Technologist - The FindLaw Legal Technology Blog

January 2017 Archives

The Ninth Circuit hung fast to its volitional conduct rule in copyright claims last week, while making it a bit harder for copyright holders to go after online service providers for copyright infringement. In a dispute over pornography posted on Usenet (yes, apparently Usenet still exists), the Ninth reaffirmed that plaintiffs must show "volitional conduct" by tech services accused of infringing their copyrights. Simply allowing users to exchange infringing works isn't enough.

The Supreme Court's 2014 Aereo ruling, which found a copyright violation when a company rebroadcast TV programs over the internet, doesn't change the Ninth's long-standing rule, the court explained.

Protection of Climate Change Data

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

The vast majority of scientists who have studied the issue have concluded that global warming is happening and that such warming has been caused to a large extent by humans. For that reason, not long ago, many countries signed onto the Paris Agreement on Climate Change in an effort to deal with this threat to life on the planet.

However, there is concern that plans to deal with global warming may be halted. Why? Because it appears that President Trump is bringing into US government people who reportedly have expressed doubt about climate change, or at least who have been in favor of less environmental regulations for businesses. Indeed, according to a recent report by Public Radio International, a Trump transition team member has said that new studies and data by EPA scientists will be put on hold.

Star Trek Fan Fiction Suit Settles

This notable fan fiction case has been pending in federal court for about a year. Paramount, which owns the rights to the Star Trek television and movie franchise, sued a small studio for producing a "fan fiction" film called "Axanar" based on the popular sci-fi enterprise.

According to the recent settlement, the fan-film producers can finish their movie but cannot make money from it, and the movie can only last a total of 30 minutes.

It was a bittersweet resolution for Alec Peters and Axanar Productions, Inc., but they joined in a press release announcing the settlement last week: "Paramount and CBS would like Star Trek fans, with their boundless creativity and passion, to 'Live Long and Prosper.'"

Dispel Cybersecurity Myths at the Law Firm

In Greek mythology, Phobos was the bloody god of fear in war. Worshipers built him a temple of skulls. His name brought panic and flight.

Thousands of years later, Phobos spawned the word "phobias." It means an irrational fear of something or someone. Today, fears of being hacked and encountering cyber-terrorism have created their own myths.

The cybersecurity threats are real, but not all fears were created equal. Here are a few myths:

You've written a song -- a successful one, maybe. Long after it has fallen off the charts, it's picked up and sampled in a new hit. Suddenly, it's showing up in commercials, with your vocals highlighted, but without your permission.

Most lawyers would recommend pursuing a copyright claim, but that's not the path being taken by Jerome Lawson, lead singer of The Persuasions, whose 1971 song "Good Times" was sampled in Jaime xx's "I Know There's Gonna Be (Good Times)" and subsequently used to advertise the iPhone 6. Lawson, who filed suit against Apple on Tuesday, claims the use violates his right of publicity -- a novel, and unusual, approach to the sampling dispute.

Tech Tips to Protect Client Confidentiality

If there is one thing we should learn from the 1.5 billion email hack at Yahoo, it's that email is not secure.

Many Yahoo users responded by changing their passwords, as the company advised, but it was a bit like closing the barn door after the horse got out. Other subscribers cancelled their accounts, perhaps contributing to the delay in Verizon's negotiations to purchase Yahoo.

In any case, it's a problem that is not going away because hackers and cyber-terrorists are not going away. For lawyers duty-bound to protect client confidentiality, it's even a bigger problem.

It was supposed to be over, the fight for net neutrality. Net neutrality is the idea that web users should have equal access to all internet content, without paid fast lanes for some websites, throttled speeds for others. And that idea triumphed when the Federal Communications Commission declared that the internet could be regulated like a public utility and subsequently issued its controversial Open Internet rules.

But the net neutrality fight is back. On Sunday, President Trump appointed Ajit Pai as chairman of the FCC. Pai, as an FCC commissioner, was a leading opponent of net neutrality and a rollback could be on the horizon. Here's some background, from the FindLaw archives, on why the net neutrality debate matters and what legal professionals need to know about it.

