Category Archives: Law

Did Swatch Kill The iWatch?

iswatchIn news reported by the BBC, it seems that Swatch‘s opposition to Apple‘s application for an iWatch trademark in the UK resulted Apple’s smartwatch simply being branded “Apple Watch”.  Overall, the ruling from the UK’s Intellectual Property Office upheld Swatch’s complaint that iWatch was too similar to iSwatch and Swatch, and shouldn’t be used for watches. Although we can’t be privy to the internal thinking of Apple, one could infer that the inability to claim the iWatch trademark in key markets back in 2014 killed iWatch in favour of Apple Watch when announced in 2015.

The whole ruling is here, but aside from the trademark evidence, decision-making and ruling, there’s some interesting commentary on the use of shell company registrants, in this case BrightFlash USA LLC to hide the actions of Apple. If I read the judgement correctly (and I’m certainly not a lawyer), Swatch had tried to accuse Apple of “bad faith” by using BrightFlash to register the trademark, but the registrar dismisses the complaint and Swatch has to to pay Apple GB£2,767 on balance. You win some, you lose some.

Uber Settles Discrimination Lawsuit

uberlogo[1]Ride-sharing service Uber agreed to settle a lawsuit brought against them by the National Federation of the Blind. The suit contended that Uber was engaging in discriminatory practices by refusing to pick up blind passengers with service dogs. The settlement is still being reviewed by a judge and pending approval. The terms of the settlement force Uber to notify all of its drivers that they must take all passengers with service animals. The suit also awards $225,000 to the National Federation of the Blind over three years.

From a statement released by Uber:

As part of this settlement, we have agreed to take steps to make clear to drivers using Uber that they are obligated to transport to any passenger with a service animal. If the settlement is approved, drivers will see a pop-up in the Uber app reminding them of this obligation. We will also send periodic email reminders to drivers.

We have also agreed to publish a service animal policy which, in addition to our code of conduct and new deactivation policy, makes clear that any driver found to have refused someone with a service animal will be barred from using the Uber platform.

The National Federation of the Blind will deploy blind passengers with service animals to help test the new measures put in place by the settlement.

LinkedIn Will Pay $13 Million to Settle Lawsuit

LinkedInDid you get an email from LinkedIn about a class-action lawsuit? The reason you received it is because LinkedIn will be paying a $13 million settlement. You might be eligible to receive a very small portion of that money.

We’ve all received those annoying, unwanted, spammy emails from LinkedIn. Someone who uses LinkedIn wants to add you to his or her professional network. Ignore the email, and one or two more “reminders” may appear in your inbox.

In 2013, I got so annoyed at the LinkedIn emails that I took to Twitter to complain about it. I’d stopped using LinkedIn a long time before that and had deleted my account. There was no possible way for people to add my non-existent account to their professional network.

My tweet got a response from @LinkedInHelp. To make a long story short, LinkedIn helped me to get my email address placed on their Do Not Contact list. The unwanted emails stopped – for that particular email address. I chose to just ignore the ones that I was receiving in my other email addresses.

A class-action lawsuit was filed by people who were even more disgruntled about those annoying emails than I was. One of their complaints was that they did not consent to having LinkedIn send two additional “reminder” emails to their contacts. Some felt that the “reminder” emails could cause harm to their professional reputation. A contact might incorrectly conclude that they were being spammy (when it was actually LinkedIn itself sending out the extra emails).

If you recently received an email about this class-action lawsuit, it could mean you might be eligible for some of the settlement money. The settlement is for people who used the “Add Connections” feature on LinkedIn. Start by filling out a claim on the website that discusses the settlement. The amount you will receive is unknown, and depends upon how many people file a claim for it.

It is Now Legal to Unlock your Cellphone

lock with keyPresident Obama signed a bill into law that is going to make a lot of cellphone users very happy. The bill was called the Unlocking Consumer Choice and Wireless Competition Act. This bill was written in response to a We the People petition that was titled “Make Unlocking Cell Phones Legal”.

How does this affect you? It is now legal for you to unlock your phone so that you can change carriers without having to purchase a new device. It is also now legal for you to sell, or buy, unlocked phones.

There are some things to be aware of, however. The new law doesn’t override terms of service contracts that people have already signed with their carriers. In other words, if your contract said that you can’t unlock your device for two years after you purchased it – you are still going to have to abide by that contract. Details on contracts vary by device and carrier, though, so you might want re-read yours.

This new law does not legalize the unlocking of tablets or other devices – only cellphones. However, wording in the bill does instruct the Library of Congress to consider making exemptions for those devices when it reviews things next year. That brings me to the key thing to know about this new law. It is a temporary solution! The Library of Congress will be reviewing exemptions again in 2015.

Image by Joe Buckingham on Flickr.

Canada Implements World’s First Law Regulating Bitcoin

Bitcoin logoThe Parliament of Canada has approved the world’s first national Bitcoin law. It is the first official law that concerns the treatment of Bitcoin financial transactions under national anti-money laundering law.

