Probably not. If you work in California, or are otherwise subject to California law, I recently saw this article which again highlighted the oft-repeated warnings of many in the legal profession not to use your company’s e-mail to send out information that you deem to be confidential or, as in this case, even privileged. It can have consequences.

A California appeals court held that an e-mail an employee had sent from her employer’s work computer was not a confidential communication subject to the attorney-client privilege. Thus, the privilege which would have normally attached to the e-mail had she sent it from her own computer was deemed to be waived. A key factor in the case was that the employer had warned employees that e-mails sent from work were not confidential and could be monitored.

As noted in the article, not all courts have held this—and not all employers have such broad e-mail policies (although most do)—but it nevertheless again highlights the danger of using a computer at work when sending out confidential or sensitive information. Chances are that your employer has a fairly broad e-mail policy in place (and you might have even signed something which acknowledged it), but when in doubt … just don’t do it.

Last year, we wrote about a ridiculous situation in which the Association for Information Media and Equipment (AIME) threatened UCLA, after discovering that the school had set up an online video service, that let UCLA professors put up legally licensed video clips so that students could watch them from their computers. AIME claimed that UCLA’s license did not allow for such uses. UCLA claimed this was fair use. After initially taking down the videos, UCLA decided this was worth fighting over and put the videos back up last March. At the time, we thought a lawsuit from AIME would come quickly, but apparently it took until December. UCLA recently filed a motion to dismiss the lawsuit, setting up a few reasons why — including the claim that, as a state university, it has sovereign immunity from copyright lawsuits and, also, that AIME is not the copyright holder in question, and thus has no standing.

However, as Kevin Smith (not the filmmaker we’ve been talking about recently, but rather someone at the Duke University Library) notes in the post above, there is an interesting claim in the motion, where UCLA suggests that the breach of contract claim (which comes under a state law) is preempted by federal copyright law. If I remember the details correctly (and you copyright lawyers out there, feel free to correct me), with the Copyright Act of 1976, that law basically superseded any state laws that covered the same grounds. Mostly, people have thought this meant that state copyright laws effectively were wiped out (though, as we’ve seen, some awful remnants of those laws remain).

However, what UCLA seems to be arguing, is that federal Copyright Law could also wipe out portions of state contract law as well, if those aspects are covered by copyright. It’s a creative way of saying that you can’t contractually give up aspects of copyright, such as fair use. Now, there are some areas where it’s known you can’t give up what copyright says via contract. You can’t, for example, contractually give up your termination rights (which let you take back a copyright you assigned to someone decades later). Also, it’s not quite the same thing, but the recent ruling in the Augusto case has suggested that there are situations where you don’t give up copyright exceptions (in that case, first sale) — but it’s distinguished by the fact that the court effectively said there was no license on promotional CDs (despite a stamped on “license” text).

So rather than relying on something like that, UCLA seems to be relying on preemption of state contract law, to say that even if you signed a license agreement, fair use rights can still apply. It’s an interesting point. I’m of a mixed opinion on whether or not it’s a good thing, however. I am a fan of such copyright exceptions, and would be worried if we started to see fair use “licensed away” in more situations. However, would that also mean that we couldn’t license away other aspects of copyright law? Would that cause trouble for certain types of licenses, like Creative Commons licenses?

I’m guessing that the court may skip over this issue entirely, in that it can just hand UCLA a victory on the sovereign immunity or lack of standing claims and just move on without addressing this issue. However, I do expect that it will show up again in other lawsuits at some point.

Permalink | Comments | Email This Story





&partnerID=167&key=segment”/> .8626,cat.TechBiz
.rss”/>

Techdirt Mike Masnick

Senator Ron Wyden is quickly becoming a politician to be proud of on issues that we feel are important. We’ve already seen him single-handedly stand up to COICA (and forcefully stand behind that position after facing ridiculous lobbying pressure). He also was one of a very small number of US politicians who has publicly expressed concerns about ACTA. But it’s not just on copyright issues. Senator Wyden is now proposing a new law that would require that law enforcement get a warrant before being able to get location info from mobile devices.

