Apple iPhone 4 Settlement: A Roadmap For Consumers
For purchasers of the original Apple iPhone 4 who survived “Antenna-gate,” there is good news: Apple has agreed to settle the class action brought over the poor antenna reception of the iPhone 4 and will be offering consumers a $15 cash payment or a free bumper/case to rectify the problem. Affected consumers will have four (4) months to file claims under the settlement to receive their cash payment , once Notice has been provided.
SOPA Post-Mortem: The Independent Autopsy
The much-maligned Stop Online Privacy Act (SOPA) and its senatorial sibling, the Protect IP Act (PIPA) have, at least for now, met an abrupt demise. The huge public protests by internet trailblazonaires and activists, accompanied by “blackouts” staged by Google, Wikipedia, and other major sites, turned the tides against lawmakers almost overnight. As some reports noted, the rare display of public participation took lawmakers by surprise, and once anti-SOPA sentiments rippled through the country, the Congressional representatives who originally introduced the bill found themselves alone, without support, and abandoned the bill. By last Thursday, SOPA and PIPA were declared DOA, well in advance of the vote that was previously scheduled to take place today. In the end, the death of SOPA/PIPA was by some reports attributed to the power of public participation in the democratic process. These idealistic commentaries, however, may be ignoring the reality that the fight over SOPA/PIPA was very much a brawl between powerful corporate giants with strong conflicting interests. Caught in the fray, Americans would be wise to mute the rhetoric advanced by both sides when the next incarnation of SOPA/PIPA arises, and take a careful look at the true motivations fueling the debate, as well as the practical effects that stronger copyright enforcement laws would actually have for ordinary netizens.
Ex-Employee Sued by Employer Over Twitter Account
Who does a twitter account actually belong to, employee or employer? In a lawsuit brought by Phone Dog against its former employee, Noah Kravitz, Phone Dog is arguing to a California federal court that Noah’s twitter following belongs to Phone Dog. Phone Dog has valued the 17,000 on Noah’s twitter list at $42,500 ($2.50 per twitter “follower”), and has sued Noah for theft, interfering with its business relationships, and misappropriating its trade secrets.
The Phone Dog case is interesting because it does not involve a trademarked or copyrighted slogan, mark, or logo of the employer, Phone Dog. According to court documents, Noah worked for Phone Dog as a video blogger and reviewer of products. Apparently, as part of Noah’s work for Phone Dog, Noah collected more than 17,000 twitter followers. When Noah resigned his position in October of 2010, he changed his twitter handle from @PhoneDog_Noah to @noahkravitz. There is a disagreement between Noah and Phone Dog about whether Phone Dog ever asked Noah to give up his twitter account entirely. Phone Dog’s lawsuit was filed because Phone Dog believed that Noah was using his twitter account (with its 17,000 followers) to continue marketing and advertising on his own, to some of the outlets he had marketed and advertised to during his employment with Phone Dog, such as Fox News Live and CNBC’s Street Signs. There were no contracts or agreements between Noah and Phone Dog restricting him from using his twitter account post-departure.
The Phone Dog case is a good example of why it is a good idea for employers and employees to have clear expectations (and agreements) about the ownership of social media accounts, and whether collecting “friends” or “followers” is being done for the benefit of the company pursuant to job descriptions or expectations, or whether it is an independent venture of the individual employee, separate and distinct from his or her job duties. In this case, there seems to be fair arguments on both sides.
For Personal or Business Use? It is unclear whether Noah was pursuing twitter followers (arguably, we may never know whether followers sought to follow Noah the individual or “Noah the Phone Dog employee”) independently or as part of the practice as one of Phone Dog’s product reviewers and bloggers. Certainly, having a wide audience following was both favorable for Noah as well as Phone Dog.
Substantive Content. It is also unclear whether Noah’s tweets were in large part employment-related, in terms of content, or whether they conveyed personal messages. In taking a quick peek at the most recent ones, it appears that Noah tweets, and tweets often, about a variety of topics, not just those about his employment or Phone Dog:
What is the Proper Analogy? Another looming question that could be answered, if the Phone Dog case is assessed on its merits, is whether social media friends or followers are more akin to a company’s “customer lists,” which might be protected as a trade secret, or whether they are more similar to simply a list of contacts. After all, individuals who leave their employment to not “unlearn” their acquaintences, and barring non-solicitation or non-compete provisions in an employment agreement, are free to contact their list of contacts.
Public Relations Elements. For Phone Dog, an unintended consequence of the lawsuit may end up being bad publicity. Regardless of how meritorious their claims may be, to the public, it may simply appear to be a powerful employer flexing its muscles and intimidating a former employee, whether it is to set an example, or truly recover the Twitter “followers.” This would not be the first time a lawsuit in the technomedia space has generated more (negative) publicity than may have been desired.
