Communication Media & Internet Archives - Page 51 of 66

Firings for Facebook Comments Unlawful, NLRB Rules

An employer violated the National Labor Relations Act by discharging two employees because of their participation in a Facebook discussion about their employer’s State income tax withholding mistakes, by threatening employees with discharge for their Facebook activity, by questioning employees about that activity, and by informing employees they were being discharged because of their Facebook activity, the NLRB has ruled. The Board also ruled the employer’s Internet/Blogging policy violated the NLRA. Triple Play Sports Bar and Grille, 361 NLRB No. 31 (2014).

Facebook Posts

Triple Play employees Jillian Sanzone and Victor Spinella discovered they owed more in State income taxes on their earnings at the sports bar than expected. Sanzone discussed this at work with other employees, and some employees complained to the employer about the tax problem. The employees did not belong to a union.

Sanzone, Spinella, and former employee Jamie LaFrance had Facebook accounts. On January 31, 2011, LaFrance posted the following “status update” to her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…[expletive deleted]!!!!

The following comments were posted to LaFrance’s page in response:

KEN DESANTIS (a Facebook “friend” of LaFrance’s and a customer): “You owe them money…that’s [expletive deleted] up.”

DANIELLE MARIE PARENT (Triple Play employee): “I [expletive deleted] OWE MONEY TOO!”

LAFRANCE: “The state. Not Triple Play. I would never give that place a penny of my money. Ralph [DelBuono] [expletive deleted] up the paperwork…as per usual.”

DESANTIS: “yeah I really dont go to that place anymore.”

LAFRANCE: “It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

At this point, Spinella selected the “Like” option under LaFrance’s initial status update. The discussion continued:

LAFRANCE: “We shouldn’t have to pay it. It’s every employee there that its happening to.”

DESANTIS: “you better get that money…thats [expletive deleted] if that is the case im sure he did it to other people too.”

PARENT: “Let me know what the board say because I owe $323 and ive never owed.”

LAFRANCE: “I’m already getting my 2000 after writing to the labor board and them investigating but now I find out he [expletive deleted] up my taxes and I owe the state a bunch. Grrr.”

PARENT: “I mentioned it to him and he said that we should want to owe.”

LAFRANCE: “Hahahaha he’s such a shady little man. He prolly pocketed it all from all our paychecks. I’ve never owed a penny in my life till I worked for him. Thank goodness I got outta there.”

SANZONE: “I owe too. Such an [expletive deleted].”

PARENT: “yeah me neither, i told him we will be discussing it at the meeting.”

SARAH BAUMBACH (Triple Play employee): “I have never had to owe money at any jobs…i hope i wont have to at TP…probably will have to seeing as everyone else does!”

LAFRANCE: “Well discuss good bc I won’t be there to hear it. And let me know what his excuse is ;).”

JONATHAN FEELEY (a Facebook “friend” of LaFrance’s and customer): “And ther way to expensive.”

Sanzone and Spinella Discharged

When Ralph DelBuono, the employer’s co-owner, learned about the Facebook discussion, he discharged Sanzone, telling her it was because of her Facebook comment. Spinella was terminated the next day, after being interrogated about the Facebook discussion, the meaning of his “Like” selection, the identity of the others in the conversation, and other issues. The other co-owner told Spinella that, because Spinella “liked” the disparaging and derogatory comments, Spinella was disloyal and it was “apparent” that Spinella wanted to work elsewhere. He told Spinella, “[Y]ou will be hearing from our lawyers.” Thereafter, the company’s attorney contacted Sanzone by letter, suggesting a possible defamation action. The lawyer also contacted LaFrance who, in response, deleted the entire Facebook conversation and posted a retraction.

Sanzone and Spinella filed separate unfair labor practice charges against Triple Play, which the NLRB consolidated into one complaint.

The employer did not dispute the employees’ Facebook activity was concerted and they had a protected right to engage in a Facebook discussion about the employer’s tax withholding calculations. The employer, however, contended it had not violated the NLRA because the plaintiffs had adopted LaFrance’s allegedly defamatory and disparaging comments, which were unprotected. The employer also asserted the Facebook posts were unprotected because they were made in a “public” forum, accessible to employees and customers, and they had undermined the co-owner’s authority in the workplace and adversely affected its public image.

