by Chris Erb on April 26, 2013
My children spend much of their time tattling on, arguing with, and otherwise maligning their siblings, presumably in the hope of achieving some parentally-conferred advantage. In the legal world those statements, if false, would generally be referred to as defamation, although Wikipedia lists a host of synonyms or near synonyms including “calumny, vilification, traducement, slander … and libel.” I personally like “calumny,” since it sounds vaguely Dickensian, but either way those statements would be considered actionable under the common law.
In the past, the distribution of those types of statements was necessarily limited to people within reach of the speakers voice, with wider distribution necessitating a whole lot of stamps and envelopes or the cooperation of the New York Times. More recently, the internet has made it possible to broadcast those statements well beyond the confines of a home, or a town, or even a state at a very low cost, emboldening a host of would-be defamers. Equally importantly, the speakers are often anonymous, and may be located in a distant state or country beyond the reach of their victim’s local courts or law enforcement.
As a result, frustrated victims (or those who perceive themselves victims) often look to a bigger but more easily reached target - the internet host or service provider. Of course, in most instances the host has no idea of the nature of particular customer’s content until told, and even then the host is hard pressed to determine the relative truth of, say, a blog post or a website. Mindful of this, and in response to a number of early internet cases, Congress inserted what became section 230 into the otherwise ill-fated Communications Decency Act (”CDA”) which confers immunity on an ISP for the speech of its customers for many types of speech.
Section 230’s protections are broad, but there are some important limitations. Immunity does not extend to intellectual property rights, which are governed by existing IP law as well as newer laws like the DMCA. Immunity can also be lost when the ISP is or becomes the speaker or the provider of the content, rather than the infrastructure on which the content is disseminated.
Otherwise, an ISP or even a website which allows third parties to provide content has a fairly solid defense against claims which are based on the content of a third party’s statement. While the protection isn’t without limits, those seeking the removal of content should generally focus their efforts on the speaker, rather than the ISP.
by Erica Intzekostas on April 22, 2013
As we reported last month, the Department of Health and Human Services released its final rule earlier this year modifying and clarifying certain requirements under HIPAA and HITECH. The final rule became effective on March 26, 2013. Covered entities and business associates have until September 23, 2013 to come into compliance with the new rules.
Here is a quick summary of three of the key changes:
1. Business Associates Liability: The new regulations expand the definition of the term “business associate” so that more entities now will qualify. Under the new regulations, not only do business associates have to sign a Business Associate Agreement, but they will be subject to certain rules and liabilities even outside a Business Associate Agreement. The Business Associate Agreement must comply with the new regulations. For any existing Business Associate Agreements that were executed prior to January 25, 2013, those entities have until September 23, 2014 (an extra year) to execute an updated version.
2. Covered Entities Liability: The new regulations expand the liability of covered entities by making covered entities liable for the actions of certain of their business associates. Whether a covered entity is liable for the actions of a business associate depends on the degree of control the covered entity has over the business associate.
3. Breach Notification Requirements: The new regulations tighten the breach notification requirements and place the burden on the covered entity or business associate to demonstrate (through a risk assessment) that there is a low probability that personal health information has been compromised as a result of the breach.
by Chris Erb on April 15, 2013
If you’ve ever vanity-Googled and found stuff you don’t like on the internet, you’re certainly not alone. Unfortunately trying to prevent certain unsavory keywords from becoming associated with your name can be extremely difficult, even for those who are politically or otherwise well-connected.
For over two years, Bettina Wulff, the wife of a former German President, has tried to prevent the German words for “red light” and “escort” from being associated with her name during Google searches. As you can see from the above, at least one term, “rotlicht” (or red light) still appears as of this writing.
Perhaps tired of tilting at windmills, Ms. Wulff voluntarily cancelled an upcoming hearing in the case according to German new sources (in German). Whether this means that she’s given up or not remains to be seen, but for now it remains extremely difficult to challenge Google’s keyword associations, no matter where and to whom they happen.
by Chris Erb on April 14, 2013
The much maligned CISPA (Cyber Intelligence Sharing and Protection Act) is back, a statute designed to better protect the country from cybersecurity threats, but which has provoked the ire of privacy advocates and others concerned about the broad access granted to law enforcement under the law. The focus of the law is to allow private companies to “voluntarily” share information with law enforcement and to limit liability for doing so. The bill recently made it through the House Intelligence Committee, paving the road for consideration by the House of Representatives.
CISPA would allow ISPs to voluntarily provide e-mail and other customer communications to law enforcement with fewer safeguards. Under current law, law enforcement cannot access to e-mails and other communications without a search warrant, and ISPs are only permitted to disclose communications voluntarily under very limited circumstances.
