Topic: Legal

Legal side of Reputation Management

Jail For Laughing Protester Is An Outrage 0

Marc Randazza’s most recent CNN column analyzes the recent conviction of Code Pink Protestor Desiree Fairooz after the media suggested she had been arrested merely for, “laughing at Jeff Sessions” during a Congressional hearing.

There is, of course, more to the story.

See – Jail for laughing protester is an outrage

When Fairooz laughed loudly during Session’s confirmation hearing, Officer Coronado removed her, which caused Fairooz to protest loud enough to disrupt the session. Fairooz was charged with, “disorderly and disruptive conduct and parading or demonstrating on Capitol grounds.”

However, it didn’t end there: Marc Randazza notes that a jury of her peers actually convicted her of these crimes.

Marc Randazza says, “Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt they had no option but to convict.”

“[F]or Fairooz to be facing prison for her conduct is outrageous,” asserts Marc Randazza.

Marc Randazza reminds us that, “the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about.”

But why?

As Marc Randazza points out, this has nothing to do with Ms. Fairooz’s message—as he admits he often does not agree with the message of Code Pink—this is about Free Speech and the First Amendment.

For Marc Randazza, it is not the message that deserves protection, it is the speech itself.

“The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.”

Read the rest here.

The post Jail For Laughing Protester Is An Outrage appeared first on Randazza Legal Group.

Source: Marc Randazza

To Geoblock, or Not To Geoblock – Is That Still a Question? (Guest Blog Post) 0

by guest blogger Marketa Trimble

Should your client – an internet content provider or service provider – geoblock? Your client might geolocate – that is, it might determine an internet user’s physical location and then localize content to adjust the content to the user’s physical location. The apparent popularity of location-based services suggests that geolocation and location-based content are features that at least some users, if not the majority of users, appreciate. But your client might rather prefer not to geoblock – that is, to block access to content on the internet based on a user’s physical location. Geoblocking is unpopular with users, and it constrains your client’s business if the client’s website benefits from as much traffic as possible. The decision of whether or not to geoblock is not without significant reputational and economic consequences, yet some recent U.S. court decisions suggest that there might not be much choice about whether to geoblock.

Geobloocking must be implemented if a law requires that it be used. For example, online gambling regulations in some jurisdictions impose an obligation on providers to geoblock to comply with territorially-limited online gambling licenses. Also, a court may order a provider to geoblock (see, for example, here). Additionally, geoblocking must be implemented if there is a contractual obligation to do so; a contract, such as a copyright license, might include this obligation.

But is there an obligation to geoblock absent a law or contract that explicitly mandates geoblocking? Do rules of personal jurisdiction and the many laws that set rights and obligations on a territorial basis imply the use of geoblocking? Must one geoblock in order to limit the reach of personal jurisdiction and comply with territorially-defined laws, or can one rely on the parameters of audience and customer targeting on the internet that courts have developed, such as a website’s language version, payment currency, shipping terms, country code of its customer service phone number, and/or the website’s top-level domain?

Advancements in geolocation and geoblocking technologies and the industry’s widespread use of the technologies suggest that courts might reevaluate their approach to geoblocking. Courts have already accepted geolocation when they assess actual contacts with a jurisdiction for discovery, personal jurisdiction, and other localization purposes, but with some exceptions, courts seem to be reluctant to accept geoblocking as the means to territorially delimit conduct on the internet.

Geoblocking is certainly not perfect (nor are door locks, for that matter), and it can be circumvented (just as door locks can be), but geoblocking might now have reached a sufficient degree of reliability to play a role for legal purposes. Yet the statements of some courts evidence a continuing perception that the internet is a medium on which borders inevitably cannot be erected. For example, as recently as two months ago, in March 2017, Judge O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit remarked in Aereokiller that “an Internet-based service has no geographic boundary,” explaining that the internet’s borderlessness makes any “Internet-based service” by definition different from cable systems (see p. 17 here).

There have been recent cases that could have shed some light on the need – or perhaps the continuing lack of need – to geoblock in order to avoid personal jurisdiction and/or comply with territorially-defined laws and/or territorially-limited contracts. Aereo could have addressed this issue in the copyright context but did not: Aereo insisted vigorously that it offered its service only to users within the territorial footprint of the terrestrial broadcast that Aereo transmitted on the internet (Aereo’s acts being transmissions under the Copyright Act according to the U.S. Supreme Court here).