Comments Protected

The Board disagreed. It determined the employees did not lose the Act’s protection to engage in concerted activity because of their comments in the Facebook discussion. Under its holding in Atlantic Steel, 245 NLRB 814 (1979), the NLRB explained, it must balance employee rights with the employer’s interest in maintaining order at its workplace, but Atlantic Steel dealt with workplace confrontations with the employer, which was not the scenario here. The employer’s reliance on that decision was therefore misplaced. In this case, the Board pointed out, the disputed conduct involved a social media discussion among offsite, off-dutyemployees, and two non-employees in which no manager or supervisor participated and where there was no direct confrontation with management. Further, the Board said, Sanzone’s “use of a single expletive” to describe her manager “in the course of a protected discussion on a social media website” did not “sufficiently implicate” the employer’s “legitimate interest in maintaining discipline and order in the workplace.”

The Board also rejected the employer’s argument that Sanzone’s comment was unprotected because it was a workplace confrontation that could be seen by customers DeSantis and Feeley. The NLRB noted they joined the discussion as LaFrance’s Facebook friends, on their own initiative and in the context of a social relationship with LaFrance outside of the workplace, not because they were the employer’s customers, and“[t]his off-duty indiscretion away from the [employer’s] premises did not disrupt any customer’s visit to the [employer].”

Neither did the Board see this conduct as disloyal or defamatory. While the Board agreed an employer has a legitimate interest in preventing the disparagement of its products or services and in protecting its reputation from defamation, against which NLRA Section 7 rights are to be balanced, that interest was not pr
esent here so as to overcome the employees’ statutory protection. It rejected the employer’s contention that Sanzone’s comment and Spinella’s “like” were disloyal and unprotected. The purpose of the employees’ communications was to seek and provide mutual support to encourage the employer to address problems in the terms or conditions of employment, not to disparage its product or services or to undermine its reputation, the NLRB said. The discussion clearly showed a labor dispute existed and the employees’ participation was not directed to the general public (they were more comparable to conversations that can be overheard by a customer). Further, the Board said the comments were not “so disloyal . . . as to lose the Act’s protection” because they did not even mention the employer’s products.

The Board also rejected the contention that the employees’ comments were unprotected because they were defamatory. According to the agency, Triple Play had not met its burden to establish the comments were made with knowledge of their falsity or with reckless disregard for their truth or falsity. In addition, it said that Sanzone’s use of an expletive to describe a co-owner in connection with the asserted tax-withholding errors “cannot reasonably be read as a statement of fact; rather, Sanzone was merely (profanely) voicing a negative personal opinion of [the co-owner].”

“Like” Protected

The Board also decided that Spinella’s use of Facebook’s “like” option was protected. It expressed agreement only with the comment it immediately followed (LaFrance’s original post), the Board found, not with LaFrance’s other comments. Accordingly, said the Board, Spinella’s activity was protected by the Act, and the employer’s adverse action was unlawful. (See our blog post, Employee’s Facebook ‘Like’ is Part of Concerted Activity: NLRB.)

Internet/Blogging Policy Unlawful

The Board faulted the employer’s internet/blogging policy, as well. It found that, since employees would reasonably construe the employer’s “Internet/Blogging” policy to prohibit the type of protected Facebook post that led to the unlawful discharges, it was illegal.

The policy stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, email, text message, or other forms of communication extend to employees revealing confidential and proprietary information about the company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

Employees could reasonably interpret the policy as proscribing discussions about terms and conditions deemed “inappropriate” by the employer, because “‘inappropriate’ [is] ‘sufficiently imprecise’ that employees would reasonably understand it to encompass ‘discussions and interactions protected by Section 7,’” the Board found.

Employer Cautions

This decision is wide-ranging. It underscores the need for employers to pause, reflect, and thoroughly investigate before taking action against employees for alleged misconduct where they have acted together in regard to their wages, hours or working conditions, even where their language might give offense to the employer despite the fact that members of the public can view their complaints. The decision also shows the NLRB affords significant leeway to employees, even permitting public invective against business owners — at least up to a point. Finally, employers should avoid policies and rules that contain broad, imprecise, or vague prohibitions that might be viewed as restricting unlawfully employees’ protected activity.

ARTICLE BY

Howard M. Bloom

Philip B. Rosen

Jackson Lewis P.C.

California’s New Kill-Switch Law Targets Smartphone Thieves

California legislators recently signed Senate Bill 962 into law, which requires manufacturers to install kill-switches on smartphones sold in California that are made on or after July 1, 2015. A kill-switch allows a smartphone owner to remotely disable the device via a wireless command, which renders the device inoperable to unauthorized users. This new law was passed on August 25 to deter smartphone theft in California.

Although manufacturers must include the kill-switch on smartphones, consumers will have the option to disable it as long as the consumer is informed that the function is designed to protect him or her from unauthorized use of the phone.

