What You Don’t Know Can Hurt You

Multiple Choice Question: What do the following have in common:

“Privacy & Data Protection: Distinctions Between Surveillance and Secrecy”

“Ethics, Process, Privilege, Discovery and Work Product in the Digital Age”

“When Worlds Collide: Old Ethics and New Media”

“Outsourcing: The Law & Technology”

“The Changing Legal Landscape: Evolution or Revolution”

“Growing Your Business Internationally – What to Know Before You Go”

“Social Media, Mobile Marketing, Clouds and Crowds: (modules)

  • Advertising & Marketing in a Digital World
  • Media & Entertainment: Digital Rights and Wrongs
  • Financial Services, Payments & E-Commerce
  • Online Gaming, Gambling & Virtual Worlds
  • Apps & M-Commerce
  • Context & Geo-Marketing: Wi-Fi, Bluetooth, SMS, RFID, QR Codes & Augmented Reality
  • Operations & Performance, Security, Compliance and Interoperability
  • Wired & Wireless: Sweepstakes, Contests, Product Placement & Branded Entertainment
  • Anti-Social? Communication & Public Relations for Companies, Employees & Investors
  • Behavioral Advertising, Endorsements, Blogs, Buzz, Viral, Street Teams & Word of Mouth
  • Labor & Employment Policies in a Networked Age: The Good, The Bad & The Ugly
  • Crowd Sourcing, Crowd Funding, Crowd Investing: Today & Tomorrow

“Privacy, Data Protection & Globalizing Technology: Digital Commerce Brings Legal Challenges”

“Comparative Advertising Issues: Multinational Brands; Global Challenges”

“Direct to Consumer: Legal Challenges in the Digital Marketplace”

“Out of Control? Challenges to Privacy & Security in a Big Data World.”

 

Answers: (a) Seminars & Presentations Given; (b) Seminars & Presentations Available; (c) Targeted at Lawyers; (d) Targeted at Commercial and Business Management; (e) Relevant to Small-to-Medium Size Business; (f) Relevant to Multinational, International & Global Companies; (g) None of the Above; or (Y) All of the Above.

If you guessed (Y), you are correct. Let us know if any of these, a combination of these or a customized version of these or any other presentations might be right for you. Hey, you never know, but what you don’t know, can hurt you. For more information, contact me, Joe Rosenbaum, or the Rimon attorney with whom you regularly work.

2012 Thank You 2013

This is the time of year when many of you are celebrating holidays, spending time with family, friends and loved ones, bidding farewell to the end of 2012, and celebrating the coming of a New Year – 2013. A time when many of us take a moment to reflect on the year gone by and perhaps wonder what the New Year will bring. There are people who have touched us and with whom we’ve gotten closer; those who we have missed and resolve to try to be better than we were this past year; and perhaps a few we might like to forget. We also pause to remember some who are no longer with us and take comfort in knowing that by remembering them, we keep their spirit – all we have learned from them and all they have meant to us – alive. As 2012 comes to an end, we all should reflect on the friendships and experiences that helped us grow, and take a moment to thank those who have helped us get through tough times, and those who have shared the joys of good ones.

For me it’s a time to resolve to keep doing some of the good things I’ve done this past year, and to try to do some things better next year. As the year draws to a close, it also gives me an excuse to say thank you and express appreciation to all those who have enriched my life. If you are reading this, you are part of my audience, part of the fabric of my professional life; and like the threads of that fabric, you have helped me weave the patterns and textures you read in these digital pages. I am grateful for your readership and in some cases, your friendship. I am always appreciative when you take a moment to read and maybe gain some insight, while being a little entertained. Thank you.

I especially want to thank a few people at Rimon like Erin Bailey and Lois Thomson and Rebecca Blaw who make this blog happen. These are the people you don’t see, but I do – they help make Legal Bytes come alive. They are awesome and amazing, and there aren’t sufficient words to express how grateful I am – especially when they get my email that says "please can we get this posted ASAP." Thank you so much. You make it look easy and I could not do this without you!

