Technology Law Source

Phishing for tax returns: Where’s your refund?

The use of phishing scams, phone scams and computer hacking seems to multiply daily. The object of the scams and hacks: getting your tax refund. How? By the scammers and hackers filing a false tax return on your behalf. It’s more common than you think. Part of the problem is that those darn phishing emails look so real, including company logos, brand identity, signature blocks and even the photo of the alleged sender of the email.

These scams are not new, but many of them continue to succeed. Last year, phishing emails were so prevalent that it prompted the IRS to issue a special alert. It’s becoming common practice for IT departments at many companies to introduce “fake” phishing threats to train their employees on what not to do. These are essentially planned attacks from a known source. Employees learn how to recognize a phishing email using various techniques, such as looking for misspellings, incorrect domains and hovering over any links embedded in the body of the email. More importantly, they learn what to do, and what not to do: DO report the suspicious email to the help desk and delete the email; DON’T reply to the email, click on any links in the email, or open any attachments to the email.

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March Madness: the showdown between the Big Ten Conference and the NCAA – who is your number one pick?

It’s the month of March, and most of us are highly aware of the NCAA’s basketball tournament that dramatically decreases work productivity and determines the college basketball national champion. If you’re thinking about entering the hype and using any of the NCAA’s trademarks in your promotions and marketing this month, it’s important to consider your use very carefully. The reason: the NCAA has trademarked a slew of marks associated with the tournament, such as “NCAA,” March Madness,” “Final Four,” the “Big Dance” and any corresponding logos. These marks are all federally registered trademarks of the NCAA, and the NCAA zealously defends them.

The NCAA has been using the mark MARCH MADNESS for over three decades and has recently attempted to claim further rights in the term “March”, quite possibly with respect to any services rendered in conjunction with sports-related entertainment services. This is how it happened. A little over a year ago, the Big Ten Conference filed a federal trademark application based on an intent to use the mark “MARCH IS ON!” for services related to sporting events and contests. The application was reviewed by a United States Patent and Trademark Office (USPTO) examiner, who ultimately determined that there were no conflicting marks that would bar registration of this mark and the application was published for opposition in August of 2016. The NCAA did not respond kindly to this application and after exhausting several extensions of time to oppose formally filed an opposition on Feb. 13, 2017.

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Get back to whom you once belonged: Paul McCartney seeks to reclaim ownership of music catalog through interesting provision of copyright act

To a music lover and intellectual property attorney, this story is a wonderful collision of law and musical lore. Paul McCartney’s efforts to regain ownership of the Lennon/McCartney (or is it now “McCartney/Lennon?”) music catalog from Sony combines two interesting tales–the story of how Sony came to own the catalog to begin with and the existence and story behind a seemingly odd copyright reclamation provision of the Copyright Act of 1976.

Let’s start with Sir Paul and The King of Pop. As the story goes, at some point during the 1980s, when Michael Jackson and Paul McCartney were friends and making songs together, McCartney pointed out to Jackson the value of music rights. Michael must have been listening and undoubtedly said something to himself along the lines of, “Say, Say, Say, that sounds like something I could make some money off of.” In 1985, Jackson bought ATV in a deal worth $47.5 million. ATV owned Northern Songs, the publishing company set up by Dick James and Brian Epstein in 1963 and which owned the rights to the majority of The Beatles’ songs. For those who might be curious, further interesting elements of that transaction are described in more detail here.

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Takedown of counterfeit goods in China

The elimination of counterfeit goods from online marketplaces in China continues to improve due to support from the Chinese government, changing laws in China which can impose liability on online marketplaces for infringement of intellectual property rights (IPR) and continued pressure from manufactures from around the world. The Alibaba Group, owner of some of the most popular online marketplaces in China, launched in January a “Big Data Anti-Counterfeiting Alliance” which already includes members such as Louis Vitton, Swarovski, Samsung, Amway and Ford. The Alibaba Group will provide members with technological support and protection from counterfeiting utilizing data and analytics. The Alibaba Group had previously established IPR protection platforms in the English language several years ago which largely remain the same. However, the Alibaba Group has recently streamlined the takedown procedures to make them easier and more effective, started closing the accounts of three-time infringers, and started prohibiting listings that intentionally blur trademarks.

