Internet Law Lawyers, Data Security Law, Intellectual Property Law

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."

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."

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 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."

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."

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."

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."