The current economic climate has been extremely brutal across the country. In many industries, a paradigm shift has occurred and thousands of jobs that have been cut will never re-appear when the economy recovers. Those companies that are hiring have a large pool of candidates to choose from. However, having the "pick of the litter" is not good enough for some employers. According to an article on MSNBC.com, some employers are not just reviewing the information that an applicant has provided, but they are also diving deep into the candidate's social media background to find people to contact that may have some "dirt" on a candidate. This is only a breach of protocol from the normal process and not illegal. However, some companies are now requiring as part of the interview process that a candidate sign a waiver not to sue if a former boss or a social media contact disparages a candidate. While the former is just sneaky, the later is downright disgusting and should be against the law.
People who need a job will sign almost anything when they are in a vulnerable position. A waiver may provide immunity to an "off-list" reference to say anything about the candidate whether true or not. When the reference is someone a candidate has chosen there usually is not much to worry about. However, this type of waiver may be forced upon a candidate for every single "friend" or "connection" that a person has in their social media accounts.
I am generally against Congress interfering with our daily lives. However, this is the type of situation if allowed to become a generally accepted business practice could undermine people's ability to obtain a job or even keep a job. Therefore, before this type of practice becomes widespread, Congress needs to step in to stop it dead in its tracks.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, October 27, 2009
Saturday, October 24, 2009
NFL Fights Over Access To College Game Day Content
The NFL is currently in a standoff with the company that video records college football games for eight conferences and then delivers it digitally to the NFL. The content is primarily utilized by the NFL's College Advisory Committee to form an official opinion on college juniors who are thinking about entering the NFL draft before their college eligibility is exhausted. The College Advisory Committee acts as another source for potential early entrants to the NFL draft because without this committee prospects would only be able to obtain information about their possible draft prospects from sports agents and their college football coaches.
The company that creates the content and then delivers it to the NFL, XOS Technologies, has reportedly made a mulit-million dollar rights fee request on behalf of the college football conferences it works with to the NFL for content that was previously delivered free. The College Advisory Committee is made up of participants from each NFL team and it provides a draft opinion of college underclassmen. This arrangement has provided college juniors an opinion that is not biased by the opposing interests that sports agents and college coaches inherently possess. The analysis that the College Advisory Committee provides is mutually beneficially to both the NFL and to underclassmen. Potential draft prospects are able to obtain a professional opinion about their readiness for the NFL while the NFL has been able to scout potential draft picks with free access to game day tapes.
From a legal and business perspective, there are several issues that need to be determined. What is the monetary value of the game tapes to the NFL? Who owns the rights to these game day tapes? Does the conference own the game day content or do the two schools who play the game own the rights? If the content is used for purposes other than talent evaluation, such as for entertainment or analysis on the NFL Network, what is the value of this use? If a college underclassman would like to obtain the game day tapes and post clips on a social media website to promote himself can the player also obtain the rights for this use? How much is the College Advisory Committee's talent evaluation services worth to college football programs and their players?
These questions need to be answered sooner rather than later because there is a high probability that a larger number of juniors than usual will declare themselves available for the upcoming NFL draft due to the possibility that a new NFL Collective Bargaining Agreement that is in the initial stages of negotiation may put some type of cap on rookie salaries.
In my opinion, the NFL should pay some type of fee for the game day tapes depending on the type of rights that are granted. Since NFL teams pay tens of millions of dollars to top draft picks, game day tapes are very valuable in the evaluation process. I do not believe it would be practical to charge potential draftees for an independent evaluation because most likely they could not afford the cost of the review. However, I think some type of deal should be worked out that would allow a player to obtain game day content that would allow them to directly promote themselves on social media websites.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
The company that creates the content and then delivers it to the NFL, XOS Technologies, has reportedly made a mulit-million dollar rights fee request on behalf of the college football conferences it works with to the NFL for content that was previously delivered free. The College Advisory Committee is made up of participants from each NFL team and it provides a draft opinion of college underclassmen. This arrangement has provided college juniors an opinion that is not biased by the opposing interests that sports agents and college coaches inherently possess. The analysis that the College Advisory Committee provides is mutually beneficially to both the NFL and to underclassmen. Potential draft prospects are able to obtain a professional opinion about their readiness for the NFL while the NFL has been able to scout potential draft picks with free access to game day tapes.
