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Internet Law Twists & Turns

Internet Law Twists & Turns

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Securing assent: The Internet twist of electronic contracts

Mark Sableman October 11, 2016
Illustration of a contract being extended from a computer screen

Even the age-old law of contracts has been altered by the Internet. The big Internet twist for contract-making is assent: If you are doing business on the Internet, take care to obtain clear assent from the parties with whom you are dealing, and preserve good evidence of that assent. READ MORE

FTC sets new standard for mobile app location tracking – indirectly

Mark Sableman September 14, 2016
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A recent FTC complaint indirectly lays out important new national standards for how geolocation information may be collected from mobile devices. READ MORE

Political campaigns face copyright and robocall liabilities

Mark Sableman July 26, 2016
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Copyright compliance seems to be a particular bugaboo in the political field. Practically every election year, candidates are accused of infringing music and other copyrights. READ MORE

Do you have privacy rights on social media?

Mark Sableman July 12, 2016
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Your activities in an isolated, fenced, and tree-shielded home create a stronger expectation of privacy than your activities in a high-rise apartment with the curtains open. Social media privacy cases simply apply that long-standing “reasonable expectation of privacy” principle to Internet situations. READ MORE

Trade secrets law in the Internet age

Mark Sableman July 1, 2016
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If a trade secret leaves your building in papers in the briefcase of a renegade employee, you may be able to recover the papers and reestablish the confidentiality of the trade secret. But if it is posted on the Internet, it will likely be copied, recopied, and distributed to so many people that full recovery won't be possible. READ MORE

Is everyone’s website illegal?

Mark Sableman May 5, 2016
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Companies that are potential targets of ADA claims should examine their website accessibility, and take steps to ensure that services they offer through their websites are also available to the disabled, even if through different means. READ MORE

Electronic marketing’s Internet twist: Use e-mail, not faxes or texts

Mark Sableman March 14, 2016
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The penalties and enforcement methods of the TCPA are the real problem for marketers. Each improper fax, to each recipient, carries a minimum $500 civil penalty. And the TCPA is enforceable by private attorneys, who usually bring their claims as class actions. A single mistaken fax to thousands of recipients can lead to millions in liability. READ MORE

Rapper rumble leads to legal rumble over use of tweet

Mark Sableman February 8, 2016
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The big takeaway from this case, as from other Twitter libel cases, is that even those tiny 140-character-limited messages known as tweets can lead to full-fledged litigation, subject to the same full and painstaking linguistic and legal scrutiny as any other case. READ MORE

Is the Internet expanding privacy expectations?

Mark Sableman January 22, 2016
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Contrary to the conventional wisdom, our expectations of privacy are not steadily and uniformly shrinking. In some cases, they are expanding. READ MORE

Will the Zippo sliding scale for Internet jurisdiction slide into oblivion?

Mark Sableman January 12, 2016
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In legal terms, where does jurisdiction lie for an Internet dispute? Many answers have been given over the last 20 years, and some of the weaker, less helpful answers are only slowly being supplanted by more reliable and realistic legal tests. As a recent decision illustrates, particularly in cases of Internet defamation, courts are abandoning some early simplistic precedents. READ MORE

Experts make privacy regulation a serious threat

Mark Sableman December 7, 2015
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Though government regulators are often far behind on the technology curve, real experts have taken over at several important agencies that regulate conduct on the Internet. READ MORE

FTC eyes endorsements: #ILoveThisProduct!

Jennifer Visintine September 22, 2015
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Generally, the FTC prohibits unfair and deceptive acts or practices. When it comes to endorsements of products or services — whether by celebrities or others — the FTC’s endorsement guidelines and FAQs explain some types of activities that might be considered deceptive, and how to handle different situations. READ MORE

Can you be sued for posting your opinions on the Internet?

