Media Tech Law – Page 6 – MIRSKY & COMPANY, PLLC

Employee Noncompetes: Enforceable if Employee Quits After 3 Months? Maybe Not.

Posted February 24, 2014 by Andrew Mirsky 0

Seems that in Illinois a noncompete covenant in an employment offer letter is unenforceable if the only consideration given the employee is the promise of continued employment.

A case in Illinois involving an individual who sued his former employer seeking a ruling that his noncompete was unenforceable illustrates a potential pitfall for employers trying to prevent employees from leaving to work for competitors. Employers in many states routinely make offers of employment through offer letters, containing compensation terms, job duties and, sometimes, noncompete restrictions that apply during and after employment. Sometimes – but not always – the noncompete is coupled with a pre-agreed severance payment negotiated at the start of employment that would kick in upon any employment termination.

The case, Fifield v. Premier Dealer Services, Inc., was issued in June 2013 and the report can be found here. The question raised in the Illinois case was whether the absence of such a pre-agreed severance payment made the noncompete unenforceable. The employer argued that the offer of employment itself was adequate consideration in exchange for the employee’s agreement to not work for a competitor. The First District of the Illinois Appellate Court said not so, and the Illinois Supreme Court declined to review the appeal.

Threading the needle: Apple Fined for allowing in-app purchase transactions without obtaining account-holder consent.

Posted February 10, 2014 by Rob Ellis 0

While Apple Inc. has been at the leading edge of the app revolution, it is also out front in setting the guidelines for app purchases. According to the FTC last week, it crossed that line to the tune of $32.5M. That’s the amount that Apple agreed to refund to settle an FTC complaint that the company charged for children’s in-app purchases without parental consent. At issue was the practice by which Apple allowed iPhone users unlimited in-app purchases for 15 minutes after providing initial consent for a single purchase.

Apple Inc. has been instrumental in solidifying the ubiquity and prominence of applications or “apps” in everyday life. With the release of the groundbreaking iPhone in 2007 and its corresponding App Store in 2008, users became familiar with the idea of using and purchasing apps for specific uses. From news feeds and video players, to single and multi-player games, apps came to represent a download that, with the simple tap of the thumb, would add another tool, resource or game to a device.

Republishing Defamatory Content: Hyperlinking is OK?

Posted February 6, 2014 by Andrew Mirsky 0

If someone publishes something defamatory on the internet, and I later re-publish that statement, generally I can be held liable for defamation equally as the original publisher of the defamatory statement. (See for example, http://www.wassom.com/publication-republication-and-defamation-online-guest-post.html.)

So, for example, if I publish on my blog an unvarnished, clearly libelous statement – oh, I don’t know, say I write something like “Sheldon Adelson (the casino magnate and Republican party contributor) runs a prostitution ring in Macau” – and then my friend (let’s call him “Phil”) repeats that statement on his blog, then typically both Phil and I can be liable for defamation.

Got WI-FI?: How Brick and Mortar Retailers Track Their Shoppers

Posted January 21, 2014 by Britnie Morris 0

Euclid Analytics is one of several companies that recently began assisting brick and mortar retailers in tracking consumer behavior, via their smartphones, as they enter, exit, and move around stores. It may be easy to label this technology, mobile location analysis, as “creepy”, but it is by no means illegal (at least not yet). Some may even find having a coupon for jelly pop up on your iPhone just a moment after you’ve tossed peanut butter into your cart very convenient- MIT Technology Review proposed this hypothetical scenario.

Just a few weeks ago we wrote about how online retailers monitor consumer behavior in order to customize their offerings to better fit both the consumers’ and the business’ needs. Brick and mortar retailers argue that they’re simply catching up with online retailers’ use of cookies and target marketing.

Mobile App Privacy Policies Should Not Keep Users in the Dark

Posted January 9, 2014 by Rob Ellis 0

Privacy policies have long been the domain of the desktop web experience. For anyone motivated enough to seek them out, they are commonly found in a utility bar at the top of a web page, or buried somewhere in the site’s footer. The policy typically governs what the site owner does with users’ information – from personal information actively submitted through a form, to broader information passively attained such as browser type or device, and how the site uses cookies and similar technologies to track users’ online activity.