From a legal and business perspective, there are several issues that need to be determined. What is the monetary value of the game tapes to the NFL? Who owns the rights to these game day tapes? Does the conference own the game day content or do the two schools who play the game own the rights? If the content is used for purposes other than talent evaluation, such as for entertainment or analysis on the NFL Network, what is the value of this use? If a college underclassman would like to obtain the game day tapes and post clips on a social media website to promote himself can the player also obtain the rights for this use? How much is the College Advisory Committee's talent evaluation services worth to college football programs and their players?
These questions need to be answered sooner rather than later because there is a high probability that a larger number of juniors than usual will declare themselves available for the upcoming NFL draft due to the possibility that a new NFL Collective Bargaining Agreement that is in the initial stages of negotiation may put some type of cap on rookie salaries.
In my opinion, the NFL should pay some type of fee for the game day tapes depending on the type of rights that are granted. Since NFL teams pay tens of millions of dollars to top draft picks, game day tapes are very valuable in the evaluation process. I do not believe it would be practical to charge potential draftees for an independent evaluation because most likely they could not afford the cost of the review. However, I think some type of deal should be worked out that would allow a player to obtain game day content that would allow them to directly promote themselves on social media websites.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, October 20, 2009
FTC May Back Down On Some Of The Proposed Social Media Rules
According to the Wall Street Journal, the FTC may back down from its initial indication that it would bring enforcement actions against bloggers and individuals who comment about products or services without full disclosure. The FTC has indicated that they plan to focus on advertisers and companies instead.
This turnaround demonstrates the power of social media and the "modern day petition." In a previous post, I mentioned that I was not pleased with all of the proposed changes. I admit that the rules needed to be updated since the last update was in 1980. However, some of the proposed rules are still too broad and ambiguous, and should be changed. I am hoping that people continue to let the FTC know how they feel about this issue before it becomes effective because an ambiguous new rule is worse than an old outdated rule that is generally easy to understand and implement.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
This turnaround demonstrates the power of social media and the "modern day petition." In a previous post, I mentioned that I was not pleased with all of the proposed changes. I admit that the rules needed to be updated since the last update was in 1980. However, some of the proposed rules are still too broad and ambiguous, and should be changed. I am hoping that people continue to let the FTC know how they feel about this issue before it becomes effective because an ambiguous new rule is worse than an old outdated rule that is generally easy to understand and implement.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, October 16, 2009
Sex Crimes, Stickam.com, and Social Media
Stickam.com is a live video web site that according to the New York Times is owned by a Japanese based pornographer. According to Stickam.com's Frequently Aasked Question Page, it is a free live video service and social network that allows a user to stream live video over the Internet. However, Stickam.com is also being used to showcase the work of alleged rapists and other criminals.
This past year, there have been several arrests of the website's users based upon video that was uploaded onto the site. Each arrested user is accused of uploading video of a sexual crime that the user participated in. Unfortunately, a website such as Stickam.com is just one avenue that sexual predators utilize. As anyone who has watched NBC's Chris Hanson's "To Catch a Predator" specials or Law and Order: SVU knows, this type of behavior occurs more than most people realize. Law enforcement is so overwhelmed and most websites are understaffed and focused on generating revenue and not policing their web site. Therefore, this type of behavior can fall through the cracks unless concerned website users notify the website and the proper authorities. Since 9/11/2001, the the New York City subway's safety slogan has been, "[i]f you see something say something" and I believe this slogan should be extended to the Internet.
In Stickam.com's defense, the website self reported some of these alleged criminal acts to the police, disabled the alleged rapists accounts, and removed the content that allegedly shows a crime being committed. I am not trying to defend Stickam.com's website, but these types of websites are common on the Internet and generally it is up to the users of social media to police the content available and notify the proper authorities when it is alleged that a crime has been committed by a fellow user.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
This past year, there have been several arrests of the website's users based upon video that was uploaded onto the site. Each arrested user is accused of uploading video of a sexual crime that the user participated in. Unfortunately, a website such as Stickam.com is just one avenue that sexual predators utilize. As anyone who has watched NBC's Chris Hanson's "To Catch a Predator" specials or Law and Order: SVU knows, this type of behavior occurs more than most people realize. Law enforcement is so overwhelmed and most websites are understaffed and focused on generating revenue and not policing their web site. Therefore, this type of behavior can fall through the cracks unless concerned website users notify the website and the proper authorities. Since 9/11/2001, the the New York City subway's safety slogan has been, "[i]f you see something say something" and I believe this slogan should be extended to the Internet.
