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Top 10 Tech Legal Issues for 2015- Part 2

Wednesday, December 31st, 2014

We’ve looked into the future, and at the first 5 legal issues in technology and entertainment law that we think will be big in 2015.  Now it’s time to round out the rest of the top 10 just in time to ring in the new year.

   6.Copyright

If the numerous Congressional hearings about copyright reform are any indication, copyright will loom large in 2015.  As we all are well aware, the current copyright law doesn’t always provide clear solutions in today’s fast-moving technological environment, and this uncertainty has led to calls for reform.  It will be interesting to see whether these changes come in the new year, and what the new reforms may bring.  If you want to get an idea, check out the recently released update to the Copyright Compendium over at the Copyright Office’s website over at www.copyright.gov.

   7.Online payments

Online payments have been a hot topic in 2014, particularly with the introduction of ApplePay as a feature on the iPhone 6.  From Google Wallet to ApplePay to changes in credit card technology, payment technologies look to continue to develop , as well as make the news in 2015.  There is a lot of potential for the growth of sales on smart phones, but the numerous hacking incidents this year illuminate the very real risk of identity theft if these technologies were to be hacked.  Regulators will also be watching the development of these technologies, and likely looking to introduce laws to help try to protect consumers using these devices, but as with many new technologies, the onus will initially be on the operators of these technologies to keep consumer information safe.

   8.Online threats

From Gamergate to the case that came before the Supreme Court this term that had Chief Justice John Roberts quoting Eminem lyrics, 2014 featured a lot of discussion of whether the First Amendment protects threats posted by people against others online.  While trolls seem to be as inherent to the internet as baseball and apple pie are to Americana, the serious and frightening threats that some Gamergate targets received (and ultimately caused them to leave their homes for fear of attack) are raising questions as to whether there should be repercussions for posting such threats.  The Supreme Court’s decision in 2015 should certainly shed light on the issue, but in this writer’s estimation will hardly be the last word on the matter.

   9. Hacking

It almost goes without saying that hacking will keep its lofty perch as one of the top issues in technology and entertainment law in 2015.  As the fallout from the Sony Pictures hack continues, and big companies like Target and Home Depot work to recover from their data breaches earlier in the year, companies and consumers alike will continue to be concerned about the security of their data, and looking for solutions to protect themselves from hackers.

    10. Royalties for Online Music

Taylor Swift made big headlines in 2014 for pulling her music off of the online music service Spotify in favor of selling it at Target, and through other online music outlets.  This move highlighted the very real tension between artists and streaming music services over the matter of how much artists are paid for having their music played, which can in some instances be far less than one would imagine millions of plays would generate.  In addition, as several lawsuits are pending over similar issues being litigated by the performing rights organizations, as well as satellite radio stations, it appears that we will see even more developments related to how much artists are paid for having their music played online in the new year. 

So that’s our list for hot issues in technology and entertainment law in 2015.  Now it’s time to wind down the new year here in the U.S.  Wishing you a safe and happy new year.  Cheers!

Top 10 Tech Legal Trends to Watch for 2015- Part 1

Tuesday, December 30th, 2014

2014 is rapidly drawing to a close, and it’s time to look to what the new year will likely hold in terms of trends in technology and entertainment law. Here’s the first installment of issues that I think will be trending in these areas of law, or in some cases will continue to be trends in 2015:

1. Privacy.

From the data breaches at Target, Home Depot and other major retailers this year to the current Sony Pictures hacking scandal, data privacy will continue to be a big issue for companies and consumers in 2015. Look for lawmakers to try to find solutions in both federal and state law, and for consumers to continue to find better ways to protect their data.

2. gTLDs.

Speaking of hacking, it was revealed this week that the Internet Company for Assigned Names and Numbers itself had been a victim to the efforts of hackers. As you may have seen this year, a major issue for brand owners was the roll out of the new generic top level domain (gTLD) program. While recent years have involved a lot of crystal ball gazing to see what the future might hold as these new domains are introduced, this year actually saw many of them being introduced. In addition, the disputes over domains that were in contention by more than one party have largely been resolved through auctions, so there will be more new gTLDs than ever being introduced. Though it will be interesting to see how the .press and other domains are used by businesses and brand owners, I think I’m most anxious to see what results from the introduction of my favorite new gTLD, which is .sucks. .enjoy!

