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8 Best Lawyer Forums Online

Though unorthodox for a traditional profession like the law, remote work is becoming a more realistic option for lawyers all over the country. With the help of tools like legal practice management software and options to practice law in multiple states, lawyers everywhere are tackling the challenges of remote work.

But one obstacle that remains is networking. Remote lawyers need to put extra work into maintaining professional connections and building an online presence, both of which are made easier with online forums designed specifically for legal professionals.

What Is an Online Forum?

An online forum is an internet space dedicated to conversation using questions, answers, responses, and prompts. Typically, online forums are asynchronous — users post a question, then other users respond at their leisure.

Posts in forums are archived and arranged into categories like post date, popularity, and more. Discussions can last for hours, days, months, or possibly years, as long as users continue to contribute.

Why Should Lawyers Use Online Forums?

After the rapid shift to remote work during the COVID-19 pandemic, plenty of industries saw the value of allowing employees to work from home – including law firms. More and more lawyers are working remotely, but that could come at the cost of networking.

Networking doesn’t have to mean interactions that take place over coffee, lunch, cocktails, golf excursions, or big events. In the strictest sense, networking is any meeting between people, whether in a group or one on one, online or in-person, which can be done using online forums.

Online forums dedicated to lawyers and the legal industry are an effective way to facilitate networking opportunities when in-person meetings aren’t an option. Getting involved in online forums help lawyers discuss industry topics with experts and thought leaders, stay current on trends and technology, and learn valuable tips from other lawyers.

Top 8 Online Forums for Lawyers

Curious about online forums? Here are the best options for lawyers and legal professionals to engage with other legal professionals and build a network as a remote attorney:

1. Quora

Quora is a broad forum that covers a variety of topics in question-and-answer formats, including the legal industry. You can easily search for questions or topics that are trending in the legal industry and contribute expert answers to boost your credibility. The more answers you provide, and the more other users engage with you, the closer you can get to becoming a thought leader in the space.

2. Bar Association Forums

Bar association forums are always a benefit to lawyers, remote or otherwise. There are plenty of options to choose from, including local bar associations or forums dedicated to your practice area. Best of all, you’ll be engaging with other knowledgeable legal professionals to connect and network.

Social media channels like Facebook and LinkedIn have dedicated groups that bring together users based on interests or industries, such as the legal industry. These two platforms are among the best for getting into a private or public group and enhancing your online presence. Keep in mind that you are representing yourself as a lawyer in these groups, so use a professional social media account, not your personal one.

4. Thomson Reuters Legal Community

The Thomson Reuters Legal Community is an exclusive option for customers of Thomson Reuters that brings together a virtual community of lawyers to network and engage in group settings. You can connect with lawyers from all different practice areas, both locally and nationally, and gain valuable insights from industry experts.

5. The Lawyerist Community

The Lawyerist is an online community dedicated to small firm lawyers to provide coaching, podcasts, books, guides, and other insights. The company has its own online lawyer forum – The Lawyerist Community – on Facebook to discuss law firm best practices, trends, and ideas.

6. Reddit

Reddit has some of the best online forums for a range of different topics, from broad subjects like sports to niche communities dedicated to obscure literature. There’s also a legal forum, r/LawFirm, that’s an informal community for lawyers to discuss running a law firm and the legal industry as a whole. There’s also a lawyer subreddit that you can join if you’re licensed.

7. Slack

Slack is a top-rated collaboration platform that offers individual channels for groups of users. There are several communities dedicated to the law, including LawyerSmack, which is comprised of private attorneys.

8. Law School Alumni Forums

Some law schools have online forums for alumni to stay connected with faculty and colleagues. While not every school offers an online forum for networking, if yours does, you can build vital industry contacts and further your practice. You’ll also get updates on news, trends, and in-person network events by participating in the forum.

Outlook on Online Forums

Remote and hybrid working models are the “new normal,” even for lawyers. Now that law firms and lawyers have seen the benefits in productivity, work-life balance, and enhanced communication afforded by remote work, there’s no going back.

Still, lawyer networking is essential for lawyers to grow their practice, no matter if it’s online or in-person. Along with joining forums to engage in discussions with other industry professionals, you can enhance your remote work with law practice management software. The right law firm software empowers lawyers to manage their practice from anywhere.

Start Networking Remotely

Networking is a big part of successful client acquisition for lawyers. Though it takes a little more work to keep up with networking as a lawyer working remotely, online lawyer forums can keep you connected to other industry professionals. And because you can engage with lawyers all over the country, you can find even more opportunities online than in person at networking events.

Article By Dan Bowman of PracticePanther

For more business of law legal news, click here to visit the National Law Review.

DOL Issues Guidance on Handling Telework Under FLSA, FMLA

The U.S. Department of Labor (DOL) has issued guidance on the application of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) to employees who telework from home or from another location away from the employer’s facility.