I would also like to thank Carolyn Boyle at the International Law Office (ILO) – the force behind motivating me to push content into the U.S. Media and Entertainment Newsletter; and while I can take credit for the substance and nagging my colleagues to contribute, without her, the thousands of readers who enjoy the links and insights would be waiting far too long. Thank you.

So as the year comes to a close and we look forward to the next, let me express my appreciation and gratitude to each of you. You motivate me to keep this interesting and exciting – even when I get lazy about posting. My best wishes to each of you, your families, friends and loved ones, for a wonderful holiday season and a terrific new year, filled with health, happiness and success.

2012 Season’s Greetings & Happy New Year 2013

This is the time of year when season’s greetings, holiday and new year’s wishes, regardless of religion, culture, ethnic background or heritage, fill the air. A period when we spend lots of time and attention on cards, gifts, attending or hosting parties, dinners and otherwise gaining the 10 pounds we resolve to lose in the new year. I don’t want to ruin those traditions, so among the flurry of well-wishers, holiday revelers, frosty noses and smiling faces, let me join with others and wish you an enchanting and joyous holiday season, and a healthy, happy new year filled with wonder, challenge and excitement.

As many of you know, in years past I use to agonize over gifts to clients, colleagues, family and friends. A number of years ago, rather than sending people trinkets they never want or need; rather than feeling guilty I’ve forgotten someone or perhaps given the same thing I gave last year or, worse – gave you the gift you gave me!!! – I started my own tradition of sending a personalized note and making a contribution to a charitable organization of my choice in honor of family, friends, colleagues and acquaintances, and in memory of those we have lost. In that spirit, as I have done for some, I have made a donation to the St. Jude Children’s Research Hospital, and this year it seems somehow to be even more meaningful. Perhaps it is my way – my attempt – to find ways to let our children know there is more good than evil in the world. That good people don’t give up; won’t give up. That the battle may never end, but we will never resign ourselves to the way it is; never stop believing it can and will be better. At a time when so many of us might feel helpless to comfort each other.

To help, we need to find ways to make a difference – one step at a time. I know we can’t all change the world. But we might just be able to change a life or two or three. Yes, it’s corny. So what? We are already cool and so hip. We speak to each other in "tweets" and text messages, in language that accommodates the limitations of the technology – OMG that is sew kewl! So for the record, I’m OK with being traditional. Perhaps a little old-fashioned. We talk about random acts of kindness as if it were only a bumper sticker. Why be kind? Why help others? Why give? Not just this time of year, but as a part of who we are. Part of who we should be. Part of who we need to be to change the world.

Sure, maybe the homeless man will spend it on a beer – but maybe not. Yes, it’s true that someone may be embezzling money from the battered women’s shelter – but maybe they are not. What if – yes what if, each of us shows a little faith and kindness to others less fortunate – those who have so little. What if taking a moment to care pays more dividends than we care to believe; more than we know. The real inconvenient truth is that we often use failure as an excuse not to give or to help others who have less. Think about every person we honor because of their selfless dedication to helping others. We admire them not because they gave; we honor them because they never gave up. They don’t seek rewards or even recognition. They keep going, even when it seems impossible to make a difference. Our heroes often have little themselves, yet they give unselfishly to others. Adversity. Challenge. Humiliation. Their belief in helping others is steadfast. Beat them down, they get up and go on.

This year, we have been confronted by unspeakable images of horror – man’s inhumanity to man. I feel helpless to comprehend the tragedy in Newtown, Connecticut. Helpless against unimaginable sorrow. But we have also seen people caring for each other. As a community. The prayer vigils and outpouring of love and support in the hearts and minds of so many across the nation and the globe continues unabated. Don’t stop. When the cameras leave and the news coverage moves on – there are people who will still need your help, your love and support. We have seen or heard about natural disasters with unparalleled fury. But we have also seen the firefighters, ambulance personnel, emergency medical services, and so many others routinely risk their lives, no matter what the conditions, to rescue and save the lives of others – far too often at the risk of their own. And then there are the small acts of kindness, caught on camera unbeknownst to the good Samaritan – the image of a New York City police officer, giving shoes to a homeless man, shoes bought with his own hard-earned money.

