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This month, we’re looking at various constitutional issues and tangential actions. Of these, there’s a recent hot-button issue regarding the purpose of “freedom of speech” online. From fake news to political speech on websites, the notion of “what is allowed” and “what should be allowed” is still raised by people.  So, what can a website do to maintain the balance between free speech rights and acceptable community standards? Is there any responsibility to allow negative views? What is the risk, if any, towards censorship?

Freedom of speech online

In the wake of 2016, there’s a new question of online service providers that if they allow people to express themselves then they should either act as a gate keeper or grant carte blanche to all users.  Most notably, there’s been the Facebook “fake news” complaints, as well as the actions of a Reddit executive towards supporters of Donald Trump. In the case of Facebook, there were both complaints that it was discriminatory not showing stories from every end of the political spectrum, and negligent that it was not taking action to curtail “fake news” and their influences.  For Reddit, an executive had made edits to statements by Trump supporters to change comments critical of him to individuals that were managing the Reddit group.

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As we close out the year and enjoy the new technology from the holiday season, one piece of technology stands out as a forerunner.  It is something that we’ve dreamed and written about to the point it is a staple in science fiction. An artificial intelligence that anticipates and responds to a person’s desires and questions. This is the new technology, the “digital assistant,” such as Alexa, Siri, Cortana, and Google Home. These digital assistants manage to carry on conversations and answer questions.  How can these digital assistants think? How can they change and learn how to respond properly? Does the way these digital assistants work put data at risk?

How do digital assistants work?

Much like wearable technology, the digital assistant relies on “chatter” between itself and another computer hooked up through the internet.  However, the chatter tends to be slightly more reliant. Digital assistants, while they may have a few pre-programmed responses, are mostly reliant upon internet access to perform their duties. Alexa cannot work without WiFi, and Siri cannot work without a decent connection to data. When a person asks a digital assistant a question, the question is essentially pushed from the receiving device to the Cloud where it is answered, or some of the instructions are put out for the phone to follow. However, this may also entail, akin to a search history, a sort of assistant database where a person’s recorded voice may be kept, and in the case of the Amazon Echo at least, a user’s feedback on how Alexa did her job to allow it to grow and become more efficient, learning slang, or picking up on verbal tricks that are more similar towards human activities.

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Wearable devices become more popular as the holiday season approaches. Among various new technologies, there’s a focus on the idea of wearable devices, which include items like smartwatches, fitness trackers, and other electronic accessories that can help make life easier.  However, with that comes the risk of privacy and security.  What would you need to know about your wearable device? What are the limitations of wearable devices? How secured are they, who has access to or owns the stored data?

What type of data do wearable devices collect?

When it comes to wearable devices, it is important to realize that the most prevalent data it stores tends to be personal, health, and fitness-related information.  For instance, the wearable device may track steps, take a pulse, measure heart rate, and in the case of the newer Apple Watch 2.0, they could record your geographic position. However, when it comes to other data, the wearable device’s ability is limited for the time being.

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For the uninitiated, motion sensors work on either the idea of cameras capturing motions, infrared light waves, or gyroscopes. Yet, even with this simple trio, this subject has led to a large scale of lawsuits based on patent violations.  There are two major lawsuits to look at, one in the past, giving insight into what would fail, and one more current, involving Apple. What do these motion controls do? What would be patentable? What arguments could be made to fight these patents?

Patent lawsuits on motion-sensor technology

First, it’s important to note that motion controls, and indeed much of the technology that roots current motion controls are not new, but rather opens up to new avenues.  There has been an advent in motion control with the Nintendo Wii System. While it is rudimentary, initially consisting of a motion-controller device and a sensor bar, it allows individuals to control games (e.g., classic example being swinging around the remote to swing a bat).  However, with this came patent disputes, primarily between Koninkl Philips Electronics NV v. Nintendo of Europe GmbH, which ultimately succeeded in the UK, as the court deemed that the idea of a camera and sensor was specialized knowledge in the industry. Comparatively, there is a newer litigation involving Apple and Fitbit.  On or about January 2016, the litigation began over the technology used to track health and fitness for individuals, such as motion and steps taken, among other patents.

