A privacy policy? Who needs a privacy policy? Privacy is a mess. You’re building an online business, and you figure you have to have a privacy policy. But why? Is “because everyone else has one” a good enough reason? Ever wonder what you really need to know about privacy law? I mean … what you have to comply with as a business operating in an online environment?
Here, then, the first of several Frequently Asked Questions about privacy policies. Or to be more precise, here now some practical answers on privacy practices:
FAQ #1: Can I simply post a privacy policy and forget about it? Short Answer: No. Longer Answer: No, because as between posted statements and actual compliance, actual compliance is what’s required.
Today we’ll be looking at some of the prominent music streaming sites, including Grooveshark, Pandora, Spotify and others, looking at legal and business issues in a quickly shifting landscape. The New York Times recently reported on the very recent revival of venture capital and public market interest in the music industry after a bit of a funk period. The money seems to be flowing again, and where it’s flowing tells as much about the technology and business as it does about legal issues involved.
To talk about these issues, my guest today is Jake Kring, Co-Founder of GetSpontaneous.com. Jake, along with his other co-founder Mack Kolarich, founded GetSpontaneous, a social event discovery platform optimized for a fundamentally mobile world.
In today’s podcast, we discuss some practical operational differences between limited liability companies (or, “LLCs”) and corporations. We’re specifically interested in covering what corporate formalities are required for the 2 different types of business entities, and what are the differences and similarities.
One of the big attractions (to some) of LLCs is the almost complete LACK of legal requirements for annual corporate formalities. I want to drill down a bit on this and examine how true this is, both in legal reality and in practical reality.
My guest today is Michael Steger, Principal of Law Offices of Michael D. Steger, PC, a firm with offices in New York City. Mike’s practice focuses on litigation, intellectual property, entertainment, media, and corporate and other business matters.
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.
In today’s podcast, we discuss copyright issues, specifically the distinctions – practical and legal – between “inline” or “hot” or “embedded” links and downloaded images. This comes up usually in the context of using video, but the principles should apply to any uses of images on websites, blogs, twitter, Facebook and other social media.
In a series of cases starting around 2002 (a case called Kelly v. ArribaSoft) and accelerating in 2007 (a series of cases involving Google and Amazon and a photography database called “Perfect 10”), web hosting companies, search engines and sites like Amazon were accused of copyright infringement when they used thumbnail images of copyrighted works for their search or catalog results. So for example, Google Images routinely shows images from copyrighted works in search results. Google (based on the Kelly case and subsequent caselaw) argued that the use of the images was a “fair use”, in that the search engine’s cataloguing of images was a “transformative” type of use that should be protected under copyright’s fair use doctrine.
In the more recent cases involving Perfect 10, Google (and Amazon) were initially successful in arguing that their use of copyrighted images wasn’t copyright infringement at all – making a fair use defense unnecessary. Those cases were appealed and reversed, but only partially. The big point that was upheld was that a search web user’s (Google, Amazon, or anybody else for that matter) embedding of inline links would not constitute direct copyright infringement.
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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.
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.
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?
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”.
(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.
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).
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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.
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