The Field Assistance Bulletin (FAB) 2023-1, released on February 9, 2023, is directed to agency officials responsible for enforcement and provides employers a glimpse into how the DOL applies existing law and regulations to common remote-work scenarios. FAB 2023-1 addresses FLSA regulations governing “hours worked,” rules related to break time and privacy for nursing employees, and FMLA eligibility factors.

Hours Worked

In the FAB, the DOL reviews the rules governing compensability of work time, explaining that, regardless of work location, short breaks (typically, 20 minutes or less) generally are counted as compensable hours worked, whereas, longer breaks “during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes[,] are not hours worked.” Examples of short breaks, whether at home or in the office, include when an employee takes a bathroom or coffee break or gets up to stretch their legs.

Longer rest breaks and periods of time, when employees are completely relieved from duty and able to use the time for their own purposes, are not considered work time. Just as would be the case when an employee is working in the office, if during remote work an employee’s 30-minute lunch break is interrupted by several work-related phone calls, that 30-minute period would be counted as hours worked. Conversely, if an employee working from home takes a three-hour break to pick up their child or to perform household chores, that time does not count as work time under the FLSA. In short, the FAB reiterates the telework guidance set forth by the DOL in a Q&A series published during the height of the COVID-19 pandemic.

The FAB emphasizes that, regardless of whether an employee performs duties at home, at the worksite, or at some other location, if the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. Importantly, the FAB notes that an employer may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work by providing a reasonable reporting procedure for employees to use when they work non-scheduled time and paying employees for all hours worked. This guidance was addressed in greater detail in FAB 2020-5.

Guidelines for Nursing Employees

The FAB further clarifies that, under the FLSA, an employer’s obligation to provide employees “reasonable break time,” as well as an appropriate place to express breast milk, extends to employees who are teleworking or working at an off-site location. Just as an employer has an obligation to provide an “appropriate place” for an employee to express milk while working at a client site, the employer should ensure a teleworking employee has privacy from a “computer camera, security camera, or web conferencing platform” to express milk.

Employers are not required to pay employees for otherwise unpaid breaks simply because the employee is expressing breast milk during the break, but if an employee is working while pumping (or if the pumping occurs during an otherwise paid break), they must be paid for that time. For example, in most cases, if a remote employee attends a call or videoconference off camera while pumping, that employee would be considered on duty and must be paid for that time.

The recently enacted PUMP Act expanded existing employer obligations under the FLSA to cover exempt employees, as well as non-exempt employees. The DOL has published more guidance on breast milk pumping during work.

Eligibility Under FMLA

The DOL also addresses FMLA eligibility requirements for remote employees both in terms of hours worked (employee must work 1,250 hours in the previously 12 months) and the small worksite exception (employee must work at a worksite with at least 50 employees in a 75-mile radius).

As with the FLSA, it is important for employers to have a system to track their remote workers’ hours. With respect to hours worked, the FAB reiterates that the 1,250 hours determination for remote worker is based on compensable hours of work under FLSA principles.

With respect to the worksite size determination, the FMLA regulations explain that an employee’s personal residence is not a worksite. Instead, whether a remote employee is FMLA-eligible is based on the size of the worksite from which “they report to” or “their assignments are made.” If a remote employee reports into or receives assignments from a site with 50 or more employees working at that site (or reporting to or receiving assignments from that site) or within 75 miles, then that employee would meet that eligibility factor.

The DOL provided two examples of this rule:

When both a store employee and their supervisor are working from their homes temporarily due to a weather emergency, for FMLA eligibility purposes, the store remains their worksite.
When remote employees are working in various cities more than 75 miles away from the company headquarters but receiving assignments from a manager working at the headquarters, for FMLA-eligibility determination, the company’s headquarters would be considered the workplace for the remote employees.

Employers are reminded to review state and local wage and hour laws, paid and unpaid leave laws, and lactation accommodation laws.

Article By Jenifer M. Bologna, Justin R. Barnes, and Jeffrey W. Brecher of Jackson Lewis P.C.

For more labor and employment legal news, click here to visit the National Law Review.

The FTC Announces First Health Breach Notification Rule Enforcement Action

On February 1, the Federal Trade Commission (“FTC”) announced enforcement action for the first time under its Health Breach Notification Rule[1]. The complaint against telehealth and prescription drug discount provider GoodRx Holdings Inc. (“GoodRx”), alleges its failure to notify consumers and others of its unauthorized disclosures of consumers’ personal health information to Facebook, Google and other companies.

In a first-of-its-kind proposed order, filed by the Department of Justice on behalf of the FTC, GoodRx will be prohibited from sharing user health data with applicable third parties for advertising purposes, and has agreed to pay a $1.5 million civil penalty for violating the rule. The proposed order must be approved by the federal court to go into effect. The Health Breach Notification Rule requires vendors of personal health records and related entities, which are not covered by the Health Insurance Portability and Accountability Act (HIPAA), to notify consumers and the FTC of unauthorized disclosures. In a September 2021 policy statement, the FTC warned health apps and connected devices that they must comply with the rule.

