Addressing legal issues with the latest technological developments and social media trends.
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Cyberattacks are on the rise—so much that we seem to hear about a high-profile hack more often than it probably rains in most parts of California. Although reputational damage from a cyberattack can be scarring, a recent U.S. Third Circuit Court decision provides a reminder that the pain can come in many forms. In Federal Trade Commission v. Wyndham Worldwide Corp, the Court confirmed that the FTC can levy expensive fines on a business for failing to adequately protect consumer information. If there wasn’t sufficient reason before, the Third Circuit opinion should convince many who ignored cybersecurity to take a more proactive approach.

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In 2007, Stephanie Lenz posted a 29-second video to YouTube of her baby dancing in the kitchen with Prince’s “Let’s Go Crazy” playing in the background. Claiming use of their song amounted to copyright infringement, Universal Music Corp. (Universal) sent YouTube a takedown notice under the Digital Millennium Copyright Act (DMCA). Lenz, with representation provided by the Electronic Frontier Foundation (EFF), sued Universal on the premise that Universal had abused the DMCA takedown provisions by violating Section 512(f), which bars misrepresentations of unauthorized use. According to Lenz, before sending its notice, they failed to take into account the possibility that Lenz’s video was shielded by the fair use doctrine. Last week, in Lenz v. Universal, a.k.a. the “dancing baby case,” the Ninth Circuit sided with Lenz in a ruling that will impose new burdens on copyright holders policing hosted content.

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When Kim Kardashian speaks, the FDA listens.

Or, more precisely, when Kardashian, who has 46.8 million followers on Instagram, posts an enthusiastic endorsement—and advertisement—on the social media platform for Diclegis, a prescription drug for treating morning sickness, the agency takes notice (and gives it). In a letter to Duchesnay Inc., the drug’s makers, the FDA reprimanded the company for the “false or misleading” post and requested not only that Duchesnay take down the post, but that it submit a “comprehensive plan of action to disseminate truthful, non-leading, and complete corrective messages” about the drug.

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You hire a web designer to create a website for your business. In the background, the designer uses stock photography to beautify the page. Stock photography comprises copyrighted images—often presented in searchable online databases—that can be licensed for specific uses. This avoids the need to hire an actual photographer. The designer assures you that he has the rights to use the stock images, or more specifically, he has properly obtained a license to use the photos. Does that mean you can use those photos in your website without violating any copyrights in the photos? The answer is most likely “no.”

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At the recent Apple iPhone unveiling event, we learned that you can Peek at it with a light press on your iPhone screen and Pop into it by pressing a little deeper. And just like that, Apple unleashed a new namespace of gestures distinguished by different amounts of force applied by the users. Developers will soon create 3D input gestures characterized both by where a user’s finger moves on screen and by how hard the user presses. For instance, you might scroll faster through your contact list based on how hard you press while drawing your finger across the screen, or control the speed of your virtual racecar based on the amount of force you apply. If history is any guide, expect savvy businesses to lay claim to the 3D gesture space with intellectual property.

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A party’s right to privacy has always been an important and sometimes limiting factor in the resolution of discovery disputes. Social media platforms, which allow users to select the extent with whom they share their network, posts and photos, inevitably create a conflict between what users perceive as “private” content (based on settings used to control who they share information with) and the fact that all content that is relevant to a particular lawsuit may be discoverable. Litigants are finding that in resolving discovery disputes involving social media, the technological platforms may be new but traditional discovery rules still apply. Below are four cases that have helped establish a familiar patch of terrain in a legal landscape that has been remade in so many other ways by social media.

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Oh, the once humble hashtag (or pound sign, number sign, octothorpe, etc.). For so long a symbol both ubiquitous and free from controversy, its new life as a go-to signifier of discussions and trending topics on Twitter has made it relevant in ways no one could have predicted a decade ago. For proof, one only need look to the courts, where a recent spat between two competitors highlights the interplay between social media symbology, such as the hashtag, and intellectual property laws (especially trademark law).

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As social media companies and businesses rely more heavily on their social media platforms to make important company announcements, state law claims asserting negligent misrepresentation or failure to adequately disclose information relating to announcements made on these outlets are bound to arise.

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With unmanned aerial vehicles (UAV) (also called drones) anticipated to become a multi-billion dollar industry in a few years, many are betting that drone gaming will explode as the next big thing in competitive entertainment. It is not hard to see why: with the aid of first-person view (FPV) headsets and camera-mounted drones, drone gaming allows otherwise gravity-bound users to experience flight at exhilarating speeds—sometimes up to 100 mph. Despite their undeniable appeal and popularity, competitive drone gaming may stay grounded until Federal Aviation Administration (FAA) guidelines and regulations are more favorable. Nevertheless, there are a number of ways that drone manufacturers and drone gaming organizers can facilitate legal drone gaming competitions that may avoid the need of going through an FAA approval process—this post explores a few considerations.

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As social media platforms continue to find new ways to allow users to share, post, and forward nonoriginal content and users become more engaged in the practice, the platforms hosting the content and disgruntled original content owners are bound to clash. In the past, Google, YouTube and others have been targeted for allowing users to post copyright-protected material, and ordered to remove the objected to material. A recent case filed in the Central District of California involves similar allegations against social media powerhouse Twitter. In Pierson v. Twitter, Inc., the plaintiff alleges that users tweeted her copyrighted image and that Twitter failed to remove the infringing material.

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