Each of us should make a little more of an effort to help others. To give to those who are less fortunate, the thoughtfulness and help we would hope someone might give us if we needed it. Yes, even if we are not sure they will use it wisely or turn their lives around. Yes, even if we are disappointed or skeptical. Even if we are sure they won’t appreciate it. Have a little faith – this isn’t about religion. It is about tolerance and understanding and a willingness to accept that we may not know why some people are what they are, but we can help nonetheless. I don’t pretend to be a paradigm of virtue. I have walked past my share of homeless people, huddled in corrugated cardboard boxes, pretending to look the other way – avoiding their eyes so I’m not shamed into giving them a few dollars. But as I realized last year and each year that goes by, I spend more on a newspaper subscription or Starbucks or the new smart phone, than I am willing to give someone who is hungry or cold or alone . . . . . and I feel terrible. So now I’ve started to go back to those homeless, often helpless people – maybe not often enough, but when I do I feel better. It feels right. I like that feeling. Stupid me, I still don’t do it often enough. My father did, rest his soul. I should have learned from him. Hopefully it’s not too late. So I’m starting to pay more attention to what he never said, but always did. I’ve gotten better – but only a little. In this age of digital miracles, when communicating across the globe is as simple as the push of a few buttons, let’s not forget the miracles that happen face to face, person to person. The gift of kindness and compassion; of charity and community; of helping the needy and giving hope to the hopeless. This coming year, I will try again to be better. I will keep trying. I will also try to keep in touch in a more meaningful way and take the time that you need. Time is a precious gift. Something I value when it is given to me.

I also value the diversity of wonderful people I’ve come to know and care about over the years and throughout the world – you know who you are, and if you aren’t among those I’ve met, just send a signal and say "hello" – please. There is so much I still have to learn from each of you and so much we have to share with each other. So to family and friends, colleagues and acquaintances, clients and adversaries, those who know me far too well and those who don’t have a clue how they got on this email list, let me close by wishing each of you health, peace, comfort and joy this holiday season and in the year ahead. May those who love you come closer and those who dislike you forget why. Most of all, I wish all of you the extraordinary feelings of inner warmth and goodness that come with helping another . . . maybe changing another person’s life for the better . . . a person to whom you owe nothing and who expects nothing from you. Think what the world would be like if we all did that.

Warm regards for the holidays and best wishes for the new year. Sincerely,

– Joe Rosenbaum

U.S. Court Protects Middle Earth. Hobbits, Not Inmates, Take Over Asylum.

A United States District Court for the Central District of California has granted plaintiffs Warner Bros., New Line Cinema, MGM and Saul Zaentz – the motion picture studios and producer behind the forthcoming film "The Hobbit: An Unexpected Journey" – a temporary restraining order against Global Asylum (also known as The Asylum of Burbank), blocking the release of "Age of the Hobbits." The plaintiffs previously filed suit against Global Asylum (Warner Brothers Entertainment, et al. v. The Global Asylum, Inc.; CV 12 – 9547 PSG (CWx)), seeking an injunction against infringement and damages for trademark dilution, false designation of origin, copyright infringement, false advertising, unfair competition and violations of California’s Business and Professions Code. The Peter Jackson film, a motion picture adaptation of J.R.R. Tolkien’s classic book slated to open tomorrow, December 14, continues the successful "middle earth" franchise created by the success of The Lord of the Rings film series. The motion picture epic trilogy reportedly has gleaned more than $3 billion to date.

Asylum has a history of creating relatively low-budget films with parodied titles of Hollywood blockbusters (e.g., "Snakes On A Train," "Transmorphers: Fall of Man," "American Warships"). The studios pointed out these alleged parodies are always timed to coincide with release of each major motion picture counterpart and use "confusingly similar titles."

