Header graphic for print

The Cards Hack the Astros – So What Law Applies? [audio]

In a developing story, The New York Times is reporting that the FBI is investigating the St. Louis Cardinals for hacking into the Houston Astros’ computer networks to steal the Astros’ internal baseball operation intelligence which is apparently working.

Quick aside:  click here to see highlights of last night’s win and the emergence of some of the Astros’ young stars.

The Astros’ GM responsible for the resurgence of the team used to work for the Cardinals. The two used to compete in the National League Central before the Astros moved to the American League West (I’m still getting used to that).

According to the NYT article:

Law enforcement officials believe the hacking was executed by vengeful front-office employees for the Cardinals hoping to wreak havoc on the work of Jeff Luhnow, the Astros’ general manager who had been a successful and polarizing executive with the Cardinals until 2011.

When Luhnow left St. Louis, he helped the Astros build their “Ground Control” database which mirrored a similar effort he helped lead when with the Cardinals.  This is all part of the sabermetrics / big data craze in professional sports.  It’s the reason that at the game I attended earlier this month, it seemed like the shift was employed on defense almost half the time.

Some leaked information was already published in an embarassing article on Deadspin which included some trade prospects and player evaluations.

The FBI claims the Cardinals used a master password list compiled by Lunhow and associates when they were with the Cardinals to guess their passwords on the Astros’ systems.  The FBI was able to determine the hack had been done from a computer at a home that some Cardinals officials had lived in.

Here’s more background and detail from The Washington Post.

So what are the legal issues?

We often advise clients who have been hacked to contact law enforcement authorities. When it is on a smaller scale or not as high profile, it is hard to get them to take action.  It is almost always better if you can get law enforcement to investigate and do the heavy lifting.

On the criminal side, you are looking at fines and up to five years in prison based on the statutes discussed below.

But, you can still resort to the civil courthouse.

The Computer Fraud and Abuse Act

The CFAA (18 U.S.C. § 1030) makes it illegal to access a data base without proper authority or to exceed one’s authority impairing the computer system or data accessed and was passed to address hacking.  Liability is premised on there being at least $5,000 in losses in any one-year period. The CFAA is primarily a criminal statute.

A plaintiff could make a civil claim under the CFAA to recover actual damages, injunctions or other equitable relief. A criminal conviction can result in fines and imprisonment.  On the civil side, plaintiffs sometimes struggle establishing the required $5,000 in a statutorily-defined “loss” to pursue a CFAA claim.

The CFAA defines “loss” as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring data, program, system or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.”  18 U.S.C. § 1030(e)(11).

Lost opportunities (like trades, or the value of the actual information) often do not qualify as the type of loss covered by the statute.  The loss usually results from costs of investigation and the expense to shut down the computer network.

ECPA and the SCA

The Electronic Communications Privacy Act (18 U.S.C. § 2510) and the Stored Communications Act (18 U.S.C. §§ 2701-12) are equally important sister statutes.  Generally speaking, the ECPA applies to electronic communications in transit and the SCA applies to communications stored on servers.  By gaining access to a database on the Astros’ servers, the perpetrators may be liable under the Stored Communications Act.

A plaintiff under the ECPA can recover a minimum award of $10,000 or $100 per day of violation — whichever is greater, or, actual damages, plus punitive damages, attorneys’ fees and costs.   Criminal violations can result in up to five years and fines up to $250,000 for individuals and $500,000 for organizations.

The SCA meanwhile, which is technically part of the ECPA, makes it illegal for anyone to “intentionally access[] without authorization a facility through which an electronic communication service is provided or . . . intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorize access to a wire or electronic communication while it is in electronic storage in such system.”

In addition to these statutes, there could be additional claims like RICO, breaches of contracts, wire fraud, trespassing and a myriad of state law claims.

The best revenge would be to rectify this dark moment in Houston Astros history from the 2005 NLCS (although the Astros won Game 6 in St. Louis before being swept by the White Sox in their only World Series appearance).

