Nurturing culture to build economies and communities

A newly released briefing by Professor Ann Markusen of the University of Minnesota Hubert H. Humphrey Institute of Public Affairs highlights the importance and influence of a creative arts community serves as a tool to develop a region’s broader economic growth.

The paper published by the Ewing Marion Kauffman Foundation highlights the opportunities created by encouraging a creative arts economy to help develop a more robust economic environment. Among the key findings of the report:

City appreciation for cultural entrepreneurship has grown following economists’ and city planners’ documentations of the roles that artists play in the local economy. Many artists and designers contribute to the city’s economic base, bringing in income from elsewhere by exporting their creations—books, recordings, visual art—and by travelling to perform elsewhere. Pools of artists attract and anchor cultural industry firms in fields like publishing, advertising, music, design, and architecture. Artists often work on contract in other industries to design and market products and services (visual artists, musicians, and writers) and improve employee relations (actors). …

Despite heightened interest in fostering artists/designers as innovators and entrepreneurs, most cities have found that traditional policies and services don’t work for artists. … Artists are many times more likely to be self-employed than are scientists and engineers. Some 48 percent of artists reported in the 2000 Census long form that they are self-employed. … Overwhelmingly, surveys of artists underscore that they need and want to develop business skills. Many organizations—some nonprofit, some linked to higher educational institutions, some for-profit—offer artist-tailored entrepreneurial training.

The work by Professor Markusen reinforces many of the themes discussed in the recent  NKU Chase Law + Informatics Institute program: Success Strategies for the Professional Artist in the Digital Age. That program helped artists and their attorneys learn to navigate self-promotion, online contracting, sophisticated financing, and a host of challenges that pull the artist away from the creative process and into the fast-paced world of digital commerce. A webcast is available of the program.

“With social media gaining in popularity, more people are becoming content creators, and there is great opportunity to share creative works, but many are now becoming aware that there is real value to maintain some control over what is shared,” commented Terry Hart, director of legal policy, Copyright Alliance.

“Artists have long been recognized as commodities in our communities, driving innovation and adding color to our environment,” shared Sarah Corlett, director of creative enterprise, ArtsWave SpringBoard. “It has become increasingly more important that our creative sector has opportunities to turn their passion into profit through education and training. This improves the likelihood that these individuals will stay in our region and continue to make this an even better place to live.”

Professor Markusen, building on her earlier scholarship concludes in the report that for cities, “economic development strategy/practice is increasingly turning to occupational approaches, asserting the significance of human capital and entrepreneurship in supplementing traditional industry-targeted programs.”

But the creative artist panelist had some words of caution.  Dayton School of Law professor Dennis Greene reminded audience members that “the devil is in the details.”  Jennifer Kreder noted “when art is created in more traditional visual medium and then digitized several issues will come up” to which Stephen Gillen explained that “there is no ‘one size fits all answer'” for how best to contract for rights.

The Kauffman Foundation report provides a strong reminder of what cities can do to improve the likely success of artists and entrepreneurs in their communities. These are partnerships well worth promoting.

Success Strategies for the Professional Artist in the Digital Age was presented by the NKU Chase Law + Informatics Institute and sponsored by the ABA Business Section Cyberspace Law Committee, Copyright Alliance, ArtWorks SpringBoard, Kentucky Arts Council, and Frost Brown Todd, this program featured expert attorneys and filmmakers who discussed a range of business and legal practices.

 

Social Media in the workplace – wide-ranging overview now available

In a recent blog post regarding Sam Moore‘s claim for publicity rights in a fictional film, I provided a general update on publicity rights law because such laws are now being used as part of the social media agreement between the public and such companies as Google and Facebook.

The discussion about continuing evolution of publicity rights doctrine is part of a larger review I have written on the role of social media across the spectrum of media law.  That working paper, Social Media in the Workplace – From Constitutional to Intellectual Property Rights is now available at SSRN: http://ssrn.com/abstract=2348779 or for download.

