LEGAL THOUGHTS

This blog contains our personal opinions on topics that interest us.

Daylight Saving Time starts in Europe on March 29

On Sunday, March 29th at 2am, Europe will start daylight saving time. With this change, the standard difference of time between New York, NY (ET) and Central European Time (CET) will return to six (6) hours. #DST

Can a business require temperature testing of employees?

Generally, an employer cannot require US employees coming to work to take a temperature test. This is because temperature checks would be considered an overly broad medical examination in violation of the Americans with Disabilities Act (ADA). In 2009 at the time of the H1N1 influenza pandemnic, the Equal Employment Opportunity Commission (EEOC) released a pandemic preparation guide concerning the ADA (see EEOC link, updated for COVID-19). The guide states that a medical exam can be performed "when the employer has a reasonable belief, based on objective evidence that: (a) an employee's ability to perform essential job functions will be impaired by a medical condition; or (b) an employee w

Opt-in is supposed to be by choice. Not required

I was registering for a COVID-19 webinar by LexisNexis. But, I couldn't register unless I opted-in to receive direct marketing correspondence. What? Shouldn't an opt-in to receive direct marketing materials be optional and not required? Why should I have to opt-in and then go through the extra step of unsubscribing? Probably because they assume a decent percentage of registrants will not go through the hassle of unsubscribing. #gdpr #privacy

Timely marketing

I found this tweak to the latest James Bond movie poster in Switzerland. I assume the movie theater owners added the mask because of the COVID-19 pandemic. #switzerland #copyright #covid

The new and improved Philadelphia Phanatic - Different enough?

Earlier this year, the Major League Baseball team the Philadelphia Phillies revealed a new look version of their mascot the Phanatic (Twitter link). The revisions include: a set of flightless feathers, bushier eyebrows, solid blue tail a larger butt, a different shade of green fur, hands are fur free, blue and white socks, and red shoes. This new look reportedly is due to a declaratory judgment copyright lawsuit (The Phillies v. Harrison/Erickson, Inc., S.D.N.Y. Case 1:19-cv-07239, Aug 2, 2019, Complaint and Answer) initiated by the baseball team against Wayde Harrison and Bonnie Erickson, the creators of the mascot. Harrison and Erickson created the mascot in 1978 and they assigned their ri

Data subject access requests - The rub

The GDPR provides that data subjects can query data controllers to learn about the personal data processed by that data controller. The CCPA has similar provisions that provide consumers with the right to query a business to learn about the personal information processed by the business. Under both data protection regimes, when a requestor queries a data controller / business, the data controller / business can query the requestor for additional information to confirm the requestor's identity (GDPR Art. 12(2) and (6); Recitals 57 and 64) (CCPA at 1798.185; CCPA proposed regulations Art 4. Section 999.323). Thus, requestors could face an unpleasant situation; in order to learn what persona

Daylight Saving Time starts in US on March 8

On Sunday, March 8th at 2AM, the U.S. will start daylight saving time. This means people in the U.S. will set their clocks forward by one hour (2AM becomes 3AM), and the change will push sunsets later. The U.S. starts daylight saving time three weeks before Europe (on March 29th). Thus, for the next three weeks, there is one less hour between the US and Europe (5 hours instead of 6 hours). For example, during standard time 9am ET = 3pm CET but during DST 9am ET = 2pm CET. As a bonus, over the next three weeks, US filers will have one extra hour to submit their documents to European based agencies. For example, US filers have until 7pm ET to submit their documents to WIPO in Switzerland t

Switzerland revised its copyright law

As I earlier blogged, the U.S. has been pushing Switzerland to revise its copyright law to make online copyright protection and enforcement easier. On September 27, 2019, Switzerland finally revised its copyright law (see link in German). The U.S. however won't be satisfied with the revision. The revision added liability for internet hosting providers for hosting illegal content (Art 39d). The revision did not overrule the 2010 court case that permits individuals to download content from the internet and use it for their own personal use. The revision also did not include a provision that internet service providers would have to block "pirate" platforms. #switzerland #copyright

Reaction videos could be a fair use

Two YouTube channel owners -- MxR and Potastic Panda -- make videos where they react to online content (reaction videos). They recently received a copyright infringement notice from Jukin Media alleging that they had used unlawfully four copyrighted works and demanding a $6,000 payment (see YouTube link). The instant reaction was that the use was a fair use (see Twitter link; Reddit link, comments on YouTube link). However, just calling a use a fair use doesn't make it so. Fair use however is a fact specific determination that examines four factors (see 17 USC § 107): 1. The purpose and character of your use (transformative use) 2. The nature of the copyrighted work 3. The amount and sub

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