Header graphic for print

Socially Aware Blog

The Law and Business of Social Media

Supreme Court Rules Cheerleading Uniform Designs Are Copyrightable

Posted in Copyright, IP, Litigation, Trademark

CheerUniformsDecisionImageOn March 22, 2017, the Supreme Court held in Star Athletica, LLC v. Varsity Brands that design elements of cheerleading uniforms may be protected under the Copyright Act. The 6-2 decision, written by Justice Thomas, clarified the scope of protection afforded to clothing designs and, more broadly, designs on useful articles.

Varsity Brands, Inc.—the country’s largest cheerleading supplier—owns more than 200 copyright registrations for two-dimensional designs consisting of combinations of chevrons, stripes, and other colorful shapes for its cheerleading uniforms. At issue in this case were the five pictured designs.

Varsity Brands sued Star Athletica, LLC, an upstart competitor, for copyright infringement. The District Court for the Western District of Tennessee granted Star Athletica’s motion for summary judgment, holding that the designs could not be conceptually or physically separated from the uniforms, and they were therefore ineligible for copyright protection. The Copyright Act makes “pictorial, graphic, or sculptural features” of the “design of a useful article” eligible for copyright protection as artistic works only if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” The Sixth Circuit reversed, concluding that the graphics were “separately identifiable” and “capable of existing independently” of the uniforms.

In affirming, the Supreme Court laid out a two-part test for when a feature incorporated into the design of a useful article is eligible for copyright protection: When the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article; and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. “To be clear, the only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art,” the Court explained. “Respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear.” Continue Reading

Delaware Paves the Way for Blockchain Technology

Posted in Blockchain

Home Automation 23Blockchain has been a hot buzzword in tech circles for some time, and, increasingly, we’re seeing companies—even Fortune 500 companies—announce blockchain-related initiatives.

One particular area of interest to corporations is the use of blockchain not for Bitcoin or other cryptocurrencies, but for the creation and management of corporate records, and for the delivery of notices to investors. However, regulatory uncertainties have dampened the use of blockchain for such purposes.

This may be changing. Following last May’s announcement of the “Delaware Blockchain Initiative” by former Delaware Governor Jack Markell, the Corporate Council of the Corporation Law Section of the Delaware State Bar Association on March 13, 2017, released groundbreaking draft legislation proposing to amend several sections of the Delaware General Corporation Law (DGCL) in an attempt to clarify the application of existing laws to, and facilitate the use of, blockchain technology for various corporate purposes.

Reading a 43-page draft bill may not be an immediate priority for most of us; we wrote this blog post to distill the most significant aspects of the proposed legislation which, if approved, would be introduced to the Delaware General Assembly and enacted by August 2017.

This post covers the proposed legislation as it relates to the use of blockchain technology for (1) the creation and administration of corporate records and (2) the electronic transmission of stockholders’ communications. Continue Reading

Overview of Emerging Cybersecurity Issues

Posted in Compliance, Data Security

In the most recent edition of his CyberSide Chat series, Socially Aware contributor Andy Serwin discusses emerging cybersecurity issues including:

  • The need to strike a balance between the efficiencies of the Internet of Things and the increased cyberattack vulnerability that usually goes along with using extra devices;
  • The pre- and post-cyber-breach steps a company can take to mitigate the damage that could be caused by a theft of the company’s data or an attempt to shut down its systems;
  • The factors companies should consider when determining how much of their resources to dedicate to preventing a cyberattack.

Check out Andy’s insightful presentation:

Social Links: YouTube reaches major milestone; Google tries to ferret out hate speech; justices consider constitutionality of barring social media access

Posted in Cyberbullying, Ethics, First Amendment, Free Speech, Marketing, Right To Be Forgotten

Google unveiled a new tool designed to combat toxic speech online by assessing the language commenters use, as opposed to the ideas they express.

Is a state law banning sex offenders from social media unconstitutional? Based on their comments during oral arguments in Packingham v. North Carolina, some U.S. Supreme Court justices may think so.

Facebook is implementing a feature that uses artificial intelligence to identify posts reflecting suicidal inclinations.

Facebook Analytics for Apps reached a significant milestone: It now supports more than 1 million apps.

So did YouTube, which recently surpassed 1 billion hours of video per day.

As many as 15% of regular social media usersthat is, people, not businesses—are buying “likes” on social media?!

The New York State Commission on Judicial Conduct’s warning to judges about their use of social media was prompted by this case in which a St. Lawrence County town judge used Facebook to criticize the prosecution of a town council candidate.

More than 40% of Americans incessantly check their gadgets for new messages and social media status updates, and it might be making them a little crazy.

University of Manchester researchers have developed a computer that is faster than any other because its processors are made of DNA, which allows the computer to replicate itself.

Mobile marketers can significantly increase the open rates of their push notifications by doing one simple thing: including emojis.

A woman whose “starter marriage” was covered by the New York Times wedding announcements section in 1989 might have been spared some angst if the United States had a Right to Be Forgotten, as Europe does.

