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Following from last week, there is another counterpart to clickwrap agreements, known as a browsewrap. These are ultimately agreements that are harder to enforce than a clickwrap because instead of an action to assent to the agreement, a contract is formed, in part, by the individual continuing to browse the website. This would be akin to the terms of use that a website may have listed for users.  This could be implemented to bind users, much like click-wrap, and for the same purposes. However, what are the limits to a browsewrap agreement? What is required to enforce a browsewrap agreement? What are some of the things that could ultimately dismantle a browsewrap agreement and how can you to avoid them?

What is required for a valid browsewrap agreement?

A valid browsewrap agreement requires that the agreement be available on the website, via a hyperlink, and can be clicked on for the visitor to read.  However, this is generally harder for an individual to enforce, as there’s no “affirmative statement” like in clickwrap agreements. Instead, the affirmative statement is determined by the continued use of the website as specified in the terms. Yet, the way that this is compensated for is to demonstrate that the individual is aware that the agreement exists, and generally aware of its terms. In essence, if an agreement is present, and the visitor is aware that there are terms, the browsewrap agreement is more likely to be held as valid.

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In the current times, website design is a basic step for business operations. The design must be balanced, with attractive features and easy-to-use interface.  The user interaction has to be accounted for, the visit locations, how the website flows.  And with that, various user agreements are also in place to prevent liability for certain actions, or to impose restrictions on what an individual can do on the website.  So, how might this be enforced? What if there were difficulties in the website design that would render the clickwrap agreement invalid? How might this be decided?

What is a clickwrap agreement?

Now, as we’ve discussed before, a clickwrap agreement is a virtual agreement, made when a digital product is delivered online. This could be anything from a song over iTunes, or an eBook over Nook or Kindle. The idea behind this sort of agreement, differentiating it from a similar “browsewrap” agreement, is how the individual using the page does not need to explicitly assent to the agreement. This would be like a link that takes a user to a page with the full terms or a popup with the ability to assent, by clicking “I agree” or “I accept” the terms and conditions.

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With the ever-increasing dominance of cameras in our society, we might never think to ask “can someone find me from a picture?”  How futuristic would it be, to snap a picture of someone’s face and see their social media? To use a face like a business card? While technology may not be at that point, the law seems to be ahead of the curve. Currently, there are two lawsuits regarding the “tagging” of a person’s image online through social media due to one state’s law protecting biometric privacy, and how that affects us in interstate commerce. So, what is this law? What are the details of the lawsuits? How might this affect interstate commerce in general?

What are the lawsuits about?

The law itself comes out of Illinois, prompted by biometric additions to payment systems. Biometric data itself is quite common. It could include an individuals’ face, voice, fingerprint, retina scan, or blood type.  Anything that comes from the individual’s body that is recorded could qualify. This would then be used to determine the person’s identity or recorded for their own use, like in a health-monitoring app. The law requires any entity that is collecting this type of information, both tell the individuals, and explicitly obtain their consent.

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In the future, drones may be a commonplace since businesses are using drones for commercial purposes, and individuals are flying drones as a hobby. You may wonder about your privacy with all those eyes in the sky. Drones that can go about, without giving you a way to stop them. As shooting a drone out of the sky is generally frowned upon, what could you do to protect your privacy and your legal rights? With all that information on drones, what you can do, where you can fly, what about the laws that protect you from drones? What protects your privacy? What protects your business?

How to protect your privacy from drones?

In protecting privacy, there are a few aspects that have been mentioned earlier.  Namely the FAA requirements to register and display a drone’s registration. Following that, it is encouraged to report any improper use of a drone. Given that a drone’s registration number must be on the drone, it does mean if a drone is infringing on your privacy, then you can report it to local law enforcement agencies.

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So far, we have discussed what licenses are necessary and how you will be using your drone. Surely, there can’t be more issues.  Well, not quite. Following the issuance of drone licenses, there are restrictions on where and when these drones can fly.  Be it for safety or for general security concerns, drones are not allowed in all national airspace. So, where can you fly? What sort of events and situations would cause the airspace to become restricted? Is there any way to fly without licensing or airspace restrictions?

Where can you fly?

This first aspect is an interesting one. When you fly, you are generally flying in the National Airspace. Be it from a blade of grass to the wild blue sky, that space is regulated by the Federal Aviation Administration.  However, not all of that space is available for drones. First, is the restriction on altitude, ranging your navigation to approximately 400 feet, and restrictions on piloting drones in certain areas, like sporting arenas, restricted airspace (e.g., Disneyland), heavily populated areas and airports. This is mainly due to security concerns, as it is measured by what damage a drone can do in those areas. For example, it is generally prohibited to fly model aircrafts within five miles of an airport without notifying the tower, to prevent any difficulties with takeoffs and landings.  In those cases, where a drone may be piloted, it’s generally with a letter of agreement with the airport, detailing the operator’s authorization.

