MediaTech Law

By MIRSKY & COMPANY, PLLC

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.

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Is Inline Linking Images or Embedding Video Copyright Infringement?

Posted February 4, 2011 by Thomas Yarnell 0

Thanks to Andrew Mirsky for contributing research and feedback to this post.

Let’s say, like most of us, you run a Justin Bieber fan blog. You try to keep it up to date, especially with his latest songs and footage from recent concerts. This involves going on YouTube, finding the new single, and grabbing the embed code, to throw the video up on your site.

The question is… does embedding video (or photos, etc.) make you liable for copyright infringement?

In a word, the answer is yes, although recent major cases on the subject indicate that convincing a court of such infringement is an entirely different story.

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Podcast #3: Intellectual Property: Protecting Ideas, Concepts, Processes and Plans

Posted January 26, 2011 by Andrew Mirsky 0

 

In today’s podcast, we discuss intellectual property issues, specifically the question of how to protect ideas.  My guest is Neal Seth, a partner in Baker Hostetler’s Washington, DC office. Neal’s practice focuses on patent litigation and appeals.  Neal has handled numerous litigation and appellate matters in a variety of technologies, including the pharmaceutical, chemical, electrical, and mechanical fields in district courts, the ITC, and the Federal Circuit.

This is not meant to be a true “primer” on intellectual property protection.  Instead, we’re going to look at the very practical threshold problems entrepreneurs and small businesses face when developing and pursuing new ideas for businesses.

Our questions: What is the major practical problem with patents from the perspective of someone with an idea?  What can copyrights really do for someone?  For example the software developer: What does it mean to copyright software and what kind of protection does it get you (and not get you)?  We discuss major limitations against “descriptive” trademarks.  We discuss trade secrets and how trade secrets are distinct from patent or copyright.  What about Non-disclosure Agreements (NDAs) or Confidentiality Agreements?  Is it necessary to have all interested parties sign an NDA before reviewing a business plan or even taking a meeting?  What benefits?

Please click play below to hear the podcast.

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UMissouri Claims Rights to Student’s iPhone App – then Doesn’t

Posted January 25, 2011 by Andrew Mirsky 0

The Associated Press reported yesterday about a University of Missouri student who invented an iPhone app in a class, then was successful in generating more than 250,000 downloads of the app, and finally was contacted by lawyers for the University demanding a 25% royalty on all earnings from the app.

According to the AP, the student, Tony Brown, was also given the celebrity treatment by Apple and wooed for technology jobs by Google and other companies.

Ultimately, Missouri backed down, but not before overhauling the University’s technology transfer policies, at least as they relate to student development and ownership of intellectual property.  In this case, “Inventions” and copyrights that might be considered “work-for-hire”.

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Copyright and State Law Pre-emption: Part 2

Posted January 18, 2011 by Andrew Mirsky 0

(Thomas Yarnell contributed research and writing to this post.)

In a past post, we wrote about copyright as it relates to how preemption of state law civil causes of action in the same or related cases.  In writing about the Perez Hilton and NFL Films cases, we noted that federal copyright law did not preempt applicable state laws (specifically, “hot news” and right of publicity claims) because the rights claimed under the state laws were not equivalent to the rights protected by the Copyright Act.

Put another way, federal copyright preempts state law claims where the rights sought to be enforced under the state claims do not necessarily match those protected by the Copyright Act.  In those cases, the rights protected by copyright – reproduction, performance, distribution or display of the work – were distinguishable from the rights protected by the state law claims.

A 2008 North Carolina case offers a counter example, involving failure to show that a state law added some unique element outside of the rights protected by copyright. The case, Rutledge v. High Point Regional Health System, F.Supp.2d –, 2008 WL 2264239 (M.D.N.C.) shows how claims under state law can only avoid copyright preemption if they are “qualitatively different” from copyright law.

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Podcast #2: Recent Search Engine Advertising Trademark Rulings in EU and US

Posted January 12, 2011 by Andrew Mirsky 0

Podcast #2: January 6, 2011

 

In today’s podcast, we cover trademark cases from both U.S. and European Union courts involving major search engines such as Google and Yahoo.  In particular, we look at whether and how search engines can be held responsible for trademark infringement when advertisers buy search result advertisements using the trademarked names of their competitors.

My guest is Howard Hogan, a partner in Gibson, Dunn, & Crutcher’s Washington, DC office.  Howard’s practice focuses on intellectual property litigation and counseling, including trademark, copyright, patent, false advertising, licensing, media and entertainment, and trade secret matters.

The trademark issue arises because in many countries, including the US, the search engines allow companies to advertise next to search results using their competitors’ trademarks.  We have seen a major shift in the last year.  Before 2010, it was clear that at least in France and Germany, it was not appropriate for search engines to sell marks, and Google’s policy reflected that.  In the US, there was a divide between the district courts of the Second Circuit and the rest of the country as to whether buying and selling trademarks for search engine advertising constituted a “use in commerce,” but there was very little law on whether that use was likely to cause confusion.