In granting the restraining order, Judge Phillip S. Gutierrez said the plaintiffs satisfied the legal standard requiring a plaintiff to demonstrate it has a valid copyright infringement claim, that there would be imminent danger to the plaintiff if the order is not granted, that the plaintiff would suffer more and that the order would advance the public interest. The judge’s decision specifically notes that: "The evidence of the advertising and promotion for ‘Age of Hobbits,’ as well as the media coverage the film has received, provides support for Plaintiffs’ contention that Asylum intended to deceive consumers by associating its movie with Plaintiffs’ works." You can read the Order in its entirety right here, Order Granting Plaintiff’s Ex Parte Application for a Temporary Restraining Order.

As always, if you need help or more information, contact me, Joseph I. Rosenbaum (joseph.rosenbaum@rimonlaw.com), or any of the Rimon lawyers with whom you regularly work.

Protection of Minors Doesn’t Trample Free Speech in Online Games

In 2005, California enacted a ban on the sale or rental of violent video games (defined as a game that depicts killing, maiming, dismembering or sexually assaulting an image of a human being) to minors. The stimulus for the law was the stated belief that violent videogames are likely to make minors become more aggressive and violent. The penalty for retailers who violate the ban? As much as $1,000 per violation.

As you might imagine, the legal challenge started almost immediately – from publishers, distributors and sellers; and today, in a 7–2 vote, the U.S. Supreme Court upheld a ruling by an appeals court that held the California law unconstitutional. I believe (although I didn’t go back and check yet) that California now becomes the seventh state to have such a law struck down. Justice Scalia, in summarizing the decision, is reported to have said, “Our cases hold that minors are entitled to a significant degree of First Amendment protection. Government has no free-floating power to restrict the ideas to which they may be exposed"; and in his written opinion for the majority noted, "Even where the protection of children is the object, the constitutional limits on governmental action apply."

We will try to bring you more details once we analyze the 18-page opinion handed down today, but if you have questions, feel free to call me, Joseph I. ("Joe") Rosenbaum, or any of the Rimon attorneys with whom you regularly work.

Looking Ahead to 2011: If Brevity Be the Soul of Wit

A line recited by Polonius in Shakespeare’s Hamlet (1602) comes to mind today. It’s the phrase "since brevity is the soul of wit . . . I will be brief." FYI, Polonius is a windbag in the play. There is also another phrase, often wrongfully attributed to Franz Kafka, that goes something like "lawyers are the only creatures that can write 1000 pages and call it a brief."

Well, here we are at the end of 2010. Those of you who have been reading faithfully know that each year, I create a Legal Bytes piece with no hypertext links to distract you; no citations; no dazzling factoids; and no breaking news stories. This time, I’ve decided to do something different. I am going to be brief. Instead of philosophy or predictions, I’m going to give you 10 words I believe may stimulate YOUR thinking about 2011. That’s it. I trust you. Most of you are sharper than I anyway.

You don’t have to buckle up or fasten your seat belts. Pull up a chair, open your BlackBerry, Kindle, Droid, iPhone, PC, Laptop, Netbook, Web-TV, PDA, Tablet or whatever your favorite Legal Bytes’ reading device might be; grab an espresso, a glass of tea (or whatever your liquid of choice might be); sit back and enjoy. Here goes:

  1. Mobile
  2. Behavior
  3. Privacy
  4. Social
  5. Cloud
  6. Neutrality
  7. Monetize
  8. Consolidate
  9. Engagement
  10. Global

That’s it. Oh, there is another word – profile – but that’s the subject of my first Legal Bytes blog for 2011. You will just have to come back for it!

 

Happy Holidays and Best Wishes for 2011!

Pardon Me, Your Name is Showing (Perception or Reality?)

