Friday, November 27, 2015

Cross Device Tracking

The Federal Trade Commission has noted that cross device tracking which is a consequence of the Internet of Things (IoT) falls essentially within its auspices.  Considering the concerns with transparency and the required notices to consumers, cross device tracking is just not getting attention for purposes of enhancing consumer protection.  The advertising industry representatives as well are providing their input regarding the benefits of cross device tracking.
It is important to note that the beneficiaries of CDT are garnered by consumers as well as content providers, advertisers, and government.  While the attention initially highlights the benefits of the shared essence of the data information generated by the devices, the FTC emphasizes the need for consumer awareness and appropriate notices in order for consumers to have control over the information that is being tracked across devices via the internet.
While the advertising industry is seeking to set standards and be proactive in setting guidelines, its technology counterparts are attending to caps on frequencies, seamless data exchanges in order to maintain and enhance consumer use and their experience.  The technological counterparts are also focusing on continued innovation and how consumers realize the educational benefit.  The FTC’s efforts to address consumer vulnerabilities with the IoTs noting their attention over consumer privacy, lack of transparency, appropriate informed notices, and the cross device tracking of data, will highlight the challenges ahead to innovation and enhancing consumer safety, knowledge, and experience.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Wednesday, November 25, 2015

Fate of the Internet

Life has changed with the Internet but it will change even more as the fate of the Internet is in court hands once again.  The U.S. Court of Appeals for the D.C. Circuit will determine how Internet providers will change how we use the internet, what content will be permitted, and how we access and to what limit and extent.  The court will decide on how and to what extent the industry market players can control or restrict or even discriminate disparate uses and a variety of website.

The D.C. Circuit is stepping in on issues pertaining to, not only about the “Internet” and the future in our lives but about deciding on, the limits to federal agency authority.  More specifically, the D.C. Circuit is about to weigh into larger aspects of governance that will conceptually impact other industries in the following:  to what extent federal agencies’ actions and authority are limited; to delineate what is proper federal agency governance over a vital aspect of human interaction; to once and for all clarify to the public at large what the courts’ role and duty is in governance in balance with the legislative and executive branches.  

The D.C. Court had previously held in the 2014 case Verizon v. FCC, aka the “net neutrality” case, that the FCC had abused its authority.  While the court held that determination it did not provide how the agency could proceed in its role to rectify its actions.  The decision was authored by Judge Tatel, who is still on the bench for this round of analysis and for this timely and crucial determination for the future of the internet.  While the personnel on the bench has changed, the issues will reverberate beyond the internet and set conceptual lines, to be finally understood, on the appropriate authority of a federal agency regarding the fate of the Internet.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Monday, November 23, 2015

Trademark Free Riding

Many brands in a strong competitive industry have the challenge of trademark free riding posed by not necessarily their own competitors.  Company brands struggle against other entities that are not necessarily in their industry, benefiting by their use of a similar if not identical mark from the reputation they have tried to build. This “free-riding” effectively could dilute the reputation of an established trademark. The protection of a trademark’s reputation should be protected even to the extent of the absence of harm.
Free-riding could be so evident in design and scope that the intent is blatantly obvious upon first impression. A mark with significant public awareness has a lower hurdle to leap. Yet in obscure fields a prior trademark yet known in that field should be able to establish the dilution of its mark by an entity dealing in related and dissimilar goods.
The burden will be heavy on the subsequent user relative to the distinctiveness of the original owner of the mark. How should the presumption weigh? Arguably, it is unfair to benefit from the distinctiveness of a previously established mark, even in a dissimilar field of goods and services. This free riding should shift the burden of proof  to the subsequent user of the similar or identical mark to demonstrate the basis for its choice for that mark in question.
The argument of broad dilution becomes harder when considering how a mark is received by public perception and demands of goods and services when the mark is appearing in dissimilar goods and services. Does it lose its distinctive meaning in its original service area for goods? The struggle continues!

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Copyright Basis

Copyright basis draws the question of whether copyright law is based on government granting a monopoly, if you will, vis-à-vis against any other potential entrepreneur.  Many see it that way and tend to deny copyrights having a proprietary property right for the creator of the work.  Historically the value of crafting an idea composed was germane to the creator of the work.  Copyright basis then can be said as a way of respecting the ownership of the work and the evolving value ascribed to the work by the market among competitors.
The beauty of the copyright basis engenders a scheme, so-to-speak, to value how innovation imposes on products in the marketplace.  It is the writer’s imputed value into the work, innovating and expressing its views and or research.  But the valuation of one’s private property right is based on the works’ contribution to the marketplace.  The argument inclined toward characterizing such a right as a monopoly is not necessarily off base; yet, the government’s role has played a key role to protect that property right.  What is important to conceive is that in a system where innovation is valued and given respect amid other’s private property rights, the inherent ‘monopoly’ held by the creator is essential to competition and the continued wave for innovation.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Sunday, November 22, 2015

