Category: Uncategorized

No Copyright Case Too Small: Content Creators Rejoice or Casual Infringers Beware?

An office jokester emails a funny meme she copied off Google to a colleague. A tourist snaps a picture of a painting in an art gallery and posts it to his travel blog. A teacher prints copies of a recently published Internet article and distributes to his class. A teen reposts his friend’s Instagram picture on his own social media page. To these casual infringers, no harm has been done and there’s certainly no reason to “make a federal case out of it.” But to the copyright owners, these small acts of infringement mean something. Perhaps not enough to justify the expense and time required for a federal claim, but action may be worth pursuing on a smaller scale.

Enter the pending CASE Act, intended to protect the “creative middle class,” and a potential boon to small businesses and individual content creators, while simultaneously presenting a threat to the “micro-infringements” committed by the ordinary person throughout the day. Last week, the US House of Representatives approved the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act) by a landslide 410-6 vote. The bill is intended to create a Copyright Claims Board within the US Copyright Office that would hear copyright claims of up to $15,000 per work infringed, with statutory damages capped at a total of $30,000.

If passed by the Senate, the CASE Act is likely to be a welcome avenue for graphic designers, bloggers, photographers, authors, vloggers, and other individual and small business copyright owners to protect their works. Currently, pursuing copyright infringement litigation is limited to filing suit in federal courts, the cost of which can be prohibitive for many small businesses. The proposed Copyright Claims Board provides a more affordable avenue—effectively, a copyright small claims court—to enforce copyright ownership.

Supporters say that small businesses have long needed a more efficient and affordable means to enforce their copyrights. To this point, much of the unauthorized exchange and use of Internet-based works or smaller-scale copyrighted works has been difficult to police. In fact, June Besek, the executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School, recently told the ABA Journal that many infringers knowingly exploit copyrighted material because they are confident they will never be challenged. (Anyone remember the flagrant use of Napster and LimeWire by teens in the late 1990s and early 2000s to illegally download music—excuse me, “file share”—with little fear of repercussions for their “small-scale” acts of infringement?). A number of organizations, including the American Bar Association, have expressed support for the CASE Act.

But that support, while widespread, is not universal. The American Civil Liberties Union opposes the proposed CASE Act on the grounds that it will stifle free speech and the open sharing of information. Other critics say that by lowering the threshold for infringement claims, lawmakers also are opening the door for “copyright trolls” to file nuisance infringement claims with the Copyright Claims Board. And many are less than keen on the idea that inadvertently unanswered copyright infringement complaints could cost ordinary Americans up to $30,000 in default judgments per proceeding—perhaps a small sum to a business, but potentially life-changing to many individuals—with very limited ability to appeal, under the currently proposed language of the Act.

Notably, as currently written, the small-claims tribunal established under CASE will be entirely voluntary, meaning the complaining party can elect to use the Copyright Claims Board, and the defending party may choose to opt out. But critics point out that the opt-out window is only 60 days long, and easily could be missed by an unwitting defendant.

Next, the Senate will consider the CASE Act, but observers believe it will pass with bipartisan support. The final language of the Act may be somewhat different from its current form, so stay tuned for more updates as the CASE Act makes its way through the legislature.

What the proposed CASE Act could mean for you:

Would-be plaintiffs (or defendants) appearing before the proposed Copyright Claims Board are encouraged to do so with licensed legal representation. Some have suggested that this small claims court format will allow parties to represent themselves without needing to incur the fees of legal representation. However, it is important to remember that, though the monetary stakes may be lower than in federal court, the complex legal nuances of copyright law, not to mention jurisdiction, service, discovery, evidence, joinder of parties, and expert testimony, remain the same and are best addressed by experienced legal counsel.

Owners of large copyright portfolios may find the CASE Act to allow greater leeway in defending their works against smaller-player infringers. Businesses with larger portfolios may wish to take stock of their protected works and develop an enforcement strategy, taking into account this more accessible avenue for enforcement.

Smaller companies or individual content creators, too, may find the proposed CASE Act to provide the freedom to assert their copyrights more aggressively than they have done previously. These companies and individuals also are encouraged to take stock of their copyright portfolios, and consider setting up infringement alerts through their legal representatives or third party vendors in order to take a more offensive stance.