ARTICLE BY

Vito Petretti

James R. Sherwood

Morgan, Lewis & Bockius LLP

Analog in a Digital World: Journalism and Blogs and Where to find Good Information

In an article profiling John R. MacArthur, the publisher of Harper’s Magazine, MacArthur is quoted as saying, “I’ve got nothing against people getting on their weblogs, on the Internet and blowing off steam. If they want to do that, that’s fine. But it doesn’t pass, in my opinion, for writing and journalism.” The article goes on to note that MacArthur is “analog in his habits” because he “prints out articles to read” and that “[h]is version of searching for [a fact] on Google was yelling to a staff member, who hurried to deliver the information.”

McArthur certainly expresses a sympathetic position. A 24-hour news cycle has contributed to an environment where airtime needs to be filled – recent examples of well-publicized overexposure include CNN’s coverage of the Malaysian Air disappearance or the Casey Anthony trial. And because anyone with an internet connection and a Twitter account can “break” news, there is a race to the bottom as to which organization can print the news first as opposed to which can report it most accurately. The inevitably incendiary rush to judgment after the report of a rumor reported as fact seems only to support MacArthur’s position.

But where MacArthur and I part ways is in our view of what blogs or “lighter” commentary may provide. Instead of web commentary offered as simply “blowing off steam,” the internet is more of a tray of samples. You can try a little of anything, and if you’d like more, then that’s available to you as well.

That’s really the beauty of the internet, right? You can critique Buzzfeed’s lists, but they are a quick read that provide you with the opportunity to read more – possibly even from a true “writing and journalism” source. I mean, no one would think to use this blog exclusively as a defense to criminal charges or as any sort of compliance manual. But ideally, it would help you spot issues or pique your interest so that you read more on a particular topic, consult with counsel, or find a way to improve your workplace.

I like to think about the internet like a newspaper with only headlines. I can get the gist of the story from the headline, and if I’m interested, I can read more. (Example: “Salmon Spawning in Seattle” will not encourage me to read further. But hit me with “Cowboys Sweep Eagles, Giants” and I’m 100 percent in.)

MacArthur and I simply diverge on this implied concept that analog habits are somehow better than digital habits. Perhaps it is the trial lawyer side of me, but I try to be open to ways in which you can convey information. People learn in a variety of different ways: some learn by hearing, some learn by seeing, some learn by doing. Some have longer attention spans; some give hummingbirds a run for their money. So the more ways that you can find to reach people, the better odds of success you have in conveying information that they can use.

And that’s the takeaway point here (yay!). Imagine if your organization disseminated a ten-page written policy on what to do if a federal agent knocks on the door. That’s some important information right there. Is everyone going to read and understand it? Unlikely, right? Too busy to get to it right now, will read it tomorrow, and so on? Yup, that’s the MacArthur way. It just doesn’t work by itself.

Okay, change it up. Skip the written policy and instead conduct a 10-minute training session covering the key facts. Have you taught everyone everything they need to know? Probably not, but you hit the high points. Even if a couple of folks dozing in the back of the room missed it. Right. That would be the Buzzfeed way. This doesn’t work by itself, either.

So instead, disseminate the policy to everyone, and you’ll capture the folks who learn by reading. And conduct your training session, and you’ll capture those folks who learn by listening. And then, as a bonus, rehearse the drill, so you capture those folks who learn by doing. It’s the last piece that most organizations miss, and thereby miss a huge opportunity to make sure their people understand the policies and that their policies actually work.

You can be analog like MacArthur or digital like Buzzfeed. But really effective communication is a blend of both … and just a touch more.

ARTICLE BY

Shamoil T. Shipchandler

Bracewell & Giuliani LLP

Microsoft Ordered to Hand Over Data to the U.S. Government

In April, Microsoft tried to quash a search warrant from law enforcement agents in the United States (U.S.) that asked the technology company to produce the contents of one of its customer’s emails stored on a server located in Dublin, Ireland. The magistrate court denied Microsoft’s challenge, and Microsoft appealed. On July 31st, the software giant presented its case in the Southern District of New York where it was dealt another loss.

U.S. District Judge Loretta Preska, after two hours of oral argument, affirmed the magistrate court’s decision andordered Microsoft to hand over the user data stored in Ireland in accordance with the original warrant. Microsoft argued that the warrant exceeded U.S. jurisdictional reach. However, the court explained that the decision turned on section 442(1)(a) of Restatement (Third) of Foreign Relations. The provision says that a court can permit a U.S. agency “to order a person subject to its jurisdiction to produce documents, objects or other information relevant to an action or investigation, even if the information or the person in possession of the information is outside the United States.” Because Microsoft is located in the U.S. , the information it controlled abroad could be subject to domestic jurisdiction.

