Archive for the 'Laws' CategoryPage 2 of 69

Hyperlink Hysteria: When is Posting a Hyperlink Breaking the Law?

It’s no understatement to say that hyperlinks are essential to a functioning internet. You clicked one to get here and you’ll probably click plenty more today. However, under a new Court of Justice of the European Union (CJEU) ruling, posting the wrong link in the wrong way can get you in legal hot water.

The case pitted Playboy magazine against a Dutch company whose business and website involved posting links to unauthorized replications of stills from Playboy magazine. Playboy took issue with this and sued, arguing that posting these links infringed their copyrights in the photos.

In their recent explanation of their initial opinion from a few months back, the CJEU sided with Playboy and created brand new rules describing the situations where posting a hyperlink can get you in trouble in the EU.

The EU’s New Ruling

First and foremost, where freely available content is posted to the internet with the copyright owner’s consent there is never copyright infringement. However, when the link posted is to unauthorized material, access to which would otherwise be restricted, the situation changes.

Under the new rules, a person posting such a link is liable for copyright infringement in two situations. First, where the link was posted “in pursuit of financial gain,” there is a presumption that the person posting knew they were not authorized to post the link and guilty of copyright infringement unless they produce evidence to rebut that presumption. Second, where the link is not posted for financial gain but the poster knew or should have known that the content they linked to was illegally published the poster is also guilty of copyright infringement.

The CJEU found that the Dutch company, GS Media, had posted both for profit and with knowledge they were linking to unauthorized content. However, the court was notably sparse as to the details of what counted as “for profit.” This means that the law, while certainly a boon to content creators seeking to protect the works they put on the internet, leaves many businesses in lurch.

The presumption of copyright infringement, barring any other legal defense, is something quite uncommon in law. Does a poster have to profit from the link itself? Is it enough that the website with the link makes profit from additional web traffic? As it stands, those who directly profit from links by putting them behind a pay wall and small bloggers posting links on articles earning ad revenue could both be in the same copyright infringement boat.

What’s more, the CJEU ruling makes it clear that when a post is “for profit” the onus is on the poster to ensure the legality of anything they chose to link. This puts a pretty hefty burden on small bloggers who may not have the money or legal expertise to ensure that every link they post is above board.

As for here in the U.S. of A, this ruling is unlikely to impact the links you post on social media. However, businesses that operate internationally will have to be especially careful about what and how they post. The ruling will have a substantial effect on companies offering internet search engines, such as Google, because these companies must take extra steps to determine if their listed sites contain unauthorized material so as to avoid the effects of the infringement presumption. They also will need to deal with increased instances of demands from companies wanting them to delist links to websites that include infringing material.

EU Law Compared to US Law

These new developments abroad probably have you asking, how does U.S. law treat hyperlinks? Well, rest easy, your usual posts on Facebook are unlikely to get in trouble.  It is long settled U.S. case law that the mere posting of a link does not give rise to a direct copyright infringement claim without more. This being said, you can still commit infringement where—as in the EU—a link is posted either for profit or with knowledge of it connecting to infringing material.  However, these facts don’t create a presumption against you as they do in the EU.  Instead, they are relevant evidence in an alternative cause of action to direct infringement—contributory infringement. While in the EU these facts could now leave you on the backfoot in a claim against you, they are the bare minimum to a plaintiff establishing a claim here in the states.

In practice, unless the posting is en masse and coming from a known company with deep pockets, most links to infringing material are dealt with through the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The DMCA provides protection for websites which host content so long as they have a statutorily compliant takedown policy in place and respond appropriately to takedown requests—requests to remove infringing content from a hosting site—from content owners. This obviously doesn’t apply where the website itself is posting the infringing links, but when it comes to links posted by private parties the expense of litigation and difficulty of identifying the person behind the computer make it preferable for content creators to focus on taking down the infringing links.

The CJEU ruling has pushed the potential for copyright infringement through posting hyperlinks to unprecedented levels. Unless these changes make the unlikely jump across the pond, they will only really impact internationally operating business within the U.S.  However, it is still important to be careful what links you post—especially if you make any sort of profit off those posts.

Marijuana in the Workplace: Employee Protection as Legalization Spreads

This election has seen a huge boom in marijuana legalization. There are now 26 different states with marijuana legalized in some form or another. Of these states, eight have legalized recreational and medical use while the rest have restricted legalization to medical use.  In all these states, the legislature will have to deal with the unanswered question: how should marijuana be dealt with in the workplace?

