Legal Research Blog

 

Sony v. Hotz Ends in Settlement

Photo By /kallu

The digital space continues to be an area where the legal world searches for its footing. For the past decade, intellectual property rights holders have been fighting to maintain control over their product. The most notable and heated battles have taken place in the music, film, and software industries. There has been a back and forth between waves of tighter control through propriety devices/software and blunt force litigation.

2011 appeared to continue this path as another legal battle began. Expanding on the above theme, it moved onto hardware, specifically the Sony Playstation 3. Earlier this year, Sony’s Playstation 3, a high-definition gaming console was “jailbroken.” Jailbreaking or the freeing of a device from limitations imposed by its manufacturer or provider is typically associated with cellular phones- Apple’s iPhone in particular. In the phone’s case the modification allows users to bring the phone to any compatible service provider.

In this case, the system becomes completely open, allowing users to fiddle with the internal code, install applications, and likely pirate games. The entire process of discovery was presented during a conference in Berlin and was posted online in a three part series. The crew that managed to accomplish this monumental task claimed to have only attempted jailbreaking the device after Sony decided to remove the use of Linux as one of the system’s features- a key feature since the system’s debut in 2007 which was removed by a software patch in April 2010.

The case raised some interesting questions from the very beginning. For one, there was the matter of jurisdiction. Sony wanted the case tried in California for three reasons:  their stated Terms of Use, the location of Sony America in California, and the process to jailbreak was posted on YouTube, a California based company. The defendant however lived in New Jersey and the process was uploaded there. In February the judge who was deciding the issue gave this skeptical statement to Sony’s attorney- “…if using Twitter or Facebook is enough to bring a case to San Francisco, “the entire universe would be subject to my jurisdiction.”

Another issue was the role of an electronic Terms of Use agreement, the language of which was in dispute. A ruling on such an agreement could have had wide ranging implications for consumers and how they interact with EULAs (end-user license agreements) and Terms of Use agreements as well as the role and authority of such terms. Sony’s tactics for addressing its intellectual property rights would have likely also have been brought to the courts attention. One of the more interesting aspects would have been to see is how the court addressed the act of jailbreaking itself. One of the members of the team was also responsible for jailbreaking the iPhone, which was ruled lawful in July 2010 by the Federal government. It would have been interesting to see what was deemed different, if anything, between the two cases.

Alas, after several months of waging an effective public relations campaign, the case was recently settled.  Many of the questions that the case could have raised may never be answered, leaving legal uncertainty in its wake. Sony and the defendant both claim victory. Neither side gave in. The only information that has been released about the settlement is that the defendant will agree to not work around any of Sony’s decryption or help others to do so.

However, the code is now out on the internet. Apparently you could even tweet parts of it. Anyone can search for the program, download it onto their PC, and use it with no special equipment necessary. There is no getting the cat back into the bag. Sony cannot remove it from the internet. At least everyone was spared a case that could easily have become the circuses that the RIAA and Hollywood bring to the courtroom. While plenty of legal questions remain for the future, there is one thing that we can all take away from this:  you should always create a strong password.

Social Media Discrimination

We all know that it’s illegal for employers to discriminate on the basis of factors such as age, sex, race, religion, and disability. But there aren’t clearly-defined laws against discriminating based on social media activity. With online access to ever-multiplying social media portals, employers are increasingly investigating employees’ social media information in order to make hiring and firing decisions. Should this be allowed? Can anything protect workers from this social media discrimination? Several recent articles address this expanding phenomenon in employee-employer relations.

A New York Law Journal article mentions Lifestyle Discrimination Statutes, which have been enacted in several states, and which may form a basis for protecting some social media activity. New York’s statute, called the Lawful Off-Duty Conduct Law (N.Y. Labor Law §201-d), prevents employers from taking action against an employee for any of the following: “political activities”; “legal use of consumable products”; legal “recreational activities”; and union membership along with exercising of union rights. The first three of these activities have been very narrowly interpreted by the courts, seemingly providing no solid basis for protection of employee behavior.

In New York, one employee alleged she was fired because of political affiliation, but the court did not apply the law’s political prong to protect her. Another case involved a state employee fired after an outside-of-work argument with a state official in a restaurant. A claim under the recreational activites prong did not help her. The law specifically defines what constitutes protected political and recreational activity, and courts have adhered closely to the wording. Courts have refused to interpret dating as recreational. Cohabitation has also been denied as a recreational activity, and thus not protected against becoming grounds for firing. Although social media wasn’t involved in these cases, they show clearly how the small scope of protected political and recreational behaviors is unlikely to encompass internet postings. The union activity provision of this law may offer more hope to workers however. On October 27, 2010, the National Labor Relations Board filed a charge of unfair labor practice against an employer for firing a worker who – on facebook – referred to her boss as a psychiatric patient. That case was settled before a hearing, leaving no conclusive precedent in its wake, but we can infer that claims of union activity might be the best ways to protect social media posts for now.

