MediaTech Law

By MIRSKY & COMPANY, PLLC

Software Maker Runs into Licensing Wall: Implied and Express Warranty Problems

Posted August 27, 2013 by Andrew Mirsky 0

What is the significance of thinking of software as a “good”, as opposed to a “service”?  A recent case showed that various implied warranties under the Uniform Commercial Code (UCC) apply only to sales of “goods”, but frequently will apply to software licenses.  The case also showed how software makers can be held liable for promises they make about performance of their software, despite disclaimers in a software license agreement.

A software vendor licensed its software to a customer, who agreed to the vendor’s end user license agreement (EULA) as a condition of the transaction.  The case is Rottner v. AVG Technologies, 12-10920-RGS (D. Mass, May 3, 2013) [pdf].  The software vendor argued that the customer’s agreement to the vendor’s EULA rendered inapplicable the customer’s reliance on warranties provided anywhere other than in the EULA.  If correct, that would have meant that the only applicable warranties were those expressly made in the EULA, and the inapplicability of any warranties provided under law including under the UCC.  But also inapplicable would be any warranties based on claims made by the vendor in any advertisements or promotions about the software’s capabilities.

Read More

Privacy by Design: Isn’t Everybody Doing It? And if Not, Why Not?

Posted August 20, 2013 by Britnie Morris 0

Privacy by Design refers to a design of technology that emphasizes privacy as its default setting and is proactive in its approach to building and ensuring privacy throughout the life cycle of data storage.

About twenty years ago, Ann Cavoukian, now Information & Privacy Commissioner of Ontario, Canada, coined the term “Privacy by Design” to address privacy concerns if (ever) law and regulation failed to protect consumer needs.  Today, although some technologies are created in adherence to the core principles of Privacy by Design (PbD), many new product developments do not begin implementing privacy on Day 1.  If this seemingly practical approach to privacy is, in fact, good practice, then why isn’t everybody doing it?

Some theories:

  1. Businesses do not fully appreciate consumer needs.
  2. Alternatively, while businesses do appreciate that default privacy could benefit consumers, businesses calculate that there is no actual demand for it, thus no need to supply.
  3. Alternatively, we (who no speak legalese) don’t know what’s really going on.

So what exactly is Privacy by Design?

The option to go off the record in GChat is one example of Privacy by Design.

Put simply, PbD is built-in privacy.  (A brief summary of the 7 Foundational Principles of Privacy by Design is included at the end of this post.)  Dr. Cavoukian, who was recognized as the founder of Privacy by Design by the Best Practices Institute, identified default practices as a preventive solution to address the need for privacy, a need which she had anticipated.  So, for example, the option to go “off the record” during a conversation in Google’s Gchat application illustrates PbD.  Another example is 2-step security verification, used by companies such as Twitter and Evernote, which protects a user’s account against a third party discovering the user’s log-in information.  PbD is not yet ubiquitous, but it is already incorporated into some of the products that many of us use every day.  Nonetheless, at least according to the Future of Privacy Forum, a Washington, DC based think tank, businesses often struggle to implement Cavoukian’s principles into practice.

Read More

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.

Read More

New (York City) Employment Law: NYC Employers Required to Provide Paid Sick Leave

Posted July 30, 2013 by Britnie Morris 0

The Law

New York City recently joined Portland, OR, Seattle, WA, Washington, DC, San Francisco and the State of Connecticut in passing laws requiring employers to provide paid sick leave to employees.  New York City’s legislation, initiated by Councilwoman Gale Brewer, was introduced in 2010 and, unless the economy takes a downturn, will take effect April 1, 2014.  Enactment could be postponed if on December 16, 2013, New York’s Independent Budget Office determines that a specific economic success index is not at or above its January, 2012 level. The text of the new law can be found here. 

Read More

Copyright in Photography: Harney v. Sony and A&E and Other Cases

Posted June 24, 2013 by Britnie Morris 0

A few months ago Christian Gerhartsreiter (right), or Clark Rockefeller, made headlines after being found guilty of first-degree murder for a crime which he committed 28 years ago. Gerhartsreiter is an interesting man and a photo in which he appears makes for a very interesting copyright infringement case. (The Guardian/AP)

When it comes to photographs, how does one measure whether a copying rises to the level of infringement?  This was the question before the court in Harney v. Sony Pictures Television, Inc. and A&E Television Networks, LLC. The United States Court for the District of Massachusetts determined that although the defendants had copied another’s work, the original photo and the re-created image lacked the substantial similarity required to satisfy a copyright infringement claim. The court’s decision was subsequently affirmed on appeal by the U.S. Court of Appeals for the First Circuit in Boston.

