Category: Communication Media & Internet

National Labor Relations Board (NLRB) Judge Gives a “Like” to Facebook-Related Termination

Barnes & Thornburg

National Labor Relations Board (NLRB) Administrative Law Judge Jay R. Pollack recommended the dismissal of a complaint involving the termination of two former employees of the Richmond District Neighborhood Center, a non-profit organization in the San Francisco Bay Area that runs community programs including after-school and summer programs for youth.

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The decision is all the more surprising because Judge Pollack agreed with the General Counsel that the employees at issue were engaged in protected concerted activity in complaining about their employer on Facebook; yet he found that some of the actions described by the employees (including having “crazy events [without] permission,” “do[ing] cool [expletive] and let[ting] [the employer] figure it out,” “playing loud music and get[ting] graffiti artists to place graffiti on the walls,” and hav[ing] clubs and tak[ing] the kids”) in their Facebook conversations were not protected. Accordingly, the Judge found that the employer could lawfully find that the employees conduct was not protected and that they were unfit for further service.

While this decision shows that not all social-media misconduct must be tolerated by employers, it is important for employers dealing with these types of issues to contact competent labor and employment counsel prior to making any termination decisions involving social media, as defending against an action of this nature before the NLRB can be costly.

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How Lawyers Can Leverage LinkedIn to Build Their Practice, Part 2 of 2

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Continuing from our previous post, here are 5 more tips for leveraging LinkedIn to build your client and referral base:

5. Include All Your Web Links. You can add up to three links to your firm’s websites. There are default settings, but these are also customizable. So instead of www.TheRainmakerInstitute.com, I customized it to say “law firm marketing experts”, but it still links to my website. This is another place where you should use your keywords like: “Scottsdale bankruptcy attorney” or “Chicago divorce lawyer” and link it to your website, blog or even your Facebook fan page.

6. Make Your Profile Public. Remember, it’s called “social media” for a reason—you need to be social. Be sure to make your LinkedIn profile “public”, which means all the information you put in it is available to search engines to make it easier for people to find and connect with you.

7. Don’t Use The Same Copy For Your Summary As Your Bio. The summary is not a place to talk about all the things you have done in your life. This is the place to position yourself as the go-to attorney in your particular practice area and geographical region.

8. Use LinkedIn Groups. LinkedIn Groups can be a very effective way to increase your visibility among niche audiences, like your target market. It takes a little while to get used to how this works. I recommend you start by ‘listening’ before diving in. There are some places you should start with, such as alumni groups and groups in the industry segments you follow. We run several LinkedIn groups you can join for free including: Phoenix Arizona Attorneys, Personal Injury Attorney Network and the Rainmaker Law Firm Marketing Group. Simply log into your LinkedIn account and search under groups. Once you understand how groups work, start your own focusing on your target market or potential referral sources (like CPAs, financial advisors or business brokers).

9. Add LinkedIn To Your Email Signature. Most attorneys put their contact information in their email signature; add a link to your LinkedIn account. Here’s mine: http://Rainmaker.MyLinkInvitation.com. I would welcome the opportunity to connect with you on LinkedIn.

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As soon as you start networking with LinkedIn, you increase your chances of reaching new clients and referral partners. However, be prepared, and be willing to work at it. This is not something you can “set and forget”.

If you’re not into social media or can’t make the commitment to put in the time and effort to network in several sites at the same time, this is the ONE social media site you should focus on. You may not see it at first, but with the combined use of the strategies and tips I have shared here, you will start to see your online network mature over time, leading to more prospects and referral partner relationships.

To read Part One – Click Here

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Stephen Fairley

Of:

The Rainmaker Institute

10 DOs and DON’Ts for Employer Social Media Policies

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In recent years, the National Labor Relations Board has actively applied the National Labor Relations Act to social media policies. The Act exists to protect employees’ right to act together to address their terms and conditions of employment. What many employers fail to realize is that the Act applies to union and non-unionized employers. With the Board’s increased scrutiny of social media policies, including review of non-unionized employers’ policies, the following list of dos and don’ts is meant to assist employers in drafting or reviewing their social media policies.