Cases on the issue have already begun in many different contexts. Just recently the Massachusetts Superior Court addressed the issue of whether an employer needs to make accommodations due to disability for an employee’s medical marijuana use.  Massachusetts rules that despite the fact that the marijuana was prescribed to treat the employees Crohn’s disease, an employer is still under no obligation to accommodate such use.

This ruling is in line with a trend across the nation.  States are legalizing marijuana, but having difficulty in deciding how or whether to protect its use in an employment context. The approach has been different state to state—as it must be with marijuana illegal at a federal level—and has seen states dealing with employment issues from disability to off duty use, leading to adverse action to employment benefits to workers’ compensation.

Employees Treating Disabilities with Medical Marijuana

Massachusetts’ take on disability is not surprising. While the outer limits of employee protection based on disability is often determined by state law, the minimum protection is governed by the American’s with Disabilities Act (ADA).  The ADA is a federal act protecting against disability discrimination.  However, it explicitly does not it does not cover employees or applicants who engage in illegal use of drugs.  Since marijuana is federally illegal, this means that marijuana use cannot be a protected disability under the ADA. wellness programs

As mentioned above, states can expand their disability protections beyond the floor set by the ADA.  However, many states have not exactly been in a rush to do so when it comes to marijuana use.  Just like Massachusetts, Oregon courts have ruled that an employer need not make accommodations for medical marijuana use so long as it is federally illegal.  In California, the California Supreme Court ruled that employers have no need to accommodate medical marijuana use even when that use is off duty.  Although, it should be noted that this was decided prior to recreational legalization.

This being said, there have been other states that have passed laws protecting medical marijuana users as disabled. Arizona, Connecticut, Delaware, Illinois, Manie, Minnesota, and Nevada all have laws protecting employees who use medical marijuana against adverse action (firing, failure to hire, refusal of promotions, etc.) due to their disability.  The exact nature and scope of these rules varies state to state, but they all have the ultimate effect of protecting employees who use medical marijuana by placing some type of duty to accommodate that use on employers.

Punishing Off-Duty Use?

While disability laws deal with how an employer must deal with prescribed marijuana use, some states have dealt with off duty marijuana use in more broad strokes—deciding how marijuana use factors into a wrongful termination lawsuit.  Wrongful termination is any sort of firing which is contrary to law.  Disability discrimination can give rise to a wrongful termination lawsuit, but the cause of action is much broader than discrimination and includes basically any type of illegal firing.

The most famous of these cases occurred in Colorado after Dish Network fired an employee for off duty medical marijuana use. The firing took place before marijuana was made recreationally legal in the state, but the ruling occurred after this change.

The court ruled in favor of Dish Network. They decided that, despite Colorado law forbidding employers from firing an employee based on their legal off duty activities, an employer could freely fire an employee for off duty marijuana use so long as marijuana is federally illegal.  Thus, the employee was not wrongfully terminated. Similar rulings have been also been reached in Michigan and Washington.

Medical Marijuana Disqualifying Employees From Unemployment Benefits

Very few states have actually dealt with the issue of medical marijuana use and how it affects unemployment benefits.  Only two states have really dealt with the issue and they were unhelpful enough to come to opposite conclusions.

In Colorado, an employee fired for marijuana use—even if it is off duty prescribed medical marijuana use—is disqualified from unemployment benefits. Michigan, on the other hand, has determined that an employee cannot be disqualified from unemployment benefits for their lawful off duty marijuana use.

Workers Compensation and Cannabis

Much like unemployment benefits, rulings have been unfortunately sparse when it comes to workers’ compensation and medical marijuana. Workers compensation laws protect employers from liability in exchange for an agreement to pay for any injuries that take place in the workplace, regardless of cause.

Once again, the rulings have been contrary to one another depending on the state. Maine has ruled that workers’ compensation can’t require an employer to pay for medical marijuana prescribed as a result of a workplace injury.  New Mexico, however, has held that employers must pay for such treatment when it is prescribed.

Marijuana in Federal Workplaces

Even where marijuana has been legalized at a state level, many state employers may still be regulated by the federal Drug Free Workplace Act. This law requires all federal contractors and employers receiving federal grants to maintain a zero-tolerance policy towards any federally illegal drug use.

