Thursday, December 8, 2011

Erik Syverson Analyzes Internet Piracy Statutes for Fox News

Some members of Congress are considering new legislation that would provide increased protection for copyright holders in cases of internet piracy and infringement. I recently appeared on Fox News as an internet law attorney to discuss the benefits and burdens of the new copyright law proposal.



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Monday, November 28, 2011

Smart Phone Privacy Issues

Recently I appeared on Fox News 11 in Los Angeles as a privacy lawyer to discuss issues related to smart phone apps. Smart phones are essentially mini computers and apps often contain viruses or collect and sell your personal information. Consumers need to understand the information that is collected, by whom and the purposes for which it is being sold.

Businesses looking to monetize the mobile market by selling apps or consumer data need to understand the consumer disclosures required and obligations to protect consumer data. The resale of consumer data may be a violaition of state and federal law in certain circumstances. Data breaches may also need to be promptly reported to consumers who have been compromised. Consent and notice are crucial aspects for conducting business in the mobile market.


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Thursday, November 10, 2011

Los Angeles Trademark Attorney Appears on Fox News

As a trademark infringement attorney, I am frequently asked to appear on national news outlets to discuss intellectual property issues. Today I appeared on Fox News to analyze efforts to obtain a trademark registration for the mark "Occupy Wall Street".



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Monday, September 12, 2011

Law Enforcement and Social Media

Today I appeared on Fox News to discuss the use of social networks by law enforcement agencies. Such use invokes the First and Fourth Amendments in America, in addition to internet specific federal and state legislation. An experienced social media attorney can provide guidance on such issues.





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Monday, August 29, 2011

Zynga v. Vostu

Social gaming litigation is heating up between Zynga and a Brazilian competitor Vostu. Zynga has become incredibly popular pursuant to games that it has developed for use on the Facebook platform. FarmVille is perhaps the best known.

Zynga alleges that Vostu has copied its popular games and offered carbon copies to internet users, most residing in Brazil. Vostu's defense thus far has been nothing more than that Zynga is a bad actor as well, having infringed numerous copyrights itself.

The most interesting aspects of this case appear to be procedural. That is because Zynga filed suit for copyright infringement in both the United States and Brazil. Vostu sought an injunction from the American court staying the Brazilian case while awaiting the outcome of the American case. That strategy may be because Vostu likely generates the bulk of its income in Brazil. Also, surprisingly, things aren't going too well for Vostu in its home ballpark of Brazil.

Initially, the American Court granted Vostu's request with a temporary restraining order. However, the Court reversed course and ruled recently that Zynga's Brazilian case may now go forward at the same time as the American case. Zynga's lawyers successfully argued that simultaneous litigation may proceed because copyrights are territorial in nature. Additionally, Zynga is not seeking duplicative monetary damages, different markets hence different monetary damages.

This case is interesting going forward because we are likely to see many more similar cases. Copyright infringement is one of the real dangers for new media content producers like Zynga. Many times, infringers feel emboldened by residency outside of the United States. Zynga's aggressive two track litigation approach may re-make the international copyright enforcement playbook. Two negatives of simultaneous copyright infringement actions may be inconsistent results and increased legal expense. Internet law firms will be watching this case closely.

Friday, July 1, 2011

New Domain Extensions Coming From ICANN

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I recently discussed ICANN's new domain name expansion plans on Fox Live. The internet is running out of desirable domain name real estate. This will allow companies, athletes and entertainers to strengthen their brands. For example, rather than coke.com, the soft drink company may have drink.coke as a domain for a new marketing effort.


The price tag per domain is steep at around $200,000 for an application and annual fees of $25,000. Far different than the 1990's domain name gold rush where great domains could be picked up for $20 or so. That should keep out the bulk of cybersquatters, however, there will likely be fierce battles over generic domain extensions among large corporate interests. A new domain gold rush may likely emerge.


