' Commentary | MTTLR

Privacy Policies in a World Without Privacy. Is There Such a Thing as a Good Privacy Policy?

Questions surrounding data privacy and what happens to our personal data when companies collect it have risen to the forefront of public discussion more in recent years than ever before. As the data that companies collect grows more and more personal, where the data is stored and how it is used has become an increasingly important question. This is especially true for companies that collect and store biometric data – that is, data that measures biological features, such as fingerprints and facial features. One such company is Wireless Lab OOO, the developer of FaceApp, an application that uses AI to transform pictures that users upload using the mobile application, allowing users to see what they might look like older, younger, as a different gender, etc. FaceApp was created by Yaroslav Goncharov, a Russian software developer who previously worked for Microsoft and later founded his own start-up company. Goncharov currently leads the twelve-person team behind FaceApp, an application he envisioned as an “automated photo editor,” for which people would pay a subscription fee and which would essentially replace photoshop with AI. The app had been downloaded over twelve million times as of July 10, 2019, following an explosion of exposure on social media due to its use by celebrities such as LeBron James and Drake. With this exposure came scrutiny and controversy, particularly over the terms of use, and the control they gave the app developers over user data. The clause in the terms of use that has received the most public scrutiny is the section in the user content section that reads: “You grant FaceApp a perpetual, irrevocable, nonexclusive,...

Trademark Infringement in Virtual Reality Spaces: When Your Virtual World Gets Too Real

Increased development of virtual reality (“VR”) technology brings a host of legal questions surrounding both the intellectual property (“IP”) of the actual technology as well as unlawful activity within the VR space itself. For example, VR creators could face lawsuits for right of publicity (using a famous person’s likeness without permission), defamation and false light invasion of privacy (making a person look bad by way of false information or false portrayal), intentional and/or negligent infliction of emotional distress (in cases of cyberbullying, for example), and copyright claims (where content under copyright, or content substantially similar to copyrighted content, is used in the VR). It has even been suggested that certain activities within VR could encourage more crime in the real world. This post focuses specifically on the trademark law implications that may arise in VR spaces, by providing a framework for understanding potential claims that may arise when an entity uses a mark in VR spaces without the registrant’s permission. What are the elements of a trademark infringement claim? For a mark to be eligible for trademark protection, it must be: (1) distinctive and (2) used in commerce. To establish infringement of a protected mark, a plaintiff must show: (a) it has a mark that is eligible for trademark protection, (b) it owns the mark, and (c) the defendant’s use of the mark causes a likelihood of confusion as to the origin or sponsorship of goods or services. See generally 15 U.S.C. §§ 1051 et seq. Depending on the facts of the case, a mark owner may have potential causes of action against two separate defendants: a user of...

Cars, Smartphones and Waste: Fighting for the Right to Repair in 2019

Massachusetts is a hot battleground for Right to Repair movements – first for cars, and now for smartphones. Right to Repair legislation advocates for consumers to be allowed the access, information and materials that they and third party repair shops require in order to fix their broken-down products. But unlike in the case study of automobiles, the Right to Repair movement for electronic devices may face a grisly demise because of the big bad bogeyman: cybersecurity. Right to repair is a huge deal. Tech giants want consumers to keep buying the newest gadget, since their CEOs blame the repair and reuse of older models for deficient bottom lines. And in a world where consumers trash a functional phone because of a spiderweb crack in the corner, electronic waste (“e-waste”) is a rapidly growing threat. E-waste accounted for a waste stream of 50 million tons in 2018 and is projected to reach at least 120 million tons by 2050. Moreover, e-waste isn’t biodegradable. And due to the prevalence of toxic materials like lead, the disposal of e-waste often causes severe health hazards for countries like the Republic of South Africa that are forced to bear these human and economic costs. Advocates of Right to Repair cite multiple other reasons to be allowed the resources necessary to fix their own devices. Predominantly, most feel that fixing electronics is a free market issue. Their rationale is that manufacturers shouldn’t be able to charge exorbitant prices for issues that can be fixed by third party repair shops that can do the same job but at a cheaper price, and faster as well. This...

