Published on: | by

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.

Continue Reading ›

Published on: | by

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.

Continue Reading ›

Published on: | by

In general, Section 230 of the Communications Decency Act is not only one for defamation, but entails a few exceptions where liability can be imposed on an interactive computer service (e.g., Facebook, Twitter, Tumblr).  So, there are situations where an online business may be held responsible for another individual’s actions.  How can we know whether we will be held liable for a third party’s actions?  How can we avoid potential liabilities?

What can an interactive computer service be held liable for?

From a practical perspective, Section 230 is not an absolute shield for interactive computer services.  There are certain cases where an exception has been applied by the courts.  First, there is an exception for certain types of information.  Specifically, there is an exception for intellectual property.  For example, Section 230(e) determines the effect on other laws, including, an explicit omission of coverage for intellectual property protections.  In essence, liability for defamation may not carry over, but liability for any copyright infringement may carry over, as well as any issue of criminal law, such as obscenities.  Similarly, this can be demonstrated in Gucci America Inc. v. Hall & Associates, where the court determined, from the plain meaning of the statute, that it would not bar plaintiff’s trademark infringement claims against defendants.

Continue Reading ›

Published on: | by

In a situation where an online forum allows creation of profiles with commenting capabilities, a user may take the initiative to defame an individual personally or professionally.  The user may perform illegal actions using the online forum’s website, and in attempting to retrieve damages he/she has suffered, the defamed individual sues the online forum for providing a platform for defamation.  However, Congress has provided an exception towards interactive computer services through Section 230 of the Communications Decency Act (CDA).  What does Section 230 of the CDA do?  What can you do, as an individual, to recover from defamatory material?

What is Section 230 of the CDA?

It’s a sub-part of a federal statute that essentially dictates that an online forum (e.g., Facebook, Twitter, Tumblr) is not liable as a publisher or speaker of online defamatory comments made by its users.  For example, if a defamatory comment was posted on Facebook, then Facebook would not be liable for the defamation.  Essentially, this would protect a website from anything that its users would publish.  This is not necessarily just towards defamatory content, although, it could be expanded to “any information” provided by an entity or person using the interactive computer service’s platform. There are, however, exceptions to this broad liability, as we’ll discuss in future blogs.  Also, the exact nature of a “publisher” is still unclear.  in general, there is a difference between a publisher, which initially produces the comment, and a distributor, which is not covered, that repeats the comment.

Continue Reading ›

Published on: | by

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

Continue Reading ›

Published on: | by

After establishing the issues of preemption and standing, how can you sue for violations of CAN-SPAM? Is there any way for spam to be combated by an individual?  Yes, there is by suing for fraud or deception, which are not explicitly covered under the CAN-SPAM Act.  So, how do you plead fraud?  And how much do you need to plead?

How to plead fraud to avoid preemption?

In ASIS Internet v. Subscriberbase, which was heard by the Northern District of California, the court examined preemption and the question of fraud in relation to a motion to dismiss that was filed by defendants.  Plaintiff was suing under the California Business & Professional Code Section 17529.5, otherwise known as the False Advertising Law.  In its claim, plaintiff pleaded the following three factors California has in a fraud claim: (a) misrepresentation; (b) knowledge of falsity; and (c) intent to defraud.  However, plaintiff left out reliance and damage in its claims.  In general, the CAN-SPAM Act does not coincide with laws that prohibit falsity or deception, as well as, some other laws that overlap with it, but are extended to subject matter outside of email.  Here, that aspect of CAN-SPAM was specified to state that a claim containing the common law elements of fraud would not be prohibited.  Hence, the court decided that the complaint satisfied fraud allegations, pending the question of if all the factors were required to be alleged in the complaint.

Continue Reading ›

Published on: | by

So, now that we know more about preemption in the CAN-SPAM Act, then what more is there to consider?  There is actually quite a lot of other factors, namely standing.  Now that you know how the federal CAN-SPAM Act and state laws may interact, there leaves the question of “standing.”  Standing is essentially a way for individuals to claim that they can sue under the law.  Without standing, a lawsuit cannot occur.  So, can you sue as an individual under the law?  Can you sue as a business?  Who can sue?