On the opposite side of the court room, copyrighted work users are cautioned to think carefully about their use of protected works. Businesses and schools may want to consider updating policies on use and distribution of protected works, with a more conservative mindset. The relative ease of filing suit with the Copyright Claims Board may give rise to a more litigious “creative middle class.” And while the damages may be smaller-scale, the attendant legal costs may not be, and damages from multiple suits may add up quickly.

 

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

ARTICLE BY Kristin Lamb of  Womble Bond Dickinson (US) LLP.
For more copyright infringement regulation, see the National Law Review Intellectual Property law page.

Text Messages Inviting Independent Voters to Political Speeches by Former Presidential Hopeful Howard Schultz Were Not “Solicitations” For His Book Tour

The Western District of Washington recently held in Vallianos. v. Schultz, C19-0464-JCC, 2019 WL 4980649 (W.D. Wash. Oct. 8, 2019), that two text messages encouraging recipients to view a livestream of a political speech by the former chairman and CEO of Starbucks Howard Schultz did not amount to “solicitations” under the TCPA. While exploring a run for President, Schultz released a book, “From the Ground Up,” and went on a three-month long cross-country book tour. He also collected from voter records the phone numbers of individuals registered as having “No Party Affiliation” and sent them the text messages at issue. Named plaintiffs Cassandra Vallianos, Stacey Karney, and Mike Barker brought a putative TCPA class action against Schultz alleging that the text messages were sent to them without their consent after they had placed their cell phone numbers on the national Do Not Call Registry.

Specifically, plaintiffs made two claims: first, that Schultz sent the text messages using an auto-dialer and without the plaintiffs’ consent; second, that the calls were solicitations sent in violation of the TCPA’s Do Not Call restrictions. Plaintiffs’ claims were based on two separate text messages Schultz sent Plaintiffs. The first said “Howard Schultz will be speaking in Miami at 12:30! Watch live: https://hs.media.mi-a030[.]” The second said “Howard Schultz will be speaking about his vision for America in Miami at 12:30! Watch live: https://hs.media/mia030[.]” Plaintiffs argued that these text messages were “solicitations” under the TCPA because the text messages were sent with the goal of getting recipients to purchase Schultz’s book. Defendant Schultz moved to dismiss only the Do Not Call claim.

Acknowledging that messages that serve a “dual-purpose” by including both advertising and informational communications are solicitations for purposes of the TCPA, the court looked to the context of the messages to determine whether they constituted “solicitations” under the TCPA. The court reviewed the text messages, the webpage to which the text messages directed recipients, and the speech embedded in the website. The court found that the text messages did not facially discuss Schultz’s book. The court also found that the link in both text messages took Plaintiffs to the homepage of Schultz’s website, which included various video clips, including a livestream of Schultz’s speech and a link to a website where consumers could purchase his book. But the court held that the website was not transformed into a solicitation by the “mere inclusion of a link to a website on which a consumer can purchase a product.” The court found that the speech focused on Schultz’s political views and potential run for president, not his book. The court further found that the website was just a way to facilitate viewing of Schultz’s speech. Thus, the court ultimately determined that the messages did not constitute “telephone solicitations” under the TCPA.

With the seemingly never-ending national campaign season chugging along, we expect to see more such claims filter their way through the courts.

©2019 Drinker Biddle & Reath LLP. All Rights Reserved

For more on TCPA litigation, see the National Law Review Communications, Media & Internet Law page.

Can You Spy on Your Employees’ Private Facebook Group?

For years, companies have encountered issues stemming from employee communications on social media platforms. When such communications take place in private groups not accessible to anyone except approved members, though, it can be difficult for an employer to know what actually is being said. But can a company try to get intel on what’s being communicated in such forums? A recent National Labor Relations Board (NLRB) case shows that, depending on the circumstances, such actions may violate labor law.

At issue in the case was a company that was facing unionizing efforts by its employees. Some employees of the company were members of a private Facebook group and posted comments in the group about potentially forming a union. Management became aware of this activity and repeatedly asked one of its employees who had access to the group to provide management with reports about the comments. The NLRB found this conduct to be unlawful and held: “It is well-settled that an employee commits unlawful surveillance if it acts in a way that is out of the ordinary in order to observe union activity.”

