April 11, 2015

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“Blurred Lines” Copyright Case: Should it be Reversed?

By: Mayra Neimerck

 

The “Blurred Lines” legal drama that began in August 2013 has finally come to its legal end. A federal jury ruled that Robin Thicke and Pharrell Williams’s smash hit had infringed on the copyright of Marvin Gaye’s 1977 song “Got to Give It Up,” and subsequently awarded more than $7.3 million to Gaye’s family.

 

In this case the question was whether the musical composition of “Blurred Lines” is substantially similar to that of Marvin Gaye’s “Got to Give it Up.” Because the Gaye’s family does not own the sound recordings to “Got to Give it Up,” the jury was only allowed to compare the compositions and hear testimony on issues like melody, keyboard, and lyrics. Ultimately, the U.S. District Court jury in Los Angeles concluded “Blurred Lines” took too much of Gaye’s work, and therefore infringed.

 

 

There is no question that Pharrell Williams was inspired by Gaye and borrowed from him. But, songwriters and musicians have always “borrowed” from other artists’ ideas, characters, and sounds without hesitation. In fact, there are only so many notes on the scale and a limited number of chords, so every song builds on the work of past artists. Under copyright laws, creators may use ideas drawn from the work of others to inspire their own work. Nonetheless, the “Blurred Lines” verdict ignores this.

 

 

Even though the Gaye and Thicke recordings sound similar to each other, this blog post by Joe Bennett http://joebennett.net/2014/02/01/did-robin-thicke-steal-a-song-from-marvin-gaye/ describes the obvious note-for-note dissimilarities between both songs. Joe Bennett notes the basslines use different notes, rhythms, phrasings, and different musical scales. According to the Rolling Stone http://www.rollingstone.com/music/news/robin-thicke-and-pharrell-lose-blurred-lines-lawsuit-20150310, Pharrell testified “all ‘Blurred Lines’ had in common with ‘Got to Give It Up’ was the ‘feel,’ and that “he wrote nearly every lyric and melody on ‘Blurred Lines.’” Nevertheless, the jury ruled copyright infringement.

 

The judge overseeing the case should never have let the case go before a jury. The finding against “Blurred Lines” will discourage artists who want to produce songs inspired by earlier music. Meanwhile, to say that something “sounds like” something else does not amount to copyright infringement. Whereas, many artists today, like Pharrell and his songwriter colleagues, work by incorporating and transforming earlier works into their own. The New Yorker http://www.newyorker.com/culture/culture-desk/why-the-blurred-lines-copyright-verdict-should-be-thrown-out notes, “it was not any actual sequence of notes that Pharrell borrowed, but rather the general style of Gaye’s songs.” Essentially, future artists need to make art that refers to the works of their predecessors. The copyright goal should be to maximize the creation of valuable works of arts and not hinder artistic creation. Therefore, the ruling against Thicke was a mistake, and it should be reversed on appeal.

 

 

Mayra Neimerck is currently a 2L at Suffolk University Law School and a Staff Member of the Journal of High Technology Law. She holds a B.A in Crime and Justice, cum-laude, from Suffolk University. Mayra speaks Portuguese fluently and is proficient in Spanish.

April 11, 2015

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“SWATTING” A dangerous new trend that pits law enforcement against unsuspecting gamers

swat

By: Chris Mills

 

 

Video game live streaming has become an immensely popular form of entertainment over the past few years. The world of competitive video gaming has also been growing exponentially. A new brand of celebrity has been born from this, one that rarely has to leave their apartment to gain their international fame. Basically, what these celebrity gamers do is play their video game, allow anyone to tune in and watch their screen while also streaming a camera focused on them. This allows the watchers to not only see what’s going on in the game, but also what is going on in the gamer’s home. This has prompted a renewal of an old prank, calling in fake crimes.

 

What the pranksters will do is get the gamer’s street address by tricking the gamer’s Internet provider into revealing the information. After they have the address, they call the local police and report heinous crimes like a murder, hostage situation or bomb threat. The police respond to these potentially dangerous reports by sending in a SWAT team to clear the home. Once on scene, the SWAT team will burst into the home and take down the unsuspecting gamer all within view of his streaming camera and the mastermind prankster.

