Fair Use. Take-down. Copyright.


Fair Use. Take-down. Copyright.

Fair Use. Copyright.

Fair Use. Copyright.

Is it Fair Use?

Section 512(c)(3)(A)(v) of the Digital Millennium Copyright Act requires that copyright holders consider, whether content that is perceived as potentially infringing is fair use before they issue a take-down notice. A recent Ninth Circuit case reaffirmed that requirement in Lenz vs. Universal. While a copyright holder is only required to make a subjective assessment, an assessment is nonetheless required before requesting that a website, such as YouTube, Google, Facebook, or Twitter remove allegedly infringing content.

Take-down. Copyright.

After making such a subjective assessment, what goes into a take-down notice? A take-down notice must contain “[a] statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 17 U.S.C. § 512(c)(3)(A)(v). Because fair use of copyrighted material is not an infringement of copyright, such use is “authorized by . . . the law.” See id. § 107. Therefore, in order to form “a good faith belief that use of the material in the manner complained of is not authorized by . . . the law,” id. § 512(c)(3)(A)(v), a party must consider the doctrine of fair use.

Subjective assessment of Fair Use.

To comply with the law, a copyright holder is only required to form a subjective assessment, which does not require investigation of the allegedly infringing content. The assessment does not have to be accurate, it must only be performed. If a copyright holder fails to consider fair use before sending a take-down notification, gives lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary, is subject to liability.

That’s it for now. Do you have an opinion about this? Join my conversation on my Facebook Law Page, Google+ page, Twitter feed, or in one of my LinkedIn group discussions.

Data Breach. Privacy.


Data Breach. Privacy.

Data Breach. Privacy.

Data Breach. Privacy.

Anyone who closely follows the news has heard the term “data breach” all too often in recent months. A violation of ones privacy rights.  There is little doubt that these “breaches” of consumer’s personally identifiable information (PII) via the nation’s retailers are becoming a serious threat to consumers.

This problem has hit California particularly hard over the past year, so much so that some have begun referring to 2014 as “the year of the data breach.” California legislators have taken notice. In the wake of this epidemic, the State has proposed two bills designed to educate consumers and keep retailers accountable for safeguarding personal information.

One bill proposed by State Senator Hannah-Beth Jackson, of California’s 19th district, is SB-570. The bill seeks to simplify and standardize the manner in which consumers are informed of any data breach. The bill requires notification of a data breach to be detailed, in a simple to read one-page document headlined “Notice of Data Breach,” with a predefined format containing the following information:

  • What Happened
  • What Information Was Involved
  • What Are We (retailer) Doing
  • What You Can Do
  • For More Information

A second bill dealing with this issue is AB 964, sponsored by Assembly Member Ed Chau, of California’s 49th Assembly District. Among other things, this bill seeks to define the term “encryption” when used by businesses. The bill defines encryption as “rendered unusable, unreadable, or indecipherable through a security technology or methodology generally accepted in the field of information security.”

At the present time data breach statutes in the state of California fall under the umbrella of the Customer Records Act, which specifies that companies “must implement and maintain reasonable security procedures and practices,” in regards to customer’s Personally Identifiable Information, and notify the customer of breaches without “unreasonable delay.”

Will these pending Senate and Assembly bills do anything to stem the tide of personal data breaches? While these proposed bills may tighten up procedures and language concerning how businesses handle notification of data breaches, they don’t specifically create a solution to the crime itself. Sadly, with hackers becoming more sophisticated, companies becoming less careful in how they handle our PII and our privacy, and consumers becoming more careless with their own private information, eradicating these crimes altogether may be a long and tedious battle.

So what can consumers do?

Right or wrong, the brunt of the responsibility falls on you, as usual. Shopping with credit and debit cards, while very convenient, opens you up to some risk. You must take proactive steps to protect yourself and you must be vigilant when it comes to your finances. Read here for some simple common sense tips to avoid data breaches: http://www.usatoday.com/story/money/business/2014/09/21/5-ways-to-protect-yourself-from-data-breaches/15953321/

Remember, the first line of protection is always you. Stay involved, stay alert and stay informed. ‘

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on Law Facebook, Esteemable Acts Facebook Fan Page,  Law Twitter, Esteemableacts Twitter, or in one of my LinkedIn groupsGoogle+ Circles.

