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In re Cellco / Verizon (USA v. ASCAP): Behind the District Court Ruling that Customer Use of Ringtones Does Not Constitute a Public Performance

Cell phone customers can download ringtones from the Internet or their cell phone service provider, such as VerizonOn October 14, Judge Denise Cote of the Southern District of New York ruled that a cell phone service provider does not need a public performance license when it provides ringtones to its customers. The Copyright Act provides the owners of musical compositions are entitled to license fees when their works are “publicly” performed. However, Judge Cote held that because each download of a ringtone is only received by a single customer, the transmission of the download cannot be considered a public performance. Cell phone customer playbacks of ringtones are also not public performances because they are typically only heard by the small circle of people near the phone user and are not performed for money. No one sells tickets so people can hear her phone ring!

How this case began

Cell phone customers can download ringtones from the Internet or their cell phone service provider, such as Verizon. When Verizon sells ringtones, it sends a digital file containing the ringtone which is downloaded onto the customer’s phone. A customer can listen to the ringtone by clicking on the digital file, or the customer can set up her phone to play the ringtone when she receives an incoming call. After downloading, Verizon’s only role in playing the ringtone is to send a signal to the customer’s phone to indicate an incoming call. That signal is the same regardless of the ringtone that is played. While Verizon receives a fee from the original download of the ringtone, it does not receive fees when the ringtone is played.

The Copyright Act treats sound recordings separately from the compositions on which they are based. Under the Act, copyright holders of musical compositions have six exclusive rights, including: (1) the right to reproduce the composition, (2) the right to prepare derivative works, based on the composition — e.g., sound recordings, (3) the right to distribute copies of the composition to the public, (4) the right to perform that composition publicly and two other rights not at issue here. 17 U.S.C. § 106. Copyright holders often license these individual rights separately.

Under a prior ruling, Verizon already pays a royalty of 24 cents per ringtone download to copyright holders of musical compositions for the reproduction and distribution rights to their works (rights (1) and (3) in the list above).

ASCAP negotiates the public performance rights for musical compositions — right (4) in the list above. In January 2009, Verizon filed this action to determine the reasonable license fee it should pay ASCAP for the performance rights for the ringtones. ASCAP contended that Verizon was liable for performance rights royalties for each download of a ringtone to a customer phone, and for each time a customer played a ringtone on his/her phone. District Court Judge Cote disagreed.

Ringtone Downloads Are Not Public Performances

Under Section 106(4) of the Copyright Act, a composition is only entitled to performance license fees when its is performed “publicly.” A composition is considered to have been performed publicly either if it is performed in a public place “where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” (e.g., a concert), or if it is “transmitted” to the public via some device for its enjoyment (e.g., on the radio or Internet). 17 U.S.C. § 101. Public performances are exempt, if they are given “without any purpose of . . . commercial advantage and without payment of any fee . . . for the performance” — as long as there is no admission charge. 17 U.S.C. § 110(4) (e.g., a free concert).

Hotel Safety for the Weary Traveler and a Reminder for the Rest of Us

Hotel Safety for the Weary Traveler and a Reminder for the Rest of Us1“I’m sorry. We can’t tell you that”. Those seven words might have prevented TV personality Erin Andrews from the humiliation of nude videos going viral online.

Andrews, for anyone living under a rock, was the TV personality who gained fame and fortune when the Nashville Marriott at Vanderbilt University failed to use those words, or common sense, when Michael David Barrett asked what room the celebrity was occupying.

The hotel failed to keep Andrews safe and has paid dearly.

But the videotaping, and subsequent lawsuit, has gotten others to thinking about the level of security hotels are required to have and what is a hotel’s obligation to its guest’s safety.

With the public fuss about “air travelers” rights, it is easy to overlook the fact that travelers face problems in places other than airlines.

Many travelers are wondering “What are my rights in a hotel?”

The short answer: There are no national standards, but a traveler does have the normal rights under general contract and tort law. Most states have “innkeepers” regulations that relate.

Legislation and Regulation

There are no federal hotel requirements, for hotels, as there are consumer protections on airlines. Also, there aren’t any federal consumer protection standards. Governing law is a mixture of general contract and tort law — and even some of that goes back to English Common Law and innkeeper rules.

The federal government has limited involvement in the relationships between hotels and guests.

Title 42 of the US Code makes prohibited discrimination under the Civil Rights Act of 1964 applicable to any inn, hotel or motel.

Hotels are required to meet the mandates of the Americans with Disabilities Act (ADA)

The Hotel Fire Safety Act of 1990 imposes additional safety requirements upon hotels above and beyond what is found in local building codes.