Plenty of trademark infringement lawsuits will certainly be filed. When such battles arise, it is important for trademark owners to retain an experienced domain name trademark lawyer to protect their intellectual property rights.

Thursday, June 23, 2011

Trademark Infringement Attorney

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As a Los Angeles trademark infringement lawyer, I am frequently asked to comment regarding intellectual property litigation issues. These issues often include internet advertising trademark infringement or infringing goods manufactured in other countries and re-sold in America. This week, I had the pleasure of speaking with Fox News about intellectual property infringement occurring in China and the effect of such infringements on the American economy. This often includes copyright infringement of software, music and movies. Trademark enforcement is also very difficult in the Chinese market.

Tuesday, June 7, 2011

Anonymous Internet Speech Takes Hit in New Jersey

The New Jersey Supreme Court has ruled that social media and message board activity may not enjoy the same level of protection as traditional journalistic media such as newspapers. This is one of the first opinions to make distinctions between journalistic activity in social networks and traditional news media.

The decision has to do with the breadth of New Jersey's shield law, which allows journalists to protect their sources. According to New Jersey, reporting in traditional journalistic channels maintains a robust right to shield sources. Not so much in social media and message boards such as Facebook and Twitter.

Anonymous speech rights are at the center of social media law and tension is present in this area. That is because internet defamation is exploding. This New Jersey case could be a ray of hope for those being targeted by anonymous internet defamation. An experienced internet defamation lawyer may be able to use arguments similar to this New Jersey case to identify the source of anonymous internet defamation taking place in social networks and message boards.

Social Media Legal Dangers

Today I appeared on Fox News as a Social Media Attorney to offer commentary in light of the Anthony Weiner scandal.


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Monday, June 6, 2011

Internet Trademark Infringement Basics for Business

Unfair internet business practices have become a common source of litigation in recent years. This type of dispute may involve various types of legal claims ranging from defamation and trade libel to infringement of trademarks. Trademarks, which identify the source of goods and services, are constantly infringed online.

How are trademarks infringed? There are a couple of common scenarios that I come across in my practice as an internet trademark infringement attorney.

First, a competitor may conduct keyword advertising using another business' trademark to lure customers to a competing website. In other words, a business' customers perform a Google search for it and click on an advertisement which appears for the business' trademark but, the customer is taken to a competing business' website after clicking on said advertisement. There are many different factual scenarios under which this may occur. Furthermore, assigning liability is very difficult and complex. Not all circumstances of keyword bidding on competitor's trademarks result in the requisite consumer confusion required for a trademark infringement claim. Nonetheless, this is a common source of what we term unfair internet competition and initial consumer interest diversion.

Another common source of internet trademark infringement can be what is termed cybersquatting. Cybersquatting occurs when someone owns, registers or traffics in a domain name in bad faith by utilizing the goodwill associated with a business owner's trademark. There is actually a federal statute devoted to this claim called the Anti-Cybersquatting Consumer Protection Act. Although styled as a consumer protection act, it is most often used by businesses to prevent competitors and profiteers from diverting consumer interest and obtaining domain name real estate online.

Two common ways that competitors steal potential business and compete unfairly online include keyword bidding infringement and cybersquatting. Frequent search engine policing usually uncovers such unfair competition and early detection is usually the best preventative medicine. Most internet trademark infringement will cease pursuant to a strongly worded cease and desist letter. Some infringers may challenge the business owner's trademark rights and, in that case, litigation is often required. In many cases, a successful plaintiff in a trademark infringement may recover its attorneys fees and costs.

Thursday, June 2, 2011

Social Media Dangers

As a social media attorney, I often see the dark side of the internet and instant connectivity. This week I am reminded once again of the dangers inherent in these new tools. Politicians like Anthony Weiner are in a tough spot. They need social media to campaign and connect with constituents in a meaningful way, however, they are exposed to scandal now more than ever. Reputations and careers can be destroyed, deservedly or undeservedly, in days if not minutes.