According to the FTC’s complaint, for years GoodRx violated the FTC Act by sharing sensitive personal health information with advertising companies and platforms—contrary to its privacy promises—and failed to report these unauthorized disclosures as required by the Health Breach Notification Rule. Specifically, the FTC claims GoodRx shared personal health information with Facebook, Google, Criteo and others. According to the FTC, since at least 2017, GoodRx deceptively promised its users that it would never share personal health information with advertisers or other third parties. GoodRx repeatedly violated this promise by sharing sensitive personal health information—such as including its users’ prescription medications and personal health conditions.

The FTC also alleges GoodRx monetized its users’ personal health information, and used data it shared with Facebook to target GoodRx’s own users with personalized health and medication-specific advertisements on Facebook and Instagram.

The FTC further alleges that GoodRx:

Failed to Limit Third-Party Use of Personal Health Information: GoodRx allowed third parties it shared data with to use that information for their own internal purposes, including for research and development or to improve advertising.
Misrepresented its HIPAA Compliance: GoodRx displayed a seal at the bottom of its telehealth services homepage falsely suggesting to consumers that it complied with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a law that sets forth privacy and information security protections for health data.
Failed to Implement Policies to Protect Personal Health Information: GoodRx failed to maintain sufficient policies or procedures to protect its users’ personal health information. Until a consumer watchdog publicly revealed GoodRx’s actions in February 2020, GoodRx had no sufficient formal, written, or standard privacy or data sharing policies or compliance programs in place.

In addition to the $1.5 million penalty for violating the rule, the proposed federal court order also prohibits GoodRx from engaging in the deceptive practices outlined in the complaint and requires the company to comply with the Health Breach Notification Rule. To remedy the FTC’s numerous allegations, other provisions of the proposed order against GoodRx also:

Prohibit the sharing of health data for advertising: GoodRx will be permanently prohibited from disclosing user health information with applicable third parties for advertising purposes.
Require user consent for any other sharing: GoodRx must obtain users’ affirmative express consent before disclosing user health information with applicable third parties for other purposes. The order requires the company to clearly and conspicuously detail the categories of health information that it will disclose to third parties. It also prohibits the company from using manipulative designs, known as dark patterns, to obtain users’ consent to share the information.
Require the company to seek deletion of data: GoodRx must direct third parties to delete the consumer health data that was shared with them and inform consumers about the breaches and the FTC’s enforcement action against the company.
Limit Retention of Data: GoodRx will be required to limit how long it can retain personal and health information according to a data retention schedule. It also must publicly post a retention schedule and detail the information it collects and why such data collection is necessary.
Implement a Mandated Privacy Program: GoodRx must put in place a comprehensive privacy program that includes strong safeguards to protect consumer data.

For more Cybersecurity and Privacy Legal News, click here to visit the National Law Review

FOOTNOTES

[1] 16 CFR Part 318

FDA’s Digital Health High Notes from 2022

There has been a lot of discussion lately of the Food and Drug Omnibus Reform Act of 2022 (FDORA), which was enacted on December 29, 2022 as part of the larger Consolidated Appropriations Act for 2023 (you can find our blog post on it here). As important as these kinds of future reforms are to medical product developers, we should also take a moment to review last year’s actions and policy updates on digital health from the Food and Drug Administration (FDA) and to reflect on the transformations that have been taking place at the agency as a result of the rapid pace of innovation in the field. The year 2022 marked the conclusion of the five-year Software Precertification Pilot Program and the release of the final Clinical Decision Support Software guidance, among other things, although FDA’s digital health policies generally remained consistent. In this post, we summarize the agency’s key actions in the digital health space in 2022.

Expanding into Extended Reality

Over the past few years, FDA has started a number of initiatives to explore the use of virtual, mixed, and augmented reality (the agency typically uses the term “extended reality” to cover all types of immersive digital systems) as therapeutic devices for use by patients in clinical environments and at home. The agency granted marketing authorization to two virtual reality devices for patient use, EaseVRx for chronic pain (de novo classification) and Luminopia One for treatment of lazy eye in children, in 2021 and the CureSight system, also for lazy eye in children, in 2022. It is also conducting multiple internal research projects on medical extended reality within the Center for Devices and Radiological Health (CDRH).

In conjunction with its internal research, FDA is engaging health care professionals and the industry to learn about possible benefits, as well as the risks and limitations, of medical extended reality systems to guide future decisions about the therapeutic and clinical uses of such devices. A meeting of FDA’s Patient Engagement Advisory Committee in July 2022 provided an opportunity for the agency to hear from experts and researchers in the field of extended reality and its uses, as well as companies developing medical extended reality devices and patients who have experienced such devices. The materials from the meeting are available here.