Microsoft had the support of large U.S. technology companies, including Apple, AT&T and Verizon. The larger issue for these companies lies in the U.S. government’s power to seize data and content held in the cloud and stored in locations around the world. When a conflict arises between the data sharing laws of the country where the servers are located and U.S. law, it can put these companies in the difficult position to choose to follow one country’s laws over the other.

Microsoft further argued that the ramifications for international policy are substantial. The company argued that compelling production of foreign stored information was an intrusion upon Irish sovereignty. It said that the decision could be interpreted by foreign countries as a green light to make similar invasions into data stored in the U.S. However, Judge Preska dismissed these concerns as diplomatic issues that were incidental and not of the court’s immediate concern.

The order has been stayed pending appeal.

ARTICLE BY

Rohit Dave

Proskauer Rose LLP

Third Circuit Federal Appeals Court Rules Attorneys Have Right to Publish Praise from Judges

A federal appeals court issued a ruling yesterday that attorneys have a First Amendment right to publish ads that quote judges praising them, a decision that reverses a lower court ruling.

federal judge The case involves a New Jersey employment attorney, Andrew Dwyer, who initially published praise from two jurists on his website. The published quotes were excerpts from unpublished (but publicly available) judicial opinions. One of the judges sent Dwyer a letter requesting that his quote be removed from the website. Dwyer refused because he did not believe the quote was misleading or false.

The matter was forwarded to a committee of the New Jersey Bar, resulting in a proposed guideline that barred attorneys from using a quotation from a judge or court opinion regarding the attorney’s abilities or legal services. Dwyer argued that the new guideline was an unconstitutional ban on free speech.

Fast-forward to 2012, when the NJ Supreme Court approved an amended guideline saying that attorneys could use quotes from judges or opinions, but that the full text of the opinion must be used instead of excerpts.

Dwyer filed suit against the NJ Bar committee that developed the guideline before it went into effect and moved for a TRO and preliminary injunction to enjoin enforcement of the guideline. A NJ District Court denied the request. Both parties then filed cross-motions for summary judgment, which the District Court granted to the committee.

Dwyer then appealed and yesterday, the Third U.S. Circuit Court of Appeals ruled in his favor, calling the guideline “onerous” and saying that it imposed an unconstitutional burden on Dwyer:

“Guideline 3 as applied to Dwyer’s accurate quotes from judicial opinions thus violates his First Amendment right to advertise his commercial services. Requiring Dwyer to reprint in full on his firm’s website the opinions noted above is not reasonably related to preventing consumer deception.”

This decision could have farther-reaching effects in terms of how attorneys use testimonials in their advertising. Will certainly be interesting to watch!

ARTICLE BY

Stephen Fairley

The Rainmaker Institute

HTTPS – Should I Implement It on My Site?

Google announced last Wednesday, August 6, that the search engine will use https as a ranking signal. HTTPS stands forHypertext Transport Protocol Secure, which protects the data integrity and confidentiality of users visiting a site. For example, when a user enters data into a form on a site in order to subscribe to updates or purchase a product, a secure site protects that user’s personal information and ensures that the user communicates with the authorized owner of the site. For the HTTPS connection to work properly, websites require an SSL certificate, which is what enables the site to make a secure connection.

HTTPS Hypertext Transport Protocol Secure

Even though Google is making this change, it is not something that webmasters should jump into lightly. Webmasters should implement https only when they really need it and have sections in their site where they need to protect their visitors’ information.

Before making any drastic changes to the site, it is important to take into consideration that Google stated that this change will affect less than one percent of queries, carrying less weight than other signals such as high-quality content.

Cons of using https

Up until this recent announcement, it was recommended only using https on the sections of the site that needed to protect the confidentiality of user data, such as payment forms that collected credit card information, the site’s login section or any page that would sends/receive other private information (such as street address, phone number or health records), because using https in the whole site can overload webservers and make sites slower, which affects negatively on a site’s ranking.
Changing to https also means that all of the URLs in your site will change and it will be necessary to redirect all of the URLs on the site, so that they can be indexed by Google and avoid having duplicate content between https and http URLs. Redirects usually increase the load time of the site, which can be negative ranking factor and reduce the link juice coming from external sites pointing to http URLs.
SSL certificates cost money, and certificates signed by well-known authorities can be expensive.

I advise against making an immediate decision to change to https because it is a recent change and apparently the effort to switch exceeds the benefit obtained in rankings. Right now it is better to stand back and observe how the change affects those sites that alter their URLs to https.

ARTICLE BY

Robert Padgett

Consultwebs.com, Inc.

Cameras Coming to an Illinois Courtroom Near You: What Are the Rules and What Impact Might They Have

Probably everyone saw portions of the O.J. Simpson and George Zimmerman trials, because each was a high profile case broadcasted on live television. Now, cameras are coming to Illinois courtrooms.

