Labor Law – Media Tech Law

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.

* * *

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 They’ve been replaced by techniques so insidious, they could leave any of us feeling like a sucker.”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.

* * *

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.

Yet Again with the Unpaid Interns? Fox Searchlight, Hearst, Conde Nast … News from the Unpaid Internship Beat

Posted August 13, 2013 by Marisa Johnson 0

In June, a ruling from a Federal court in New York, (Glatt v. Fox Searchlight Pictures Inc., S.D.N.Y., No. 11-06784, 6/11/13), made headlines when it determined that unpaid interns were entitled to back pay for their services in connection with the production of various films, including “Black Swan” and “500 Days of Summer.” This case ignited conversation across many industries that have come to rely on unpaid internships, but the decision did not herald a change in the law so much as reiterate the US Department of Labor’s standards for internships, which the court said were essentially identical to New York State’s.

If nothing else, the Glatt case should serve as a reminder to businesses to take care in structuring internship programs. Using the free labor of non-student adults for regular employee functions is a particularly dangerous practice, as Fox Searchlight found out.

Employers Should Not Assume IP Assignments are Valid, and Employees Should Take Care to Protect Previously Created IP

Posted April 29, 2013 by Andrew Mirsky 0

An interesting IP assignment and employment case comes out of Wyoming. Yes, you heard that right, Wyoming. A nice summary of the issue was given by William Lenz and Jessica Rissman Cohen:

It is a common misconception that an employer automatically owns all rights to the patents invented by its employees. The general rule is that, in the absence of an agreement to the contrary, an invention and any patents covering that invention belong to the employee/inventor. (emphasis added)

And that’s why employers often require new employees to sign “Inventions Agreements”, or similar agreements under various names such as “Assignment of Intellectual Property” or “Proprietary Rights Ownership Agreement”, the purpose of all of which is the same: To remove any ambiguity as to ownership of intellectual property created during the employment relationship.

To be clear, this an intellectual property problem unique to patents. Copyrights, for example, are deemed automatically “work made for hire” when created under an employment relationship, even in the absence of an IP assignment agreement such as those mentioned above. Indeed, Section 101 of the Copyright Act expressly defines a “work made for hire” as “a work prepared by an employee within the scope of his or her employment. Although this being the law and lawyers being lawyers, there are cases challenging whether an employee is in fact an “employee”, and by extension challenging whether an individual’s work is a “work made for hire” in the absence of an assignment agreement. Community for Creative Non-Violence v. Reed, 490 U.S. 730 (1989).

Contract Offers: You Receive an Offer, and You Propose Changes to the Offer. What Then?

Posted April 3, 2013 by Andrew Mirsky 0

Here’s an interesting question (at least interesting to me): When does a response to an offer constitute a counteroffer? And if it does constitute a counteroffer, so what? Does that counteroffer make the agreement binding or is it simply a rejection of the original offer? In other words, is the counteroffer simply an offer for an entirely new contract?

This comes up frequently in employment situations, where for example a company might offer a severance package to an employee, and the employee might respond by asking for more money or other different terms. Obviously, if the employee outright rejects the employer’s offer, that’s an easy case where the offer is dead. But often that’s not what happens. Instead, what often happens is that the employer offers a month or so of severance compensation, and the employee responds by asking for health care coverage as well. Or asks for a letter of reference, or a mutual agreement of non-disparagement. Or, for another couple of months of pay.

Employee Wage Theft Protection, Notice, Employee Anti-Retaliation and NLRA

Posted April 16, 2012 by Andrew Mirsky 0

Last year, effective for 2012, New York State enacted the “Wage Theft Protection Act”, amending wage notice requirements and establishing penalties for failing to comply with the new rules. The Act expands on ways workers must be notified of wages through wage statements while creating additional protections for workers against retaliation for expressing concerns about working conditions.

Wage Notice Requirements

Starting with 2012, the Act requires that employees must be given a pay notice between January 1 and February 1 of each year or at any time a worker’s wages change. If an employee is hired after February 1, he or she must still be given notice upon hire as well as the annual notice with other employees.

Notices must provide the following information: An employee’s wage, including the rate of wage including the hour, shift, day, week, salary and frequency of payment. Additionally, the notice must include allowances and whether or not allowances are included in pay, for example tips, meals and other accommodations. Lastly, the employer’s name, address, telephone number and other reasonably appropriate information must be included in notices.

Employer Tries to Enforce Noncompete, Virginia Says “No Way”!

Posted February 27, 2012 by Andrew Mirsky 0

This past November, the Virginia Supreme Court overruled a 1989 opinion on the wording of non-compete clauses. In Home Paramount Pest Control v. Shaffer, the court held Home Paramount’s non-compete clause to be too broad, thus reversing a 22-year old decision in which the same court had upheld the same employer’s almost identical language.

Justin Shaffer, the defendant in Home Paramount Pest Control, signed an employment agreement in connection with his hiring by the pest control company in January 2009. The agreement contained a non-competition clause forbidding Shaffer for two years from engaging in a pest control business in any area that he had worked as an employee of Home Paramount, specifically:

The employee will not engage directly or indirectly or concern himself/herself in any manner whatsoever in the carrying on or conducting the business of exterminating, pest control, termite control and/or fumigation services … in any city, cities, county or counties in the state(s) in which the Employee works and/or in which the employee was assigned during the two (2) years from and after the date upon which he/she shall cease for any reason whatsoever to be an employee of [Home Paramount].