FDA also published a list of medical extended reality devices that have received marketing authorization on its website devoted to the Digital Health Center of Excellence (DHCoE), which is part of CDRH.

Application of extended reality technology and the metaverse to medicine is an exciting area of development, and we expect FDA to continue to be active in the space and to develop formal policies and guidance on extended reality devices in the near future.

Precertification Pilot Ends with Uncertain Future

FDA’s Software Precertification Pilot Program, launched in 2017 to explore innovative methods and approaches to regulating software as a medical device (SaMD), officially ended in September 2022 (see our previous posts on the Precertification program here and here). Although FDA was able to glean some key insights from the pilot, including a better understanding of SaMD manufacturer practices throughout the product life cycle, including design, development, and management of SaMD products, the agency ultimately admitted that it had encountered significant challenges in implementing the pilot program. Such challenges included:

limited statutory authorities, which hindered FDA’s ability to gather consistent and harmonized information on manufacturer practices and SaMD performance;
focusing only on SaMD for De Novo classification, which limited the number of eligible devices and created issues for testing pilot-specific special controls; and
the small number of participants (only nine SaMD manufacturer were accepted to the pilot program).

You can read FDA’s final report from the pilot program here.

FDA may use its observations from the pilot program when developing new guidance or other policies pertaining to SaMD, but any new rules or guidances must be consistent with the agency’s current statutory authorities. It is very likely that we have seen the end of any FDA software precertification program, unless or until Congress decides to grant the agency specific authority to implement a new or different regulatory regime for SaMD.

Leadership Changes at the Digital Health Center of Excellence

The past year marked a number of watershed changes at the DHCoE, including the departure of Bakul Patel, longstanding CDRH official in many capacities and the first director of the DHCoE, and the naming of a new acting director, Brendan O’Leary. Subsequently, in January 2023, the agency named Troy Tazbaz, former senior vice president at Oracle, as the new director of DHCoE. It will be interesting to see how Mr. Tazbaz, a newcomer to the agency, will direct the DHCoE in further developing the regulatory framework for digital health devices and in building strategic partnerships with industry stakeholders.

Digital Health Guidances

FDA introduced a number of new and revised guidance documents relating to digital health technologies in 2022. The following is a list with brief descriptions of each such agency guidance:

Clinical Decision Support Software (final guidance) – After a long wait (the previous draft version was published in September 2019), FDA issued a final guidance covering clinical decision support (CDS) software devices on September 28, 2022. You can find our analysis of this critical guidance in this previous post. In addition, FDA created some helpful resources to determine the regulations that may apply to a company’s CDS software or other types of SaMD: a CDS software flowchart, and a Digital Health Policy Navigator.
Policy for Device Software Functions and Mobile Medical Applications (revised final guidance) – FDA issued an updated version of this guidance in September 2022 to implement changes consisted with the CDS final guidance.
Cybersecurity in Medical Devices: Quality System Considerations and Content of Premarket Submissions (draft guidance) – In recent years, FDA has repeatedly emphasized the importance of addressing cybersecurity in medical devices and has made great efforts in keeping its policies and guidance documents aligned with current cybersecurity recommendations. This guidance describes methods for incorporating cybersecurity into the design and development process for connected medical devices (including SaMD) and for maintaining cybersecurity as part of device quality systems throughout the product lifecycle. Once finalized, this guidance will supersede final guidance Content of Premarket Submissions for Management of Cybersecurity in Medical Devices, issued in October 2014. It is also worth noting that FDORA grants the agency new authorities to require cybersecurity plans as part of premarket submissions for so-called “cyber devices,” which will need to be considered and incorporated into any upcoming final guidance on this topic.
Computer-Assisted Detection Devices Applied to Radiology Images and Radiology Device Data – Premarket Notification [510(k)] Submissions (final guidance) & Clinical Performance Assessment: Considerations for Computer-Assisted Detection Devices Applied to Radiology Images and Radiology Device Data in Premarket Notification (510(k)) Submissions (final guidance) – This pair of final guidances describes FDA’s expectations for information included in premarket notification submissions for CADe devices, and specifically for the design of clinical studies to support marketing authorization of such devices. Many companies have developed, or are interested in developing, software with CADe functionality to detect lesions or abnormalities in radiology images for the purpose of assisting human readers, and with the rapid risk of artificial intelligence/machine learning-based software, some manufacturers may seek to develop CADe software that replaces human readers altogether. These guidances are especially useful for companies developing CADe software and preparing for clinical testing and submission to FDA.
Electronic Submission Template for Medical Device 510(k) Submissions (final guidance) – Although this guidance does not specifically apply to digital health technologies, it represents an important development for all medical device companies, including digital health device manufacturers. FDA released this guidance in conjunction with the announcement that CDRH will accept electronic submissions of device premarket notifications from all applicants using the electronic submission template and resource (eSTAR) tool. The guidance describes the structure of the template (and helpfully cross-references other guidance documents that relate to each section of the template). FDA has designated October 1, 2023 as the date of full transition to electronic submission for premarket notifications, meaning that FDA will no longer accept eCopies of premarket notification submissions for filing and review as of that date.