Watch Out: The Federal Trade Commission Continues to Watch the (Alleged) Watchers

Posted in Data Security, Internet of Things, Privacy

BigBrotherEye-GettyImages-149355675-600pxIf your company collects information regarding consumers though Internet-connected devices, you will want to take note of the Federal Trade Commission’s (FTC) recent privacy-related settlement (brought in conjunction with the New Jersey Attorney General) with smart TV manufacturer Vizio, Inc. The settlement is significant for four reasons:

  • The FTC reinforces the position it has taken in other actions that the collection and use of information in a way that would surprise the consumer requires just-in-time notice and choice in order to avoid a charge of deception and/or unfairness under Section 5 of the FTC Act.
  • The FTC takes the position that television viewing activity constitutes sensitive data. This marks a departure from its approach of limiting sensitive data to information that, for example, can facilitate identity theft, precisely locate an individual, is collected online from young children or relates to matters generally considered delicate (such as health information).
  • The settlement includes a payment of $1.5 million to the FTC (as well as payment of civil penalties to New Jersey), but the legal basis for the FTC payment is not stated. This could suggest that the FTC will more aggressively seek to obtain injunctive monetary relief in Section 5 cases.
  • Acting Chairwoman Maureen Ohlhausen explicitly noted in a concurring statement her skepticism regarding both the allegation that TV viewing data is “sensitive” and that the FTC’s complaint adequately established that the practices at issue constitute “substantial injury” under the unfairness prong of Section 5.

Leaving aside what the chairwoman’s concurrence may portend for future enforcement efforts, the FTC again seems to be using allegedly bad facts about privacy practices to push the envelope of its authority. Accordingly, with the Internet of Things boom fueling a dramatic increase in the number of Internet-connected devices, companies that either collect information via such devices or make use of such collected information should consider the implications of this enforcement action.

Continue Reading

Social Links: Google Maps gets social; Twitter puts trolls in time out; today’s teens take to chat rooms

Posted in Cyberbullying, Ethics, Wearable Computers

New York City’s Conflicts of Interest Board has issued guidelines prohibiting elected officials from using official social media accounts for political purposes or having their staff draft content for their personal social media accounts.

Congress has begun paving the way for the deployment of autonomous vehicles.

Twitter has begun temporarily limiting its account features for users the company identifies as abusive.

Google Maps now allows users to create lists and share them with followers.

U.S. and Canadian companies can post job openings to their Facebook pages for free.

Thanks to millennials, online chat rooms are making a comeback.

With Tinder’s acquisition of the video-sharing startup called Wheel, video dating is likely in store for a revival, too.

Yelp will be offering a new feature that allows users to ask questions about a venue.

Reportedly used by political operatives ranging from White House staffers to EPA workers, encrypted messaging apps have become popular in Washington—and it’s raising legal questions.

Warren Buffet is getting into the wearables game.

Some tips for small businesses on how to manage a social media presence.

Google Ordered to Comply with Warrant for Foreign-Stored User Data

Posted in Data Security, Privacy, Stored Communications Act

Gradient and transparent effect used.

In a major development for cloud and other data storage providers, and further complicating the legal landscape for the cross-border handling of data, a Federal Magistrate Judge in the Eastern District of Pennsylvania ruled for the Department of Justice and ordered Google, Inc., to comply with two search warrants for foreign-stored user data. The order was issued on February 3, 2017 pursuant to the Stored Communications Act, (SCA), and the reasoning of the Court rested heavily on the court’s statutory analysis of the SCA. The ruling is a marked departure from a recent, high-profile Second Circuit decision holding that Microsoft could refuse to comply with a similar court order for user data stored overseas.

The SCA regulates how service providers like Google and Microsoft who store user data can disclose user information. The Magistrate Judge issued two warrants under the SCA for emails sent from Google users in the United States to recipients in the United States. Google refused to fully comply, invoking Microsoft, and the Government moved to compel. In its briefing, Google argued that the SCA can only reach data stored in the United States and that, because Google constantly shuffles “shards” of incomplete user data between its servers across the world, Google could never know for certain what information is stored domestically and what is stored overseas. Therefore, Google argued, the data sought under the warrants was beyond the reach of the SCA. Continue Reading

The Hague District Court’s WhatsApp Decision Creates Concerns for Mobile App Developers

Posted in European Union, Privacy

GettyImages-169937464_SMALLCan the mere offering of a mobile app subject the provider of such app to the privacy laws of countries in the European Union (EU)—even if the provider does not have any establishments or presence in the EU? The answer from the District Court of The Hague to that question is yes. The court confirmed on November 22, 2016, that app providers are subject to the Dutch Privacy Act by virtue of the mere offering of an app that is available on phones of users in the Netherland, even if they don’t have an establishment or employees there.

Context. EU privacy laws generally apply on the basis of two triggers: (i) if a company has a physical presence in the EU (in the form of an establishment or office or otherwise) and that physical presence is involved in the collection or other handling of personal information; or (ii) if a company doesn’t have a physical presence but makes use of equipment and means located in the EU to handle personal information.

Continue Reading

FTC Report Reinforces the Rules for Cross-Device Tracking

Posted in FTC, Marketing

Devices_482856241Well over a year after holding a workshop addressing privacy issues associated with cross-device tracking, Federal Trade Commission (FTC) staff have issued a report. The report sets the stage by describing how cross-device tracking works, noting its “benefits and challenges,” and reviewing (and largely commending) current industry self-regulatory efforts.

The report also makes recommendations, which—while building upon the staff’s traditional themes of transparency and choice—do not introduce any materially new suggestions for compliance.

The staff’s recommendations do not have the force of law, but they do indicate the steps that the staff believes a company should take in order to avoid a charge of unfairness or deception under Section 5 of the FTC Act.

A Quick Review of Cross-Device Tracking

As more consumers utilize multiple devices in their daily lives, more and more companies are using new technologies to attempt to ascertain that multiple devices are connected to the same person. This is generally done through the use of either deterministic information (e.g., by recognizing a user through the log-in credentials he or she uses across different devices) or probabilistic information (i.e., by inferring that multiple devices are used by the same person based on information about the devices, such as IP address, location, and activities on the devices).

Continue Reading