Articles Posted in Technology

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The United States District Court in the Northern District of California has issued a preliminary injunction in favor of Apple, Inc. that prevents Samsung Electronics Company, Ltd. from manufacturing or distributing its Galaxy Nexus smartphone in the United States.

A preliminary injunction is a court order that temporarily prevents or requires a certain action until the court has time to reach a judgment in the case. Under the Patent Act, courts “may grant injunctions” in order to maintain equity between parties and protect the rights secured by a patent. Courts may grant a preliminary injunction where the requesting party shows that it is likely to succeed in the case, the party is likely to suffer “immediate and irreparable harm” without a preliminary injunction, a balance of equities weighs in favor of the requesting party, and a preliminary injunction is in the public’s interest.

Apple filed a lawsuit against Samsung for approximately $2.5 billion, alleging that Samsung’s Galaxy Nexus smartphone violates four Apple, Inc. patents, causing injury to iPhone sales. This is one of the largest patent suits of this kind.

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The Digital Millenium Copyright Act (DMCA) contains a “safe harbor” provision that protects internet service providers that feature user-directed content from liability for copyright infringement. In UMG Recordings, Inc. v. Shelter Capital Partners, L.L.C., the Ninth Circuit Court of Appeals reviewed the requirements for “safe harbor” protection, upholding the broad interpretation that “safe harbor” has received from numerous courts in prior decisions.

Veoh is an online service, launched in 2005, that allows users to upload and share videos, view other users’ videos, and view authorized content from copyright holders. During the upload process, Veoh’s software applies various automated processes to make video files available to users via streaming in a common, accessible format. Veoh’s revenue comes from advertising, but access to all of its content remains free of charge. Users who wish to upload content must agree to Veoh’s terms of use, which prohibit uploading copyrighted content without permission. Veoh also uses filtering software to prevent uploading of infringing content.

UMG Recordings is one of the world’s largest music publishers. Its activities include music production, music distribution, and music video production. It owns an extensive catalog of copyrights. Veoh concedes that users were able to access and download content copyrighted by UMG, despite its efforts to prevent copyright infringement. Veoh has removed material alleged to be infringing on UMG copyrights, based on notices from the Recording Industry Association of America (RIAA).

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The list of generic top-level domains (gTLD’s), such as “.com” or “.edu,” has changed very little over the history of the internet, until recently. Between January and May of 2012, the Internet Corporation for Assigned Names and Numbers (ICANN) accepted applications for new gTLD’s. It reportedly received more than two thousand applications, many of which may go live by the start of 2013, after review by ICANN. Trademark owners should be aware of their rights, in the event that someone else attempts to register an infringing gTLD.

ICANN recognizes several different types of top-level domains, and the most well-known, and widely available, TLD’s are the generic TLD’s. Seven original gTLD’s became available in the 1980’s, .com, .edu, .gov, .int, .mil, .net, and .org. Three of these, .com, .net, and .org, have been available to registrants with no restrictions. ICANN added new gTLD’s over the years, such as .biz, .info, and the recently-added .xxx, making a current total of twenty-two. In June 2011, ICANN took an unprecedented step of allowing applications for new gTLD’s beginning in 2012. The application process requires filing a complicated packet of materials and a non-refundable fee of $185,000 payable to ICANN.

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The internet and social media have allowed people, businesses, and brands to communicate and interact more than ever before. As much benefit as that brings, it also brings significant risks to the reputation of both people and brands. The internet allows people to post using a pseudonym, or to appropriate someone else’s name. The appropriated name could be that of a prominent individual or (“public figure”), but online “persona hijacking” can affect anyone.

Generally, the motive of most persona hijacking is profit or fraud. Someone may appropriate the name or likeness of a famous person to profit from public goodwill towards that person. It could include setting up social media accounts, e-mail addresses, or websites using the person’s name, or some other effort to spoof the person’s identity. For a person who is not famous, persona hijacking may serve a function much like identity theft, using that person’s credentials to obtain, for example, fraudulent credit.

In some cases, the purpose of persona hijacking is to submit a person’s name to criticism or parody. The line between legitimate commentary and unlawful harassment, however, can be very fine, and parody can easily become a “false light” portrayal of a person. Use of a person’s name or likeness for the purpose of criticism or parody may, in certain limited circumstances, be protected by the First Amendment. In other cases, it may constitute unlawful infringement of a person’s trademark rights or right of publicity.