For now, Noah’s legal team is attempting to have the case dismissed for failure to state a claim for relief. A hearing has been scheduled for the end of the month, so there may be new developments coming in the near future as this case marches forward.
Los Angeles “Silicon Beach” Tech Sector Headed for Growth
Google's Venice Beach Office
Perhaps in a rebirth of “trickle-down” economics, some news sites are reporting that the technological talent tucked away in the valleys of Northern California is now migrating southward toward “Silicon Beach.”
Now that there is a new Google office in Venice, there appears to be great praise for budding LA startups such as TrueCar, Riot Games, Parking in Motion, and others.
It remains yet to be seen how much further Google will expand in Venice in 2012. Back in 2003, Google acquired Applied Semantics, based out of Santa Monica, and only had about 12 employees working in the office. However, the decision to expand into Venice was based on Google’s desire to “reproduce the unified feel of its main campus” in Mountain View.
Lessons Learned from Universal’s Lawsuit Against Video Filesharing Site Veoh
Veoh, a provider of online streaming videos, has, at least for now, been absolved of claims of copyright infringement made by Universal Music Group. On December 20, 2011, the California Court of Appeals ruled in Veoh’s favor, dismissing Universal’s allegations that Veoh was responsible for copyright violations, namely, by allowing Veoh users to access videos copyrighted by Universal. The Court decided that Veoh was protected by the “safe harbor” provisions of the Digital Millenium Copyright Act.
There were two chief issues in dispute in the lawsuit: 1) whether the infringing videos were being uploaded onto Veoh’s servers without Veoh’s actual knowledge; and 2) whether Veoh’s practice of reformatting the videos uploaded by users and storing the various formats on its servers caused a violation of U.S. federal copyright laws and the DMCA.
In analyzing the Court’s decision, a couple of facts seemed to decide Veoh’s fate. First, the Court noted that Veoh was not participating or supervising each and every user’s uploading of videos (nor was it viewing those files); rather Veoh was using an automated process that automatically initiated when each user attempted to upload videos. Veoh’s automatic process would convert the video uploaded by the user into a more readable format (Flash 7) and made publicly accessible for streaming and downloading to the general public.
Second, the Court also determined that the “safe harbor” provisions of the Digital Millenium Copyright Act protected Veoh, because Veoh did not actually know that infringing videos resided on its servers. Veoh had received a demand letter at one point in time that infringing videos resided on its servers, but that letter was sent by the RIAA, not Universal. In fact, Universal never sent a demand letter, as set out by the DMCA’s notice protocol, notifying Veoh and putting Veoh on notice of Universal’s belief that infringing content was residing on Veoh’s servers. The Court also determined that there was no proof that infringing content continued residing on Veoh’s servers, once Veoh became aware of them.
It is important to note that the lawsuit brought by Universal was dismissed by the trial court in its beginning stages, and that dismissal was affirmed by the California Court of Appeals in the decision handed down a couple of days ago. So, it is very possible that Universal could undertake further investigation and bring claims against Veoh yet again in another lawsuit.
In the meantime, there are a few lessons that can be drawn from the Veoh decision for companies providing streaming videos or other filesharing:
• Take Demand Letters Seriously. Although Veoh did not receive a demand letter from Universal, businesses should be wary of receiving any demand letters asking to cease and desist from certain conduct because infringement is allegedly occurring. These kinds of notices are usually a prelude to legal action or other form of escalation, and a lawyer should be consulted if any such demand letter is received. Your lawyer will be able to help your company respond to the demand letter, and determine whether it is legally effective. In Veoh’s case, at one point in time before the lawsuit was brought, an email was sent by the CEO of Disney to Michael Eisner, who was a Veoh investor, notifying Eisner that content belonging to Disney was found on Veoh. However, the Court ruled that Disney’s email was ineffective at providing sufficient notice to Veoh of Universal’s belief that copyright infringement had occurred and had not been rectified.
• Is There Actual Knowledge of Infringing Material? If your company offers users or consumers an opportunity to upload content, video, or any other type of media to servers hosted by your company, be cautious about whether the uploading processes require manual approval by the company, or whether they occur and post to your company’s servers automatically. If your company representatives are actually screening uploaded content before it is made available publicly, they may want to be extra diligent in ensuring that no infringing works are being made available publicly.
