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Digital Entertainment, Mobile & Internet Law Year in Review

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Trusts andELIP Estates Section Section Digital Entertainment, Mobile & Internet Law Year in Review Thursday, February 25, 2016 12:30 - 1:30 PM Lawry’s Restaurant Beverly Hills, CA Speakers Ian Ballon, Greenberg Traurig LLP Tracey Freed, Freed Law P.C. 1 hour of CLE credit Digital Entertainment, Mobile & Internet Law Year in Review – February 25, 2016 PROGRAM MATERIALS INDEX Current State of the Law on Sponsored Link Advertising Page 1 Copyright Fair Use Page 85 DMCA Safe Harbors: An Analysis of the Statute and Case Law Page 116 Defending Data Privacy Class Action Litigation Page 399 Defending Security-Breach Class Action Litigation Page 458 CURRENT STATE OF THE LAW ON SPONSORED LINK ADVERTISING Excerpted from Chapter 9 (Search Engine Marketing, Optimization and Related Indexing, Information Location Tools and Advertising Practices—Unique I.P. Issues) of E-Commerce and Internet Law: A Legal Treatise With Forms, Second Edition, a 4-volume legal treatise by Ian C. Ballon (Thomson/West Publishing 2016) DIGITAL ENTERTAINMENT, MOBILE AND INTERNET REVIEW ENTERTAINMENT LAW AND INTELLECTUAL PROPERTY SECTION OF THE LOS ANGELES COUNTY BAR ASSOCIATION LAWRY’S RESTAURANT FEBRUARY 25, 2016 Ian C. Ballon Greenberg Traurig, LLP Los Angeles: Silicon Valley: 1840 Century Park East, Ste. 1900 1900 University Avenue, 5th Fl. Los Angeles, CA 90067 East Palo Alto, CA 914303 Direct Dial: (310) 586-6575 Direct Dial: (650) 289-7881 Direct Fax: (310) 586-0575 Direct Fax: (650) 462-7881 [email protected] <www.ianballon.net> LinkedIn, Twitter, Facebook, Google+: IanBallon This paper has been excerpted from E-Commerce and Internet Law: Treatise with Forms 2d Edition (Thomson West 2016 Annual Update), a 4-volume legal treatise by Ian C. Ballon, published by West LegalWorks Publishing, 395 Hudson Street, New York, NY 10014, (212) 337-8443, www.ianballon.net. Ian C. Ballon Los Angeles 1840 Century Park East Shareholder Los Angeles, CA 90067 Internet, Intellectual Property & Technology Litigation T 310.586.6575 F 310.586.0575 Admitted: California, District of Columbia and Maryland Second, Third, Fourth, Ninth and Federal Circuits U.S. Supreme Court Silicon Valley JD, LLM, CIPP 1900 University Avenue 5th Floor [email protected] East Palo Alto, CA 94303 LinkedIn, Twitter, Facebook, Google+: Ian Ballon T 650.289.7881 F 650.462.7881 Ian Ballon represents entertainment, media and technology companies in intellectual property, internet and mobile-related litigation, including the defense of data privacy, security breach, behavioral advertising and TCPA class action suits. He is also the author of the leading treatise on Internet law, E-Commerce and Internet Law: Treatise with Forms 2d edition, the 4- volume set published by West (www.IanBallon.net). In addition, he is the author of The Complete CAN-SPAM Act Handbook (West 2008) and The Complete State Security Breach Notification Compliance Handbook (West 2009). He also serves as Executive Director of Stanford University Law School’s Center for E-Commerce, which hosts the annual Best Practices Conference where lawyers, scholars and judges are regularly featured and interact. Mr. Ballon has brought or defended significant and often cutting edge suits involving computer software, the Internet and mobile technology. A list of recent cases may be found at http://www.gtlaw.com/People/Ian-C-Ballon. Mr. Ballon was named the Lawyer of the Year for Information Technology Law in the 2013 and 2016 editions of Best Lawyers in America. In addition, he was the 2010 recipient of the State Bar of California IP Section’s Vanguard Award for significant contributions to the development of intellectual property law (http://ipsection.calbar.ca.gov/IntellectualPropertyLaw/IPVanguardAwards.a spx). He is listed in Legal 500 U.S., The Best Lawyers in America (in the areas of information technology and intellectual property) and Chambers and Partners USA Guide in the areas of privacy and data security and information technology. He also has been recognized by The Daily Journal as one of the Top 75 IP litigators in California in every year that the list has been published, from 2009 through 2015, and has been listed as a Northern California Super Lawyer every year from 2004 through 2015 and as one of the Top 100 lawyers in California. Mr. Ballon also holds the CIPP/US certificate for the International Association of Privacy Professionals (IAPP). Chapter 9 Search Engine Marketing, Optimization and Related Indexing, Information Location Tools and Advertising Practices—Unique I.P. Issues 9.01 Information Distribution, Indexing and Retrieval—In General 9.02 Caching 9.02[1] In General 9.02[2] Temporary Caching: Web Browsing 9.02[3] Proxy Caching 9.02[4] Potential