While there are still some differing opinions in the courts on the legality of obtaining location info without a warrant, law enforcement has pushed hard to not need a warrant to get such info, preferring to just use a subpoena (basically just asking with no real judicial review). Wyden believes this is wrong, and a violation of basic privacy principles:

“If you asked most Americans, I think they would tell you that surreptitiously turning somebody’s cell phone into a modern-day tracking device … and using it to monitor their movements, 24/7, is a pretty serious intrusion into their privacy, pretty much comparable to searching their house or tapping their phone calls.”

It’s so rare to see a politician say things we agree with that it seems worth highlighting. Who knows if this will actually get anywhere (chances are it won’t), but Wyden still deserves kudos.

Permalink | Comments | Email This Story





&partnerID=167&key=segment”/> .8626,cat.TechBiz
.rss”/>

Techdirt Mike Masnick

Ah, the hypocrisy of politicians. We’ve pointed out in the past how often politicians seem to push for data retention laws and privacy laws at the same time, without realizing the two are in fundamental conflict. It looks like the Obama administration is going through a bit of that as well. The FTC has been threatening to force browser makers to include a do not track feature, that would let people surf without having their data retained. And yet… at the same time, the Justice Department is pushing for extensive data retention laws, with the help of the supposed “small government” Congressional reps who don’t even seem to realize what they’re supporting. Even worse, Congress seems so eager to push for a data retention law that some Congressional Reps are apparently annoyed that the Justice Department hasn’t just handed them a bill to approve.

The problem, of course, is that these politicians don’t actually fully understand what the issues are involved here. They’re viewing the issues on a very narrow basis. On the “do not track” issue, they think “privacy is important, of course we support privacy — do not track is important.” On the “data retention” issue, they think “well, law enforcement needs to have access to data to solve crimes, and without requiring internet companies to retain data, then it’ll make law enforcement harder, so of course we need to have data retention.” What they don’t recognize is that these two things are in fundamental conflict with each other. Requiring data retention means less privacy. Period. But these politicians never actually think that far.

Permalink | Comments | Email This Story





&partnerID=167&key=segment”/> .8626,cat.TechBiz
.rss”/>

Techdirt Mike Masnick

It probably goes without saying that if you’re planning to sue your employer, you shouldn’t use your work email address to contact your lawyer. However, if you did do that, according to a California court, that email is not protected by attorney-client privilege. I don’t find this to be all that surprising (or really, problematic). It’s quite common that employers control the rights to your work emails, so it’s hard to see why that wouldn’t extend to emails you send your lawyer. All it really makes me wonder is why someone would use their work email for sending those types of emails.

Permalink | Comments | Email This Story





&partnerID=167&key=segment”/> .8626,cat.TechBiz
.rss”/>

Techdirt Mike Masnick

Don’t get me wrong.  I don’t mind the RIAA.  As a technology and internet lawyer who makes my living in and out of court trying to protect the intellectual property rights of my clients, I generally support the RIAA’s efforts to keep people from stealing music and infringing the copyrights of others—although the organization can get a bit too overzealous at times.  I’m starting to wonder, however, if perhaps the RIAA’s overzealousness is starting to cross the line into outright delusion, stupidity, or both.  They certainly keep their lawyers busy though.

Now the RIAA is making veiled legal threats against ICANN over the introduction of a “.music” domain name.  The RIAA’s deputy general counsel, Victoria Sheckler, informed ICANN that such a gTLD “will be used to enable wide scale copyright and trademark infringement.”  Actually, “informed” is too nice a word given the rest of her letter: 

We strongly urge you to take these concerns seriously….We prefer a practical a practical solution to these issues, and hope to avoid the need to escalate the issue further.

As you’re probably aware, “escalate” is legalese for “sue your ass.”  But come again?  How does a .music domain name ”enable” infringement?  As I recall, the RIAA has sued an awful lot of people over the years who have downloaded music from sites with .com and numerous other extensions.  So how does a .music gTLD change that in any way? 

If anything, a .music domain name might help consolidate all of the infringers in one place, kind of like a canyon with the snipers located above, and thereby allow the RIAA’s lawyers to pick them off as they see fit.  Of course, outright infringers would likely avoid using such an obvious domain name anyway and stick to the names they’ve been using for—oh, I don’t know—maybe the last decade or so before a .music name was ever contemplated.  (But then again, as an attorney I’ve learned never to underestimate the stupidity or chutzpah of people.)  And of course, the RIAA seems to forget that there are a ton of amateur musicians and bands out there who have no problem with people downloading their music for free and would readily take the opportunity to register a .music domain name.