Social media has become a dominant force in the landscape of modern communications. From political uprisings in the Middle East to labor disputes in Washington State, social media has fundamentally disrupted the way in which communications take place. As noted constitutional scholar Erwin Chemerinsky explained, “technology has changed and so has First Amendment doctrine and American culture. It now is much more clearly established that there is a strong presumption against government regulation of speech based on its content.” Just as the government must tolerate more speech, the same thing is true about employers. Chemerinsky further notes that “for better or worse, profanities are more a part of everyday discourse.” Abrasive speech may be coarse from the word choice or may more readily upbraid the objects of the speech. Whether foul or abusive, such speech now pervades commercial and social media.

Social media fundamentally upends the notion of the traditional commercial media environment and with that, it reverses the established legal doctrine from constitutional assumptions to everyday rules involving copyright, defamation, and unfair labor practice. For employers, these rules are particularly important to navigate because they effect the manner in which the companies communicate with the public, how employees communicate with each other, and how laws are restructuring the employee-employer relationship. The transformation is taking place with changing policies affecting trade secrets, confidential information, copyrighted material, aggregated data, trademarks, publicity rights, and endorsements.

This article highlights the nature of the changes as they present the new paradigm shift and provides some guidance on how to prepare policies for the transitional model. The article tracks the rise of the many-to-many model of social media, its effect on commercial speech, intellectual property, and labor law. The article concludes with suggestions on employment policies geared to managing these changes in the modern workplace.

There will be a CLE program sponsored by the Dayton Intellectual Property Law Association on Friday November 8, 2013 featuring these materials.

Industrial Internet reshapes the “Internet of Things”

In a term coined in 1999, the Internet of Things, relates to a world in which all objects are connected wirelessly to the Internet and therefore to each other. The model requires each device to have RFID or other near field communications technology to communicate, sharing information about the identity, status, activities, and other attributes of the device. Partnered with big data analytics, the information from these devices can paint a robust picture of how objects interact in the world and how people interact with them.

This week, the model was supercharged. According to a report in the New York Times, General Electric hopes to transform this model with what it terms the “Industrial Internet.”

The so-called Industrial Internet involves putting different kinds of sensors, sometimes by the thousands, in machines and the places they work, then remotely monitoring performance to maximize profitability. G.E., one of the world’s biggest makers of equipment for power generation, aviation, health care, and oil and gas extraction, has been one of its biggest promoters. … The executive in charge of the project for G.E. … said that by next year almost all equipment made by the company will have sensors and Big Data software.

Emerging technology allows devices to distribute usage and telemetry data, to receive instructions, to interact with other equipment, and to serve as the communications bridge extending network coverage so that the devices themselves expand the network on which the equipment communicates. The implications are quite interesting.

Perhaps the most important aspect of the development affects critical infrastructure – the fundamental systems operating our water, power, rail, and telecom infrastructure. Properly secured and interactive, the elements of our aging infrastructure could begin to trouble-spot and eventually provide small repairs without the need for 24-hour crews.

GE’s present equipment tends to be large devices, ranging from jet engines to MRI machines. But the concept could well extend to automobiles, bicycles, phones, cameras, and even clothing. Equipped automobiles, for example, could report mechanical efficiency for every system in the car. They could also share vehicle telemetry, providing a real-time map of how each car was driving in relation to every other car driving on the road. The information could be used to alert a driver to road hazards, to dangerous weather conditions, or to the driver’s weaving. The information could alert police to the same conditions and behaviors.

In the workplace, the Industrial Internet will improve atomization, which helps retain U.S. manufacturing but probably at the cost of fewer workers doing more specialized work. It should also be employed to improve worker safety but could easily be adapted to create a workplace in which every movement was tracked. With Industrial Internet name badges, doors would lock and unlock in response to the presence of authorized personnel, but the data analytics would also be able to see which employees spent the most time with which of their peers, and correlate such interactions with post-interaction productivity. Schools could similarly track student movements and behaviors, identifying which resources and faculty were actually utilized and which of those impacted learning outcomes – for better or worse.

Existing rules for workplace and education environments do not take the pervasive nature of the Industrial Internet into account. Assumptions that privacy is a zone around one’s home and person has little relevance to a cloud of data points broadcasting a picture of each person and how that person interacts.

The FTC has taken small steps to explore these issues and regulate obvious abuses, but legislators need to do much more. Absent legislation, current NSA practices will vacuum this data into its Orwellian data trove.