Data Protection Harm

Data Protection Law - Consumer Protection Law
Data protection harm has become key in courts determining standing in data breach cases.  Data protection harm was analyzed in a case involving breaches and hacking of personal identifiable information (PII).  The 7th Circuit's attention was drawn where it reversed a district court ruling holding that where future harm suffices for standing (Remijas v. Neiman Marcus Group, LLC).  The court reasoned that hackers could potentially have a future affect by their very intention to hack personal information.
The court noted that the retail store offered every customer that was affected by the breach one year of free credit monitoring and ID theft protection. While the plaintiffs asserted a list of claims, they also alleged claims based on imminent injuries arguing on the increased risk of future credit fraudulent charges and their vulnerability to identity theft.  These accompanied their present injuries of the lost value of time trying to remedy their fraudulent charges and to protect themselves against identity theft.  They also alleged loss of control over their personal private information.  They argued that to an undetermined extent they have lost their privacy.
Reversing the district court was drawn on their reasoning that the effort to resolve credit issues and fraudulent charges and or to seek protection from the vulnerability of other possible identity theft clearly sets the basis for standing. The court balanced the consequence of weighing the future harm and the present uncertainty in favor of siding with the plaintiffs.
The court reasoned that it would be unfair to wait for the harm to occur from hacker’s activities, as it recognized that hackers inevitably will use the hacked information to execute future charges and use the identities of the plaintiffs.  The court did underscore that to merely lose personal information is insufficient to establish standing from data breaches.  The decision on the merits awaits.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Wednesday, November 18, 2015

Linking Defamatory Content Online

A case from Washington state dealt with online defamation from linking defamatory content online.  The court wrestled with the issues of proving defamation online.  The court articulated that the First Amendment freedom speech is to be protected and the courts hold to that as well when it comes to online speech and linking defamatory content.  In the era of the internet, many a customer especially disgruntled ones take to the internet to disparage a business, either for genuine reasons or out of malice.  Alike to the disgruntled patron, is the competitor who uses the medium for its business purposes raising other issues.
The court analyzed the situation of republication of defamatory content in the context of providing a link to a  site that directed the reader to read defamatory content that was about the plaintiff but it was located on another site.  The court held that the linking to a site where the defamatory statement about the plaintiff resided did not constitute ‘republication.’  Even if the Communications Decency Act, Section 230 applied to the case, the court reasoned that under common law, linking defamatory content to a site is not tantamount to “republication” in the context of defamation.
The court weighed the evidence provided by the plaintiff to substantiate the claims.  However, it found the comments to be mere opinions and not provided to be factual in nature.  It determined that though there was a claimed decline in business, the plaintiff did not provide evidence linking the decline to the statements made on the defendant’s site.   Plaintiff also did not provide evidence demonstrating that individuals were influenced to not to do business with plaintiff as a result of the comments made online.  The statements made on social media sites open for public comments may not meet the requisite elements of defamation.
Life Designs Ranch, Inc. v. Sommer, 2015 WL 7015867 (Wash. Ct. App. Nov. 12, 2015)

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Tuesday, November 17, 2015

Copyright and Derivative Work

In the realm of intellectual property, copyright and derivative work gets attention when the issue of collaborative rights arises. Copyright and derivative work controversies happen when the joint contributing plans do not materialize as intended between, for example software developers, researchers, writers, or production designers.
The scenario is similar to one dealt with by the First Circuit in Greene v, Ablon, where coauthors conducted a study to collaborate in the writing a research study that was intended for a book. One of the co-authors had a previous work that was being included in the collaborative piece.  At first glance by the District Court, it determined that a contributed derivative work in to the collaborative subsequent work could not be both joint and derivative.
Conversely on appeal, the court found that a co-authored subsequent project could be both a joint product and as well one with an embedded derivative component. The contribution has copyright value for its author though introduced and incorporated in a subsequent collaborated project.
The appeals court upheld the lower court’s decision regarding joint work by underscoring the Copyright Act’s definition, “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”  17 U.S.C. § 101.  The intention of the collaborators is key point.  The appeals court considered the definition of ‘derivative work’ pursuant to the Act as “a work based upon one or more preexisting works.”  17 U.S.C. § 101.
Moreover, the appeals court determined that the author of the previous work holds the copyright on that work and as well holds a copyright on the derivative work that was collaborated on with a co-author using the previous work.  Greene v. Ablon, 794 F.3d 133 (1st Cir. 2015)