 

Calling in fake bomb threats or other crimes is not a new phenomena, however, as noted in a recent NY Times (http://www.nytimes.com/2015/03/21/technology/online-swatting-becomes-a-hazard-for-popular-video-gamers-and-police-responders.html?ref=technology&_r=0) article on the topic, it is now harder than ever to track the culprit. The SWATTER will use services like Skype to mask their identity making is very hard for law enforcement to find the actual source of the call. One individual, a 19-year-old man from Las Vegas, was recently tracked down for reporting a false murder and is now facing up to five years in prison. Some gamers interviewed in preparation of the article admitted to being SWATTED up to six times.

 

This new type of prank for entertainment presents an extremely dangerous situation not only for the gamers but also for the police. When the police forcibly enter into a home like this, the situation is very tense and the slightest wrong movement by an unsuspecting occupant could be fatal. On the opposite side, officers who are constantly being called to these fake reports could begin executing these raids with a lesser expectation of danger. Even if neither of these happens, this trend causes an enormous amount of resources to be wasted and pulls the police away from more serious matters. This trend will likely continue until the perpetrators of these false reports are easier to trace and with these gamers having a global audience, that day is not likely near.

 

 

Christopher Mills is a staff member of the Journal of High Technology Law and a 3L at Suffolk University Law School.

April 11, 2015

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Can I See Some ID? The Pros and Cons of a Digital Driver’s License

By: Joseph Rinaldi

 

Today, one’s smartphone allows an individual to do so many things other than make a phone call. One can use his or her smartphone to pay at the gas station or go to the grocery store due to the rapidly growing technological capabilities of the smartphone. Additionally, concert tickets, airline boarding passes and rewards cards for stores can be stored on one’s smartphone. There certainly seems to be a trend in society where more and more things are migrating onto one’s smartphone, and one’s driver’s license could be next.

 

 

Delaware is one of several US states considering digital driver’s licenses, and prototypes will go into experimentation tests in some places this year. If those tests go well, virtual licenses could be offered to the public as early as 2016. The digital license would contain the same information as one’s printed license, including one’s name, address and date of birth, along with a photograph. The digital version, just as your printed license, would also contain a scannable barcode so that machines can read the information. One’s digital driver’s license would also be a mobile app with security protection and potentially real-time data downloaded directly from one’s state’s Department of Motor Vehicles.

 

 

Critics, however, have already pointed out some concerns regarding how the use of the smartphone as a driver’s license may implicate one’s privacy rights. These concerns include the right to be free from unreasonable searches and seizures of one’s phone and its contents during traffic stops. Critics have also touched on some technical issues on the law enforcement side such as whether the system that troopers use in their patrol cars will be easily compatible with the digital driver’s licenses. This system is known as Tracs (Traffic and Criminal Software program), and is used by police to complete reports, manage incidents and file charges.

 

Universal acceptance of an electronic version of one’s license is something that will likely take many years. The printed driver’s license has been a standard for decades and has acted not only as proof that one can drive, but also as a form of identification to verify one’s age and identity. Receiving one’s license is a sort of rite of passage for many teenagers, and proves that the license has a status that transcends mere driving. States that issue digital licenses would need to spread the word among businesses, law enforcement agencies and other entities that such licenses are legitimate identity documents. Even then, however, one is bound to enter restaurants, bars and other businesses that will question the validity of a driver’s license on one’s smartphone. A digital version of one’s driver’s license doesn’t seem like a replacement of one’s regular license right away, but instead a complement to it.

 

 

One positive of a virtual driver’s license is that it would be part of a larger societal trend toward digital replacement for things in one’s wallet, and the wallet itself. For example, payment options such as Apple Pay and Google Wallet eliminate the need to carry physical credit cards because one can make purchases using his or her smartphone. Many retailers now offer apps that incorporate digital versions of their loyalty and rewards cards, and some insurance companies now offer digital versions of auto insurance cards. Another positive of a virtual driver’s license is that states advocating for a digital driver’s license believe it would be more secure than the conventional one. The app would contain its own layer of security, such as a PIN or a form of biometrics like one’s fingerprint or facial recognition. This layer of security within the app would compliment the security already existing on one’s smartphone such as a passcode or fingerprint. One more positive of a digital license is that it could be updated more easily than one’s plastic license. The data would be downloaded to or synced with one’s smartphone each time one opens his or her digital license app. It would also act as a backup or alternative if the printed version went missing. As a result, one would not have to make as many trips to the DMV.