New York, like most states, defers to the federal guidelines. New York General Business Law #202 lays out some of the slight differences between state and federal regulations.

Security

Hotels are responsible for providing adequate standards of guest safety. In “legal terms”, that means a duty of care standard which translates into making sure doors are secure and monitored where appropriate.

The hotel is also required to keep the room number confidential and make sure that all window and door locks work properly.

Most hotels are now using full-time surveillance cameras throughout public areas, but the cameras are not mandated in many regions. If a lodge is in an acknowledged undesirable area, then the hotel administration has a responsibility to tell guests.

The overall idea of inadequate security is the hotel’s management failed to display a security awareness or an understanding. A hotel is in the business of providing a safe living environment for people; however, the hotel’s chief concern is usually protecting property, not people.

Personal Property

Hotels are responsible for damage, loss or theft of personal property in a guestroom. However, most hotels guarantee the safety only if it is left in a hotel’s safe which the hotel must produce to bypass in-room liability.

 Although many hotels post “not responsible for loss or damage to personal property” notices, those don’t reduce the hotel’s liability.

Harm or Damage Caused by Third Persons

Here’s the caveat which tripped up the hotel in Andrew’s case.

Hotels have a duty to exercise reasonable care fo the safety and security of their guests. The hotel must protect both guests and employees from the criminal acts of third parties. A greater burden of protection is placed upon hotels than upon landlords. However, the law varies from state to state. Most states have said that hotels are not liable for third-party crimes unless negligence in reasonably protecting guests from harm.

Today, people are traveling solo like never before. It doesn’t matter if the trip is for business or pleasure, accommodations must be chosen wisely. Hotels do (mostly) provide for their security and tend to do everything they can to keep guests safe.

It’s still up to the traveler to use common sense and take reasonable precautions.

New York City Enacts Anti-Discrimination Rules for Locker Rooms and Rest Rooms

New York City Enacts Anti-Discrimination Rules for Locker Rooms and Rest RoomsBeginning Monday, persons touring the city can access bathrooms, and locker rooms, that are in line with their sexual identification.

The city’s mayor, Bill de Blasio, signed the order which ensures people entrance to single-gender lavatories at city buildings such as offices, swimming spaces, and rec centers. The move, which comes in the middle an ongoing national discussion over anti-intolerance regulations, also eliminates the need to present any evidence of gender such as an ID card or diver’s license.

“Access to lavatories and additional single-gender toilet is a basic right that won’t be limited to any person, de Blasio said. “We have pretty transparent New York standards, and we will fight for them.”

The executive order applies to all city structures and doesn’t require offices to build distinct single-stall facilities. Instead, the rule demands that all persons, including those, are transgender, are at liberty to use single-gender restrooms compatible with their chosen identity.

New York City’s city schools are excluded from the order as there is a procedure already in place that pupils must be permitted to use bathroom or restrooms in line with their sexual identity. New York’s city council is reviewing a bill that would demand publicly accessible, single-occupancy bathrooms in  to be assigned as sex-neutral.

New York City officials say there are an estimated 25,000 transgender people living in the city which will benefit from the executive order which instantly went into force.

Almost all of the country’s 20 largest municipalities have town or regional nondiscrimination regulations that permit transgendered people to access any bathroom with which they identify. Houston voters overturned an law last fall that would have placed safeguards for gay and transgender people. South Dakota’s governor recently refused a proposal that would have meant the state becoming the initial one in the nation to pass a law compelling transgender pupils to use facilities which correspond with their gender at birth.

 

Belajar Grafik Trading Binomo; Apakah Sesulit yang Dibayangkan?

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Belajar Grafik Trading Binomo; Apakah Sesulit yang Dibayangkan?

Belajar grafik trading Binomo adalah sepak-terjang lebih lanjut daripada sesi belajar sintesis tentang trading. Binomo memberikan ruang yang sangat luas menurut mereka yang ingin belajar trading secara bertahap. Dengan tahapan-tahapan yang ada, trader dapat belajar secara maksimal. Selain mencari ilmu teori, tentu berlatih grafik adalah tingkat yang harus dikerjakan di kemudian tarikh.

Begini Cara Belajar Grafik Trading Binomo

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Google Sued For Illegally Scanning Emails

Google shued forSeveral students and alumni from the University of California-Berkeley have filed a lawsuit against Google in federal court, alleging it illegally intercepted and scanned university emails for the purpose of advertising purposes. Google’s Gmail service is used by millions of students at colleges and universities across the nation.