The Industrial Internet promises to translate the Internet of Things into very practical, valuable industrial improvements. Safer planes, smarter cars, more efficient homes all improve people’s lives. Proper regulation will encourage those uses while protecting civil liberties, privacy, and overreach. Perhaps we can craft the policies to avoid the outrage rather than in response to it.

W. Bruce Lunsford contribution to create Academy for Law, Business + Technology

With apologies for posting a press release as a blog post, the news that W. Bruce Lunsford has pledged $1 million to Chase under the direction of the Law + Informatics Institute for the creation of the the W. Bruce Lunsford Academy for Law, Business + Technology is exciting enough for us to share our news.

HIGHLAND HEIGHTS, Ky. (May 15, 2013) — The Northern Kentucky University Chase College of Law has received a $1 million gift from W. Bruce Lunsford to establish and support the W. Bruce Lunsford Academy for Law, Business + Technology.

Lunsford, a 1974 graduate of Chase College of Law, is chairman and CEO of Lunsford Capital, LLC, a private investment company headquartered in Louisville, Ky.

The W. Bruce Lunsford Academy for Law, Business + Technology will be an honors immersion program operated by the NKU Chase Law + Informatics Institute. The focus of the program will be to develop “renaissance lawyers” for the Information Age. The Lunsford Academy will provide students with the technological, financial and professional skill sets essential to the modern practice of law.  Through the program’s technology-driven, skills-based curriculum, students will acquire the fundamental skills that will make them more productive for their clients, more attractive to employers and better prepared to practice law upon graduation.

For those interested in learning more about the details of the program, the most comprehensive vision is provided in my forthcoming article from Connecticut Law Review. An working draft of the paper may be found here: Jon M.Garon, Legal Education in Disruption: The Headwinds and Tailwinds of Technology, (Conn. L. Rev. forthcoming) at SSRN: http://ssrn.com/abstract=2040560.

In addition to taking the program’s required and elective law and informatics courses, Chase students participating in the Lunsford Academy will have the opportunity to participate in technology-focused semester-in-practice placements and study abroad programs; they will also be able to seek joint degrees.

Chase College of Law partners with the NKU College of Informatics to offer a Juris Doctor/Master of Business Informatics and Juris Doctor/Master of Health Informatics and with the NKU Haile/US Bank College of Business to offer a Juris Doctor/Master of Business Administration.

Professor Jon Garon, director of the Law + Informatics Institute, said the development of the Lunsford Academy is the next step in the evolution of legal education. “In addition to a solid foundation in legal doctrine, theory and practice, law students need business education, information technology and intellectual property knowledge, and law practice management experience,” he said. “These skills will enable students to compete in today’s highly networked, efficient and global business community. The generous donation by Bruce Lunsford enables Chase to meet this challenge and redefine the scope of legal education.”

In recognition of Lunsford’s gift, the academy will be named the W. Bruce Lunsford Academy for Law, Business + Technology, upon approval by the NKU Board of Regents.

“We are extremely honored and pleased that Bruce has made this significant investment in our Law + Informatics Institute,” said Dennis R. Honabach, dean of the College of Law. “The Lunsford Academy will provide our law students with invaluable opportunities to become uniquely prepared for the modern practice of law.”

Beyond Google’s Looking Glass – The Internet of Things is Already Here

(photo: Wikipedia)

Perhaps triggered by the New York Times coverage of Google Glass, The FTC announced both a call for submissions and a workshop related to the Internet of Things and its implications on privacy, fair trade practice, and security implications for both data and people. The FTC announcement highlights both the benefits and risks of device connectivity.

Connected devices can communicate with consumers, transmit data back to companies, and compile data for third parties such as researchers, healthcare providers, or even other consumers, who can measure how their product usage compares with that of their neighbors.  The devices can provide important benefits to consumers:  they can handle tasks on a consumer’s behalf, improve efficiency, and enable consumers to control elements of their home or work environment from a distance. At the same time, the data collection and sharing that smart devices and greater connectivity enable, pose privacy and security risks.

