This week we highlight three writers discussing timely subjects in copyright, technology, and advertising law. Susan Neuberger Weller and Anne-Marie Dao from Mintz Levin discussed a split in thought on when a copyright is officially registered for purposes of filing an infringement lawsuit; Jeffery Neuburger from Proskauer wrote an interesting article reflecting on technology-related legal issues in 2017 and looking forward to potential hot issues in 2018; and Leonard Gordon posted a piece on Venable’s All About Advertising Law Blog about cancellation methods for continuity sales offers.
When is a Copyright “Registered” for Purposes of Filing Suit?
In a recent post, Susan Neuberger Weller and Anne-Marie Dao from Mintz Levin discuss a split among Federal Courts of Appeal about when a copyright is registered. Weller and Dao note that registration of a US copyright is required prior to being able to initiate an infringement suit (or to obtain statutory damages) in federal court, but there is not an agreement on when “registration” actually occurs. Some circuit courts have found that registration happens when the application is filed, but others believe it only occurs when the Register of Copyrights actually issues the copyright registration. The article recounts a recent case in the 11th Circuit in which the court dismissed an infringement case because the copyright holder had filed the application but no action had been taken by the US Copyright Office.
The authors note that the issue could be resolved if the US Supreme Court agrees to hear an appeal by the plaintiff in the 11th Circuit case, although – but, as of April 16, 2018 the Supreme Court had not acted on the plaintiff’s certirari petition.
What We Like: The article raises an important issue for copyright holders that can be critical in copyright infringement cases. In addition to raising the topic, we particularly like the authors’ summary of the various positions among the federal appeals courts about when copyright registration actually occurs. This list is a good reference for any lawyers considering whether (and maybe even where) to bring an infringement case.
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Reflections on Technology-Related Legal Issues: Looking Back at 2017; Will 2018 Be a Quantum Leap Forward?
Jeffery Neuburger from Proskauer wrote an interesting article reflecting on technology-related legal issues in 2017 and looking forward to issues that will likely be in play in 2018. Neuburger mentions a number of things that came up in 2017 ranging from cybersecurity to privacy. He also discusses the development of blockchain (“a continuously growing list of records, called blocks, which are linked and secured using cryptography,” which is a “core component of bitcoin”) into areas beyond cryptocurrencies and poses questions about potential legal issues that may arise. In the privacy realm, Neuburger opines that “2018 also promises to be the year of Europe’s General Data Privacy Regulation” (GDPR) and notes that mobile tracking also is likely to be a hot issue in the new year.
Most interesting, Neuburger spends almost half the article talking about quantum computing. He explains that quantum computers operate on the law of quantum mechanics and use quantum bits or “qubits” (“a qubit can store a 0, 1, or a summation of both 0 and 1”), and states that quantum computers could be up to 100 million times faster than current computers. The article further sets out four areas of legal issues related to quantum computers: (i) encryption and cryptography; (ii) blockchain; (iii) securities industry; and (iv) military applications. Neuburger ominously notes that “quantum computers may be powerful enough (perhaps) to break the public key cryptography systems currently in use that protects secure online communications and encrypted data.”
What We Like: We’ve always looked forward to Jeff Neuberger’s commentary on new media and tech law issues, particularly his extensive recent blogging on the GDPR and other privacy issues. But we particularly liked his discussion of quantum computing, a topic not ordinarily discussed in these types of summaries and somewhat challenging for non-scientists to tackle. As is clear from Neuberger’s analysis, many aspects of the law may be affected as this technology advances.
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Sex, Golf, and the FTC – And, of course, Continuity Sales Programs
On Venable’s All About Advertising Law Blog, Leonard Gordon discusses a recent Federal Trade Commission complaint and settlement with a lingerie online retailer related to a continuity sales promotion – “A continuity program is a company’s sales offer where a buyer/consumer is agreeing to receive merchandise or services automatically at regular intervals (often monthly), without advance notice, until they cancel.” (Gordon included a passing reference to a similar case involving golf balls, but did not provide many details – thus, the reference in the title.)
Specifically, the lingerie company, AdoreMe, had a monthly subscription program and, among other things, the Federal Trade Commission alleged that AdoreMe violated a requirement in the Restore Online Shoppers’ Confidence Act (ROSCA) that such programs include a simple cancellation method. As part of the settlement, AdoreMe agreed to adopt a method that is “not difficult, costly, or time consuming for the consumer to: (1) avoid being charged; and (2) immediately stop recurring charges.” In addition, the customer must be given a cancellation method through the same mechanism in which she placed the order – i.e., Internet orders require a web-based cancellation method.
Gordon writes that this requirement that the cancellation method match the ordering method is most noteworthy because (i) such a requirement was considered and rejected when ROSCA was enacted; and (ii) the FTC has been trying to include this type of provision in settlements. He argues that a company will probably have the burden of proving that its method works “simply” if it doesn’t allow consumers to cancel using the same method as was used to order.
What We Like: We appreciate blogs that use an interesting hook to relay an important principle – and this one certainly did not disappoint. Companies that employ continuity programs would be wise to enable consumers to cancel using the same method in which orders are placed. And most importantly, Gordon’s observation seems spot on that “offers marketed with a free trial that converts to a negative option program” will draw more scrutiny than “programs that are offered as subscription models from day one”.
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