Mark Sableman September 8, 2015
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Most efforts to prevent or penalize Internet comments and criticism are crushed in the court of public opinion even before they reach the courthouse. READ MORE

The changing faces of facial recognition

Mark Sableman August 11, 2015
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Like other new digital technologies, facial recognition will soon develop robust commercial applications. And the privacy implications of those applications could raise serious concerns, and difficult policy choices. READ MORE

Duke of Brunswick rule strikes out for Internet lawsuits

Mark Sableman July 30, 2015
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Courts throughout the English-speaking world have repeatedly grappled with this issue — not because it is really that difficult, but because of a 166-year-old British court decision. READ MORE

Web trademarks: It's not the words, it's the action

Mark Sableman July 1, 2015
Twists_default blog

The PLAYDOM case involves a federal trademark registration but it provides lessons for those seeking common law protection as well. READ MORE

The evolving story of cameras in court

Mark Sableman June 12, 2015
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By a twist of the Internet age, one of the most frequently voiced objections to television coverage of courts — that it will be selective and misleading — isn’t as persuasive as it may once have been. We can expect that the entirety of Supreme Court arguments will be available on the Internet, if and when the court allows video coverage, just as interested parties can hear the entire audio transcripts now on the Oyez Project website. READ MORE

Data privacy: From Arthur Miller to Edward Snowden

Mark Sableman June 5, 2015
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Where did this crazy issue of data privacy come from? And what policies and practices are likely in store as our governments and businesses grapple with all of the new data privacy concerns of the digital age? READ MORE

Busting the top privacy myths

Mark Sableman February 26, 2015
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Those who think that privacy is dead these days might want to drop by the Walter Washington Convention Center in early March, for the International Association of Privacy Professionals’ Global Privacy Summit in Washington, D.C. READ MORE

An inside look at how Spain’s copyright law targets Google and other news aggregators

Mark Sableman February 9, 2015
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I recently communicated with Professor Miquel Peguera, an Internet law expert at the Open University of Catalonia in Barcelona. He writes a blog on ISP Law, co-edits the Journal of Intellectual Property, Information Technology and E-Commerce Law, and has been a visiting scholar at Columbia University. He graciously shared some helpful observations about the new Spanish law. READ MORE

Missed Davos? Catch up online with the forum’s top Internet issues

Mark Sableman January 21, 2015
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The “future of the Internet” is one of the 10 global challenges that Davos is examining in 2015, and the forum’s organizers have posted online a lot of interesting materials on this topic. READ MORE

Top five shifts in Internet law in 2014

Mark Sableman December 29, 2014
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Here’s my impressionistic list of five of the most significant 2014 shifts affecting businesses that operate in the Internet space. READ MORE

Certifying privacy compliance: Is TRUSTe sufficiently trusty?

Mark Sableman November 26, 2014
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TRUSTe’s recent settlement with the Federal Trade Commission, and its admission that it didn’t always carry out annual recertifications of its clients, illustrates, to some extent, how tough it is to find hard-and-fast assurances in the privacy world. READ MORE

The big data security risks of little things

Mark Sableman November 12, 2014
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Call it what you will — Internet of Things (IoT), machine-to-machine communications (M2M), or the Intelligent Internet — it is increasingly affecting our lives. READ MORE

What are you giving up when you click a click-through contract?

Mark Sableman October 28, 2014
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How effective are those ubiquitous but rarely read terms of use? The question is important, since website and mobile app terms of service frequently include many crucial provisions. READ MORE

New copyright compendium provides some answers for website owners

Mark Sableman September 8, 2014
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The manual, which focuses on issues that the copyright office handles in the course of processing applications for copyright registrations, is helpful on some Internet-related copyright concerns. READ MORE

Copyright and performance rights in an online video world

Mark Sableman August 27, 2014
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A copyrighted work must be fixed in a tangible medium of expression, and live performances are dynamic and ephemeral, not fixed. READ MORE

Duke, Hershey, and Winston: Who gets to trademark a famous name?

Mark Sableman August 5, 2014
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Common sense tells you that you can always use your own name. But under trademark law, that’s not always true. Three recent cases illustrate this conundrum, which plays a major role in many Internet marketing and domain name disputes. READ MORE

Who owns your domain names?