As the preceding list highlights, digital health is an active and rapidly advancing field both in the private sector and at FDA. We will continue to monitor and report on notable developments in terms of regulatory policies affecting developers and investors in the broader field.

For more Food and Drug Legal News, click here to visit the National Law Review

SUPERBOWL CIPA SUNDAY: Does Samsung’s Website Chat Feature Violate CIPA?

Happy CIPA and Super Bowl Sunday TCPA World!

So, Samsung is under the spotlight with a new CIPA case brought by a self-proclaimed “tester.” You know like Rosa Parks?? Back to that in a bit.

The California Invasion of Privacy Act (“CIPA”) prohibits both wiretapping and eavesdropping of electronic communications without the consent of all parties to the communication. The Plaintiff’s bar is zoning in to CIPA with the Javier ruling.

If you recall, Javier found that “[T]hough written in terms of wiretapping, Section 631(a) applies to Internet communications. It makes liable anyone who ‘reads, or attempts to read, or to learn the contents’ of a communication ‘without the consent of all parties to the communication.’ Javier v. Assurance IQ, LLC, 2022 WL 1744107, at *1 (9th Cir. 2022).

Here, Plaintiff Garcia claims that Defendant both wiretaps the conversations of all website visitors and allows a third party to eavesdrop on the conversations in real time during transmission. Garcia v. Samsung Electronics America, Inc.

To enable the wiretapping, Plaintiff claims that Defendant has covertly embedded software code that functions as a device and contrivance into its website that automatically intercepts, records and creates transcripts of all conversations using the website chat feature.

To enable the eavesdropping, Defendant allows at least one independent third-party vendor to secretly intercept (during transmission and in real time), eavesdrop upon, and store transcripts of Defendant’s chat communications with unsuspecting website visitors – even when such conversations are private and deeply personal.

But Plaintiff currently proceeds in an individual action but if Samsung does not take appropriate steps to fully remedy the harm caused by its wrongful conduct, then Garcia will file an amended Complaint on behalf of a class of similarly aggrieved consumers.

Now back to Civil Rights.

According to this Complaint, Garcia is like Rosa Parks, you know, the civil rights activist. Why?

Well, because “Civil rights icon Rosa Parks was acting as a “tester” when she initiated the Montgomery Bus Boycott in 1955, as she voluntarily subjected herself to an illegal practice to obtain standing to challenge the practice in Court.”

Because Wiretapping and civil rights are similar right??

Disgusted.

The Plaintiff’s bar has no problem muddying the waters to appeal to the courts.

Do better.

CIPA is some dangerous stuff. Websites use chat features to engage with consumers all the time. It seems like it is easier to communicate via chat or text than to sit on a call waiting for an agent – assuming you get an agent. But maybe not?

Stay safe out there TCPA World!

Til next time Countess!! back to the game, GO EAGLES!!! #Phillyproud

Article By Jenniffer Cabrera of Troutman Firm

For more communications, media, and internet legal news, click here to visit the National Law Review.

With the US Copyright Office (USCO) continuing their stance that protection only extends to human authorship, what will this mean for artificial intelligence (AI)-generated works — and artists — in the future?

Almost overnight, the limited field of Machine Learning and AI has become nearly as accessible to use as a search engine. Apps like Midjourney, Open AI, ChatGPT, and DALL-E 2, allow users to input a prompt into these systems and a bot will generate virtually whatever the user asks for. Microsoft recently announced its decision to make a multibillion-dollar investment in OpenAI, betting on the hottest technology in the industry to transform internet as we know it.^[1]

However, with accessibility of this technology growing, questions of authorship and copyright ownership are rising as well. There remain multiple open questions, such as: who is the author of the work — the user, the bot, or the software that produces it? And where is this new generative technology pulling information from?

AI and Contested Copyrights

As groundbreaking as these products are, there has been ample backlash regarding copyright infringement and artistic expression. The stock image company, Getty Images, is suing Stability AI, an artificial intelligence art tool behind Stable Diffusion. Getty Images alleges that Stability AI did not seek out a license from Getty Images to train its system. Although the founder of Stability AI argues that art makes up 0.1% of the dataset and is only created when called by the user’s prompt. In contrast, Shutterstock, one of Getty Images largest competitors, has taken an alternative approach and instead partnered with Open AI with plans to compensate artists for their contributions.