The problem with any law of this nature is the fundamental imbalance between the interests of the owner of the information and the party voluntarily providing access to that information. Let’s face it, Google or Verizon will never be as interested in the privacy of your e-mails as you will be, and while there have been some much-publicized cases where ISPs and social media giants protect customer data in the face of law enforcement requests, it’s often easier and almost always cheaper for ISPs to simply provide the requested information than to do battle with law enforcement over whether the information is or is not really critical for a cybersecurity investigation. Moreover, lacking the entire picture, it is almost impossible for an ISP to determine whether a particular cybersecurity request is reasonable or not.
This time around, some in the internet industry are supporting CISPA, albeit with some reservations. That appears to be a case of “better the devil you know, than the devil you don’t,” but it is a little disturbing for privacy advocates like EFF who see one of the few bright-line protections for internet users about to go the way of the dodo bird.
by Chris Erb on April 8, 2013
For the past few years employers have grown used to the idea that there were enough H-1B visa to last quite a while, if not the entire year. This year, in spite of anemic job growth, the H-1B cap for the fiscal year 2014 was met within the first few days of eligibility, as over 120,000 petitions were filed for only 85,000 available visas.
The USCIS has decided to once again decide which petitions will be accepted by lottery, meaning even those whose petitions arrived on April first may in fact find themselves with the short end of the stick, a nasty little April Fool’s joke indeed.
by Erica Intzekostas on March 27, 2013
The Department of Health and Human Services released its final rule earlier this year modifying and clarifying certain requirements under HIPAA and HITECH. The final rule became effective yesterday. Covered entities and business associates have until September 23, 2013 to come into compliance with the new rules. Over the next few weeks we will be reporting on particular areas of the final rule that may be important to some of our clients, including those in the healthcare industry, as well as individuals and companies that do business with those in the healthcare industry or otherwise have access to personal health care information. So stay tuned!
by Chris Erb on March 20, 2013
Back when I lived in Germany I would occasionally buy CDs at a store called “WOM,” for World of Music. I say occasionally because CDs in Germany were significantly more expensive than in the US, so I had a hard time bringing myself to spend that much even for music that I liked. When I returned, of course, I brought those CDs back to the US along with my other stuff. Some years later, seeing the folly of buying a David Lee Roth CD in the first place, I sold a number of them over the then-nascent internet via a service called half.com. I didn’t think much about the legalities of it - it was my CD, I bought it fair and square, so I figured could do what I wanted with it. According to John Wiley & Sons, Inc., a publisher of textbooks, what I did was in fact copyright infringement, even though it was an all-around bad deal for me. A few days ago the Supreme Court respectfully disagreed.
The notion that the purchaser of a copyrighted book or CD can sell or loan that copy to a third party without asking for permission is called the “first sale doctrine,” and although it’s been weakened in a number of significant respects in recent years it remains a critical part of US copyright law. Without the first sale doctrine there would be no used book stores or libraries, since the sale or distribution of a copyrighted work, even a work which was lawfully purchased, would otherwise be subject to the control and permission of the copyright owner. Under the first sale doctrine, while the copyright remains with the copyright holder, the owner of a copy gains important rights with respect to that particular copy
In Kirtsaeng v. John Wiley & Sons, Inc. a Thai national attending medical school in the US used his connections in Thailand to purchase textbooks published by Wiley’s Asian subsidiary and resell them at a tidy little profit in the United States. Wiley sued for copyright infringement, winning initially and on appeal. With this recent Supreme Court decision, however, purchasers of lawfully made copyrighted works overseas will be able to resell those works here under the first sale doctrine. While there may be a temporary upswing in imports of overseas works as a result of this decision, over time publishers will doubtless find a way to limit price competition from their affiliates abroad.
Legal or not, I won’t be starting up an import business from Germany any time soon.
image courtesy of Wikipedia
by Erica Intzekostas on February 27, 2013
Ask any baseball fan, “Who is the Evil Empire in baseball?” and they will undoubtedly answer, “the New York Yankees”. The New York Yankees have been extensively referred to by the press, media, public, and even their own fans as the “Evil Empire”. The coining of the phrase itself, in connection with the Yankees, is attributed to Red Sox president Larry Lucchino in 2002. Yet despite its clear negative implication (the previous Evil Empire in American lingo was the USSR in the 1980’s), the Yankees and their fans have embraced the term, even playing the well-known empire music from Star Wars during home games. So important has this name become to the Yankees that when a small company in Wainscott, New York filed an application in 2008 to register “Baseballs Evil Empire” as a trademark to sell clothing and hats, the Yankees filed an opposition to try to prevent the registration. The opposition was filed after the trademark office determined that “Baseballs Evil Empire” was eligible for registration. The Yankees do not actually have a registrered trademark to the term “Baseballs Evil Empire” or to anything like it, nor have they applied for one, but that does not mean they cannot oppose the registration.