1. DON’T have a policy prohibiting an employee from releasing confidential information. The Board has found that such an overbroad provision would be construed by employees as prohibiting them from discussing information that could relate to their terms and conditions of employment, such as wages.

2. DO have a policy that advises employees to maintain the confidentiality of the employer’s trade secrets and private or confidential information. The Board advises employers to define and provide examples of trade secrets or confidential information. However, the Board cautions employers to consider whether their definition of trade secrets or confidential information would include information related to employees’ terms and conditions of employment.

3. DON’T have a policy prohibiting employees from commenting on any legal matters, including pending litigation. The Board found that such a policy would unlawfully prohibit discussion about potential legal claims against an employer.

4. DO have a policy prohibiting employees from posting attorney-client privileged information. The Board recognizes an employer’s interest in protecting privileged information.

5. DON’T have a policy prohibiting employees from making disparaging remarks about the employer. The Board held that such a policy would have a chilling effect on employees in the exercise of their rights to discuss their terms and conditions of employment.

6. DO have policy that prohibits employees from making defamatory statements on social media about the employer, customers, and vendors, and generally remind employees to be honest and accurate.

7. DON’T have a policy advising employees to check with the company to see if the post is acceptable, if the employee has any doubt about whether it is prohibited. The Board held that any rule that requires permission from the employer as a precondition is an unlawful restriction of the employee’s rights under the Act.

8. DO have a policy that prohibits employees from representing any opinion or statement as the policy or view of the employer without prior authorization. Advise employees to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of the [Employer].”

9. DON’T have a policy prohibiting negative conversations about co-workers or supervisors. The Board held that without further clarification or examples, such a policy would have a chilling effect on employees.

10. DO advise employees to avoid posts that reasonably could be viewed as malicious, obscene, threatening or intimidating, or might constitute harassment or bullying. Provide examples of such conduct such as offensive posts intentionally mean to harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of a race, sex, disability, religion or any other status protected by applicable state or federal law.

Read more: http://ecommercelaw.typepad.com/ecommerce_law/2013/10/ten-dos-and-donts-of-employer-social-media-policies.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+E-commerceLaw+%28E-Commerce+Law%29#ixzz2ir3v2KvK

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Federal Court Narrows Claims Surrounding “HAPPY BIRTHDAY TO YOU” Copyright Suit

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Following up on a previous post regarding the lawsuit winding its way through federal court seeking clarity on whether the music publisher Warner Chappell owns or has the exclusive right to license the copyright in the ubiquitous “Happy Birthday to You” song, U.S. District Judge George H. King (Central District of California) has ordered that certain tangential claims be stayed until further notice, while the case will move forward on the central claim, essentially whether Warner’s copyright in the song is valid and enforceable or not.

Judge King’s order confirms the parties’ agreement at an October 7th hearing to bifurcate (separate) the central claim from the remaining claims (seeking an injunction against Warner, and a variety of related claims such as unfair competition, false advertising, and breach of contract) at least through the summary judgment phase of the central claim.  The central claim alone will proceed for the time being allowing the parties and the Court to focus on what is truly the dominating question in this case.

In his order Judge King also declined to apply a four-year statute of limitations to the central claim instead of the traditional copyright infringement three-year period.  Plaintiffs claimed that unlike a traditional copyright infringement action where a plaintiff alleges a defendant infringed its copyright, this is a “declaratory judgment” action involving a copyright, that is to say one where plaintiffs are preemptively bringing suit so the Court can decide whether Warner even has rights it can assert.  Basically instead of asserting its purported rights, Warner is being forced into a suit to defend its rights.  Despite the procedural change however, the analysis and issues are very similar to a traditional copyright infringement action.  The question Judge King has to resolve was, since the Declaratory Judgment Act (which permits this type of suit) does not contain its own statute of limitations, plaintiffs argued that the Court should instead use the four-year period applicable to California’s unfair competition claims (one of those ancillary claims Judge King stayed in this same order).  Judge King declined, holding that because the Declaratory Judgment Act is merely a procedural vehicle and the substantive rights being challenged are copyright-based under the Copyright Act, the best statute of limitations period is not California’s four-year period, but rather the Copyright Act’s three-year period.  He therefore dismissed two plaintiffs whose claims were time-barred by the new shorter period and gave them three weeks to re-file if they can/chose to.