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So, now you’ve registered and gotten everything you need for your drone. What now? Well, it depends on what you plan on using your drone for.  Maybe it’s a gift for a child or a friend. Maybe you’d just like to use it for fun. However, as we briefly touched upon in our last post, there are requirements and restrictions placed on your drone if those actions are for commercial use.  So, what qualifies as a commercial act? What has to be done regardless of commercial or non-commercial uses? What uses would require a business to register and go through the whole process, and which uses would allow an individual to operate freely?

Non-Commercial Use

Part of the reason there are fewer restrictions on non-commercial use of drones is due to the special rule of model aircraft.  This would have the drone operate under different, less restrictive rules, and while still requiring the drone be registered with the FAA if it is within the weight range of 0.55 LBS to 55 LBS, it is generally exempted from onerous requirements.

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In our ever-evolving world, there are always new technologies and new opportunities.  Why invest in a person when a machine can do the work for its useful life? Why hire a taxi driver when the car can drive itself? How could you pay for a helicopter or carrier fees when a drone can deliver the goods on its own?  However, as with all things, life is not that easy. If you plan on using drones or Unmanned Aircraft Systems (UAS), then there are some facts you need to know, as the Federal Aviation Administration (FAA) has set forth restrictions. So, what do you need to fly? How do you register a drone? Who can fly a drone?

Who can fly a drone?

In order to fly for commercial purposes it is required that the business have: (1) a Section 333 grant of exemption; (2) a Certificate of Waiver or Authorization; (3) a registered drone; and (4) a pilot with an FAA airman certification. This is a unique qualification for businesses only and hobbyists or recreational drone use would be allowed without having to jump through these requirements.

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Where are the limits of copyright?  Copyright in general is limited to those new and original works, fixed in a tangible medium.  In regards to computer programs, they are also considered literary works for the purposes of copyright law, and so, it could be argued that the language of a system could be granted copyright protections.  However, what happens when it is not simply a computer program, but the language the programs use that is subject to copyright? Can a language be subject to copyright protection?  Does it matter what the language is used for?

Oracle v. Google: API as a Copyrightable Language

Our first example is the ongoing Oracle v. Google case.  As it stands currently, Google has lost, pending the results of the remanded decision later this month regarding any fair use defenses.  This has resulted in the copyright being granted to Oracle for Java’s API (i.e., Application Programming Interface), which is a computer code that allows programs to talk to one another, like the share button on this blog post’s page, allowing a person to link this post to Twitter or Facebook.  Those codes were provided by Twitter/Facebook, and allow the browser to “talk” to another application.

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In general, Section 230 of the Communications Decency Act is not only one for defamation, but entails a few exceptions where liability can be imposed on an interactive computer service (e.g., Facebook, Twitter, Tumblr).  So, there are situations where an online business may be held responsible for another individual’s actions.  How can we know whether we will be held liable for a third party’s actions?  How can we avoid potential liabilities?

What can an interactive computer service be held liable for?

From a practical perspective, Section 230 is not an absolute shield for interactive computer services.  There are certain cases where an exception has been applied by the courts.  First, there is an exception for certain types of information.  Specifically, there is an exception for intellectual property.  For example, Section 230(e) determines the effect on other laws, including, an explicit omission of coverage for intellectual property protections.  In essence, liability for defamation may not carry over, but liability for any copyright infringement may carry over, as well as any issue of criminal law, such as obscenities.  Similarly, this can be demonstrated in Gucci America Inc. v. Hall & Associates, where the court determined, from the plain meaning of the statute, that it would not bar plaintiff’s trademark infringement claims against defendants.

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In a situation where an online forum allows creation of profiles with commenting capabilities, a user may take the initiative to defame an individual personally or professionally.  The user may perform illegal actions using the online forum’s website, and in attempting to retrieve damages he/she has suffered, the defamed individual sues the online forum for providing a platform for defamation.  However, Congress has provided an exception towards interactive computer services through Section 230 of the Communications Decency Act (CDA).  What does Section 230 of the CDA do?  What can you do, as an individual, to recover from defamatory material?

What is Section 230 of the CDA?

It’s a sub-part of a federal statute that essentially dictates that an online forum (e.g., Facebook, Twitter, Tumblr) is not liable as a publisher or speaker of online defamatory comments made by its users.  For example, if a defamatory comment was posted on Facebook, then Facebook would not be liable for the defamation.  Essentially, this would protect a website from anything that its users would publish.  This is not necessarily just towards defamatory content, although, it could be expanded to “any information” provided by an entity or person using the interactive computer service’s platform. There are, however, exceptions to this broad liability, as we’ll discuss in future blogs.  Also, the exact nature of a “publisher” is still unclear.  in general, there is a difference between a publisher, which initially produces the comment, and a distributor, which is not covered, that repeats the comment.