Maybe Springer, Correa, Altuve, Tucker, McHugh and Velasquez can get their recompense out of the courtroom.

Here’s my interview on Sports Radio 610 from this afternoon’s Triple Threat Show.

Who’s on First? Depends if Fair Use is on Second and Public Domain is on Third

Abbott and Costello’s “Who’s on First?” brings back memories of my seventh-grade talent show where I performed the routine with Brandon Berry at Atascocita Middle School.  I can’t remember if we won second or third place — there was stiff competition at AMS and someone with real talent actually won.

Capture-Who1It’s a good thing I did not record the performance and then try to monetize it on YouTube which luckily wasn’t around in 1987.

The people involved with the Tony-nominated play “Hand to God” have other concerns. The play has a scene where the lead does the routine using hand-puppets and now the heirs of William “Bud” Abbott and Lou Costello have sued for copyright infringement.  The lawsuit is here.

So Who, What and I Don’t Know are on defense? That’s Fair.

First you have to figure out if the plaintiffs own the copyright.  According to the lawsuit, the plaintiffs state the copyright was originally held by Universal Pictures Co. after the act appeared in Universal’s One Night in the Tropics film in 1940 pursuant to a work for hire agreement with the two actors.

Then, in 1984, Universal transferred its copyright of the audio/visual depictions from the movies back to the heirs.  Because of the lack of copyright protections for pre-1972 sound records, the plaintiffs admit the sound recordings were not subject to their federal Copyright Act, but the plaintiffs claim they have a New York “common law” claim.   (see the issues facing Sirius/XM in this regard)

The most likely defense will be that the use of the routine was fair use.  Fair use is an affirmative defense to a copyright violation.  Fair use is a factually-specific inquiry and there is no bright line test. Courts consider these four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Jokes and the dramatic arts have had some interesting fair use issues (the Jersey Boys use of Ed Sullivan and an entire production based on the sitcom Three’s Company for example)

According to The New York Times, the plaintiffs’ lawyer says there can be no fair use because “’Hand to God’ is using ‘Who’s on First’ not just to get laughs from the audience but also to get people to buy tickets.”

Why do I think fair use will ultimately prevail?  Because.  Maybe not Today or Tomorrow, but naturally the evidence will show that people are not going to the play just to see that one minute routine within the full production.  However, if the “The Hand of God” can use, why not everyone else which could have a big effect on the potential market for the copyrighted work.  Perhaps the unnamed right fielder should decide.

What about “I Don’t Give a Darn?” Is he in the Public Domain or at Short?

Just because the routine is available on YouTube does not mean it is in the public domain. As mentioned above, the copyright may cover just the script and limited recorded performances in the movies.  The routine has been done many times by many people.  It is not exactly clear who actually wrote the routine and Abbott allegedly performed the skit before he teamed up with Costello.

Plus, Abbott and Costello did not exactly follow a script when they performed it.  While I could almost recite it by memory, I know the version Brandon and I did was different than the one below.

This does not qualify the skit for “public domain” in the strict legal sense.  This article says some of the particularities about renewing the copyright to keep it alive may be challenged.  According to the lawsuit, the plaintiffs do license the routine for public performances, so they certainly have incentive to try and protect it.

So, who wins the game?

As usual, the lawyers will win.  I am now interested in seeing the play and have watched the Abbott and Costello video again, so maybe everyone wins and Who’s wife will come down and pick up the checks.

Start-Ups and the Law on Unpaid Interns – Annual Repost

It’s become an annual tradition to re-post this at this time of year.

As my Gray Reed colleague Michael Kelsheimer explains in a prior post on his Texas Employer Handbook blog, you have to be careful when using unpaid labor.

