© Practising Law Institute CORPORATE LAW AND PRACTICE Course Handbook Series Number B-2308 Ethics in Social Media 2017 Chair Richard Raysman To order this book, call (800) 260-4PLI or fax us at (800) 321-0093. Ask our Customer Service Department for PLI Order Number 186237, Dept. BAV5. Practising Law Institute 1177 Avenue of the Americas New York, New York 10036 © Practising Law Institute 1 Technology Law in the Digital Age: A Regularly-Updated Digest of Notable Developments (April 2016) Submitted by: Richard Raysman Holland & Knight LLP If you find this article helpful, you can learn more about the subject by going to www.pli.edu to view the on demand program or segment for which it was written. 31 © Practising Law Institute 32 © Practising Law Institute Table of Contents COPYRIGHT AND DIGITAL CONTENT .............................................................. 7 Modern Distribution of Digital Content .................................................. 7 Contributory and Vicarious Copyright Infringement ............................ 17 Copyright, Hot News, and News Aggregation..................................... 22 INFRINGEMENT AND MISAPPROPRIATION OF SOFTWARE AND TECHNOLOGY ......................................................................................... 26 Open Source Software ........................................................................ 31 Digital Millennium Copyright Act ......................................................... 35 Trade Secret and Other Misappropriation ........................................... 49 ONLINE DEFAMATION ..................................................................................... 51 CDA Section 230 Immunity ................................................................. 58 SOCIAL NETWORKS AND ONLINE ADVERTISING ....................................... 70 TRADEMARK INFRINGEMENT IN THE ONLINE ENVIRONMENT .................. 80 Keyword Advertising and Website Metatags ...................................... 84 Domain Name Litigation & Cybersquatting ......................................... 89 PRIVACY RIGHTS AND DATA SECURITY ...................................................... 94 Privacy-Related Enforcement Actions .............................................. 102 Computer Fraud and Abuse Act ....................................................... 105 Commercial Email and Spam ........................................................... 114 Telephone Consumer Protection Act ................................................ 117 First Amendment Issues in Digital Content ....................................... 120 TECHNOLOGY-RELATED PATENT LITIGATION .......................................... 124 ELECTRONIC CONTRACTING ....................................................................... 133 JURISDICTION AND PROCEDURE ................................................................ 138 3 33 © Practising Law Institute 34 © Practising Law Institute The secure establishment, in business and personal use, of the Internet and other modes of accessing information in digital form has raised novel and complex legal issues for today’s technology and intellectual property lawyers. The fast pace of this “information highway” stands in stark con- trast to the traditional landscape of commercial transactional and intel- lectual property law. Many existing laws were not designed to deal with a technology that disseminates information at the speed, with the con- venience, and to the mass audience now possible in the modern information age. Just as the number of Internet and wireless device users continues to multiply, the number of legal issues of first impression continues to make technology law an exciting and engaging area of practice. The information technology industry is constantly changing, and its evolution continues apace. New data and media formats, new applications and services, and new methods to access and store data are constantly introduced into the business and consumer markets. It is not only important for the technology law attorney to keep abreast of these changes, but also to the changes in the law. As such, this white paper provides a concise resource of some of the latest legal developments in technology law, data security and privacy, and e-commerce and licensing. For a more thorough discussion and consideration of these issues, please refer to Computer Law: Drafting and Negotiating Forms and Agreements, co-authored by Richard Raysman and Peter Brown (Law Journal Press 1984-2014), Intel- lectual Property Licensing: Forms and Analysis (Law Journal Press 1999- 2014), co-authored by Richard Raysman, Edward A. Pisacreta, Kenneth A. Adler and Seth H. Ostrow, and Emerging Technologies and the Law: Forms & Analysis (Law Journal Press 1994-2014), co-authored by Richard Raysman, Peter Brown, Jeffrey D. Neuburger and William E. Bandon, III. For a compendium of recent articles and alerts that discuss technology law issues in greater depth, please visit the firm’s website at www.hklaw. com and the Digital Technology & E-Commerce Blog. 5 35 © Practising Law Institute 36 © Practising Law Institute COPYRIGHT AND DIGITAL CONTENT Information technology has revolutionized the methods for creating, reproducing, and disseminating copyrighted works and has consequently opened the door to instances of wide-scale copyright infringement. Com- bined with powerful software applications, the Internet is an ideal medium, in terms of its ease of use and wide audience, for replicating copyrighted works. With the simple push of a button or a click of a mouse, a user can upload information, making it available to a worldwide audience, or extract and download information posted on the Web. Services or products that facilitate access to websites throughout the world can significantly magnify the effects of otherwise immaterial infringing activities. When copyrighted information is made available online without the permission of the copyright holder, two questions may arise: Who is liable? Under what legal theory (e.g., copyright infringement, DMCA violation, etc.)? A party who makes or distributes unauthorized copies of copyrighted works may be a direct infringer, but other participants, such as electronic bulletin board operators, website operators, bloggers, social network sites, peer-to-peer networks, video sharing sites, and ISPs, can potentially be liable as contributory or vicarious infringers. Modern Distribution of Digital Content ○ American Broadcasting Companies, Inc. v. Aereo, Inc. – Aereo, Inc. sold a service that allowed its subscribers to watch television programs over the Internet at about the same time as the programs are broadcast over the air. When a subscriber wants to watch a show that is currently airing, he selects the show from a menu on Aereo’s website. Aereo’s system, which consists of thousands of small antennas and other equipment housed in a centralized ware- house, responds roughly as follows: A server tunes an antenna, which is dedicated to the use of one subscriber alone, to the broad- cast carrying the selected show. A transcoder translates the signals received by the antenna into data that can be transmitted over the Internet. A server saves the data in a subscriber-specific folder on Aereo’s hard drive and begins streaming the show to the sub- scriber’s screen once several seconds of programming have been saved. The streaming continues, a few seconds behind the over- the-air broadcast, until the subscriber has received the entire show. In the 2014 term, the Supreme Court held that Aereo’s service both (a) “performed” the copyrighted works within the meaning of the Copyright Act, and (b) “performed” the works “publicly” 7 37 © Practising Law Institute within the meaning of the Transmit Clause of the Act.1 Accord- ingly, Aereo was committing copyright infringement by retrans- mitting the signals of the broadcaster’s without consent. After two Supreme Court cases holding that the rechanneling of broad- caster signals rendered the entities doing the rechanneling as “view- ers” and not “performers” the Act was amended to “completely overturn[]” the “narrow construction” employed in those cases.2 In relevant part, the Act was amended so that both the broadcaster and the viewer “perform” the work because they both show the program’s images and make audible the program’s sounds. The court likewise held that Aereo performed the works publicly under the meaning of the Transmit Clause. Among other reasons for holding that Aereo performed the copyrighted works publicly, the court held that: (1) the stated objectives of the Act amendments should not yield to the unique nature of the Aereo transmission system given that Aereo has a commercial objective and its service does not deliver programming to its viewers in any way so as to alter the viewing experience (2) the statutory language of the Act indicates that the Transmit Clause refers to multiple, discrete transmissions (as Aereo would do any time any 2 or more of its subscribers were watching the same program) and not a single transmission; (3) and that Aereo facilitates the performance of the works publicly because its subscribers may receive the same pro- grams at different times and locations, and under the Transmit Clause “the public” need not to be situated together, spatially or temporally. Rather, a work is transmitted publicly under this clause “whether the members capable of receiving the performance … receive it in the same place or in separate places and at the same 1. American Broadcasting Companies,