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This is the famous Monkey selfie.

I confess: I have mixed emotions regarding the iconic “monkey-selfie” photo and all the hubbub it has created.

Don’t get me wrong; I think monkeys are wonderful, and the photo deserves its iconic status. Who can resist smiling while viewing that famous image of Naruto, the macaque monkey who allegedly snapped the self-portrait?

And the monkey selfie has been a boon to legal blogs. Our own posts regarding the photo have been among the most viewed content on Socially Aware (one of our posts prompted a call from my mother, who felt strongly that Naruto should be entitled to a copyright in the photo).

But, let’s face it, in an era where technology disruption is generating so many critical and difficult copyright issues, the law relevant to the monkey selfie is pretty straightforward, at least in the United States. As the U.S. Copyright Office states in its Compendium II of Copyright Office Practices, for a work to be copyrightable, it must “owe its origin to a human being,” and that materials produced solely by nature, by plants or by animals do not count. U.S. courts have reached the same conclusion. (Although I note that David Slater, the nature photographer whose camera was used to take the photo, claims that he—and not the macaque—is in fact the author of the photo for copyright purposes.) Continue Reading Monkey-Selfie Case Returns—To Court & (Maybe) a Theater Near You

Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may depend on where you sue—just ask Google. The U.S. District Court for the Northern District of California recently handed the company a victory over plaintiff Equustek Solutions Inc. in what has turned into an international battle where physical borders can have very real consequences on the Internet.

The dispute began when a rival company, Datalink, allegedly misappropriated Equustek’s trade secrets in developing competing products. Equustek also alleged that Datalink misled customers who thought they were buying Equustek products. In 2012, Equustek obtained numerous court orders in Canada against Datalink. Datalink refused to comply, and Canadian court issued an arrest warrant for the primary defendant, who has yet to be apprehended. Continue Reading The Coming Border Wars: U.S. Court Decision Refusing to Enforce Canadian Court Order Highlights the Growing Balkanization of the Internet

In a decision that has generated considerable controversy, a federal court in New York has held that the popular practice of embedding tweets into websites and blogs can result in copyright infringement. Plaintiff Justin Goldman had taken a photo of NFL quarterback Tom Brady, which Goldman posted to Snapchat. Snapchat users “screengrabbed” the image for use in tweets on Twitter. The defendants—nine news outlets—embedded tweets featuring the Goldman photo into online articles so that the photo itself was never hosted on the news outlets’ servers; rather, it was hosted on Twitter’s servers (a process known as “framing” or “inline linking”). The court found that, even absent any copying of the image onto their own servers, the news outlets’ actions had resulted in a violation of Goldman’s exclusive right to authorize the public display of his photo.

If legislation recently introduced in California passes, businesses with apps or websites requiring passwords and enabling Golden State residents younger than 18 to share content could be prohibited from asking those minors to agree to the site’s or the app’s terms and conditions of use.

After a lawyer was unable to serve process by delivering court documents to a defendant’s physical and email addresses, the Ontario Superior Court granted the lawyer permission to serve process by mailing a statement of claim to the defendant’s last known address and by sending the statement of claim through private messages to the defendant’s Instagram and LinkedIn accounts. This is reportedly the first time an Ontario court has permitted service of process through social media. The first instance that we at Socially Aware heard of a U.S. court permitting a plaintiff to serve process on a domestic, U.S.-based defendant through a social media account happened back in 2014.

Videos that impose celebrities’ and non-famous people’s faces onto porn performers’ to produce believable videos have surfaced on the Internet, and are on the verge of proliferating. Unlike the non-consensual dissemination of explicit photos that haven’t been manipulated—sometimes referred to as “revenge porn”—this fake porn is technically not a privacy issue, and making it illegal could raise First Amendment issues.

By mining datasets and social media to recover millions of dollars lost to tax fraud and errors, the IRS may be violating common law and the Electronic Communications Privacy Act, according to an op-ed piece in The Hill.

A woman is suing her ex-husband, a sheriff’s deputy in Georgia, for having her and her friend arrested and briefly jailed for posting on Facebook about his alleged refusal to drop off medication for his sick children on his way to work. The women had been charged with “criminal defamation of character” but the case was ultimately dropped after a state court judge ruled there was no basis for the arrest.

During a hearing in a Manhattan federal court over a suit brought by seven Twitter users who say President Trump blocked them on Twitter for having responded to his tweets, the plaintiffs’ lawyer compared Twitter to a “virtual town hall” where “blocking is a state action and violates the First Amendment.” An assistant district attorney, on the other hand, analogized the social media platform to a convention where the presiding official can decide whether or not to engage with someone. The district court judge who heard the arguments refused to decide the case on the spot and encouraged the parties to settle out of court.

Have your social media connections been posting headshots of themselves alongside historical portraits of people who look just like them? Those posts are the product of a Google app that matches the photo of a person’s face to a famous work of art, and the results can be fun. But not for people who live in Illinois or Texas, where access to the app isn’t available. Experts believe it’s because laws in those states restrict how companies can use biometric data.