 

 

Potential concerns that need to be addressed include technological issues. What if one’s phone loses its charge and one can’t turn it on to access one’s driver’s license? What about if one is in a “dead zone,” and one’s phone cannot connect to the DMV’s database? States must consider these issues as they move forward with their pilot programs. Another concern relates to the idea of one’s smartphone falling into the wrong hands, and the digital driver’s license was not sufficiently secured, which would leave one’s information up for grabs. The DMV aims to provide the proper security so that no one can read your digital license without the proper credentials, but the security needs to be solid. Privacy rights, however, seem to be the biggest concern moving forward. For example, if a police officer or retailer needs to see one’s digital driver’s license, can that person look at other items and personal information on one’s phone? What about if a personal notification pops up on the screen? There are concerns that police officers may have to physically touch the smartphone, which could lead to privacy issues and concerns of damaging the device if it were dropped. Furthermore, emails or texts may pop up on the phone while it is in the possession of a police officer, which could lead to search and seizure issues. The US Supreme Court held just last year that cell phones are protected from warrantless searches.

 

These issues all assume that protocols will be worked out so that a state that does not use digital licenses can still accept one’s digital license as valid. If these concerns can be worked out over time, it seems that the best plan moving forward would be to offer the digital driver’s license as a secondary option where one would automatically receive his or her plastic license and then be asked if he or she would also like the electronic version. By doing so, states will be able to see if there is a bit of a generation gap with the technology, and further determine the best way to administer digital driver’s licenses in the future.

 

Joseph Rinaldi is a Staff Member of the Journal of High Technology Law. Joseph is currently a second-year day student and President of Suffolk University Law School’s Intellectual Property Law Student Association. He holds a B.A. in English/Creative Writing from the College of the Holy Cross.

March 16, 2015

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A Digital Presence from the Grave

DigPres

 

Written By: Nico Pingaro

 

Many Internet companies limit access to their customers’ accounts to the account holder due to federal privacy law. When an account holder dies, estate executors generally have to seek a court order to access the account. This is usually expensive, time consuming, and frivolous. However, under a Delaware law passed last summer, executors can now access online accounts without a court order, unless the deceased has instructed otherwise. Other states have begun to follow suit.

 

The conflict presented by the implantation of such law is an issue regarding privacy. A group of Internet firms opposed the Delaware law, saying that it violates consumer privacy and may conflict with existing federal privacy law. This law is attempting to extend beyond Delaware’s borders. Delaware, commonly known for its friendly unincorporated business entity laws, will now be known for its generous trust and tax laws. Individuals can have a Delaware trust even if they do not reside there, so long as a trustee is located in such state.

 

Further, under the new law, called the Fiduciary Access to Digital Assets and Digital Accounts Act, the trustee is allowed to access the digital data of the person’s assets that are placed in the Delaware trust. This year, the new law is being proposed in Florida, Virginia, Indiana, Kentucky, Nebraska, New Mexico, North Dakota and Washington.

 

The looming problem with this law is the privacy concerns, as well as clashing with an already existing federal privacy law. The law gives legally appointed fiduciaries the same access to digital assets as they would any other asset, unless the deceased bars this action in their will. If the will is silent on how the fiduciary should deal with digital accounts, the fiduciary is able to act as he or she sees fit according to relevant laws. Being able to access emails, or any other messenger attached to a social network, presents a serious issue of an intrusion of privacy. A person who passes away, and is not aware of this new law, would be subject to his privacy being invaded after he or she is dead. One may argue, what expectation of privacy could any person have after one dies? This argument carries some serious weight, however, the loved ones of the deceased (likely doubling as beneficiaries) would probably exercise that right for the deceased.

 

Delaware is undoubtedly the guinea pig for this new bold law. However, Delaware is not afraid of blazing new trails. Delaware’s previous experimentation with unincorporated business entity laws has made Delaware the state of incorporation for many new businesses. It’s my opinion that the Fiduciary Access to Digital Assets and Digital Accounts Act will have the same attraction to individuals wanting to establish trusts as the ability to eliminate fiduciary duties had on newly founded businesses.

 

Nico is a Staff Member of the Journal of High Technology Law. He is currently a second year student at Suffolk University Law School. He holds a B.A. in Political Science from Merrimack College. 