In Stickam.com's defense, the website self reported some of these alleged criminal acts to the police, disabled the alleged rapists accounts, and removed the content that allegedly shows a crime being committed. I am not trying to defend Stickam.com's website, but these types of websites are common on the Internet and generally it is up to the users of social media to police the content available and notify the proper authorities when it is alleged that a crime has been committed by a fellow user.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, October 15, 2009
NBA Star Wins Internet Domain Fight
The Toronto Raptors' forward Chris Bosh sued a cybersquatter for the rights to www.chrisbosh.com and 800 other athlete and celebrity domain names. Mr. Bosh won his fight against Hoopology.com (I refuse to provide a link for this site because I do not like cybersquatters) for his domain name and 800 others. Cybersquatters usually buy a domain name in the hopes of either selling it to its rightful owner or to profit off the likeness of the rightful owner.
It appears that this is the first time that a court has awarded third-party domain names to a plaintiff. Mr. Bosh has stated that he intends to return the domain names to their rightful owners without compensation. Great news. Despite what some people think, this proves that not all NBA players are selfish "show me the money" people.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
It appears that this is the first time that a court has awarded third-party domain names to a plaintiff. Mr. Bosh has stated that he intends to return the domain names to their rightful owners without compensation. Great news. Despite what some people think, this proves that not all NBA players are selfish "show me the money" people.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, October 14, 2009
Social Media Fraud
One of the biggest problems that social media companies have encountered with the rise of the popularity of social media is the rise of social media fraud. According to the Wall Street Journal, one of the biggest problems that companies are encountering occurs when criminals create fake urls that are made to look like legitimate websites. This occurs when a criminal creates a url that has a name that impersonates a real entity. However, when the url is clicked, the user is directed to another website that is created to obtain the user name, password and other identifying information of the user.
There is no way to stop this behavior. If a hacker has the right tools and the determination, he will be successful in breaking into your computer, website, or blog. The only way to avoid becoming a victim is to be careful about the websites you visit and ensuring that you have current security software installed on your computer or network. Even with these precautions you can still become a victim of this type of fraud.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
There is no way to stop this behavior. If a hacker has the right tools and the determination, he will be successful in breaking into your computer, website, or blog. The only way to avoid becoming a victim is to be careful about the websites you visit and ensuring that you have current security software installed on your computer or network. Even with these precautions you can still become a victim of this type of fraud.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, October 10, 2009
Flight Attendant Utilizes Facebook To Harrass 15 Year Old Female Passenger
We have only seen the tip of the iceberg regarding social media harrassment or misuse. Australian Airline Jetstar has a male flight attendant who thought that it was socially acceptable to try to "friend" on Facebook a 15 year old female passenger. It appears that the airline employee obtained the female's name from her boarding pass.
This story reminds me of the old Seinfeld episode where Jerry gets the phone number of a woman he wants (and whom appears interested in him) to date off of an AIDS Walk list. At the time of the episode's original broadcast, this type of "ingenuity" was not socially acceptable and Jerry could not stop thinking about what would happen if the woman found out how he acquired her phone number. However, Jerry did not use private information that only an employee of a company could utilize to try to obtain a phone number.
Even though this occurred in Australia, and there has not been any litigation yet, I believe that this type of behavior has occurred in the United and will occur again here. I predict that there is going to be a tremendous amount of litigation in the future regarding social media misuse.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
This story reminds me of the old Seinfeld episode where Jerry gets the phone number of a woman he wants (and whom appears interested in him) to date off of an AIDS Walk list. At the time of the episode's original broadcast, this type of "ingenuity" was not socially acceptable and Jerry could not stop thinking about what would happen if the woman found out how he acquired her phone number. However, Jerry did not use private information that only an employee of a company could utilize to try to obtain a phone number.
