Blogs We Like – Media Tech Law

Blogs and Writings we Like

Posted April 25, 2018 by Andrew Mirsky 0

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 11^th 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 11^th 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.)

Blogs and Writings We Like

Posted May 18, 2017 by Andrew Mirsky 0

This week we highlight 3 writers discussing timely subjects in media tech law: Sandy Botkin writing about zombie cookies and targeted advertising, Geoffrey Fowler writing about the new world of phishing and “phishermen” (yes, that’s a thing), and Justin Giovannettone and Christina Von der Ahe writing about nonsolicitation agreements and social media law.

FTC vs Turn, Inc.: Zombie Hunters

Sandy Botkin, writing on TaxBot Blog, reports amusingly on the FTC’s December 2016 settlement with digital advertising data provider Turn, Inc., stemming from an enforcement action against Turn for violating Turn’s own consumer privacy policy. Botkin used the analogy of a human zombie attack to illustrate the effect of actions Turn took to end-run around user actions to block targeted advertising on websites and apps.

According to the FTC in its complaint, Turn’s participation in Verizon Wireless’ tracking header program – attaching unique IDs to all unencrypted mobile internet traffic for Verizon subscribers – enabled turn to re-associate the Verizon subscriber with his or her use history. By so doing, according to Botkin, this further enabled Turn to “recreate[] cookies that consumers had previously deleted.” Or better yet: “Put another way, even when people used the tech equivalent of kerosene and machetes [to thwart zombies], Turn created zombies out of consumers’ deleted cookies.”

What we like: We like Botkin’s zombie analogy, although not because we like zombies. We don’t. Like. Zombies. But we do think it’s a clever explanatory tool for an otherwise arcane issue.

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Your Biggest Online Security Risk Is You

Geoffrey Fowler writes in The Wall Street Journal (here ($), with an even fuller version of the story available here via Dow Jones Newswires) about the latest in the world of phishing, that large category of online scams that, one way or another, has the common goals of accessing your data, your money or your life, or someone else’s who might be accessed through your unsuspecting gateway.

“If you’re sure you already know all about them, think again. Those grammatically challenged emails from overseas ‘pharmacies’ and Nigerian ‘princes’ are yesterday’s news. They’ve been replaced by techniques so insidious, they could leave any of us feeling like a sucker.”

Oren Falkowitz of Area 1 Security told Fowler that about 97% of all cyberattacks start with phishing. Phishing is a big deal.

Fowler writes of the constantly increasing sophistication of “phishermen” – yes, that’s a term – weakening the effectiveness of old common-sense precautions:

In the past, typos, odd graphics or weird email addresses gave away phishing messages, but now, it’s fairly easy for evildoers to spoof an email address or copy a design perfectly. Another old giveaway was the misfit web address at the top of your browser, along with the lack of a secure lock icon. But now, phishing campaigns sometimes run on secure websites, and confuse things with really long addresses, says James Pleger, security director at RiskIQ, which tracked 58 million phishing incidents in 2016.

What we like: Fowler is helpful with advice about newer precautions, including keeping web browser security features updated and employing 2-factor authentication wherever possible. We also like his admission of his own past victim-hood to phishing, via a malware attack. He’s not overly cheery about the prospects of stopping the bad guys, but he does give confidence to people willing to take a few extra regular precautions.

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Don’t Friend My Friends: Nonsolicitation Agreements Should Account for Social Media Strategies

This is an employment story about former employees who signed agreements with their former employers restricting their solicitations of customers of their former employers. In the traditional nonsolicitation context, it wasn’t that hard to tell when a former employee went about trying to poach his or her former company’s business. Things have become trickier in the age of social media, when “friend”-ing, “like”-ing, or “following” a contact on Facebook, Twitter, Instagram or LinkedIn might or might not suggest nefarious related behavior.

Justin Giovannettone and Christina Von der Ahe of Orrick’s “Trade Secrets Watch” survey a nice representative handful of recent cases from federal and state courts on just such questions.

In one case, the former employee – now working for a competitor of his former employer – remained linked via LinkedIn with connections he made while at his former company. His subsequent action in inviting his contacts to “check out” his new employer’s updated website drew a lawsuit for violating his nonsolicitation. For various reasons, the lawsuit failed, but of most interest was Giovannettone and Von der Ahe’s comment that “The court also noted that the former employer did not request or require the former employee to “unlink” with its customers after he left and, in fact, did not discuss his LinkedIn account with him at all.”

