The Looming Liability of ISPs

Internet service providers (ISPs) are traditionally protected under the Digital Millennium Copyright Act’s (DMCA) section 230 safe harbor for most copyright infringements committed by a user of their service. There are several stipulations that ISPs have to follow in order to get the safe harbor, one of which is to have a “repeat infringer” policy. This policy encourages ISPs to terminate services to users who use the services to repeatedly infringe another’s copyright. The statute lacks a definition of “repeat infringer,” and it is unclear exactly who decides when services should be terminated. BMG v. Cox Communications, decided in November 2014, dealt with this issue. BMG, through their third party RightsCorp, sent millions of notifications to Cox informing it that users were using its service to illegally download BMG’s music. Cox ignored the notifications and did not terminate its users’ Internet services. The judge found this was enough to push Cox out of the safe harbor, and a federal jury found Cox liable for $25 million in damages. Cox’s appeal is currently up in front of the 4th Circuit, and its decision could have a major impact on the way ISPs and rights holders interact. Cox (and supporters like the Electronic Frontier Foundation) are arguing that the decision is an unprecedented shift of power to rights holders like BMG. Not only can BMG charge a user individually for copyright infringement, but it can also force an ISP to terminate the user’s Internet connection. With the ever growing importance of the Internet, termination is a very serious consequence, one that should not be taking lightly. ISPs will have to work...

Can the FTC Protect Us From Fake News?

In September 2016, the Second Circuit handed down its decision in FTC v. LeadClick Media, LLC, holding the operator of an affiliate-marketing network liable for the fake news published by its affiliates. This case could serve as a tool in combatting fake news stories that have plagued social media and caused real-world problems (like Pizzagate) in recent years. While this Second Circuit decision is unlikely to solve the problem of fake news stories on social media, it is a step in that direction. The Case In the case, a generator of fake news was denied protection of the Communications Decency Act. The CDA protects Internet service providers from being held liable as publishers of material posted on their sites by third parties. Until 2011, LeadClick operated an affiliate-marketing network to provide advertising to online businesses. The affiliates advertised in various ways, including by creating advertising websites. In August 2010, LeanSpa, a company that sold purported weight-loss and colon-cleanse products over the Internet, hired LeadClick to provide advertising through its affiliate network. Some of these affiliates created what the court called “fake news sites,” which looked like genuine news sites with reporters discussing, what they claimed to be, their own experiences and comments from satisfied users. However, all of the content on these websites was fabricated. The court held that LeadClick was not entitled to immunity under CDA §230(c)(1) because CDA had helped develop the deceptive content and was not merely a publisher of third party content. Without CDA immunity, LeadClick could be held liable for its affiliates’ false and deceptive advertising practices. Our Salvation? Hardly. By denying LeadClick CDA immunity, the...

A New Dimension to the Gun Control Debate

During the recent election, the issue of gun control predictably served as a point of contention between the two candidates. Hillary Clinton advocated for “commonsense” regulations on gun ownership such as closing the gun show loophole. As expected, Donald Trump boasted of his NRA endorsement and asserted that he will protect gun ownership rights under the Second Amendment. A new technology now adds a new dimension to the gun control debate. Legislatures must now confront the issue of “ghost guns,” or guns created with three-dimensional printing devices. Individuals who have access to a three-dimensional printer now have the capability of downloading a program that allows users to print firearms that resemble several different models of guns. Users of the printing devices are able to print both plastic firearms and projectiles that serve as bullets. The ability for individuals to manufacture these three-dimensionally printed guns gives rise to considerable safety concerns given the difficulties of tracking home-made weapons. Calls for regulation of the printed guns have given rise to disagreements about how legislatures should respond. The National Rifle Association and other gun-rights groups have largely opposed the increasing regulations on printed guns arguing that such regulations restrict gun the second amendment. Others are concerned about the dangers that three-dimensionally printed guns pose for hobbyists and children who attempt to make the guns. State legislatures have taken notice of this new DIY danger.  Earlier this year, California governor signed Assembly Bill No. 857 into law. Subject to some exceptions, the law requires any “a person who manufactures or assembles a firearm to first apply to the department for a unique serial...