 

UNPAID INTERNS, VOLUNTEERS AND TRAINEES

Who, What, Why . . .
Who does it apply to: Every employer who has or intends to hire unpaid interns.
When must an intern be paid: All “employees” of a business must be paid at least minimum wage unless they are a “trainee” under the law, regardless of whether they are called an “intern.”  So, what makes a trainee? The United States Department of Labor (DOL) has established a six-factor test couched in terms of – you guessed it – training – to determine whether an unpaid intern should be considered an employee or trainee under the Fair Labor Standards Act (FLSA):
  • the training is similar to that which would be given in a vocational school (even though it includes actual operation of the facilities of the employer);
  • the training is for the benefit of the trainees;
  • the trainees do not displace regular employees, but work under their close observation;
  • the employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion operations may actually be impeded;
  • the trainees are not necessarily entitled to a job at the conclusion of the training period; and
  • the employer and the trainees understand that the trainees are not entitled to wages for the time spent training.
When can I hire an unpaid intern or volunteer: The six-factor test is primarily used in the, “for profit,” private sector. State and local government agencies and non-profit organizations can generally utilize interns or volunteers without an obligation to pay them under the FLSA. It is important, though, that the volunteers understand they are not to be paid for their time. Volunteer work at non-profit, religious, charitable, and civic organizations have specifically been cleared by the Texas Workforce Commission.
What about true student interns: Student interns are not evaluated differently by the DOL. They should easily meet the trainee test. That said, there are special rules for individuals who have completed a professional degree like physicians, attorneys, and therapists, generally allowing them to volunteer their time as they choose.
What do these factors really mean: The more an internship program can be structured around a classroom or academic type experience the better. It is better if the employer can provide the individuals with skills applicable to various employment settings, not just skills particular to the employer’s business. Essentially, the employer needs to provide the intern or volunteer with valuable training. Ideally, the training would make them more marketable in the open job market. The employer must pay any intern or volunteer that is used as a replacement for a regular employee or to reduce their workload. The intern or volunteer should receive more supervision than a regular employee.  If the employer would have to hire additional employees if the intern or volunteer were not performing certain work, the intern or volunteer would be considered an employee. Don’t rely on unpaid interns to do work of any real significance to your business. The work done by an unpaid intern should be secondary to their training. An intern that is hired by an employer on a trial basis with the expectation that they will eventually be hired full time will likely be considered an employee under the FLSA. Employers should indicate prior to the start of the internship that there is no guarantee or expectation of hiring the interns upon completing the internship. A written agreement indicating this is advisable. Employers should indicate prior to the start of the internship that there is no intention to pay the intern. A written agreement indicating that the intern will not be paid and does not expect to be paid is advisable.
What happens if I don’t follow the test: An employer violating the rule is subject to the same damages available to an employee who is not paid all of the wages they are owed. This may include minimum wage and overtime for all hours worked, plus an equal amount in liquidated damages for all interns over the past two or three years.
What about discrimination laws: It depends on whether the person in question receives “significant remuneration” for their efforts. The EEOC has stated that things like a pension, group life insurance, workers’ compensation, or access to professional certifications constitute significant remuneration. However, Courts have determined that things like academic credit, practical experience, and scholarly research do not constitute significant remuneration. Because this point is subject to interpretation, however it is best to treat all interns and volunteers as though they are employees with respect to discrimination laws.
Common Situations:
Required training: Safety First is ready to hire a new class of security guards.  The company requires that security guard trainees receive 40 hours of training prior to performing any regular work under their service contract.  According to their contract, the training is focused on “company practices, policies, and rules.” Does Safety First have to pay the trainee security guards even though they are not yet performing regular work?  Yes. These trainees would be considered employees because: (1) the employer is directly benefiting from their training, (2) the training is given to security guards who will work on contract, and (3) Safety First can only employ specifically trained guards.
Homegrown hiring: Maverick Finance hires interns each summer.  Maverick’s intern program is structured much like an academic program.  The interns do not do the work of regular employees and are heavily supervised.  The interns are not paid and are aware there is no guaranty of employment.  However, Maverick hires its first year analysts almost exclusively from the unpaid interns it has each summer. Does the FLSA require Maverick to pay these interns at least minimum wage? Probably.  Although Maverick substantially satisfies the six factor test, its practice of hiring analysts from the intern pool is likely enough to tip the balance against the company in the face of a DOL audit.
What should I do:
Good: Paying minimum wage to all interns probably is the safest bet. You avoid the risk of an audit of all your employment practices because of one dissatisfied intern that calls the DOL.  If you go the trainee route, be sure to meet all the factors.
Better: If you have true “trainees” taking into consideration all the factors, it makes sense to put that understanding in writing in a short half-page agreement outlining the factors. If you use volunteers, it makes sense to have them sign a one-paragraph agreement acknowledging their status as a volunteer without expectation of pay or other “significant remuneration” to avoid the possibility of an EEOC complaint.
Best: In addition to the items above, require that the trainees keep track of their hours so you have a record of how much they might be entitled to if the DOL audits and rules them employees. Be sure they do not work more than 40 hours to avoid increasing the risk to include overtime. Have the trainees and their supervisors keep a log of their activities so that there is no confusion regarding the type of work they did.