The students allege that Google misled Berkeley and other universities into believing that their Gmail accounts would not be scanned for commercial uses. The academic institutions in turn assured the students and staff that it was safe to use Gmail. But it was discovered that Google was scanning and reading emails to target advertisement to students until the end of April, 2014. Soon after, Google announced that it had permanently stopped the practice of scanning emails for advertisement. The plaintiffs state that Google has acknowledged that it used information from student emails to target ads. The lawsuit is asking the company to delete all information derived from the scanned emails and to also pay damages. Under current law, the plaintiffs could collect $100 a day depending on when the law was broken or receive a lump sum of $10,000, whichever number is greater.

This lawsuit highlights what companies like Google have the potential of doing. The public has very little idea what information is being scanned by Google or other email providers. There is a growing suspicion that Google has not always been transparent about its actions as the company has rarely been held accountable for its past transgressions. In fact, this type of snooping by Google goes far beyond just looking for ads for advertisement- it could be that Google is actually acting as an intelligence agency and even working in close collaboration with other groups.

Unfortunately this is not the first time that Google has been involved in misusing student data for commercial gain.

Advocates for student privacy say that students need to be more educated about email providers  and refrain from storing any personal or other sensitive material on their email boxes. So far Google has refrained from making any statements regarding the present lawsuit.

Ray Gallo, the plaintiff’s lawyer involved in the present lawsuit has used archived web pages to determine what each of the colleges and universities were saying to students about the privacy of their emails between 2010-2014. And so far his team has found that 11 schools which had stated that to the students that their emails provided by Google would not be scanned for the purposes of advertisement.

It is not known how Google plans to fight this case, but an out of court settlement is not a bad option and it would not make any dent in its profits.

 

More legal troubles for Chipotle

 

As if the lawsuits following the food poisoning were not enough, Chipotle Mexican Grill is now in more legal trouble. This time it is to do with several sex discrimination charges in Cincinnati.

Several former female managers have just filed suit against this fast food restaurant chain on allegations that they were wrongly terminated by a former manager who favored male general managers rather females. They claim that this occurred despite the fact that the three women in question had received similar or better performance evaluations. One of the female managers claims that the company violated the Federal Family and Medical Leave Act.

The trial is set to begin on Monday when both parties will offer opening statements to the jury on whether the three employees were wrongly terminated based on their gender.

Sex discrimination as defined by The U.S. Equal Employment Opportunity Commission as an act that “involves treating someone (an applicant or employee) unfavorably because of that person’s sex. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.”

The plaintiff’s attorney, Randy Freking has alleged that Chipotle Mexican Grill Manager, Herman Mobbs, was a racist who was demeaning to women and often ridiculed them by calling them “overweight” and “too emotional.” On the other hand, the defendants charge that these plaintiffs were simply disgruntled workers with a poor performance record and did not take their job seriously.

This case goes back at least 5 years when the three women worked as general managers for the Chipotle Mexican Grill Fast food stores in Cincinnati. Court documents indicate that Mobbs would visit the stores and was initially very impressed. Yet, all three of the female general managers were replaced by male employees. In one case, there was retaliation by Mobbs when the female manager took maternity leave under the Family and Medical Leave Act. The Chipotle lawyer, Kate Mowry, has stated that all three women were terminated based solely on work performance and not their gender. She has stated that Mobbs hired and fired both female and male employees.

The case is expected to last 2 weeks. Proving job discrimination in this case will be difficult especially because the manager, Mobbs, frequently hired and fired both genders. Overall success rate for such cases in Federal court is very low for plaintiffs.

 

 

Heartland Data Breach: Handicapping the Financial Institutions’ Suit In Light of Recent Class Actions

Heartland Data Breach: Handicapping the Financial Institutions' Suit In Light of Recent Class ActionsFinancial institutions face an uncertain legal environment when they attempt to obtain reimbursement for losses associated with a data breach at a credit card processor. When a data breach at a credit card processor or large merchant occurs, financial institutions are often out millions of dollars associated with cancelling and reissuing customer credit cards and covering losses from unauthorized use of cards. No federal law directly addresses this situation, so financial institutions are left to the vagaries of state law. However, state laws create major obstacles to recovery.

Many of these obstacles are caused by the fact that the financial institution has no direct contractual relationship with the credit card processor. Credit card transactions involve four players. (1) a bank, which enters into an agreement with a corporation that operates a credit card payment system, such as Visa, that permits the bank to issue Visa credit cards to its customers, (2) the consumer, uses the credit card, (3) a credit card processor, which enters into agreements with merchants to process their Visa credit card transactions, and (4) the merchant.