What we like: Giovannettone and Von der Ahe point out the inconsistencies in court opinions on this subject and, therefore, smartly recognize the takeaway for employers, namely to be specific about what’s expected of former employees. That may seem obvious, but for me it was surprising to learn that an employer could potentially – and enforceably – prevent a former employee from “friend”-ing on Facebook.

Blogs and Writings We Like

Posted March 21, 2017 by Andrew Mirsky 0

This week we highlight 3 fine writers discussing timely subjects in media tech law: Beverly Berman writing about website terms of service and fair use, Leonard Gordon writing about “astroturfing” in advertising law, and John Buchanan and Dustin Cho writing about a gaping coverage gap with cybersecurity insurance.

Hot Topic: Fake News

Beverly Berneman’s timely post, “Hot Topic: Fake News” blog post (on the “IP News For Business” blog of Chicago firm Golan Christie Taglia), offers a simple cautionary tale about publishing your copyrighted artwork on the internet, or in this case publishing on a website (DeviantArt) promoting the works of visual artists. One such artist’s posting subsequently appeared for sale, unauthorized, on t-shirts promoted on the website of another company (Hot Topic). The aggrieved artist then sought recourse from DeviantArt. Berneman (like DeviantArt) pointed to DeviantArt’s terms of use, which prohibited downloading or using artwork for commercial purposes without permission from the copyright owner – leaving the artist with no claim against DeviantArt.

Berneman correctly highlights the need to read website terms of use before publishing your artwork on third party sites, especially if you expect that website to enforce piracy by other parties. Berneman also dismisses arguments about fair use made by some commentators about this case, adding “If Hot Topic used the fan art without the artist’s permission and for commercial purposes, it was not fair use.”

What we like: We like Berneman’s concise and spot-on guidance about the need to read website terms of use and, of course, when fair use is not “fair”. Plus her witty tie-in to “fake news”.

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NY AG Keeps up the Pressure on Astroturfing

Leonard Gordon, writing in Venable’s “All About Advertising Law” blog, offered a nice write-up of several recent settlements of “Astroturfing” enforcement actions by New York State’s Attorney General. First, what is Astroturfing? Gordon defines it as “the posting of fake reviews”, although blogger Sharyl Attkisson put it more vividly: “What’s most successful when it appears to be something it’s not? Astroturf. As in fake grassroots.” (And for the partisan spin on this, Attkisson follows that up with her personal conclusions as to who makes up the “Top 10 Astroturfers”, including “Moms Demand Action for Gun Sense in America and Everytown” and The Huffington Post. Ok now. But we digress ….)

The first case involved an urgent care provider (Medrite), which evidently contracted with freelancers and firms to write favorable reviews on sites like Yelp and Google Plus. Reviewers were not required to have been actual urgent care patients, nor were they required to disclose that they were compensated for their reviews.

The second case involved a car service (Carmel). The AG claimed that Carmel solicited favorable Yelp reviews from customers in exchange for discount cards on future use of the service. As with Medrite, reviewers were not required to disclose compensation for favorable reviews, and customers posting negative reviews were not given discount cards.

The settlements both involved monetary penalties and commitments against compensating reviewers without requiring the reviewers to disclose compensation. And in the Carmel settlement, Carmel took on affirmative obligations to educate its industry against conducting these practices.

What we like: We like Gordon’s commentary about this case, particularly its advisory conclusion: “Failure to do that could cause you to end up with a nasty case of “turf toe” from the FTC or an AG.” Very nice.

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Insurance Coverage Issues for Cyber-Physical Risks

John Buchanan and Dustin Cho write in Covington’s Inside Privacy blog about a gaping insurance coverage gap from risks to physical property from cybersecurity attacks, as opposed to the more familiar privacy breaches. Buchanan and Cho report on a recently published report from the U.S. Government’s National Institute of Standards and Technology (NIST), helpfully titled “Systems Security Engineering Considerations for a Multidisciplinary Approach in the Engineering of Trustworthy Secure Systems”. Rolls off the tongue.

The NIST report is a dense read (257 pages), and covers much more than insurance issues, in particular recommendations for improvements to system security engineering for (among other things) critical infrastructure, medical devices and hospital equipment and networked home devices (IoT or the Internet of Things).

Buchanan and Cho’s post addresses insurance issues, noting that “purchasers of cyber insurance are finding that nearly all of the available cyber insurance products expressly exclude coverage for physical bodily injury and property damage”.

What we like: Insurance is always an important and underappreciated business issue, with even less public understanding of the property and injury risks to (and coverage from) cyber damage. We like how Buchanan and Cho took the time to plow through an opaque government report to tell a simple and important story.

MediaTech Law

By MIRSKY & COMPANY, PLLC

Blogs and Writings we Like

Blogs and Writings We Like