Before we moved online to a blog format, from 1996 through the end of 2008, Legal Bytes was published as a one-page, monthly newsletter. But even then we had Useless But Compelling Facts, a feature our readers tell us they like! That said, the threads of continuity continue to haunt us. Witness the following:

In March 2004, the Useless But Compelling Fact question asked how “The Doors” got its name. The answer was that Jim Morrison decided to call his band The Doors after reading The Doors of Perception (1954), a novel written by Aldous Huxley about his use of hallucinogens. Huxley was made famous by his 1932 novel, Brave New World.

Although Legal Bytes was not yet a blog back in 2008, we have digitized and uploaded Legal Bytes material from as far back as 2004! Why is this relevant? Because in 2008, Legal Bytes published a short article entitled "The Doors of Perception Can Sometimes Lead to Harsh Reality," about a false advertising case involving the use of Jim Morrison’s name, likeness or other distinctive characteristics, in advertising by a concert band that included two former members of the original The Doors. Now it seems that Jim Morrison’s fans, followers, administrative agencies and regulators continue to seem intent on protecting and restoring Mr. Morrison’s good name.

There is a joke that goes something like, “if you remember the 1960s, you probably weren’t there.” For those of you who do recall, you will remember Mr. Morrison was convicted of profanity and indecent exposure stemming from allegations he exposed himself during a concert at the Dinner Key Auditorium in Miami in 1969. At the time of his trial, other band members insisted he never actually exposed himself, but fans offered conflicting versions of what happened and he was ultimately convicted. That conviction was being appealed by Mr. Morrison at the time of his death in Paris in 1971.

Well a few days ago—more than 40 years from his conviction and at the request of outgoing Florida Governor Charlie Crist—the Clemency Board in Florida unanimously voted to pardon Mr. Morrison (posthumously) for his conviction. Rest in peace.

North Carolina Creates Tax Incentive for Digital Media Companies

Interactive digital media developers that are currently located in North Carolina—as well as those contemplating doing business in North Carolina—should evaluate their business activities to take full advantage of the tax benefits of a new North Carolina tax credit for companies developing interactive digital media, including video game companies and developers of online virtual worlds and interactive websites that allow consumers to create and manipulate certain digital goods (i.e., avatars in role-playing scenarios). In particular, digital media developers should consider joint ventures with educational institutions that will allow them to maximize the benefits provided by the North Carolina credit. For more information on North Carolina’s new tax credit for digital media developers, please read our full client alert, “North Carolina Creates New Tax Incentive Opportunity for Digital Media Companies,” written by Rimon attorneys Donald M. Griswold, Michael A. Jacobs, John P. Feldman and Kelley C. Miller.

Hats Off to CAP: New Advertising Codes in the UK Launched

This post was written by Christopher Hackford.

After an extensive year-long review, on March 16, 2010, the Committee of Advertising Practice in the United Kingdom announced the launch of new Advertising Codes for both broadcast and non-broadcast media, covering television standards, television scheduling, radio and text services.

Much remains nearly the same, but there are some notable new rules, including rules intended to offer greater protection for children, rules to prevent exaggerated environmental claims, and a new section dedicated to lotteries and promotions.

That said, here are two examples of some rules that have actually been relaxed. One: charities are now allowed to make comparisons with each other (competitive advertising fighting for your British Pound Sterling). Two: advertisers in the UK are now permitted to advertise condoms on television before 10:00 pm on television. Some of this may reflect the increasing contention among advertisers for share of wallet from consumers.

The new Codes did not deal with some contentious areas of British advertising, but to find out more, you will either have to plod through the Advertising Code yourself, or you could read the Rimon Advertising Technology & Media Alert, New Advertising Codes Launched, written by our ATM colleagues in the UK.

So, if you need help understanding the new Advertising Codes, or you want to hear from the authors of the alert and experts in this area, feel free to contact Marina Palomba, Christopher Hackford or Huw Morris directly. Of course, you can always contact me, Joe Rosenbaum, or the Rimon attorney with whom you regularly work.

Outsourcing Providers Pitching Business? Be Careful What You Wish For.