Judge King’s order is clearly going to focus the parties and the court on the central issue, whether Warner has a valid enforceable copyright in the “Happy Birthday to You” song.  We will continue to closely watch this one as it proceeds.

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New Federal Communication Commission (FCC) Rules to Protect Telephone Consumers from Autodial/Robocalls

Lewis & Roca

On October 16, 2013, new Federal Communication Commission rules took effect to further protect consumers under the Telephone Consumer Protection Act of 1991 (TCPA). See 47 U.S.C. § 227; 47 C.F.R. § 64.1200. The changes ordered by the FCC are designed to protect consumers from unwanted autodialed or pre-recorded telemarketing calls, also known as “telemarketing robocalls.” The new TCPA rules accomplish four main things: (1) require prior written consent for all autodialed or pre-recorded telemarketing calls to wireless numbers and residential lines; (2) require mechanisms to be in place that allow consumers to opt out of future robocalls even if during the middle of a current robocall; (3) limit permissible abandoned calls on a per-calling campaign basis in order to discourage intrusive calling campaigns; and (4) exempt from TCPA requirements calls made to residential lines by health care related entities governed by the Health Insurance Portability and Accountability Act of 1996. None of the FCC’s actions change the requirements for prerecorded messages that are non-telemarketing, informational calls such as calls by or on behalf of tax-exempt organizations, calls for political purposes, and calls for other non-commercial purposes including those to people in emergency situations.

Under the FCC’s new rules, “prior written consent” will require two things: a clear and conspicuous disclosure that by providing consent the consumer will receive auto-dialed or prerecorded calls on behalf of a specific seller, and a clear an unambiguous acknowledgement that the consumer agrees to receive such calls at the mobile number. The content and form of consent may include an electronic or digital form of signature such as the FTC has recognized under the E-SIGN Act. See Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq. However, prior written consent may be terminated at any time. In addition, the written agreement must be obtained “without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.” 16 C.F.R. § 310.4(b)(v)(A)(ii).

Read the full rule here.

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To Track or Not to Track Re: Digital Advertising

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Digital advertising based on tracking users’ interests and related privacy concerns have been the subject of many recent news articles.  What does this mean for businesses?  Evolving industry practices and new legislation relating to online privacy and user tracking likely require changes to online privacy practices and policies.

Online privacy and user tracking are in the news almost daily.  Consider these highlights from the past few weeks about online tracking of California minors, big data brokers, California legislation addressing “do not track,” new mobile and online interest-based advertising technology, and a warning to all website operators from the Better Business Bureau:

New Privacy Rights for California Minors

On September 23, 2013, Governor Brown signed into law new Sections 22580 through 22582 of the California Business and Professions Code titled “Privacy Rights for California Minors in the Digital World.”  The new law, which goes into effect January 1, 2015, requires an operator of a website (including online services and applications, such as a social media site) or mobile application that is “directed to minors” to allow minors (defined as anyone younger than 18 years old residing in California) who are registered users the opportunity to un-post or remove (or request removal of) their posted online content.  The operator also must provide minors with notice and “clear instructions” about how to remove their posted content.  The operator is not, however, required to remove posted content in certain specific circumstances, such as when the content was posted by a third party.

This new law also prohibits website and mobile app operators from advertising to California minors certain products and services that minors cannot legally purchase, such as alcoholic beverages, firearms, ammunition, spray paint, tobacco products, fireworks, tanning services, lottery tickets, tattoos, drug paraphernalia, electronic cigarettes, “obscene matter” and lethal weapons.  Operators also are prohibited from using, disclosing or compiling certain personal information about the minor for the purpose of marketing these products or services.

Senator Rockefeller Expands Investigation of Data Brokers

On September 25, 2013, Governor Rockefeller (W.VA) announced that he sent letters to 12 operators of popular family-, health- and personal-finance-related consumer websites requesting details about whether and what information collected from consumers is shared with data brokers.  In his letter to the operator of self.com, for example, Rockefeller noted that “[w]hile some consumers may not object to having their information categorized and used for marketing purposes, before they share personal information it is important that they know it may be used for purposes beyond those for which they originally provided it.”