Artists and image suppliers are not the only ones unhappy about the popularity of machine learning. Creators of open-source code have targeted Microsoft and its subsidiary GitHub, along with OpenAI, in a proposed class-action lawsuit. The lawsuit alleges that the creation of AI-powered coding assistant GitHub Copilot is relying on software piracy on an enormous scale. Further, the complaint claims that GitHub relies on copyrighted code with no attribution and no licenses. This could be the first class-action lawsuit challenging the training and output of AI systems. Whether artists, image companies, and open-source coders choose to embrace or fight the wave of machine learning, the question of authorship and ownership is still up for debate.

The USCO made clear last year that the copyright act only applies to human authorship; however they have recently signaled that in 2023 the office will focus on the legal grey areas surrounding the copyrightability of works generated in conjunction with AI. The USCO denied multiple applications to protect AI authored works previously, stating that the “human authorship” element was lacking. In pointing to previous decisions, such as the 2018 decision that a monkey taking a selfie could not sue for copyright infringement, the USCO reiterated that “non-human expression is ineligible for copyright protection.” While the agency is standing by its conclusion that works cannot be registered if it is exclusively created by an AI, the office is considering the issue of copyright registration for works co-created by humans and AI.

Patent Complexities

The US Patent and Trademark Office (USPTO) will have to rethink fundamental patent policies with the rise of sophisticated AI systems as well. As the USPTO has yet to speak on the issue, experts are speculating alternative routes that the office could choose to take: declaring AI inventions unpatentable, which could lead to disputes and hinder the incentive to promote innovation, or concluding that the use of AI should not render otherwise patentable inventions unpatentable, but would lead to complex questions of inventorship. The latter route would require the USPTO to rethink their existing framework of determining inventorship by who conceived the invention.

Takeaway

The degree of human involvement will likely determine whether an AI work can be protected by copyright, and potentially patents. Before incorporating this type of machine learning into your business practices, companies should carefully consider the extent of human input in the AI creation and whether the final work product will be protectable. For example:

An apparel company that uses generative AI to create a design for new fabric may not have a protectable copyright in the resulting fabric design.
An advertising agency that uses generative AI to develop advertising slogans and a pitch deck for a client may not be able to protect the client from freely utilizing the AI-created work product.
A game studio that uses generative AI to create scenes in a video game may not be able to prevent its unlicensed distribution.
A logo created for a business endeavor may not be protected unless there are substantial human alterations and input.
Code that is edited or created by AI may be able to be freely copied and replicated.

Although the philosophical debate is only beginning regarding what “makes” an artist, 2023 may be a uniquely litigious year defining the extent in which AI artwork is protectable under existing intellectual property laws.

FOOTNOTES

^[1]https://www.cnn.com/2023/01/23/tech/microsoft-invests-chatgpt-openai/index.html; https://www.nytimes.com/2023/01/12/technology/microsoft-openai-chatgpt.html

Article By Anthony V. Lupo and Dan Jasnow of ArentFox Schiff LLP

For more intellectual property legal news, click here to visit the National Law Review.

What’s New in 5G – February 2023

The next-generation of wireless technologies – known as 5G – is expected to revolutionize business and consumer connectivity, offering network speeds that are up to 100 times faster than 4G LTE, reducing latency to nearly zero, and allowing networks to handle 100 times the number of connected devices, enabling the “Internet of Things.” Leading policymakers – federal regulators and legislators – are making it a top priority to ensure that the wireless industry has the tools it needs to maintain U.S. leadership in commercial 5G deployments. This blog provides monthly updates on FCC actions and Congressional efforts to win the race to 5G.

