Technology Law Rebooted

Court Rules That “Private” Social Media Postings Are Discoverable

marciar — Wed, 06 Oct 2010 13:46:05 +0000

Even if you have (wisely) adjusted your Facebook settings so that your posts and photos are “private,” the information you share through social media may still be discoverable by third parties in certain circumstances.

A New York judge has recently held that social media providers may be required to provide access to postings designated as “private” (including archived and deleted posts) where the postings contradict claims made by the poster as part of a personal injury action.

In the New York case, the plaintiff had claimed that she suffered “serious permanent personal injuries” by falling off an allegedly defective desk chair. However, the public portions of the plaintiff’s Facebook and MySpace profiles revealed that the plaintiff engaged in physical activities inconsistent with claims she made in the litigation.

The defendant requested that access to all information on the plaintiff’s social media pages be provided. Although the plaintiff argued that accessing the “private” postings would be an invasion of privacy, and although Facebook opposed the request, the court ordered that the requested access to the “private” postings be provided.

The court explained that because the plaintiff had placed her physical condition in controversy, she could not prevent the disclosure of material relevant to the extent of her alleged injury.

Although this New York decision is arguably inconsistent with other court rulings on this issue, users of social media should be mindful of risks of disclosure of information posted on social media sites. A person involved in litigation or other controversies should post mindfully and with all due caution, given the risk that “private” posts may be discoverable.

Pop Quiz: Trademark Rights

Jennifer A. Puplava — Wed, 28 Jul 2010 13:07:34 +0000

Do you use trademarks? Follow this link to the MMBJ Business Counselor for a pop quiz that will help you navigate issues relating to trademarks:

http://www.mmbjlaw.com/news?article=pop-quiz--copyrights

Does Your Company Have Copyright Issues?

Jennifer A. Puplava — Wed, 28 Jul 2010 12:56:54 +0000

Are you wondering whether your business is using copyrighted material? Follow this link to the MMBJ Business Counselor for a pop quiz that will help you identify whether you have copyright issues:

www.mmbjlaw.com/news?article=does-your-company-have-copyright-issues

Is Online Privacy Dead? Stay Tuned for the Government’s Answer

marciar — Wed, 24 Feb 2010 16:29:35 +0000

Although the CEO of Facebook recently suggested that some aspects of privacy are a thing of the past, government regulation of online consumer privacy may be on the horizon.

Formal government safeguards on data management practices may result from the US Federal Trade Commission’s public roundtables addressing evolving consumer privacy issues. The FTC roundtables, which have included discussions with industry stakeholders and privacy advocates, were designed to study ways of protecting consumer privacy in online environments. So far, two roundtables have addressed the protection of privacy in cloud computing, social networking, and online behavioral advertising, among other issues. Privacy advocate groups have asked the FTC to regulate the industry rather than continue relying on industry self-regulation of privacy.

Another roundtable has been scheduled for March 17, 2010. See www.ftc.gov/bcp/workshops/privacyroundtables for further information.

Google Books Settlement Still Not a Done Deal

marciar — Mon, 22 Feb 2010 15:09:16 +0000

Although Google has entered into a settlement that would transform Google Books into a digital library and bookstore, the fate of the Google Books project now rests in the hands of Judge Denny Chin. The settlement between Google and the author/publisher plaintiffs, which has yet to be approved by the court, would give Google the right to index, display and sell full-text access to millions of books. On February 18, 2010, a hearing was held to consider the fairness of the proposed settlement. At that hearing, the United States Department of Justice, as well as many scholars, public interest groups, and other intellectually interested parties, spoke in opposition of the settlement, citing violations of antitrust and copyright laws and violations to consumer privacy, among other things. Time will tell whether the concerns raised regarding the project can be overcome.

Trademark Lesson: Investigate Your Mark Before Deciding to Use It, or Save Your Money for a Battle!

marciar — Wed, 17 Feb 2010 13:56:47 +0000

The buzz surrounding the unveiling of Apple’s iPad at the end of January was accompanied by speculation regarding whether a trademark infringement action would soon follow. Prior to the Apple-related trademark application for IPAD and the public unveiling of the iPad product, Fujitsu Transaction Solutions Inc. had started using the same mark in connection with hand-held computing devices for wireless networking in a retail environment, and had filed a US trademark application for that mark. Of course, Apple and Fujitsu have dollars in the litigation budget to fight each other (or pay each other off) for the right to use of the name IPAD. A better (and cheaper) practice is to investigate a new trademark before starting to use it, and to identify any potential conflicts before rolling out the name in connection with a product or business. Although an investigation involves some upfront cost, it is certainly less expensive than a battle after goodwill in a name has been established.

Avoid Deletion of your Blog or Website for False Claims of Copyright Infringement

marciar — Mon, 15 Feb 2010 14:30:04 +0000

Google has recently deleted several prominent music blogs accused of containing content that violated copyright laws by watchdog groups. Using the procedure it established to protect itself from liability under the Digital Millennium Copyright Act, Google sent notice to the bloggers of the claims of copyright infringement it received regarding the blogs. Although there are reports that some of the bloggers had permission to post the music, the sites were deleted when the bloggers did not contest the complaints. Bloggers and website owners should check their emails for DMCA takedown notices often, and respond accordingly when they are falsely accused of including content without permission.

Are Your Website Terms and Conditions Enforceable?

Jennifer A. Puplava — Fri, 15 Jan 2010 19:59:35 +0000

Companies doing business online should review their site terms and conditions to confirm they will be enforceable.

A federal judge in the Eastern District of New York has held that a consumer was not bound by an arbitration provision found in a website’s terms and conditions. The judge reached this decision after noting that:

(1) the link to the terms and conditions (which was not visible unless the user scrolled down to the bottom of the screen) was not prominently displayed;

(2) the website did not prompt the consumer to review the terms and conditions; and

(3) viewing the terms and conditions was not required to effectuate the consumer’s purchase.

See Hines v Overstock.com, Inc., No. 09-cv-991, 2009 WL 2876667, 2009 U.S. Dist. LEXIS 81204 (ED NY filed September 8, 2009).

The Inaugural Post.

Jennifer A. Puplava — Fri, 15 Jan 2010 19:55:10 +0000

Welcome to my blog!

I am Jennifer Puplava, and I am an attorney. I routinely assist my clients with technology law issues. My firm, Mika Meyers Beckett & Jones, is located in Grand Rapids, Michigan.

So what can you expect to see here? This blog will be devoted to technology law. You will find my comments about content regulation and first amendment issues, protection of intellectual property, e-commerce, contracting and licensing, spam, privacy and publicity, and other legal issues relating to technology. I hope to be able to provide helpful information regarding technology law.

Please understand that because the law, the facts, and the client make every case unique, the postings on this blog are not legal advice. Your comments are welcome, but be warned that your posts are not confidential, and I retain the right to edit or delete them if I deem them to be inappropriate. Also, by posting anything, you authorize me to use your post for any purpose.

If you would like additional information about me, please visit my firm's website at mmbjlaw.com. Also, feel free to comment on posts or email me directly, or connect with me on LinkedIn.

Technology law is a constantly evolving field, with lots of complexities and new developments, and I'm excited to be here to share them with you. I will do my best to put new content up on the blog as often as possible, so be sure to check back often.