California Adds Do-Not-Track Disclosure Requirements Effective January 1, 2014

On September 27, 2013, California Governor Brown signed into law amendments to the California Online Privacy Protection Act (CalOPPA), a 2004 law requiring all commercial websites and online service providers collecting personally identifiable information about California residents to “conspicuously” post a “privacy policy.”  The amendments to CalOPPA, which take effect on January 1, 2014, add two new disclosure requirements for privacy policies required by CalOPPA:

  • The privacy policy must explain how the website “responds to ‘Do Not Track’ signals from web browsers or other mechanisms that provide California residents the ability to exercise choice” about collection of their personally identifiable information (Cal Bus and Prof Code §22575(b)(5)).
  • The privacy policy must disclose whether third parties use or may use the website to track (i.e., collect personally identifiable information about) individual California residents “over time and across third-party websites” (Cal Bus and Prof Code §22575(b)(6)).

The “Bill Analysis” history indicates that CalOPPA amendments are not intended to “prohibit third-party or any other form of online tracking” but rather to “implement a uniform protocol for informing Internet users about tracking . . . and any options they may have to exercise choice . . .” (6/17/13 – Senate Judiciary).

A website operator may meet the “do not track” disclosure requirement by including a link in the privacy policy to “an online location containing a description, including the effects, of any program or protocol the operator follows that offers the consumer that choice” (Cal Bus and Prof Code §22575(b)(7)).

The reference in §22575(b)(7) to “an online location” suggests that businesses already complying with the “enhanced notice link” requirements of the Self-Regulatory Program for Online Behavioral Advertising of the Digital Advertising Alliance (DAA) will comply with amended CalOPPA.  Among other requirements, the DAA’s self-regulatory program requires website owners/operators (called “First Parties”) to provide “clear, meaningful and prominent” disclosure about data collection and use for advertising purposes, and to offer consumers a way to opt out of tracking, such as through the DAA’s consumer choice page.  As noted in the Bill Analyses, while the DAA’s consumer choice mechanism enables consumers to opt out of receiving advertising based on online tracking data, it only works for companies that participate in the DAA’s program and “does not allow consumers not to be tracked.”

User Credentials Subject to California Breach Laws Effective January 1, 2014

Governor Brown also signed into law amendments to California’s breach notification laws on September 27, 2013.  As amended, the definition of “personal information” that triggers breach notification requirements includes consumers’ online credentials: “user name or email address, in combination with a password or security question and answer that would permit access to an online account.”

Mobile Advertising: Mobile Telephone as Tracking Device

In the October 6, 2013, edition of the New York Times, an article titled “Selling Secrets of Phone Users to Advertisers” describes sophisticated profiling techniques for mobile phone users that feed on data collected through partnerships with other various online service providers.  These companies are developing alternatives for cookies, which do not work on mobile devices and, as the new California law illustrates, are increasingly irrelevant as an online tracking technique because users can block or delete them.

New Tracking Technology from Microsoft and Google

On October 9, 2013, AdAge reported that Microsoft is developing a new kind of tracking technology to replace cookies.  The new technology would function as a “device identifier,” allowing user tracking across devices that use Microsoft Windows, Xbox, Internet Explorer, Bing and other Microsoft services.  Similarly, USA Today reported that Google is developing its own digital tracking mechanism known as “AdID.”  While both of these new trackers will be used to collect and aggregate date for advertising and marketing purposes, they purportedly will offer users more control over how and what online activity is tracked and who has access to their personal data.

Better Business Bureau Issues Compliance Warning to Website Operators

On October 14, 2013, the Better Business Bureau issued a Compliance Warning noting that a “significant minority of website operators” are omitting the “enhanced notice link” (as required by the DAA’s Self-Regulatory Program for Online Behavioral Advertising) when ad networks and other third parties collect data for interest-based advertising purposes but cannot provide their own notice on the website on which the data collection occurs.  The Better Business Bureau operates the Online Interest-Based Advertising Accountability Program, through which it monitors businesses’ advertising practices and enforces the DAA’s self-regulatory program, even for companies that are not participating in it.