Regulatory Actions and Initiatives

Spectrum

The FCC grants relief to a 600 MHz licensee serving Tribal Nations, giving it more time to complete and deploy its wireless network.
- On January 4, 2023, the FCC’s Wireless Telecommunications Bureau (“WTB”) released an Order granting a third request by Pine Cellular Phones, Inc. (“Pine Cellular”) to extend its construction deadline for one of its 600 MHz licenses by one year from January 9, 2023 to January 9, 2024. In 2019, Pine Cellular was a winning bidder in the Broadcast Incentive Auction (Auction No. 1002) of two 600 MHz licenses. After the licenses were awarded, the FCC prohibited the use of funding from the Universal Service Fund for equipment and services deemed to pose a national security risk. Pine Cellular planned to rely on that now-prohibited equipment to meet its construction requirement, but it has since been unable to acquire and install compliant equipment due, in part, to global supply chain issues. The WTB granted Pine Cellular’s request because it recognized that the only way for Pine Cellular to fulfill its construction requirement is to remove and replace all prohibited equipment in its network and that termination of the license would not facilitate the provision of wireless broadband service, particularly to the Choctaw Nation, which is covered by Pine Cellular’s license.
The FCC grants additional licenses for spectrum in the 2.5 GHz band for commercial wireless services.
- The WTB released a Public Notice on January 5, 2023, announcing the grant of four additional licenses for spectrum in the 2.5 GHz band, the auction for which concluded on August 29, 2022. A list of the licenses, sorted by licensee, is available here. And list of the same licenses, sorted by market, is available here.
The FCC takes further action to enable commercial operations through spectrum sharing in the 3.5 GHz band.
- On January 10, 2023, the WTB and Office of Engineering and Technology (“OET”) released a Public Notice approving the new Environmental Sensing Capability (“ESC”) sensor deployment and coverage plans of Federated Wireless in the 3.5 GHz band. Federated Wireless is now authorized to operate its ESC sensors to protect federal incumbents in Alaska and must, among other things, operate in conjunction with at least one Spectrum Access System (“SAS”), which manages non-federal access to the 3.5 GHz band, that has been approved for commercial deployment.
- In addition, the WTB and OET released a Public Notice on January 12, 2023, certifying that the SAS operated by RED Technologies SAS (“RED”) has satisfied the FCC’s testing requirements and been approved to begin its initial commercial deployment (“ICD”), subject to certain conditions. After RED operates its ICD, it is required to submit a report, and assuming that the report is satisfactory, RED will then receive authorization to operate for a five-year term.
The FCC revises its framework for making public safety spectrum in the 4.9 GHz band available for commercial wireless services.
- On January 18, 2023, the FCC released an Order and Further Notice of Proposed Rulemaking establishing rules that provide for a nationwide Band Manager for public safety operations in the 4940-4990 MHz (“4.9 GHz”) band. The Order replaces the previous framework for the 4.9 GHz band, which allowed states to lease the spectrum to third parties, including commercial entities, through a designated statewide lessor. The new framework will allow the Band Manager to coordinate all use of the spectrum nationwide, including by making it available for secondary, non-public safety use – such as commercial 5G wireless services – by allowing non-public safety entities to lease unused 4.9 GHz band spectrum. The Further Notice seeks comment on implementing the new leasing framework and selecting the Band Manager. Comments and reply comments on the Further Notice will be due 30 days and 60 days, respectively, after publication in the Federal Register.

Other Agency Actions

The Federal Aviation Administration proposes requirements to help foster coexistence between 5G operations in the C-band and aircraft relying on radio altimeters.
- On January 22, 2023, a Notice of Proposed Rulemaking issued by the Federal Aviation Administration (“FAA”) was published in the Federal Register. The Notice proposes to update the FAA’s existing Airworthiness Directive (“AD”) regarding the coexistence of licensees of spectrum in the 3.7-4.2 GHz band (“C-band”) and radio altimeters. Specifically, the FAA proposes interference tolerance requirements for radio altimeters and requirements that all aircraft operating under its rules meet power spectral density requirements to operate in the contiguous U.S. after February 2, 2024. The FAA has determined that radio altimeter tolerant airplanes will not experience unsafe conditions at any airport identified by the FAA as a 5G market. It has also determined that any 5G C-band provider that maintains the mitigated actions, which are based on the power levels to which Verizon and AT&T previously agreed, will not have an effect on the safety of transport and commuter airplanes with radio altimeters that meet the interference tolerance requirements. The FAA will assess changes in the agreed-upon power levels. Comments on the FAA’s proposals are due February 10, 2023.
The Department of Defense seeks comment on developing a spectrum roadmap.
- On January 4, 2023, the Department of Defense (“DoD”) released a Request for Information seeking input to support the development of a Next-Generation Electromagnetic Spectrum Strategic Roadmap, which Congress requested of DoD in a June 2022 letter. Among other things, DoD requests input on its ability to use commercial systems for its operations and spectrum sharing. The deadline for providing input is February 10, 2023 at 2:00 pm ET.

5G Networks and Equipment

The FCC reminds rip-and-replace funding recipients of their reporting obligations.
- On January 11, 2023, the FCC’s Wireline Competition Bureau released a Public Notice reminding parties that receive funding from the FCC’s Reimbursement Program to remove and replace equipment that poses a national security risk of their obligation to file their Reimbursement Program spending reports. The spending reports, which, among other things, must include a detailed accounting of the covered equipment and services that have been removed and replaced, are due by February 10, 2023.

Article By Angela Y. Kung and Christen B’anca Glenn of Mintz

For more data privacy and cybersecurity legal news, click here to visit the National Law Review.

University of Texas at Austin Permanently Blocks TikTok on Network

On Tuesday, January 17, 2023, the University of Texas at Austin announced that it has blocked TikTok access across the university’s networks. According to the announcement to its users, “You are no longer able to access TikTok on any device if you are connected to the university via its wired or WIFI networks.” The measure was in response to Governor Greg Abbott’s December 7, 2022, directive to all state agencies to eliminate TikTok from state networks. Following the directive, the University removed TikTok from university-issued devices, including cell phones, laptops and work stations.

For more Cybersecurity Legal News, click here to visit the National Law Review.