Top 3 Tips to Keep Legal Documents Secure

Not so long ago, cybersecurity was not even a word in the dictionary. Type the word into a Google search now and you will see more than 25 million results in less than a second.

Punctuated by the occasional 1.5 billion email hacks at Yahoo or other internet service provider, cybersecurity is probably the main concern in information technology today. It is the word in IT.

For attorneys, whose profession is built on tenets such as attorney-client confidentiality, cybersecurity is more important than ever. Client files, financial information, and endless stores of digital documents must be safeguarded.

Here are some top tips to keep your legal documents secure:

In July, the Second Circuit ruled that the federal government was not authorized to seize information stored on overseas servers under the Stored Communications Act. That law's warrant provisions, the three-judge panel held, don't apply extraterritorially, allowing Microsoft to quash a warrant for a customer's email data stored on its servers in Ireland.

It was a landmark decision, one that earned praise from privacy advocates and industry alike. And it will stand for now, after the Second Circuit split 4-4 on Tuesday on whether to rehear the case en banc. The deadlock means no rehearing and the case remains good law -- though the government could appeal to the Supreme Court.

New FCC Chair Reignites Net Neutrality Rules

Knock, knock, Neo.

Behind the screen you are looking at right now, another world is knocking.

It's not the Matrix; it's the internet. And it is blowing up in a debate about the new chairman of the Federal Communications Commission.

On one side, Comcast, AT&T, and ISP lobbyists are heaping praise on Ajit Pai, who was appointed FCC chairman by President Donald Trump. On the other side, consumer groups, public interest advocates, and the media are hating on the new appointee.

Another nor'easter is bearing down on New York. It's a balmy 37 degrees in Chicago. Even Los Angeles was hit by cold and rain yesterday, their equivalent of a snowpocalypse. Winter is still here, and it's not going anywhere for a while.

If the bad weather, lack of sun, and bulky coats are getting you down, we understand. It's bleak out there. But you don't just have to suffer through the winter doldrums. Here are a few handy apps that can bring a bit of a spring feeling into your life.

Uber Settles FTC Case for $20 Million

The FTC filed its complaint in federal court on Thursday, and Uber settled the case before the court closed the same day. That's about as fast as Uber gets, no disrespect intended to many Uber drivers out there.

To show its good faith, Uber will pay $20 million to be distributed to those drivers who received less than the average pay that the company has advertised. The FTC alleged the company falsely advertised on Craigslist and other websites that drivers earned between $15 and $29 an hour. In cities like Boston, Minneapolis, and Philadelphia, however, fewer than 10 percent of Uber drivers earned as advertised.

Shiva Ayyadurai wants to be known as the man who created email -- so much so that he once trademarked the phrase "the inventor of email." Ayyadurai says he came up with "the electronic mail system as we know it today," in 1978, when he was a 14-year-old boy in New Jersey. It's an assertion some support. Others, however, have questioned Ayyadurai's claims, stating that email existed well before 1978. Techdirt was just one blog to make that argument, and is currently facing a $15 million libel suit from Ayyadurai as a result.

Here's one interesting wrinkle from this complicated case: Ayyadurai's suit makes the somewhat puzzling claim that the U.S. government has legally recognized him as email's inventor -- because he registered the copyright for email.

If you give 1,000 monkeys 1,000 typewriters, sooner or later they'll get around to writing "Hamlet" -- or so the theory goes. But what if those primates do a little bit more than just stumble across "Alas, poor Yorick"? What if they come up with something wholly novel?

That's not too likely, at least not with typing primates, but it's already happening with creative computers and artificial intelligence. Rather than banging aimlessly until they randomly invent something, some of today's artificial intelligence programs are designed to be creative, giving rise to a new influx of "nonhuman inventors" -- and raising some interesting legal questions in the process.

Zuckerberg Testifies in Virtual Reality Case

If virtual reality cameras would have been permitted in the courtroom, Mark Zuckerberg might have appeared to be spinning on the witness stand.