Shaffer resigned from Home Paramount in July 2009, and soon thereafter began work at a competing pest control business. Home Paramount then filed a complaint against Shaffer claiming he had violated his non-compete clause. Shaffer responded by filing a plea contending that the provision was legally overbroad and therefore unenforceable. The circuit court of Fairfax County ruled in favor of Shaffer, holding that the provision was indeed overbroad and therefore unenforceable. On appeal, the Virginia Supreme Court affirmed.

Does Demand Media Really “Suck”? Fair Use and Freedom to Bash Your Boss

Posted August 3, 2011 by Kate Tummarello 0

Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly. Follow Kate on Twitter @ktummarello. Andrew Mirsky of Mirsky & Company contributed to this post.

Gone are the days of bashing your boss in the breakroom. Now, colleagues gather online to anonymously air their grievances. A group of disgruntled Demand Media, Inc. employees did just that with their website DemandStudiosSucks.com. Then Demand Media struck back.

Late last month, attorneys for Demand Media, a content production company whose properties include eHow, LIVESTRONG.com, Cracked.com, typeF.com, Trails.com and GolfLink, sent a letter to DemandStudiosSucks.com asking it to remove content that had been copyrighted by Demand Media.

The media company accused the people behind this censorious website of creating and maintaining “a forum in which users can, and do, post and misuse Demand Media’s trademark, copyrighted material, including confidential and proprietary copy editing tests.” The letter also referenced “an internal presentation regarding the company’s business plans”, published without permission on DemandStudiosSucks.com.

Immediately, of course, the letter was posted on DemandStudiosSucks.com.

The next day, a user named “Partick O’Doare,” who has posted the majority of the content on the site, published an open letter addressing the claims made by Demand Media’s attorneys. Although the website removed the content addressed in the letter, O’Doare explained that the site’s creators had not acknowledged any infringement in removing the content.

Instead, those behind the website claimed that their use of the Demand Media content fell under fair use guidelines, specifically protections for commentary and criticism. “Let’s be honest,” the open letter says, “if ever there was a case of unequivocal fair use, this would be it.” A statement which should raise flags to anyone who previously felt similarly.

Fair use is a defense to a claim of copyright infringement, but not other claims. A fair use argument cannot simply succeed on its merits where other legal rights are violated. Context matters. So, for example, as seen in some Facebook “suck site” cases, fair use will not protect against a claim of defamation. Employees who publish company trade secrets and other proprietary information cannot rely on fair use to defend against claims of violations of corporate and employment law.

O’Daire’s letter proudly boasts that the voices behind DemandStudiosSucks.com were fully prepared to defend themselves, citing the fair use cases Lenz v. Universal Music Corp. and Online Policy Group v. Diebold, Inc.

Innovation is Collaborative: What about Noncompetes?

Posted February 25, 2011 by Andrew Mirsky 0

In a recent podcast, Neal Seth and I discussed protection of ideas, focusing particularly on the problem where someone has a business plan, a concept, a script, or really just an idea for doing something. They want to pursue it somehow, but they’re worried that sharing it with anybody will open them up to all sorts of problems.

What’s the solution? There’s always the most traditional and perhaps the most primitive solution: Lock up the idea. Meaning: Do everything you can to make sure that anything that anyone does for you as a developer, contractor, employee, business partner, vendor or whatever is owned by you or your new company.

Update: Social Media Policies Violate Federal Labor Law?

Posted February 8, 2011 by Andrew Mirsky 0

Last month I wrote about an NLRB complaint against a Connecticut ambulance company, American Medical Response (AMR), for wrongful termination of an employee who had complained on Facebook about her supervisors and the company. The NLRB had begun proceedings against AMR for violating the employee’s rights under the National Labor Relations Act, specifically rights to take “concerted activity” related to working conditions.

The New York Times reported yesterday that the company had reached a settlement with the NLRB. In particular, The Times reported that the company agreed to modify its workplace policies “to ensure that they do not improperly restrict employees from discussing wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”

It is believed that this case was the first of its kind, where the NLRB took action against an employer related to an employee’s comments and conduct on a social media site like Facebook.

According to the San Jose Business Journal, the company reached a separate private settlement with the fired employee, the terms of which were not disclosed by the NLRB, the company or the employee.

Interestingly, while the case obviously did not get to a full precedent-setting decision, a publicly-acknowledged condition to the settlement was the company’s acknowledgment that outside discussions of work conditions could not be acted upon detrimentally by the company. And without explicitly stating so, these outside discussions obviously included facebook and other social media outlets.

Social Media Policies Violate Federal Labor Law?

Posted December 22, 2010 by Andrew Mirsky 0

A Connecticut company suspended and then fired an employee for making disparaging comments on Facebook about the company and about her supervisor.

Not in dispute is that the employee’s actions violated the company’s social media and other personnel policies, which (among other things) prohibited depicting the company ‘in any way’ on Facebook or other social media sites or from “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

In dispute is whether that social media policy – and the company’s actions in enforcing the policy – violated public policy, in particular Federal labor law. This came into fast relief when the National Labor Relations Board (NLRB) subsequently filed a complaint against the company, charging the company with violations of the employee’s rights under the National Labor Relations Act (NLRA).

MediaTech Law

By MIRSKY & COMPANY, PLLC