February 19, 2015

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FTC Urges Internet of Things Companies to Better Protect Data, Says Not Time for New Legislation

Written By: Kaleigh Fitzpatrick

 

On Tuesday, January 27, the Federal Trade Commission (FTC) called on technology companies selling Internet-connected devices to institute comprehensive measures to protect users’ data security and privacy. The report, entitled “Internet of Things: Privacy and Security in a Connected World,” urged companies to make data protection a top priority because connected devices present serious data security and privacy risks. These devices are interconnected via the Internet of Things, which allows everyday objects to connect to the Internet and to send and receive data. The Internet of Things (IoT) includes such connected devices as in-car sensors that can record vehicle location and speed, health and fitness monitors, and glucose monitors that can send information on diabetic patients to their doctors. Basically, the IoT includes any device or sensor, other than, computers, smartphones, or tablets that connect, store or transmit information with or between each other via the Internet. The use of IoT is rapidly expanding, as there are now over 25 billion connected devices in use worldwide, a number that is expected to reach 50 billion in just five years.

 

These devices bring technological advances that have huge potential benefits.  However, these connected devices also raise numerous privacy and security concerns. The FTC states that its mission in releasing this report is to increase the trust of American consumers in integrating these devices into their everyday lives. The FTC is concerned that without the American consumer believing that their data is protected when using these devices, the Internet of Things will not reach its full potential for innovation.

 

The report includes the following recommendations for companies developing IoT devices: (1) build security into devices at the outset, rather than as an afterthought in the design process; (2) train employees about the importance of security, and ensure that security is managed at an appropriate level in the organization; (3) ensure that when outside service providers are hired, that those providers are capable of maintaining reasonable security, and provide reasonable oversight of the providers; (4) when a security risk is identified, consider a “defense-in-depth” strategy whereby multiple layers of security may be used to defend against a particular risk; (5) consider measures to keep unauthorized users from accessing a consumer’s device, data, or personal information stored on the network and; (6) monitor connected devices throughout their expected life cycle, and where feasible, provide security patches to cover known risks. Additionally, the FTC recommends that companies consider limiting the collection of consumer data, and retaining information only for a set period of time; not indefinitely.

 

This kind of data minimization addresses two key privacy risks. First, the risk that a company with a large store of consumer data will become a dangerous target for data thieves or hackers and second, that consumer data will be used in ways contrary to consumers’ expectations. The report takes a flexible approach to data minimization. Companies can choose to collect no data, data limited to the categories required to provide the service offered by the device, less sensitive data; or choose to de-identify the data collected. The FTC also recommends that companies notify consumers and give them choices about how their information will be used, particularly when the data collection is beyond consumers’ reasonable expectations.

 

The FTC concurs with many stakeholders that any IoT-specific legislation would be premature at this time given the rapidly evolving nature of the technology. The Commission points to existing legislation that can be enforced to protect consumer privacy including the FTC Act, the Fair Credit Reporting Act, and the Children’s Online Privacy Protection Act. In the past, the FTC has challenged poor data security practices under the FTC Act. Despite this consensus that specific IoT legislation would not be productive at this time, the Commission has encouraged Congress to enact a broader and more baseline federal consumer privacy law. Federal data security and breach notification legislation is critical because states currently have varying data security laws. These varied state-level laws present significant challenges for companies that operate across state borders to successfully abide by all of the differing laws. The results are unnecessarily burdened companies and wide-ranging protections for consumers depending on which state they live in. A single standard would provide companies with a single law to follow and would give consumers an expectation of what would happen if a breach occurred. In light of the lack of standardized legislation in this area, the FTC is actively utilizing other avenues to increase protections for consumers. The FTC has invested time and funding in policy research and development to better understand the existing technology and educating consumers and businesses about how to maximize benefits and reduce risks of this technology. Additionally, the FTC has utilized existing enforcement tools to protect consumers presently.

 

Although the report highlights the issues that the FTC intends to oversee and underscores best practices for companies, it still does not carry the weight of enforceable regulations. Despite this lack of enforceability, data security and privacy experts seem to believe that this report has the potential to increase protections at least with larger well-known technology companies, if only to reduce any business risk of federal investigations. In order to ensure the continued rapid growth in technological innovation and its associated benefits, the FTC is correct is stating that the trust of the American consumer is absolutely critical. Furthermore, the only way to gain that invaluable trust is to ensure the American consumer that their data is safe. However, it is not just the trust of the American people that should be the goal of data protection. A guarantee of data security is absolutely essential for the success of our society because if the American citizen’s data is inadequately protected, we will unfortunately be faced with bigger problems than just a halt in innovation.