All of this news has created consumer confusion.  While consumers are increasingly aware of being tracked, they don’t know what exactly it means or which websites are doing it—and they are not happy about it.  A study from data privacy company TRUSTe found that 80 percent of consumers are aware of being tracked and 52 percent don’t like it.

What to Do?

A check-up for the privacy policy (or “privacy statement,” which is the increasingly popular industry term) posted on your company’s website is a good way to start evaluating your company’s digital advertising and privacy practices.  The online privacy statement is the primary means by which website operators (also known as “publishers”) communicate their privacy practices to users.

These Four steps can help you successfully evaluate your company’s privacy statement:

First, find out if your company’s marketing strategy includes advertising based on consumer information collected through cookies or other tracking technology.  Even if this type of advertising is not part of current plans, your company’s website still may have third-party tracking activities occurring on it, and these activities must be disclosed in the privacy statement as of January 1, 2014.

Second, review the privacy statement displayed on your company’s website(s) and/or mobile application(s) and make sure it accurately, clearly and completely discloses the information collected from users, how it is collected (e.g., by your company or by third parties), how your company uses the information, and whether and how the information is disclosed to third parties.  If you use information that you collected from consumers for targeted advertising, make sure the privacy statement says so.  A federal judge in the Northern District of California recently reviewed a company’s online privacy policy to evaluate whether users reading the privacy policy would understand that they were agreeing to allow user profiles and targeted advertising based on the contents of their e-mails.  The court found that the lack of specificity in the company’s privacy policy about e-mail interception meant that users could not and did not consent to the practices described in the online privacy policy.

Third, find out when and how the privacy statement is or was presented to users who provide personal information through the company website(s) and/or mobile application(s).  Is the privacy statement presented as a persistent link in the footer of each webpage?  Are users required to agree to the privacy statement?  If not, consider implementing a mechanism that requires users to do so before providing their personal information.

Finally, if your privacy statement needs to be updated, make sure you notify all consumers in advance and ensure that the changes you propose are reasonable.  Unreasonable and overbroad changes made after the fact can cause reputational harm.  Instagram learned this at the end of 2012 when it tried to change its terms of service so that users’ photos could be used “in connection with paid or sponsored content or promotions, without any compensation to [the user].”  After a hail of consumer complaints, Instagram withdrew the revised terms and publicized new, more reasonable ones.

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California Enacts New Data Privacy Laws

Sheppard Mullin 2012

As part of a flurry of new privacy legislation, California Governor Jerry Brown signed two new data privacy bills into law on September 27, 2013: S.B. 46 amending California’s data security breach notification law and A.B. 370 regarding disclosure of “do not track” and other tracking practices in online privacy policies. Both laws will come into effect on January 1, 2014.

New Triggers for Data Security Breach Notification

California law already imposes a requirement to provide notice to affected customers of unauthorized access to, or disclosure of, personal information in certain circumstances. S.B. 46 adds to the current data security breach notification requirements a new category of data triggering these notification requirements: A user name or email address, in combination with a password or security question and answer that would permit access to an online account.

Where the information subject to a breach only falls under this new category of information, companies may provide a security breach notification in electronic or other form that directs affected customers to promptly change their passwords and security questions or answers, as applicable, or to take other steps appropriate to protect the affected online account and all other online accounts for which the customer uses the same user name or email address and password or security question or answer. In the case of login credentials for an email account provided by the company, the company must not send the security breach notification to the implicated email address, but needs to provide notice by one of the other methods currently provided for by California law, or by clear and conspicuous notice delivered to the affected user online when the user is connected to the online account from an IP address or online location from which the company knows the user ordinarily accesses the account.

Previously, breach notification in California was triggered only by the unauthorized acquisition of an individual’s first name or initial and last name in combination with one or more of the following data elements, when either the name or the data elements are unencrypted: social security number; driver’s license or state identification number; account, credit card or debit card number in combination with any required security or access codes; medical information; or health information. S.B. 46 not only expands the categories of information the disclosure of which may trigger the requirement for notification, it also—perhaps unintentionally—requires notification of unauthorized access to user credential information even if that information is encrypted. Thus, S.B. 46 significantly expands the circumstances in which notification may be required.