Bill C-31 was an amendment to Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA). In other words, the bill amended, or made a change to, an existing Canadian anti-money laundering law. Here are some key points of the law:

Regulates Bitcoin as an MSB (money services business): “Bitcoin dealing, more specifically referred to as ‘dealing in virtual currencies’ in Bill C-31, will be subject to the record keeping, verification procedures, suspicious transaction reporting and registration requirements under the PCMLTFA as a money services business.”

Does not define “dealing in virtual currencies”: “The phrase ‘dealing in virtual currencies’ was left undefined and it is not known what the defined term will encompass in terms of business activities once defined by regulation.”

Registration with FINTRAC (the Financial Transactions and Reports Analysis Centre of Canada): “Bitcoin dealers will be required to register with FINTRAC and if successfully registered, to implement a complete anti-money laundering compliance regime.”

Captures foreign Bitcoin companies targeting Canada: In short, the bill extends to entities that have a place of business in Canada and also to entities that have a place of business outside Canada (but who direct services at persons in Canada).

Prohibits banks from opening accounts for Bitcoin entities if unregistered: “Under Bill C-31, banks will be prohibited from opening and maintaining correspondent banking relationships with Bitcoin dealers that are not registered with FINTRAC.”

Another key point to understand is that Canada’s Governor General gave Royal Assent to Bill C-31. Under Canadian law, that on it’s own does not necessarily mean that the bill instantaneously goes into force. Certain parts of the bill come in force on dates that were set in the bill. Other portions will come in force on a date determined by the Governor General.

First Class Action Lawsuit Filed Against Instagram

InstagramWell, that didn’t take long! The first class action lawsuit against Instagram has been filed. This civil lawsuit was filed in U.S. District Court, Northern District of California. The case is called “Lucy Funes, individually and on behalf of all others similarly situated vs. Instagram Inc.”. It was filed by a San Diego based law firm called Filkelstein & Krinsk.

As you may have guessed, this lawsuit is about Instagram’s recent change to its terms of service. After much public outcry, (and a lot of people removing their photos from Instagram and taking them elsewhere), Instagram did make a modification to the unpopular change in its terms of service.

However, the lawsuit is in regards to a portion of the terms that are still there. Instagram kept in the wording that gives it the ability to take user content (the photos people put on Instagram), and place ads in conjunction with that content. There is a part of the terms of service that is still in effect that says that Instagram “may not always identify paid services, sponsored content, or commercial communications as such”.

The lawsuit is also about another issue related to the first one. People who used Instagram, but didn’t like the new terms of service, had no option other than to cancel their profile. Many did exactly that. However, the lawsuit notes that users who have canceled their profile then forfeit rights to their photos that they once shared through Instagram.

In response, Facebook spokesman Andrew Noyes had this to say to Reuters:

We believe this complaint is without merit and we will fight it vigorously.

When Instagram changed its terms of service, it included a mandatory arbitration clause. In short, that basically means that users who didn’t like the new terms of service could not sue Instagram. It would result in unhappy users waiving their rights to participate in a class action lawsuit.

However, that portion of the new terms of service doesn’t take effect until sometime in January of 2013. This means that it is possible for “all others similarly situated” to become a part of this class action lawsuit.

Judge Approves Facebook “Sponsored Stories” Settlement

There has been an interesting update to the settlement of a class-action lawsuit that was about Facebook’s “Sponsored Stories”. This is the lawsuit that was filed in federal court in San Jose, California, by five Facebook members who were upset after seeing their likenesses appear on one of Facebook’s “Sponsored Stories” without their permission.

In short, the five people said that Facebook violated California law by publicizing when a user clicks “like” on pages of certain advertisers and when Facebook puts that information into its “Sponsored Stories” feature. At the time, Facebook was not giving users a way to opt out of having their likenesses included in advertisements in this way, and it was not paying users whose likenesses or opinions were placed into an ad.

Earlier this year, U.S. District Judge Lucy Koh decided that the Facebook users who filed the lawsuit were able to show “economic injury could occur through Facebook’s use of their names, photographs, and likenesses”. The result was that Facebook was going to have to pay $10 million dollars to a charity. As far as I can tell, the exact charity was never named.

Today, the details of the settlement have been changed. Instead of Facebook giving $10 million dollars to a charity, Facebook is going to have to set aside $20 million.

That money is to be used to provide payments of up to $10 dollars to each Facebook user who has objected to being included in the “Sponsored Stories”. Facebook has also agreed to create new controls that will give users the ability to opt out of being put into “Sponsored Stories”.

The new details of the settlement have been approved by U.S. District Judge Richard Seeborg. Both Facebook and the users who filed the class-action lawsuit have agreed to the new settlement.

The story is not completely over, though. Attorneys for the Center for Public Interest Law want Facebook to be required to obtain affirmative consent from parents before Facebook uses the name or photo of any Facebook user who is under the age of 18 in the “Sponsored Stories”, (or anywhere else). The current settlement does not include that protection. There is the possibility that an objection to this settlement will be filed.