In January 2012, the Illinois Supreme Court approved the use of“extended media coverage” in the courtrooms of judicial circuits that applied for such coverage and received approval. “Extended media coverage” essentially means the use of still cameras, video cameras, and audio recording. Over time, 40 Illinois counties have applied for and received approval to allow extended media coverage in their courtrooms.

Attorneys and clients must familiarize themselves with the applicable rules for extended media coverage, and must consider and prepare for the practical implications if cameras will be present at trial. While such media coverage will likely be limited to criminal cases in most instances, it will inevitably occur in high profile civil cases, including some medical malpractice cases. And, if extended media coverage proves to benefit one side or the other over time, attorneys representing those parties will undoubtedly push for more and more coverage.

Who or What is Considered “Media”?

Historically, the media may have been thought of as newspapers and television stations. Today, however, the term media may include biased blogs, social media, or other similar internet media that does not follow basic standards of journalism. Luckily, Illinois rules operate with a more historical definition of media, thus limiting who may request to cover the trial and hopefully ensuring a certain amount of fairness in reporting. In order to be credentialed under the rules, a media member or organization must be regularly engaged in news gathering and reporting, cover judicial proceedings on a consistent basis, and must regularly follow basic journalistic standards for ethics, accuracy and objectivity.

Request for Extended Media Coverage

Extended media coverage is not allowed as of right. Instead, a credentialed media member must make a written request and have that request granted by the court before extended media coverage is allowed. The request for media coverage must be made at least 14 days before the trial or hearing the media member wishes to cover. Further, the written request must be provided to all attorneys. The 14 day requirement allows the defense time to consider the request and make appropriate objections prior to the trial or hearing.

Objection to Extended Media Coverage

Objections to extended media coverage may be raised by the parties to the lawsuit and may also be raised by witnesses. In either case, a written objection is required, but the timing of the objection can differ for parties and witnesses. If a party, i.e. plaintiff or defendant, wishes to object, his written objection must be filed at least 3 days before the beginning of the trial or hearing. Witnesses must be advised by the attorney presenting their testimony of the right to object, and the witness must file his objection before the beginning of the trial or hearing. The rule also allows the judge to exercise discretion to consider objections that do not comport with the timing requirements.

Once an objection to extended media coverage has been made, the judge may rule on the basis of the written objection alone, or he may choose to hear evidence. At his discretion, the judge may choose to hear evidence from a party, witness, or media coordinator before ruling.

It would be inadvisable to object to media coverage in a trial where no member of the media has made a written request for coverage. Such a pre-emptive motion would be likely to draw media interest where none previously existed.

Technical Requirements and Sharing Equipment

Technical requirements for the cameras and other equipment are provided in the rules. The overall theme of these rules is to ensure that any equipment is not obstructive or disruptive during the trial or hearing. The equipment cannot produce distracting lights or noises during operation. Further, no flashbulbs or other lighting may be used to aid the cameras.

The rules limit the amount of equipment allowed in the courtroom, again with the overall goal of limiting obstructions and distractions. A maximum of two still cameras and two television cameras are allowed, but the judge may choose to limit that to only one still camera and one television camera. Only one audio recording system is permitted. Obviously, if multiple media outlets wish to cover the trial or hearing, they may be required to share the video and audio stream under the rules.

What May be Filmed or Photographed

Most trials and other hearings may be recorded, with exceptions limited mostly to the area of family law. Importantly though, several portions of the trial cannot be recorded. Jury selection cannot be recorded at all, and the media is forbidden from filming or photographing individual jurors or the jury as a whole. This is an important protection provided in the rule, because if a juror is assured that he cannot be recorded, the juror should feel less inclined to consider public opinion in deciding the case. Further, the media may not record interactions between the lawyer and client, between opposing lawyers, or between the judge and the lawyers, i.e. sidebars. And, no materials, papers or exhibits can be recorded unless they are admitted to evidence or shown to the jury. These limitations are obviously important to protect the confidential attorney-client relationship, among other things. Finally, no filming is allowed during recesses or in the public areas or hallways, which provides some known off-camera time.

Live Blogging

A judge also has discretion to allow live blogging during a trial or other proceeding, which does not include visual or audio recording. The most typical example of live blogging would be tweeting, but includes any transmittal in text form of testimony, proceedings, and summaries from the courtroom. Again, only credentialed news media are allowed to engage in live blogging.

The rule allowing for live blogging simply says that it may be allowed upon request. It does not provide a time-period within which the request must be made, and does not provide for objections. However, the decision to allow live blogging is left to the “absolute discretion” of the judge, and therefore, it seems reasonable that a judge would also be vested with the authority to allow objections and consider whatever he deems necessary. In any event, an objection can always be stated on the record, whether or not the judge chooses to consider it.