Does there need to be patent reform?

Regular readers know I am a fan of Last Week Tonight with John Oliver.  The show has done multiple segments relevant to our topics of discussion.  They recently did a segment on patent reform.

The guys over at Mintz Levin’s Global IP Matters Blog, suggest John Oliver’s information is outdated and that the proposed Innovation Act, H.R. 9, may not be the best solution writing:

Far from providing the solutions its proponents claim, that legislation would do little or nothing to limit the sending of bogus demand letters to unsophisticated targets in hopes of extracting nuisance value settlements – a practice that many decry as the most egregious example of patent abuse.  

Congress and the Supreme Court have taken steps to address some of problems with the patent litigation process and there has been some reduction in cases already.  We’ll monitor additional developments.

The State of Texas Gets in the Act

In typical Texas style, the Texas Legislature has decided it will take its own steps to protect Texas citizens.  SB 1457 passed the Texas Senate and is now being considered by the Texas House.  The bill allows the Texas Attorney General to recover fees from people who make “bad faith” patent claims to end users.

An end user means a “person that purchases, rents, leases, or otherwise obtains a product, service, or technology in the commercial market that is not for resale and that is, or later becomes, the subject of a patent infringement assertion due to the person’s use of the product, service, or technology.”

A communication is in a bad faith claim if it claims there is  an infringement and:

(1)  the communication falsely states that the sender has filed a lawsuit in connection with the claim;

(2)  the claim is objectively baseless because:

(A)  the sender or a person the sender represents does not have a current right to license the patent to or enforce the patent against the end user;

(B)  the patent has been held invalid or unenforceable in a final judgment or administrative decision; or

(C)  the infringing activity alleged in the communication occurred after the patent expired; or

(3)  the communication is likely to materially mislead a reasonable end user because the communication does not contain information sufficient to inform the end user of:

(A)  the identity of the person asserting the claim;

(B)  the patent that is alleged to have been infringed; and

(C)  at least one product, service, or technology obtained by the end user that is alleged to infringe the patent or the activity of the end user that is alleged to infringe the patent.

The remedy is expressly limited to the attorney general and does not create a private right. This proposal addresses the worst of the worst not apparently addressed by the federal proposal in the Innovation Act.

To Fire or Not to Fire for Employee’s Social Media Posts

After watching the firing of the digital communications manager for the Houston Rockets during their run through the playoffs (read the story here in the Houston Chronicle).  I figured it would be a good time to revisit the issue of firing people for their conduct on social media as previously discussed here in 2012.

Firing the Person In Charge of Social Media

As the Rockets were wrapping their series-clinching game five victory over the rival Dallas Mavericks, the Houston Rockets Twitter handle tweeted this:

Rocketstweet

Many thought it was in bad taste and the Rockets removed it and apologized.  The Rockets have been known to push the limits a little on social media including personal tweets from the Rockets General Manager.  Soon thereafter, the digital communications manager responsible for the tweet was fired.