Terms. YouTube.


 Terms and Conditions.  Terms of Use.

Terms. YouTube.

Terms. YouTube.

Read it and understand it BEFORE you sign it, OR pay the price. Reading Terms and Conditions or Terms of Use or Terms of Service is quickly becoming the foundation for many social media related lawsuits.  I am constantly blogging about this topic, speaking about it in my lectures, and reiterating its importance to my clients over and over again. Yet, folks still ignore the warning—until it’s too late. They simply do NOT want to read the Terms of Service, Terms of Use, or Terms and Conditions before accepting them (collectively known as the “Terms”).


There are a ton of reasons why people choose not to read the Terms before they sign those documents.  Among the many reasons are:

  1. The Terms are too long;
  2. The Terms are too complicated;
  3. I trust the person/company that issued them;
  4. I feel I have no choice but to accept the Terms.

If YOUR reason for not reading the Terms, before you sign them, is one of the above (and BTW, clicking “I Accept” is signing), then a recent decision handed down by the United States District Court for the District of Columbia may serve as a strong warning.

Song Fi vs. YouTube and Google. Arbitration.

The plaintiff sued YouTube in Washington, DC, despite the fact that YouTube’s Terms state all disputes must be resolved in the Northern District of California through arbitration. The plaintiff, who lives in DC, understandably did not want to fly from DC to California every week to litigate the claim. Plus, the plaintiff obviously felt he had a better chance of winning in a lawsuit, rather than in an arbitration hearing. So, he attacked YouTube’s Terms by stating they were unconscionable. He further stated that he “didn’t read them anyway,” because he felt he had no choice. The plaintiff argued that YouTube has “overwhelming power in its chosen market” and that the plaintiff as a “small, independent music company,” had no choice but to accept YouTube’s Terms. He continued saying, he “Lacked any kind of meaningful choice as to whether to upload their video to the YouTube website and agree to the Terms set forth by YouTube.”

For every person who wants the right to make adult choices, yet then chooses to see him or herself as a victim—when convenient, LISTEN UP!

Terms. Contracts.

The court came back and said, Terms of Use are contracts and there was nothing in YouTube’s Terms that was unfair or unreasonable.  The court further said, “Though YouTube is undoubtedly a popular video-sharing website, it is not the case that Plaintiffs lacked any kind of meaningful choice as to whether to upload their video to the YouTube website and agree to the conditions set forth by YouTube. Plaintiffs could have publicized the LuvYa video by putting it on various other file-sharing websites or on an independent website.” The court further sent the case to California.

So what is the takeaway?

  1. Read every document before you sign it, because whether or not you read it, YOU WILL BE HELD LIABLE for it.
  2. If you object to the terms of the agreement, DON’T SIGN IT—you have a choice, albeit not the choice you like.
  3. If you sign a document that has a jurisdiction provision that says all disputes must be resolved in a certain state, BELIEVE IT. Sometimes there are ways to get out of that, but you will have to pay a lawyer to fight it and you may still lose.
  4. If you sign a document that says all disputes must be resolved by arbitration, BELIEVE IT. Again there are exceptions, but you will likely have to pay a ton of money to prove you are right.
  5. As long as the Terms of Use are clear, visible, and can be understood, most courts will uphold them.

Until next time, I’m Attorney Francine Ward. Find me on my Facebook Law Fan Page, Twitter Law Page, Google+, and LinkedIn.

Technology. YouTube.


Technology.  YouTube.

Technology. YouTube.

Technology. YouTube.

You Tube and Technology. I love technology. It’s a wonderful tool, which makes our lives easy, fun, and more efficient. We use technology to communicate, to market, to create, to learn, and to share with others. It’s hard to imagine what we would do without it. Yet, with all the many advantages that come with our use of technology, there are a plethora of challenges, and terms and conditions that must be followed.

Whether driving your car on the freeway, negotiating traffic on a local street, or knowing what’s yours for the taking and what’s not, there are terms and conditions—rules that must be followed. You can choose not to follow those rules. You can choose to outright break them. But regardless of your reasons, if you break the rules, if you don’t abide by the terms and conditions, you’ll have to pay. Look at it this way, if you are adult enough to do whatever you feel like doing, then be adult enough to accept the consequences.