Employees and attorneys may soon find creative ways to apply Lifestyle Discrimination Statutes. Moreover, some states have more broadly worded laws than New York. Colorado’s open-ended wording begs interpretation, as it seeks to protect termination for “any lawful activity off the premises of the employer during nonworking hours.” But in employment-at-will states like New York, very little behavior is safe from incurring adverse employer action.

The phenomenon of discriminating based on employees online behavior can also be explored from the employer’s point of view.  With social media, employers may have loads more information about a potential job candidate before making a hiring decision. Bosses may learn details about an applicant’s personal life, including religion, disability, or national origin for example. Those handling hiring decisions must remember that this information can’t be a basis for discrimination, no matter how it was obtained. By using social media as a way to screen candidates, employers open themselves up to the risk of using it illegally. Jessica Miller-Merrell’s blog offers advice for employers navigating these waters.

Courts are clearly still defining their stance on social media activity. We need to continually keep watch for new developments. We can follow the blogs of professionals who deal with these issues, and keep tabs on relevant court cases in progress. Employees and employers alike must use caution when posting online and judging posts. For the time being, the burden seems to fall mostly on the employees to restrain their social media posts, until more adequate protections arise under law.

ABA TECHSHOW – Check out the Keynote on YouTube.

Phil chats with attendees at ABA TECHSOW.

Fastcase just returned from the ABA TECHSHOW! It was wonderful to catch up with our legal tech friends and we’re very excited about implementing some new ideas. One highlight for us was Professor Lawrence Lessig’s Keynote – Code is Law: Does Anyone Get this Yet?

If you couldn’t get to Chicago for TECHSHOW, you can still view the keynote address everyone was buzzing about on YouTube.

Keyword Search Made Easy – Fastcase Webinar Today at 10AM Eastern

Walk away from this 50 minute webinar knowing how use keywords to find cases that describe the legal concept you’re interested in. We’ll cover the advantages of full text search and will slowly march through basic Boolean operators and their uses. This webinar is perfect for experienced lawyers and researchers who didn’t learn “keyword search” in law school.

To register, click here.

To download the materials, click Webinar Handout.

Handwriting Apps and the Tablet Explosion

                A handwriting app on MacNewsWorld  caught our attention this week. Chris Maxcer reviewed the Touchwriter HD application from Aesthology for the iPad. This and other handwriting applications have been around for a while now, but the new ones look really good. Basically, handwriting apps work by detecting “written” input from a stylus or your finger on a touchscreen device. As touchscreen devices and new tablets increasingly permeate the electronics market, we realize that more and more of us will have access to applications like this.

                For many people, touchscreen devices initially present an awkward transition: the need to type directly on a screen’s virtual keyboard. Some would-be-purchasers postpone their upgrade to such devices, instead relying on models with built-in “QWERTY” keypads. Others actually purchase compatible keyboards to supplement their new iPads. But new, high-quality handwriting applications could be a solution for these folks. The applications use technology to incorporate something we already use: our handwriting. At the same time, they reduce the use of paper and add a layer of organization to our notes. There’s great potential to ease the technological transition for some, and increase productivity for others who already have touchscreen devices.

                Note-taking will probably be the most valuable use of handwriting applications for most people. In spite of our high-tech world’s ubiquitous computers and smartphones, we still constantly jot down handwritten notes in the regular course of business. With built-in features, handwriting apps increase the utility of our habitual note-taking. 

Touchwriter HD, for example, has some slick capabilities:

Notes can be tagged by location if using the maps function – a great memory-aid feature.

Each note is time-stamped – eliminating a manual step that would be required if writing on paper.

Checklists can be easily created by long-tapping the space key.

Notes are exportable to Evernote, Dropbox, Google Docs or Twitter. They can be sent as e-mails or saved as photos.

Notes such as phone numbers, e-mail addresses, and URL’s can be typed to enable calling, e-mailing, and hyperlinking.

                The year 2011 has already seen the introduction of some major players: the iPad 2, and the Motorola Xoom. The Samsung Galaxy Tab is set for release this weekend. Among other new gadgets, we can soon expect the Blackberry Playbook and the Acer Iconia, both currently available for pre-order. New tablets from Sony and Google are said to be on the horizon. Considering all these new products, we have a hard time convincing ourselves that we’re better off typing on a touchscreen instead of a keyboard. However, we may be better off scribbling notes on a touchscreen instead of paper. As the bounty of new devices entices us into the tablet market, we’re keeping our eyes on handwriting applications. Quality handwriting applications could well be a crucial tool that determines how and if consumers use this new hardware.