Now, in Europe, the law seems to have shifted against holding search engines liable, but leaving open the potential for trademark holders to go after the advertisers.  In the U.S. the “use in commerce” question has been resolved decisively against the search engines, and the debate has shifted to the “likelihood of confusion” question.  On one hand, we are starting to see more decisions finding that their sale of the marks are not confusing (Rosetta Stone, Boston Duck Tours, College Network) at the same time as other courts are finding that the use of marks by an advertiser are likely to cause confusion (Storus, Skydive Arizona).

Please press play on the audio player to hear the podcast.

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Podcast #1: FTC’s recently issued privacy proposals

Posted January 12, 2011 by Andrew Mirsky 0

Podcast #1: December 30, 2010


In today’s podcast, we discuss the Federal Trade Commission’s recently issued privacy proposals. My guest is Karen Neuman, a founding partner of St. Ledger-Roty Neuman & Olson LLP, a Washington, DC law firm that focuses on regulation of information technologies and communications law, including privacy & data security, mobile communications, the Internet, media, telecommunications and related transactional matters.

At the core of the new privacy proposal is the idea that the current system of self-regulation does not provide enough consumer protection.  Basically, from the FTC’s perspective, people do not pay enough attention to the data-collecting activities of websites and not enough companies are up-front about the data they do collect from visitors to their sites.  The FTC says that while many companies detail their data collection through privacy policies, consumers bear too much of a burden in having to sort through such long, legalistic documents.

Among other proposals, the FTC’s new framework would require a “Do Not Track” option, much like the one we currently have to avoid telemarketers.  “Do Not Track” would essentially prevent companies from tracking things like your browsing history and buying habits, making it much more difficult for them to target consumers with personalized ads.  The proposal also aims to have companies incorporate more consumer protection into their business practices through simpler, more transparent options and by allowing consumers more access to the data being collected about them.  The FTC issued its proposed rules just last week, and requested public comment from both businesses and the public.

Please click play on the audio player below to hear the podcast.

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Trademarks: Why Registering Your Design or Logo May Not Protect You

Posted January 7, 2011 by Andrew Mirsky 0

What are the differences between “special form” (stylized, design, logo) trademarks and “standard character” (word) trademarks?

The 2 basic trademark types are these: (1) “special form” trademarks and (2) “standard character” trademarks. A “special form” trademark that consists of stylized words, letters, numbers and/or a design element such as a logo. A “standard character” trademark consists only of words, letters, or numbers, with no stylization, color or design element.

The issue comes up this way: A company or an individual wants to trademark a brand or company name. So far so good. The first question is does this individual or company have a particular design or logo for its name? If not, then the only type of trademark registration available is a “character” or word mark. If a design or logo is in the mix, then the question is whether or not that design or logo has any value to the company. Obviously examples are the Nike “swoosh” and the Coca-Cola script logo. These are good examples of designs or logos that – separate from the names of the companies themselves – have distinct trademark value for their owners.

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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).

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Fair Use and Mashups

Posted December 12, 2010 by Andrew Mirsky 0

I was recently asked about “fair use” standards for use of copyrighted video or audio in mashups.

What’s a Mashup?

First: What are mashups?  From WiseGeek:

A mash-up is a combination of tools or data from multiple sources. Mash-ups typically collect data from multiple web pages and bring their information into one simplified web application.

Mashups are common in the application development world, but also common in music and videos, and examples are legion (and some notorious).  In particular, a music mashup is (according to Squidoo) …

when the vocals from one song are laid over the music of a second song to create a mashed up version that’s both but neither.  If a good job is done, it enhances the original music.

Actually, the last part of that definition is most critical to a fair use analysis.  I recently wrote about fair use in the context of the republishing of copyrighted photographs or artworks in a magazine, book or electronic publications.  

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Facebook Trademarks “FACE” – HOW?

Posted December 1, 2010 by Andrew Mirsky 0

(Thank you to Thomas Yarnell for contributing to this post.)

It’s one thing for Facebook to claim that a website called “Teachbook” infringes upon the “Facebook” trademark. That seems reasonable. But what about when the social network seeks to trademark both the words “FACE” and “BOOK”?

Last week, Facebook took a big step toward securing the first half of its name, as the company received a Notice of Allowance from the US Patent and Trademark Office for the word “FACE”.  Unless something extraordinary happens between now and the pending issuance, soon Facebook will own a registered United States trademark to the word “FACE”.

To be clear, Facebook’s exclusivity is limited to its defined field, namely:

telecommunication services, namely, providing online chat rooms and electronic bulletin boards for transmission of messages among computer users in the field of general interest and concerning social and entertainment subject matter, none primarily featuring or relating to motoring or to cars.

So, on the one hand, exclusivity is narrow.  And this is important, because while Apple Computers owns trademarks for “Apple”, those are limited to computer and electronic products.  

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Fair Use Copying of Photographs and Artwork

Posted November 23, 2010 by Andrew Mirsky 0

Question: Under what circumstances can “fair use” support the editorial republishing of copyrighted photographs or other artworks in a magazine, book or electronic publication?

Short answer: When the previously copyrighted works are the subject of the republishing.

Fuller answer: An “editorial” republishing, almost by definition but with important caveats, satisfies the “fair use” test under the Copyright Act in 17 U.S.C. § 107, in particular by meeting the Act’s four-factor (nonexclusive) criteria:

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