Spanski Enterprises seemed to offer an opportunity to clarify whether geoblocking is required to avoid copyright infringement in a country for which an alleged infringer has no license. In Spanski, the alleged infringer was the copyright owner itself that had no rights to publicly perform its content in the United States because it had granted an exclusive license for its work in the United States to the plaintiff. A settlement agreement from earlier litigation between the parties required that the copyright owner geoblock, and in this later case Spanski argued that the copyright owner had not fulfilled its geoblocking obligation.

In the December 2016 memorandum opinion in Spanski, Judge Chutkan of the U.S. District Court for the District of Columbia did not say (understandably so, given the facts of the case) whether or not, absent a contractual obligation to geoblock, sufficient geoblocking would have been required to comply with the territorial limitations of the rights. The judge held only that the defendant copyright owner had infringed copyright because its content was viewed on its website in the United States, and the defendant’s insufficient geoblocking (of which the defendant had knowledge) played a role only in the finding of the defendant’s willfulness.

Notwithstanding the judge’s disclaimer in Spanski that the finding of infringement was not “due to a failure of [the infringer’s] geoblocking system” (that failure went only to the finding of willfulness), the disclaimer did not mean that geoblocking was irrelevant to the finding of copyright infringement, a finding that was based on the actual viewing of the copyrighted content in the United States, which viewing could have been avoided through functional geoblocking. Therefore, in general, regardless of how “non-directed” a website might be toward a particular jurisdiction, geoblocking seems to be necessary to prevent the viewing of a website in a jurisdiction – which viewing might result in a finding of copyright infringement in the jurisdiction.

For someone who is outside of the United States, however, geoblocking might not be necessary to avoid subjecting oneself to personal jurisdiction in a court in the United States. In the recent case Triple Up, another judge of the U.S. District Court for the District of Columbia addressed a “most novel argument” that the alleged infringer’s lack of geoblocking should have been interpreted as purposeful acts directed at the United States. Judge Moss refused to accept this argument, noting that “[t]o hold otherwise would invite a sea change in the law of internet personal jurisdiction.” While the judge acknowledged that “a website’s affirmative geoblocking efforts should weigh against the exercise of personal jurisdiction,” the judge declined to “equate[…] a failure to geoblock with purposeful availment.”

What do these cases mean for your client? These are district court cases that address new legal issues; the cases raise more questions than the decisions do to solve existing issues. Given the uncertainty of what other courts might hold, geoblocking appears to be a wise preventive measure to attempt to avoid personal jurisdiction in an unwanted jurisdiction and the infringement of the laws of that jurisdiction. But the interests of business continue to run up against geoblocking. In a world painted by Spanski and Triple Up, your client outside the United States who does not geoblock users connecting to the internet from the United States, and does not engage in any other acts that would suggest a direction of his website activities at the United States, will not be subject to the jurisdiction of a U.S. court. However, actual viewing of content on the client’s website by users in the United States may result in the infringement of copyright in the United States, and such acts of viewing may lead to your client subjecting himself to personal jurisdiction of a court in the United States.

If the conclusion about the above hypothetical is correct, it means that there no longer may be a question of whether to geoblock. With the added complexity and lack of certainty of what courts in other countries might do, geoblocking seems like the only safe practice to avoid personal jurisdiction. At some point the cost of geoblocking will be low enough to pose no significant barrier to entry, yet an increased use of geoblocking will likely remain unpopular with all who want the internet to remain borderless. Popular displeasure with geoblocking might lead to greater pressure on legislatures to address geoblocking comprehensively and minimize it as much as possible. In the European Union, the European Commission’s 2015 and 2016 proposals are the first attempts to address the issue; although perhaps insufficient in their eventual impact, the proposals are the first steps (see here and here, and my recent article here; see also an Australian government committee report from 2016 here urging its government to “clarif[y] the law on geoblocking,” and my 2012 call to address geoblocking and its circumvention here).

Source: Eric Goldman Legal

New Draft Paper on Emojis and the Law 0

I have posted a draft article, entitled Surveying the Law of Emojis, to SSRN. I will be posting excerpts from the article here over the next few weeks.

I would gratefully appreciate your comments on the draft. I am also interested in workshopping the paper more. If you have any workshop opportunities (especially in Fall), please contact me.

For more background on the project, see this article by Ross Todd of the Recorder.

The abstract:

Everyone loves emojis! It’s easy to see why. Historically, most online communications have emphasized text, and emojis add much-needed emotional content to text-driven communications—and often help people express themselves more precisely. Due to the enthusiastic embrace of emojis, we are witnessing a historic change in how we communicate online.

This article surveys three significant ways the emoji revolution will impact the law.