In re Ricardo P. and the Privacy Rights of Probationers: An Incomplete Resolution

Should a probationer be forced to submit to warrantless searches of their electronic devices at any time, including being forced to provide all electronic passwords to a probation officer to allow remote and continuous monitoring? In its recent decision in In re Ricardo P., the California Supreme Court grappled with this question as it related to juvenile probationer Ricardo P. After admitting to two counts of felony burglary, the minor was placed on probation; “[o]ne of the probation conditions requires Ricardo to ‘[s]ubmit…electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.’” Ricardo challenged the condition as both constitutionally overbroad and unreasonable under People v. Lent, a California Supreme Court case setting out a three-prong test which, if satisfied, invalidates a probation condition as unreasonable. On appeal neither party disputed that the first two prongs were satisfied and only the third prong, which looks at whether the condition is reasonably related to future criminality, was at issue. The Court ultimately found that for Ricardo, the electronic search condition was not reasonably related to future criminality, the third prong of Lent was thus satisfied, and the condition was therefore invalid. In so holding, the Court explained that an analysis of the third prong of Lent required weighing an interest in effective supervision with the burden on a probationer. Writing for the majority, Justice Liu discussed the deep privacy right implications of such a probation condition, and the significant burden that imposing the condition would place on a probationer. In rejecting the California Attorney...

The Role of Underwriters in a World of Unicorns

What do WeWork, Lyft, and Smile Direct Club have in common? They are “tech companies,” their IPOs underperformed or didn’t happen at all, and they all hired JP Morgan as their underwriter.   What is an Underwriter? When a company is planning to go public, they typically enter into an agreement with an underwriter to help them prepare for the Initial Public Offering (“IPO”). The most common type of underwriting agreement is one in which the underwriter agrees to assume the risk of buying the entire inventory of stock issued in the IPO and sell it to the public at the IPO price. The underwriter serves as an intermediary between the company and investors.   The underwriter is also responsible for filing a Form S-1 registration statement with the U.S. Securities and Exchange Commission (“SEC”). The form outlines the business of the company, the planned use for the capital raised, the basics of the IPO, any material business dealings between the company and its directors or outside counsel, and any legal issues the company may have. While the SEC is reviewing the registration statement, the underwriter creates a preliminary prospectus to take on a roadshow. During the roadshow, the underwriter generates excitement for the IPO and tracks indications of interest from potential investors. A pricing recommendation (how many shares can be sold at what price) is then determined based on the level of demand for the stock.   If the pricing recommendation is acceptable to the company’s Board of Directors, an initial price for the offering is set and the IPO date is solidified. A final prospectus is created...

Don’t Bury your Bitcoin! Estate Planning for Cryptocurrencies

From the transferability of social media or email accounts to maintaining online accounts linked to a client’s virtual assets, estate planning issues regarding digital assets have existed for some time. But, now that blockchain based assets such as cryptocurrencies are more commonplace, there is an increased need to plan for the disposition of these digital assets. Estate planning for cryptocurrencies raises unique concerns and the blockchain technology behind cryptocurrencies might provide potential solutions.   What are cryptocurrencies?   Cryptocurrencies, such as Bitcoin, are forms of digital assets that are encrypted and typically decentralized across a large number of computers so that they are very difficult to counterfeit. Other valuable assets based on blockchain technology exist as well.   A basic understanding of the technology behind cryptocurrencies is helpful to understand some of the estate planning challenges posed by cryptocurrencies. A blockchain is a database that stores “blocks” of information. Blocks are records of information bundled together. Each block has a unique code called a hash. Hash codes connect blocks together in a specific order. So, if one block is altered, the hash is changed, and the enormous amount computing power required to recode all the hashes and restore the chain precludes hacking. The blockchain is shared across a network of computers. This results in the records stored in the blockchain being very difficult to tamper with or change.   Additionally, in order for an individual to access or transfer their own cryptocurrency, they must use their key. A key is essentially equivalent to a password, and usually takes the form of a seed phrase, a randomly generated list of...