Podcast #10: BitTorrent Copyright Infringement: Trouble for DMCA?

[audio:http://mirskylegal.com/wp-content/uploads/2011/06/DMCA-Cast.mp3|titles=DMCA Cast]

Today, I discuss BitTorrents, and a particular case in California challenging the copyright validity of what one service provider is doing.  BitTorrent has been in the (copyright) news lately – and not surprisingly – after the movie studios set their sites on bringing down yet the latest iteration of file-sharing technology.

Some of the issues I discuss are these:

  • What is the BitTorrent file sharing technology? And how is it different from Napster and its peer-to-peer progeny?
  • What are the 2 biggest distinctions between BitTorrent and peer-to-peer and, in particular, BitTorrent’s distributive approach to file-sharing?
  • Why is bitTorrent in the (copyright) news? I will particularly discuss a case in federal court in California, involving Columbia Pictures and other film studios who sued a bitTorrent company called isoHunt, together with its founder, Gary Fung.
  • What were the relevant legal issues in this case? Several important copyright arguments were made, but of most significance were 2 particular issues: inducement of copyright infringement, and the safe harbor for providers of “information location tools” under Section 512 of the Digital Millennium Copyright Act (the DMCA).
  • Why did Google get involved? I discuss how this case was an unusual instance where a court ruled that DMCA safe harbor protection was not available to a provider of “information location tools” who knew or should have known about potential or actual copyright infringement happening on its service.

Please click below for the podcast.

[audio:http://mirskylegal.com/wp-content/uploads/2011/06/DMCA-Cast.mp3|titles=DMCA Cast]

Podcast #9: App Development Legal Issues: Open Source, Copyright, API Terms of Use and More

[audio:http://mirskylegal.com/wp-content/uploads/2011/05/API-Dev-Cast.mp3|titles=API Dev Cast]
Today, we will discuss the business and, particularly, the legal landscape faced by application (App) developers dealing with mobile platforms (iOS, Android and Blackberry being dominant), including dealing with application interfaces (APIs) when developing based on existing applications, and, of course, client relationships.

I am joined today by Liz Steininger, co-founder of Tapangi Consulting and project manager in the DC Government’s Office of the Chief Technology Officer.  Tapangi Consulting specializes in mobile and HTML5 application development as well as content management.  Liz is also an active member of the DC Tech community and you can find her on Twitter as @liz315.

Some of the issues we discuss today are these:

  • Protecting ideas in early stages of pitching to potential clients.
  • Application developer agreements and API Terms of Use (TOUs).
  • Platform question: As a developer, how do you think about development based on different platform (e.g. Android or iOS or Blackberry) or a specific API?
  • Copyright and “open source” issues, GPL, libraries, use of third-party code.
  • Ownership and Rights Issues
  • Privacy and uses of personal information (PI).

Please click here for the podcast.
[audio:http://mirskylegal.com/wp-content/uploads/2011/05/API-Dev-Cast.mp3|titles=API Dev Cast]

Podcast #8: “Street Art”: Fair Use of Prior Copyrights?

[audio:http://mirskylegal.com/wp-content/uploads/2011/04/Street-Art-Cast.mp3|titles=Street Art Cast]

In today’s podcast, we discuss “street art”, which evidently isn’t just your grandfather’s graffiti anymore!  Street art has lately been in the news particularly because of several prominent copyright infringement cases, and most notably fallout from Shepard Fairey’s 2008 Obama “Hope” posters.  An even more recent controversy came out of the Oscar-nominated documentary film by Banksy, “Exit Through the Gift Shop”.

Along the way, we will touch on Run DMC, Thierry Guetta (aka “Mr. Brainwash”), “pop-art”, photography, Andy Warhol and Robert Rauschenberg.

Joining me to discuss copyright, fair use, street art, what is street art and all that we can cover in 15 minutes … I’m joined by Brooke Jimenez.  Brooke is a second-year law student at Georgetown University Law Center with a focus on international law, and a creative mind on issues of media law.

Stories mentioned in the podcast include this from The Art Newspaper, and this from George Will in the Washington Post.  Please click the audio player link below for the podcast. Enjoy.

[audio:http://mirskylegal.com/wp-content/uploads/2011/04/Street-Art-Cast.mp3|titles=Street Art Cast]

Podcast #7: Privacy vs. 1st Amendment – Supreme Court case of IMS Health v. Sorrell

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In January, the Supreme Court agreed to hear arguments in the case of IMS Health v. Sorrell, an appeal of a ruling in November in favor of data aggregator IMS Health by the U.S. Court of Appeals for the 2nd Circuit. The case involves a 2007 Vermont statute, similar to laws in many other states, that prohibits the use, sale and transfer of prescriber-identifiable data (referred to as “PI Data”) for marketing purposes, unless a prescriber (meaning: a physician) opts in to allow use of his or her PI Data. The State of Vermont and its supporters argue that any 1st Amendment challenges to the law by users of the PI Data are sufficiently overcome by substantial privacy interests of doctors and their patients.