Required Jury Admonishment and Jury Instruction

Jurors cannot be photographed or filmed, with the apparent goal of minimizing any influence or consideration of public opinion. Carrying this theme further, the rules require the trial judge to read an admonishment to the jury at the beginning of the trial and an instruction to the jury at the conclusion of trial regarding the media coverage. Of course, the admonishment and instruction advise the jury that they should not be influenced by or draw inferences based upon the presence of the media. Also, importantly, the admonishment advises the jury they cannot be photographed or filmed as a group or individually, and it advises the jurors to inform the court if the cameras are distracting or cause an inability to concentrate.

Practical Considerations and Potential Effects

At the outset, the lawyer and client should consider whether they do or do not want cameras in the courtroom. In most cases, the defense would prefer cameras not be present so that the trial is focused exclusively on liability and damages, not extraneous issues. If a request for extended media coverage is made, the lawyer and client should ask themselves why the request is being made, and whether a written objection should be filed. If an objection will be filed, however, it should be based upon specific facts or concerns in that case. The Illinois Supreme Court and local judicial circuit have already determined, from a policy standpoint, that cameras should be allowed if the rules are complied with. Therefore, objections based upon general concerns that cameras may be disruptive or may have a negative impact on the jury are likely to fail.

Conclusion

While most defendants and their lawyers are opposed to cameras in the courtroom, it appears that they are here to stay for the foreseeable future. Given the national trend toward cameras in the courtroom and instantaneous media, it’s hard to imagine that these rules will ever be reversed. Therefore, attorneys and clients will need to carefully consider how to operate within the rules in a way that most favors the presentation of their case.

ARTICLE BY

Matthew Thompson

Heyl, Royster, Voelker & Allen, P.C.

Facebook, Inc. v. Rembrandt Social Media, L.P., Granting Request for Rehearing IPR2014-00415

Takeaway: Compliance with Section 42.105(b) regarding service by electronic means or EXPRESS MAIL is not required under Section 42.106(a)(2) in order for a filing date to be accorded to a petition.

In its Decision, the Board granted Patent Owner’s Request for Rehearing, but only to revisit the Board’s earlier statement regarding compliance with the requirements for service of a petition.

In its Decision on Institution, the Board had stated that “mailing via FedEx after the cut-off time on Thursday without electing Saturday delivery failed to comply with 37 C.F.R. § 42.105(b).” Patent Owner contended that the Board “misapprehend[ed] the regulatory nature of an alleged error in service of the Petition in this case,” and that the Board misapprehended “whether a failure to effect service on February 6, 2014, was ‘harmless.’”

The Board found Patent Owner’s arguments not persuasive but granted the Request for Rehearing to address the service of the Petition in this case. The Board determined that service of the Petition in this case complied with 37 C.F.R. § 42.106, which states that a filing date will not be accorded until “service of the petition on the correspondence address of record as provided in [§] 42.105(a).” The Board stated that “Section 42.106(a)(2) does not require compliance with § 42.105(b) for a filing date to be accorded,” and that the Petition was properly accorded a February 6, 2014 filing date in this case.

Facebook, Inc. v. Rembrandt Social Media, L.P., IPR2014-00415
Paper 14: Decision on Request for Rehearing
Dated: July 31, 2014
Patent: 6,415,316
Before: Phillip J. Kauffman, Jennifer S. Bisk, and Matthew R. Clements
Written by: Clements

ARTICLE BY

Intellectual Property Litigation Drinker Biddle

Drinker Biddle & Reath LLP

How to Get Amazing Attention for Your Firm on Social Media

Human beings are wired for loving the spotlight. When you post something on social media and no one comments or likes, it feels almost like a personal rejection. And when you’re posting to get attention for your business and no one cares what you’re writing, you are wasting your time.

One of the most important ways to get noticed on social media — especially on Twitter — is to make sure your post has a great headline. There are actually very good psychological reasons for using certain words that makes it almost irresistible for people to click. Here are 8 proven formulas to craft your headlines around:

Surprise — using words that surprise or startle captures attention because we love novelty. Words that break the pattern stand out.
Questions — using questions works because a question mark stimulates the human brain to seek an answer.
Curiosity — using incomplete information in your headline to pique curiosity. A famous example of this is the 1926 ad with the headline, “They laughed when I sat down at the piano…but when I started to play…!”
Negatives — using negative superlatives like “worst” or “stop” intrigues us because we want to know if there is something we shouldn’t be doing.
How to — we all want to get better, so using “how to” in your headline makes a promise of improving the reader’s knowledge.
Numbers — because humans dislike uncertainty, we respond well to numbers in headlines.
Reader referencing — using phrases like, “For those who don’t know what to do after a car accident” or just the word “you” are powerful drivers.
Specifics — quantifiable facts and figures that elicit an image in our head are incredibly intriguing.