New Requirements for Disclosure of Tracking Practices

A.B. 370 amends the California Online Privacy Protection Act (CalOPPA) to require companies that collect personally identifiable information online to include information about how they respond to “do not track” signals, as well as other information about their collection and use of personally identifiable information. The newly required information includes:

  • How the company responds to “do not track” signals or other mechanisms that provide consumers the ability to exercise choice over the collection of personally identifiable information about their online activities over time and across third-party websites or online services, if the company collects such information; and
  • Whether third parties may collect personally identifiable information about a consumer’s online activities over time and across different websites when a consumer uses the company’s website.

These disclosures have to be included in a company’s privacy policy. In order to comply with the first requirement, companies may provide a clear and conspicuous hyperlink in their privacy policy to an online description of any program or protocol the company follows that offers the user that choice, including its effects.

It’s important to note that the application of CalOPPA is broad. It applies to any “operator of a commercial Web site or online service that collects personally identifiable information through the Internet about individual consumers residing in California who use or visit its commercial Web site or online service.” As it is difficult to do business online without attracting users in technologically sophisticated and demographically diverse California, these provisions will apply to most successful online businesses.

What to Do

In response to the passage of these new laws, companies should take the opportunity to examine their data privacy and security policies and practices to determine whether any updates are needed. Companies should review and, if necessary, revise their data security breach plans to account for the newly added triggering information as well as the new notification that may be used if that information is accessed. Companies who collect personally identifiable information online or through mobile applications should review their online tracking activities and their privacy policies to determine whether and what revisions are necessary. The California Attorney General interprets CalOPPA to apply to mobile applications that collect personally identifiable information, so companies that provide such mobile apps should remember to include those apps in their review and any update.

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Another Software Patent Horror Story Unmasked and Debunked: This One You Won’t Believe

Schwegman Lundberg Woessner

I have noticed lately that the anti-software patent PR machine is trying pretty hard to find examples of start-ups “crushed” by software patents.

Ok, so here is the latest laugher example they came up with:  FindTheBest.com, a company that is nearing its fifth birthday and handling 20 million visitors a month, is supposedly a “start-up” being unfairly targeted by a patent troll  (see http://www.latimes.com/business/la-fi-hiltzik-20131011,0,704586.column).

Jack-o'-lantern and pumpkins

As far as I can tell from their web site, FindTheBest is doing a land-office business, and probably has a valuation better than 95% of all software companies.  For starters, in my opinion, pretty much every software entrepreneur on the planet would gladly endure a challenge from a troll if they could get 20 million visitors a month in web traffic.  But that is just the beginning of the irony of this anti-patent sob story.   The leader of this particular start-up at present, Kevin O’Connor, sold a previous start-up he co-founded, Doubleclick, to Google for $3.1 billion in 2008.  Doubleclick, and indeed O’Connor himself, named as an inventor on at least four software patents acquired by Google (http://www.patentbuddy.com/Inventor/O%27Connor-Kevin-Joseph/5640460#More), had aggressively filed patents to protect its innovations (http://www.seobythesea.com/2007/04/doubleclick-google-looking-at-some-of…).   Those patents weighed heavily in the valuation of Doubleclick when it was sold to Google.  So, is it not a little ironic that FindTheBest.com would be outraged about software patents impeding their progress, after one of their founders profited mightily from the patent filings of his own prior company?  Well, I sure think many would think so.  This is not to say I don’t have nothing but the utmost admiration for Mr. O’Connor’s entrepreneurial talents.  And, its not to say that he may very well be legitimately frustrated to have to deal with a patent infringement issue.  But, these are the problems that go with the kind of success few entrepreneurs are ever lucky enough to achieve, not the problems of the vast majority of true start-ups still trying to find enough customers to survive another round of financing.