Copyright Defenses: The DMCA Liability Limitation for System Caching, Fair Use, Implied License and the Sony Safe Harbor 9.02[5] Liability for Unauthorized Caching Under Trademark and Unfair Trade Law 9.02[6] Potential Patent Liability for Caching 9.02[7] Caching Agreements 9.02[8] Caching and Child Pornography 9.03 Hypertext Links 9.03[1] Links and Liability for Linking—In General 9.03[2] Linking Compared to Caching 9.03[3] Potential Copyright Liability for Creating Hyperlinks 9.03[3][A] Grounds for Liability 9.03[3][A][i] In general 9.03[3][A][ii] Liability for unwanted links to genuine Pub. 12/2015 9-1 E-Commerce and Internet Law material on a copyright owner's own site 9.03[3][A][iii] Multiple links 9.03[3][B] General Defenses to Liability, their Limitations and Ways to Negate them: Implied License, Fair Use, De Minimis Infringement and the Sony Safe Harbor 9.03[3][C] DMCA Safe Harbor Liability Limitation for Information Location Tools 9.03[3][D] Extra-Judicial Remedies Available to Copyright Owners under the DMCA 9.03[4] Signicance of Web Linking Agreements 9.03[5] Case Study: Shetland Times, Ltd. v. Wills 9.03[6] Linking Liability Under Trademark and Unfair Trade Law 9.03[6][A] In General 9.03[6][B] Trademarks As Icons and Underlined Text 9.03[6][C] Site Links vs. Content Links 9.03[7] Content Links—Ticketmaster Corp. v. Microsoft Corp. 9.03[8] Potential Patent Liability for Hypertext Links 9.03[9] State Statutes Restricting Linking 9.03[10] Liability for Refusing to Provide a Link 9.04 Frames and In-line Links 9.04[1] In General 9.04[2] The Washington Post Co. v. TotalNews Inc. 9.04[3] Can the Copyright Act Be Stretched to Cover Frames? 9.04[3][A] Is a Framed Site a Derivative Work? 9-2 Search Engine Marketing 9.04[3][B] Moral Rights 9.04[3][C] The Potential Applicability of the Digital Millennium Copyright Act 9.05 Using Technology to Block Links and Frames 9.06 Practical Strategies to Minimize Liability for Linking or Framing 9.07 Downloading and Printing 9.08 Bots, Screen Scraping and Content Aggregation 9.08[1] In General 9.08[2] Using Bots to Copy Creative or Expressive Content 9.09 Search Engine Indexing Practices: Links, Snippets, Thumbnail Images and Favicons 9.10 Metatags and Other Hidden Text 9.10[1] In General 9.10[2] The Signicance of Metatags and Placement in Response to Search Engine Queries 9.10[3] Metatag Case Law 9.10[3][A] Early Metatag Cases and the Development of the Law 9.10[3][B] Brookeld Communications, Inc. v. West Coast Entertainment Corp. 9.10[3][C] The Current State of the Law on Metatags Under the Lanham Act 9.10[4] Fair Use 9.10[5] Third-Party Liability for Metatags 9.10[6] Practical Steps to Limit Metatag Infringement 9.10[7] Metatags as Evidence of Intent in Non-Trademark Cases 9.11 Keywords,y, Banner Advertisements and Sponsoredp Links 9.11[1] In General 9.11[2] Banner Advertisements 9.11[3] Sponsored Links, Pop Up Ads and Pub. 12/2015 9-3 E-Commerce and Internet Law SearchSearch Results and AdvertisementAdvertisementss on SalesSales SitesSites 9.11[4] State Law Claims and Preemption 9.11[5] Checklist 9.12 Blog, Message Board and Chat Room Liability 9.13 Strategies for Dealing with Fan and Consumer Criticism or Gripe Sites, Blogs and Social Network Pages Appendix 1. Adobe Systems, Inc., Claris Corp. & Traveling Software, Inc., v. Tripod, Inc. and Bo Peabody Appendix 2. Washington Post et al. v. Total News et al.—Complaint Appendix 3. Insituform v. National Envirotech Group LLC, et al.—Final Judgment on Consent KeyCiteL: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on WestlawL. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials. 9.01 Information Distribution, Indexing and Retrieval—In General The Internet—and in particular the World Wide Web— created new ways for individuals to search for and nd infor- mation, while at the same time lowering the costs and barri- ers to entry for “publishers” such that virtually anyone with Internet access and a computer or mobile device can publish and distribute information on their own blogs, wiki, or other websites and through RSS feeds. The ways in which infor- mation is accessed and distributed online—and the tools used by companies and individuals to lure people to their sites or divert them away from other locations—implicate intellectual property law questions, many of which are unique to the Internet. This chapter focuses particular at- tention on links, frames, metatags, keywords (used for ban- ner ads, sponsored links and other Internet advertising or 9-4 Search Engine Marketing 9.11[1] 9.11 Keywords, Banner Advertisements and Sponsored Links 9.11[1] In General Paying to have an advertisement delivered to a user who inputs a third party's mark as a keyword or search term may lead to liability or may be a permissible use, depending on the context.
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