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Trends in behavioral advertising: What you need to know about cross-device tracking

The Federal Trade Commission (FTC) recently issued a staff report (available here) on the trend to link consumers’ online behavior across multiple devices. Among other recommendations, the FTC suggests that companies not track sensitive information which may include health, financial, children’s and precise geolocation information without the consumers’ affirmative express consent. The FTC also recommends that all companies engaged in cross-device tracking should truthfully disclose their tracking activities. The FTC reviewed the privacy policies of 100 top websites and only found 3 policies that expressly mentioned enabling third-party cross-device tracking on their websites. Continue Reading

Supreme Court to consider international patent exhaustion

Four years after fully embracing international copyright exhaustion in Kirtsaeng v. John Wiley & Sons, Inc., the U.S. Supreme Court has finally taken up the issue of patent exhaustion. In Impression Products, Inc. v. Lexmark International Inc., the Court has been asked to answer two questions:

  1. Whether a sale that transfers title to the patented item while specifying post-sale restrictions on the article’s use or resale avoids application of the patent exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy.
  2. Whether, in light of [the] Court’s holding in Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1363 (2013), that the common law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article—authorized by the U.S. patentee—that takes place outside of the United States exhausts the U.S. patent rights in that article.

This post looks at the second of these questions. Continue Reading

Why HIPAA compliance matters: How a “small” breach can yield a large fine

The new year continues as the old ended, with HIPAA enforcement actions. On Jan. 11, 2017, MAPFRE Life Insurance Company of Puerto Rico (MAPFRE Life) entered into a Resolution Agreement with the United States Department of Health and Human Services, Office for Civil Rights (HHS) in which MAPFRE Life agreed to pay approximately $2.2 million and enter into a corrective action plan (CAP) with a duration of three years in exchange for a release of HHS’ claims related to certain HIPAA violations by MAPFRE Life.

A cursory reading suggests that the $2.2 million payment imposed on MAPFRE Life was the result of a breach of approximately 2,200 records, which would put the payment amount far in excess of other fines issued by HHS for breaches of similar size. Continue Reading

Are you a criminal because you share your Netflix password?

The United States Court of Appeals for the 9th Circuit continues to decide high profile cases that interpret the key provisions of the Computer Fraud and Abuse Act (CFAA). This post summarizes two July decisions from the court—one that sent the internet into a frenzy, and one that somewhat assuaged those fears.

Overview of the CFAA

The CFAA’s deceptively-simple statutory scheme and language have proved difficult to apply in practice some 30 years after it was enacted. The CFAA creates criminal and civil liability for whoever “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C). “The statute thus provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access without authorization; and (2) obtaining access with authorization but then using that access improperly.” Musacchio v. United States, 136 S. Ct. 709, 713 (2016). The CFAA provides a private right of action for “[a]ny person who suffers damage or loss by reason of a violation of this section.” 18 U.S.C. § 1030(g). Continue Reading

FAA’s comprehensive new small UAS rules are here. How can they help your business?

On June 21, the Federal Aviation Administration (FAA) released long-awaited new rules for commercial, non-hobbyist small unmanned aircraft (sUAS) operations. The FAA’s press release about the new rules in part 107 of the FAA regulations is available here. FAA’s three-page fact sheet about the new regulations can be found at this link, and a 53-page advisory circular, which provides additional guidance, can be found here. The fact sheet and advisory circular are helpful resources, but by no means exhaustive, as the complete rules and commentary from the FAA fill 624 pages.

These final rules govern the commercial use of small (less than 55- pound) UAS. Many of our clients, who are understandably excited about the prospects of integrating drones into their businesses under a more defined regulatory regime, should become familiar with these detailed regulations before taking to the sky. That is also true for clients who may currently be operating sUAS pursuant to a Section 333 Waiver that they obtained from FAA before these new rules were finalized. The new rules address how those Section 333 Waivers apply under the new regulatory regime, and also how to obtain waivers from many of the new operational requirements.

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