Here are more than 180 power words to use in your headlines, courtesy of CoSchedule.com:

ARTICLE BY:

Stephen Fairley

OF:

The Rainmaker Institute

Five Key Takeaways From ICANN 50 in London

The 50th Meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) took place in London from June 22–26. This marked the first time that an ICANN meeting has been held in London, and also resulted in the largest attendance record for an ICANN meeting, with more than 3,300 individuals registered in attendance. Despite what could be characterized as organized chaos on the ground during the meeting, the following five topics and takeaways began to emerge for brand owners and new generic top-level domain (gTLD) applicants—topics which have only continued to blossom and garner further attention in month following the formal conclusion of the meeting.

1. Geographic Terms Trump Trademarks, According to the Argentina Proposal

In essence, the Argentina proposal seeks to block at all levels of the domain name system, “terms with national, cultural, geographic and religious significance,”; including “regions of countries, regions of continents, sub-regions of countries, rivers [and] mountains, among others …”; subject to registration through relevant national approval. The proposal adopts a highly aggressive posture toward inevitable conflicts between natural, cultural, geographic and religious terms on the one hand and trademarks on the other hand, no doubt in response to ongoing disputes within ICANN over the .AMAZON and .PATAGONIA new gTLD applications.

Contrary to the principle of freedom of use of geographic names, allowing private companies to register geographic names as part of gTLDs [sic] strings creates a high risk for these names to be captured by companies that want to use them to reinforce their brand strategy or profit from the meaning of these names, limiting the possibility of utilizing them in the public interest of the affected communities.

See GAC Meeting: Briefing to ICANN Community – Protection of Geographic Names in gTLDs (June 25, 2014).

Although the national, cultural, geographic and religious terms contemplated are clearly distinct from geographical indications, such as BORDEAUX, FETA or DARJEELING, the two have been conflated and the Argentina proposal has raised similar ire from nations vehemently opposing the .WINE and .VIN new gTLD applications within the Governmental Advisory Committee (GAC). Accordingly, based on serious concerns within the GAC that the Argentina proposal is not rooted in international legal norms, that it hinges upon impractical and ad hoc terminology lists, and that it fails to grasp the purpose or intent of exclusivity pursuant to national trademark legislation, the GAC agreed to take this discussion out from behind closed doors and into a more public forum, via a GAC project team.

Accordingly, it is incumbent upon all stakeholders to question and ultimately oppose the Argentina proposal by weighing in on project team deliberations leading up to ICANN 51 in Los Angeles in October. Indeed, ever-expanding blocks will certainly hamper registry growth and harm contracted parties. Most importantly, myriad companies, and even third-party legitimate users, may ultimately find their famous brands and desired strings wholly excluded from the domain name system.

2. Conflicts Addressed Between Trademark Sunrise Protection and the Domain Name Collision Mitigation Framework

To date, ICANN’s domain name collision mitigation framework has failed to explicitly account for mandatory rights protection mechanisms, such as trademark sunrise and claims periods. Thus, many famous brands experienced frustration leading up to the London meeting, particularly because certain registry operators felt disinclined to allocate names corresponding with famous trademarks during sunrise periods, and instead held them as reserved names on collision block lists—a practice technically permitted within the name collision mitigation framework and Registry Agreement.

In the closing moments of the London meeting, ICANN shocked both the trademark and registry communities when it announced that ICANN would not require collision block list names to be allocated during sunrise periods, and if collision block list names were ever released for registration down the road, then only a 90-day claims period would apply, rather than any sunrise period. Both brand owners and registry operators disagreed with this announcement. Specifically, sunrise allocation stands as the clear preference for brand owners, given the choice between sunrise protection and mere claims notifications. In addition, registry and registrar systems would require substantial and costly retooling in order to ensure adequate claims notices are delivered to registrants beyond original claims periods.

Accordingly, in the wake of ICANN 50, the Registry Stakeholder Group (RySG), Intellectual Property Constituency (IPC) and Business Constituency (BC) all coalesced around a compromise counter proposal, based on the novel set of circumstances created by name collisions and mitigation measures. The compromise proposal prescribed a 30-day period for collision block list names to serve as the functional equivalent to the trademark sunrise period. In addition, the compromise proposal removed the additional 90-day claims period for collision block list names. See Application of Rights Protection Mechanism to Name Collision Block Lists(July 17, 2014). The New gTLD Program Committee (NGPC) within the ICANN Board of Directors stands poised to approve the domain name collision mitigation framework accounting for the compromise counter proposal.