3. Projects using real life people

Among the many issues related to the ongoing international crisis that is the Sony Pictures hacking situation is that of the potential consequences of using the identities or personas of real people in fictional works. Right of publicity issues have taken on greater importance in recent years, and 2014 was certainly no exception, with the ramifications of former UCLA basketball player Ed O’Bannon’s antitrust lawsuit against the NCAA for its use of not only his likeness in television broadcasts and video games, but those of potentially thousands of other NCAA athletes looming large on the future of the organization. While these works can be defended on the grounds of parody or fair use, it’s important to keep in mind that if you are at a point where you are discussing these defenses, it likely means you are trying to ward off a lawsuit, or have already been threatened with one. While these situations are typically fact and personality specific as to the potential consequences, it is definitely advised that creators seek the advice of counsel before pursuing the use of the names, likenesses, voices or other identifying characteristics of real life people in commercial projects.

4. CalOPPA

Speaking of real life people, like many states, California regulators have been increasingly concerned about the privacy of its residents online. California implemented the law known as the California Online Privacy Protection Act, or CalOPPA in 2003, and has been making headlines in its efforts to enforce the law, which among other things requires app and website operators to conspicuously post privacy policies on apps and websites. While I understand that design is an important aspect of the work that app and web designers do, I would recommend that designers start finding ways to make the conspicuous of privacy policies and terms of service part of the design plan as a way to keep themselves and their clients in compliance with CalOPPPA and other regulations. In addition, the recent amendments to CalOPPA that are going into effect on January 1, 2015, call for website operators to implement a ‘delete button’ feature that will require them to implement mechanisms that would allow minors to request that their information be deleted from the site, as well as provide minors with notice of this ability to delete online content and instructions on how to do so. Yet another amendment prohibits operators from marketing certain categories of products or services to minors online. Amendments like these highlight the importance of treating a website’s privacy policy and terms of service as living documents that must be tended to and updated as laws change.

5. Kids’ privacy

And to round out the top 5, we’re back to privacy. While it may seem like splitting hairs to some, to parents and regulators, the privacy of children in the internet is a whole separate area of concern. In addition to the changes coming as part of CalOPPA, it is likely that the Federal Trade Commission (FTC) will continue to monitor apps and websites for COPPA compliance, as well as amend the law to better protect children online. It is also likely that companies like Facebook will continue to lobby for the loosening of COPPA and similar regulations in favor of letting companies develop their own mechanisms for protecting children online. Recent FTC settlements with TinyCo and Yelp over COPPA violations illuminated areas of concern for the agency, which primarily focused on the collection and handling of data gathered by apps targeted at children. In the case of Yelp, the FTC noted that while the site had the proper COPPA mechanisms in place on its full website, it was the lack of such a mechanism on the site’s mobile app that brought the attention of the agency.

What other issues do you think will be big in 2015? We’ll be listing the rest of the top 10 tomorrow, and as always welcome your insights.

New Books, Stage Collapses and Milestones, Oh My!

Saturday, September 17th, 2011

Howdy folks, sorry to have fallen off the blogging wagon for a while there.  The last few months have been pretty hectic with a move to an in-house position with a technology company in Orlando and all the fun that comes with moving and getting settled.  But things are settling down, and I’m hoping to get back to posting on a more regular basis.

To start, I am proud to announce the publication of a book that I contributed a chapter to, The American Bar Association’s Legal Guide to Video Game Development.The American Bar Association's Legal Guide to Video Game Development

I contributed chapter 2, which is about business and finance issues to consider when starting a video game company.  I am really excited that it is out, and want to thank my colleague Ross Dannenberg, who edited the book, for the opportunity to take part in the project.  Ross also is one of the principal authors of the blog Patent Arcade, which covers video game IP law, I encourage you to check it out.

Also, in the midst of all that has been going on, I missed celebrating the two year birthaversary of my firm, can’t believe how fast the time has gone.  I’m looking forward to another year of working with creative and interesting clients.