This case provides another reminder that specific rules come into play when employees are considering forming a union. Generally, companies cannot:

  • Threaten employees based on their union activity
  • Interrogate workers about their union activity, sentiments, etc.
  • Make promises to employees to induce them to forgo joining a union
  • Engage in surveillance (i.e., spying) on workers’ union organizing efforts

The employer’s “spying” in this instance ran afoul of these parameters, which can have costly consequences, such as overturned discipline and backpay awards.

© 2019 BARNES & THORNBURG LLP

For more on employees’ social media use, see the National Law Review Labor & Employment law page.

Washington’s Model Toxics Control Act: Transforming Contaminated Sites into Community and Environmental Assets

The Model Toxics Control Act (MTCA) has been cleaning up contaminated sites in Washington State for 30 years. On December 10, 2019, Beveridge & Diamond and the Environmental Law Institute will be hosting a seminar (MTCA 30) to celebrate the success and examine the future of the state’s cleanup statute with an all-star program featuring some of the state’s leading experts. In advance of the seminar, B&D is publishing a series of articles focused on MTCA.

MTCA’s Many Triumphs

MTCA has been spurring the cleanup of contaminated sites in Washington for 30 years. Since MTCA went into effect, over 7,000 sites have been cleaned up. While the workhorse statute is not going to take a rest anytime soon, with more than 6,000 sites requiring further action before closure and over 200 new sites identified each year, the citizen’s initiative already has amassed an impressive legacy. Below are just a few of the many examples where MTCA has been instrumental in turning contaminated properties into productive community and environmental assets – on both large and small scales and in urban and rural areas of Washington.

  • Mount Baker Housing Association – Restoring Brownfields to Provide Affordable Housing in Seattle’s Rainier Valley. In 2016, the Mount Baker Housing Association (MBHA) entered into a prospective purchaser consent decree with the State of Washington to investigate and ultimately clean up chlorinated solvent contamination from a former dry cleaner and petroleum contamination from a former gas station and auto repair facility. The innovative use of MTCA’s prospective purchaser provisions allowed the nonprofit affordable housing developer to take on the risks of investing in properties with known contamination while gaining liability protections and expanding housing options for lower-income earners in an expensive real estate market. Importantly, the settlement also has provided a vehicle for MBHA to receive public funds to cover at least some of the remedial action costs. Just the other week, MBHA released a draft remedial investigation / feasibility study and a draft cleanup action plan for public comment.

  • Puget Sound Initiative – Ensuring Healthy Habitats in Padilla and Fidalgo Bays. In 2007, the Department of Ecology (Ecology) identified seven bays around Puget Sound where it would prioritize cleaning up contaminated sites and habitat restoration. In Padilla and Fidalgo Bays in northern Puget Sound, six industrial waterfront sites have been cleaned up while work on five other sites is in progress. The bays are home to valuable marine habitat, including extensive eelgrass beds, which serve as groundfish nurseries. The sites that have been cleaned up in the last 15 years include a former oil tank farm, a former lumber mill and pulp mill, a boatyard, and former milling, shipbuilding, and marina operations, among others.

  • Kittitas Valley Fire and Rescue – Building a New Fire Station in Ellensburg. When the Kittitas Valley Fire and Rescue was looking for a new fire station location, it purchased a property that had been used for hay scales, as well as truck repair and fueling, with associated soil and groundwater contamination. During property redevelopment, the contamination was investigated and remediated, with assistance from Ecology. With effective planning and use of the building design as a protective cap, cleanup was completed for under $250,000 and in under three months.

  • Kendall Yards – Transforming an Old Railyard in Spokane. In 2005, River Front Properties, LLC entered Ecology’s Voluntary Cleanup Program to address contamination at a 78-acre site to the northwest of Spokane’s downtown area. The site had been used extensively for locomotive repair and servicing and had served as a location for plating and storage operations. Over a single year, 200,000 tons of soil contaminated with petroleum, PAHs, and metals were removed from the site. Now, Kendall Yards has turned into a vibrant community with a growing collection of houses, apartment buildings, offices, and restaurants.

  • Gas Stations, Dry Cleaners, and Underground Storage Tanks Around the State. Contaminated sites are not caused only by heavy industrial operations. Many of the most common sources of contamination are gas stations, dry cleaners, and other businesses with underground storage tanks. Ecology has identified over 7,000 leaking tanks in the state. But significant progress is being made. Contamination from over 4,000 tanks has been remediated, and cleanup has started for over 2,000 more tanks. For gas stations, Ecology has entered into multi-site agreements to facilitate and coordinate cleanups for parties with larger portfolios of sites. Collectively, efforts to address contamination at service stations and dry cleaners have resulted in about a thousand NFA determinations under MTCA.