Background:

Freelance photographer Donald Harney approached a father and daughter as the pair was exiting a Boston church on Palm Sunday, April, 2007 and asked to photograph them for a local paper.  The young girl, Reigh Storrow Mills Boss, had long blonde hair, wore a pink coat and rode piggyback on her father’s shoulders.  Her father, Christian Gerhartsreiter, at the time was presumed to be Clark Rockefeller. He kidnapped his daughter later that year.

Read More

Copyright: Authorship, Ownership and Copyright Status

Posted May 20, 2013 by Andrew Mirsky 0

United States copyright law was changed substantially in 1976, with changes effective as of January 1, 1978 and forward.  The regulatory scheme established as of January 1, 1978 is still (essentially) in effect today, and determines how copyright status is viewed with respect to new works and to existing works.

A. US Copyright Law Pre-1978

Prior to 1978, copyright law granted a copyright of 28 years from the date of a work’s publication with notice (through a required filing of a copyright registration with the Copyright Office).  The copyright was renewable after 28 years for a single additional period of 47 years (by filing another renewal copyright registration).

After the expiration of the full 75 years (28-year initial term plus 47-year renewal term), the work went into the public domain.  Similarly, upon the expiration of the initial 28-year term, if the copyright owner failed to file a renewal registration, the work went into the public domain.  This 28/47 rule (total of 75 years) applied to works that were both author-owned copyrights and “works made for hire”.  In terms of length of term of copyright, there was no distinction under the pre-1978 law between author-owned works and “works made for hire”.

Read More

Did the Richard Prince Fair Use Case Just Swallow Copyright Law? Add Some Blue to the Other Guy’s Photo, Call it Fair Use – Really?

Posted May 14, 2013 by Andrew Mirsky 0

Fair use update: I wrote last year about the fair use case in New York involving photographer Richard Prince, where a federal district court rejected Prince’s claim of fair use of photographer Patrick Cariou’s photos of Rastafarians.

Prince appealed his defeat and late last month won a reversal from the US Court of Appeals for the Second Circuit, in New York.  The case may not be all that useful guidance for would-be artists on the limits of fair use – more on this below – but more of a legal scrum over what is (or is not) a “transformative” use of a previously copyrighted artwork.  Or more particularly, how much a court should get involved in evaluating whether a later user’s re-use of an earlier artist’s work is “transformative” at all.

Read More

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).

Read More

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.

Read More

Liability for Data Loss in the Cloud: Why No One Accepts Liability? Why Carve it Out?

Posted March 21, 2013 by Andrew Mirsky 0

Why is liability for data loss typically carved out or tightly limited in cloud service and IT outsourcing contracts?  A common disclaimer in contracts for cloud services (and sometimes plain old IT outsourcing) runs like this:

You agree to take full responsibility for files and data transferred, and to maintain all appropriate backup of files and data stored on our servers. We will not be responsible for any data loss from your account.  (From http://techtips.salon.com/liability-loss-data-under-hosting-agreement-2065.html (emphasis added))

What is the Liability from Data Loss?

First, what exactly is the liability – from data loss – that is being disclaimed?  What is the risk?  For that, we turn to Dan Eash writing in Salon’s “Tech Tips”:

  1. Your site might be corrupted by hackers and spammers because your host didn’t properly secure the servers.
  2. Your host might do weekly backups, but something goes wrong and you lose days of work.
  3. You might have customers in a hosting reseller account who lose data because the host you bought the account from didn’t do regular backups.
  4. You might even have an e-commerce site where new customers make daily purchases.  If something goes wrong, how do you restore lost orders and customer details without a current backup?

I would add a 5th scenario: You just don’t know. 

Read More

Copyright from Beyond the Grave: William Faulkner Sues … Woody Allen?

Posted March 1, 2013 by Andrew Mirsky 0

How can Woody Allen infringe the copyright of William Faulkner, who has been dead since 1962?  Wouldn’t Faulkner’s works be in the public domain?  Turns out … no, and the case illustrates many aspects of copyright law basics.  Whether or not Allen’s 2011 film, Midnight in Paris, actually infringed Faulkner’s copyright.

Copyright has expired for all works published in the United States before 1923.  1923 is significant because in 1998, 75 years after 1923, Congress amended the Copyright Act (the “Sonny Bono Copyright Term Extension Act“) such that no new works would fall into the public domain until 2019.  In 2019, public domain for works published in 1923 would kick in, with 1924 next, then 1925 and so on.  In other words, as to all works from 1923 and later that had not already fallen in the public domain by 1998, copyrights were extended until at least 2019. 

Read More

Copyright 2022 Mirsky & Company, PLLC