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Monday, November 9, 2015

Standing in Data Breach Cases

Standing in data breach cases has been tossed around with the tossing hinging on "harm" and its reality. The Eastern District court for Pennsylvania weighed into this issue. After years of hesitation to find standing in data breach cases, federal courts are now viewing factors to base standing.  When the matter has been the disclosure of personally identifiable information (PII), the courts have not found standing in data breach because they required evidence of actual usage of that PII.  The actual suffering of identity theft attacks brings upon the effects that the courts are seeing as highly relevant to finding standing in data breach cases.
In a case where computers were stolen and the files were not encrypted, the court found that the company breached its contract to protect personally identifiable information when the company did not safeguard the computers and did not reasonably invest in cyber security.  The court in that light allowed the restitution claim to proceed as well as the breach of contract to protect the PII of employees and former employees.
The harm claimed by the plaintiff was demonstrated by the misappropriation of the plaintiff’s identity and its bank account, in addition to credit cards usage, financial transactions and employment applications filed using plaintiff’s identity.  Despite the defendant’s claim that plaintiff’s harms were speculative, the court viewed them as a result of the fraudulent transactions that were made using the plaintiff’s identity and that sufficed to give the plaintiff standing in a data breach case.
See  Enslin v. The Coca-Cola Co., No. 2:14-CV-06476 (E.D. Pa. Sept. 29, 2015).

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Saturday, November 7, 2015

Personal Identifiable Information under VPPA

Personal identifiable information and its vulnerabilities in the digital age is disconcerting. Digital media law and the digital media industry wrestles with how courts define personal identifiable information under the Video Privacy Protection Act.  This definition is important to companies that stream deliver videos to customers. How broadly the court define the scope of liability will remain a concern with personal identifiable information under the VPPA.
In a case from the Southern District of New York, Robinson v. Disney Online (No. 14-04146), the court set out some demarking points on defining personal identifiable information under VPPA.  The court determined that personal identifiable information is one that identifies the individual who has accessed specific video materials.  The court then distinguished this from the name and address that identifies and individual by statutory criteria.  Yet it set out that identifying the serial number of a device does not identify the individual.
In its explanation, the court stressed personal identifiable information it is the information that is disclosed by a ‘video tape service provider,’ by logical conclusion, then the video tape service provider does the identifying.  Whoever does the identifying is relevant to the equation in order to fit under the requirements of the VPPA and ensure that it is not a nonparty to the issue at hand.
What is important about personal identifiable information under VPPA is how liability is defined based on the disclosed information actually identifying a specific person.  Bits of information separated cannot identify an individual until they are brought together.  The attempt to arrive at some loose basis for identifying an individual would erase boundaries for defining personal identifiable information under VPPA.  A useful definition for PII as raised by the court in Robinson is information identifying a particular person as one who has accessed video content and not the serial number of the device used.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Wednesday, November 4, 2015

Personal Data Privacy in Wearable Tech

The industry is concerned with personal data privacy in wearable tech you buy and use. The personal data privacy in wearable tech that is collected has gotten the attention of the consumer electronic industry and have promulgated some guidelines.  They has set a voluntary standard of principles to follow.
The CEA, Consumer Electronics Association has set some principles address for the industry addressing personal data privacy in wearable tech. The concern is with the data the wearable tech can produce and what will be done with it.
The points or principles are as follows and they are aspirational in a homily form:  They addressed security and the company’s responsibilities; emphasized consumer need to know about policy and practice as it relates to comfort and confidence in using the wearable tech; noticed the need for clear and concise notices on how the data collected will be used; stressed transparency in how third-parties may transfer collected data; and underscored the importance of fairness in handling the data results that are generated against the unwelcomed circumstances that may emerge.
The principles ended with ideas on how to enhance the ability review personal data, correct it, and delete it; enhance how consumers will have control over how the data is communicated; and enhance the privacy balanced with governments request for personal data. By all means these are in developmental stages which require consumer input and industry implementation of these principles.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.  

Sunday, November 1, 2015

Website Immunity

Website operators, either as defendants or plaintiffs have resorted to Section 230 of the Communications Decency Act (CDA) to determine website defamation immunity and defamation liability.  Under the Section 230, blogs or forums, for instance, benefit from website immunity from tort liability if the information was from a third-party.  That third-party could be a subscriber, a passing through poster, or even a frequent poster of content and comments. The website immunity as it is dealt with by the courts is not settled when the content has characteristics and or origin that embroils the website operator.
The CDA defines interactive computer service as an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, i.e., a distributor.  The CDA defines information content provider as one typical of a publishers who creates and develops content.
Website immunity is in question when the content’s creation has an element of operator involvement.  Website immunity is also questioned when a website has an interactive function. What the courts have delved to discern to what extent the operator’s conduct was involved in editing and selecting the content which may affect website immunity.
Website immunity can be triggered with an operator’s ‘passive’ hosting activity which is typical of one in a distributor function.  However, if the operator exercises editorial discretion in determining the selection of submitted material or its content, the website immunity will be questioned as with a publisher.   Website immunity hinges on the function of the website operator over the content displayed on its website while the courts have disparately treated the subject.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
Copyright 2015, all rights reserved Lorenzo Law Firm, P.A.