I am assuming the digital communications manager is an at will employee, so there is not much of a legal debate about firing him for allegedly bringing ill will to the Rockets brand. Houston social media thought leader Brian Block suggests there may have been better ways to deal with the person running your official Twitter handle.

The harder issue is when the social media post is purely personal.

The NLRB Suggests You Think Twice

If someone said the boss was a “NASTY M***ER F***ER don’t know how to talk to people!!!!!!”  Followed by “F*** his mother and his entire f***ing family!!!! What a LOSER!!!!”  (No asterisks were used in the actual post, but this is a family blog), firing the employee seems like a no-brainer.

But, wait for it, . . . the post also said “Vote YES for the UNION!!!!!!!”  Now, we have protected concerted activity.  The NLRB upheld the administrative law judge’s decision that firing the employee for the profanity-laced rant violated the NLRA.  Essentially, if the rant is about working conditions, terms of employment or discussing even the possibility of unionizing, then it can be protected speech.  The NLRB says this is no different than two employees getting together in the lunch room to discuss the terms of employment and possibly unionizing.

I guess we should advise anyone that wants to talk trash about their employer to follow whatever crazy thing they want to say with “Vote YES for the UNION!!!!!!”  It may prevent you from getting fired — unless you are the official voice of the organization and you use a gun emoji.

In Related Local Houston News:  There is another interesting local story dealing with whether the individual or the company owns the Facebook account happening in a local bankruptcy court.  I provided some thoughts on how to protect the company account in the past.

Texas eMediaLaw Legislative Update: 2015

Kate bluebonnets

It’s Spring in Texas which means one of two things – the bluebonnets are out and in odd years, our legislature is back at work.  One makes me grateful to be in Texas and the other only meets every other year.  Here are a few bills we are watching this session:

Service of Process Via Social Media- HB 241

The Legislature is making another effort on this.

The bill provides:

Sec. 17.032.  SUBSTITUTED SERVICE THROUGH SOCIAL MEDIA PRESENCE.
(a)  If substituted service of citation is authorized under the Texas Rules of Civil Procedure, the court, in accordance with the rules adopted by the supreme court under Subsection (b), may prescribe as a method of service an electronic communication sent to the defendant through a social media presence.

(b)  The supreme court shall adopt rules to provide for the substituted service of citation by an electronic communication sent to a defendant through a social media presence.

It looks like the bill stalled in committee.

Codifying a fair reporting privilege – SB 627

The Legislature continues to show its disdain for defamation suits.  This time, they are considering a bill that would codify a sometimes-recognized common law fair reporting privilege.  The privilege allows for a fair reporting of public records and allegations as long as done in good faith.  It looks like this one may become law.

The bill provides:

(b)  This section applies to:

(1)  a fair, true, and impartial account of:

(A)  a judicial proceeding, unless the court has prohibited publication of a matter because in its judgment the interests of justice demand that the matter not be published; (B)  an official proceeding, other than a judicial  proceeding, to administer the law; (C)  an executive or legislative proceeding (including a proceeding of a legislative committee), a proceeding in or before a managing board of an educational or eleemosynary institution supported from the public revenue, of the governing body of a city or town, of a county commissioners court, and of a public school board or a report of or debate and statements made in any of those proceedings; or (D)  the proceedings of a public meeting dealing with a public purpose, including statements and discussion at the meeting or other matters of public concern occurring at the meeting; [and]

(2)  publication of allegations made by a third party regarding matters of public concern, regardless of the truth or falsity of the allegations; and

(3)  reasonable and fair comment on or criticism of an official act of a public official or other matter of public concern published for general information.

(c)  This section does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.

(d)  This section shall be construed liberally to effectuate its purpose and intent fully.