 

Kaleigh is a Staff Member of the Journal of High Technology Law. She is currently a 2L at Suffolk Law. She holds a Combined Masters in Child Development and Urban/Environmental Policy and Planning and Bachelor of Arts from Tufts University.

 

February 19, 2015

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Public Act 098-0129: Preventing Cyberbullying or Bullying Students’ Right to Privacy?

cyber-bullying-poster

Written By: Joseph Rinaldi

 

Cyberbullying, a form of bullying that involves the use of electronic technology such as cell phones, computers and communication tools including social media sites, has become quite prevalent in the United States. Victims of cyberbullying can be more likely to use drugs or alcohol, abandon attending school, and have lower self-esteem. Although it is difficult for surveys to accurately convey trends on cyberbullying due to the rapid changes in kids’ technology use, cyberbullying presents a real threat to the well being of students. Schools across the country have attempted to combat cyberbullying in various ways, but how much intervention on behalf of schools is too much as it relates to the basic fundamental rights of students?

 

On January 1, 2015, a new Illinois state law that aims to combat cyberbullying went into effect. Public Act 098-0129 stipulates that school authorities have the power to require a student or his or her parent/guardian to provide related account information in order to gain access to the student’s account on a social networking website if school authorities have reasonable cause to believe that a student’s account on a social networking site contains evidence that a student has violated a school disciplinary rule or procedure. This stipulation applies to any posting by a student at any time and place, and is not limited to school computers and activity on school premises. A student or his or her parent/guardian’s failure to cooperate with school authorities as it relates to gaining access to a student’s account or profile on a social networking website might result in not merely discipline from the school, but criminal charges.

 

The idea of an authority having the power to require someone to provide his or her social media passwords has faced some stiff challenges over the last couple of years. For example, recently, Oregon became the latest state to announce that colleges and employers could not demand social media usernames and passwords. The rationale behind such a decision follows from the logic that it is one thing for authorities to observe what suspected employees or students are posting on social media. It is another thing entirely for authorities to have the automatic right to require that an employee or student provide them with what is obviously personal information.

 

It is fairly obvious how allowing school authorities to gain access to a student’s account on a social networking website can help schools in the fight against cyberbullying. However, it is also easy to see how Public Act 098-0129 may act as a considerable invasion of the students’ privacy. After all, students are not required merely to open up his or her social media account for the school authorities to examine. Instead, students must hand over his or her personal information to his or her account on a social networking website. Public Act 098-0129 does not detail the proper protocol for school authorities to follow in the event that school authorities come across private information while performing a search of a student’s profile on a social networking website. For example, it is not clear how school authorities should proceed if while conducting a search, the school observes evidence that the student is involved in some form of criminal activity. Furthermore, the new Illinois state law provides no information to clarify what constitutes reasonable cause for a school to require a student to hand over his or her account information. Currently, no case has come forth of a school using its alleged right to ask for a student’s password.

 

Facebook’s Statement of Rights and Responsibilities, which all users agree to when creating a Facebook account, also seems to present a problem for school authorities requiring students to provide their social media account information. Section 4.8 of Facebook’s Statement of Rights and Responsibilities states that users will not do anything that might jeopardize the security of the account, and specifically includes the sharing of one’s password. This section of Facebook’s Statement of Rights and Responsibilities highlights the importance of protecting one’s basic right to privacy. Cyberbullying is without question a serious danger to students, and Public Act 098-0129 has the potential to help protect many students from serious harm. However, when one considers the personal information that school authorities will be privy to in their search for an alleged bully, Public Act 098-0129 may be eliciting a different type of harm to students-the abuse of their privacy.

 

Joseph Rinaldi is a Staff Member of the Journal of High Technology Law. Joseph is currently a second-year day student and President of Suffolk University Law School’s Intellectual Property Law Student Association. He holds a B.A. in English/Creative Writing from the College of the Holy Cross.

February 19, 2015

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New Radar Technology Used by Law Enforcement Presents Privacy Concerns

House

 

Written By: Jerry Chapin

 

The last thing one should expect when sitting at home with their doors locked and shades drawn is for the United States government to be watching their every move. It’s safe to say that most of us have accepted the fact that advances in satellite technology and high tech video surveillance have given the government the ability to monitor public areas, and in doing so take away from our personal expectation of privacy in those areas. However, our home has always been considered our castle, a place that has always required a warrant for the government to invade, thus giving us an increased sense of security and privacy therein. Nowadays, this sense of security seems to be a somewhat false one.

