Addressing legal issues with the latest technological developments and social media trends.
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Due to efforts by the Electronic Frontier Foundation (EFF), the Library of Congress adopted in its recent guidelines a limited exemption to the Digital Millennium Copyright Act (DMCA), allowing gamers and preservationists to modify a video game to restore access to the video game for “local gameplay.” Specifically, a video game owner may modify an old video game to avoid the need for an authentication process when the copyright owner no longer supports the servers that facilitate such a process. This exemption will provide video game enthusiasts with the ability to play many classic video games. While this exemption is a victory for gamers and preservationists, not all of them are celebrating, given that the Library of Congress did not agree with the EFF on its other proposals related to the preservation of video games.

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Stories of interest this week include the doggy IDing skills of the Facebook AI, Apple looking to apply Force Touch to its keyboards, the WWE’s experiment with virtual reality, Intel’s plans for the Internet of Things, and more…

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As user-generated content explodes over the Internet, intellectual property disputes over posting or uploading such content without the owner’s consent continue to escalate. As we touched on in a recent post, social media platforms, hosting websites or other online service providers (OSPs) may be entrapped in these disputes based on the infringing actions of users of these OSPs. In such a situation, the Digital Millennium Copyright Act (DMCA) provides a safe harbor provision to the OSP known as the Online Copyright Infringement Liability Limitation Act (OCILLA.) This provision, found at 17 U.S.C. § 512(c), protects service providers from liability for “infringement of copyright by reason of the storage at the direction of a user of material that resides” on the provider’s system or network, if certain requirements are met.

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With still about a week left to go, Hudway’s Kickstarter campaign, which began last Wednesday for its augmented reality vehicle accessory, already has over 6,500 backers pledging more than $450,000—several times its initial $100,000 goal. According to its Kickstarter page, Hudway made the vehicle accessory, which turns your smartphone into a head-up display (HUD) for any car, “because we’re tired of waiting for others,” likely alluding to future endeavors by other automotive or tech companies like AR Driving Goggles from Mini, an AR system from Facebook, or an AR eyeglass-like device from the Google-backed startup MagicLeap. The success of the campaign suggests consumers are excited for this particular application of augmented reality. But even though the arrival of this once futuristic technology may be right around the corner, the necessary changes to the legal landscape that will allow and integrate the technology look a bit farther back in the rearview mirror.

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In their recent Client Alert, colleague Catherine D. Meyer examines the prospects of a potential “Safe Harbor 2.0” being hammered out between the EU and United States regarding data transfer schemes.

Additional Source: With Safe Harbor now “Invalid,” Companies Must Change Data Practices

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Stories of interest this week include discussions of “melt your brain” VR at YouTube; the resurrecting of deceased loved ones via social media history; transforming that key fob or piece of jewelry into a payment device; and more…

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Brand companies have come to view user-generated content as often one of the most effective and authentic ways to advertise their products or services. This is known as “user-generated content marketing.” For example, with the ubiquitous selfie, brand companies have discovered a rich supply of user-generated content. Consider a consumer who takes a selfie wearing a favorite pair of jeans, posts the photo on Instagram, and then tags the photo with #brandname. The jean company sees and likes the photo, re-posting it on the company website. Legal issues? If the consumer or user was hoping to get attention from the brand for the photo and opinions shared online, not at all. This is how many digital influencers get their start. But if the user was not seeking such attention? Then, problems can arise.

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Notwithstanding that the people involved are often surprised at their public exposure, it has become somewhat commonplace for individuals to be either caught on video by a smartphone or to have a social media website posting that demonstrates poor judgment go viral. All employers should consider having a social media response plan for just these sorts of incidents, in some cases to protect other employees and in many cases to protect the employer’s brand and reputation. Even then, employers must strike a fine balance in navigating their rights and responsibilities towards all affected by the sudden exposure.

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We often espouse the value of comprehensive, up-to-date terms of service (TOS) that consistently reflect your current business. And for good reason! Plaintiffs’ attorneys will scrutinize your TOS before helping your users sue your business for “taking advantage” of them without their consent and knowledge. Wilford Raney’s attorneys did the same for Twitter’s TOS before bringing their class action lawsuit against the social media giant for allegedly invading Raney’s privacy (and the privacy of similarly situated individuals) by replacing user-provided hyperlinks with its own “t.co” short link in “private” direct messages.

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With live-streaming apps Periscope and Meerkat becoming increasingly popular, the introduction of a “live” element in the social media game is creating unique business and legal concerns. While most of the videos streamed on Periscope or Meerkat merely allow users to create real-time videos to share with their followers or show snippets of everyday life (like a walk through the park or a birthday celebration), legal complications can arise when users give viewers a glimpse into highly anticipated and publicized live events.

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