Media Tech Law – Page 9 – MIRSKY & COMPANY, PLLC

Tootsie Roll vs. Footzy Roll: Clever Marketing or Trademark Infringement?

Posted August 14, 2012 by Britnie Morris 0

As a twentysomething female who likes to dress for success but not suffer without end in the unrelenting DC humidity, flat, practical shoes can offer a sweet reprieve from uncomfortable heels. Rollashoe’s premier product, the Footzy Roll, a ballet-style, compactible slipper can be stored easily for the girl on the go. They’re great to casually slip on after a night out on the town or for happy hour after a day in the office. They’re also edible. Just kidding.

Tootsie Roll seeks to block Rollashoe’s trademark for “Footzy Rolls” in the US Patent and Trademark Office, as Reuters reported last fall. Tootsie, which, as reported in the Chicago Tribune, earned $521 million in 2010, filed suit against Rollashoe, LLC in federal court in Chicago, claiming that Footzy Roll will confuse and deceive consumers and dilute Tootsie’s trademarks.

SaaS: Software License or Service Agreement? Start with Copyright

Posted July 16, 2012 by Andrew Mirsky 0

SaaS, short for “Software as a Service”, is a software delivery model that grants users access to a program while the software itself and its accompanying data are stored off-site, on a vendor’s (or another third party’s) servers. A user accesses the program via the internet, and the access is provided as a service. Hence … “Software as a Service”.

In terms of user interface functionality, a SaaS service – typically accessed via a subscription model – is identical to a traditional software model in which a user purchases (or more typically, licenses) a physical copy of the software for installation on and access via the user’s own computer. And in enterprise structures, the software is installed on an organization’s servers and accessed via dedicated “client” end machines, under one of many client-server setups. In that sense, SaaS is much like the traditional client-server enterprise model where servers in both cases will likely be offsite, the difference being that SaaS servers are owned and managed by the software owner. The “cloud” really just refers to the invisibility of the legal and operational relationship of the servers to the end user, since even in traditional client-server structures servers might very likely be offsite and accessed only via internet.

MegaUpload – Where is my Data?

Posted June 26, 2012 by Andrew Mirsky 0

A not-insignificant consequence of the federal government’s move in January to shut down the popular file-sharing site MegaUpload is that customers are blocked from being able to access their files.

First, some background. In January, the government charged that MegaUpload and its founder Kim Dotcom operated an organization dedicated to copyright infringement, or in other words operated for the purpose of a criminal enterprise. The site provided a number of online services related to file storage and viewing, which (among other things) allowed users to download copyrighted material. The government also claimed in its indictment that the site was also used for other criminal purposes including money laundering.

Not surprisingly, the file-sharing activities caught the unpleased eye of prominent content ownership groups

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.

Privacy: Consent to Collecting Personal Information

Posted April 4, 2012 by Andrew Mirsky 0

Gonzalo Mon writes in Mashable that “Although various bills pending in Congress would require companies to get consent before collecting certain types of information, outside of COPPA, getting consent is not a uniformly applicable legal requirement yet. Nevertheless, there are some types of information (such as location-based data) for which getting consent may be a good idea. Moreover, it may be advisable to get consent at the point of collection when sensitive personal data is in play.”

First, what current requirements – laws, agency regulations and quasi-laws – require obtaining consent, even if not “uniformly applicable”?

1. Government Enforcement. The Federal Trade Commission’s November 2011 consent decree with Facebook user express consent to sharing of nonpublic user information that “materially exceeds” user’s privacy settings. The FTC was acting under its authority under Section 5 of the FTC Act against an “unfair and deceptive trade practice”, an authority the FTC has liberally used in enforcement actions involving not just claimed breaches of privacy policies but also data security cases involving managing of personal data without providing adequate security.

2. User Expectations Established by Actual Practice. The mobile space offers some of the most progressive (and aggressive) examples of privacy rights seemingly established by practice rather than stated policy. For example, on the PrivacyChoice blog, the CEO of PlaceIQ explained that “Apple and Android have already established user expectations about [obtaining] consent. Location-based services in the operating system provide very precise location information, but only through a user-consent framework built-in to the OS. This creates a baseline user expectation about consent for precise location targeting.” (emphasis added)

Privacy For Businesses: Any Actual Legal Obligations?

Posted March 19, 2012 by Andrew Mirsky 0

For businesses, is there an obligation in the United States to do anything more than simply have a privacy policy? The answer is not much of an obligation at all.

Put another way, is it simply a question of disclosure – so long as a business tells users what it intends to do with their personal information, can the business pretty much do anything it wants with personal information? This would be the privacy law equivalent of the “as long as I signal, I am allowed to cut anyone off” theory of driving.

Much high-profile enforcement (via the Federal Trade Commission and State Attorneys General) has definitely focused on breaches by businesses of their own privacy statements. Plus, state laws in California and elsewhere either require that companies have privacy policies or require what types of disclosures must be in those policies, but again focus on disclosure rather than mandating specific substantive actions that businesses must or must not take when using personal information.

As The Economist recently noted in its Schumpeter blog, “Europeans have long relied on governments to set policies to protect their privacy on the internet. America has taken a different tack, shunning detailed prescriptions for how companies should handle people’s data online and letting industries regulate themselves.” This structural (or lack of structural) approach to privacy regulation in the United States can also been seen – vividly – in legal and business commentary that met Google’s recent privacy overhaul. Despite howls of displeasure and the concerted voices of dozens of State Attorneys General, none of the complaints relied on any particular violations of law. Rather, arguments (by the AGs) are made about consumer expectations in advance of consumer advocacy, as in “[C]onsumers may be comfortable with Google knowing their search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy.”