The Facebook CEO testified in a Texas courtroom for the defense against a $2 billion lawsuit filed against Oculus, a company Facebook acquired for $3 billion dollars in 2014. ZeniMax Media alleges that Oculus stole code used in its virtual reality headset, but Zuckerberg said he knew little about the company.

"Like most people in the court I've never even heard of ZeniMax before," he said.

EU Considers If Future Robots Have Legal Rights

Should a robot be granted legal status with rights like human beings?

I know I saw a movie about this somewhere, but now it's a real-life question in the European Union. In a report by the Committee on Legal Affairs for the European Parliament, the government proposes laws on the creation and ethical treatment of smart robots.

The resolution says that robots, androids, and other forms of artificial intelligence are poised to "unleash a new industrial revolution, which is likely to leave no stratum of society untouched." There is a possibility that within a few decades, the report says, AI could surpass human intellectual capacity. (Maybe it was the movie, "AI.")

China Sees Nat'l Security Risk in Pokemon Go

So Pokemon doesn't go after all.

At least not for now in China, which is considering whether to allow the popular game to play out on phones there. Government officials are concerned about reports that Pokemon Go players are wandering around looking for Pokemon characters and carelessly causing accidents. In nearby Japan, two people were killed in car accidents last year because gamers were distracted.

In China, the government is also concerned about security problems with the app's geolocation services. When using the Pokemon Go app to navigate through a virtual world, players broadcast their locations in the real world.

The State Administration of Press, Publication, Radio, Film and Television, the government censor, said it bore "a high level of responsibility to national security and the safety of people's lives and property."

When a company experiences a data breach, Massachusetts wants the public to know. The commonwealth is currently expanding its public Data Breach Notification Archive to include information about security breaches effecting Massachusetts citizens -- going all the way back to 2007.

Massachusetts isn't alone. California, Oregon, and Washington all have laws allowing public access to data breach information. And those laws, some wager, could be great news for the plaintiff's bar.

Star Trek Fan Film 'Axanar' Goes to Trial for Copyright Infringement

Here's an IP lawsuit that's almost from another universe: Paramount v. Axanar is a copyright case against a start-up company that makes fan fiction based on the Star Trek television and movie series.

But it's more than a battle between the Star Trek copyright owners and anyone who may use their universe to create spin-offs. It's more than a battle between a Goliath (the movies alone have made more than $2 billion) and a Davidic start-up (which collected about $1 million through crowd-funding). It's a battle about the Klingons.

Yes, Klingons are entirely fictitious -- except perhaps for those fans who wear Klingon costumes to Trekkie conventions. But the Language Creation Society is real, and it recently jumped into the fray to protect the aliens' language.

President-elect Donald Trump announced that Rudy Giuliani would be serving the new administration as a cybersecurity advisor last week. As "cyberczar" the former mayor of New York will lead a government cybersecurity task force and conduct meetings "from time to time" with corporate leaders.

The post, which comes with no official title, is considered a consolation prize for Giuliani, long one of Trump's main backers. But the choice has also been criticized by many who view Giuliani as unprepared to advise the government on important technological issues, particularly in light of Russian hacking during the past election.

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Section 230 of the Communications Decency Act (CDA) generally grants broad immunity to Internet Service Providers (ISPs) with respect to third-party content posted on the ISP sites. The legislative history behind CDA Section 230 makes plain that Congress intended for the Internet to flourish for businesses and the US economy, and that intent would be thwarted if ISPs had the onerous duty to police and somehow regulate information and communications posted on their sites by others the ISPs do not control.

Nevertheless, there have been efforts in legal cases to chip away at the broad immunity afforded to ISPs by CDA Section 230. One such effort is the recent legal case Jane Doe No. 1 v. Backpage.com, LLC.

Checklist for Updating Your Law Office Technologies

Usually, technology evolves faster than the law firm. Sometimes, however, law firms evolve faster than their technologies.

This can be a good thing because it may be a sign a law firm is growing. At the same time, lagging technology may be one of the growing pains.

In any case, it is important to assess the firm's technologies from time to time because technology always affects the bottom line. Technology can increase profits if it increases productivity, but it can also cost more than it's worth if it is not efficient.