3. The Circumvention of Rights Protection Mechanisms Has Reached a Boiling Point

ICANN leadership has increasingly emphasized its need for specific details in response to complaints from commercial stakeholders regarding the circumvention of intellectual property rights protection mechanisms in new gTLDs. In response, the Business Constituency and the International Trademark Association (INTA) continue to gather specific evidence, screen grabs and industry news coverage expanding upon the ways in which certain registry operators and registrars have skirted the letter and spirit of new gTLD rights protection mechanisms. Some overarching categories of abuse examined to date include inter alia:

preregistration offers or allocation of domain names prior to trademark sunrise and devoid claims notifications;
extortionate premium names programs or sunrise registration pricing covering famous trademarks;
incorrect claims notices integrated with advertisements; and
bulk premium name warehousing with registry affiliates.

Indeed, industry news coverage has already flagged a number of these practices in the public arena. See e.g., Domain Incite, GoDaddy Risking Oscars Wrath With .BUZZ Premium Domains (March 7, 2014); Domain Incite, ICANN Smacks New gTLDs For Pre-Sunrise Auctions (June 18, 2014). The goal for commercial stakeholders and INTA will be to educate ICANN on the abusive practices brand owners are encountering in the marketplace, and also demand remedial action, despite the laisse faire approach to pricing taken by ICANN in the past, and also in dealings with mere applicants who have not yet executed a Registry Agreement.

4. Improvements for a Second Application Round Are Already Under Formation and Consideration

While in London, the Generic Names Supporting Organization (GNSO) Council unanimously passed a motion that: created a discussion group to exchange experiences gained in the 2012 new gTLD application round and identify topics for further study and policy development; solicited subject matter input from the ICANN Board of Directors; and requested a timetable from ICANN staff for the next application round, as well as a status report on pending studies evaluating the 2012 new gTLD application round. Concurrently, the New TLD Applicant Group (NTAG) held a public session in London dedicated to new gTLD program lessons and potential improvements. Commentators generally agreed on the necessity for “a defined and predictable process across the board that works for all applicant categories.”; More pointedly, intellectual property representatives advocated:

regulations governing premium names programs and trademark sunrise periods;
completely redrafted objection procedures, with the exception of the legal rights objections;
affirmations requiring that all domain names be subject to trademark sunrise periods; and
protected marks lists, similar to Donuts’ DPML model but less expensive, across all new gTLDs.

Brand owners, prospective applicants in the second round, as well as prospective objectors, are all well-advised to participate in this ongoing discussion, which will no doubt contribute to share guidelines for future new gTLD delegations.

5. ICANN Accountability Has Taken Center Stage in the Internet Assigned Numbers Authority (IANA) Transition

Community discussions to date concerning the IANA transition have concerned the process to transition IANA stewardship, and now increasingly, enhancing accountability to the community. The accountability concerned addresses the absence of the historical contractual relationship between ICANN and the US Department of Commerce (DOC)—more specifically, the theoretical possibility that the DOC could terminate its IANA contract with ICANN to renegotiate terms or engage some other qualified entity. As it stands, accountability generally already exists within ICANN in a multifaceted way, including inter alia:

overarching accountability and transparency commitments in the bylaws;
well-documented relationships with contracted parties;
periodic structural and effectiveness reviews mandated by the Affirmation of Commitments;
bylaws-mandated accountability mechanisms, namely the Ombudsman, Reconsideration Requests, and Independent Review Panels;
operational information on finances, metrics and performance;
rigorous selection processes for ICANN Board members;
publication of board resolutions, minutes, and statements of interest; and
United States rule of law as a Californian not-for-profit corporation.

In addition to exchanging ideas about improving upon this existing accountability framework, the community in London debated philosophical considerations behind accountability itself. From the debate, one message has been made loud and clear, as recently reaffirmed by U.S. National Telecommunications and Information Administration (NTIA) Assistant Secretary Lawrence E. Strickling, the “important accountability issue will and should be addressed before any transition takes place.”; See U.S. NTIA, Keynote Address By Assistant Secretary Strickling At the American Enterprise Institute (July 22, 2014). In other words, to place the matter in perspective, the IANA transition presents a unique opportunity with unprecedented pressure on ICANN to ensure its accountability framework and mechanisms work for the community—that they are cost effective, expeditious and efficient, while according due process to parties negatively affected by the actions or inactions made by ICANN.

ARTICLE BY

Brian J. Winterfeldt

Of:

Katten Muchin Rosenman LLP

Category: Communication Media & Internet

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