The stock market is apparently keeping up with the Kardashians. A day after Kim Kardashian’s half-sister Kylie Jenner tweeted her frustration with Snapchat’s recent redesign, the company’s market value decreased by $1.3 billion.

The music industry came out on top in one of its first attempts to hold an internet service provider liable for its subscribers’ unauthorized peer-to-peer file sharing.

The decision, handed down by the Fourth Circuit Court of Appeals in a dispute between BMG Rights Management and Cox Communications, outlines the obligations an ISP must fulfill to receive safe harbor protection under the Digital Millennium Copyright Act for a subscriber’s infringement. It also explains when an ISP can be held contributorily liable for its subscribers’ actions.

Read my full analysis here.

Happy 2018 to our readers! It has become a Socially Aware tradition to start the New Year with some predictions from our editors and contributors. With smart contracts on the horizon, the Internet of Things and cryptocurrencies in the spotlight, and a number of closely watched lawsuits moving toward resolution, 2018 promises to be an exciting year in the world of emerging technology and Internet law.

Here are some of our predictions regarding tech-related legal developments over the next twelve months. As always, the views expressed are not to be attributed to Morrison & Foerster or its clients.

From John Delaney, Co-Founder and Co-Editor, Socially Aware, and Partner at Morrison & Foerster:
Regarding Web Scraping

Web scraping is an increasingly common activity among businesses (by one estimate, web-scraping bots account for as much as 46% of Internet traffic), and is helping to fuel the “Big Data” revolution. Despite the growing popularity of web scraping, courts have been generally unsympathetic to web scrapers. Last August, however, web scrapers finally received a huge victory, as the U.S. District Court for the Northern District of California enjoined LinkedIn from blocking hiQ Labs’ scraping of publicly available user profiles from the LinkedIn website in the hiQ Labs, Inc. v. LinkedIn Corp. litigation. The case is now on appeal to the Ninth Circuit; although my sense is that the Ninth Circuit will reject the broad scope and rationale of the lower court’s ruling, if the Ninth Circuit nevertheless ultimately sides with hiQ Labs, the web scraper, the decision could be a game changer, bringing online scraping out of the shadows and perhaps spurring more aggressive uses of scraping tools and scraped data. On the other hand, if the Ninth Circuit reverses, we may see companies reexamining and perhaps curtailing their scraping initiatives. Either way, 2018 promises to bring greater clarity to this murky area of the law.

Regarding the Growing Challenges for Social Media Platforms

2017 was a tough year for social media platforms. After years of positive press, immense consumer goodwill and a generally “hands off” attitude from regulators, last year saw a growing backlash against social media due to a number of reasons: the continued rise of trolling creating an ever-more toxic online environment; criticism of social media’s role in the dissemination of fake news; the growing concern over social media “filter bubbles” and “echo chambers”; and worries about the potential societal impact of social media’s algorithm-driven effectiveness in attracting and keeping a grip on our attention. Expect to see in 2018 further efforts by social media companies to get out ahead of most if not all of these issues, in the hopes of winning over critics and discouraging greater governmental regulation.

Regarding the DMCA Safe Harbor for Hosting of User-Generated Content

The backlash against social media noted in my prior item may also be reflected to some extent in several 2017 court decisions regarding the DMCA safe harbor shielding website operators and other online service providers from copyright damages in connection with user-generated content (and perhaps in the CDA Section 230 case law discussed by Aaron Rubin below). After nearly two decades of court decisions generally taking an ever more expansive approach to this particular DMCA safe harbor, the pendulum begun to swing in the other direction in 2016, and this trend picked up steam in 2017, culminating in the Ninth Circuit’s Mavrix decision, which found an social media platform provider’s use of volunteer curators to review user posts to deprive the provider of DMCA safe harbor protection. Expect to see the pendulum continue to swing in favor of copyright owners in DMCA safe harbor decisions over the coming year.

Regarding Smart Contracts

Expect to see broader, mainstream adoption of “smart contracts,” especially in the B2B context—and perhaps litigation over smart contracts in 2019 . . . .

From Aaron Rubin, Co-Editor, Socially Aware, and Partner at Morrison & Foerster:
Regarding the CDA Section 230 Safe Harbor

We noted previously that 2016 was a particularly rough year for Section 230 of the Communications Decency Act and the immunity that the statute provides website operators against liability arising from third-party or user-generated content. Now that 2017 is in the rear view mirror, Section 230 is still standing but its future remains imperiled. We have seen evidence of Section 230’s resiliency in recent cases where courts rejected plaintiffs’ creative attempts to find chinks in the immunity’s armor by arguing, for example, that websites lose immunity when they use data analytics to direct users to content, or when they fail to warn users of potential dangers, or when they share ad revenue with content developers. Nonetheless, it is clear that the knives are still out for Section 230, including in Congress, where a number of bills are under consideration that would significantly limit the safe harbor in the name of combatting sex trafficking. I predict that 2018 will only see these efforts to rein in Section 230 increase. Continue Reading 2018: Predictions From Socially Aware’s Editors and Contributors

As part of a new tracking system, the Department of Homeland Security will be keeping records of immigrants’ social media handles and search results.