The issue is not new. The ITU released a 2005 study discussing the implications of the Internet of Things. The ITU described a near, technological future in which “industrial products and everyday objects will take on smart characteristics and capabilities. … Such developments will turn the merely static objects of today into newly dynamic things, embedding intelligence in our environment, and stimulating the creation of innovative products and entirely new services.”

I have previously described some of these concerns in an article, Mortgaging the Meme.[1]

In each of these situations, an automated and consumer-defined relationship will replace the pre-existing activities. In many situations, this will create efficiency and convenience for the consumer, but it will also reduce the opportunities for human interaction and subtly rewrite the engagement between customer and company. Those that understand this change will adjust their technologies to improve the service and increase the customer‘s reliance on its systems. Companies that do not understand how this engagement will occur, risk alienating customers and losing markets quickly.

Beyond consumer interactions, other uses may arise. Ethical and privacy concerns regarding misuse tend to focus on government, business and organized crime. These include unwarranted surveillance, profiling, behavioral advertising and target pricing campaigns. As a result, as companies increasingly rely on these tools, they also bear a responsibility to do so in a socially positive manner that increases the public‘s estimation of the company.

Timing for the FTC submissions and workshop are overdue. Reading the New York Times quote regarding app developers, there is a sense that unlike the technology giants such as Microsoft and Google, the developers are thinking more about the technology’s potential than its potential impact. One such example from the Times: “‘You don’t carry your laptop in the bathroom, but with Glass, you’re wearing it,’ said Chad Sahlhoff, a freelance software developer in San Francisco. ‘That’s a funny issue we haven’t dealt with as software developers.’”

Many fields will benefit from increased device connectivity. Just a few:

• Public transportation systems designed around real-time usage and traffic patterns.
• Prescription monitoring to help patients take the right medications at the correct time.
• Fresher, healthier produce.
• Protection of pets and children.
• Social connectivity, with photo-tagging and group-meeting moving into the real world.
• Interactive games played on a real-world landscape.

There are also law enforcement uses that must be carefully considered. After the Boston Marathon attack, for example, calls for public surveillance will undoubtedly increase, including calls for adding seismic devices and real-time echo-location. Gunshots, explosions, and even loud arguments could become self-reporting.

Common household products sometimes become deadly in large quantities. RFID technology could be used to monitor quantity concentration of potentially lethal materials and provide that data to the authorities.

The consumer use, public use, and law enforcement use must be thoughtfully reviewed to balance the benefits of the technology with the intrusions into privacy and the legacy of retrievable information that such technology creates.

FTC staff will accept submissions through June 1, 2013, electronically through iot@ftc.gov or in written form. The workshop will be held on November 21^st. These are the questions posed by the FTC thus far:

• What are the significant developments in services and products that make use of this connectivity (including prevalence and predictions)?
• What are the various technologies that enable this connectivity (e.g., RFID, barcodes, wired and wireless connections)?
• What types of companies make up the smart ecosystem?
• What are the current and future uses of smart technology?
• How can consumers benefit from the technology?
• What are the unique privacy and security concerns associated with smart technology and its data?  For example, how can companies implement security patching for smart devices?  What steps can be taken to prevent smart devices from becoming targets of or vectors for malware or adware?
• How should privacy risks be weighed against potential societal benefits, such as the ability to generate better data to improve healthcare decision making or to promote energy efficiency?
• Can and should de-identified data from smart devices be used for these purposes, and if so, under what circumstances?

While the FTC has asked some good questions, they are only the beginning. Please submit your thoughts and join the FTC conversation.

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[1] Jon M. Garon, Mortgaging the Meme: Financing and Managing Disruptive Innovation, 10 NW. J. TECH. & INTELL. PROP. 441 (2012).