Did Anthony Weiner do something wrong? Was his account hacked? Who knows. That's not really the important issue. What is important is how Weiner and other public figures manage their social media exposure and liability in a world of shrinking privacy rights.

Participation in social media necessarily demands a bargain in which exposure, connectivity and participation come at the price of privacy. How can Weiner have an expectation of privacy with regard to his Twitter account? Twitter is a third party service and Weiner's Twitter account information is hosted, not on a server that he owns, but on a server presumably owned by Twitter or some other third party ISP.

Now, personally identifiable information (PII) is a different animal. Internet service providers often have a legal obligation to secure this information (credit cards, bank accounts etc). No such information appears to have been compromised in Weiner-gate.

Social media is here to stay. It tends to ruin just as many careers as it aids. It would be wise for public figures - politicians, athletes, entertainers, to retain social media counsel to review and manage their social media campaigns and endorsements in order to limit liability and damage to their brand/careers. Under FTC rules, for example, celebrity endorsers may be liable for false advertising or other legal claims springing from the products they endorse. As such, paid endorsements on services like Twitter need to be carefully reviewed and disclosed to the public.

Wednesday, May 25, 2011

Trademark Infringement in Keyword Advertising

The issue of trademark infringement in pay per click (PPC) advertising normally arises when a company bids or purchases advertisements that are triggered when that company’s competitor’s name is searched. For example, “ABC Auto,” an auto body repair shop, could purchase advertisements from a search engine provider to show up when a user searches for “123 Auto,” ABC’s main competitor. This issue has prompted litigation between companies and search engine providers as well as between companies and their competitors.

While there would likely be a trademark infringement if ABC Auto placed 123 Auto’s name within their advertising copy, courts have been inconsistent in deciding whether a trademark infringement exists if ABC merely purchases advertisements that are triggered when “123 Auto” is searched.

A real life example – a Google search for “GEICO” may return an advertisement for AAA. Here, it appears that AAA has bid on the keyword “GEICO” – that is, AAA’s advertisement is triggered when a user searches for “GEICO.” Both AAA and GEICO sell automobile insurance and it seems that AAA has bid on advertisements that are displayed when a user searches for “GEICO.”

These issues are confusing and there are inconsistent holdings in cases around the country. If you are involved in a keyword trademark infringement lawsuit, it is important to seek an experienced internet lawyer with relevant trademark litigation experience. There may be many crucial factual and legal issues that can strengthen a Plaintiff's claim or bolster a trademark defense. For example, a recent decision in the 9th Circuit Court of Appeals has greatly strengthened defenses to trademark infringement claims based upon advertising in the Google Adwords network. This is good news for affiliate marketers and publishers who are sued for trademark infringement.

Tuesday, May 3, 2011

The Sony Disaster

It just keeps getting worse and worse for Sony. Technology and Internet lawyers have been watching closely as the Sony data breach saga plays out.

For those not familiar, the Sony Playstation network was recently hacked. The invasion resulted in the capture of consumer data for over 70 million people. Most of this information consists of email addresses and screen names. Sony has not yet admitted that credit card data has been stolen. Sony's network maintains credit card data for over 10 million users who wish to obtain content from Sony's network - such as movies and game related products.

Email addresses and screen names may not seem like a big deal, but that kind of data can be used by nefarious operators to perpetrate internet and email scams - resulting in millions in consumer financial loss.

Apparently Sony just appointed a new data security czar to prevent this in the future. With respect to the law, this will keep happening over and over again until legislators impose greater financial penalties upon companies who are hacked. In other words, there has to be a greater financial incentive for companies like Sony to take preventative measures.

Why didn't Sony have a data integrity czar and associated lieutenants in the first place? Because they didn't have too. Under current law, Sony has no real liability as long as it timely alerts its customers of the breach.