Civil Penalties for Frivolous Patent Claims – SB 1457

This bill also looks like it might be headed for passage.  The pertinent part of the bill states:

       Sec. 17.952.  BAD FAITH CLAIM OF PATENT INFRINGEMENT PROHIBITED.

(a)  A person may not send to an end user located or doing business in this state a written or electronic communication that is a bad faith claim of patent infringement.

(b)  A communication is a bad faith claim of patent infringement if the communication includes a claim that the end user or a person affiliated with the end user has infringed a patent and is liable for that infringement and:

(1)  the communication falsely states that the sender has filed a lawsuit in connection with the claim;

(2)  the claim is objectively baseless because:

(A)  the sender or a person the sender represents does not have a current right to license the patent to or enforce the patent against the end user; (B)  the patent has been held invalid or unenforceable in a final judgment or administrative decision; or (C)  the infringing activity alleged in the communication occurred after the patent expired; or

(3)  the communication is likely to materially mislead a reasonable end user because the communication does not contain information sufficient to inform the end user of:

(A)  the identity of the person asserting the claim; (B)  the patent that is alleged to have been infringed; and (C)  at least one product, service, or technology obtained by the end user that is alleged to infringe the patent or the activity of the end user that is alleged to infringe the patent.

The bill only allows for enforcement by the Attorney General and not private litigants.

We will keep on eye on these any other bills of note.

Will Net Neutrality Kill the Internet 3.0?

fcc_logoAs expected, the FCC passed the net neutrality rules today.  Other than spokesmen for the large telecoms (and perhaps some politicians who listen to that lobby), you don’t hear much reasoned opposition to net neutrality.

I have to admit that my views have been changing on the issue from a position of: (1) a solution in search of a problem; (2) to a desire to help make sure start-ups have a fair shake and access to the consumers; (3) to let the market take care of any ISP’s that throttle content; (4) to what about the people who don’t have more than one option for an ISP?

Now, I feel like we are at a Hobson’s Choice.  Do we trust the Government, or do we trust Big Business?  More precisely, who do we trust not to be a jerk in the future?

  • Do you think the likes of Comcast would throttle competitors’ content or force the big content providers into fast lanes leaving all start-ups back at dial-up speed?
  • Do you think the Government can stay at this minimally invasive level of regulation whereas before the Internet has thrived, at least in part, because of the lack of government regulation.

Leave it to the BBC Radio to have Mark Cuban on as a guest to provide additional interesting arguments as to why the new regulations are bad–by focusing on the future?  Listen here.  In effect, Cuban asks whether we want companies to be able to manage their networks as we start to see more driverless cars and online virtual reality applications.  Will the next new thing have to ask the government for permission to run online?

The regulations, as currently written, take a soft hand approach.  But, we should be vigilant to make sure they stay that way.  You know the story of the cooked frog, right?  If you put him in boiling water, he will jump out of the pot.  You put him in cool water and gradually turn up the heat, you will end up with a cooked frog.

For a good analysis prior to today’s release, read this.

GUEST POST: Left Shark, Katy Perry and 3D Printing – Someone is getting bit

Today, we have a guest post from Gray Reed & McGraw attorney Cleve Clinton (the one on the far left).  He is one of the writers of the enlightening and entertaining blog over at Tilting the Scales where they share common sense, practical insights and a little humor, all to help clarify interesting and timely business legal issues that pop up.

Their most recent post fits in perfectly for what we cover here — intellectual property rights of out-of-sync dancing costumed sharks and 3D printing.  You can check out the original post and more of Titling the Scales here.

Left Shark and Lawsuits – Who Gets Bitten in the End?

By Cleve Clinton on February 10th, 2015 
Halftime was just the Beginning: A backup dancer in Katy Perry’s Super Bowl halftime show goes viral upstaging the singer, Tom Brady and Russell Wilson for MVP. Thanks to social media, “Left Shark” became a “thing” overnight and an enterprising entrepreneur (Frederick Sosa) sells internet 3D printed figurines to cash in on the immediate success of the carefree creature.