IP for Creative Upstarts papers available for conference on Nov. 9-10, 2012

Presented by Michigan State University College of Law

Intellectual Property, Information & Communications Law Program

Co-sponsored by

       NKU Chase College of Law, Law + Informatics Institute

Copyright Alliance

This conference considers how law and policy can nurture diverse creative industries—”Creative Upstarts”—in the U.S. and abroad. “Creative Upstarts” encompass a range of commercial enterprises from independent artists and producers in developed countries to emerging content industries such as Nigeria’s “Nollywood,” Jamaican dancehall, Brazilian tecnobrega music, and Chinese digital publishing. Their interests have been overlooked in recent debates on intellectual property and information policy. This conference seeks to remedy that gap. Read More …

Papers

• Cautionary Tales About Collective Rights Organizations (PDF)
  Jonathan Band
• The Implications of Copyright Royalty Stacking for Creative Upstarts (PDF)
  Jeremy de Beer
• Online Music Licensing: From PROs, AOL and MobiTv to SoundExchange, AT&T, and the CRB (PDF)
  Todd Brabec and Jeffrey Brabec
• Performing Rights Licensing in the United States: A World of Multiple Choices, Considerations, and Results (PDF)
  Todd Brabec and Jeffrey Brabec
• What Drives IP Without IP? A Study of the Online Adult Entertainment Industry (Abstract, PDF)
  Kate Darling
• Mutiny on the Pirate Ship: Renegade Distribution and the Development of a Media Asset. (Abstract, PDF)
  Michael M. Epstein
• Digital Hollywood^2.0: Reimagining Film, Music, Television and Publishing Distribution as a Global Artist Collaborative (PDF)
  Jon M. Garon
• Deconstructing Disintermediation – A Skeptical Copyright Perspective (PDF)
  Guy Pessach
• The costs of licensing for online music services
  An exploratory analysis for European services (PDF)
  Heriatiana Ranaivoson
• The Taylor Swift Paradox: Superstardom, Excessive Advertising and Blanket Licenses (PDF)
  Ivan Reidel
• Nurturing Creative Industries in the Developing World: the Case of Music (PDF)
  Ana E. Santos
• Online Piracy of Indian Movies: Is the film industry firing at the wrong target? (PDF)
  Arul George Scaria

More Information:

                   

• IP for Creative Upstarts
• Participants
• Conference Papers
• Guidelines for Submissions to International Law Review Symposium Issue
• Intellectual Property, Information & Communications Law Program

Sponsors

• Copyright Alliance

• NKU Chase College of Law
  Law & Informatics Institute

Contact Information

Professor Sean Pager

spager@law.msu.edu

Join over 300 professionals before space runs out at NKU Security Symposium

The NKU Security Symposium with the inclusion of the legal track takes place this Friday. It will be a great opportunity to cross-train with security and privacy professionals, programmers, IT specialists and legal specialists. The legal track announcement is below: 2012 NKU Security Symposium Friday, Oct. 12, 2012 NKU METS Center in Erlanger, KY Register Now! The 2012 Security Symposium, for the 6th year in a row, will bring together security professionals for a multi-track conference focused on the various aspects of security in information technology today. The symposium will focus on IT security challenges, best practices, and professional discussions, and will include a legal track focusing on the intersection of law and security. The symposium is presented by the Center for Applied Informatics, NKU Chase Law & Informatics Institute and CincyIP. Four hours of Kentucky, Ohio and Indiana CLE credits are anticipated.  This conference is free, but space is limited. Register now! The Security Symposium is organized into five tracks: Information Security Governance This informational track focuses on the understanding and implementation of management policy, procedures, IT audits, continuity planning, and security awareness and training. Software Security This track incorporates knowledge about how identity theft is being fought and information integrity is being secured by industry ingenuity. Mobile & Computer Forensics Learn the latest methods and tools to process and understand digital evidence. Current Topics in Security Explore security topics focused around cloud computing, virtualization, mobile, and much more. Legal Issues in Privacy and Security This year marks the first year with an additional legal track, enabling the legal professionals to engage with security professionals and those involved with implementation of software security. Legal Track Presenters: •  Prof. Jon M. Garon, director of the NKU Chase Law + Informatics Institute •  Prof. Jack Harrison, NKU Chase College of Law •  Craig Hoffman, Esq., partner of Baker Hostetler •  Curtis Scribner, an attorney in the Global Privacy and Digital Legal group at Procter & Gamble Agenda 7:30 – 8:00 AM:  Breakfast 8:15 – 8:30 AM:  Welcome Address 8:30 – 9:30 AM:  General Session I 9:30 – 9:40 AM:  Break 9:40 – 10:40 AM:  LEGAL TRACK: Curtis Scribner on “Issues in Data Privacy” 10:40 – 11:10 AM:   Refreshments and Networking 11:10 – 12:10 PM:  LEGAL TRACK: Prof. Jon M. Garon on “Navigating Through the Cloud –                              Legal and Regulatory Management for Software as a Service” 12:10 – 12:45 PM:  Lunch 12:45 – 1:45 PM:  General Session II 1:45 – 2:00 PM:  Break 2:00 – 3:00 PM:  LEGAL TRACK: Craig Hoffman, Esq. on “The Legal Implications of Data Breach” 3:00 – 3:30 PM:  Refreshments and Networking 3:30 – 4:30 PM:  LEGAL TRACK: Prof. Jack Harrison on “E-Discovery –                           Legal Issues, Strategies, and Management” 4:30 – 5:30 PM:  Reception Learn More: Law + Informatics Blog Law + Informatics Facebook