With the explosion of mobile devices, app developers face a much broader scope of information that privacy policies must address. With the treasure trove of information available via users’ mobile devices, developers must take great pains to detail what information is gathered and how that information is used. Privacy policies not only inform a user-base and foster good-will, but also ensure that the application does not abuse its access to information and run afoul of the law.

#PrivacyProblems: States Address Privacy and Data Security Concerns

Posted December 11, 2013 by Britnie Morris 0

Social issues such as jobs, healthcare and education take priority for citizens over privacy issues, the public’s concern for digital privacy has grown and looms large. In the absence of Congressional action in favor of consumer privacy, state legislators have begun to take matters into their own hands.

The New York Times’ Somini Sengupta reports that in 2013 alone more than 10 states passed over two dozen state privacy laws. Sengupta quotes John Pezold from Georgia’s House of Representatives: ‘”’[C]onsumers [are] becoming increasingly wary that their lives are going to be no longer their own… We have got to protect that.”’

Who Owns Twitter Followers?

Posted December 9, 2013 by Andrew Mirsky 0

Seriously, is this a real question? Isn’t this like asking who owns rights to your friends? Or … who owns rights to Grateful Dead fans? And doesn’t the very question present its own obvious answer? I mean, isn’t it a bizarre question? How can you “own” your fans?

Bizarre, perhaps, but data companies own all sorts of lists of people, so isn’t this just the same thing? To be clear, data companies never really argue that competitors cannot make their own competing lists and sublists of Democratic voters or whatever. The companies would just argue that others cannot copy their lists of such people.

Or is it more like last year’s Craigslist fight with Padmapper over Craigslist’s claimed exclusive rights to use Craigslist’s apartment listings: Can anyone “own” apartment listings? See my previous discussion of this case, here.

Legal Considerations for Application Developers| Determining Who Owns the Code?

Posted November 29, 2013 by Rob Ellis 0

With the proliferation of mobile devices in the past few years, application developers may now target their services and offerings to an ever-widening, always-connected audience. These apps involve the interplay of code and data in new and innovative ways. Whether an app developer begins the project informally in a garage, or as part of a team of developers, a host of intellectual property (IP) concerns exists from the inception of the idea, to the day the app is available for distribution in an app store. One simple, and often overlooked aspect of development is this: who owns the code?

Copyright and Computer Code
17 USC Section 117 of the Copyright Act states computer code, or software, is considered copyrightable material, providing it protection from unauthorized reproduction or distribution. This protection serves to reward innovators for their works, allowing them to benefit from their creations for a limited time. For an app developer, this means that the code created from the inception phase to completion is subject to copyright protection. Unless explicitly stated, it is not always clear just who retains ownership rights to the code.

Advertisers to Consumers: No Cookies, No Problem, We’ll find Other Ways to Track You!

Posted November 20, 2013 by Britnie Morris 0

Earlier this year, our colleague Bryce Cullinane wrote here on this blog about cookies or the tiny files created by websites you visit that store your information and allow sites to recognize your browser. Although cookies may have a profound impact on your desktop browsing activity, they’re steadily becoming obsolete due to both the growing ubiquity of mobile internet usage (cookies don’t work on mobile devices) and users’ conscious blocking of cookies. So far, marketers have developed just a few new technologies (that we know of) to continue to track consumers and deliver targeted ads.

The New York Times recently reported that the work of several new startups is dedicated to figuring out how to track people without cookies and also determine that multiple devices belong to the same person. California based Drawbridge is one company that is attempting to tackle this task, although COO Eric Rosenblum tells Claire Cain Miller and Somini Sengupta of the New York Times that “tracking is a dirty word” and explains that what they’re instead doing is “observing your behaviors and connecting your profile to mobile devices” (emphasis added).