In terms of potential trademark infringement, I have no doubt that many cybersquatters would try to register the .music names of famous bands and musicians.  But most won’t get very far given the ICANN domain name dispute resolution policy.  Or the even more far-reaching Anti-Cybersquatting Consumer Protection Act.  So the RIAA needs to chill.  What they really seem to be trying to do is to get ICANN to somehow implement copyright protections or to police the .music name for infringers.  But isn’t that the RIAA’s job?  And haven’t they done it well over the years? 

I can’t believe that ICANN would, could, or ever be forced to assume such a massive compliance burden.  This isn’t a situation like Napster where there was a single website facilitating infringement (which had nothing to do with ICANN).  The RIAA is essentially suggesting that ICANN monitor an entire gTLD for the infringing activities of, well, everyone who uses it.  And even if that were possible or within the purview of ICANN’s official responsibilities (which it’s not), what’s to stop the RIAA from then trying to extend ICANN’s efforts into all of the the other gTLDs that exist…or will exist?  Slippery slopes I can deal with, but slippery cliffs are another matter.  In any instance, a lawsuit against ICANN is something that the RIAA may want to think carefully about before pursuing.  Not that they will, mind you.  Their lawyers are kept very busy indeed.

Shakespeare said it first:  “A rose by any other name would smell as sweet.”  And a domain name by any extension could smell as rotten as any other.  And if people want to use it for illegal purposes, they’ll do it regardless.  As for me, I can’t wait until that proposed ”.xxx” gTLD finally becomes operational.  I just can’t find the porn I’m looking for without it.

A case involving a photographer who posted images of the Haiti earthquake to Twitter service Twitpic only to find others claiming rights to the images opens up IP issues. How far is an image allowed to go once posted? It can be retweeted, but what rights has the copyright owner retained?

Hopefully by now, most people who have upgraded to a smartphone (such as an iPhone, Blackberry, or Android) have realized that it’s not simply a phone, but a powerful mobile computer which just happens to be about the size of a 3″ x 5″ index card.  And just like your big heavy personal computer or laptop, it contains all sorts of personal information—perhaps too much information—about you and what you do.  If you haven’t come to that conclusion yet, the increasing police power of the state may soon force you to.  It should also force you to take steps to protect yourself from what could become an overzealous police officer should you ever find yourself in the unfortunate situation of being arrested (even for a misdemeanor).

For me, a big part of being a technology and internet lawyer is privacy law.  While privacy appears to have all but  disappeared in this 24/7 networked world where everyone posts a whole lot of information about themselves, it’s easy to forget that not everything is everyone’s business—especially the police, who may seek to use such information against you for violations of laws that you may not have realized even existed.  Think it can’t happen?  As a lawyer, I’ve seen many overzealous police officers, state agents, and prosecutors looking to establish a name for themselves.  Civil liberties be damned.  (Of course, there are many good ones too, but it’s often the other ones we hear about.)

An insightful article by Ryan Radia discusses the recent California Supreme Court decision in People v. Diaz, which held that police officers can lawfully search a mobile phone on a person they arrest without first obtaining a search warrant.  The court found that mobile phones, like cigarette packs and wallets, fall under the “search incident to arrest” exception of the Fourth Amendment.  While the Supreme Court may have the final say as to whether this is legal, many state courts have come to the same conclusion as California has.

Most significantly, Radia discusses the importance of taking measures to make your smartphone as secure as possible, such as full disk encryption of all content on the device.  He notes that password protection—which is certainly an important first step—may not be enough and is easy to bypass due not only to the rise of digital forensics, but the vulnerabilities in your smartphone’s own operating system that a forensic expert can exploit easily.  While Radia notes that no mobile encryption system at the moment is perfect or especially secure, this will hopefully change.

If you have a few minutes, the article is definitely worth a read.  Whether people realize it or not, privacy is one of the most daunting issues facing us (and lawyers) in this information age, and the law has difficulty keeping up.  And as the Diaz case shows when the law does catch up, it’s usually not in our favor, but works to the benefit of the state’s police power.  At least for now.

