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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.

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A new economy has been developing for a while, opening a unique market, with new opportunities. This is what’s called the new “sharing” economy with an entrepreneur presenting a way to connect willing participants for an economic transaction.  This has evolved from something like Craigslist, to a more user-friendly and app-based operation.  Namely, this includes businesses like Uber, Lyft, and AirBnB.

Yet now, it has opened a question with Uber via a proposed settlement about whether the service providers are employees or independent contractors.  So, what happens when you begin to question the standards of a business operation?  To what end can you control the product to ensure that there is a strong method to your brand?  How long can a settlement keep service providers from claiming they are employees and not independent contractors?

The Business Model

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After establishing the issues of preemption and standing, how can you sue for violations of CAN-SPAM? Is there any way for spam to be combated by an individual?  Yes, there is by suing for fraud or deception, which are not explicitly covered under the CAN-SPAM Act.  So, how do you plead fraud?  And how much do you need to plead?

How to plead fraud to avoid preemption?

In ASIS Internet v. Subscriberbase, which was heard by the Northern District of California, the court examined preemption and the question of fraud in relation to a motion to dismiss that was filed by defendants.  Plaintiff was suing under the California Business & Professional Code Section 17529.5, otherwise known as the False Advertising Law.  In its claim, plaintiff pleaded the following three factors California has in a fraud claim: (a) misrepresentation; (b) knowledge of falsity; and (c) intent to defraud.  However, plaintiff left out reliance and damage in its claims.  In general, the CAN-SPAM Act does not coincide with laws that prohibit falsity or deception, as well as, some other laws that overlap with it, but are extended to subject matter outside of email.  Here, that aspect of CAN-SPAM was specified to state that a claim containing the common law elements of fraud would not be prohibited.  Hence, the court decided that the complaint satisfied fraud allegations, pending the question of if all the factors were required to be alleged in the complaint.

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So, now that we know more about preemption in the CAN-SPAM Act, then what more is there to consider?  There is actually quite a lot of other factors, namely standing.  Now that you know how the federal CAN-SPAM Act and state laws may interact, there leaves the question of “standing.”  Standing is essentially a way for individuals to claim that they can sue under the law.  Without standing, a lawsuit cannot occur.  So, can you sue as an individual under the law?  Can you sue as a business?  Who can sue?

Can an individual sue under CAN-SPAM?

In general, individuals likely cannot sue under this federal law.  We can revisit the case of Gordon v. Virtumundo where the plaintiff had setup a business to profit off of violations of anti-spam legislation.  He was a Verizon subscriber for his internet access, and had started his business through GoDaddy.  In the trial, the court revisited the standing provisions of the CAN-SPAM Act and made three determinations.  First, the federal statute was not made to stamp out all spam.  Second, it was not specifically implemented to allow private right of actions.  Third, plaintiff had not suffered adverse effects due to spam.

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