Can an individual sue under CAN-SPAM?

In general, individuals likely cannot sue under this federal law.  We can revisit the case of Gordon v. Virtumundo where the plaintiff had setup a business to profit off of violations of anti-spam legislation.  He was a Verizon subscriber for his internet access, and had started his business through GoDaddy.  In the trial, the court revisited the standing provisions of the CAN-SPAM Act and made three determinations.  First, the federal statute was not made to stamp out all spam.  Second, it was not specifically implemented to allow private right of actions.  Third, plaintiff had not suffered adverse effects due to spam.

Continue Reading ›

Published on: | by

Spam, for those lucky enough to be unfamiliar about it, are those unsolicited commercial emails that often clutter up inboxes with offers of sales and services that range from the reliable to the questionable.  Due to the issues presented to consumers, Congress, in its wisdom, enacted a law called the CAN-SPAM Act, and began enforcing it in 2004. First, what is the CAN-SPAM Act and what does it prohibit?  Second, as a federal law, does the CAN-SPAM Act override, or preempt those laws a state may already have in place?  How can you tell if that may happen?

What is the CAN-SPAM Act?

The CAN-SPAM Act places prohibitions on transmission of any email that contains false or misleading headers or “from” lines.  For example, a business that is not Facebook, and has nothing to do with Facebook, would be prohibited from sending an email with the subject “Your Facebook account has been compromised” or send an email from www.facebook.com.  In addition, this law places a requirement for three disclosures: (1) clear and conspicuous identification that the message is an advertisement or solicitation; (2) clear and conspicuous notice of the opportunity to decline to receive further commercial email messages from the sender; and (3) a valid physical postal address of the sender.  This is done, in part, due to the interest of the legislation in helping consumers under the principle that they should not be misled and should have a right to say no to unsolicited commercial emails.

Continue Reading ›

Published on: | by

As the implementation of the European Union Privacy Shield comes closer, other elements of the shield come into influence and place restrictions on businesses that transfer data between the United States and Europe.  Further adding onto this, is the General Data Protection Regulation.  This can be a major issue in cases where data transfers may occur, but more specifically, it impacts the cloud computing sphere, and services like Dropbox and Google Docs.  So, how do these services work?  What would the General Data Protection Regulation do?  How can they be used with the Privacy Shield in effect?

How do these services work?

Now, these systems work by allocating computing resources to another location.  Usually, this is done through the internet, by transferring data towards other electronic devices or servers.  Effectively, it allows for individuals or businesses to take advantage of greater resources of other entities, like those of Dropbox or Google, by granting use of their services for a fee.  On the flip side, these services could be compromised by hackers, and cause the loss of personal or confidential information.  We have discussed some of the risks associated with cloud computing before and would ultimately encourage our readers to carefully evaluate the risks of submitting any information to the Cloud.

Continue Reading ›

Published on: | by

In recent years, states have continued to collect tax from e-commerce transactions.  Louisiana has recently joined in on the trend and allowed the state to tax businesses without a physical presence there.  This is a trend that we have discussed in the past and we encourage our readers to catch up on previous posts about online taxes in California and the evolving trends.  However, Louisiana’s new regulations has shutdown Amazon’s affiliate program in the state.  So, what is the history of this bill?  Also, aside from retailers like Amazon, who would this legislation impact?

What is the bill’s history?

The bill fundamentally has its basis in something we’ve covered before where we discussed Quill Corporation v. North Dakota.  This case effectively ruled that without a sufficient connection, i.e., nexus, to the state, that state cannot tax it.  This has been interpreted that to tax the entity, the entity usually must have a physical presence in that state.  This would mean “brick-and-mortar” retailers would be taxable, while an entity like Amazon, which may not have any warehouses or physical presence in the state, would be “immune” to taxation.  In response, some states have taken action in legislating a “lowering” of the nexus standard.  For example, Act No. 22, also under HB-30, in the State of Louisiana was authored by Representatives Leger, Carpenter, and White, and enacted into law by the Governor on March 15, 2016.

Continue Reading ›