Even though this occurred in Australia, and there has not been any litigation yet, I believe that this type of behavior has occurred in the United and will occur again here. I predict that there is going to be a tremendous amount of litigation in the future regarding social media misuse.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, October 6, 2009
Details In The New FTC Endorsements and Testimonial Rules May Curb False Product Testimonial Claims But It Will Create Confusion
The Federal Trade Commission just released its final guidelines governing the use of edorsements and testimonials in advertising. Implementing updated rules for the first time since 1980 is a great idea. A lot has changed since the Carter administration. In particular, the Internet has supplanted television, radio, and printed newspapers as the most important media communication tool. However, upon closer review of the new rules, it appears that some of the rules are beneficial, while others are ill conceived, difficult to enforce, and create more problems than then solve.
I recently reviewed the text of Federal Register Notice 73 FR 72374 that was published last year. This notice discussed proposed changes to the regulations governing endorsements and advertisements. The new guidelines published in 16 CFR Part 255 are subject to go into effect on December 1, 2009. Under the new rules, bloggers will now have to disclose if they are receiving monetary incentives or payment in kind to write about a product or service. Additionally, celebrities will now be required to disclose if they have any economic ties to a product or service if they promote a product it on a talk show or via social media. I am in favor of the spirit of these rules because it will inform consumers about any possible conflicts of interest by those who are giving testimonials. Unfortunately, the rules appear to be intentionally broad and ambiguous and therefore they may cause more problems than they solve.
In addition, as part of the overhaul, there is a less publicized rule regarding celebrity endorsements that I like to call the Entertainment Lawyer Employment Act. Under this new rule, if a celebrity stars in an advertisement and reads a script that misleads the public about a product or a service, the celebrity may be personally liable along with the company who hired the celebrity. This new rule will force entertainment lawyers to include language in endorsement deals that requires advertisers to cover any attorney fees an endorser may incur related to the endorsement.
16 CFR Part 255 states, "[t]he addition of new Section 255.1 (d) and the new examples featuring celebrities, does not create new liability for celebrities, but serves merely to let them (and their advisors) know about the potential liability associated with their endorsement activities." I have to disagree with this assertion because it opens the door for celebrities to be held personally responsible for the information in their paid endorsements.
If you read example 4 on 73 FR 72391, you will understand the ridiculousness of the above statement about the rule. The rule places an unfair burden on celebrities and actors to ensure that the content of an advertisement is not misleading. This burden should only be with the company that is making the claim and not an actor. In the example that the FTC provides, a celebrity endorser is pitching a chicken roasting system. During the commercial's taping, the celebrity watches the roasting system cook 5 chickens incorrectly. However, the script calls for the celebrity to state, "if you want the perfect chicken every time, in just 30 minutes, this is the product you need." The celebrity follows the script as required by his or her contract and under the new rules the celebrity is subject to liability along with the advertiser for misrepresentation. The rationale given is that, "a significant percentage of consumers are likely to believe the celebrity's statements represent his own views even though he is reading from a script."
I have no problem with the advertiser being liable for intentional misrepresentations, but holding an actor, celebrity, professional athlete, or paid endorser liable also over reaches. This new rule may force paid endorsers to read scientific journals or memorize the Encyclopedia Britannica to ensure that their statements about products they endorse are true. Additionally, it may require specialized insurance to cover any claims that may arise from a celebrity endorsement. If a significant percentage of consumers in our country believe everything that comes out of a celebrity's mouth we have a bigger problem on our hands that no guidelines will be able to resolve.
If John Madden states, "EA Sports Madden NFL Football is the Perfect Football Video Game," he may be liable under the FTC's new rules for misrepresentation. Every Baltimore NFL fan knows this is a false statement because the perfect NFL football video game would have an All-Time Baltimore NFL team that includes both Johnny Unitas and Ray Lewis playing on the same Baltimore NFL team. Until Madden's NFL football game corrects this problem, Mr. Madden and EA Sports cannot claim that Madden NFL Football is the perfect product without incurring liability under the new rule.
Do you now see the ridiculousness of this part of the new guidelines?
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
I recently reviewed the text of Federal Register Notice 73 FR 72374 that was published last year. This notice discussed proposed changes to the regulations governing endorsements and advertisements. The new guidelines published in 16 CFR Part 255 are subject to go into effect on December 1, 2009. Under the new rules, bloggers will now have to disclose if they are receiving monetary incentives or payment in kind to write about a product or service. Additionally, celebrities will now be required to disclose if they have any economic ties to a product or service if they promote a product it on a talk show or via social media. I am in favor of the spirit of these rules because it will inform consumers about any possible conflicts of interest by those who are giving testimonials. Unfortunately, the rules appear to be intentionally broad and ambiguous and therefore they may cause more problems than they solve.