In a typical purchase transaction, the merchant’s computer scanners read the cardholder information contained on the magnetic stripe on the credit card, as it is swiped through a terminal at checkout. The merchant sends this information through the Visa network to the bank. The bank reviews the card, and assuming it is valid and has sufficient credit, authorizes the transaction. The merchant completes the transaction and notifies the processor, which pays the merchant. The processor then notifies the bank, which pays the processor and charges the Consumer. See, generally, Sovereign Bank v. BJ’s Wholesale Club, Inc., 3rd Cir., No. 06-3405 (July 16, 2008).

While the processor and the bank interact, they generally have no written contractual agreement between them. The lack of a contractual relationship is the source of one of several problems when a bank seeks recovery from a processor data breach.

For example, a class action was recently filed on behalf of banks who incurred losses from the date breach at credit card processor Heartland Payment Systems, Inc. In re Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, S.D. Tex, No. 4:09-md-02046. The complaint attempts to recover on breach of contract, breach of implied contract, negligence, negligence per se, negligent and intentional misrepresentation, and a number of state unfair business practice statutes. However a number of these theories has faced rough sledding in previous data breach class actions by financial institutions:

Breach of contract under a third-party beneficiary theory

A person that is not a party to a contract can still sue for breach of the contract if it can show that it was the “intended beneficiary” of the contract. Some banks have attempted to recover losses under the theory that they are the third-party beneficiaries of the contracts between the processor and the credit card company. For example, in Sovereign Bank v. BJ’s Wholesale Club, the plaintiff banks claimed that they were the intended third-party beneficiaries of the contract between the processor and Visa, because a memorandum accompanying the relevant security provisions in the contract stated that their purpose was “to protect the Visa system and [the Banks] from potential fraud exposure . . . .” The 3rd Circuit held that this memo and other evidence, was sufficient for a jury to find that the banks were intended beneficiaries of the processor’s contract with Visa.

However, this theory did not work in a subsequent data breach case brought by financial institutions — In re TJX. By the time that suit was brought, Visa had changed its processor agreement to expressly exclude third-party beneficiaries. As a result, the banks were not able to recover under this theory. In re TJX Companies Security Breach Litigation, 524 F.Supp.2d 83 (D. Mass. 2007).

HOA rules ban ‘For Sale’ signs

When Denise Hicks decided to sell her Lebanon home, she put a for sale sign in the front yard.A few days later she got a letter from the Home Owners Association warning her to take it down or risk being fined.

According to the Spence Creek HOA, for sale and rent signs are prohibited. So are advertising flyers and posters and billboards of any kind.

Hicks contracted with long time real estate agent Faye Watson to sell her home.Watson put her Coldwell Banker signs in the front windows of the home. They are very hard to see, and both women say the HOA rule makes marketing a home in Spence Creek difficult.

While Hicks cannot post a sign on her front yard, her entire neighborhood is filled with CENTEX signs. Some say sold, others say available.

Hicks says if she can’t post a for sale sign, the builder shouldn’t be allowed to either.

Both Hicks and Watson say the home builder doesn’t want any competition for the remaining available homes.But a VP with Centex tells me that it has nothing to do with competition for home sales.

David Webster says it is about maintaining an orderly streetscape which will ultimately help maintain the value of the homes.

The Centex official says when the builder leaves the community, the HOA and the residents can vote to do away with this provision if they choose to do so.

Hicks says she realizes she signed this document, but she still thinks it is not fair.

Kathy Sutherland is the VP of the Community Association Division for the Ghertner Co. that runs the SPENCE CREEK HOA.

Sutherland says:

“I don’t know if it is a question of fairness. It is a community Association, (HOA). The HOA is created by an entity, called the Declarant.”

Sutherland will go on to tell me that Centex is the Declarant which establishes the community’s boundaries and other basics in the subdivision.

According to Sutherland, “Anyone who purchases there, by virtue of their purchase, bys into that and will submit to what it says, even if they have not read it. One of the issues is signs. It says it can be placed in the windows. The Declaring has a lot of latitude to put up their own signs, because they want to sell the lots. Centex can keep commercial vehicles on site or put up signs in early stages that will not be permitted by home owners.”

Sutherland tells me that the Architectural Standards could be amended by the governing board, once Centex leaves the community.