These workplaces may find themselves in a conflict between state and federal law. In these cases, federal law will generally win out.  What’s more, where a position is safety sensitive, employers may also choose to implement a zero-tolerance policy.  Safety sensitive is a very broad classification and such a classification, coupled with a zero-tolerance policy, will likely alter an employee’s rights under state law.

Complicated Cannabis: Evolving Law

The interactions between marijuana use and employment law are far from fixed and will continue to grow more complicated as the federal standing of marijuana forces all these interactions to be a question of state law. The states have already shown that they are far from in agreement as to how the issues should be approached and most states where marijuana is legalized in some form have not even begun to address these issues.

There are arguments on both sides for how the law should evolve. An employer would certainly not be criticized for firing an employee who showed up to work drunk. However, it would be a different matter if they fired that employee for drinking in their own home while off duty. While this is obviously not a perfect analogy, just as marijuana is not completely analogous to alcohol, it does highlight the question of whether how marijuana is viewed and treated on a legal level will change as recreational use becomes more widespread. Marijuana is now legal in more states than it is not, the law will have to scramble to keep up with the appropriate rights and duties of employers and employees.

Judges Don’t Really Want to Decide Your Divorce Case for You

Deciding to go down the path of divorce isn’t something couples plan for and, once it happens, it isn’t an easy process. One common misconception is that your divorce case will automatically be decided for you.  Unfortunately, most couples find, instead, it can be a long grueling process of negotiation between sides.

Many courts require mediation because judges don’t really want to decide your case for you—they’d much rather a couple come to their own terms. If you can’t come to a mutual agreement on your own or with the help of attorneys, a judge will of course make the decisions for you. However, it may be less than what you were hoping for.

What Can Judges Decide?

A court can make a ruling about most anything asked of it in a divorce case. Although not strictly limited to, below are the most typical issues a court will see in a divorce case.

  • Dividing Property. This can be marital property or individually owned property and the outcome ultimately depends on state law.
    • Dividing Debts. This can be anything from loans, credit cards, and any outstanding bills—marital or individual.
    • Assigning Assets. This goes hand in hand with dividing debts and, again, depends on state law. This can be money contained in bank accounts, houses, vehicles, retirement accounts, personal property, or any other item that has value.
  • Child Custody Issues. Easily one of the most heated and controversial issues surrounding divorce cases. Joint, shared, or sole custody decisions will be made according to law if a couple can’t come to a decision on their own regarding a parenting plan.
    • Child Support Issues. Which parent will be the primary custodian?
  • Granting Alimony. Not every state allows room for a judge to grant alimony. For those that do, some have strict guidelines while others give judges great leeway.
  • Granting Protective Orders. This isn’t an extremely common issue, but it does come up when one spouse feels threatened by the other.

How Will Decisions Be Made?

Of course, decisions may not always seem fair and there’s no single outcome set in stone. Judges will make these difficult decisions based on the specific facts of each case based on the laws and precedent of the state.

Since the issues involved are extremely personal, especially when it comes to parenting decisions, most courts prefer to stay out of it and let the couple negotiate on their own. A good strategy?  Negotiate outside of court.  Go to mediation.  Ask for what you want and expect to meet somewhere in the middle.  Leaving it up to a court could leave you with a bare-boned outcome based on legal minimums that may not always seem fair.

Intangible Karaoke: Explaining the Tangibility Requirement of Trademark

A night of karaoke is often just what the doctor ordered to unwind with some friends. You’re probably just like me, having long since realized your voice likely violates some part of the Geneva Conventions and adapted a strategy of songs that require no ability to sing—my go-to is “Baby Got Back.” You probably also constantly wonder about the intellectual property status of karaoke tracks, just like me. Even if you haven’t considered it before, the courts have recently addressed that very issue and in doing so addressed tangibility—a rarely discussed requirement of trademark law. In doing, so they’ve given me an excellent opportunity to share my strange love of intellectual property law by explaining some of the finer points of trademark law.

The case pits Pheonix Entertainment and Slep-Tone, producers and distributors of karaoke accompaniment tracks, against a number of pubs out of Illinois. Slep-Tone argued that the pubs were violating their trademark by making unauthorized copies of their karaoke tracks, then playing them. Slep-Tone argues that, because the karaoke tracks bear their “Sound Choice” trademark on their display screen, karaoke singers are confused into believing they are hearing authentic Slep-Tone karaoke tracks. Thus, Slep-Tone alleges that these pubs have infringed their trademark and trade dress by passing off their unauthorized versions as Slep-Tone tracks.