Next, in light of all the scary stage collapse stories in the news in recent months, I wanted to take some time to talk about stage riders.  @catherinereach had inquired about them in response to a tweet I had posted about the unfortunate stage collapse and resulting deaths at the Pukkelpop festival earlier this month, and whether safety requirements are typically part of the contracts bands sign.  The answer is typically yes, though it depends on the level of festival or event involved, as well as the sophistication of the parties.  As you can see in Metallica’s rider for their 2004 tour, there is a provision on page 9 giving the band the right to cancel their performance in the event that they feel the band or fans would be subject to bodily injury.  It also calls for the party booking the band to provide general liability insurance, and abide by applicable health and safety regulations.   Now a bigger band like Metallica will have a crew traveling with them to handle matters like the rigging of lights and sound, which provides them with some means of protecting against disaster, but as Warped Tour creator Kevin Lyman noted in a recent interview with Alternative Press, there is nothing you can do to completely safeguard a festival.  It’s an interesting read, as is this article published by The Hollywood Reporter on the recent festival disasters.  It provides an interesting perspective on the infamous Van Halen rider request that no brown M&Ms be placed in their dressing room.  This request was included, as many rider requests are, to ensure that the promoter had read the contract and complied with its requirements, including following the safety requirements for setting up the stage.  The best bet for a band is to ensure that stage safety requirements are set out in its rider, and that the contract calls for the promoter to have adequate insurance in the event of an accident.  But even with a contract in place, don’t forget to trust your instincts as well.  It has been reported that a last minute decision by Sugarland’s tour manager to keep the band from going on stage may have made the difference in preventing the band from being harmed in the Indiana State Fair stage collapse.  So, to sum it up, get your requirements in writing and trust your instincts when it comes to stage safety.

And finally, speaking of festivals, do check out Fest 10 via the ad in the sidebar.  Looks like it will be another amazing 3 days of music invading Gainesville this year.  Check out the free comps and all the other Fest goodness over at their site.

Adventures in Austin

Tuesday, October 12th, 2010

I spent part of last week at Game Developers Conference Online in Austin.  I’ve been trying to fit in one of the GDC conferences for the past few years, so when I lucked out and won a pass in the online scavenger hunt, I jumped at the chance to attend.  In addition to punk rock, an area I am really passionate about is the intersection of new technology and the law, and attending certainly fed right into that.  Tuesday started off with summits on game narrative, iPod game design, and 3-D stereoscopic gaming.  I had noticed that the game narrative summit featured a session on storytelling in the Rock Band games a while back on Twitter, and made a beeline for it Tuesday morning.  It was a great session, Design Director Chris Foster and Senior Writer Helen McWilliams from Harmonix discussed how they developed the narrative of the game, and a big theme was that they wanted to keep the game as true to the dream of being in a band we all have.  If you didn’t know, a lot of the people at Harmonix either are in bands or were in bands, including Ben Carr of the Mighty Mighty Bosstones.  The writers capitalized on this treasure trove of anecdotes, and as research recorded the musings of their coworkers one night at a local watering hole.  In addition to designing the game to follow the path a band’s career would take, such as moving on to better transportation and playing bigger venues, the writers also incorporated vignettes that would convey what it would be like to embark on that first trip as a band with a van.  They not only highlighted what was included in the game narrative, but also discussed some of the features that were removed, such as characters that would guide you through the game, as well as a global network of venues.   Narrative was of particular importance in developing the Beatles: Rock Band title, where Chris mentioned that they took great care to not have any virtual Beatles interacting or appearing too close to live footage from their careers.  It was also clear that the writers also took great care to respect the history of the band while creating a game that was fun to play.  Having written and spoken about licensing issues in music video games, it was really cool to get a look behind the scenes at the creative aspects of developing them.

I mostly stuck with the monetization track on Wednesday, and the talk was all about social gaming, virtual goods and how to make money with them.  The numbers on these games are fascinating, one speaker was saying that with a social game, 95 percent of users will not pay for the game, and of the remaining five percent, you really have to focus on the 1 percent who are your ‘whales’ as they say in the casinos.  Forget the 80-20 rule, apparently for social games it’s the 99-1 rule.  If you look at the growth of Zynga in terms of users and dollars, it’s incredible to think that such a small percentage of users is driving it.  Though when you multiply that by the more than 500 million users of Facebook, it’s clear that even a small percentage of such a huge audience can add up to big business.  There was also a lot of discussion of how to keep players engaged and coming back, the strategy and planning that goes into those games is incredible, especially if you consider that the average Facebook game only lasts 45 days.  The quickening pace of game development cycles was also a hot topic at GDC Online, for game apps on the iPhone and iPad the idea is to ship a game every three months.  Given how much time and work goes into programming and developing those games, I cannot imagine how you can turn it around in those short time frames, but companies and individuals are doing it.

