Addressing legal issues with the latest technological developments and social media trends.
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GettyImages-1254705023-videoconferencing-300x200“One who invites another to his home or office takes a risk that the visitor may not be what he seems, and that the visitor may repeat all he hears and observes when he leaves. But he does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large or to any segment of it that the visitor may select.” When Ninth Circuit Judge Shirley M. Hufstedler wrote these words in 1971 about surreptitious recordings made by newsmen, she probably had no idea that a global pandemic would give new meaning to her words.

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Tattoos-copyright-1184219605-300x200You’re in the midst of doomscrolling, when you decide to take a mental health break and post a photo to your socials from a happier (pre-pandemic) time. As you search through your photos, you find a great one of yourself that a friend-of-a-friend took. You’re about to post the photo when you remember a post that you read on this very blog about the potential copyright consequences of using a photo taken by someone else. You aren’t a celebrity—yet—but you decide that it’s best to use a photo that you took yourself. A couple of minutes later you post a throwback selfie in which you are smiling as you proudly show off your very first tattoo. It took you days to decide on the design and hours for the tattoo artist to bring to life. Even today you still get compliments on it, and some people have even recognized you solely based on the fact that you have a very big and very prominent tattoo of Pegasus riding a dragon while eating rainbow sherbet and shooting lasers from a cat. Your post starts racking up likes from your friends (and followers)—when all of the sudden you get a DM from the tattoo artist informing you that she never authorized you to display her copyrighted work on social media and demanding that you take the photo down. Unfortunately, now you’ll be spending the rest of your evening trying to figure out how any rights your tattoo artist has in works permanently inked upon your body may impact your own rights to use (and license) your own likeness.

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GettyImages-508548025-facial-recognition-bias-e1601678544297-300x230As we’ve discussed in this space previously, the effect of AI bias, especially in connection with facial recognition, is a growing problem. The most recent example—users discovered that the Twitter photo algorithm that automatically crops photos seemed to consistently crop out black faces and center white ones. It began when a user noticed that, when using a virtual background, Zoom kept cropping out his black coworker’s head. When he tweeted about this phenomenon, he then noticed that Twitter automatically cropped his side-by-side photo of him and his co-worker such that the co-worker was out of the frame and his (white) face was centered. After he posted, other users began performing their own tests, generally finding the same results.

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GettyImages-1127138955-photo-copyright-300x264In a recent social gathering, your friends took a number of photos and circulated it to the group. You see that one shot by a friend is a particularly great photo of you. You repost to your social media account to share with the world. It would generally be safe to assume that nothing will come of this, much less a copyright infringement lawsuit against you by your friend who took the shot. For celebrities, this is not always the case. In the past few years, there have been many lawsuits filed for copyright infringement by photographers and paparazzi against celebrities that reposted photos of themselves that they took off the internet.

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Ninety percent of the digital data in the world has been generated in the past two years, and with the growth of search engines, social media sites, smart cars and the Internet of Things (IoT), that pace is just accelerating. One possible solution lies in our very DNA. In “When Will DNA Solve the Data Storage Crisis?” colleague Craig A. de Ridder explores the intriguing potential and developing technology of this application of the “DNA of Things” (DoT).

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As regulations and best practices regarding online terms continues to impose increasing requirements on operators of websites, apps and online services, a basic set of online terms can now encompass as many as half a dozen documents! One just needs to glance at the footer of most any website to see the array of policies that are now needed to minimally address commercial and legal considerations. A normal schema of online terms includes: Terms of Service, an Acceptable Use Policy, a Copyright/DMCA Policy, a Privacy Policy, a Cookie Policy, and a California Privacy Notice. All of these various policies typically wrap up into the Terms of Service. From a practical standpoint, and in some instances out of legal necessity, it is best to break these policies into separate documents and utilize hyperlinks and other embedded text to create a structure that can be navigated electronically. To date, this has seemed to be a reasonable approach and is particularly favored by web and app designers who strive to create clean screens with streamlined text.

But beware—nesting hyperlinks to various policies within a master set of terms can lead to trouble.

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tZERO-Logo-300x157With bitcoin prices rocketing nearly 300% from trough to peak when COVID-19 lockdowns were announced in March 2020 and then relaxed in July 2020, I thought I would revisit a blockchain company we discussed earlier last year to see how it has progressed and been valued by the financial community: Overstock.

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GettyImages-170729806-ai-bias-300x200As the world grapples with the impacts of the COVID-19 pandemic, we have become increasingly reliant on artificial intelligence (AI) technology. Experts have used AI to test potential treatments, diagnose individuals, and analyze other public health impacts. Even before the pandemic, businesses were increasingly turning to AI to improve efficiency and overall profit. Between 2015 and 2019, the adoption of AI technology by businesses grew more than 270 percent.

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GettyImages-543194887-deepfakes-election-298x300The 2020 election will be unprecedented in many respects. More people will be voting by mail, and there will likely be more democratic participation online than ever before. Internet platforms and communication services will become more influential forums as people are restricted from in-person conventions and debates. But even before the pandemic pushed these operations online, some lawmakers were already seeking to monitor misinformation in political discourse on the internet, specifically in the context of deepfakes. Deepfakes are manipulated photo, video or audio clips generated by computers, often with the assistance of artificial intelligence algorithms. They can make someone appear to say or do something that never actually happened or create realistic images of people who do not exist.

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DOJ-seal-300x300It has been a little more than a month since the Department of Justice (DOJ) made their formal recommendations to lawmakers on how to limit the scope of the broad immunity given to interactive computer service companies, i.e., social media and tech companies, under Section 230 of the Communications Decency Act of 1996. Originally, the drafters of the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (EARN IT Act) led by Sen. Lindsey Graham intended to comply with the DOJ’s request by structuring the bill as a series of amendments to Section 230 that would turn the legal shield into an incentive-based protection. Essentially mirroring category one of the DOJ report, the original incentive system of the EARN IT Act would have meant that an interactive computer service company would only receive Section 230 immunity from civil liability for illicit content posted by a site’s users if the company took affirmative steps to ensure that its site was not facilitating the dissemination of child sex abuse materials.

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