Mark Sableman July 21, 2014
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You don’t physically possess a domain name, as you possess tangible personal property, like artworks and collectibles. You don’t get a government title, as with a vehicle, or record your rights in a government office, as with real estate. There are no fancy certificates for your safe deposit box, as there are (or at least used to be) with traditional intangible personal property like stocks and bonds. READ MORE

Seventh Circuit says Sherlock Holmes is still copyright-free

Mark Sableman June 24, 2014
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The decision includes a strong warning that extending copyright protection as requested by the Doyle estate would be a “two-edged sword,” because it would reduce the incentive of subsequent authors to create derivative works, increase the costs of new authorship, and incentivize successful authors to extend old characters rather than create stories with entirely new characters. READ MORE

Redskins trademark case highlights value of linguistic analysis

Mark Sableman June 20, 2014
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We’re increasingly seeing linguists assist with the language and communication-based legal disputes of the information age. In fields like advertising, trademarks, and even business communications, linguistic analysis has often proven helpful, or even decisive. READ MORE

In Google Spain ‘right to be forgotten’ case, EU court looks critically at free expression defense

Mark Sableman June 6, 2014
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It wasn’t surprising that the European Union’s highest court enforced the European Union’s right to be forgotten. What was surprising, however, was that controversial right was enforced against Google — contrary to the recommendation of the court’s advocate general, and contrary to the expectations of most informed observers. READ MORE

Court upholds citizen surveillance of police activity

Mark Sableman May 30, 2014
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Some surveillance can affirm and support individual interests in personal liberty. For example, a recent case holds that citizens have a well-established presumptive right to videotape police conduct in public. READ MORE

Journalism still struggling with an Internet that never forgets

Mark Sableman May 7, 2014
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Continued publication of old information, particularly as to private persons, raises some ethical concerns. READ MORE

Balancing the data privacy debate: The benefits of big (and little) data

Mark Sableman April 11, 2014
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Privacy advocates like the Center for Democracy and Technology have so far effectively won the agenda-setting contest on privacy, and the so-called Big Data industry is on the defensive. The data privacy policy discussion, however, needs to hear more from data use advocates. Theirs is an essential and largely neglected voice in policy debate on this important issue. READ MORE

Court strikes down Illinois eavesdropping act, opens debate on privacy in the digital age

Mark Sableman March 24, 2014
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The two cases addressed by the Illinois court highlighted a major problem with strict-liability two-party consent eavesdropping laws — they criminalize citizen recordings of their interactions with police and other government officials. READ MORE

The newest mobile privacy issue: Tracking shoppers’ footsteps in stores

Mark Sableman March 6, 2014
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As a modern American, you are carrying a smart phone that is constantly broadcasting its presence and the unique persistent identifier (MAC address) by which it is known, to the wireless world. You are broadcasting, and, in many cases, the stores are listening. READ MORE

Courtney Love, Yelp and Internet libel: Nevermind, it’s not a trend

Mark Sableman February 24, 2014
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With the Internet, far more communications are published than ever before. And yet the rate of libel suits — claims for damage based on disparaging communications — is much lower than before the Internet. More communications, fewer disparagement claims. It seems counterintuitive. READ MORE

Sherlock Holmes and the case of the split copyright personality

Mark Sableman January 28, 2014
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In the eyes of the law, Sherlock Holmes resides not so much on Baker Street as in two different copyright worlds. Four novels and 46 short stories are currently in the public domain. But 10 short stories are still under copyright protection. So what does that make Sherlock? READ MORE

Whitepaper roundup: Privacy, copyright, and digital advertising

Mark Sableman January 10, 2014
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For those interested in Internet law and policy issues, there are plenty of other official reports that you can use as primers and starting points for further research. READ MORE

California says you can track online, but you can't hide your tracking

Jennifer Visintine December 20, 2013
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California law will soon require website and mobile app operators to disclose additional information in their privacy policies. READ MORE

The U.S. data privacy debate, in a nutshell

Mark Sableman December 19, 2013
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Do you want a comprehensive overview of the data privacy debate in the United States? Well, the Government Accountability Office has written one. READ MORE

FTC says app developers must shine more light on how they use data

Mark Sableman December 12, 2013
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Our law generally expects that when private information is collected, users should be given notice of the collection, and a choice about whether to allow it. READ MORE

Safe Harbor after Snowden: What are the EU’s biggest pain points on data privacy?

Mark Sableman December 5, 2013
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Unfortunately for U.S. and international businesses, the headline-making Snowden revelations are affecting international data transfers, which in many cases are crucial to business operations READ MORE

Privacy in social media – is it really an oxymoron?

Mark Sableman November 25, 2013
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At least in U.S. privacy law, the key issue for determining whether one has a privacy right is whether there was a “reasonable expectation of privacy” in the circumstances. READ MORE

Attention Internet publishers: Linking limits libel liability

Mark Sableman November 20, 2013
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When the Internet was young, and the thrills of hypertext linking were still new, hyperlinks were viewed as a potential source of liability. READ MORE

What’s the future of free speech protections for advertisements?