Another panel I was excited to attend was the program on legal issues associated with selling virtual goods.  If you didn’t know, I co-edited a book that was released this year on intellectual property issues in computer gaming and virtual worlds that was published earlier this year by the American Bar Association.  Side note, another benefit of the conference was meeting people who responded to that sentence with “that’s awesome” instead of a glazed over look.  I also made a guy’s evening at the kickoff party by saying I liked his “Misfits/Danzig-y’ look.  Hey he did have that look going on.  Getting back to legal matters, Greg Boyd gave a great presentation on the veritable minefield of issues that can arise from selling virtual goods in games, from potentially violating state lottery and sweepstakes laws to SEC and banking regulations.  And that’s in addition to the additional layer of regulations game developers are subject to if their game is targeted at children.  Having recently spoken about some of these issues as part of a presentation on keeping kids safe in virtual worlds for Social Media Club Southwest Florida, I was certainly interested in hearing the presentation.  There were a lot of interesting questions from the audience, which I think there will continue to be as the virtual goods and social gaming areas grow.  Look for more posts on issues with virtual goods and other techie issues to come.     What a week, after GDC Online I was off to an entertainment law meeting, definitely left me feeling like some of my touring musician friends with all this travel.  Or George Clooney in ‘Up in the Air’.  Austin was a blast, I was definitely tempted to stay for the Austin City Limits Festival to see Muse and some of the other great bands on the lineup.

So You Want to Be A Rock Band Network Star?

Wednesday, August 25th, 2010

Yesterday I had the opportunity to tour the film department at the University of Central Florida and meet some of the faculty.  I enjoyed seeing some of the new technology the students are using, it’s amazing how small the cameras and sound recording devices are getting.  I didn’t get a chance to get over to their downtown facility, hopefully the next time I’m up there I will get to check out the sound stage and motion capture facility.  After all of the writing and speaking I have been doing about music video games and avatars, I would totally be up for trying out one of those motion capture suits just to see what it’s like.  I know, I’m a nerd, it happens.

Speaking of music video games, this week has brought the release of the set list for Rock Band 3, as well as the announcement of Rock Band Network 2.0.  Harmonix and MTV Games have made some improvements to the Rock Band Network experience, you can read more about the changes here. From the time table released, it looks like new software for submitting tracks to RBN2 will be available starting in October, with song submissions starting early next year and tracks becoming available in the first quarter of 2011.  I know there was quite a bit of excitement about the initial launch of Rock Band Network, I imagine there will be more of the same as the release of Rock Band 3 and the launch of RBN2 get closer, as well as questions as to how to get in on the action.  So if you’re an act interested in getting your tracks on Rock Band Network, what do you need to do?

First of all, you need to check on the status of the copyrights to your track.  A song has two copyrights: one in the underlying composition and one in the sound recording.  In order to submit content to Rock Band Network, you need to either own the rights to both the composition and sound recording, or get permission from the label or publisher who has the rights.  Also, Rock Band Network does not accept covers, or songs with samples, so stay with original tracks.  Keeping tracks clean is a good idea too.

Next, you need to decide if you want to try authoring the tracks yourself or have an authoring company do it for you.  If you’re good with recording technology, it might be simpler to try authoring it yourself.  But be warned, it can be time consuming- the estimated time to author one track for RBN is 40 man hours.  You will need the Reaper and Magma software, as well as an XBox 360, a Gold Level XBox Live Membership, and a Creators Club membership to complete the process.  For more details read up on what’s involved here.  Harmonix is also putting on a series of Rock Band Network authoring training sessions and networking events around the country, check it out here.  If you want to go the authoring company route, shop around.  There are differences in pricing and deals, TuneCore initially was charging $999 to author a song for submission to RBN, though they are now charging $2,500 for authoring a song.  Other companies like RockGamer Studios charge by the minute for authoring.  Also look at if the authoring deal calls for the company to get a percentage of your sales of the track.  Once the track is authored and submitted to Rock Band Network, it must then go through peer review and receive a certain amount of positive feedback before it is made available for purchase.   Once the track is made available for purchase, acts receive 30 percent of the track sales.  The prices range from $1-3, so you can do the math as to how that works depending on the price.  It seems like a great way to get exposure for your music.  If you have tracks up on RBN, how is it going?  What do you think?  I’d be interested to hear from you.