As far back as May 2005, Legal Bytes reported that Europe was becoming a major outsourcing hub for a variety of reasons (Outsourcing Statistics). Well just this week, the law started catching up.

In what is certainly a major ruling and quite possibly the beginning of emboldened plaintiff-customers seeking greater accountability from outsourcing providers, Electronic Data Systems (EDS) has lost a case initiated by British Sky Broadcasting Plc (BSkyB) back in 2004, alleging that EDS, one of the leading outsourcing providers in the world, had misled BSkyB about its capabilities and expertise. For those of you who are legal research hounds, the case is cited as HT-06-311, British Sky Broadcasting v. Electronic Data Systems, although I don’t believe it has been fully published yet. The dispute arose over a services contract that was entered into by EDS and BSkyB in 2000, well before EDS was purchased in 2008 by its current owner, Hewlett-Packard (HP), for slightly more than US$13 billion.

To give you the background, BSkyB selected EDS to develop a new customer relationship management (CRM) system for its call centers in Scotland. After almost two years and failure by EDS to deliver, by March 2002, BSkyB ended the contract and took over the project itself – the frustration and events ultimately leading to the legal proceedings filed in 2004 that alleged EDS lied about its ability to undertake and complete the project. On the other side of the case, in its own court documents, EDS alleged that BSkyB simply “did not know what it wanted,” and wanted the lowest cost possible to accomplish “it.” To highlight the disconnect further, the contract with EDS was for £48 million, but according to court documents filed in the case, with all of the delays, budget over-runs, EDS’ failure to deliver, and BSkyB taking over and completing the project itself, costs had mounted to £265 million.

Justice Ramsey, writing for the British High Court, ruled that EDS misled BSkyB in making false and fraudulent misrepresentations in pitching and marketing its capabilities to BSkyB, giving rise to a claim for damages. Further, the court concluded, to the extent these representations were fraudulent, the limitation of liability clause in the contract that would have otherwise limited EDS’ liability for damages should be set aside and does not apply. While damages have not yet been fixed, in theory, if one includes the differential in costs, lost profits and other damages that are now fair game, EDS could be liable to BSkyB for well in excess of £200 million – that’s more than US$315 million at current exchange rates.

This is a major decision not only in the UK, but also for outsourcing deals around the globe, and if the beginning of a precedential trend, it could signal a radical shift in the way outsourcing deals are bid, negotiated and consummated. There is no question that anyone involved in outsourcing knows that the customer does not always have its specifications and detailed requirements buttoned up when discussions begin. Indeed, outsourcing often presents a singularity at which time enhancements, efficiencies and improvements that might have been difficult or impossible internally, can be effected by moving the operations to a third-party provider. The provider, eager to win a lucrative bid, may over-promise or over-represent its experience and capabilities. Smart negotiators know that forcing both sides to diligently and meticulously work through the “devil in the detail,” and making sure expectations, resources and capabilities are clearly set out and unambiguous, is the single most important contribution to be made in avoiding disputes, potential litigation and problems as the work and services unfold. Those of you in marketing know all too well that there is often a fine line between an actual claim and puffery. The former represents actionable representations, the latter . . . well, “you’ve tried the rest, now try the best” on every pizza box in the world.

Are you contemplating a major outsourcing initiative? Are you considering any outsourcing project, even a small one, involving critical operations – customer services, supply chain management, operations, transaction processing? Outsourcing is complicated. Need help? We wrote the book. No really, you can see for yourself: Outsourcing Agreements Line by Line: A Detailed Look at Outsourcing Agreements & How to Change Them to Fit Your Needs, written by none other than yours truly, Joseph I. Rosenbaum. Whether you check out the book or not, if you do need help, our Advertising Technology & Media law team here at Rimon has the help you need to make sure that, even if you are right, you can avoid the costly consequences and angst inherent in any legal proceedings between customers and providers. How can we help you? Call me, Joe Rosenbaum, or the Rimon attorney with whom you regularly work.