Wednesday, April 20, 2011

Internet Browser Do Not Track Lists

Internet usage and consumer privacy - two concepts constantly at odds. Why? Because the higher the level of consumer privacy online the lower the revenue and profit margins for large and small internet companies alike. Data - consumer data - is the currency that drives e-commerce.

Setting aside the world of mobile, which will soon outpace traditional desktop internet browsing, some browsers are bending to consumer and governmental pressure to increase consumer controls over browsing data. While much of this data may not include personally identifiable information (PII), it still reveals much about an individuals online habits.

Internet Explorer, Mozilla's Firefox and Apple's Safari browsers all now allow users to click a button telling websites not to track their data. A few ad networks have signed on.

Google and its Chrome browser have not. One big reason is that what constitutes "tracking" is unknown at this time. In other words, there is no piece of legislation or case that provides a legal definition for "tracking". There is not even an industry group standard definition available. Mobile devices are going to further complicate the matter - adding geo-tagging issues to the mix.

Google has a point here. It is perhaps hasty to implement technology to disable "tracking" when what constitutes "tracking" is unknown. I imagine Facebook, which has its own notorious privacy reputation, might behave much like Google. Patience may not only be profitable but also prudent. That is, unless, there is a huge consumer backlash against Google for not following its peers' example. Consumer confidence should not be overlooked as a driver of internet service provider usage. Consumers need to implicitly trust their internet service providers to be responsible data custodians.

CNN recently reported on this issue and some of the technical aspects involved in implementing do not track technology. There is some proposed legislation sitting out there at the federal level. However, even if such legislation is passed, the meaning of any such legislation, its scope and applicability, will take years to define. As an internet business law attorney, I fully expect a slew of consumer internet privacy litigation to take hold in the next five to ten years. Browsing data will most assuredly be at the heart of such lawsuits.

Thursday, April 14, 2011

Internet Defamation Exploding

Internet defamation and anonymous internet defamation, in particular, continue to rise. Recently, the ABA Journal reported on the phenomenon of web attacks.

I found the article quite good in providing a generalized road map regarding this issue. It may be light in serious case law analysis but I found the section regarding CDA Section 230 reform particularly refreshing. CDA Section 230 has been stretched and abused for so many years that it has become a get out of jail free card for internet companies and websites. Reform will come down the pike sooner or later. I would like to see something analogous to the DMCA procedures for copyright infringement. In short, there needs to be a legal incentive for websites to cooperate in internet defamation matters. Kudos to the ABA for illustrating the problems with CDA Section 230 in its current form.

As I was telling a client the other day, it takes years and years to build a brand or business reputation. Unfortunately, that brand and reputation can often be destroyed in a matter of a few hours by a single, dedicated anonymous internet poster. If your business is being attacked online, it is crucial to hire an experienced internet defamation attorney. Even if the defendant has no money to collect pursuant to a judgment, an aggressive, experienced internet lawyer can stop the bleeding and get your business back to the revenues it enjoyed prior to the web defamation attacks.

Wednesday, April 6, 2011

Anti Slapp Motions More and More Common Due to Internet Postings

The internet is leading to an explosion of expression and user generated content. This is nothing new. Review sites like Ripoff Report, Yelp, RateMD etc. have fueled this explosion.

The legal downside of this explosion is that unfettered expression frequently goes too far and leads to defamation and trade libel. The fact that many review sites allow for anonymous postings and ratings only encourages individuals to cross the line from freedom of expression into the unprotected territory of defamation. Free speech has its limits and those lines are crossed online more often than anywhere else.

Defamation and trade libel, in short, consist of a false statement of fact that injures one's reputation and has a defamatory meaning. There has been an explosion in internet defamation lawsuits in the past few years. In today's world, a reputation which has taken years to build may be destroyed by just a few defamatory internet posts appearing highly in Google search rankings.