Artists Are Selling AI-Generated Images of Mickey Mouse to Provoke a Test Case

Several artists, frustrated with Artificially Intelligent (AI) image generators skirting copyright laws, are using similar image generators to produce images of Mickey Mouse and other copyrighted characters to challenge the current legal status of AI art. While an artist’s copyright in a work typically vests at the moment of fixation, including the right to prosecute copyright violation, AI-generated work complicates the issue by removing humans from the creative process. Courts have ruled that AI cannot hold copyright, which by corollary also means that AI-generated art sits in the public domain. This legal loophole has angered many professional artists whose art is used to train the AI. Many AI generators, such as Dall-E 2 and Midjourney, can render pieces in the style of a human artist, effectively automating the artist’s job.

Given Disney’s reputation for vigorously defending its intellectual property, these artists hope that monetizing these public-domain AI Mickeys on mugs and T-shirts will prompt a lawsuit. Ironically, provoking and losing a case in this vein may set a favorable precedent for the independent artist community. As AI becomes more advanced, society will likely need to address how increasingly intelligent and powerful AI can complicate and undermine existing law.

Blair Robinson also contributed to this article.

For more Intellectual Property Legal News, click here to visit the National Law Review.

Ankura CTIX FLASH Update – January 3, 2023

Malware Activity

Louisiana’s Largest Medical Complex Discloses Data Breach Associated to October Attack

On December 23rd, 2022, the Lake Charles Memorial Health System (LCMHS) began sending out notifications regarding a newly discovered data breach that is currently impacting approximately 270,000 patients. LCMHS is the largest medical complex in Lake Charles, Louisiana, which contains multiple hospitals and a primary care clinic. The organization discovered unusual activity on their network on October 21, 2022, and determined on October 25, 2022, that an unauthorized actor gained access to the organization’s network as well as “accessed or obtained certain files from [their] systems.” The LCMHS notice listed the following patient information as exposed: patient names, addresses, dates of birth, medical record or patient identification numbers, health insurance information, payment information, limited clinical information regarding received care, and Social Security numbers (SSNs) in limited instances. While LCMHS has yet to confirm the unauthorized actor responsible for the data breach, the Hive ransomware group listed the organization on their data leak site on November 15, 2022, as well as posted files allegedly exfiltrated after breaching the LCMHS network. The posted files contained “bills of materials, cards, contracts, medical info, papers, medical records, scans, residents, and more.” It is not unusual for Hive to claim responsibility for the associated attack as the threat group has previously targeted hospitals/healthcare organizations. CTIX analysts will continue to monitor the Hive ransomware group into 2023 and provide updates on the Lake Charles Memorial Health System data breach as necessary.

Threat Actor Activity

Kimsuky Threat Actors Target South Korean Policy Experts in New Campaign

Threat actors from the North Korean-backed Kimsuky group recently launched a phishing campaign targeting policy experts throughout South Korea. Kimsuky is a well-aged threat organization that has been in operation since 2013, primarily conducting cyber espionage and occasional financially motivated attacks. Aiming their attacks consistently at entities of South Korea, the group often targets academics, think tanks, and organizations relating to inter-Korea relations. In this recent campaign, Kimsuky threat actors distributed spear-phishing emails to several well-known South Korean policy experts. Within these emails, either an embedded website URL or an attachment was present, both executing malicious code to download malware to the compromised machine. One (1) tactic the threat actors utilized was distributing emails through hacked servers, masking the origin IP address(es). In total, of the 300 hacked servers, eighty-seven (87) of them were located throughout North Korea, with the others from around the globe. This type of social engineering attack is not new for the threat group as similar instances have occurred over the past decade. In January 2022, Kimsuky actors mimicked activities of researchers and think tanks in order to harvest intelligence from associated sources. CTIX continues to urge users to validate the integrity of email correspondence prior to visiting any embedded emails or downloading any attachments to lessen the risk of threat actor compromise.

Cyware: Kimsuky Article

Vulnerabilities

Netgear Patches Critical Vulnerability Leading to Arbitrary Code Execution

Network device manufacturer Netgear has just patched a high-severity vulnerability impacting multiple WiFi router models. The flaw, tracked as CVE-2022-48196, is described as a pre-authentication buffer overflow security vulnerability, which, if exploited, could allow threat actors to carry out a number of malicious activities. These activities include stealing sensitive information, creating Denial-of-Service (DoS) conditions, as well as downloading malware and executing arbitrary code. In past attacks, threat actors have utilized this type of vulnerability as an initial access vector by which they pivot to other parts of the network. Currently, there is very little technical information regarding the vulnerability and Netgear is temporarily withholding the details to allow as many of their users to update their vulnerable devices to the latest secure firmware. Netgear stated that this is a very low-complexity attack, meaning that unsophisticated attackers may be able to successfully exploit a device. CTIX analysts urge Netgear users with any of the vulnerable devices listed in Netgear’s advisory to patch their device immediately.

For more cybersecurity news, click here to visit the National Law Review.

Category: Technology