 

Our privacy is being threatened by a new technology called Range-R—a high tech radar system that allows law enforcement, through the use of thermal imaging, to peer through walls in order to see how many people are in a home. The Feds began using this technology in 2012 and have spent at least $180,000 purchasing radar devices to date, according to mainstream news reports. Like most invasive measures taken by the government, they failed to notify the public or the courts of their plan to implement its use.  Radar-R only became known to the public after the 10th Circuit Court of Appeals upheld its use after being used by law enforcement before entering a house, without a warrant, to arrest a man accused of violating his parole.

 

The device is small, hand held, and although it does not display clear images to its operator, it detects even the slightest movement within fifty feet. Radar-R gives law enforcement an incredibly accurate picture of how many people are in a home, where they are in that home, and what movements they are making inside.

 

Because the Fourth Amendment requires a showing of probable cause before the issuance of a warrant allowing physical entry—or other invasive entry such as wire-tapping—into private homes, it comes as no surprise that law enforcement has been keeping their new toy a secret. However, now that Range–R’s use is public knowledge, a judicial ruling requiring a warrant for its use is arguably highly foreseeable. This is especially true given the Supreme Courts ruling in Kyllo v. United States in 2001, where the use of thermal imaging was held to constitute a search, and therefore require a warrant. However, as of now the use of this invasive technology is entirely legal without a warrant.

 

Under the constitution, privacy in citizen’s homes has historically been of paramount importance. With a slew of Fourth Amendment concerns presented by the warrantless use of Radar–R, this new technology’s fate will likely be determined in court soon enough. However, the real concern is that the government seems fine with acting secretly and without Constitutional permission or legislative support. It seems that our government would rather shoot first and ask for permission later, a troublesome modus operandi when our privacy rights are on the line.  This being said, it seems as though the government’s blatant disregard for Fourth Amendment protections may slip “under the radar” yet again.

February 19, 2015

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What to Know About Digital Assets

Written By: Erik Boos

 

What happens to your Facebook or your Gmail account if you die or become incapacitated? Did you read your Terms of Service agreement? Many of these social media and email service providers expressly prohibit anyone but the account holder from accessing these services. This prohibition applies to your spouse, next of kin, or anyone who you wished to manage your affairs. Recognizing the importance of allowing a fiduciary to have access to digital assets, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Fiduciary Access to Digital Assets Act (UFADAA) which was completed in July, 2014 and enacted in Delaware. Several other states introduced this bill to their legislatures. This bill will supersede access restrictions in terms of service agreements for those who are acting under a power of attorney.

 

Currently, certain accounts may not be legally accessed by people other than the account holder. Even if the account holder grants authority through a power of attorney or some other instrument, two federal laws stand in the way of that person having legal access to those accounts. The Stored Communications Act (SCA), and the Computer Fraud and Abuse Act (CFAA). The CFAA makes it illegal for anyone to attempt to gain access to a “protected computer” without authority. A “protected computer” includes the server computers that service providers use to provide their services. The authority to access an account may be limited by the Terms of Service Agreements the account holder had to accept in order to open and maintain those accounts.  Those Terms of Service Agreements become a binding contract between the account holder and the service provider. In the case that upon death or incapacitation an account holder left a power of attorney authorizing the agent to access the holder’s account, while providing the log in information, the attempt to access those accounts could be a federal crime if the Terms of Service Agreement for that particular service limit access to only the account holder.

 

In addition, the SCA could prevent a service provider from being compelled to give access to the account holder’s agent. The SCA prohibits service providers from knowingly divulging contents of electronic communications stored or maintained on its service. The SCA does allow for disclosure of the protected information provided there is lawful consent by the originator, addressee, or intended recipient of such communications, or their “agents”, it is unsettled if by “agent” the law includes an attorney-in-fact, or other fiduciaries. The law was meant to provide stored communication such as emails with Fourth Amendment protections, as well as protection from hackers and corporate espionage.

 

The UFADAA allows access to other digital assets, but does not override existing copyright law.  You may or may not own you digital media. Some software may legally be resold provided that no copy remains on your computer, but many programs today are “sold” with a single user license. What this means is that you are not the owner of this software. You may have ownership rights over the disk – the physical medium on which the software resides – but the contents of that disk you are only authorized to use. To transfer the disk would violate your licensing agreement. The same is true of any digital recordings of music or video.