Mark Sableman November 8, 2013
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Even as advertising starts to look more like journalism, there’s one thing that ads certainly share with news content: First Amendment protection. READ MORE

Blogging, native advertising, and the new world of regulating internet advertising

Mark Sableman October 25, 2013
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Amid the exploding content of the Internet era, it turns out we need a special rule for that most basic question: What is advertising or promotion? READ MORE

Free speech on Facebook: You can ‘like’ but you can't threaten

Mark Sableman September 26, 2013
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Facebook communications have become the newest testing ground for free speech. And the results, at least from two recent and notable cases, affirm the unusual and perhaps counterintuitive way that U.S law looks at a key threshold question: What is speech? READ MORE

Ads made for me: How do consumers really feel about targeted online ads?

Mark Sableman September 13, 2013
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Contrary to popular belief, companies don’t want to bombard consumers with loud, obnoxious ads (save for, perhaps, the remarkably noisy front page of the Baltimore Sun’s website leading up to Labor Day.) Such abrasive advertisements tend to push consumers away. READ MORE

‘Keep Out’ signs can override open Internet culture

Mark Sableman August 27, 2013
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The Internet gives every appearance of being wide-open, public, available to all. You can email anyone in the world who is connected to the Internet. READ MORE

Poorly drafted privacy terms can stymie opportunities

Mark Sableman August 21, 2013
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Companies that are required to have website privacy polices should take special care in drafting, vetting, and revising website terms and privacy policies. READ MORE

Hyperlinks are lawful - unless you use them unlawfully

Mark Sableman August 9, 2013
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Mere reference use of a hyperlink is rarely unlawful. And a recent federal case from New York, Pearson Education v. Ishayev, affirmed that conclusion, holding that even a hyperlink to copyright-infringing materials did not itself constitute infringement. READ MORE

Retailers fail to derail ICANN’s ‘Express’ train to more top-level domains

Mark Sableman August 1, 2013
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The current explosive expansion in top-level domains will create new trademark conflicts, and possibly new twists in Internet trademark law, as two very recent cases involving the retailers Express and The Limited illustrate. READ MORE

Midnight in Paris ruling: Proof that the copyright conundrum isn’t dead, or past

Mark Sableman July 24, 2013
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The case hinged on this Faulkner quotation: “The past is not dead. It’s not even past.” READ MORE

Trademarks, domain name wars, and the birth of cybersquatting remedies

Mark Sableman July 19, 2013
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Trademarks lie at the heart of our market society, so it’s not surprising that they’ve been important on the Internet since it first went commercial. While the principles of trademark law apply equally in the online and bricks-and-mortar worlds, there’s a twist to how trademark use is regulated within Internet domain names. READ MORE

Instant message conversation forms instant contract

Mark Sableman July 12, 2013
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As a notable Internet advertising contract case shows, you can make or modify a contract with a few words transmitted by instant message. READ MORE

Fair use explained – or not?

Mark Sableman July 11, 2013
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What do we make of the interesting tidbit in the Obama Administration’s annual report on protecting U.S. intellectual property rights in the digital age, the “2013 Joint Strategic Plan on Intellectual Property Enforcement”? READ MORE

The myth of free use of social media content

Mark Sableman July 11, 2013
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The Internet twist that protects social media services doesn’t protect social media users. Users of those services should only post content for which they have rights, and only re-use content of others with the copyright owner’s permission. READ MORE

The Internet copyright compromise: Takedown, repost, litigate

Mark Sableman July 10, 2013
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Copyright law clearly extends to the Internet, which may even constitute the most important area in which copyrighted works are copied, distributed and used. But, as usual, there are twists as to how copyright applies on the Internet. READ MORE

ISPs and content liability: The original Internet law twist

Mark Sableman July 9, 2013
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Everyone in the publishing/dissemination chain is potentially liable in the bricks-and-mortar world. But through an Internet twist, intermediaries aren’t liable in the Internet world. READ MORE

Welcome to Internet Law Twists & Turns

Mark Sableman July 8, 2013
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Internet law is a lot like non-Internet law — but it usually involves some twist. In every field, there is usually some way in which, because of the Internet, traditional law doesn’t work, and a problem develops. READ MORE