In addition, as part of the overhaul, there is a less publicized rule regarding celebrity endorsements that I like to call the Entertainment Lawyer Employment Act. Under this new rule, if a celebrity stars in an advertisement and reads a script that misleads the public about a product or a service, the celebrity may be personally liable along with the company who hired the celebrity. This new rule will force entertainment lawyers to include language in endorsement deals that requires advertisers to cover any attorney fees an endorser may incur related to the endorsement.
16 CFR Part 255 states, "[t]he addition of new Section 255.1 (d) and the new examples featuring celebrities, does not create new liability for celebrities, but serves merely to let them (and their advisors) know about the potential liability associated with their endorsement activities." I have to disagree with this assertion because it opens the door for celebrities to be held personally responsible for the information in their paid endorsements.
If you read example 4 on 73 FR 72391, you will understand the ridiculousness of the above statement about the rule. The rule places an unfair burden on celebrities and actors to ensure that the content of an advertisement is not misleading. This burden should only be with the company that is making the claim and not an actor. In the example that the FTC provides, a celebrity endorser is pitching a chicken roasting system. During the commercial's taping, the celebrity watches the roasting system cook 5 chickens incorrectly. However, the script calls for the celebrity to state, "if you want the perfect chicken every time, in just 30 minutes, this is the product you need." The celebrity follows the script as required by his or her contract and under the new rules the celebrity is subject to liability along with the advertiser for misrepresentation. The rationale given is that, "a significant percentage of consumers are likely to believe the celebrity's statements represent his own views even though he is reading from a script."
I have no problem with the advertiser being liable for intentional misrepresentations, but holding an actor, celebrity, professional athlete, or paid endorser liable also over reaches. This new rule may force paid endorsers to read scientific journals or memorize the Encyclopedia Britannica to ensure that their statements about products they endorse are true. Additionally, it may require specialized insurance to cover any claims that may arise from a celebrity endorsement. If a significant percentage of consumers in our country believe everything that comes out of a celebrity's mouth we have a bigger problem on our hands that no guidelines will be able to resolve.
If John Madden states, "EA Sports Madden NFL Football is the Perfect Football Video Game," he may be liable under the FTC's new rules for misrepresentation. Every Baltimore NFL fan knows this is a false statement because the perfect NFL football video game would have an All-Time Baltimore NFL team that includes both Johnny Unitas and Ray Lewis playing on the same Baltimore NFL team. Until Madden's NFL football game corrects this problem, Mr. Madden and EA Sports cannot claim that Madden NFL Football is the perfect product without incurring liability under the new rule.
Do you now see the ridiculousness of this part of the new guidelines?
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, October 3, 2009
The UK's High Court Permits Injunction To Be Served Via Twitter
The United Kingdom's High Court has permitted an injunction to be served via Twitter. Under UK law, there is no requirement that an injunction be served in person. In the UK, injunctions may be served via fax and e-mail, and now via social media.
It is possible that one day service by social media will be allowed in the U.S. However, the authentication issues involved must be properly addressed. One reason for requiring personal service in the U.S. is to ensure that the person being sued is made aware of the litigation. In my opinion, it may take years, but once all of the authentication issues are addressed it would not surprise me if service of process by social media is eventually allowed in the U.S.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
It is possible that one day service by social media will be allowed in the U.S. However, the authentication issues involved must be properly addressed. One reason for requiring personal service in the U.S. is to ensure that the person being sued is made aware of the litigation. In my opinion, it may take years, but once all of the authentication issues are addressed it would not surprise me if service of process by social media is eventually allowed in the U.S.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, October 1, 2009
Catch-22: Scrib.com Copyright Dispute Has the Potential to Create New Law
A unique copyright lawsuit has recently been filed in the U.S. District Court of the Southern District of Texas, Houston Division. The lawsuit was filed by Elaine Scott, an author of children's books against Scribd.com, an internet based social publishing company. Ms. Scott claims that Scribd.com is violating copyright law because it is using unauthorized "digital fingerprints" of her book "Stocks and Bonds, Profits and Losses: A Quick Look at Financial Markets" ("Stocks and Bonds") in a filtering system to ensure that her book does not appear again on its website.
