Many businesses outsource work such as website creation, software development or other creative tasks, engaging the services of companies or individuals experienced in these fields. Some are surprised to learn, often the hard way, that paying someone to create your website, develop software or produce other works of authorship does not mean you own the copyright in the final work product. Lack of ownership may prove costly, as a copyright owner has the exclusive right to reproduce, distribute and even modify the original work.
Copyright protection, which has been referred to as the “forgotten stepchild” of intellectual property, deserves more respect and attention than it often receives. For starters, copyright protection is rather cheap — in fact, it’s actually free (more on that below). Unlike patents, you don’t need to spend thousands of dollars on an application, hoping that the Copyright Office agrees that you created something artistic or worthy of copyright.
Copyright protects works of authorship, including: literary works; musical works; dramatic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. 17 U.S.C. § 102(a). Though copyright does not extend to ideas, processes, systems, discoveries, etc., the tangible expression of these — e.g., computer software — is entitled to copyright protection.…
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California, a state with consumer protection laws that are among the strongest in the country, has had explicit legislation governing online privacy since 2004 when the California Online Privacy Protection Act1 (“CalOPPA”) was enacted. CalOPPA § 22575(a) forces all operators of websites or online services to post their privacy policies in a conspicuous manner assuming they target individuals residing in California.
The California Attorney General, Kamala Harris, concluded in 2012 that, with regard to mobile devices and the apps they employ, the “conspicuous” display of privacy notices required an app-specific version and that a mere link to the company’s website was insufficient to meet the posting requirements referenced above. Harris sent notices to mobile developers Oct. 30, 2012, warning that they were not in compliance with California privacy law if their apps did not contain a conspicuously posted privacy notice. Shortly thereafter, California filed suit against Delta Airlines Inc., alleging the airline’s “Fly Delta” app lacked the requisite privacy notice despite collecting extensive personally identifiable information (PII) of its customers.…
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In addition to the posting of the proposed discovery amendments to the Federal Rules of Civil Procedure for public comment, August was packed with a number of interesting e-discovery decisions. Here are my thoughts on key e-discovery cases decided last month, including another spoliation blockbuster from Judge Shira Scheindlin and rulings on e-discovery costs, search terms, proportionality and privacy.
Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (S.D.N.Y. Aug. 15, 2013). Judge Scheindlin considered the “appropriate penalty for a party that — with full knowledge of the likelihood of litigation — intentionally and permanently destroyed the email files of several key players.” Based on Judge Scheindlin’s analysis of the facts, she reversed the magistrate judge’s order declining to award sanctions and instead ordered that an adverse jury instruction be given at trial.
The most notable part of the decision was that it was issued on the same day the public comment period opened for the proposed discovery amendments and Judge Scheindlin included a footnote openly disagreeing with the proposed changes to Rule 37(e). She stated: “I do not agree that the burden to prove prejudice from missing evidence lost as a result of willful or intentional misconduct should fall on the innocent party. Furthermore, imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior. Under the proposed rule, parties who destroy evidence cannot be sanctioned (although they can be subject to ‘remedial curative measures’) even if they were …
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