A person who uses their own name in commerce, usually someone prominent in business or entertainment, may obtain trademark protection. This generally prohibits others from using the name commercially. For most people, the right of publicity prohibits use of their name or likeness without their consent, especially for commercial purposes. The Fair Use doctrine, however, may allow use of a name or likeness for legitimate criticism or parody, where it is clear that the work is not originating from the person being appropriated.

You can take several steps to protect yourself from online persona hijacking:

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We have submitted a petition to ask Congress to review and modify section 230 of the Communications Decency Act in order to limit the protection granted to interactive online services, such as news websites, blogs, forums, and listservs. Also, Congress should set new policies and procedures for interactive online services to confirm the true identity of their users and members. This confirmation of a user’s or member’s true identity promotes protection against bogus statements made against innocent individuals and prevents the victimization of businesses.

This petition should be signed because consumers and businesses are facing various problems such as defamation, harassment, or retaliation by anonymous users on interactive online services without recourse and protection. Unfortunately, section 230 of the Communications Decency Act grants broad immunity to interactive online services. By doing so, such immunity tilts the scale of justice and creates an unreasonable result for innocent individuals who are being targeted by anonymous users and have no remedy for protection.

Please visit this link, review and sign it if you are willing to support our request for change in legislation.

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Copyright law, which protects a person’s rights to his or her own creative works, dates back nearly to the invention of the printing press. It protects a creator’s ownership of a creative work and the rights to use the work publicly. It also gives a creator remedies against anyone who infringes those rights. Where trademark law protects brand names, logos, and other “marks” representing a product or service, copyright law protects creative works like novels, songs, photographs, designs, or software. Computer technology, particularly the internet, has made copyright infringement quite easy and created new challenges for copyright owners.

Nearly any original creative work has copyright protection. Online, this can include graphics and designs, text, photo or video files, music, or code. A website created for a business most likely contains content subject to the protections of U.S. copyright laws. Technically speaking, copyright protection applies the moment a work is created in a physical form, which includes creation as a digital file. While copyright laws apply to a work upon its creation, enforcement is very difficult unless the creator takes additional steps to document the work’s creation and ownership with the government.

The U.S. Copyright Office allows copyright owners to formally register their works in a central location. Registration may deter others from infringing on a work, and it allows a copyright owner to effectively defend a work through the litigation process. Evidence of registration with the Copyright Office serves as prima facie evidence of ownership in a legal dispute. Most importantly, registering a work in a timely manner allows the owner to claim statutory damages in an infringement suit. Courts can award damages of up to $150,000 per act of intentional infringement, but only if the copyright owner follows the registration procedures.

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Companies cannot survive, let alone thrive, in today’s business environment without an Internet presence. Businesses and brands maintain websites and social media profiles in order to advertise and market products and services, but also to interact with customers. Social media in particular has given businesses an unprecedented ability to reach out to customers and to respond to their concerns. With this ability, however, comes the risk that unauthorized third parties will register an Internet domain with a company’s or brand’s name, or a deceptively similar name, and create a misleading or even harmful website. The practice of registering an Internet domain using the name of a trademarked brand is often known as “cyber-squatting.” Businesses and people who are the victim of cyber-squatting have remedies through a process established by several organizations that oversee and regulate Internet domain names.

The Internet Corporation for Assigned Names and Numbers (ICANN) is a private nonprofit corporation based in Los Angeles, California. It represents a collaboration between government agencies and several private organizations. ICANN has final responsibility for assignment of domain names, IP addresses, and other identifying information used by machines on the Internet.

In order to effectively handle disputes or complaints relating to domain name registrations, ICANN enacted the Uniform Domain Name Dispute Resolution Policy (UDRP). Anyone who owns or registers a domain name with a “.com,” “.org,” or “.net” top-level domain has agreed to abide by the terms of the UDRP by virtue of their agreement with their domain name registrar.

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U.S. News recently reported that since mid-2010 over 220,000 individuals have been sued in mass copyright lawsuits regarding the sharing of files over bittorrent. However, with the growth of these types of lawsuits, courts are concerned because of the possibility that subpoenas to obtain internet subscriber information may bring in innocent parties in litigation and improper joinder of parties.