Here's a checklist for updating your law office technologies:

'Inventor of Email' Sues Techdirt to Prove It

The supposed inventor of email has sued a blogger website that doesn't believe he invented it.

Techdirt, an irreverent blogsite about changes in government policy, technology, and legal issues, reported in a series of stories that Shiva Ayyadurai falsely claims to have invented email. Ayyarduri, who copyrighted "Email" and trademarked "The Inventor of Email," has sued Techdirt for defamation.

In a $15 million complaint filed in federal court, the plaintiff alleges that Techdirt and its founder Michael D. Masnick have damaged his reputation by publishing false stories saying Ayyarduri was a liar and a fake "who's basically staked his entire life on the misleading to false claim that he 'invented' email." They defend that they have a First Amendment right to express their opinions.

New Data Company Releases Analytics on International Commercial Arbitration

A new database has been published with more than 66,000 data fields on thousands of commercial arbitration cases in 136 countries, enabling legal professionals to analyze international arbitration in new ways.

No, it's not from Wikileaks or Edward Snowden. It's from a start-up company called Dispute Resolution Data, which has contracts to collect and release the information from some 20 arbitration institutions.

This is a significant release of information because, historically, commercial arbitration has been confidential. Commercial arbitrators have closely guarded case information to maintain participant privacy. Dispute Resolution Data takes that information and creates research analytics.

If you hand your computer over to Best Buy's Geek Squad for repairs, you might get more than just a quick fix. You might get reported to the FBI. That's because the FBI pays Best Buy technicians who discover and report child pornography to the agency, according to a lawsuit in California.

But when the Geek Squad snoops on behalf of the government, are such searches legal?

High Court Spares Backpage Adult Services Ads, but 'Censors Have Prevailed'

For online publishers, the law giveth and the law taketh away.

Just after the U.S. Supreme Court turned back a case challenging federal shield laws for online publisher Backpage, the embattled company shut down its adult services section under pressure from the U.S. Senate.

On Monday, the high court let stand a decision against women who sued Backpage for facilitating child sex trafficking and left in place the Communications Decency Act that has protected website operators from liability for content posted by others. Late Monday, Backpage shuttered its classified ads for adult services amidst Senate allegations that it was involved in online prostitution.

"Backpage's response wasn't to deny what we said. It was to shut down their site," the senators said in a statement. "That's not 'censorship' -- it's validation of our findings."

There are some tech devices that all attorneys need. Things like decent computers, quality printers, and effective software are essential for today's practice. Then there's tech that many lawyers should have, like a mostly paperless practice options and good practice management software. But more importantly, there's the tech that attorneys don't need, but want. Really want, because they're cool, helpful, novel, or just entertaining. That's what we're focusing on today.

Here are five nonessential but very worthwhile gadgets you might be interested in, taken from the FindLaw archives.

Analytics Offers You Can't Refuse

If you thought you could ignore business analytics in your law practice, well, analyze this:

Big Data, with more than 25 billion smart devices on the Internet of Everything, is getting bigger by the nano-second. Not even Big Brother can ignore the need for analytics to handle the information overload.

Take, for example, the case of Gary Pusey. He pleaded guilty to insider trading last year after the Securities and Exchange Commission identified him by using analytics to pour though billions of rows of data going back 15 years. The Analysis and Detection Center of the SEC's Market Abuse Unit uses the software to identify individuals who have made repeated, well-timed trades ahead of corporate news.

Basically, they made him an offer he couldn't refuse. So it is with business analytics: you just have to accept it. Here are some reality checks:

Yahoo announced last night that Marissa Mayer, the company's president and CEO for nearly five years, will step down from Yahoo's board after Yahoo's planned merger with Verizon is completed. Yahoo co-founder David Filo will also resign from the board of directors.

Once the merger is completed and following the sale of its core businesses, what remains of the company will change its name to Altaba, according to SEC filings. That is, if the deal goes through. Verizon could terminate or renegotiate its $4.8 billion purchase of Yahoo over recent revelations that more than one billion Yahoo user accounts had been hacked.