Kids in Virtual Worlds, Vinyl and the Kitchen Sink

Tuesday, August 10th, 2010

So I was out most of last week in San Francisco at the American Bar Association Annual Meeting. It was great meeting, I do a lot of work for the Section of Intellectual Property Law, so having the opportunity to meet face to face with my colleagues to plan for the year was really helpful. I also got to catch some great programs on current issues in virtual worlds, licensing issues in entertainment law, and potential pitfalls for clients in social media. I also got to see the city a bit, and hang out with Lisa from Amp Magazine. It was so rad to hang with another punk rock girl, there certainly aren’t a ton of us in the scene. I had such a great time out there I almost didn’t want to come back, thank you San Fran.  I feel more alive than I have in a while, can’t wait to go back.

So speaking of virtual worlds and social media, for those of you here in Florida, I encourage you to come to Social Media Club Southwest Florida’s event Monday night. I will be speaking about tips for parents to help keep their kids safe in virtual worlds and social gaming, and a Sergeant from the Lee County Sheriff’s Office will be speaking on online safety for kids and parents. Here is a link with more information, please check it out and register if you can make it: http://www.smcswfl.org/events/august-16th-2010-kids-and-cyber-safety/. I know even some of you punk rockers have kids now, and keeping them safe online is important. Look for more on these and other issues here at the blog.

And also to follow up on the guys in Protagonist, Vinnie Fiorello and the Paper and Plastick gang are putting on a vinyl auction to help the guys try to recover the $22,000 in gear they lost. Please check it out and if you can, bid on some test pressings for a good cause. Here’s more from the Paper and Plastick crew on the auction:

A major ethos in the punk rock community is to rally around causes and help each other in one’s time of need. One instance of the scene supporting itself is when fans help their favorite bands get back on their feet by donating money after suffering the all-too-common gear theft. Boca Raton’s PROTAGONIST suffered a similar fate in June when $22,000 worth of gear was stolen from their trailer just outside of their hotel room, as they were about to enter the studio with Stephen Egerton(Descendents, ALL) to record a new album. In order to help one of its own, PAPER + PLASTICK RECORDS has established an eBayauction of 43 rare Paper + Plastick vinyl test-pressings, and will donate all proceeds to the band.
“When you’re a young band, you are scraping for everything. Any roadblocks, large or small, seem like they might be, and in some cases, can be the end of the road,” confides Paper + Plastick founder Vinnie Fiorello, who has experienced it all with his band Less Than Jake. “Having all of your gear and trailer stolen would fit in the “Uh oh we’re fucked” category of problems a band has to deal with, but in the face of that, Protagonist goes on. With no bitching, they just move forward, not defeated. This auction is my way of helping them keep moving forward.”

TIME IS RUNNING OUT SO PLACE YOUR BIDS AND SPREAD THE WORD Check it out here.

See below for full listing of test-pressings:
• A Wilhelm Scream – s/t
• Anti-Flag – Queens and Kings 7″
• Blacklist Royals – Semper Liberi
• Coffee Project – Moved On
• The Dopamines – Expect The Worst
• Farewell Continental – s/t
• Flatliners/Snips – split 7″
• Foundation – Chimborazo
• Frank Turner – The First Three Years
• fun – Aim and Ignite
• Greenland Is Melting – Our Hearts Are Gold, Our Hearts Are Blue
• Saint Alvia – Joxner
• Slackers – Lost and Found
• Spanish Gamble – It’s All Coming Down
• The Have Nots – Serf City USA
• The Riot Before – Rebellion
• The Swellers – Ups and Downsizing
• Tumbledown – s/t
• We Are The Union – Great Leaps Forward
• West Bound Train – Come and Get It

New Book: Computer Games and Virtual Worlds: A New Frontier in Intellectual Property Law

Thursday, April 1st, 2010

I am proud to announce the release of a book I co-edited as part of my work with the American Bar Association Section of Intellectual Property Law Committee on Computer Games and Virtual Worlds, Computer Games and Virtual Worlds: A New Frontier in Intellectual Property Law, for purchase from the American Bar Association! Check it out!