by Mike Oliver | May 1, 2013 | Blog, Business Law, Internet, Technology and Privacy Law, Uncategorized
The FTC released a study and guide on facial recognition technology, and provided guidance on notice, transparency and options required when making use of, storing and sharing facial recognition information. The case studies included a basic use (for example, a face is scanned and then the user may make changes to see what hair, clothes, jewelry or other things look like), a more advanced use – an interactive kiosk that takes a picture of a consumer, assesses their age and gender, and presents an advertisement specifically for that consumer, and finally an example of use of facial recognition in social media and sharing those images (a la Facebook).
Anyone making use of facial recognition technology should consult these guides as they would any other FTC advertising or privacy guide, before they commence collecting, using or sharing facial recognition images.
For more information on privacy law compliance, contact Mike Oliver or Kimberly Grimsley.
by Mike Oliver | May 1, 2013 | Case law, Intellectual Property, Litigation, Patents, Uncategorized
In AKAMAI TECHNOLOGIES, INC. v. LIMELIGHT NETWORKS, INC. (Fed Cir. August 31, 2012) the en banc court held that a person can be liable for inducement to infringe even if the direct infringement is only found by combining the acts of more than one other person. You can read all 103 pages of the case here: Akamai v Limelight
What? In English: If you are aware of a patent (inducement requires specific intent to induce, so it requires knowledge of the patent) and you either perform one step in the method and induce one or more other persons to perform the remaining steps, or if you induce two or more other persons to engage in steps that together infringe, you are liable for inducement to infringe.
This is a major change in the law. This case overruled a recent prior case that had held that inducement requires inducing a single other party to engage in the acts that constitute direct infringement.
What does this mean? It means that if you are a business that say, provides a load balanced server farm for your clients, and you make that server farm available to your clients, who use it to manage their web content, and Akamai informs you of their patent that covers this technology, you will be liable for inducement to infringe even though the mere operation of a server farm does not practice every element in the claims of the patent. It means that businesses that are made aware of patents will have to consider every conceivable set of steps, whether done by their clients or others (inducement does not require any agency between the inducer and the person engaging in direct infringement) because the patent holder can “aggregate” all of the users it needs to meet the requirement of showing infringement.
There were numerous dissenting opinions, and it is somewhat probable that the Supreme Court will take this case.
For more information, contact Mike Oliver.
by Mike Oliver | May 1, 2013 | Business Law, In the News, Intellectual Property, Internet, Technology and Privacy Law, Uncategorized
BitTorrent is a peer to peer file sharing protocol that allows its members to share pieces of a file simultaneously such that each user can access and view the entire file without downloading it completely. It was designed to facilitate the sharing of large files and minimize the demand on an individual server. A seed user uploads the file and then peer users join the network, each simultaneously sending and receiving pieces of the file within the swarm of users.
BitTorrent file sharing has the capacity to be used for software and content updates as well as the authorized distribution of media content and comprises a significant amount of total web traffic and bandwidth consumption. Several BitTorrent sites index and catalog publicly-available media files, including movies, television shows, music, video games, and applications, while some files are shared only within a closed group.
When copyright protected material is shared using a BitTorrent protocol without the holder’s permission, each transmission among the users constitutes a copyright infringement. Media distributors, including movie studios, have begun targeting BitTorrent peers through their IP addresses and filing mass lawsuits against up to several thousand downloaders at time. Statutory penalties can be as high as $150,000 but are often much lower.
For the purposes of naming defendants in these sweeping lawsuits, internet service subscribers are identified by their IP addresses. For business owners, that means that any infringing downloads that occur over your connection by your employees, customers, and neighbors can be traced back to your business, in much the same way that a red-light ticket comes to the registered owner of a car regardless of who was driving it. While you may not be able to monitor all internet activity over your home or business network, especially if you have a large number of employees, network security and clear policies and training on internet use limitations can help to prevent unwanted copyright infringement in your business’ name. BitTorrent files and client software often carry viruses and malware as well and should be avoided unless needed for a designated purpose.
For more information on BitTorrent copyright enforcement contact Mike Oliver.
by Mike Oliver | May 1, 2013 | Intellectual Property, Litigation, Trademarks, Uncategorized
A question often arises – does an owner of an intellectual property right have the duty to enforce it? While the answer is no, the failure to do so in the face of known infringement can damage and limit the ability to enforce the right in the future. This legal doctrine – laches – borrows from the statute of limitations – which prevents a claim from being filed if the event giving rise to the claim occurred a distance in the past. This doctrine applies differently in each area of intellectual property, but is most critical, and hardest to determine, in trademark cases.
