Articles Posted in Technology

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In our ever-evolving world, there are always new technologies and new opportunities.  Why invest in a person when a machine can do the work for its useful life? Why hire a taxi driver when the car can drive itself? How could you pay for a helicopter or carrier fees when a drone can deliver the goods on its own?  However, as with all things, life is not that easy. If you plan on using drones or Unmanned Aircraft Systems (UAS), then there are some facts you need to know, as the Federal Aviation Administration (FAA) has set forth restrictions. So, what do you need to fly? How do you register a drone? Who can fly a drone?

Who can fly a drone?

In order to fly for commercial purposes it is required that the business have: (1) a Section 333 grant of exemption; (2) a Certificate of Waiver or Authorization; (3) a registered drone; and (4) a pilot with an FAA airman certification. This is a unique qualification for businesses only and hobbyists or recreational drone use would be allowed without having to jump through these requirements.

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Where are the limits of copyright?  Copyright in general is limited to those new and original works, fixed in a tangible medium.  In regards to computer programs, they are also considered literary works for the purposes of copyright law, and so, it could be argued that the language of a system could be granted copyright protections.  However, what happens when it is not simply a computer program, but the language the programs use that is subject to copyright? Can a language be subject to copyright protection?  Does it matter what the language is used for?

Oracle v. Google: API as a Copyrightable Language

Our first example is the ongoing Oracle v. Google case.  As it stands currently, Google has lost, pending the results of the remanded decision later this month regarding any fair use defenses.  This has resulted in the copyright being granted to Oracle for Java’s API (i.e., Application Programming Interface), which is a computer code that allows programs to talk to one another, like the share button on this blog post’s page, allowing a person to link this post to Twitter or Facebook.  Those codes were provided by Twitter/Facebook, and allow the browser to “talk” to another application.

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A new economy has been developing for a while, opening a unique market, with new opportunities. This is what’s called the new “sharing” economy with an entrepreneur presenting a way to connect willing participants for an economic transaction.  This has evolved from something like Craigslist, to a more user-friendly and app-based operation.  Namely, this includes businesses like Uber, Lyft, and AirBnB.

Yet now, it has opened a question with Uber via a proposed settlement about whether the service providers are employees or independent contractors.  So, what happens when you begin to question the standards of a business operation?  To what end can you control the product to ensure that there is a strong method to your brand?  How long can a settlement keep service providers from claiming they are employees and not independent contractors?

The Business Model

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This one isn’t an April Fools’ prank.  On April 1, 2016, the Federal Communications Commission (“FCC”) announced its proposed rulemaking to create regulation that would bind Broadband Internet Access Service (“BIAS”) providers in the interest of enhancing privacy towards consumers.  This proposal has raised objections from AT&T, Comcast, USTelecom, and the Application Developer’s Alliance, claiming that the ensuing regulations would create a morass of regulation in the privacy sphere.  Yet, the FCC’s regulations are to prohibit the monetization of the information that these providers would have due to the use of their services.  So, what is a BIAS and how could these rules possibly protect privacy?

What is a BIAS provider?

The BIAS providers provide internet service through wire or radio.  The FCC even expands this to any functional equivalents to BIAS providers. Of some note is which entities are not BIAS entities.  For example, companies like Facebook, Apple, and to some extent, Google, would not be bound by the terms here and could use the information that is collected through their services.  This is because none of them actually provide the internet service that their consumers use.  There is some room for Google to be prohibited as it provides internet service in some locations through Google Fiber, but the regulations would only prohibit the information that was gained through the use of its internet services, but not services that it provides towards online consumers.  Thus, Google’s Fiber service would likely be prohibited from using consumer’s personal information, while Google’s YouTube service would not.

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As we discussed in part one of this issue, during the late morning of December 2, 2015, a couple armed with weapons walked into a banquet room filled with people.  At first, the attack was categorized as another mass shooting that ended in a large number of fatalities. As the investigation continued, however, more details emerged surrounding the couple.  The FBI concluded that they were “homegrown violent extremists” that had no connection to foreign terrorist organizations. They were merely inspired by such organizations and committed the attack by their own volition.

During the investigation, the FBI obtained Syed Rizwan Farook, one of the shooters, cell phone. The FBI was attempting to gain access to the information stored on the phone, but the method they employed locked them out. As a result, the FBI asked Apple if they were willing to create a program that would create a backdoor. This backdoor would disable certain security features and allow investigators to access Farook’s phone. Apple, however, refused to do so, citing consumer privacy. The FBI then successfully applied for a court order. The judge ordered Apple to create the software, but Apple filed an opposition. In response to the opposition, the Department of Justice applied its own court order, requesting the judge to require Apple to comply with the first order. The federal judge has yet to rule on the request.

Apple’s Argument

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On December 2, 2015, Syed Rizwan Farook and Tashfeen Malik, walked into a banquet room at the Inland Regional Center in San Bernardino, California, armed with semi-automatic weapons. At the time, the San Bernardino County Department of Public Health was holding a training event and holiday party.  Approximately 75-80 people were in attendance. The couple opened fire, and in a matter of several minutes, killed 14 people and seriously injuring 22 others. The couple left the scene before the police arrived at the crime scene.