For those sued for defamation or trade libel in California, there is a powerful defensive tool that may be employed called the Anti-SLAPP motion. This motion may be filed by a defendant in a defamation case at the start of the case. The motion seeks to dismiss the complaint thereby putting an end to the lawsuit. The defendant, in the motion, must show that the speech at issue related to a matter of public interest. If the matter is of public interest or, more specifically, consists of public participation in a matter of public interest, the burden shifts to the plaintiff to prove a likelihood of success on the claims.

Basically, the Anti-SLAPP motion is like a mini-trial at the beginning of the case. Rather than incur the expense of defending a long, drawn out lawsuit, the Anti-SLAPP motion provides a defendant with an avenue to resolve the case at its beginning, saving the defendant untold thousands of dollars. Also, if successful, the defendant is entitled to recover all of its attorneys fees incurred.

If you are sued for defamation or planning on suing someone for defamation, make sure to contact a lawyer specializing in Anti-SLAPP motions. If you are a defendant, it may resolve your case very early in the proceedings and enable you to recover attorneys fees. If you are a plaintiff, you need to be able to overcome an Anti-SLAPP motion so that your case may proceed to trial.

Tuesday, March 22, 2011

Digital Wallet Battle Heating Up

In the very near future, I believe phones will replace credit cards as the physical instruments used to purchase goods and services. All the big carriers as well as the manufacturers - Google, RIM and Apple - are jockeying for position to control this new engine of commerce.

Mobile payment data is what we are talking about here. How to store it? Who has access to it? How it is deployed? And most importantly, who makes the most money from it? Today, payment credentials are stored on magnetic strips on plastic credit cards. That technology is about to be rapidly replaced. Visa, American Express and Mastercard might be left out in the cold or need to adapt their business models radically.

This new technology will move payment credentials from magnetic strips on plastic cards to your phone. The act of purchase becomes contact-less whereby the swipe of a credit card through a terminal is replaced by simply waiving your phone in front of some sort of monitor that records the transaction and debits your account.

Where on the phone will payment credentials be stored? RIM would like the payment credentials hard-wired into the handset itself, allowing RIM to play a role in transactions and presumably earn percentage points on each purchase. Google has some phones that already have this capability. This would limit, to some extent, portability of information. Apple does not have built-in technology to allow mobile payments on the Iphone.

Carriers like Verizon and ATT want payment credentials contained on tiny SIM cards which store a user's data and allow such data to be swapped in and out of phones. In other words, the SIM card model would give the carriers greater control over payment credentials and presumably a slice of each transaction. The carriers' model weakens the link between consumer and handset and allows portability.

Currently, the Wall Street Journal reports that there are only 110,000 terminals in the U.S. where a person could pay with smart phones. Of the 55 billion credit card transactions last year, only 80 million were smart phone contact-less purchases. This market will be huge, I have no doubt. In light of ATT's recent acquisition of T-Mobile, this is something federal regulators should consider before approving the further consolidation of the wireless telecom industry.

As an experienced Internet Attorney, I offer a couple of predictions. First, the portable SIM card model will win and control/profits will fall to the carriers. Second, this will open up a whole new slew of financial fraud and identity theft the likes of which we have never seen.

Friday, March 18, 2011

Microsoft Shuts Down Spam Network

Today the Wall Street Journal reported on a gigantic spam network that was shut down by Microsoft and the federal government. The spam network, labeled the Rustock "botnet" by Microsoft in a federal civil lawsuit, is alleged to be the leading source of junk email on the internet.

The spam allegedly peddled everything from vitamins to counterfeit software - an invitation for Microsoft to act. The lawsuit had been previously sealed, likely to enable covert and coordinated action across the country by Microsoft and the feds. U.S. Marshals and Microsoft lawyers raided hosting companies from Seattle to Chicago.

The lawsuit is now unsealed at Microsoft's request. One can only speculate that Microsoft's desire to unseal the suit at this point stems from some urge to parlay its efforts into goodwill with consumers. I wonder if this is a tactical error in the litigation currently underway. Surely there are some advantages in keeping this under seal on a litigation operational and investigative level.

