus: Social Media & Law Enforcement

Busted! Police Turn to Social Media to Fight Crime
CNBC.com (blog)

Law enforcement is taking to social media because criminals are changing their behavior and using social media to facilitate crime. In response, law enforcement officials are using it to track down criminals and as a predictive policing tool, said Haywood.

Role of Social Media in Law Enforcement Significant and Growing
Business Wire (press release)

WASHINGTON–(BUSINESS WIRE)–LexisNexis® Risk Solutions today announced the results of a comprehensive survey focused on the impact of social media on law enforcement in criminal investigations.

Police Make Wide Use Of Social Tools
InformationWeek (blog)

The survey, of more than 1200 law enforcement professionals with federal, state, and local agencies, found that 83% of the respondents are using social media, particularly Facebook and YouTube, to further their investigations.

Crime Busters Embrace Social Media
BusinessNewsDaily

It’s not just prospective customers, partners or employers who may be scanning the social media landscape to glean information about you and your organization. The long arm of the law has joined the party as well, a new survey shows.

How Law Enforcement Is Using Social Media (Infographic)
Law enforcement officials are using social media to solve crimes and will continue to do so in greater numbers. In an online survey conducted by LexisNexis Risk Solutions, four out of five law enforcement officials used social media.

Social Media Legal News Roundup

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.

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