Immediately thereafter, law enforcement officials started a search for the couple who left in a black SUV. Based on a tip from one of Farook’s neighbors, officers went to his home and a car chase ensued. The SUV eventually stopped and there was an exchange of gunfire between the couple and officers. The couple was killed in the five-minute exchange.

While investigating the case, investigators found a possible link to a foreign terrorist group thereby ruling it a terrorist attack. However, after FBI investigations, it was concluded the couple were “homegrown violent extremists” inspired by foreign terrorist groups. The investigation stated they were not directed by a particular foreign terrorist group or part of any terrorist cell.

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The Internet has become an important aspect in our lives. With the Internet, people can pay bills, make appointments, and buy or sell products.  For example, websites like Amazon, Craigslist, and eBay allow the public to buy and sell products.  So, due to the ease of e-commerce transactions, counterfeiters have found a new medium to sell products.  E-commerce transactions do not require a physical meeting of the seller and buyer, so it becomes easier for counterfeiters to falsely claim they are selling authentic products.

Not only do online counterfeiters affect the public, but they affect businesses as well. Counterfeit items can affect a business’s bottom line. Counterfeit items can cause loss of sales, bad reputation, and loss of goodwill.

A way a business can address online counterfeiting problems is by hiring investigators to locate and identify the online counterfeiters. These investigators are skilled at online fraudulent transactions and can become valuable assets. The investigators create a list of sellers that are known to sell counterfeit items or have the typical characteristics of online counterfeit sellers. These characteristics include selling designer items for an extremely low price on low quality websites. The list is then sent to the business and the business determines whether or not it wants to conduct a sting operation to confirm the counterfeit nature of the seller. If the business decides to conduct the sting operation, then the investigator will set up a purchase, make an inspection, and determine if the goods are actually counterfeit.

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If you have ever been involved in a federal civil lawsuit, you may be familiar with the Federal Rules of Civil Procedure (FRCP).  The FRCP are a set of rules that regulate federal civil lawsuits. The rules address issues from court and party obligations to enforcement of remedies. The FRCP was first adopted by order of the Supreme Court in 1937 and placed into effect in 1938.

On December 1, 2015, these rules were amended. Many of the changes affect electronic discovery (e-discovery). Prior to the internet age, discovery and discoverable evidence were primarily based upon paper transactions.  With the rapid rise of the web, many started to turn to electronic storage of information.  As the data and information-storage landscapes began to change, the rules had to change.

The amendments brought changes to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55.  The amendments also brought on the abrogation of Rule 85 and the Appendix of Forms. The changes that affect e-discovery are as follows:

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The internet has become the home to many advances in the world. With one click of a button, a person can communicate with another person located on the other side of the world. With another click of a button, a person can buy a shirt and have it delivered right to his/her doorstep in a matter of days. Not only has the internet made things more convenient, it has become a tool in starting a business. Besides finding a tutorial to create a website, inventors can now fund their projects to bring their ideas to reality through crowdfunding. The inventor simply places his idea on a crowdfunding website, e.g., Kickstarter or Indiegogo, and sends the link to a large group. Depending on the invention’s popularity, the entrepreneur can raise a high amount of money with little effort.

Crowdfunding is starting to become a viable source of funding for startups. According to Forbes, crowdfunding is predicted to overcome venture capitalists next year.  Although, crowdfunding has made it easier to create a business, it does not come without legal problems. One of the biggest issues is intellectual property. From patent trolls, to patent infringement, crowdfunding websites have found themselves under attack by businesses.

In late 2012, 3D Systems brought a patent infringement lawsuit against Formlabs.  3D Systems alleged both direct and indirect patent infringement for its three-dimensional printing technology. This lawsuit came after Formlabs collected over $2 million from its crowdfunding campaign to put its three-dimensional printer into production. Formlabs was planning on selling the printer for less than 3D Systems’ printer, leading to the filing of the complaint. No answer was ever filed in the original suit, but a series of time extensions indicated that the companies were looking for a settlement. In late 2013, a notice of voluntary dismissal was filed and a settlement looked imminent.

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ZeniMax Media, Inc. (“ZeniMax”) is a company that develops and publishes video games. These games include Fallout and Elder Scrolls. ZeniMax publishes the video games through its subsidiaries and has found widespread success in the gaming market. With that widespread success, ZeniMax was able to allocate funds for the development of virtual reality gaming.

In April 2012, a ZeniMax employee started communicating with Palmer Luckey. At the time, Luckey was a college student working on a virtual reality headset prototype named Rift. The ZeniMax employee took interest in Luckey’s creation and offered some help in its development. Luckey then sent the ZeniMax employee a copy of his prototype where the employee and other ZeniMax personnel added their own improvements. After their improvements, ZeniMax entered into a Non-Disclosure Agreement with Luckey to share the enhancements made on the prototype, including its use in a game ZeniMax developed.

After the prototype became a working model, ZeniMax performed demonstrations at the Electronic Entertainment Exposition. The demonstrations were only done by appointment. After adding his own modifications and merely days after the exposition, Luckey started to commercialize the headset under a newly-formed company called Oculus VR.

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