Technology. YouTube. Miley Cyrus.

Like it or not, those rules also apply on the Internet, especially social media venues, such as Second Life, Facebook, Instagram, Pinterest, LinkedIn, Twitter, and YouTube.  Not everyone uses technology in the same way. Nor does everyone have the same value system when it comes to the use of cool technology devices and platforms. For example, what’s one person’s porn is another person’s art. And while we all have our own opinion as to where the line gets crossed, there are rules we must follow, at least on the Internet. Regardless of our personal views, we all have to follow the rules or pay the price.

YouTube. Miley Cyrus.

I recently got a call from someone who wants to sue YouTube. He’s mad because YouTube added an age restriction to his highly provocative and sexual video series. The YouTube music age restriction limits who can see his videos. The YouTube music restriction also limits how viral his videos can go. He says, “If Miley Cyrus can do it, why can’t I?” Well while that thinking might make sense, he’s not Miley Cyrus.

Miley gets paid to be outrageous, and she’s a superstar. And yes, superstars in our culture are afforded special privileges. They can do anything they want, and not pay a price. And even if Miley Cyrus had to pay a price, she can afford that price.

This leads me to another point, everyone wants to sue, UNTIL they know how much it will cost. Miley can afford to be in court—forever! She loves the attention, but mostly she’s got the money to pay for the attention. Litigation is expensive and there are never any guarantees. If Miley Cyrus gets sued, she can afford the battery of attorneys it will take to help her win (or not).

The person who called me believes there should be no restrictions on what he does. He feels that neither YouTube, nor anyone else has a right to tell him what to do. Ironically he seems to have forgotten that he has a choice whether to access YouTube or any other website.  And while the YouTube music space is a great venue for becoming known, we all have a choice.  It’s like if you go to someone’s house, but don’t like the rules of the house, you can choose not to visit them or follow the rules.

So my advice, if you want to fight and can afford litigation—go at it!  On the other hand, as always, my suggestion is think preventatively. READ and UNDERSTAND everything BEFORE you sign (or agree to the contractual Terms of Use). Once you sign, you are bound. And while you absolutely have the right to fight, you will have to pay to play.

Until next time, I’m Attorney Francine Ward helping you make better choices. Join the conversation on Facebook Fan page, Twitter Legal Page, Google+, or in one of my LinkedIn Groups.

Intellectual Property. Right of Publicity. Right of Privacy.


Right to Privacy. Right of Publicity.

Intellectual Property. Right of Publicity.

Intellectual Property. Right of Publicity.

Recently someone asked me if she could put the face of a celebrity on some cookies that she baked for sale. She said, “I want to show potential customers how effective I am at creating customized cookies.”

It was a great question, which addressed an important Intellectual Property issue—Right of Publicity. For that reason, I wanted to tackle it in a blog post. My short and simple answer to her question is, do NOT put a celebrity’s face on any item you wish to sell, without permission from that celebrity.

Intellectual Property. What is Intellectual Property. Right of Publicity.

The Right of Publicity is one of 5 rights found, within the bundle of rights called Intellectual Property (IP). IP includes Copyrights, Trademarks, Patents, Trade Secrets, and Rights of Publicity. California is one of a handful of states that actually has a statute on this topic and the statute is tough, with very strong teeth. Californians take the violation of their Right of Publicity quite seriously, probably because there are so many celebrities who call California home. And know this, in some states, like California, the Right of Publicity does not only apply to celebrities, nor does it only apply to only living people. That means, of you violate someone’s Right of Publicity—even if they are dead—you can find yourself in court.

The Right of Publicity is a person’s right to control the monetization of their name, image, likeness, or persona. The unauthorized use of someone’s likeness, image, persona, and/or identity can land you in court.

So before you run out and put Sting, Michael Jackson, Brittany Spears, or George Clooney’s face on your T-shirts and then sell them, know the law!

Intellectual Property Attorney Francine Ward.

If you are interested in finding out what you can and cannot use, contact me. I am Attorney Francine Ward. My California, New York, and DC practice focuses on intellectual property law issues, such as Copyrights, Trademarks, Trade Secrets, Rights of Publicity, Sweepstakes & Contests, Publishing law, Entertainment law, and Social Media legal issues.