Russia to Facebook: Turn over user-information or risk being blocked.

Google is ending a policy that required news sites to allow users at least one free article-click.

A new social media platform called Steemit will pay users in cryptocurrency for posting, commenting, or liking content—and its market capitalization is around $294 million.

Not everyone is a fan of Twitter’s new 280-character limit.

A type of biometric payment system that identifies a checking or credit account owner based on the unique vein-pattern in his or her fingertip would allow consumers to shop without cash, cards or devices.

Initial coin offerings (ICOs) are allowing startups that develop applications for blockchain technology to raise money without giving up the equity or decision-making power they would have to surrender to venture capitalists.

In this Wired op-ed, a former prisoner argues that allowing inmates controlled social media use might reduce recidivism and help the cell phone contraband problem.

Young kids are the new social media celebrities—and the law isn’t clear on whether they’re owed any of the money that their parents collect as a result of the viral videos.

When a social media celebrity famous for posting photos of herself posing in fitness gear changed the direction of her Instagram account to one that promotes body acceptance, she initially lost 70,000 followers, but she ultimately wound up with more fans than ever.

Kudos to Netflix’s in-house counsel for crafting a cease-and-desist letter for brand marketing in the modern age.

With over one billion websites on the Internet, and 211 million items of online content created every minute, it should come as no surprise that content curation is one of the hottest trends in the Internet industry. We are overwhelmed with online content, and we increasingly rely on others to separate the good from the bad so that we can make more efficient use of our time spent surfing the web.

Consistent with this trend, many websites that host user-generated content are now focused on filtering out content that is awful, duplicative, off-topic, or otherwise of little interest to site visitors. And these sites often find that humans—typically passionate volunteers from the sites’ user communities—are better than algorithms at sorting the wheat from the chaff.

Of course, any website that deals with user-generated content needs to consider potential copyright liability arising from such content. We’ve discussed in past Socially Aware blog posts the critical importance of Section 512(c) of the Digital Millennium Copyright Act (the DMCA) to the success of YouTube, Facebook and other online platforms that host user-generated content. By providing online service providers with immunity from monetary damages in connection with the hosting of content at the direction of users, Section 512(c) has fueled the growth of the U.S. Internet industry. Continue Reading Could the Use of Online Volunteers and Moderators Increase Your Company’s Copyright Liability Exposure?

GettyImages-183313080With over one billion websites on the Internet, and 211 million items of online content created every minute, it should come as no surprise that content curation is one of the hottest trends in the Internet industry. We are overwhelmed with online content, and we increasingly rely on others to separate good content from bad content so we can make more efficient use of our time spent surfing the web.

Consistent with this trend, many websites that host user-generated content are now focused on filtering out content that is awful, duplicative, off-topic or otherwise of little interest to site visitors. And these sites are often finding that humans—typically passionate volunteers from these sites’ user communities—do a better job than algorithms in sorting the wheat from the chaff.

Of course, any website that deals with user-generated content needs to worry about potential copyright liability arising from such content. We’ve discussed in past Socially Aware blog posts the critical importance of Section 512(c) of the Digital Millennium Copyright Act (DMCA) to the success of YouTube, Facebook and other online sites that host user-generated content. By providing online service providers with immunity from monetary damages in connection with the hosting of content at the direction of users, Section 512(c) has fueled the growth of the U.S. Internet industry. Continue Reading Could the Use of Online Volunteers and Moderators Increase Your Company’s Copyright Liability Exposure?

GettyImages-179131621-600pxOne of the most significant legal concerns for Internet service providers is the risk of exposure to liability for the copyright infringements of their users. The concern is not unreasonable. Because Internet service providers can be held secondarily liable for the infringements of their users, and because this liability can come with statutory damages attached, the service provider’s potential economic exposure can be significant, especially for Internet service providers engaged in the transmission or hosting of user-generated content.

Moreover, the principle of joint and several liability may further increase this potential economic exposure for Internet service providers.

Under Section 504(c) of the Copyright Act, which permits a range of statutory damages for each infringed work, the principle of joint and several liability can make a defendant liable for multiple statutory damage awards for infringing a single work. The Ninth Circuit’s decision in Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc. two decades ago illustrates the operation of this principle.

The defendants in Columbia Pictures were three television stations that had directly infringed upon plaintiff’s copyrights independently of each other. Consequently, the company that owned the three stations was secondarily liable for their infringement. Relying in part on legislative history, the court held that the plaintiff was entitled to separately calculated statutory awards against each of the three stations as they were separate infringers, and that, with respect to these awards, each of the three stations was jointly and severally liable with their common owner. Continue Reading Limiting Statutory Damages in Internet Copyright Cases

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 Supreme Court Rules Cheerleading Uniform Designs Are Copyrightable