The Real Shark? Katy Perry’s lawyers issued a cease and desist letter claiming copyright violations and threatening a lawsuit. No surprise there.

The Victim?  Protecting some 10 sales of a $24.99 “Left Shark Desk Figurine” versus litigation threatened by a 1,000+ attorney law firm?  No contest – Frederick Sosa of Orlando. Even assuming he did have the resources to fight, it’s not worth the time or the argument. At $24.99 a pop, the economics are obvious. The good news is that Sosa got a lot of airtime for his 3-D online printing business. In the social media world he and Left Shark upstaged everyone on the big stage.

Legal Issues? Plenty to go around on Copyright Law and 3D Printing.

Copyright. Generally speaking: Can a non-generic animal costume be copyrighted? Probably. But, who owns the right to the copyright? If used before, it may be in the public domain. If not, it depends. Who designed the shark costume? What do the contracts say among any number of possible claimants – a third party designer, Perry’s team, the NFL, NBC or someone else? Finally, if it is protectable, was it properly perfected? For the real answer to any specific copyright questions, our very own Gray Reed copyright, trademark and patent experts David Lisch and David Henry can provide the right answers to the hard questions.

Last Bite? After removing the figurine for sale from Shapeways.com, Sosa put his Left Shark figurine design on MakerBot’s Thingiverse site as a free download for anyone with a 3D printer. A modified version is still available as “Blue Drunk Shark.”

3D Printing. The more novel question? Can a 3-D printing-on-demand company be liable for the infringements of its users? The 3D printing industry blog notes that federal law provides a safe harbor for websites and services that provide a platform for users to publish their own works. Manufacturing-on-demand services could be considered analogous to sites such as YouTube and Tumblr; the only real difference is that their products are physical, not virtual. Yet a federal judge ruled last year that CafePress, which makes T-shirts and coffee mugs on demand, didn’t qualify for that safe harbor, allowing a photographer’s infringement claims against the company to proceed. A year ago, Tilting wrote about 3D printing of guns, the fact that the innovative emerging ideas of 3D printing is a disruptive technology and its likely impact on copyright issues. No doubt, more to come.

Tilting the Scales in Your Favor. Evaluate the risk. Be realistic. Identify the opportunity and the near term goal. In this case, better to use sound judgment at the beginning and maximize the social media limelight, then be prepared graciously bow out.

Previous Tilting Articles: There’s a Printer for That!

 

Getting Pictures Off the Internet – Not Easy To Do

I love college basketball.  Given that my Missouri Tigers haven’t given me much to talk about, I thought we could discuss the efforts by this upset Duke fan to have her image removed from the Internet captured during the Miami – Duke game that snapped Duke’s incredible 41-home-game winning streak.  You can read about it here.

I am not a Duke basher (nor fan) and I don’t want to pile on this poor fan.  Believe me, after what Kentucky did to Mizzou last night, I felt worse.  This does, however, raise some interesting legal questions.

How do you remove images from the Internet?

 

1. Copyright

The primary way is to use the Digital Millennium Copyright Act.  If you own the copyright to the image, it is usually pretty easy to get images removed from websites operated in the U.S. and to have the search engines de-index them.  You can read more about the DMCA here.  Generally, if you take the picture, you own the copyright.  The copyright to this image belongs to ESPN and probably the ACC or NCAA.  You know that really quick copyright notice for broadcasts – any use of images is prohibited, blah, blah, blah.  Screen shots would be included.  The fan could ask ESPN to get these images removed.  ESPN may be a little busy, however, because I think Tom Brady may have sneezed.

2.  Invasion of Privacy

There is little expectation of privacy in the stands of a nationally televised sporting event.  Do a search for certain NSFW conduct at sporting events to see how people forget this sometimes.  Also, look at the back of your ticket next time you head to a game.  There is a lot of fine print about the lack of privacy you may experience.  Nevertheless, let’s go through the common law claims of intrusion upon seclusion, publicity to private facts, appropriation of likeness and false light.