Again, there’s little reliance on codified law because, for better or worse, there is no relevant codified law to rely upon. Google, Twitter and Facebook have been famously the subjects of enforcement actions by the states and the Federal Trade Commission, and accordingly Google has been careful in its privacy rollout to provide extensive advance disclosures of its intentions.

As The Economist also reported, industry trade groups have stepped in with self-regulatory “best practices” for online advertising, search and data collection, as well as “do not track” initiatives including browser tools, while the Obama Administration last month announced a privacy “bill of rights” that it hopes to move in the current or, more realistically, a future Congress.

This also should not ignore common law rights of privacy invasion, such as the type of criminal charges successfully brought in New Jersey against the Rutgers student spying on his roommate. These rights are not new and for the time being remain the main source of consumer recourse for privacy violations in the absence of meaningful contract remedies (for breaches of privacy policies) and legislative remedies targeted to online transactions.

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.

Fair Use or Just Plain Stealing? “Transformative” Art in a Digital World

Posted February 21, 2012 by Andrew Mirsky 0

A recent New York Times article discussed the case of an artist was sued for copyright infringement after he created paintings and collages based on photographs without crediting or obtaining permission from the photographer.

The artist, Richard Prince, based his works on photographs from a book about Rastafarians “to create the collages and a series of paintings based on [those photographs],” reported Randy Kennedy in the Times.

Then ensued a discussion of the degree to which material must be transformed to fall under copyright law’s “fair use” protection, which would allow use of copyrighted material if, as the article explains, “the new thing ‘adds value to the original’ so that society as a whole is culturally enriched by it.” (The reference is to a 1990 Harvard Law Review article by Federal Judge Pierre Leval. I previously discussed fair use’s 4-prong analysis in the context of photographs and artwork, here and in mashups here.)

RTs are Not Endorsements – Social Media Policies

Posted January 18, 2012 by Andrew Mirsky 0

“RTs do not = endorsements.” We’ve all seen it on Twitter bios, usually bios belonging to members of the media.

These kinds of disclaimers, disassociating the tweets from the people who retweet them, are common. The Twitter bio belonging to Brian Stelter of the New York Times (@brianstelter) notes, “RT & links aren’t endorsements.”

A Social Media Policy Addressing RTs and Linking

But for some, those disclaimers are not enough. Last fall, the Associated Press introduced an updated social media policy for its reporters and editors. As recently reported in Yahoo! News, the AP memo advised reporters and editors that “Retweets, like tweets, should not be written in a way that looks like you’re expressing a personal opinion on the issues of the day. A retweet with no comment of your own can easily be seen as a sign of approval of what you’re relaying.” The guidelines note, “[W]e can judiciously retweet opinionated material if we make clear we’re simply reporting it.”

FTC Blogger Guidelines – A Look at Enforcement

Posted December 14, 2011 by Andrew Mirsky 0

It is a task often relegated to the office interns: posting promotional content to outside social media sites.

Despite the fact that this practice is officially frowned upon in the Federal Trade Commission’s 2009 endorsement guidelines, companies will often engage paid individuals – either employees on the payroll or outside bloggers who receive compensation in the form of a free sample – to post positive reviews online, including to places like Twitter, personal blogs, or online public forums without identifying the connection between the commenter and the product being commented on.

The FTC’s endorsement guidelines seek (among other things) to ensure that unbiased positive reviews online can be considered credible, while also ensuring that positive reviews that are partially the result of some sort of compensation be acknowledged as such.

Citizen Journalism: Vetting Quality Via Lessons from Gaming

Posted November 30, 2011 by Andrew Mirsky 0

Unlike traditional newsroom journalists, “citizen journalists” have no formal way to ensure that everyone maintains similar quality standards. Which does not mean that quality standards are necessarily (or consistently) maintained at traditional newsrooms, but rather that a traditional hierarchical editorial structure imposes at least theoretical guidelines.

By definition, citizen journalism’s inherent difference from the traditional editorial process is the dispersion of responsibility for editorial choice. Nonetheless, “trustiness” in journalism is a concept still heavily dependent on a reporter’s or editor’s reputation. Is the New York Times trusted because it’s trustworthy? Or is it trustworthy because it’s trusted?

The “Generated By Users” journalism blog recently reported the results of its reader poll, “Do you TRUST user generated content in news?”

Dirty Needle: Tattoo Parlor Sues Competitor for Defamation

Posted November 9, 2011 by Kate Tummarello 0

Two dueling tattoo parlors down the road from one another in Mobile, Alabama. It could be the premise of a TLC reality show. It’s not (yet) a TV show, but it IS a court case recently decided by the Alabama Court of Civil Appeals. In September, that court ruled in favor of Chassity Ebbole, owner of “LA Body Art” tattoo parlor in Mobile, who had sued the owners of the competing “Demented Needle” tattoo shop for libel and wrongful invasion of privacy.

Ebbole claimed that Demented Needle owner Paul Averette had been telling customers and others that Ebbole’s shop used equipment infected with diseases such as Hepatitis C and HIV, claiming also that Averette had told the world that Ebbole had infected herself.

MediaTech Law

By MIRSKY & COMPANY, PLLC

Tootsie Roll vs. Footzy Roll: Clever Marketing or Trademark Infringement?

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

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