• Act Quickly. Under the Digital Millennium Copyright Act, safe harbor exists, in some cases, for service providers who are notified of infringement, as long as they “act expeditiously to remove or disable access to” the offending content. In Veoh, there was evidence that once he was notified about Disney’s copyrighted content being located on Veoh’s servers, Michael Eisner, a Veoh investor, notified the founder of Veoh to take down Cinderella III and various episodes of Lost “right away,” and the Court commented that Universal had no proof that this had not actually occurred. Acting quickly when notified of infringement can be construed as evidence of good faith by service providers.
• Consult Legal Counsel. The best and most appropriate way to respond to allegations of copyright infringement is going to be different based on the circumstances of each case and the facts. Companies should be wary about handling accusations independently and without the advice of legal counsel, as the penalties could be stiff and legal fees, should a suit arise, could be unpredictable.
The Veoh decision will not be the end of video-sharing copyright lawsuits. There are several other similar cases that are currently pending, in California, for example, the lawsuit brought against IsoHunt, a bit-torrent filesharing site, by Columbia Pictures. Further, the Stop Online Piracy Act, presently in Congress, could undercut the DMCA’s safe harbor provisions in the future.
Latest Hangover Copyright Infringement Suit Over Louis Vuitton Luggage
With the Tattoo Lawsuit settled, Warner Brothers has a new suit on its hands involving “The Hangover: Part II.” Famous French luxury goods producer Louis Vuitton Malletier has sued Warner Bros. In New York, alleging that scenes in the Hangover in which Zach Galifinakis’ character is seen carrying expensive Louis Vuitton luggage are in misleading because Galifinakis is not actually carrying authentic Louis Vuitton luggage.
Warner Brothers is also being sued by an actor, Michael Alan Rubin, who alleges that the movie is based on his true life story, and that the makers of “Hangover II” “stole his life” and left him out of the financial profits generated by the successful movie.
The Louis Vuitton lawsuit is pending in the Southern District of New York District Court (Cause Number 1:11-cv-09436-ALC). As of the date of this post, Warner Brothers has not yet been served, so there is no telling whether Warner Bros. will seek to dismiss the lawsuit.
Facebook Account Protected From Discovery
There is a new decision on the issue of whether litigants are permitted to obtain facebook account information during discovery. New York Judge George Silver of the Manhattan State Supreme Court, presiding over a car-acciddent / brain-trauma personal injury case, ruled that the defense was not permitted to obtain current and historical MySpace, Facebook, and Twitter account information from the plaintiff Katherine Sterling. The Court called the discovery requests an unjustified “fishing expedition” (although the Court did allow the defense to obtain the plaintiff’s cell phone records).
What is interesting about the case is that the ruling came after an in camera submission to the court of the plaintiffs’ Facebook page — apparently the Court assessed the nature of the first few pages of the Plaintiff’s Facebook page and determined that there was nothing worthwhile on the site that satisfied the relevance/”calculated toward the discovery of admissible evidence” test.
The Sterling case presents some unique issues. As any attorney probably knows, the value of receiving a multitude of records similar to the kind that resides on Facebook, MySpace, or Twitter, can be huge. Often, there is no “smoking gun,” but when the activities on chronological or timeline-based records are compared to other records, inconsistencies could be uncovered that may ultimately prove to be very valuable to the defense. The problem is that a single gold nugget of information could be buried deep within many pages of records. If the Sterling Court only looked at the first few pages of records (there is no telling from the Court’s Order how recent, frequent, or abundant the Facebook entries were), there is every likelihood that the page could have been littered with social postings, events, family musings, and other information completely irrelevant to the kind of discovery pertinent to a lawsuit. Records are not valueless or undiscoverable simply because they are abundant, or even mostly uninteresting.
Further, there is the potential for litigants to take advantage of “in camera” inspections of Facebook pages, especially once requested by the defense. A party who has received a request for production of such information can often collect a plethora of comments, posts, likes, and other activity, which can drown out legitimately useful facts, simply by being more “active” than usual on social networking sites — especially in the 30-90+ days it often takes for discovery disputes to escalate past a meet/confer, briefing, and hearing. By then, useful posts could be long gone or pushed back to page 10.
There is no doubt that Facebook info can be very valuable. Who can forget the case of Kevin Colvin, the celebrated intern at Anglo Irish Bank, North America, who told his manager he had to miss work for a “family emergency” … which turned out to be a “fairy” emergency:
From Kevin’s Facebook Page:
What Kevin was doing with the can of Miniwax hardwood stain in the background, no one may ever know.
Attorney Rabeh M. A. Soofi
Phone: (213) 632-9390
Fax: (213) 986-3485
Email: rsoofi@sb-lc.com
Twitter: @rabehsoofi