Intrusion upon seclusion.  The elements of the claim are: (1) intentional intrusion; (2) upon private affairs of another; (3) that is highly offensive to another.  Being upset at a basketball game is not a private affair.  Most states follow the stand in doctrine which provides that if the media stands where the general public could observe the events, then there is no intrusion.

Publicity to private facts.  To prevail on a claim, the information must not be a matter of legitimate public concern and its publication would be highly offense to a reasonable person.  I am not suggesting comments to a blog are true indications of what is offensive, but a quick view of them reveal that using that screenshot is not highly offensive to most.

Commercial appropriation of likeness.  This requires the (1) appropriation of one’s name or likeness; (2) for a commercial purposes.  Although ads are sold on blogs, the use of the name is not for a commercial purpose.  This cause of action usually applies to celebrities when a store tweets about them without permission or makes video games about them.  If a UNC fan used this picture to start selling t-shirts, then she may have a claim, but not for the use of the image on Twitter or blogs.

Portrayal in false light.  It requires: (1) publishing information that creates a false impression; (2) thereby casting the person in a false light; (3) creating emotional (as opposed to commercial) harm; and (4) the act is highly offensive.  I suspect there is nothing false about this fan’s feelings.  Like I said, no one saw me in my living room with a look of disgust last night, but there is nothing false impression about how she is feeling and why she is upset.

3.  Approach the websites

According to the article, the first image appeared on Twitter.  Under the Twitter Rules, posters are not supposed to abuse others, infringe on the rights of others or violate copyrights.  If you ask nicely and point out how posts violate a site’s terms, sometimes the wesbites will take it down although they may not legally have to.  In fact, in the terms of service, Twitter says it may not monitor the tweets and:

You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive.

In addition to being at the mercy of Twitter’s whims that day, the problem is now that the image is on many other sites as well.

The Streisand Effect

We have talked about the Streisand Effect before.   It’s the name given to the phenomena resulting from increased attention to online posts, stories, websites, etc. only after someone complains about them or raises a legal issue about them.  Had the fan not asked to remove the image, I would not have read about it and would not be blogging about it. Sometimes, the wiser move is to let it go (no, I will not sing it).  It’s a bad business development strategy on my part, but is often the best advice I have ever given.

On the bright side, at least the fan was not wrongfully accused of being caught cheating on her boyfriend at the Ohio State v. Alabama game.

 

 

 

 

5 Most Popular eMediaLaw Posts of 2014

5.  Using Images Without Permission is No Monkey Business

From the Wikimedia Commons website

This was one of the more interesting stories of the year – does the photographer who set up everything to allow for a monkey to take a selfie own the copyright to that selfie?  This year we learned that no, the photographer does not.

 

 

 

4.  Infographic: The Use of Images From The Web on Your Site, Newspaper or Broadcast – Enough Said:

3.  The Law on Unpaid Interns – This post makes the list almost every year because I repost the guest post by Michael Kelsheimer of the Texas Employer Handbook every year as tech start-ups look to hire unpaid interns.  It’s a little more complicated than you may think.

2. #SMH-butnotacontestorasweepstakes – Check your online promotion hashtag or face scrutiny from the FTC – This post covered the surprise investigation of the Wandering Sole contest by Cole Haan.  The FTC basically said if you are going to have customers “endorse” your products by and through a contest, you better make sure the connection between the endorsement and contest is disclosed.  The legality of online contests is a popular topic with an older post Is Your Online Sweepstakes or Contest Legal still remaining popular.

1.  When Online Behavior Crosses the Line – The Law on Threats, Libel and Just Being Rude – Online defamation and related topics continue to be popular.  In fact, this post from 2012, remains one of the most popular on the site, How to Identify the Anonymous Online Defamer.  My suspicion is that SEO on these topics leads to more page views.  Nevertheless, it continues to be a very important issue for individuals and businesses and will likely continue in 2015.