By combining alerts sent by partners companies when you visit specific websites or use certain apps with statistical modeling, Drawbridge and its competitor companies like Greystripe can conclude that several devices belong to the same person. Once a consumer has been identified in this way, advertisers can ensure that this user receives specifically-targeted ads across all devices based on his or her activities. Or in other words, cross-device advertising.

Think about this. What’s the first thing you do when you wake up in the morning? Maybe you check e-mail on your phone. (Maybe you do something else before even that, ok we’ll grant you that.) From there, you may use your tablet for a few minutes to catch up on some news or check the weather. Then you might browse from your desktop at work. Fast-forward (perhaps many hours) and you’re in bed with your tablet (sadly), checking out your social media steams. Cross-device advertising makes it possible for flights to Europe to display on your tablet at night when you had been looking up similar flights earlier in the day while using another device. The same goes for purses you’ve browsed, restaurants for which you’ve read reviews and so on.

Although privacy advocates may be sighing in relief as cookies become increasingly irrelevant, their rest may be short-lived and not so easy in light of the coming attractions of future (and creepier) developments in online advertising.

Using Open Source Software – What Dangers Lurk for Your Own Work? When is Your Work “Derived From” the OSS?

Posted October 22, 2013 by Andrew Mirsky 0

With open source software (OSS), there seem to be 2 major misconceptions, one by end users and the other by developers. As to users, it may be helpful to understand that restrictions and compliance burdens do not apply to the end user’s own use, but only upon subsequent transfers of the software. As to developers, a major misconception involves what kind of newly-created work – say, a library or module component – is “derived from” the OSS and therefore bound by its same open source license.

First, with users, there is first the question of what use is restricted. And in a big sense the answer is “none”. So, for example, “Open source does not place a compliance burden on the end user, does not mandate acceptance of an end-user license agreement, does not subject [the end user] to para-police action from [any software industry trade group].” Simon Phipps wrote that in 2010, adding that “If you move beyond use of the software and study the source code, there is also no compliance burden. There is no risk associated with using the knowledge you gain for other purposes.”

Of course, the phrase “using the knowledge” is significant, because using the software (i.e. the code) is a different story. An end user’s use of ideas and know-how and processes is not subject to OSS license restrictions, at least not under a typical OSS license. But such use may be subject to restrictions under patent law.

Streaming Abroad: Why You Can’t and How You Can with (or without) a Virtual Private Network

Posted October 15, 2013 by Britnie Morris 0

A Virtual Private Network (VPN) is a technology that allows anyone to create a secure connection over a public or private network, such as the internet, enabling users to tunnel through the web and access specific servers. VPNs have a few different uses. One way to use a VPN is to set up a network to protect your online privacy. Another way you may already use a VPN is to access an intranet, or a network used by individuals belonging to large organizations such as schools and corporations, remotely. Arguably, however, the coolest way to use a VPN is to get around various restrictions.

Many of those restrictions are government-imposed, famously in recent years in countries restricting many civil and personal rights including tightly restricting access to media and other information. Here, in countries such as China, Iran, and Turkey, VPNs grant people access to a wider world web. A similar-ish use of VPN technology allows others to access geo-blocked content, such as streaming services for music and video which, depending on your location, might be inaccessible.

Software as a Service: Is it even a License? Who Cares? What about UCC Implied Warranties?

Posted September 11, 2013 by Andrew Mirsky 0

I recently advised a client on a software contract involving the question of whether the contract would be deemed to involve “software” at all. The context was a technology vendor bidding on a contract to provide technology to a federal government agency. The question of whether “software” was actually being provided under the contract was important because ownership of any software created pursuant to the contract would be subject to fairly broad ownership rights to the benefit of the government. See for example, 48 CFR 27.4 (“Rights in Data and Copyrights”) and 48 CFR 27.404-1 (“Unlimited rights data”). However, in this case the vendor was not technically “delivering” any software at all, but instead was delivering access to a website.

In fact, no code was being delivered, not even executables. No downloadable software or object code or source code was being delivered at all. The vendor was to host the service entirely, making it available to the government via an internet website, in the most literal definition of “Software as a Service” (SaaS).

MediaTech Law

By MIRSKY & COMPANY, PLLC