Streaming Video Without an Open Internet

On February 26, 2015, The Federal Communications Commission voted 3-2 to enact a series of “Open Internet” protections. The three central rules prohibited Internet Service Providers (ISPs) from blocking access to legal content, slowing internet speeds to certain websites, and favoring certain types of internet traffic over others. The 3-2 Commissioner vote was split along party lines; 3 Democrats voting to approve and 2 Republicans voting to reject. FCC Commissioners are nominated by the President and confirmed by the Senate for 5-year terms. Leadership rules require that no more than three Commissioners come from the same party. Democrat control of FCC leadership is slated to end in May, when Commissioner Jessica Rosenworcel’s term expires. Rosenworcel, a Democrat who voted to approve the February 2015 rules, will likely be replaced by a Republican. If the new Commissioner’s ideology matches that of current Republican Commissioners Ajit Pai and Michael O’Rielly, repealing the Open Internet protections could become a priority. By the end of 2016, over 22% of all US households are expected to be “cable-free.” Just two years earlier, the percentage of households without pay TV was under 20%. During the second quarter of 2016 alone, approximately 812,000 customers cancelled their pay TV subscriptions – the largest quarterly loss ever. In addition, roughly 2 in 5 US Households subscribe to at least one streaming video service. Before the 2016 Presidential Election, the number of “non-pay TV” households was expected to near 30%. With a reversal in FCC leadership looming, traditional television service may rebound. According to a January 2016 poll, most “cord cutters” ditched their pay TV services due to cost....

Patent Agent Privilege

Should attorney-client privilege extend to communications between clients and patent agents?  In March earlier this year, a split decision by the Federal Circuit answered this question in the affirmative. This is a unique extension of the attorney-client privilege due to the nature of the patent agent profession.  Patent agents are not required to go to law school; to practice as a patent agent, one must have a scientific education and pass the patent bar examination. Passage of the patent bar examination allows a patent agent to prepare, file, and prosecute patents with the United States Patent and Trademark Office (“USPTO”). In January, 2014, Queen’s University filed a patent infringement lawsuit against Samsung.  During discovery, Queen’s University refused to produce documents containing communications between their employees and non-lawyer patent agents.  A federal magistrate judge refused to recognize a “patent agent-client” privilege and granted Samsung’s motion to compel the documents.  Queen’s University’s objection was overruled, and the Federal Circuit took the question through a writ of mandamus. In a 2-1 decision, the Federal Circuit recognized the patent agent-client privilege stating that “patent agents engage in the practice of law when representing clients . . . [and] the patent-agent privilege furthers the same important public interests as that of the attorney-client privilege.”  However, the majority limited the patent agent-client privilege to communications that fall within the scope of the patent agent’s ability to practice law—such as preparing, prosecuting, and filing patent applications.   For instance, a conversation with a patent agent about the validity of someone else’s patent in preparation for litigation would not be protected under the patent agent-client privilege. The Federal...

Getty Images v. the Public Domain: Who Really Wins?

The public domain offers teachers, graphic designers, and anyone trying to design a website on a budget the opportunity to use millions upon millions of images without fear of infringing on the original author’s copyright. The images can be reused in their entirety or be remodeled into something new. They can be used for any sort of use whatsoever, whether that use is commercial or not. That is both the point and the beauty of the public domain. But what happens when pay-per-image stock photo sites take advantage of the public domain and start using the images in their own businesses? They get sued, of course. By people like photographer Carol Highsmith. Highsmith has spent the last 30 years taking and donating photos to the public domain. Her goal was to have her photographs, the majority of which are of places around the United States, available to use for free. Her intent to do so is clear on the Library of Congress website, where her photographs are officially listed as part of the public domain. So you can imagine Highsmith’s surprise when Getty Images sent her a take-down notice demanding a payment of $120 for the display of her own photograph on her own, personal website. Highsmith soon realized Getty had taken 18,755 of her public domain images and had licensed them through its website. Getty was essentially charging its consumers for something they could have easily gotten for free, if they had only reverse image searched their desired images. That search would have lead them to places like Wikimedia Commons, which hosts Highsmith’s photos for free and displays...