  • Substantial Public Funding for Cleanups and Related Projects. The 1988 citizens’ initiative resulted in a tax on the “first possession” of hazardous substances in Washington, in addition to MTCA’s cleanup framework. Although the tax revenue has fluctuated due to volatility in oil prices, it generated around $2.2 billion between 1988 and 2017 to support Ecology programs and to fund cleanups and related environmental projects around the state. This funding is critical to remediating sites where sufficient private dollars are not available. For instance, between 2015 and 2017, Ecology provided $1.2 million to remediate American Legion Park in Everett. The park was impacted by the nearby former Asarco smelter. The area-wide cleanup has exceeded the dollars collected in a 2009 bankruptcy settlement with Asarco. This year, the state legislature converted the tax on petroleum products from a price-based tax to a volumetric tax with the goal of making funding more predictable. The Department of Revenue also has estimated that revenues under the new tax will be higher.

© 2019 Beveridge & Diamond PC

For more environmental site developments, see the National Law Review Environmental, Energy & Resources law page.

ADA Website Litigation Likely to Increase

There has been considerable confusion amongst business owners as to the requirements of the Americans with Disabilities Act (ADA) as it relates to websites. The ADA requires, among other things, that places of “public accommodation” remove barriers to access for people with disabilities. This law has long been understood to apply to brick-and-mortar establishments, such as restaurants, retail stores, and hotels, but recent court decisions have held that the ADA applies to the websites and mobile applications of businesses offering goods and services online.

The Department of Justice (DOJ), which is responsible for establishing regulations pursuant to the ADA, has thus far failed to issue any guidance, regulations, or technical standards for online platforms, resulting in uncertainty for many business owners. Many have looked to the case of Robles v. Domino’s Pizza, LLC   for potential guidance. Robles was filed by a blind man who claimed that he could not access the Domino’s website and mobile app with his screen-reading software. The District Court dismissed the case on the basis that, although the ADA applied to the website and app, the DOJ’s failure to provide guidance as to the ADA’s application to websites violated Domino’s due process rights. The Ninth Circuit reversed this ruling, and on October 7, 2019, the U.S. Supreme Court denied a petition by Domino’s Pizza asking the Court to review the Ninth Circuit’s decision.

The Supreme Court’s refusal to review the Ninth Circuit decision maintains the uncertainty in what will no doubt be an expanding field of litigation. Business owners should expect to see an increase in ADA website litigation, and should take steps to ensure that their websites and mobile apps are accessible to disabled users.

 

© 2010-2019 Allen Matkins Leck Gamble Mallory & Natsis LLP

ARTICLE BY Rachel M. Sanders of Allen Matkins Leck Gamble Mallory & Natsis LLP.
More website regulation on the National Law Review Internet, Communications & Media law page.

CPSC Staff Addresses IoT 2018 Hearing Feedback, IoT Project Plans in New Report

Connected products can make the world a safer place: electronic sensors in the home can detect problems and send smartphone notifications to the homeowner; smart alert devices can notify family members or home help companies that an elderly person has fallen and needs assistance. But with over 64 billion connected products in the marketplace, there is a concern that connected devices could introduce hazards that might lead to a risk of injury due to problems with software updates or customization, faulty connections, and even consumer modifications.

As the body charged with overseeing consumer product safety in the U.S., over the last few years, the Consumer Product Safety Commission (CPSC) has shown an increasing interest in defining its role with regard to connected products. In May 2018, the CPSC held a public hearing on IoT, obtaining feedback from a range of stakeholders on potential risks of connected consumer products and the agency’s role. In late September, CPSC staff submitted to the Commission a status report outlining the CPSC’s work on consumer product IoT issues since the public hearing. The report also outlines how CPSC staff understands the agency’s role, which is safeguarding consumers from potential physical product risks, as well as how its work intersects with the jurisdiction of other agencies as they oversee connected products.

The report notes that this is an ongoing process, stating that CPSC staff is working on “how to define consumer product safety in terms of the IoT, the intersection of, and interdependencies among, consumer product safety, data security and privacy, and how our traditional risk management approaches apply to connected products.” The report acknowledges that privacy and data security are not within CPSC’s jurisdiction, but noted that at least one participant in CPSC’s 2018 hearing warned that “CPSC should pay attention to certain cybersecurity threats that create opportunities for physical harm, a risk not previously considered, and resist creating any prescriptive rules for IoT devices.”

To increase institutional knowledge of IoT benefits and challenges, CPSC has dedicated resources to develop its staff’s expertise. CPSC has also participated in developing voluntary standards, has taken a leadership role in establishing an interagency IoT working group, and has been developing its capability to simulate home networks at its laboratory.

The staff report outlines three ongoing internal projects relating to IoT. The first involves developing a methodology for assessing safety-related implications arising out of software and firmware updates to connected products. This project is at what CPSC views as the intersection of product safety and data security and potential “hazardization” of connected products as a result of data vulnerabilities. CPSC is also looking at connected heating appliances and the risks associated with their remote activation. Finally, CPSC is studying smart toys “in an effort to identify physical safety hazards.” It is surprising that CPSC staff would dedicate resources to toys as opposed to other products, like in-home safety devices, since the physical safety of toys is strictly regulated by the mandatory toy safety standard, ASTM F-963. The likelihood of physical hazardization of toys is far lower than, for example, connected home security devices and sensors. In those categories, connectivity, and thus security breaches that affect the operation of those devices, may be directly related to both safety risks and advantages. Indeed, home safety devices is a category where we have actually seen CPSC recall activity.

The report notes that CSPC is engaging in product safety assessments of connected& shared e-scooters. This is likely in response to reports of e-scooters that were vulnerable to hacking. The emerging hazards of micro-mobility devices such as shared e-scooters are also a focus of CPSC’s Operating Plan for Fiscal Year 2020 and represent another product category that appears to be more vulnerable to hazardization than connected toys.

CPSC staff intended to develop a best practices guide for industry and consumers on connected products, which was an enumerated project in the proposed Operating Plan for Fiscal Year 2020. However, an amendment introduced by Commissioner Feldman focuses CPSC’s resources on IoT intergovernmental work instead. Given the report’s acknowledgment that the agency is still working to develop staff expertise in IoT, attempting to create such a guide appears premature at this juncture.

The sharp increase in the number of connected devices in the market means it is necessary and appropriate for CPSC to continue to build expertise on IoT issues, even though very few examples of actual product safety hazards attributable to some type of connectivity failures exist. It would be useful for CPSC to focus its efforts and resources on product categories that pose a higher potential risk to the physical safety of consumers through hazardization or failure as a result of connectivity, without overstating potential risks. It is encouraging that through the intergovernmental initiatives a variety of federal agencies are working collaboratively to better understand the various consumer protection issues potentially raised by connected products that fit within their respective jurisdictions.

© 2019 Keller and Heckman LLP

For more CSPC regulation, see the National Law Review Consumer Protection law page.

Brexit: Turkeys Voting for Christmas?

Brexit delayed again – now it’s off to the races in a General Election

Despite having finally achieved a Parliamentary majority in favour of a way of delivering Brexit, in the Second Reading of the Withdrawal Agreement Bill on 22nd October, Prime Minister Boris Johnson decided – in the face of Parliament’s refusal to allow him to put the Bill through very rapidly so as to meet the 31st October Brexit deadline – to pursue a General Election instead of pushing the Bill through.

After some “after you, Claude” to-ing and fro-ing, the EU agreed to the request to extend the Article 50 deadline of 31st October which the Prime Minister had been forced by Parliament to send. The EU did so under condition that there should be no re-opening of withdrawal negotiations, no disruption to EU business by the UK (including the UK appointing a member of the new European Commission), and that the UK could leave earlier if the ratification process completed earlier.

A delicate game ensued in Parliament about the basis for a decision to hold the election, with opposition parties wanting to remove the Prime Minister’s discretion over the date of the election, and to make it impossible for him to try again to push the Withdrawal Agreement Bill. On 28th October Parliament rejected the Prime Minister’s attempt to secure an election on 12th December. Parliament then decided on 29th October that the election should be held on 12th December. The difference between the first 12th December and the second 12th December would take too long to explain, and would anyway test the sanity of all but the most extreme political geek.

And so the unhappy child of Theresa May’s disastrous 2017 election fades into the twilight…

The election Bill still needs to go through the House of Lords (unlikely to be problematic) and receive Royal Assent, and the House of Commons needs to tidy up some necessary business. So on current plans Parliament will dissolve on Wednesday 6th November for MPs to campaign for the General Election on Thursday 12th December. The British electorate, used to voting at national level every five years, had a General Election in 2015, the Brexit referendum in 2016, a further General Election in 2017, and now a third General Election in 2019 (the Scots also had an independence referendum in 2014).

Was the 2017-2019 Parliament a travesty of democratic accountability, or a powerful example of representative democracy grappling with issues which had split the nation in two through a binary exercise in direct democracy? Historians will judge. It was certainly a tough one for individual MPs, who regularly found themselves objects of extremely hostile, sometimes violent, social media messaging. Parliament certainly seemed to reflect accurately the division in the electorate, which the polls show has not shifted significantly throughout the period since the 52:48 result of the 2016 Brexit referendum.

“Prediction is very difficult, especially if it’s about the future” – Nils Bohr

So what’s going to happen in the 12th December election? It will be the first December election for almost a century, and the hardest to predict for many decades. Will Boris Johnson scoop the Leave vote across the country, or will Nigel Farage’s Brexit Party damage the Conservatives by arguing that Johnson’s Brexit deal is not really Brexit? Will the clarity of the Liberal Democrats’ Remain position help them and weaken Labour, or will Labour be able to sit on the fence on Brexit and focus the campaign on Tory austerity and public services?

The next six weeks will be exhilarating, confusing and passionate. They will decide the future course of the nation. Nothing more will happen on Brexit until after the election. Whether the election provides a clear way forward will depend on whether a party achieves a clear majority or the election produces another hung Parliament. Watch this space…

© Copyright 2019 Squire Patton Boggs (US) LLP

Read more about Brexit on the Global Law page on the National Law Review.

Two Ways Technology Has Changed How Lawyers Practice

Technology has changed all of our day-to-day lives. It also has impacted how lawyers practice. While having the internet at our fingertips is a convenience for most of us, it can cause headaches for judges and lawyers when jurors use the internet during trial to post or search online about the case. This means that lawyers must be more tech-competent than ever before. Here are two ways that technology has changed how lawyers practice:

  1. Litigants Face the Challenge of Jurors’ Social Media and Internet Use

Imagine years of preparation, costly investigations, and hundreds or thousands of hours of work by attorneys and clients being shattered in a moment by a juror’s single click on his or her phone, tablet, or computer. Whether by posting 280 characters on Twitter discussing deliberations or punching a few words into Google to search for more information on a legal concept or a fact central to a case, jurors have the power to radically disrupt the judicial process at their fingertips.

Jurors’ use of the internet and social media during trial and deliberations can create a real toll on lawyers, litigants, and the judiciary. In fact, online activity by jurors recently has led to a mistrial in a $13 million police shooting case, a thrown-out fraud conviction, and a potential retrial for a notorious drug lord.

Judges often employ explicit instructions and the threat of contempt to dissuade jurors from googling the parties or trial lawyers, conducting independent research online, or posting about the trial or their deliberations on social media. Many then hold jurors in contempt when they deliberately disobey instructions. Judges have fined jurors anywhere from $500 to $1,200 for their online activity that disrupts a trial or verdict, and some states have flirted with legislation to increase penalties. In the United Kingdom, judges may jail jurors based on their internet use, in one case for two months when a juror googled additional information about the victims in a fraud case and shared it with fellow jurors.

Because more than 80 percent of Americans own smart phones and the average American spends at least 3 hours a day online, it is a tall order to prevent jurors from googling or tweeting. As a result, attorneys should vigorously monitor jurors’ social media from voir dire through the final verdict. As noted below, it even may be part of attorneys’ professional duty of competence to ensure that they are keeping a close eye on jurors’ Twitter feeds.

  1. Attorneys Must Be More Tech-Competent Than Before

Lawyers also must keep up with other technological changes that impact the practice of law.

Under the Model Rules of Professional Conduct promulgated by the American Bar Association (ABA), a version of which has been adopted in 49 states, lawyers have a duty to provide competent representation to their clients and to maintain the knowledge and skills that their practice requires. In 2012, the ABA took the significant step of formally updating the rule to clarify that lawyers also have a duty to be competent in technology.

The new comment to the rules states that, “to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Since that change, 37 states have adopted the ABA’s Duty of Technology Competence as part of their version of the Rules of Professional Conduct, including Illinois, Michigan, New York, and Texas.

While the duty is clear, it’s not clear just what technology the rule refers to. While most agree that the duty includes basic competence in everyday technologies like e-mail and Microsoft Office, it has been left to individual jurisdictions and professional organizations to provide further guidance.

For example, the New York City Bar Association has suggested that attorneys have an affirmative duty to research potential jurors’ public social media information (see New York City Bar Association Formal Opinion 2012-02). While the research can help identify biases harmful to a client’s interests, lawyers must carefully avoid any direct contact with potential jurors online (via message or friend request) lest they violate other ethical rules. Juror consulting firms have stepped in with advanced tools to search and compile potential juror’s publicly available posts. But the onus is ultimately on the lawyer to ensure they are protecting their client’s interests by doing all they can to identify biased jurors.

Further, the duty of technology competence may affect an attorney’s obligation to protect clients’ confidential information from cybersecurity risk and to use appropriate electronic discovery practices and technology. These duties were at the center of a recent data breach, where lawyers disclosed confidential customer information in an e-discovery production because the lawyer did not understand the review process or the scope of the third-party vendor’s work. Further, in California, a state that has not adopted the ABA’s Duty of Technology Competence, the state bar has issued an ethics opinion stating that an attorney’s duty of competence requires, “at a minimum, a basic understanding of, and facility with, issues related to e-discovery.”

As technology continues to change at a rapid pace and impact the practice of law, clients will expect their lawyers to pay attention. To that end, lawyers must be competent in a range of technologies directly related to the practice of law.

These are just some of the most notable ways that technology is changing the practice of law. As technology continues to advance, the practice will continue to evolve with it. Lawyers should – and may be ethically obligated – to stay abreast of and develop competence in these technologies.

© 2019 Schiff Hardin LLP

For more on legal field developments, see the National Law Review Law Office Management page.

National Football Players Association Joins Forces with the National College Players Association in Effort to Market Name, Image and Likeness Rights for Student Athletes

The National Football League Players Association (NFLPA) has announced a partnership with the National College Players Association (NCPA) to jointly explore the marketing and licensing of all college athletes and how they can be paid for the use of their name, image and likeness through the NFLPA’s licensing affiliated entity, REP Worldwide.

Seeking to maximize the value of California’s Fair Pay To Play Act, recently signed into law by California Governor Gavin Newsom, which has empowered California student-athletes to seek financial opportunities relating to the marketing of their name, image and likeness beginning in January 2023, NFLPA Executive Director DeMaurice Smith stated, “We are proud to partner with the NCPA and offer the services of REP Worldwide to offer all athletes the same world class service that NFL players receive. For the first time, a legislature has indicated that these students have rights just like everyone else and we support this continuing movement towards fairness. Regarding the NFLPA’s new partnership with the NCPA, Smith added, the new relationship

“will explore opportunities for merchandise, gaming and other officially licensed products. We will also review how recent developments impact television broadcast revenues in pursuit of fairness.”

Ramogi Huma, former UCLA Bruins linebacker and current NCPA Executive Director, commented as well. “I am grateful that college athletes will finally have representation that cares only about fairness for the athletes.” He continued, “We are on the right side of history and invite the NCAA’s commercial partners to join us. It’s time to embrace a new beginning.”

Despite the announcement of the partnership, the potential relationship between these two entities and college athletes is still unclear.

While representatives of the NFLPA and NCPA continue to express their future role as one of “representation,” college athletes as a group are not viewed as employees and are neither unionized nor legally recognized as a collective group. Neither the National Labor Relations Act nor the Fair Labor Standards Act recognizes student-athletes within their definition of employee.

How and if, the NFLPA, Rep Worldwide and the NCPA can represent all college athletes and serve as their collective voice in exploring group marketing opportunities is a question that remains to be answered.

Jackson Lewis P.C. © 2019

For more on sports representation, see the National Law Review Entertainment, Art & Sports law page.

Communicate with Clarity and Precision: Five Steps to Improve Your Efficacy

Can You Still Hear Me, Now?

Over-connected. In the history of human life, we have never been so connected to one another. In fact, with the explosion of the internet and social media, social scientists caution on the impact to our over-connected brains.

Per Brandwatch, the world’s leading social intelligence company:

With all this connection, even the most efficient communicators are taxed. According to Gigoam, an international digital tracking firm, Americans consume 31.4 gigabytes of data monthly, primarily on mobile devices. How does that equate to words? Statistically, that’s roughly 100,000 words per day, on average, that Americans consume. Wow!

As technology brings more avenues for communication to our personal and work lives, it’s important for lawyers to keep an eye on their personal communications practices to remain effectual.

In a reasonably short timeframe, people have gone from snail mail to email to messaging each other via social media platforms. And, our society has embraced the new ways of communication in everyday life. The fun fact remains that we are caught in an evolving new normal.

A 2014 Gallup surveyed 1,015 people on how frequently they used various communication methods the previous day. Seventy-three percent of respondents reported they had read or sent a text every day. Eighty-two percent had made a phone call on a cell phone. Seventy percent had sent or received an email, and 55 percent had used social media to communicate.

Recognizing that communications platforms continue to emerge with essentially an infinite number of data and media messages incessantly bombarding us, we must be highly sensitized to our communication styles if we ever want to be heard by our desired audiences.

Lawyers rely greatly upon the spoken word in their work so perfecting their communication style is a wise investment.

Below are five quick tips:

  1. Think before you speak. No, really. Humans have a tremendous capacity to listen, absorb and respond to messages at a relatively high rate. Because of this, it is very tempting to get caught up in the fast-paced process (depending upon in what part of the country you live) and instead of actively listening and absorbing your audiences’ messages, you volley back and forth in the interaction, sometimes faster than your mind can compute.

To become a more effective communicator, one must demonstrate a disciplined approach in your oral communications. Before responding too quickly, put the brakes on to consider the impact of your words, verifying whether it is in your or your audience’s best interest to respond so quickly as to either short circuit the communications process and/or suffer the consequences of an ill-timed response. We adapt a 20-second rule. Before you respond, take 20 seconds (at minimum) to consider the implications of your words. Better to be a bit delayed with our response than to kick ourselves later for the words that impulsively escaped through your lips.

  1. audience considerConsider your audience. The same message is not appropriate for every audience. As a private practicing lawyer, what you say to a referral source about your legal focus may be different then how you would explain it to a client or contact. The question to ask is “why would anyone care”? and “what is most important to my audience”? Let these questions guide your communications, both verbal and written.
  2. Listen first and second, and then speak. We do not learn when we are speaking. It is imperative that as professional services providers that we actively listen to our audience to learn how we may help them.
  • Remove distractions immediately. Check the room temperature and light and sound in the room and within proximity. Create a positive environment in which to assure maximum attention and exchange of ideas.
  • Turn off your mobile device (even on vibrate, it can be distracting and disruptive) or leave it in your office.
  • Learn from your speaking partner (whether this is a client, referral source or other valuable contact) by asking select open-ended questions and then really listen to his/her responses to guide further conversation. Be curious.
  1. Speak to be heard; message sent/message received. Mind the communications gap. Too many miscommunications occur when we “think” we told someone (message sent) but found out later either did not and/or the listener did not remember it (message received) as we remembered sending it. It matters not where the miscommunication occurred but rather how to avoid miscommunications. First, refer to tip #1 above: think before you speak to ensure that you are in control of your message. Second, to become a more effective speaker, you are well advised to confirm with your audience that the message received is the message you intended to send.

How do you do this? Ask for feedback “are you with me?” “Does this make sense?” Adapt these feedback questions to your natural communications style and you will likely see eyes light up when you speak.

  1. Accentuate the positive; look inside first. Individuals who choose to lead with the negative often find they are talking only to themselves. Nobody wants to listen to negativity, especially when there is so much coming at us from the media and various social media channels. Learn the positive approach via disciplined practice and/or having a pal send you a signal if you “go off the ‘positive’ reservation”.

BONUS: Make every word count. KISS – – keep it short and simple. Do not offend your audience by offering too many examples when they understand your point in one. Treat words as the golden charms that they are. We simply have too many words in our day to waste the excess unnecessarily.

Becoming a more effective communicator requires a concerted effort, practice and willingness to adapt to new ways of thinking. There are few things more impactful than to present your well-crafted message and to be understood through the spoken and written word.

© 2019 KLA Marketing Associates.

More on successful legal communications on the National Law Review Law Office Management page.