First, questions about what emojis mean will arise in a wide range of legal doctrines, from criminal law to contracts. Our standard interpretative tools generally can handle new communicative technologies, but several aspects of emojis will require careful consideration. Most significantly, senders and receivers will unexpectedly see different versions of an emoji due to technological intermediation, leading them to make reasonable—but different—interpretations of the same communication, with potentially adverse consequences for one or both parties. The article will explore some steps that would reduce the risks of these misunderstandings.

Second, emojis will often qualify for copyright and trademark protection. However, IP protection encourages platforms to differentiate their emoji implementations, which exacerbates the risks of miscommunications and misunderstandings. To mitigate this outcome, IP protections for emojis should be interpreted narrowly.

Third, emojis create some issues for judicial operations, including if and how judges will display emojis in their opinions, if emojis in court opinions will be searchable, and how best to present emojis as evidence to fact-finders.

cow emoji

Source: Eric Goldman Legal

Alibaba Counterfeits: A Legal Overview & Avoidance Tips 0

alibaba's counterfeit problemIf you run an e-commerce operation you know: counterfeits can be a problem. And U.S. sellers and buyers are suffering the consequences. In this post, we’ll discuss the current state of “product knockoff” affairs — specifically the “Alibaba counterfeits” issue — and then offer a few ideas on how to ebb the rising knockoff tide.

The Global Counterfeit Conundrum

Alibaba: A Collection Of Retail Sites

What, exactly, is Alibaba? An online company based in China, think of Alibaba as eBay, Amazon, and ThomasNet all rolled into one. Broadly speaking, Alibaba consists of three main parts:

  • A manufacturers marketplace where people can find assembly plants and people to make products;
  • Taobao — a cross between eBay and Amazon; and
  • Tiān Māo (“Sky Cat”) — an online retail portal that caters to a higher-end clientele.

Alibaba’s Rising Star

An international online retail force, China’s Alibaba is reportedly worth $260 billion — and climbing. The Asian e-commerce hub, having masterfully positioned itself on the global stage, is quickly amassing the power to create — and disrupt — market niches.

Knockoff Central

If you’re dealing with Alibaba counterfeits, you’re not alone. Everyone seems to be feeling the pinch — from large luxury conglomerates to single-person startups.

So, what are some common scenarios?

Massively Reduced Knockoffs

Example: Vintage Industrial, a Phoenix furniture company that employs a couple of dozen people and crafts handmade tables starting at $5,295, is now competing with manufacturers in China who are selling its exact designs for a mere $24.

Supply Chain Leaks Result In Knockoffs

Example: A jewelry maker’s plans were stolen after she went on a supply trip to China. Now, her one-of-a-kind designs are being mass produced and sold at a much lower price point around the world and online.

Bespoke Clothing Mass Produced

Example: A two-person U.S. clothier, which sewed items by hand, found identical copies of its fashions for sale on an Australian retail website. After inquiring, the designer learned that her clothes were mass-produced in Asia and sold in stores around the world.

Stolen Pictures

Product photos are another hot commodity on Alibaba — and counterfeiters regularly abscond with manufacturers’ marketing materials. Not only do swindlers swipe designs, but they also run off with promotional content.

How can you, a product seller or marketer, stop fraudsters? There’s no silver bullet. However, formally registering intellectual property can help in certain circumstances.

Why Is It So Difficult To Shake Counterfeiters On Alibaba?

You may be thinking: Why don’t business owners inform Alibaba of the knockoff problem? Well, here are some hurdles.

  • Paperwork Pile Up: As one Alibaba counterfeit victim explained, the paperwork required to formally launch a counterfeit claim on the platform is prohibitively time intensive, to the point where it’s nearly impossible for smaller companies to accomplish.
  • Scouring The Site: Since the problem is so pervasive, to effectively catch counterfeiters, companies must spend hours scouring Alibaba’s multiple sites– and most people simply don’t have the resources to indulge in the practice.
  • Unpredictable Reporting Functionality: When asked, Alibaba spokespeople have explained that the company scans 10 million images a day and has removed nearly 400 million suspect product listings over the past year. But, if you ask entrepreneurs under product attack, they’ll probably explain that Alibaba’s counterfeit reporting functionality is spotty.

Jack Ma’s Promise To Help “Make America Great Again”

Several months back, when President Trump was still PEOTUS, he met with Jack Ma — Alibaba’s founder. When the pair emerged from behind closed doors, Ma was pledging to create one million American jobs. No, his company wasn’t hiring a million American workers, but he vowed to help stateside sellers break into the rapidly expanding Chinese e-commerce milieu.

Considering Counterfeit Problems, Is It Wise For U.S. Businesses To Enter Into The Chinese Market?