Another Hidden Cost of Rent-to-Own: Your Privacy

Although I normally try to add context to commentary about the legal issues covered in this blog, this FTC press release speaks for itself: Secretly Installed Software on Rented Computers Collected Information, Took Pictures of Consumers in Their Homes, Tracked Consumers’ Locations

Seven rent-to-own companies and a software design firm have agreed to settle Federal Trade Commission charges that they spied on consumers using computers that consumers rented from them, capturing screenshots of confidential and personal information, logging their computer keystrokes, and in some cases taking webcam pictures of people in their homes, all without notice to, or consent from, the consumers.

The software design firm collected the data that enabled rent-to-own stores to track the location of rented computers without consumers’ knowledge according to the FTC complaint.  The settlements bar the companies from any further illegal spying, from activating location-tracking software without the consent of computer renters and notice to computer users, and from deceptively collecting and disclosing information about consumers.

“An agreement to rent a computer doesn’t give a company license to access consumers’ private emails, bank account information, and medical records, or, even worse, webcam photos of people in the privacy of their own homes,” said Jon Leibowitz, Chairman of the FTC.  “The FTC orders today will put an end to their cyber spying.”

“There is no justification for spying on customers.  These tactics are offensive invasions of personal privacy,” said Illinois Attorney General Madigan.

The FTC named DesignerWare, LLC, a company that licensed software to rent-to-own stores to help them track and recover rented computers.  The FTC also reached settlements with seven companies that operate rent-to-own stores and licensed software from DesignerWare, including franchisees of Aaron’s, ColorTyme, and Premier Rental Purchase.

According to the FTC, DesignerWare’s software contained a “kill switch” the rent-to-own stores could use to disable a computer if it was stolen, or if the renter failed to make timely payments.  DesignerWare also had an add-on program known as “Detective Mode” that purportedly helped rent-to-own stores locate rented computers and collect late payments.  DesignerWare’s software also collected data that allowed the rent-to-own operators to secretly track the location of rented computers, and thus the computers’ users.

When Detective Mode was activated, the software could log key strokes, capture screen shots and take photographs using a computer’s webcam, the FTC alleged.  It also presented a fake software program registration screen that tricked consumers into providing their personal contact information.

Data gathered by DesignerWare and provided to rent-to-own stores using Detective Mode revealed private and confidential details about computer users, such as user names and passwords for email accounts, social media websites, and financial institutions; Social Security numbers; medical records; private emails to doctors; bank and credit card statements; and webcam pictures of children, partially undressed individuals, and intimate activities at home, according to the FTC.

In its complaint against DesignerWare, the FTC charged that licensing and enabling Detective Mode, gathering personal information about renters, and disclosing that information to the rent-to-own businesses was unfair, and violated the FTC Act.  The agency also alleged that DesignerWare’s use of geolocation tracking software without first obtaining permission from the computers’ renters and notifying the computers’ users was unfair and illegal.  It charged that providing the rent-to-own operators the means to break the law was unfair, and providing the fake registration forms to obtain consumer data was deceptive.

The seven rent-to-own companies were charged with breaking the law by secretly collecting consumers’ confidential and personal information and using it to try to collect money from them.  Use of the bogus “registration” information was deceptive, the FTC alleged.