In trademark cases, the elements in the 4th Circuit (and most circuits) are as follows: “In determining whether laches operates as a defense to a trademark infringement claim, we consider at least the following factors: (1) whether the owner of the mark knew of the infringing use; (2) whether the owner’s delay in challenging the infringement of the mark was inexcusable or unreasonable; and (3) whether the infringing user has been unduly prejudiced by the owner’s delay.” Ray Communications v. Clear Channel, 4th Cir Ct (March 8, 2012).
“[I]n the laches context, “(1) delay is measured from the time at which the owner knew of an infringing use sufficient to require legal action; and (2) legal action is not required until there is a real likelihood of confusion.” See What-A-Burger of Virginia, Inc. v. Whataburger, Inc. of Corpus Christi, Texas, 357 F.3d 441, 451 (4th Cir. 2004).
The mark at issue in Ray Communications is AGRINET for “educational services rendered through the medium of radio; namely, a program of interest to farmers.” The the defendant used similar marks such as “OKLAHOMA AGRINET” for agricultural news programming on the air and in marketing. The defendant had been using the potentially infringing marks for many years – plaintiff filed its case in 2008, but the use of the defendant commenced in the late 70’s and early 80’s – about 20 years prior to the filing date of the complaint.
While this case reversed the district court’s decision in favor of the defendant – largely because the record was not developed adequately to establish such relief, the case demonstrates the complexity of determining when and how to enforce a trademark. For example, there was evidence that the defendant had changed certain marks, and that it had used some of the marks under license from the plaintiff – facts not considered in the lower court.
Trademark enforcement is important to maintain the trademark strength, but the failure to enforce it in some cases, will not prevent later enforcement as the infringement looms large.
For more information, contact Mike Oliver or Kimberly Grimsley.
by Mike Oliver | May 1, 2013 | Intellectual Property, LegalEase, Privacy, Uncategorized
In April 2012, the Federal Trade Commission issued its report entitled “Protecting Consumer Privacy in an Era of Rapid Change.” You can read that here.
The Report, while a comprehensive review of hundreds of undoubtedly conflicting filings by the various extreme factions on privacy issues, ultimately just boils down to the FTC complaining that Congress has still not taken any action to normalize privacy rules. Let’s face it, privacy law is a mess – a hodge podge of state laws, some specific federal laws in the area of financial account, children, protected health information, and education areas, and a morass of case law and regulatory rules – rules that mostly derive from other laws (like the Lanham Act) not really intended to address privacy. For example, many of the actions the FTC has brought to enforce so called privacy, really involve false advertising – a company saying one thing to a consumer, and doing another, or offering some ability to control a privacy setting, and then ignoring the user setting.
The Report sets forth the FTC’s overview of its objectives and scope summarized here:
- does not apply to companies that collect only non-sensitive data from fewer than 5,000 consumers a year, provided they do not share the data with third parties
- “commonly accepted” information collection and use practices for which companies need not provide consumers with choice (product fulfillment, internal operations, fraud prevention, legal compliance and public purpose, and first-party marketing).
- recommended that companies provide consumers with reasonable access to the data the companies maintain about them, proportionate to the sensitivity of the data and the nature of its use.
- respect browser and consumer “do not track” election
- disclose privacy in use of Mobile Applications (also, the major platform providers recently signed an agreement with California, to require all apps on their platforms to link to a privacy policy
- allowing consumers to have access to and to correct information held by so called “data brokers”
- industry self-regulation (“no lip service”)
In terms of the actual principles, they are:
- Companies should incorporate substantive privacy protections into their practices, such as
data security, reasonable collection limits, sound retention and disposal practices, and data accuracy
- Companies should maintain comprehensive data management procedures throughout the life
cycle of their products and services
- Companies should simplify consumer choice (Companies do not need to provide choice before collecting and using consumer data for
practices that are consistent with the context of the transaction or the company’s relationship with the
consumer, or are required or specifically authorized by law)
- For practices requiring choice, companies should offer the choice at a time and in a context
in which the consumer is making a decision about his or her data. Companies should obtain affirmative
express consent before (1) using consumer data in a materially different manner than claimed when the
data was collected; or (2) collecting sensitive data for certain purposes
- Privacy notices should be clearer, shorter, and more standardized to enable better
comprehension and comparison of privacy practices
- Companies should provide reasonable access to the consumer data they maintain; the extent
of access should be proportionate to the sensitivity of the data and the nature of its use
- All stakeholders should expand their efforts to educate consumers about commercial data
privacy practices
From a lawyer for small to medium size businesses, it would be very helpful for some national, pre-emptive legislation that gave a lot of guidance and safe harbors for businesses so that they do not have top worry that they are violating some esoteric rule buried in some regulation, order or arcane state law. Unlikely to happen, though . . .
For more information, contact Mike Oliver.