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In general, December is the month that yields a high volume of consumer activity, and the purchase of new technology devices. One of these is Virtual Reality (“VR”) technology, slowly trickling down from a niche market. However, it is not the only new reality-altering technology coming into the market, as Augmented Reality (“AR”) has had its growing pains in the world after its adoption.  So, what are these new technologies? What are the current risks? Do they have any practical use?

What is Augmented Reality?  What is Virtual Reality?

They are technologies meant to immerse a user into a different world by substituting or enhancing the reality.  AR has the largest number of examples, such as Google Glass and Pokemon GO.  They take data and overlay it into preexisting reality, allowing us to pull up contacts or catch imaginary creatures. While still in its infancy stage, AR has the potential to work as an overlay, where a camera can read and translate signs and books with the new text viewable, or a device can allow a person to follow arrows overlaid onto a road, or see parts of devices highlighted for repairs on the display.

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In continuing our comments regarding copyrights online, we are on to fair use and liability for litigation. A dancing baby has created one of the most obscure and interesting cases for the year. The ramifications of this lawsuit could further impact the way that some copyright disputes could play out, bringing in a potential new factor for any takedown or claims of infringement. Yet, how this ultimately will work out is up to the justices who currently compose the highest court of the land (i.e., United States Supreme Court).  What is the story of the “Dancing Baby” case? How might copyright infringement cases change? How could the court decide? Does this interact with the earlier Kirtsaeng ruling, if at all?

What is happening with the case now?

To recap, Lenz v. Universal focuses on whether there is a good faith requirement for takedowns. Lenz had uploaded a video on YouTube showing her toddler dancing to the song “Let’s Go Crazy” by Prince. It also included a snippet of the song in poor quality. Sometime after, Universal issued a takedown of the video. However, in its analysis, the Ninth Circuit first decided that there was a good faith requirement, and questioned if Lenz would be owed damages. So far, the United States Supreme Court has denied a request for certiorari by the petitioner over what, if any, damages could be requested by Lenz. The case has also garnered the attention of various organizations, such as the Electronic Frontier Foundation and Yes Men to curtail incorrect takedowns.

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Copyright is a legal right that keeps intellectual property safe, and allows individuals to profit from their efforts. Yet, these copyrighted works will at some point head over to the public domain after their expiration, which means they are not protected anymore.  What if it did not expire? In fact, recent decisions and lobbying have tried to push the effective “lifespan” of copyrights.  Instead of the life of the author, plus 70 years, it becomes further extended. So, how might this happen? What are the decisions that push for an artificially long copyright? How might an entity take advantage of this extension?

Warner Brothers v. X One X Productions:

For a few years now, there has been a legal dispute between Warner Brothers and X One X Productions, commonly known as AVELA, over the copyrights of various properties, like Wizard of Oz and Tom & Jerry. Now, these properties are still protected through copyright, but not entirely.  AVELA had taken a path akin to Dastar, and used images from promotional art, which was not renewed, and placed into the public domain since it failed to renew under the copyright laws of the time. However, back in 2011, a decision was made finding against AVELA, and while damages were disputed, the court found that Warner Brother’s awarded damages were not only justified, but they were liable for trademark infringement as well. Ultimately, this finding was because the works themselves were no longer under copyright protection, however the base work was, and the trademarks for the base work. Thus, any copies of the work incorporating the protected characters, or alterations, would become derivative works, covered under the copyright for the base work. Furthermore, the trademarks, like the names or character designs would be protected too.  Also, as trademarks have no expiration date, they can effectively push the protection of this sort of copyright further.