But a question looms: With the current counterfeiting climate, can U.S. brands effectively launch recognition in overseas markets — especially if their products are used “as reference” for knockoff goods sold at a fraction of the cost?

Take Vintage Industrial, the Arizona-based furniture maker. Its custom-made tables start at $5,295, but a Chinese manufacturer copied the company’s designs, had them mass produced, and is now selling them for $24 a pop.

Not only is rampant counterfeiting plaguing honest sellers, but the United States Trade Representative’s office recently slung Alibaba’s Taobao on the Notorious Markets List — a directory of marketplaces — both online and off — known for trafficking in pirated and counterfeited goods.

One of the reasons Taobao landed on the list is because the USTR believes that “smaller firms have a harder time qualifying for Alibaba’s streamlined program for removing fakes [and] often encounter more bureaucracy and longer response times than larger ones.” Alibaba insists the accusation is “false,” but a spokesperson acquiesced that “there are places that our system can be improved to make them more effective, efficient, and user-friendly.”

Who Is To Blame: Alibaba v. Chinese Government

Who takes responsibility for the counterfeit outbreak? As you may have already suspected, Alibaba thinks that the “primary responsibility of protecting brands rests with the brand itself.” Additionally and controversially, the company’s founder, Jack Ma, famously placed blame on the Chinese government.

As far as Chinese officials are concerned, however, they think Alibaba could do more to thwart fraudsters.

Why Isn’t The Chinese Government Taking A Harder Stand On Counterfeiters?

You may be reading this and wondering: Why doesn’t the Chinese government take a harsher stance when it comes to intellectual property infringement — especially since the nation is notoriously strict when it comes to other Internet laws?

In a word: Growth.

Believe it or not, the United States Patent and Trademark Office didn’t come along until 1975. In fact, the 1790 U.S. Copyright Act expressly permitted the copying of foreign works. Why? Because when you’re a young country — or a nation in the midst of an expansion spurt (like today’s China) — reproducing foreign goods is an efficient way to spark a national economy. Think of it this way: After the Revolutionary War, many an American fortune was made recreating British products. And now, as the Chinese economy grows, a similar phenomenon is playing out.

What Can U.S. Businesses Do To Battle Alibaba Counterfeits?

Unfortunately, there’s no magic to keep product thieves at bay. However, you can do things that will throw fraudsters off your scent.

  • Vet your supply chain, thoroughly. The most common way for product plans to land in the wrong hands is via a leaking supply chain link. So, before you sign contracts or otherwise enter into agreements with overseas manufacturers, vet like your business depends on it — because it may!
  • Use U.S. manufacturers. Yes, it may be a bit more expensive, but by using stateside fabricators, not only are you helping to support our national economy, but you’re giving yourself an added layer of intellectual property protection. Looking for a U.S. manufacturer? Try
  • Become A Job Creator. Calculate how much you’re losing to counterfeit activities. Then talk to an e-commerce consultant about how much it would cost to either a) hire an inside person who is responsible for monitoring and handling online counterfeit issues or b) work with an e-commerce lawyer who can step in on your behalf when fraudsters rear their larcenous heads.

Connect With An E-Commerce Consultant

Aaron Kelly, Raees Mohammad, and Daniel Warner are Kelly / Warner Law. A decidedly tech-friendly firm, their team works with countless online sellers and marketers — both domestically and internationally.

The Kelly / Warner team solves counterfeiting problems, sets up business structures, secures intellectual property registrations, and does just about anything an online business could need…legally speaking, of course.

To read more about other e-commerce issues, please head to the online retail section of the website. If you have questions for Aaron, Raees, or Dan, get in touch today.

The post Alibaba Counterfeits: A Legal Overview & Avoidance Tips appeared first on Kelly / Warner Law | Defamation Law, Internet Law, Business Law.

Source: Kelly Warner Law

A Photographer Sued a Student Over a School Project. Guess How That Turned Out–Reiner v. Nishimori 0

In 1997, TC Reiner worked with SuperStock to create a photo entitled “Casablanca.” If I understand it correctly, Reiner and SuperStock put significant time and money into creating the photo on spec, with the hope that a future advertiser would license it. You can see the photo as Exhibit A to the complaint. It’s not 100% clear if Reiner or SuperStock own the photo, but that issue proves immaterial. SuperStock advertised the photo for licensing through its catalog.