Here is another injustice of this story: Eileen C. Shapiro, the inventor of the so-called troll patent in question, is no slacker. She has an undergraduate degree from Brown University and an MBA from Harvard University.  According to her LinkedIn profile, she holds 14 patents and has been actively involved in many start-ups.  Is this really an example of some undeserving “troll” inventor with no right to exclusive rights in her inventions?  Is it so improbable that someone that likely has a genius level IQ would be awarded a valuable patent for her ideas, which mind you appear to have come to her a good while ago before the site FindTheBest.com was even a notion in its founder’s imagination.

So, is this really an example of a “start-up” getting drummed out of business by underserving troll?  The Electronic Frontier Foundation would like you to believe that — “Trolls do a really good job of targeting start-ups at their most vulnerable moments,” says Julie Samuels, a staff attorney at the Electronic Frontier Foundation and holder of its Mark Cuban Chair to Eliminate Stupid Patents.”  (LA Times, October 13, 2013).   Or, is this an example of a large, successful, well established and fast growing company nearing its fifth birthday, that some time ago left “start-up” mode behind?  Wouldn’t most five year old companies be embarrassed to say they were still “starting up”?  This is a label only those desperately in need of contriving the facts to suit their hypothesis would dare to come up.

Moreover, is this not a great example of how Mr. O’Conner’s patents helped him get a fair return for the sale of Doubleclick to Google, so he could reinvest some of his gains in FindTheBest.com, rather than an example of how Ms. Shapiro’s innovations are a poster child for patents underserving of a reward.

If this is the best software patent horror story the anti-patent forces can come up with this Halloween, they should give it a rest for a while.

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Consent Isn’t the Only Consideration: NY Comic Con Attendees Disagree that Hijacking Twitter Accounts Makes the Event “100x cooler! For realz.”

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The comic book industry is no stranger to displays of heroic anger and berserker rage, but over the weekend New York Comic Con (NYCC) was on the receiving end of considerable fan fury after it began ghostwriting effusive tweets about NYCC and posting on the Twitter pages of NYCC attendees in a way that made it appear as though the attendee was the author of the tweet.

During the event registration process, NYCC attendees were given the option of linking RFID badges to their Twitter account through the event’s mobile application interface.  During the application registration process, attendees were asked to authorize NYCC to access their Twitter accounts.  At this point, attendees arguably consented to having NYCC impersonate the attendee when posting about NYCC on the attendee’s Twitter feed.

The NYCC website page explaining the ID badge technology and the site’s registration page did not mention that NYCC would be posting to attendee Twitter pages on the attendee’s behalf.  Rather, the registration process is explained as a method for giving the attendee access to enhanced social media content, while helping NYCC protect against fraudulent credentials.  The activation terms provided that NYCC could use the information collected through the badge “for internal purposes” and to contact the user about future events.  After a user registered his or her badge and elected to link a Twitter account, the user was presented with an opt-in notice (a screenshot of which can be seenhere), specifying that following authorization, the application would be able to, among other things, “post Tweets for you”.  This type of warning is not uncommon.  For example, any website that allows users to click to share news articles or stories on their Twitter pages requires this type of access.

In spite of the opt-in warning, the wide-spread surprise among attendees suggests that the opt-in language did not draw a clear distinction between posting tweets for a user and posting tweets as a user.  Moreover, the failure to mention this practice when explaining the registration process could have led attendees to conclude that even if they were agreeing to provide this type of access, NYCC would not be taking the unusual step of pretending to be the attendee when it published tweets on the user’s page.

NYCC’s initial response was a brief tweet telling attendees not to “fret” over the ghostwritten posts and informing attendees that the “opt-in feature” had been disabled.  However, after anger continued to spread, NYCC issued a longer statement apologizing for any “perceived overstep.”

This type of disconnect between online service providers and users is becoming increasingly common as advances in technology permit mobile device and social media data to be accessed and used in new ways.  Earlier this year, for example, Jay-Z and Samsung stepped into a public relations debacle when the “JAY Z Magna Carta” mobile application required that the user, in exchange for receiving a free music download, authorize the application to have extensive access to phone data and social media accounts. The response from NYCC attendees also underscores the lesson learned by Googleearlier this month, that consent provided by users who do not fully understand what they are consenting to may not be consent at all.