The court, however, was having none of it and promptly shut down Slep-Tone’s trademark claims. First, because of their lack of tangibility. Second, because of what the lawsuit really is—a copyright lawsuit trying to masquerade as a trademark suit to overstep Slep-Tone’s rights.

Trademark Tangibility

Just to start with the most basic of the basics, a trademark is any word, name, symbol, or device, or any combination thereof, used to identify a person’s good and to distinguish it from those goods manufactured or sold by others. Trade dress is essentially businesses’ recognizable overall image and appearance—commonly found in the context of packaging or the appearance of premises. Trademark or trade dress infringement occurs under federal law where somebody uses a registered trademark without permission in a way that confuses the average consumer as to source or sponsorship. State law can sometimes expand this protection where a mark or trade dress is not registered, but Slep-Tone had long registered both its mark and dress.

In most cases, a trademark infringement claim will hinge on the strength and validity of the mark as well as whether consumers were actually confused. In this case, the focus was on whether a karaoke track is a good such that it could be protected by a trademark in the first place.

Case law has established that it is a consumer’s confusion about the source of a tangible good sold in the marketplace by a defendant accused of infringement that gives rise to a claim of trademark infringement.  The pubs didn’t sell anything, they just played the unauthorized tracks.  The only thing that a consumer might interact with is the intangible content of the karaoke tracks, not the physical discs the tracks come on.  When a customer hears a song, they at most think that the music on the track is from Slep-Tone—which it is.  There’s no confusion about the tangible good the track is on, so there cannot be trademark infringement.

Some non-tangible things, such as a plumbing service, can have their brand protected by something called a service mark. However, that didn’t apply to Slep-Tone’s products and they had no service marks to protect.

I should also clarify that just because a good is digital does not mean it isn’t a tangible good. From iTunes tracks to Kindle Books, many digital products are sold in manner that qualifies them as a tangible good.  However, the bars that are being sued aren’t selling copies of the karaoke tracks. They also aren’t showing their patrons the digital files of the tracks and passing them off as their own. While somebody picking a karaoke track would see Slep-Tone’s Sound Choice trademark as they select their track through the display component of the karaoke tracks, this wouldn’t confuse them as to source of the actual tangible good here the physical discs containing Slep-Tone’s tracks.

Trying to Trade Trademarks with Copyright

It’s not surprising that Slep-Tone’s claim has such a tortured fit to trademark. To be frank, Slep-Tone is essentially trying to use trademark to bring what amounts to a copyright claim for infringement through derivative works. Attempts to use trade mark and trade dress to essentially duplicate copyright protection have become more frequent in recent years—even the lawsuit discussed here is only one of over 150 identical suits brought by Slep-Tone. This is no surprise because, while Slep-Tone does own a trademark, they do not own a copyright on any of the works that are on their karaoke tracks. Were one of these lawsuits ever successful, the precedent it set would be a serious problem as trademark is an intellectual property tool with essentially unlimited duration. Copyright, while congressional extensions may seem to make the duration unlimited, has defined limits on how long it can last.

Beyond the scope of protection issues, trademark and copyright also serve very different goals. The aim of copyright is primarily to promote creativity by offering a reward to those who create new works. Trademark, on the other hand, is aimed not at promoting creativity and invention but instead it is a commercial tool to ensure fair competition by preventing deceptive use of source identifying marks.

Copyright certainly protects against unauthorized reproductions and performances of a protected work. If Slep-Tone owned any copyrights they would have a heck of a case.  However, they own no copyrights and have instead attempted to overreach the bounds of their trademark.  Copyright and trademark each have their own body of law for a reason.  If trademark is allowed to bleed into the realm of copyright law, the unending duration of the protection on trademark will consume copyright whole and expand the protections of a trademark far beyond the appropriate bounds. Fortunately, Slep-Tone has been shut down here.  Here’s hoping they get shut down in their other 149 plus cases.

An Appeal to Skeptics of the Recreational Marijuana Initiatives

Voters in Arizona, California, Maine, Massachusetts, and Nevada have already begun voting on whether to join Alaska, Colorado, the District of Columbia, Oregon, and Washington in legalizing marijuana for recreational use. These initiatives have combined the opposition in a group of odd bedfellows. Conservatives and Libertarians are rallying against these propositions and questions for vastly different reasons. Conservatives uphold the dangerousness of drugs and the crime they accompany. Libertarians say the initiatives do not go far enough and instead create more oppressive government while asserting to expand individual freedom. I make an appeal to these two groups to support the initiatives.

