LEGAL THOUGHTS

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

Cookies should not default to on

As I discussed in earlier posts, the GDPR and various guidance documents from regulators state that the default for website cookies should not be "on". I was in Austria when I visited the Cnet.com website. Cnet is owned by CBS. CBS isn't a small business and should be aware of the GDPR and the discussion concerning cookies. However, somehow the default setting for cookies is set correctly to "on". #gdpr #cookies

Don't mess with the MTA

In early January 2020, the New York Metropolitan Transportation Authority (MTA) sent a copyright take-down notice to Etsy concerning an artist's map of the NYC subway system (see link). The MTA claimed that the artist's map infringed the MTA's copyright to its Weekender Map. Why would the MTA bother to send a copyright infringement takedown to a single seller on Etsy? Perhaps they are looking for license fees. After all, the MTA's annual operating deficit is projected to hit almost $1 billion by 2022 (see link). #copyright

Instagram can sublicense your public posts

Who would have thought that you should read the terms of service for Instagram? Apparently not Stephanie Sinclair (see Sinclair v. Ziff Davis, LLC et al, Case 18-cv-790, S.D.N.Y., Dkt 31, copy hosted on Mega.nz). Ms. Sinclair posted a photograph to her Instagram account that was set to public. Ziff Davis owned Mashable attempted to get a license from Ms. Sinclair to use that image. She did not accept their offer. Mashable then embedded the image using the Instagram API in their story. Ms. Sinclair was not amused and sued. The Court just dismissed her copyright complaint. When a user creates an Instagram account, they agree to the Terms of Use. By posting content to Instagram, the user

Brave - Messing with fingerprinting

In an earlier blog post, I discussed fingerprinting as technique used to track internet browers. Fingerprinting is a technique used to identify individual internet browsers (and therefore individuals using browsers) by learning a lot about your browser, such as your operating system, the size of your browser window, details about your computer hardware, and calling that a "fingerprint". Fingerprinting is subtle and harder to stop. Most fingerprint blocking techniques involve trying to make each browser's fingerprint look the same. The internet browser company Brave (see link) however is fighting fingerprinting by randomizing fingerprinting data (see link). The effect will make a browser l

Marketing is awesome

It appears that Microsoft is open to licensing its branding to snowboard manufacturers. I found this snowboard in Austria. #trademark #austria

Adequacy at risk? Switzerland better hurry

Switzerland currently has an adequacy decision with the EU concerning data protection (see link). The EU investigated Switzerland's data protection law and determined that Switzerland's privacy standards were sufficiently similar to Europe’s strict safeguards. Because of this adequacy decision, personal information can be transferred between Switzerland and the EU / EEA without much formality. However, that adequacy decision from July 26, 2000 was based on a comparison of the old EU Data Protection Directive and the Swiss equivalent the Federal Data Protection Act (FADP). The EU subsequently enacted the General Data Protection Regulation (GDPR) which raised data protection requirements, an

Using influencers. Take precautions

​ ​If your business uses influencers to promote its products, hoping that your influencers will comply with the FTC endorsement guidelines (see FTC link) is no longer an option. At the beginning of March 2020, the FTC settled for $1 million with Teami, a detox tea company and other wellness products. Teami had a social media policy that was sent to its influencers. Teami however did not monitor its influencers to determine if they were in compliance with its social media policy, and the FTC found that the influencers were not in compliance with the social media policy and its endorsement guidelines. As part of the stipulated order, Teami must monitor its influencers for compliance with the

Carte blanche to infringe

This isn't an April Fool's Day joke. On March 23rd, the US Supreme Court ruled that states have carte blanche to infringe US copyrights (Allen v. Cooper, Case No. 18-877, (US Supreme Court March 23, 2020), opinion is hosted on Mega.nz). In reaching this decision, the Court affirmed the Court of Appeals for the Fourth Circuit and found that the Copyright Remedy Clarification Act of 1990 (CRCA) which stripped States of their immunity to copyright infringement claims was invalid. The CRCA could not rely upon Article I of the U.S Constitution because of Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999) which held that Congress couldn't justify its attempt to force states into federal

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