As your online business finds new and innovative ways to deliver products and services to your users, it is important to take a step back and consider whether additional communications in different formats, such as just-in-time notifications, are necessary to ensure that the only surprise your customers have is how great your products and services are.   Or, to put it another way, “with great power comes great responsibility.”

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Need Ideas for Your Legal Blog? Here's a Bunch

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If there is one thing I hear over and over again from attorneys when it comes to blogging, it’s this:   “What do I blog about?”

The reason to have a blog is to establish your authority as an expert in your field of practice. You must keep your target market in mind at all times when writing a blog – it needs to be about topics your clients and prospects are interested in, providing good in-depth information on each topic (now more important than ever for SEO) that they can’t find anywhere else.

Still, the creative juices do run dry at times. Which is why it’s so great that the LexisNexis Law Marketing blog has started highlighting monthly events, anniversaries, holidays and observances that have a legal connection.

Here is their list for October/November, categorized by practice area:

Civil Rights Law:

  • October is National Disability Employment Awareness Month
  • October is Gay and Lesbian History Month
  • Oct. 14: Native American Day
  • Oct. 17: United Nations’ International Day for the Eradication of Poverty
  • Oct. 20-26: Freedom from Bullies Week
  • Oct. 21-27: Freedom of Speech Week
  • November is National American Indian Heritage Month

Corporate Law:

  • October is National Crime Prevention Month
  • October is National Cyber Security Month
  • October is National Disability Employment Awareness Month
  • Oct. 16: National Boss’s Day
  • Oct. 16: Support Your Local Chamber of Commerce Day
  • Nov. 3-9: International Fraud Awareness Week

Education Law:

  • October is National Bullying Prevention Month
  • Oct. 20-26: Freedom from Bullies Week
  • Oct. 21-25: National School Bus Safety Week

Elder Law:

  • October is Health Literacy Month
  • October is Long-Term Care Planning Month
  • October is National Organize Your Medical Information Month
  • Oct. 15: Medicare open enrollment begins
  • Oct. 20-26: National Save for Retirement Week
  • November is National Alzheimer’s Disease Awareness Month
  • November is National Family Caregivers Month
  • November is National Home Care and Hospice Month
  • November is National Long-Term Care Awareness Month
  • Nov. 1-7: National Patient Accessibility Week

Environmental Law:

  • Oct. 18: Forty-first anniversary of the passing of the Water Pollution Control Act

Estate Planning:

  • October is Long-Term Care Planning Month
  • Oct. 20-26: National Save for Retirement Week
  • November is National Alzheimer’s Disease Awareness Month

Family Law:

  • October is Antidepressant Death Awareness Month
  • October is Breast Cancer Awareness Month
  • October is Domestic Violence Awareness Month
  • October is Gay and Lesbian History Month
  • October is National Bullying Prevention Month
  • October is National Organize Your Medical Information Month
  • Oct. 17: Get Smart About Credit Day
  • November is Military Family Appreciation Month
  • November is National Adoption Month
  • November is National Alzheimer’s Disease Awareness Month
  • November is National Family Caregivers Month
  • Nov. 1: National Family Literacy Day

Health Care Law:

  • October is Antidepressant Death Awareness Month
  • October is Breast Cancer Awareness Month
  • October is Health Literacy Month
  • October is Long-Term Care Planning Month
  • October is National Organize Your Medical Information Month
  • Oct. 15: Medicare open enrollment begins
  • Oct. 17-24: Food and Drug Interaction Education and Awareness Week
  • Oct. 24-31: Prescription Errors Education and Awareness Week
  • November is National Home Care and Hospice Month
  • November is National Long-Term Care Awareness Month
  • Nov. 1-7: National Patient Accessibility Week

Insurance Law:

  • October is National Crime Prevention Month

Intellectual Property Law:

  • Oct. 29: 44th anniversary of the creation of the Internet

Labor Law:

  • October is National Disability Employment Awareness Month
  • Oct. 16: National Boss’s Day

Personal Injury Law:

  • October is Antidepressant Death Awareness Month
  • Oct. 21-25: National School Bus Safety Week
  • Oct. 24-31: Prescription Errors Education and Awareness Week

Real Estate Law:

  • October is National Crime Prevention Month