The proposed settlement orders will ban the software company and the rent-to-own stores from using monitoring software like Detective Mode and will ban them from using deception to gather any information from consumers.  They also will prohibit the use of geolocation tracking without consumer consent and notice, and bar the use of fake software registration screens to collect personal information from consumers.  In addition, DesignerWare will be barred from providing others with the means to commit illegal acts, and the seven rent-to-own stores will be prohibited from using information improperly gathered from consumers in connection with debt collection.  All the proposed settlements contain record keeping requirements to allow the FTC to monitor compliance with the orders for the next 20 years.

Those named in the FTC’s complaints include DesignerWare, LLC; its principals,  Timothy Kelly and Ronald P. Koller, individually and as officers of DesignerWare, LLC.; Aspen Way Enterprises, Inc.; Watershed Development Corp.; Showplace, Inc., d/b/a Showplace Rent-to-Own; J.A.G. Rents, LLC, d/b/a ColorTyme; Red Zone, Inc., d/b/a ColorTyme; B. Stamper Enterprises, Inc., d/b/a Premier Rental Purchase; and C.A.L.M. Ventures, Inc., d/b/a Premier Rental Purchase.

The Office of the Illinois Attorney General partnered with the FTC in this investigation.  Today General Lisa Madigan announced the filing of an action against one of the rent-to-own companies that used Detective Mode and that is located in Illinois, Watershed Development Corp.

The Commission vote to accept the consent agreement packages containing the proposed consent orders for public comment was 4-0-1, with Commissioner J. Thomas Rosch abstaining.

Second Circuit affirms that Internet streaming is not cable broadcasting

In 2010, ivi launched a television streaming service that provided subscribers access to television stations. The streaming service provided a national footprint for television access and harkened a potentially new chapter for TV distribution. As the court noted, “within five months of its launch,
ivi had offered more than 4,000 of plaintiffs’ copyrighted television programs to its subscribers.”

In WPIX v. ivi, the Second Circuit held that the new chapter must be written by Congress.

ivi had claimed the right to stream the television content pursuant to section 111 of the Copyright Act that allows cable companies to rebroadcast television signals in their local area upon payment of a compulsory or statutory fee. ivi took the position that it met the definition of cable system so that it could opt into the compulsory payment system.

Based on the statute and congressional hearings, the regulations provide the following definition for a cable system:

A cable system is a facility, located in any State, Territory, Trust Territory, or Possession, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. A system that meets this definition is considered a “cable system” for copyright purposes, even if the FCC excludes it from being considered a “cable system” because of the number or nature of its subscribers or the nature of its secondary transmissions.

The Second Circuit agreed that the language was ambiguous, so it applied the Chevron test to determine whether Congress was clear, and if not, was the agency regulation correct.

If the intent of Congress is clear, that is the end of the matter; courts must give effect to the unambiguously expressed intent of Congress.  If we determine that Congress has not directly addressed the precise question at issue, we proceed to Chevron step two, which instructs us to defer to an agency’s interpretation of the statute, so long as it is reasonable. [WPIX v. ivi, quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467, 842-43 U.S. 837 (1984) (other quotations omitted).]

The court had a difficult time believing ivi had a facility located in a particular state as required or that the Internet was a “facility” as required under the statute, but more importantly it found that the language was not meant to be broadly construed. Despite case law holding that satellite transmissions were within the ambit of section 111, Congress disagreed and instead added section 119 to specifically address satellite retransmissions. Congress also added the work “microwave” by amendment rather than relying on a more general reading of the statute and regulation.

Against this backdrop, the legislative history strongly suggested that Internet broadcasting was not an included subcategory under the “other communications channels.” Had Congress intended Internet broadcasting it had many opportunities to add the language.  Under the second part of the Chevron test, the Copyright Office uniformly stated in both regulation and congressional testimony that Internet broadcasting was not subject to the statutory provisions.

Although the case remains at the preliminary injunction stage, the unequivocal position of the Second Circuit would make future success for ivi very unlikely.

Undoubtedly the technology is rapidly shifting and the time is coming for Apple, Google, Microsoft and other Internet/Mobile companies to rewrite the social contract between audiences and broadcasters, but that revision will not be based on existing statutory licensing schemes. Instead it will require either new, directly negotiated distribution agreements – or more likely triggered by creation of high quality content that originates on the Internet/Mobile platforms. If the “broadcasters” are “streamcasters” then the new model will evolve quickly. Until then cable will still have the upper hand.