US Government’s CPSC set to announce massive crib recall

The US Government’s Consumer Product Safety Commission plans to announce on Tuesday an expansive recall on cribs with dropdown sides.

Both CBS News and ABC News in the U.S. have learned that the Consumer Product Safety Commission (CPSC), an independent federal agency, will announce a recall on cribs with dropdown sides in what could be the largest crib recall in U.S. history.

A report issued by Consumer Correspondent Susan Koeppen on CBS’s “Early Show” indicated that there has been a strong push to ban cribs with dropdown sides. The report highlighted 10-month-old Tyler Jonathon who died from strangulation when his head became stuck between the side rail and headboard while sleeping.

“That’s every parent’s safe-haven for their child, and to see the horrific site of him strangled … was just horrifying to me,” said Michele Witte, Tyler’s mother, to Koeppen.

While it’s currently not known exactly which cribs will be recalled Tuesday, expectations are that the recall will be broad-ranging. There have been recalls in the past of such cribs due to the danger of “infant entrapment and suffocation.”

In 2008, crib maker Delta Enterprises voluntarily recalled over 1.5 million cribs with dropdown sides after it was found that safety pegs had the potential to become faulty. The cribs were attributed to the death of two infants.

Inez Tenenbaum, head of the CPSC, said that the CPSC has been “relying on voluntary standards” for crib safety but believes it’s “no longer enough.”

“We will now be writing … federal regulations that are mandatory for cribs,” said Tenenbaum.

For more information about the recall, visit the CPSC Web site on Tuesday.

Swartz v. Doe: Tennessee Ruling Provides Clarity on Showing Needed to Uncover Identity of Anonymous Blogger in Defamation/Privacy Case

https://www.nylitigationfirm.com/swartz-v-doe-tennessee-ruling-provides-clarity-on-showing-needed-to-uncover/A Tennessee trial court adopted a version of the “heavy” Dendrite standard for permitting discovery of the identity of the anonymous poster of an allegedly defamatory blog. However, as interpreted by the trial court, this standard was not insuperable, and resulted in an order that the plaintiffs were entitled to discovery of the identity and personal information of the blogger.

The plaintiffs in the case (Swartz v. Doe, Sixth Circuit Court for Davidson County, Tenn., No. 08C-431), Donald and Terry Swartz, are residents of Old Hickory, Tennessee, and are involved in widely varied businesses, including rehabilitation and sale of real estate and operation of recovery facilities for substance abusers. (It seems likely that the businesses are related. Perhaps the Swartzs convert the buildings they rehabilitate into recovery centers)

The main defendant in the case, John Doe #1, is the author of a blog entitled “Stop Schwartz”, located a https://stopschwartz.blogspot.com. The blog allegedly accused the Swartzs of arson, improper management of rehabilitation facilities, exploitation of recovering substance abusers, inferior construction work, etc. Perhaps Doe #1 is a neighbor of some of the Swartz properties and doesn’t like addicts being moved into buildings on his block. (Note: the blog was still up as of October 30, 2009, but the allegedly offensive posts had long been removed and no entries had been posted for several months).

The Swartzs filed suit in 2008 against Doe #1. They then issued subpoenas to Google seeking to discover his name and address. Google sent a notice to the blogger stating that it would comply with the subpoena unless he filed a motion to quash the subpoena within 3 weeks. Doe #1 then hired a lawyer who filed the motion to quash. A year later, Judge Thomas Brothers of Davidson County issued his final ruling on this motion to quash, as well as on a related motion to dismiss.

Judge Brothers began by noting the important role that anonymous speech has had throughout history. However, he stated that “internet anonymous speech is not entitled to absolute protection.” Rather, “the free speech interest of the Defendant must be balanced with the reputation and privacy interests of the Plaintiffs.”

He then reviewed the variety of standards applied by courts today for revealing the identity of anonymous bloggers. Finding that “a growing number of courts have begun to follow the standard” in Dendrite International, Inc. v. John Doe, 775 A.2d 456, 760-61 (N.J. Super. Ct. App. Div. 2001), Judge Brothers stated his intention to follow this test. Under the Dendritetest, a plaintiff must: (i) attempt to notify the anonymous blogger that he is the subject of a discovery procedure, (ii) give the blogger a reasonable time to oppose this discovery, (iii) identify the exact statements by the blogger that give rise to his claim, (iv) make a prima facia or substantial showing for each element of each cause of action, and (v) if the plaintiff establishes these elements, the court must the balance the First Amendment interests of the defendant against the strength of the plaintiff’s case and the plaintiff’s need for the disclosure to proceed on his claims.