 

The Recording Industry Association of America states that you may make a digital copy of a compact disk that you legitimately own for your personal use. The reason is you already bought it, and the royalties have been paid. If you no longer own the physical medium from which the copy was made, a copyright infringement on the holder’s exclusive right to reproduce just occurred. So, for example: the decedent has a vast music collection of compact disks, and for the sake of portability or ease of use, downloaded the music onto a large capacity external hard drive. The decedent dies and one person inherits the cd collection, another inherits the hard drive. Copyright infringement had occurred for each instance of a protected work that was copied and punishable ranging from $200 to $150,000 for each work. A personal representative needs to ensure this does not happen or else may face potential liability of unauthorized distribution.

 

The UFADAA goes a long way to enable personal representatives, conservators, and other agents the ability to access and manage digital assets for the deceased and the incapacitated. These assets have value, although the value may be difficult to ascertain, and would need to be administered as much as the rest of a person’s estate.

 

Erik is a Staff Member of the Journal of High Technology Law. He is currently a 2L at Suffolk Law with a concentration on Business Law and Financial Services and is a candidate for an LL.M in Taxation. He holds a B.A. in History from Worcester State University.

February 19, 2015

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The Capacity of ‘HoloLens’ to Create a ‘HoloTrial’

holo1

Written By: Cherie Ching

 

The possibility of using Microsoft’s HoloLens to enhance a courtroom presentation could lead to faster transferability of exhibition files, more efficient trial procedures, and engaging jury experiences if it is able to survive the Rules of Evidence test.  Like any piece of evidence admitted to a trial, HoloLens must establish a proper foundation, a tendency of relevancy, and an absent of unfair prejudice.

 

From digital books to online shopping, innovation and new technology allow a faster and more convenient means of completing daily tasks.  Thousands of smartphone apps and many popular social media platforms allow us to also develop our creativity and individual expressions.  HoloLens, a holographic processor unit (HPU) is a product of such remarkable advancement in today’s digital age.  Although some believe this type of creation will allow for creative expression, others disagree and say that it is just the contrary.  Adding a new device gives us another reason to hide behind a screen of colorful images and digital friends and not speak to a single human being for the majority of our day.  In fact, media critics (http://www.nytimes.com/2015/01/26/business/media/unease-for-what-microsofts-hololens-will-mean-for-our-screen-obsessed-lives.html?_r=0) define the creation of HoloLens as a product of our “deep melancholic” reality, our need to find an emotional connection to our devices instead of real people.

 

holo2

 

The New York Times article compares HoloLens to other visual headsets that allow a user to essentially escape reality and be transported to a fantasy world, whether it is to a beautiful beach in Hawaii, or a war zone in Call of Duty.  However, Microsoft (http://www.microsoft.com/microsoft-hololens/en-us) asserts that bringing Windows to life through HoloLens is different.  The 3-D motion-sensor images and voice-control applications become an augmented reality and empower the user to interact with images in his or her immediate environment.  What then could this new reality bring to our already crowded possession of technology?

 

The Supreme Court of Pennsylvania addressed the benefits, as well as the dangers, of applying advanced technology in a legal context, in Commonwealth v. Serge, 896 A.2d 1170 (Pa. 2006) when a computer-generated animation (CGA) was admitted into evidence during trial.  The Commonwealth’s admission of the CGA depicted an interpretation of the crime scene, the sequence of the events, and the party’s theories of the case through a “demonstrative exhibit.”  Generally, in order for evidence to be admitted, it must be relevant to the issues of the case, be accompanied by an adequate foundation, and show that the probative value is not substantially outweighed by the risk of unfair prejudice to the opposing party.  However, the court acknowledged that although the admission was proper, the risks were high.  Dramatizations may portray inaccurate and misleading facts and the jury may tend to accept the CGA as facts instead of a party’s theory.

 

Similarly, HoloLens could create a HoloTrial, a nontraditional method of presenting evidence and legal theories during trial.  The difference between using CGA and HoloLens is the ability to create the holographic exhibition while presenting it to the jury.  HoloLens would preserve the element of a live presentation, the core of a trial, while using 3-D imaging and enhanced audio to bring the presentation to life.  With the traditional methods of using poster boards, PowerPoint presentations, projector screens, and glossy picture prints, jurors are expected to interpret the evidence through their own creative imagination, or whatever efforts they are even willing to contribute during trial.  However, HoloLens will offer a fresh transformation of courtroom proceedings to which the jurors themselves are invited to experience a HoloTrial to understand the parties’ legal theories.