To Conservatives

Since at least the 1950s, drug prohibition has been a hallmark of conservative politics. This was only strengthened in the 1980s when President Reagan declared drugs a matter of national security. The prohibition on drugs has not worked. This is not surprising as the US has tested prohibition before and it didn’t go well then either. In fact, the current drug prohibition has the same destructive problems alcohol prohibition had in the 1920s and 1930s. The free market is another hallmark of conservative politics and it tells an important lesson about prohibitions. Finally, if conservatives are concerned about safety and the use of marijuana, wouldn’t it be better for it to be regulated rather than done on the black market?

Alcohol Prohibition: Scofflaws, Gangsters, and Death

National prohibition of alcohol was supposed to protect the American people from the purported scourge of alcohol. Instead, it created a nation of people who either openly, or behind closed doors, flouted the law. At the time, they were called “scofflaws.” Not only did it make every-day people into law breakers, but it made gangsters into billionaires almost overnight. Legitimate liquor stores were forcibly closed by government agents. Instead of stopping the flow of alcohol, as intended, the supply simply moved to the black market. 

Further, it prevented any sort of purity and health regulation upon alcohol. Whole new diseases in the US emerged overnight from Americans drinking adulterated bootleg alcohol. This bootleg alcohol was frequently made with dangerous chemicals including wood alcohol, that we now use as hand sanitizer. In 1933, the US finally reversed this course after realizing prohibition did not stop alcohol, it created scofflaws, enriched gangsters, and made Americans sicker.

These same issues are present in modern drug prohibition. According to the National Institute of Health, 22.2 Million every-day Americans use marijuana. In the current state of US law, every single one of these Americans are law breakers. Even in states that currently allow marijuana use, federal law still reigns supreme and confers this status upon these Americans. Just as Prohibition in the twenties made gangsters like Al Capone and Lucky Luciano into multimillionaires, the current drug prohibition has made drug cartels and street gangs into billionaires.

Drug prohibition has not made America safer either. Many innocent Americans are killed by street gangs defending drug territory and by law enforcement tackling drug trafficking. Drug users are not safer either as adulteration of street drugs, including marijuana, is common. The substance that is available to a marijuana user cannot be certified for purity or safety and is left completely up to the black market. Modern prohibition has failed just as it did back in the twenties.

The Free Market

Conservatives have long advocated for free markets. A basic tenant of free market economics is that demand drives the market. Demand is what shapes the market. With 22.2 million Americans consuming marijuana, there is clearly demand. Another tenant of free market economics is that supply will always rise to meet demand. This was proven in the twenties with prohibition and continues to be true with drug prohibition. If one accepts these tenants, one accepts that government, no matter the intensity of coercion applied, cannot stop drugs from entering the market. If this is accepted as true, perhaps it is wise to allow drugs but instead tax and regulate them to ensure their purity and to ensure that consumers have recourse against merchants who rip them off.

To Libertarians

Libertarians have long maintained drug legalization as an important policy pursuant to an individual’s freedom to choose what they consume. One would then think these new initiatives would be a boon for libertarians. However, the libertarian party is actually opposed to some of these initiatives. This comes from the fact that, while the initiatives legalize marijuana for recreational use at the state level, many of them also introduce harsh regulatory and tax regimes around them. I would appeal that libertarians not allow the perfect to be the enemy of the good in this situation.

There seems to be little appetite for a complete legalization and deregulation of marijuana in American society as of now. Even substances viewed as an unshakable part of American culture, such as alcohol, remain widely regulated despite being legal to possess and consume. A regulated and taxed legalization program, such as these initiatives, would move towards normalization of marijuana and away from the Reefer Madness viewpoint that currently pervades the thinking of some groups.

In Conclusion

As Americans fill in their ballots whether by mail or in the polling booth, I appeal to conservatives and libertarians to consider supporting these initiatives. To conservatives, consider this an opportunity to protect Americans from the issues caused by prohibition and to allow government and legitimate businesses to profit rather than gangsters. To libertarians, don’t let the perfect be the enemy of the good; consider these initiatives as a step towards a goal rather than a roadblock to perfection.



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