Generally, Bittorrent is a peer-to-peer internet file-sharing protocol that allows a “swarm” of users to download and upload content from each other simultaneously. A user who supplies an entire copy of a file is called a “seeder,” while users in the process of downloading a file who have not yet completed their downloads are called “peers.” Peers download portions of the file at random, and upload those portions to other members of the swarm. Peers do not choose which pieces are downloaded and they do not choose who to share those portions with. Nevertheless, a peer is able to see the IP addresses of the other swarm members. Accordingly, it is possible for a copyright owner to join a swarm and obtain the IP addresses of the users sharing a given file.

It seems that bittorrent litigation will not be slowing down. Thus, courts are now more resistant to mass-joinder cases clogging up their dockets especially when the plaintiffs have no intention of litigation, but rather are merely seeking identifying information and authorization to pursue discovery in the interest of gaining settlement leverage. As more defendants file motions to quash suggesting that that they did not participate in the alleged activity, courts are also becoming sensitive to the idea that IP addresses may not be as likely to identify defendants as previously suspected. Plaintiffs, on the other hand, continue to refine their practices and theories of liability. See Liberty Media Holdings LLC v. Hawaii Members of Swarm…, Case No. 11-CV-00262-DAE-RLP, (Jan. 30, 2012 Order, denying motion to dismiss as to direct and indirect infringement and civil conspiracy, but dismissing allegation that failure to secure WiFi amounts to actionable negligence).

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When hackers breached the e-commerce firm Zappos in January, they may have compromised the personal information of as many as 24 million users. Legislatures in several states, including California, have responded to attacks such as this one by passing laws enhancing cybersecurity investigation and enforcement, and increasing requirements for disclosure of cyberattacks. The U.S. Securities and Exchange Commission (SEC) has also issued new guidelines for businesses and individuals under attack. The key issue to consider, in light of these new laws and regulations, is how much disclosure is not enough, and how much is too much.

The SEC is recommending disclosure of cyberattacks to an unprecedented degree. A new set of guidelines issued in October 2011 advises publicly-traded companies to disclose details of cybersecurity breaches as part of the quarterly 10-K report. Companies should disclose any and all cyberattacks, regardless of whether they caused a loss. The SEC even encourages companies to disclose “cyberrisks,” even in the absence of a breach. This potentially benefits investors, the SEC says, by providing comprehensive information about both actual and potential losses due to hacking and other cyberattacks. At the same time, extensive disclosure could put companies at greater risk by exposing weaknesses to hackers. Companies must carefully consider how much, or how little, to disclose. Too much disclosure could make them vulnerable to attack. Too little disclosure could make them vulnerable to lawsuits by investors.

State laws regarding cybersecurity disclosures are typically not as stringent as the SEC’s guidelines. California passed the first such law a decade ago. That law applies to any person or business that owns or licenses computer data containing a California resident’s “personal information,” such as social security number, home address, driver’s license number, and so forth. In the event of a breach that would reasonably lead to an unauthorized person obtaining the personal information, an owner or licensor of personal data must notify the person whose personal information may have been breached.

Forty-six states have followed California’s lead and passed similar laws. California has actually fallen behind some states that have passed laws with stricter disclosure requirements. A new law that took effect on January 1, 2012, requires an individual or business to notify the state attorney general of a cybersecurity breach if the breach affects more than five hundred California residents. The notice must include specific details of the type and size of the breach, and a toll-free number to allow users to contact credit agencies.

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Megaupload.com was among the world’s biggest file-sharing sites with 150 million registered users and about 50 million hits daily. It was big enough that it earned founder Kim Dotcom $42 million in 2011.

The movie industry objected that the site was making money off pirated material; even though, Megaupload is based in Hong Kong and the founder was living in New Zealand, some of the alleged pirated content was hosted on leased servers in Virginia, which was sufficient for U.S. prosecutors to take action.

Thereafter, the site was closed and its founder and three Megaupload employees were arrested in New Zealand on allegations by American prosecutors that they facilitated millions of illegal downloads of films, music and other content, costing copyright holders at least $500 million in lost revenue.

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