 

As the legal practice moves towards innovation, more efficiency, and the conversion of paper documents into electronic files, HoloLens will offer a modernized technique for presenting different aspects of a trial, while still maintaining the trial spirit.  Though some may deny it, we are heading into a new age of paperless legal practice, which demands more attractive and affordable legal services.  The attorney struggling with a box of paper files and poster boards may have to catch up with the opposing attorney holding a simple pair of HoloLens in her suit pocket.

 

Cherie is a 2L Staff Member of the Journal of High Technology Law at Suffolk Law.  She enjoys dancing hula and salsa, and aims to run the Athens Classic Marathon in Athens, Greece, the home of the original marathon course.

February 19, 2015

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“A Milli?” More Like 51 ‘Milli:’ Lil Wayne Suing His Label, Cash Money, for $51M

Written By: Ben Feilich

Hip hop artist Lil Wayne, born Dwayne Michael Carter, Jr., is suing his record label, Cash Money Records, Inc., in U.S. District Court, Southern District of New York for breach of contract, among other things, alleging damages in the amount of $51,000,000 (fifty-one million).

 

The complaint entails eight causes of action by Lil Wayne against Cash Money including disputes over accounting, breach of fiduciary duty, conversion by improper copyright registration, unjust enrichment, and breach of contract.  It is worthy to note, this lawsuit does not include copyright infringement.  The copyright issue contained therein is that Cash Money filed for federal copyright registration alone, failing to include Lil Wayne or his label, Young Money, as a joint owner and copyright claimant of the works.  Lil Wayne’s label agreement and recording agreement with Cash Money allegedly called for joint copyright ownership over all recordings made during the term of the agreements.

 

Primarily, the complaint alleges that Cash Money had withheld royalties from Lil Wayne, including payments owed through exploitation of Lil Wayne’s newest (and, at the time of writing this article, unreleased) record Tha Carter V.  In possible response to the fall-out between Lil Wayne and Cash Money, Lil Wayne announced via Twitter that a free album would be made available.  There is some ambiguity, however, as to whether the album Lil Wayne wishes to release to the public for free is Tha Carter V or a separate record entitled The Free Weezy Album.

Sources close to Lil Wayne have revealed  that Cash Money owes Lil Wayne $10 million for Lil Wayne’s work on Tha Carter V– $8 million in advance and $2 million upon completion.  Lil Wayne claims he can hold Tha Carter V’s release hostage until Cash Money pays the allegedly owed $10 million.

 

There are interesting contracts and copyright issues at play here.  As a joint copyright owner over Tha Carter V, Lil Wayne would be able to exploit the works without the consent of Cash Money, unless there is some agreement or contract term stating otherwise.  If no such agreement exists, Lil Wayne may be able to release Tha Carter V for free, or license it non-exclusively, with his only obligation being to report and deliver to Cash Money profits earned through licensing or use of the record.  However, Lil Wayne was not a named author in the copyright registration of Tha Carter V, and other works, despite Cash Money’s contractual duty to do so.  To remedy this situation, Cash Money simply needs to file for supplementary copyright registration with the U.S. Copyright Office in accordance with 17 U.S.C. § 408(d), adding Lil Wayne’s name as an “amplification” of information to the original copyright registration filing.

 

It does not seem that even full compensation of moneys allegedly owed by Cash Money to Lil Wayne will fix the relationship between the two parties as Lil Wayne has publicly exclaimed his dissatisfaction with the label, often citing professional and creative stifling.

 

To keep fans satisfied until The Carter V’s uncertain release, Lil Wayne put out Sorry 4 The Wait 2, a mix-tape featuring Drake, Nicki Minaj, and 2 Chainz, on January 20.

 

BLOGGER BIO: Ben is a Staff Member of the Journal of High Technology Law.  He is currently a 3L at Suffolk Law with a concentration in Intellectual Property.  He holds a B.A. in Literature from Florida State University and was born in Hollywood, FL.  Ben currently resides in Allston, MA with two cats named after Major League Baseball Hall of Fame inductees.