To discuss these issues, my guest today is John Verdi, Senior Counsel of the Electronic Privacy Information Center (EPIC).  John and EPIC have filed an amicus brief in the Supreme Court in support of Vermont’s position, and I’ve asked John to join me today to briefly discuss the privacy issues involved.

Please click the link below for the podcast.

[audio:http://mirskylegal.com/wp-content/uploads/2011/03/Presciber-Identifiable-Records.mp3|titles=Presciber-Identifiable Records]

Podcast #6: Music Streaming with Grooveshark, Pandora, and Friends: Legal and Business Discussion

[audio:http://mirskylegal.com/wp-content/uploads/2011/03/Groove-Shark.mp3|titles=Groove Shark]

Today we’ll be looking at some of the prominent music streaming sites, including Grooveshark, Pandora, Spotify and others, looking at legal and business issues in a quickly shifting landscape. The New York Times recently reported on the very recent revival of venture capital and public market interest in the music industry after a bit of a funk period. The money seems to be flowing again, and where it’s flowing tells as much about the technology and business as it does about legal issues involved.

To talk about these issues, my guest today is Jake Kring, Co-Founder of GetSpontaneous.com. Jake, along with his other co-founder Mack Kolarich, founded GetSpontaneous, a social event discovery platform optimized for a fundamentally mobile world.

Please click the link below for the podcast.

[audio:http://mirskylegal.com/wp-content/uploads/2011/03/Groove-Shark.mp3|titles=Groove Shark]

Podcast #5: Corporate and LLC Reporting and Meeting Requirements in NY and DC

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In today’s podcast, we discuss some practical operational differences between limited liability companies (or, “LLCs”) and corporations.  We’re specifically interested in covering what corporate formalities are required for the 2 different types of business entities, and what are the differences and similarities.

One of the big attractions (to some) of LLCs is the almost complete LACK of legal requirements for annual corporate formalities.  I want to drill down a bit on this and examine how true this is, both in legal reality and in practical reality.

My guest today is Michael Steger, Principal of Law Offices of Michael D. Steger, PC, a firm with offices in New York City.  Mike’s practice focuses on litigation, intellectual property, entertainment, media, and corporate and other business matters.

Please click the link below for the podcast.

[audio:http://mirskylegal.com/wp-content/uploads/2011/02/Corps-and-LLCs.mp3|titles=Corps and LLCs]

Podcast #4: Inline Links, Embedded Videos and Copyright Infringement

[audio:http://mirskylegal.com/wp-content/uploads/2009/06/Inline-Linking-Embedding-Video-and-Copyright-Infringement.mp3|titles=Inline Linking, Embedding Video, and Copyright Infringement]

In today’s podcast, we discuss copyright issues, specifically the distinctions – practical and legal – between “inline” or “hot” or “embedded” links and downloaded images.  This comes up usually in the context of using video, but the principles should apply to any uses of images on websites, blogs, twitter, Facebook and other social media.

I am joined today by my colleague Thomas Yarnell.

In a series of cases starting around 2002 (a case called Kelly v. ArribaSoft) and accelerating in 2007 (a series of cases involving Google and Amazon and a photography database called “Perfect 10”), web hosting companies, search engines and sites like Amazon were accused of copyright infringement when they used thumbnail images of copyrighted works for their search or catalog results.  So for example, Google Images routinely shows images from copyrighted works in search results.  Google (based on the Kelly case and subsequent caselaw) argued that the use of the images was a “fair use”, in that the search engine’s cataloguing of images was a “transformative” type of use that should be protected under copyright’s fair use doctrine.

In the more recent cases involving Perfect 10, Google (and Amazon) were initially successful in arguing that their use of copyrighted images wasn’t copyright infringement at all – making a fair use defense unnecessary.  Those cases were appealed and reversed, but only partially.  The big point that was upheld was that a search web user’s (Google, Amazon, or anybody else for that matter) embedding of inline links would not constitute direct copyright infringement.

Please click the audio player below for the podcast.

[audio:http://mirskylegal.com/wp-content/uploads/2009/06/Inline-Linking-Embedding-Video-and-Copyright-Infringement.mp3|titles=Inline Linking, Embedding Video, and Copyright Infringement]

Podcast #3: Intellectual Property: Protecting Ideas, Concepts, Processes and Plans

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In today’s podcast, we discuss intellectual property issues, specifically the question of how to protect ideas.  My guest is Neal Seth, a partner in Baker Hostetler’s Washington, DC office. Neal’s practice focuses on patent litigation and appeals.  Neal has handled numerous litigation and appellate matters in a variety of technologies, including the pharmaceutical, chemical, electrical, and mechanical fields in district courts, the ITC, and the Federal Circuit.