The Coming Tech Year

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

We made it through 2016. So, what's in store in 2017 when it comes to hot tech issues? There are many hot issues, such as big data, intellectual property disputes, the sharing economy, and drones. But this blog covers the three potential biggest issues. Drum roll please -- here we go!

Snapchat, the video messaging app that's seduced millions of Millennials, is growing fast and set to grow even faster in the future. The app grew from 50 million active daily users in March 2014 to over 100 million less than a year later, a growth that is expected to help the company bring in over a $1 billion in revenue this year -- and growth that has fueled the company's $20+ billion valuation.

But Snapchat's user metrics might not be completely accurate, at least according to one recent lawsuit. A former Snapchat employee sued the company last week, accusing it of "an institutional pandemic" of misrepresentation regarding its growth metrics. The suit comes as the company is preparing for its much-anticipated IPO.

There are plenty frustrating things about legal writing, like annoying in-text citations, needless jargon, and inflexible word limits. But sometimes just writing is the difficult part. That's because our emails, word processors, and smart phones don't make it easy to use the special characters we need, like section symbols and paragraph signs.

Now there's a keyboard just for lawyers that will end some of that frustration -- and give your mouse and alt key a rest.

FTC Offers $25,000 Reward for IoT Security

If this were the Wild West, a $25,000 reward might have caught the attention of a lawman like Wyatt Earp.

Earp, a special marshal and gunslinger, was most famous for the Gunfight at the OK Corral in 1881. In a town called Tombstone, the shootout left three outlaws dead and two lawmen wounded.

But this is not the Wild West, Earp is long gone, and $25,000 isn't exactly an enormous sum of cash these days.

In any case, the Federal Trade Commission has offered $25,000 to anyone who can solve security on the Internet of Everything. Any volunteers?

A woman in Manhattan is suing Google, Bing, and Yahoo in an attempt to get her name permanently removed from their search results, according to the New York Post. The 30-year-old Harlem woman was a victim of revenge porn after an ex-boyfriend unloaded secretly recorded X-rated videos of the two to the internet, using the woman's unique four-word West African name. "If you Google her name, everything is right there," her attorney, Ryanne Konan, told the Post.

The suit is the first of its kind, according to experts. Will it be successful?

Tips for Using Echo in the Law Office

Echo, if you haven't heard, is basically Amazon's desktop version of Apple's Siri. It's a digital assistant that looks like a speaker and responds to voice commands. Call her, "Alexa," because she was programmed that way.

Marketed primarily for home use at $179, Alexa can do a lot of things. Play music, turn on appliances, read news stories, calendar events, set reminders, send messages, and even order products online.

Because of such conveniences, some lawyers are using the device for their law offices. After all, what personal assistant will do all those things for less than minimum wage, plus overtime?

Here are some points to consider:

The legal industry isn't winning many awards for diversity. The industry as a whole is severely lacking in racial diversity and gender parity, for example, while there are long-running and well-documented disparities in criminal outcomes across racial lines. What's worse, those disparities are growing. The racial gap in sentencing has expanded between 2005 and 2013, according to federal reports.

But some think that technology might be able to solve, or at least mitigate, some of the legal practice's most stubborn biases. In a recent article in the Observer, diversity consultant Monique Tallon looked at how the legal tech industry is confronting bias in the law. Here are some of the highlights.

Best Practices for Cloud Computing at Your Law Firm

With internet security breaches becoming commonplace, what is the forecast for cloud computing in the law?

A tornado, such as the 1.5 billion email hacks at Yahoo last year, should at least give lawyers pause to reconsider the best practices of cloud computing. Jennifer L. Ellis, of Lowenthal & Abrams, recently offered some thoughts at a continuing legal education program:

5 Tech Mistakes Lawyers Make

All mistakes are not created equal. For lawyers, one faux pas may cause trouble with a co-worker. A different misstep may upset a client. And you don't want to think about stepping on a judge's toes.

But in the cyberworld, mistakes can reach global proportions with the speed of a mouse-click. The essence of any error may be the same, but the potential is magnified by the medium.

Here are five tech errors that are so common, you probably have made a few of them: