Archive for January 2011

Facebook Posts: Protected Concerted Activity under the NLRA?

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The New York Times recently reported that the National Labor Relations Board (NLRB) has filed a complaint against an employer for firing an employee over a Facebook post.

According to the article, the employer, American Medical Response of Connecticut, fired one of their emergency medical technicians after she mocked her supervisor in a Facebook post, apparently in response to an argument she had had with her supervisor earlier that day. The post garnered supportive comments and further criticism of the supervisor from fellow employees. The employer claimed that the employee had violated a company policy prohibiting employees from “depicting the company in any way on Facebook or other social media sites.” The NLRB contends that such a policy is overly broad and violates the National Labor Relation’s Act prohibition against disciplining employees for discussing working conditions or unionization amongst themselves. The NLRB’s position is that the employee’s post is considered concerted activity, which is protected under the NLRA, and thus cannot justify disciplinary action against the employee.

In the article, a former member of the NLRB opined that whether a Facebook post criticizing a supervisor or complaining about working conditions would constitute protected activity might depend on whether fellow employees respond and become involved in the online conversation or communication (thus satisfying the “concerted” element of “concerted activity”).  The former member suggested that if the post does not “communicate with co-workers” (for instance, if no other employees commented or became involved in the conversation), the post may not be protected.

Such an interpretation raises questions about how the Board and the courts will go about reconciling the communications that occur among employees on Facebook with more traditional notions of concerted activity under the NLRA (i.e. employees discussing working conditions at the water cooler or in the employee cafeteria). As any Facebook user knows, one has little control over whether another user will respond to or comment on a Facebook post. Can the modern definition of concerted activity under the NLRA and its resulting protections really hinge on the arbitrary and random impulses of others to respond to a Facebook post? After all, how is a Facebook post criticizing a supervisor to which no one actually responds but which some people may privately express approval of significantly different than an employee making the same statement to a group of employees who may nod in agreement in a hallway at the office? It will be interesting to see how the Board and the courts refine their interpretation of the term “concerted activity” as the use of new modes of communication such as Facebook and Twitter proliferate among workers. Such refinements may also mean changes in employer policies addressing the use and content of social networking sites both inside and outside of the workplace, which may give rise to First Amendment issues.

An administrative law judge is set to begin hearing the case on January 25, 2011.

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January 30th, 2011 at 9:50 pm

Posted in Commentary

Vodafone Caves to Egyptian Government

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Egypt has taken the dramatic step of shutting down internet and cellular phone access in an effort to stop social networking from facilitating the protest movement across the country.  Much like Tunisia last week, and Iran after the 2009 election, social networking sites and mobile telecommunications have, at least in some way, facilitated popular protest.

In Egypt, part of the communications cracked down was made easier through the help of Western companies.  Vodafone, the UK mobile phone carrier that operates globally, immediately complied with Egypt’s demand that it suspend cell phone service in the country.

This presents an older question: what is the obligation of corporations from liberal democracies when dealing with oppressive regimes?  Evidenced by Google’s drama with the Chinese government, global free speech and assembly rights are increasingly confronting  communications groups.  Western companies now have fairly straightforward processes for evaluating labor standards of factories which produce their products in other countries (see, e.g. China Labor Watch). It seems implausible, however, to slapdash this system onto censorship issues, which encompass not just the small group of workers in production, but the entire society.

In any event, it is highly likely that further popular protests will be helped by communication technology.  Whether or not Western companies will achieve consensus on how to address these events is anyone’s guess.

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January 30th, 2011 at 9:47 pm

Posted in Commentary

Harsh Illinois Eavesdropping Statutes Send Citizens to Prison


Ignorance of the law is not a defense, as two Illinois citizens have recently discovered. Christopher Drew and Tiawanda Moore are both facing up to fifteen years in prison for crimes that they did not realize they were committing.  The New York Times recently highlighted the harsh eavesdropping statutes in Illinois by using these two citizens as examples.

Christopher Drew was arrested for selling art without a permit in downtown Chicago, which he intended to do in order to protest the city ordinance requiring permits. However, he now faces Class 1 felony charges, due simply to the presence of a digital video recorder in one of his bags during the arrest. He explains the encounter, in which police officers discovered that the recording device was on and had been recording the entire incident, in this video. The Illinois Eavesdropping Act contains various levels of offenses. Drew was charged with a Class 1 offense, which prohibits audio-recording of a law enforcement officer, state’s attorney, assistant state’s attorney, attorney general, assistant attorney general or judge in the performance of his or her duties.

Tiawanda Moore filed a sexual harassment claim against a police officer.  Naturally, she was already feeling leery of law enforcement and did not trust the Internal Affairs investigators, so she decided to record her meeting with them “to show how they’re not helping her.” She used her Blackberry, and was subsequently arrested under the Illinois Eavesdropping Act once the recording was discovered by the investigators.

While the penalty for recording public officials is the harshest, other offenses under the Act could easily affect many Illinois citizens without knowledge of the law. Audio-recording a private or public conversation with a civilian, without the consent of all parties to the conversation, is a Class 4 felony punishable by up to three years in prison.  The ACLU filed a lawsuit to challenge the Illinois Eavesdropping Act in federal court, but it was dismissed for the second time on January 10th.

These harsh penalties present challenges to modern technology. Most cell phones now have audio and/or video recording capabilities, and many people also utilize digital video recorders.  In fact, uploading videos to YouTube, Facebook, or blogging sites is common, and people are enticed to share their experiences with others.  However, quickly turning on a video recording device to capture the moment could put Illinois citizens in prison. In this era, where legitimate news organizations like CNN or local newspapers encourage citizens to become reporters by taping and publishing “eyewitness news,”  Illinois’ eavesdropping statutes could put these citizen-reporters in prison.

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January 30th, 2011 at 9:45 pm

A Call to Sunny Arms

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Solar panels use sunlight to provide clean, renewable power. And in contrast to the days when solar energy was only feasible for use in small electronics like calculators, today the technology has advanced to the point where it has far greater potential.  The White House will be installing solar panels later this year in hopes that it will encourage American homeowners to do the same. Though the move could be characterized as a political response to environmentalist pressure, it is beyond dispute that the technology is finally viable for wide use. In fact, new panels are so effective that the Department of Transportation has awarded grant money to fund construction of experimental roadways made from solar panels.  So how soon will America be solar powered?

Despite this rosy picture, the New York Times reports that the U.S. currently accounts for just $1.6 billion of the world’s $29 billion market for solar panels. Part of the lag might be attributed to permitting requirements that obstruct business. The Times recently reported that the domestic solar industry is being hindered by voluminous and inconsistent permitting requirements that slow the growth and raise the costs of home solar instillation. While the article focuses primarily on sunny Southern California, the effect is likely to be national. If the government is serious about a sunny energy future, permit inconsistencies would be a good place to start.

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January 26th, 2011 at 4:29 pm

Posted in Commentary

Koons’ Balloons: An Infringement Reversal?

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The New York Times has an amusing article about Jeff Koons, the prominent artist whose use of pop culture imagery has made him somewhat of a successor to Andy Warhol in the contemporary art scene. Koons is accusing two businesses – a San Francisco bookstore and a Toronto manufacturing company – of violating his intellectual property rights by selling bookends that he claims copy, without permission, his famous “Balloon Dog” sculptures.

The irony here is that Koons himself has been sued for copyright violations four times, and lost three of those cases. Indeed, much of Koons’ work plays with the idea of infringement. Thus to some observers, Koons’ accusations of copyright infringement is hypocrisy – an example of a prominent, rich artist attempting to intimidate smaller fish. The Times notes that any successful infringement claim will have to demonstrate that the defendants copied what is specifically distinctive about Koons’ sculptures; in this context, that might be difficult for a jury to parse.

One expert notes that Koons might have more success with a trademark infringement claim – asserting that the defendants were misleading consumers into thinking that their bookends were associated with Koons’ sculptures – but that would require Koons to demonstrate that consumers were confused about pricing, and given that Koons’ sculptures are valued much, much higher than the bookends, it might be a difficult case.

Assuming this case goes to trial (and later to appeal), it touches upon one of the most vexing problems of intellectual property law – the capacity of judges and juries to make legal judgments about artworks. The American legal system has created several legal fictions – multi-factor tests like fair use or standards like the ability to separate “distinctive” vs. “public domain” aspects of creative works – to grapple with these problems. Of course, whether or not these guidelines actually help determine the lines that separate infringement, appropriation, homage, and reference remains a matter of debate.

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January 19th, 2011 at 10:34 pm

“Kabletown is a Kind and Generous Company”

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Tina Fey and the writers on NBC’s hit comedy 30 Rock have gotten a lot of comedic mileage out of the proposed NBC-Comcast (or NBC-Kabletown, in the show’s version) merger, but there hasn’t been a lot of laughter today as the Federal Communications Commission and the Department of Justice approved the merger. According to the New York Times, this paves the way for the merger to conclude by the end of January.

Why isn’t this funny? Some critics, like FCC Commissioner Michael J. Copps, worry that the merger won’t benefit consumers, specifically in the online video marketplace. Others note the increasing levels of content control and prioritization that could result from the merger. Ultimately, the merger will have major effects upon the telecommunications industry; as former UMLS and current Cardozo Law Professor Susan Crawford notes, this is the biggest moment in communications policy since the AT&T divestiture. Competition policy, of course, must also play a role in ensuring that this major event doesn’t harm consumers or innovators going forward.

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January 18th, 2011 at 8:25 pm

Amazon Patents Unwanted Gift Converter

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Graciously accepting ill-suited gifts and slyly exchanging or re-gifting these unwanted articles may become antiquated formalities of the past.  In November, Amazon received a patent for a System and Method For Converting Gifts, US Patent No. 7,831,439 (issued Nov. 9, 2010). Amazon explains in their patent application that “as in other gift-giving situations, it sometimes occurs that gifts purchased on-line do not meet the needs or tastes of the gift recipient who may already have the item and may not need another of the same item [and] wish to convert the gift into something else, for example, by exchanging the gift for another item or by obtaining a redemption coupon, gift card, or other gift certificate to be redeemed later.”

The recipients can choose to exercise their own discretion in determining whether to invoke a preemptive gift swap or, alternatively, rely on an automated process by delegating the decision to an algorithm which determines when a substitution is necessary.  Figure 7 of the patent illustrates how a user may use the product recommendation capabilities of Amazon’s website to facilitate gift conversion decisions.  Additionally, this system enables the recipient to automatically replace gifts sent from specified individuals.

While gift-giving purists may object to recipients seemingly hijacking a gift-giving process, Amazon spins the purpose of its system away from the selfish inclinations of recipients and frames the system’s utility in terms of the gift sender who can enjoy more creative latitude with gift-exchanges serving as a safety net for good intentions gone awry:

“[C]oncern that the recipient may not like a particular gift may cause the person sending the gift to be more cautious in gift selection.  The person sending the gift may be less likely to take a chance on a gift that is unexpected but that the recipient might truly enjoy, opting instead of a gift that is somewhat more predictable but less likely to be converted into something else.  If the sender does decide to send the more unexpected gift, the sender may offer words of encouragement to the recipient (e.g. instructing the recipient to “feel free to exchange it if you don’t like it”).”

Additionally, others have identified potential economic benefit of gift optimization through reducing the volume of shipped goods, as unwanted gifts would be preemptively rejected rather than leaving the warehouse only to be shipped back and exchanged. While this scheme may mark the beginning of a shift in the sender-recipient dynamic in online shopping, Amazon has not indicated how much progress has been made in implementing this system, nor has a final date been established for its availability to Amazon users.

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January 18th, 2011 at 1:39 pm

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New Movement on the European Union Patent

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European patents are presently granted by the European Patent Office (EPO) under the European Patent Convention (EPC), but they remain expensive for patent seekers, roughly ten times as expensive as an American patent.  This expense is due in large part to translation costs that must be incurred for patents to be recognized in various countries.  These translation requirements have recently been lowered as a result of the London Agreement, but still nearly 75% of the cost for the acquiring typical patent is from the need to have it translated into various languages.  Additionally, the current European patent is essentially a bundle of patents, which must be registered, renewed, and enforced at the national level.  To remedy problems with the European patent, there has long been discussion about creating a single, centrally enforceable unitary European Union Patent (EU Patent).  However, consensus among member states for creating such a system has been impossible to attain, delaying various attempts to make the EU Patent a reality.  In the past year, new movement has been seen culminating at the December 2010 meeting of the Competitiveness Council.

In December 2009, unanimous agreement was finally found for creating a specialized patent court system, which would include a common court of appeals, and a single EU patent, which would grant intellectual property rights across all European Union member states.  However, agreement over a method to bring down translation costs for the EU patent had not yet been found.  The proposed translation arrangement would allow for the EU patent to be issued in English, French, or German – the working languages of the European Union.

During 2010, suggestions were fielded in an attempt to find agreement for the translation system, including one from the European Union’s Internal Market Commissioner Michel Barnier in July 2010.  Mr. Barnier’s proposal would have allowed countries where English, French, or German were not among the official languages to file in their an official language with subsequent translation into English, French, or German to be reimbursed by the EPO.  However, Italy was unyielding, accusing the European Commission of linguistic discrimination.  Throughout the fall of 2010, discussions about the languages of translation continued with the hope of finding a compromise.  These ended with a final attempt at compromise during the Competitiveness Council meeting in November 2010 after which the Belgian presidency released a statement saying, “[w]e have left no stone unturned…[h]owever, in spite of the progress made, we have fallen short of unanimity by a small margin.”  In the end, both Spain and Italy refused to compromise, remaining adamant that any EU Patent must also be translated into Spanish and Italian to avoid discrimination.

At a meeting of the European Union’s Competitiveness Council on December 10, 2010, the ministers of eleven member states – Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Slovenia, Sweden, and the UK – announced their mutual agreement to implement the EU Patent through enhanced cooperation.  Enhanced cooperation allows member states that wish to establish closer cooperation with each other to work together.  It is meant as a last resort when European Union member states as a whole cannot reach agreement within a reasonable amount of time.  Under the Lisbon Treaty, at least nine member states must agree to enhanced cooperation.  Now, the European Commission has approved the enhanced cooperation has requested a Council of Ministers vote by qualified majority authorizing the enhanced cooperation of twelve member states – the original eleven plus Poland.  If authorized, all members of the Council may participate in any deliberations concerning the implementation of the EU Patent, but only those member states participating in the enhanced cooperation may vote.  The enhanced cooperation agreement remains open for any member state to join at a later time.  Mr. Barnier hopes the whole process will be concluded by the end of 2011.  Both Italy and Spain continue to oppose initiating enhanced cooperation; however, the Hungarian delegation, currently holding the European Union presidency, have expressed their commitment to finding an agreement on the EU Patent issue as soon as possible.

In response to the proposal for enhanced cooperation, Belgian Minister for Enterprise and Simplification Vincent Van Quickenborne said that the agreement meant “that in the future the cost of a European patent will be reduced by a factor of 10, and the result will be that the cost of a patent in Europe will be competitive and comparable to that of the cost in the United States and Japan, and this will of course greatly benefit competitiveness in our industry.”  However, Mr. Van Quickenborne might be too optimistic.  No opinion has yet been issued by the Court of Justice of the European Union as to the legality of the proposal for a European Jurisdictional System for Patents, so questions still remain as to where and how EU Patents could be enforced.  Without this, a least part of the purpose of the EU Patent is undermined.  Regardless, the recent movement for enhanced cooperation means that the EU Patent will remain central to European Union political debates throughout 2011.

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January 18th, 2011 at 1:35 pm

UMG, A Promising But Unfinished Step

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The recent UMG v. Augusto decision by the Ninth Circuit Court of Appeals provided consumer copyright advocates with plenty of reasons to celebrate. But before popping the last bottle of champagne, it would be prudent to wait and see the extent to which, if at all, the court uses UMG to limit Vernor v. Autodesk’s effect.

In UMG, the court held record companies that mail promotional CDs to radio stations, even if labeled “Promotional Use Only—Not for Sale,”
 may not retain ownership or licensing rights to those CDs without first requiring the recipient to agree to any use conditions. Consequently, the recipient of the CDs retains unfettered ownership, and thus may successfully invoke the “First Sale” doctrine in response to a copyright infringement claim, should the recipient later decide to sell the goods.

This decision is receiving praise by music lovers because it is said to free promotional CDs from the shadow of copyright infringement claims. Sounds great for consumers.

Unfortunately, lost in the celebration is the Ninth Circuit’s prior decision in Vernor v. Autodesk, which has the potential to limit UMG’s effect.

Vernor held, inter alia, that the recipient of the copyrighted material, in this case software, obtains a mere license if the the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.” Vernor found that the defendant received only a license, thus he never obtained ownership, precluding him from invoking the “First Sale” doctrine. Consequently, upon selling the CDs, the defendant committed copyright infringement.

UMG didn’t overrule Vernor; rather it distinguished the two cases based on UMG’s method of distribution conveyed ownership to its recipients. UMG gave the material away unconditionally, in such a way that constituted a gift, whereas Vernor transferred the property subject to specific conditions, specifically that the user not resell the software. As a result, in UMG, the owner received ownership of the goods while in Vernor the recipient received only a license to use the goods.

Accordingly, we should wait and see how the Ninth Circuit interprets the two holdings, focusing primarily on the relative scope of each decision. For copyright consumers, while UMG is a step in the right direction, a broad interpretation of Vernor could undermine the momentum UMG generated.

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January 18th, 2011 at 1:29 pm

Shepard Fairey Settles with Associated Press

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Shepard Fairey Hope Poster

NPR News is reporting that Shepard Fairey, the prominent street artist and graphic designer behind the OBEY and HOPE posters, has settled with the Associated Press. The AP had sued Fairey, alleging that he had used without permission a photograph whose copyright was controlled by AP. As I described here in 2009, Fairey’s defense of fair use was potentially impeded by his admission of suppressing evidence in the case, and his original legal team recused themselves from the case. The settlement was probably the best option for Fairey, as even the judge in the case urged him to settle with AP. However, the whole saga remains disappointing for those copyright observers who might have hoped for a vigorous defense (or expansion) of fair use rights.

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January 12th, 2011 at 12:43 pm

Posted in Legal/Tech News