The Wainscott company was displaying images on its website that were clearly deragatory knock offs of the Yankees’ logos, such as the overlapping N and Y, but with a devil head coming out of the top of the Y, and another famous Yankees logo with a pitchfork in place of the red, white, and blue Yankees hat. They were marketing these products to baseball fans. The Yankees argued that such use would be harmful to the Yankees. However, it seems the most important and convincing evidence to the Trademark Trial and Appeal Board was the fact that so many Yankees fans, and even the Yankees themselves, have embraced the term that it now has a positive association among Yankees fans. The Board, in siding with the Yankees, found that the use by the other company of even these obviously derogatory images of the Yankees’ logos would likely cause confusion among consumers and lead consumers to believe that perhaps the T-shirts were connected with the New York Yankees organization. Had the Yankees not been able to demonstrate that they and their fans have long embraced the term “Evil Empire”, this other company may well have prevailed on the grounds that their use was a parody and that there is no way anyone would think their merchandise was endorsed by the New York Yankees when it is so derogatory.
By demonstrating that the New York Yankees and their fans have embraced the term that was originally intended as a slur by the team’s arch rival, the Yankees were able to convince a panel of judges at the trademark office that the registration of “Baseballs Evil Empire” should not be granted.
by Chris Erb on February 8, 2013
“It’s a matter of principle”
Usually, this dangerous little phrase is the preface to a decision which, while heartfelt, is often unwise. Take, for example, the recent case of an internet journalist who, having made one wildly off-base charge of copyright infringement, decided to double-down and make another. In doing so, our fearless journalist, whom we’ll call Beri Tuhl in a cynical effort to avoid yet another threatened lawsuit, really only succeeded in demonstrating a remarkable misunderstanding of copyright law. I’ll let techdirt tell the full story, since they are the ones threatened with a lawsuit, but the original and subsequent stories on Ms. Tuhl’s activities would most likely be covered by the wounded but still existent fair use doctrine, so her threats were unwarranted at best. I can’t imagine the resulting firestorm has been pleasant to endure or helpful to Ms. Tuhl’s credibility.
So, if you’re tempted to make a threat based on some sort of principle, legal or otherwise, take a step back and consider whether that principle is really worth the potential consequences. After all, in a world where social media can greatly multiply even the smallest misstatement, it’s sometimes better to be quiet than right, and it’s almost always better to be quiet than wrong.
by Erica Intzekostas on January 14, 2013
Last month the United States Patent and Trademark Office issued Examination Guide 1-13 with information for submitting webpages as specimens. Specimens are concrete examples of how a trademark is used to identify a good or service. They must be submitted as a condition for most trademark registrations and periodically to maintain a registration. Because so many companies have websites, screen shots of webpages have become a very popular way of submitting a specimen.
Examination Guide 1-13 offers guidelines as to what makes a webpage qualify as an acceptable specimen. The guidelines emphasize the distinction between mere advertising material and point-of-sale displays, with only the latter being an acceptable specimen. In other words, if the webpage does not offer a direct means by which to purchase the goods or services, the webpage will not qualify as an acceptable specimen.
There are 3 elements that a webpage must have in order to constitute an acceptable specimen:
1. The website must include a picture or a description of the goods or services. In general, the more sophisticated the product, the more detailed the description needs to be.
2. The website must show the trademark (whether the trademark is a word mark, logo, or otherwise) in sufficient proximity to associate the trademark with the goods or services. The more prominently the trademark is displayed and the closer it is to the goods or services, the better. Although not strictly required, it is generally good practice to use the appropriate trademark symbol (e.g. ® or ™).
3. The website must provide information necessary to directly purchase the goods or services, such as a link to a shopping cart or a telephone number to call to place an order. Merely providing a general telephone number for the company or “where to buy” information that lists retailers is insufficient. The consumer needs to be able to order the goods or services directly in order for the website to qualify as an acceptable specimen.
It is also important that the trademark be distinguished from the name of the company. This is a requirement for all trademarks, not just website specimens, but the problem is frequently encountered on websites. Often the name of the company is also a trademark. This is perfectly OK. However, the USPTO will not register the company’s name as a trademark unless it is clear that they are two different things. In other words, if the “trademark” is only used as the company’s name and not separately to identify the goods or services the company is selling, the USPTO will not register it. Therefore, if a website is submitted as a specimen, it is important that it display the trademark as more than just the company’s name.
Examination Guide 1-13 offers several good examples of acceptable and unacceptable webpages. It can be found on the USPTO’s website at http://www.uspto.gov/trademarks/resources/Trademark_Exam_Guides.jsp