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Imagine that you were sued for copyright infringement, yet above all odds, you managed to prevail on the merits. Your case went up to the Supreme Court, it found for you, and you have emerged successful. Yet, you are stuck footing the bill to defend yourself against a claim that was in your favor all along.  How will you get out if it? Isn’t there a section of the Copyright Act, specifically written to encourage meritorious claims to better define copyright laws? Shouldn’t the prevailing party be entitled to its attorney’s fees? This scenario has played out in front of the Supreme Court, and decided on this past summer in Kirtsaeng II.

Can’t Kirtsaeng collect his legal fees?

In its ruling, the high court came back with a resounding “maybe.”  After Kirtsaeng’s first case relieved him from liability due to his resale of books falling under the First-Sale Doctrine, he had attempted to recoup his fees.  However, the appellate court declared that he could not get the fees back, as in that circuit, the fees could not be reimbursed so long as the other side had a reasonable claim. Other circuits also had general presumptions against awarding fees to the defending party if they had prevailed, thus there was some disagreement over what constitutes a prevailing party. Yet, when the court ruled in favor of Kirtsaeng here, the result was less a resounding “yes” and more of a clarification for the lower court. The high court unanimously determined the Fogerty standards were too wide (fees are awarded case-by-case and the courts must keep in mind the mounting of a meritorious case). In determining the meritorious aspect, Fogerty listed factors like frivolousness, motivation, and reasonableness. Yet, in the Second Circuit’s rulings, it placed too much focus on the reasonableness of the claims, resulting in the clarification.   In general, the court has discretion to award attorney’s fees to the prevailing party under 17 U.S.C. 505.

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Given the internet is a multi-faceted environment, how can someone monitor his or her copyrighted content on the web? The internet has been called the “wild west” and yields limited regulations requiring lots of research, practice, and guidance to properly navigate its pathways.  While self-tracking mechanisms can work in limited circumstances, however they may be imperfect solutions in the long run.  Ultimately, Google may have figured out the answer, but the implementation tends to go above and beyond what is asked of it through the Digital Millennium Copyright Act, and falls short of what society could hope for monitoring copyright infringements.  So, what is a content identification system? How does it work? What is it applied to and can it help protect your copyrights?

What is YouTube’s Content ID?

It appears that Google is the entity that has figured out how to solve the issue of identifying and flagging copyrighted content for the original owners. Yet, it comes with a caveat. What YouTube does is with clips of copyrighted content.  So, in reality it determines certain patterns and aspects. This makes it incredibly useful in flagging songs, music, and film footage, which are items that YouTube deals with on a regular basis.  This means that in any flagging online, a company can automatically issue some action, take downs, placing advertising on it, or otherwise dealing with an infringing party.  Yet, this requires that any entity taking part in this program has submitted the work to Google for YouTube’s Content ID system. Noticeably, the Content ID system does not consider any fair use defenses that carve out exceptions to copyright infringement.  Instead, it just looks to see if there is a match before taking one of the pre-determined actions. This limits the utility of the system, dependent on the Lenz ruling, and any future developments regarding fair use principles and the duties of online service providers under the Digital Millennium Copyright Act.

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Now, that we know that Content ID exists, shouldn’t all online companies be held to that standard? As it currently stands, the law posits “not quite.”  So, what standards are they held to? Surely, online content providers must take some reasonable measure to protect the copyrights of others.  If not, certainly, a company must have some knowledge of copyright laws? At least enough to know that uploading the original works of third parties without consent constitutes copyright infringement.  Or, at least the company must have knowledgeable employees who appreciate the Digital Millennium Copyright Act’s guidelines?

What is required under the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act (DMCA) comes with a safe harbor provision that protects online service providers from liability.  To avoid liability for any copyright infringement, online service providers are required to take down content as soon as they have knowledge of the alleged infringing activity. This last part is important, as it effectively gives purpose to the safe harbor. If an entity can be charged for the violation of its users without any actual knowledge, then it has the potential to stymie the general purpose of the internet.  However, what is not clear is how a company should gain knowledge of the allegedly infringing materials, and that was the heart of the dispute between Capitol Records, LLC and Vimeo.