2013 Informatics Symposium announced – focusing on informatics in labor and employment issues.

2013 Law + Informatics Symposium on Labor and Employment Issues The annual NKU Chase Law + Informatics Symposium will be held this academic year on February, 15, 2013 focusing on issues in labor and employment related to informatics, including such topics as candidate screening practices, employee privacy, data security and appropriate policies, gamification in training, and social media use. The program will include a day-long seminar and reception. Presentations delivered at the conference will be published by the Northern Kentucky Law Review. More information is provided below in the conference call for papers. A PDF of the Call for Papers is available.

Call for Papers The Northern Kentucky Law Review and Salmon P. Chase College of Lawseek submissions for the Law + Informatics Symposium on February 15, 2013. The focus of the conference is to provide an interdisciplinary review of issues involving privacy, data aggregation, security, communications, social media management and related topics affecting the legal and business practices involving labor and employment law. The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues in informatics law as it applies to working conditions and employment practices. Interdisciplinary presentations are encouraged. Authors and presenters are invited to submit proposals on topics such as the following:

Privacy Application of the Americans with Disabilities Act Federal/state employment regulations regarding privacy HIPAA, FERPA, COPPA, GLBA & other sector-specific privacy issues EU & global privacy laws & policies Bioinformatics in the workplace Data mining of employee information Social media and political change Collective Bargaining Use of informatics tools for collective bargaining Collective bargaining positions on internet usage, data aggregation and social media Online dispute resolution Ownership of databases & data Contracting & enforcement of agreements over sharing of data Assessment of significant commercial expansions of informatics practices affecting public expectations & norms

Social Media Employee discipline for internet and social media use NLRB responses to social media Use of social media in employee screening Implications for privacy and discrimination lawsuits   Training and Security Gamification in training Computer security Data protection & obligations regarding data breaches Data reliability, including people’s rights to review & correct collected data Retraining and employee obsolecense   Other Issues Discrimination and access to public and semi-public information Employee ownership of intellectual property and data information Post-termination obligations of employers and employees Employee contracting and end user license agreements Global issues for similarly situated employees in multiple jurisdictions

Submissions & Important Dates: 

• Please submit materials to Nkylrsymposium@nku.edu
• Submission Deadline for Abstracts: October 1, 2012
• Submission Deadline for Articles: February 1, 2013
• Symposium Date: February 15, 2013

Law Review Published Article:  The Northern Kentucky Law Review will review, edit and publish submissions in the 2013 Spring Symposium issue.  Articles, as well as case studies and abstracts of research in progress, will be considered for the symposium program for presentation purposes.  Only complete articles, however, will be published in the law review.  Abstracts for these papers will be due no later than the October 1, 2012 deadline and will be accepted on a rolling basis until that time.

Presentations (without publication) based on Abstracts:  The Northern Kentucky Law Review will review and select presentations for the symposium.  If you are interested in presenting without submitting a publishable article, an abstract of the presentation must be submitted by the October 1, 2012 deadline and will be accepted on a rolling basis until that time.

About the Law and Informatics Institute:  The Law + Informatics Institute at Chase College of Law provides a critical interdisciplinary approach to the study, research, scholarship, and practical application of informatics, focusing on the regulation and utilization of information – including its creation, acquisition, aggregation, security, manipulation and exploitation – in the fields of intellectual property law, privacy law, evidence (regulating government and the police), business law, and international law. Through courses, symposia, publications and workshops, the Law + Informatics Institute encourages thoughtful public discourse on the regulation and use of information systems, business innovation, and the development of best business practices regarding the exploitation and effectiveness of the information and data systems in business, health care, media, and entertainment, and the public sector.

For More Information Please Contact:

• ProfessorJon Garon, Symposium Faculty Sponsor: garonj1@nku.edu or 859.572.5815
• Lindsey Jaeger, Director of Centers and Institutes Administration: JaegerL1@nku.edu or 859.572.7853
• Brad Andress, Symposium Editor: andressb1@nku.edu or 812.343.6822