This is not meant to be a true “primer” on intellectual property protection.  Instead, we’re going to look at the very practical threshold problems entrepreneurs and small businesses face when developing and pursuing new ideas for businesses.

Our questions: What is the major practical problem with patents from the perspective of someone with an idea?  What can copyrights really do for someone?  For example the software developer: What does it mean to copyright software and what kind of protection does it get you (and not get you)?  We discuss major limitations against “descriptive” trademarks.  We discuss trade secrets and how trade secrets are distinct from patent or copyright.  What about Non-disclosure Agreements (NDAs) or Confidentiality Agreements?  Is it necessary to have all interested parties sign an NDA before reviewing a business plan or even taking a meeting?  What benefits?

Please click play below to hear the podcast.

[audio:http://mirskylegal.com/wp-content/uploads/2009/06/Intellectual-Property-Protecting-Ideas-Concepts-Processes-and-Plans.mp3|titles=Intellectual Property – Protecting Ideas, Concepts, Processes and Plans]

Podcast #2: Recent Search Engine Advertising Trademark Rulings in EU and US

Podcast #2: January 6, 2011

[audio:http://mirskylegal.com/wp-content/uploads/2011/01/Trademarks-and-Search-Engines.mp3|titles=Trademarks and Search Engines]

In today’s podcast, we cover trademark cases from both U.S. and European Union courts involving major search engines such as Google and Yahoo.  In particular, we look at whether and how search engines can be held responsible for trademark infringement when advertisers buy search result advertisements using the trademarked names of their competitors.

My guest is Howard Hogan, a partner in Gibson, Dunn, & Crutcher’s Washington, DC office.  Howard’s practice focuses on intellectual property litigation and counseling, including trademark, copyright, patent, false advertising, licensing, media and entertainment, and trade secret matters.

The trademark issue arises because in many countries, including the US, the search engines allow companies to advertise next to search results using their competitors’ trademarks.  We have seen a major shift in the last year.  Before 2010, it was clear that at least in France and Germany, it was not appropriate for search engines to sell marks, and Google’s policy reflected that.  In the US, there was a divide between the district courts of the Second Circuit and the rest of the country as to whether buying and selling trademarks for search engine advertising constituted a “use in commerce,” but there was very little law on whether that use was likely to cause confusion.

Now, in Europe, the law seems to have shifted against holding search engines liable, but leaving open the potential for trademark holders to go after the advertisers.  In the U.S. the “use in commerce” question has been resolved decisively against the search engines, and the debate has shifted to the “likelihood of confusion” question.  On one hand, we are starting to see more decisions finding that their sale of the marks are not confusing (Rosetta Stone, Boston Duck Tours, College Network) at the same time as other courts are finding that the use of marks by an advertiser are likely to cause confusion (Storus, Skydive Arizona).

Please press play on the audio player to hear the podcast.

[audio:http://mirskylegal.com/wp-content/uploads/2011/01/Trademarks-and-Search-Engines.mp3|titles=Trademarks and Search Engines]

Podcast #1: FTC’s recently issued privacy proposals

Podcast #1: December 30, 2010

[audio:http://mirskylegal.com/wp-content/uploads/2011/01/Breaking-Down-the-FTCs-Privacy-Proposal.mp3|titles=Breaking Down the FTC’s Privacy Proposal]
In today’s podcast, we discuss the Federal Trade Commission’s recently issued privacy proposals. My guest is Karen Neuman, a founding partner of St. Ledger-Roty Neuman & Olson LLP, a Washington, DC law firm that focuses on regulation of information technologies and communications law, including privacy & data security, mobile communications, the Internet, media, telecommunications and related transactional matters.

At the core of the new privacy proposal is the idea that the current system of self-regulation does not provide enough consumer protection.  Basically, from the FTC’s perspective, people do not pay enough attention to the data-collecting activities of websites and not enough companies are up-front about the data they do collect from visitors to their sites.  The FTC says that while many companies detail their data collection through privacy policies, consumers bear too much of a burden in having to sort through such long, legalistic documents.

Among other proposals, the FTC’s new framework would require a “Do Not Track” option, much like the one we currently have to avoid telemarketers.  “Do Not Track” would essentially prevent companies from tracking things like your browsing history and buying habits, making it much more difficult for them to target consumers with personalized ads.  The proposal also aims to have companies incorporate more consumer protection into their business practices through simpler, more transparent options and by allowing consumers more access to the data being collected about them.  The FTC issued its proposed rules just last week, and requested public comment from both businesses and the public.

Please click play on the audio player below to hear the podcast.
[audio:http://mirskylegal.com/wp-content/uploads/2011/01/Breaking-Down-the-FTCs-Privacy-Proposal.mp3|titles=Breaking Down the FTC’s Privacy Proposal]