As an internet attorney specializing in commercial email issues, I know that evidence collection and identification of proper parties can be challenging. Furthermore, the line between illegal spam email and legitimate bulk commercial email is often a point of confusion among both consumers and email service providers.

In this case, it appears Microsoft has dealt a blow to an anonymous, international source of much of the illegal spam email making its way through various networks and hosting companies. E-commerce rule-breakers are, if anything, adaptable. Let's see if a new threat rises to fill the vacuum caused by Microsoft's efforts.

Monday, March 14, 2011

9th Circuit Deals Blow to Trademark Owners

In the past week, the 9th Circuit Court of Appeals handed down a decision impacting the internet keyword advertising industry. In Network Automation, Inc. v. Advanced Systems Concepts, Inc., the Court ruled that a preliminary injunction entered against Network Automation in District Court must be vacated. The companies are business software producers. The Injunction prevented Network Automation from bidding on Advanced Systems' trademarked term "ActiveBatch".

The District Court went awry by applying analytical factors in a rigid manner from precedent set forth in a domain name infringement case. Clearly, a domain name infringement case is a much different animal from a keyword infringement case. The Court found that there was no likelihood of confusion caused by Network's bidding on Advanced Systems' trademarked term.

The 9th Circuit has now laid down important precedent for all future trademark keyword advertising cases in the west. From now, District Courts must apply factors in a flexible manner and engage in real keyword analysis. In essence, the 9th Circuit is mandating that Courts peel back the onion and look at what is really happening in a given keyword advertising campaign. This will likely entail an analysis of the party responsible for composing the adwords text, the content of the text itself, the product or service being sold and sophistication of consumers purchasing the good or service. This case will serve as an important guidepost for all future keyword advertising campaigns.

Those engaged in keyword advertising and affiliate marketing would be wise to hire an experienced keyword advertising lawyer to review campaigns for likelihood of confusion and trademark infringement risk.

Friday, March 11, 2011

Google Search Algorithm Controversial

The biggest news regarding the world of internet search this year has been Google's search algorithm change. Recently, Google revised its secret search sauce in an effort to provide ever-improving quality in its search results. Google's goal appears to be to elevate, original fresh content and devalue stale content lifted from other sources or sites that are simply not updated frequently. A warning to those like myself to get back to blogging and create some new content.

As reported by Paidcontent.org, some early results are in. Traffic has surged on content rich premium sites as well as local entertainment/sports sites. What constitutes high quality content as opposed to low quality content is an issue of debate. But, it looks like content remains king at Google and large doses of fresh and original content is the surest way to assert natural search dominance.

I suspect the quality of in-bound links is playing an elevated role as well. High numbers of links from low quality sites and link farms will likely be penalized. It may get harder to game Google's system and employ black hat search engine marketing techniques such as those employed by JC Penney recently. JC Penney employed such black hat techniques and was punished by receiving a de-listing from many search results where it had previously ranked one or two.

Smaller companies may be having a tough time coping as reported by the Los Angeles Times. Such companies have likely invested thousands to millions of dollars in search engine marketing techniques and in-bound linking that may now be obsolete or worthless.

I wonder if this change will lead to better search engine real estate for large corporate entities. One of the endearing and enduring qualities of the e-commerce revolution has been its democratizing effect and promotion of main street businesses to new heights. That may change now - or it might not. As an internet attorney, I am left to ponder how this will affect areas such as trademark rights, cybersquatting, paid search, affiliate marketing and search engine optimization. Will this lead to a new land grab for domains and/or increased trademark right enforcement by large entities? Will this be a boon to paid search marketers as companies who have lost their natural search positions scramble to make up for that loss by buying top positions on keywords. Does this signal a shift toward the interests of large corporations and away from the mom and pop main street vibe that has previously populated many search results. Answers to such questions should become apparent relatively quickly.