In July 2009, Ms. Scott visited Scribd.com and found that her book "Stocks and Bonds" was illegally uploaded to the site. Subsequently, a letter was sent to Scribd.com notifying the company about the copyright violation. Scribd.com removed the copyrighted work and left "digital fingerprints" of the work in its filtering system to ensure that the the copyrighted work did not appear again on its website. However, before including the "digital fingerprints" of the copyrighted work in its filtering system, it appears that Scribd.com did not obtain a license from Ms. Scott permitting it to utilize her work in this manner.
Generally, before a copyrighted work can be utilized a license from the copyright holder must be obtained. For example, when The Sopranos ended a couple years ago, the show's creator had to obtain permission from the band Journey so the song "Don't Stop Believin" could be played in the background of the last scene of the series finale. Sometimes, copyrighted material may be used without obtaining permission due to the Fair Use Doctrine. In determining whether a utilization falls under the Fair Use Doctrine there are 4 factors that the courts consider.
This lawsuit brings up a very interesting Catch-22 for companies trying to abide by copyright law after they are notified of a copyright violation. If a company does not take protective measures to ensure that it is following copyright law, the company may be held liable for copyright infringement. However, Scribd.com's solution to avoid violating copyright law appears to include a filtering system that may violate copyright law by utilizing part of the author's work without permission. The courts will have to decide if utilizing part ("digital fingerprints") of a copyrighted work without an author's permission in a filtering system to stop others from committing copyright infringement falls under the Fair Use Doctrine.
In my opinion, Scribd.com and others in Scribd.com's space should be denied the ability to claim Fair Use because Scribd.com is in the commercial business of publishing content and its proprietary filtering system may be licensed out to other companies confronting the same dilemma as Scribd.com. Therefore, Scribd.com should be forced to obtain a license from Ms. Scott. However, since Scribd.com appears to be trying to protect Ms. Scott's published work, Ms. Scott should not be allowed to obtain an unreasonable license fee. If Scribd.com would have approached Ms. Scott about obtaining a license before including her work without her permission in its filtering system, I believe Ms. Scott would have granted the required license at a reasonable rate. I learned a long time ago that being polite and making a fair offer resolves most legal matters.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
In July 2009, Ms. Scott visited Scribd.com and found that her book "Stocks and Bonds" was illegally uploaded to the site. Subsequently, a letter was sent to Scribd.com notifying the company about the copyright violation. Scribd.com removed the copyrighted work and left "digital fingerprints" of the work in its filtering system to ensure that the the copyrighted work did not appear again on its website. However, before including the "digital fingerprints" of the copyrighted work in its filtering system, it appears that Scribd.com did not obtain a license from Ms. Scott permitting it to utilize her work in this manner.
Generally, before a copyrighted work can be utilized a license from the copyright holder must be obtained. For example, when The Sopranos ended a couple years ago, the show's creator had to obtain permission from the band Journey so the song "Don't Stop Believin" could be played in the background of the last scene of the series finale. Sometimes, copyrighted material may be used without obtaining permission due to the Fair Use Doctrine. In determining whether a utilization falls under the Fair Use Doctrine there are 4 factors that the courts consider.
This lawsuit brings up a very interesting Catch-22 for companies trying to abide by copyright law after they are notified of a copyright violation. If a company does not take protective measures to ensure that it is following copyright law, the company may be held liable for copyright infringement. However, Scribd.com's solution to avoid violating copyright law appears to include a filtering system that may violate copyright law by utilizing part of the author's work without permission. The courts will have to decide if utilizing part ("digital fingerprints") of a copyrighted work without an author's permission in a filtering system to stop others from committing copyright infringement falls under the Fair Use Doctrine.
In my opinion, Scribd.com and others in Scribd.com's space should be denied the ability to claim Fair Use because Scribd.com is in the commercial business of publishing content and its proprietary filtering system may be licensed out to other companies confronting the same dilemma as Scribd.com. Therefore, Scribd.com should be forced to obtain a license from Ms. Scott. However, since Scribd.com appears to be trying to protect Ms. Scott's published work, Ms. Scott should not be allowed to obtain an unreasonable license fee. If Scribd.com would have approached Ms. Scott about obtaining a license before including her work without her permission in its filtering system, I believe Ms. Scott would have granted the required license at a reasonable rate. I learned a long time ago that being polite and making a fair offer resolves most legal matters.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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