Judith Sweeney O’Bryan was an adjunct at Watkins College of Art, Design and Film in Nashville (she’s now an associate professor there). She required her students to create a mock ad using a set of photographs she designated “by cutting stock photographs out of magazines and stock photography catalogues and scanning them on her computer.” [Before you get too snarky, note this incident took place nearly a decade ago.] The photo set included Casablanca. “O’Bryan did…contact her Dean at Watkins to ask whether using any of the photographs would infringe a copyright, and the Dean assured her that it would not.” A student, Ryon Nishimori, used Casablanca to create a mock ad for Dr. Scholls (see Exhibit C of the complaint). The scanned version of the photo included some metadata from SuperStock, but Nishimori edited it out. Nishimori subsequently uploaded the mock ad to his Flickr account as a form of cloud storage. Watkins subsequently changed its policy to use only Creative Commons-licensed photos for this class project.

The opinion does not explain why Reiner sued in 2015 over a 2008 incident. The complaint suggests that Reiner didn’t discover the use until 2014. The court does not discuss any statute of limitations; which makes sense only because, after Petrella, apparently copyright’s statute of limitations are functionally irrelevant. (I know the statute of limitations is tolled until the plaintiff discovers the infringement, but if the photo was publicly posted to Flickr in 2008, I don’t think tolling should apply).

What should Reiner have done when he discovered a student used the Casablanca photo in a class project to make a mock ad for Dr. Scholls? I can think of many good things he could have done–personally, if I were that upset, I’d have an extra scoop of ice cream for dessert–and suing the student would not be on the list. Reiner saved the extra calories but nevertheless made a dubious choice. He sued the student and the university for copyright infringement and 1202 violations. The court analyzes Watkins’ and Nishimori’s fair use defenses separately:

* O’Bryan’s scan of the catalog image. “Watkins only used the work as a raw material for a purely educational exercise. Watkins gave the photograph to the students so that the students could learn to create a mock advertisement, not so the students would benefit merely from absorbing the content of the photograph itself. This is a nonprofit educational purpose.” The second and third factors go against fair use. The fourth factor goes in favor of fair use:

Reiner has not proven even that there is a market for photographs to be used as part of educational design exercises. Reiner, in fact, has not produced evidence of a single instance in which he or anyone else was voluntarily paid for the right to use a photograph in a student-created mock advertisement or other student design project. Reiner has not proven that widespread use of photographs in the manner of Watkins or Nishimori would adversely affect any potential market for his work.

The fact that Watkins subsequently changed its policy to only use Creative Commons licensed photos for free “significantly diminishes the argument that Watkins’ use had any negative market affect” because, I infer, there was a large enough supply of no-cost substitutes that the copyright monopoly over the Casablanca photo did not matter.

The court summarizes:

Watkins used the photograph in a nonprofit educational setting and did not profit from the photograph at all. There is no proof before the Court that any market for using photographs in this setting existed for Watkins to disturb by using the photograph without paying for it. Rejecting the fair use defense and allowing this case to go to trial would stifle the creativity that the fair use doctrine is intended to protect.

* Nishimori’s uses. The fair use factors resolve the same for Nishimori. He made a noncommercial transformative use, the second and third factor weigh against fair use, and the fourth factor weighs in Nishimori’s favor: “Reiner fails to prove that there is a market for students to use photographs provided by their teachers to complete classroom assignments, nor is there a market for paying for storage of the photographs.”

The 1202 claim fails on scienter grounds. Nishimori wasn’t trying to suppress evidence of infringement; he was just cleaning up the photo so it would be suitable for his mock ad.

I wonder if the court will consider a 505 fee shift in this case. To me, this wasn’t really a close case. Sure, Watkins could have started using Creative Commons-licensed photos earlier. However, as the Watkins Dean rightly concluded at the time, the fair use defenses were obvious. Indeed, I’m having a hard time imagining a better paradigmatic example of a noncommercial educational usage of a photo than this situation. Perhaps a 505 fee shift will encourage future photographers to pick extra ice cream scoops over ruinous litigation.

As you may have noticed, Venkat and I rarely include photos with our blog posts any more. For several years, we had a free license to use stock photos from ShutterStock. After they ended the license, I’ve been reluctant to find other photo sources. I’ve occasionally used Unsplash and Pixabay for public domain photos, but their coverage is spotty. Also, I’m nervous that the photos aren’t actually in the public domain. Plus, finding a contextually helpful photo can be hard, so it’s not always worth the extra time. I apologize we don’t have as many photos as we used to, but cases like this remind me why I sleep better at night because of it.

(Process note: I deserve some credit for not making a single pun about the movie Casablanca, which is an all-time classic movie BTW).

Case citation: Reiner v. Nishimori, 3:15-cv-00241 (M.D. Tenn. April 28, 2017). The complaint.

Source: Eric Goldman Legal