I love it when tech giants battle over stuff, particularly in the legal arena.  When you have two parties with virtually unlimited resources and an unfettered willingness to spend money on lawyers, it makes for interesting reading … and hopefully for more interesting law at some point down the line.  We don’t always have such excitement in the Boston legal community.

Such is the case with Microsoft’s recent filing at the Trademark Trial and Appeal Board (“TTAB”) (of the United States Patent and Trademark Office) contesting Apple’s attempt to trademark the term “APP STORE.”  Microsoft argues that “APP STORE”  is “generic for retail store services featuring apps and unregistrable for ancillary services such as searching for and downloading apps from such stores.”  The company further contends that “APP”  is “a common term for mobile software applications, while “STORE” is a common term for a “place where goods are sold.” 

Following so far?  A generic term can’t be registered for use as a trademark because it refers to the actual product class of which a particular product is a member and therefore can’t be protected as a mark.  It would be like trying to register the term “VIDEO GAME” for video games or—for those of us over 40 who still remember video games’ predecessors—the term “PINBALL” to describe pinball machines.

Microsoft’s argument has merit and the company has a reasonable basis to contest the mark.  Of course, this doesn’t mean that Apple won’t win in the end, but it should be an interesting read when the TTAB decision come out—at least to us trademark lawyers.  (And the parties may then have the opportunity to fight it out in federal court.)  Needless to say, neither party suffers from a lack of resources to fight to the bitter end.  But they could settle too, if for instance, Apple lets Microsoft use the term to describe its own “App Store.”

There are numerous factors which the TTAB and a court can take into consideration when determining whether a mark is generic, including:  how the potential trademark owner itself uses the term; whether third parties use the term as a common name for their own products; what the dictionary definition is (if any) for the term as a common name for a particular type of product; whether there are other available terms to describe the common name for the products; the period of time in which the trademark has been in use; how the press and others use the term; and of course, the results of any survey evidence that either party introduces (which are usually subject to vigorous attack by the other party).  There are other factors too, but these tend to be the main ones for determining “genericness.” 

Without going into too much detail here, Microsoft does have some favorable evidence to support its claim, as does Apple.  While there are a ton of trademark cases that discuss generic marks, a 4th Circuit decision comes to mind, Hunt Masters, Inc. v. Landry Seafood Restaurant, Inc., 240 F.3d 251 (4th Cir. 2001).  In that case, the court found that the term, “CRAB HOUSE” to describe a restaurant that, uh, served crabs “is a generic term referring to a class of restaurants that serve crabs.”  It found:

Here, the meaning of the individual words is fairly clear. A crab is “any of numerous chiefly marine broadly built crustaceans,” while “restaurant” is one of the many definitions of the word “house.”  Webster’s New International Dictionary 1096 (3d ed. 1961). Other common words that are often used as synonyms for “restaurant” include bar, parlor, and shop. When preceded by a type of food, these words describe various classes of restaurants, such as ale houses, tapas bars, ice cream parlors, and coffee shops. Each term denotes a class of restaurant serving a particular type of food, just as”crab house” denotes a class of restaurant that serves crabs. 

The court also rejected the plaintiff’s survey evidence when assessing genericness.  So “CRAB HOUSE” was deemed to be unprotectable.  While there are a few factors that differentiate this case and some of its principles from what Microsoft is arguing at the TTAB (such as time frame related to evaluating genericness), given the abundance of legal precedent in this area, the company can reasonably argue that ”APP STORE” is a generic term (or a merely descriptive one) for a place that sells applications.  Much of the fight will be over the term “APP.”

Of course, as any intellectual property or technology lawyer will tell you, trademark law is a highly nunaced area of practice, so these cases can turn on distinctions that at times seem more imaginary than real—especially in a sector as fast-paced as technology.  We’ll just have to wait and see.

Sigh.  Although I’m not surprised–especially given this pernicious and false belief that if it’s on the internet then it must be free–it’s been estimated that 43 sites which engage in digital piracy account for about 21 billion visits per year.  That’s roughly 3 times the current population of the Earth.  As an intellectual property attorney, I always find such statistics sobering given the rampant copyright and trademark infringement which occurs on the internet.  Predictable, but sobering nonetheless.  And no doubt the public hates those lawyers who pursue the infinitesimally small percentage of infringers that they’re able to find and sue, let alone actually stop or collect against.  The battle continues!