Image: Stock Photo Ten Dollars by BigStock

Freedom of Speech in the UK

Law GavelIn the latest podcast, Todd rightly asks about the apparent lack of freedom of speech on social media in the UK. Undoubtedly, it’s a complex issue but it is becoming increasingly clear that the right to free speech is under threat here in Britain. In this post, I’ll look at some of the issues, but to start with, I am not a lawyer (thank goodness) and this doesn’t constitute legal advice.

Unlike the USA, the UK does not have a written constitution guaranteeing rights. The closest the Britain gets to this is the Human Rights Act (1998) which only came into force in 2000. The Human Rights Act is the embodiment in UK law of the European Convention on Human Rights (pdf).  The ECHR’s Article 10 provides the right to freedom of expression but as will be noted from part 2 of the article below, there are plenty of possible exceptions. I’ve embolden the part that is relevant to the discussion here.

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Obviously, the UK police do not pro-actively monitor social media looking for offensive posts. A complaint has to be received by the police based on someone taking offence at a posting on social media. The UK law has increasingly moved away from “offence intended” to “offence taken”. This was primarily done to increase the power of law in areas of discrimination, where people could avoid convictions by claiming that sexually or racially offensive language wasn’t intended in the way it was taken. Now the law supported those who were offended by the sexual or racial innuendo, regardless of intention. However, the “offence taken” law has grown out of its discriminatory roots to take hold in almost any area of offence.

Much as the compensation culture has grown, a similar one has arisen that “bad things” are always someone else’s fault and they have to pay. Although it started with physical hurt, this has gradually extended to psychological hurt and finally simple feelings. Instead of “sticks and stones will break my bones”, it’s “I’m going to tell on you.”

Finally, both the police and the legal system have increasingly taken a view of what’s legal and illegal rather than what is right and wrong. Consequently, instead of the police looking at the social media post with a bit of common sense and telling the complainant to grow-up, the police are now obliged to follow procedure and take up the complaint.

Overall, these changes in the law and approaches to policing now mean that abusive and offensive comments are taken much more seriously than before.

Let’s take a look at three cases that show the variety of circumstances.

The first tweet to come to widespread notice was Paul Chamber’s tweet in response to his local airport being shut because of snow. “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your (expletive deleted) together, otherwise I’m blowing the airport sky high!!” He was initially found guilty in May 2010 of sending a “menacing electronic communication” but fortunately eventually won his challenge in July of this year. The whole incident was farcical and made the law look stupid.

The second isn’t a tweet but a T-shirt worn in response to the shooting of two police officers that said, “One less pig perfect justice”, pig being an abusive slang term of the police. Barry Thew was jailed for four months for this, but many would have seen this as political commentary, particularly as it was about to be revealed that the police covered up their incompetence in a sporting disaster in which 96 people died by disgracefully blaming football fans killed and injured in the incident.

And finally, Britain has been embroiled in child sex abuse scandal involving a well-loved (but now dead) BBC TV personality. In the wake of this, a living person was named on Twitter as being a paedophile when he was wholly innocent and completely blameless. He’s now suing everyone who repeated the lie unless they apologise.

As can be seen, it’s a complex issue with both the freedom of speech under threat and the rights of others needing to be protected. The Crown Prosecution Service has recognised that there is potentially a problem and is intending to consult with the legal profession and social media companies. The Director of Pubic Prosecution, Keir Starmer, QC, has said that “People have the right to be offensive, they have the right to be insulting, and that has to be protected.

In a recent statement about another tweeting case, the DPP said, “Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors but also by others including the police, the courts and service providers. The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.

There’s hope yet.

Courtroom Gavel photograph courtesy of Bigstock.

Apple, Samsung and a Third Way for Patents

Samsung LogoWhen I heard the verdict on the Apple v. Samsung case, I was angry. Angry with Samsung for copying, angry with Apple for suing, angry with jurors for naivety, angry with the legal system for letting itself be a pawn. Over the weekend, I’ve mellowed a little but I’m still concerned about the impact it will have on consumers.

Apple is not a great first inventor. It didn’t invent the PC, the GUI, the digital music player, the smartphone or the tablet: I will leave it as an exercise for the reader to educate themselves as to who did. Apple is great at design, marketing, timing and extracting value from suppliers, partners and customers. Absolutely no doubts there and they have the bank balance to prove it.

Android LogoThe word on the street was that Apple was looking for a $30 licensing fee to cover the use of the patents. As a consumer, I think that’s a rip off when compared to the overall price of the device. None of those patents are intrinsic to the device and I would happily have a phone or tablet that doesn’t have those features. Multitouch and pinch-to-zoom is over-rated generally, and as for the bounce-back, it’s a waste of CPU cycles.

Obviously there are two possible outcomes from an Android perspective. Either the patents are circumvented and Android users get an arguably lesser experience or the manufacturers stump up the licensing fees.

But there is a third way…Wouldn’t it be great if, as an Android consumer, one could choose whether to avail of certain patents or not? You could accept the Apple licensing and pay the extra $30 or else decline and get the non-infringing version. How brilliant would that be and it would let the market decide which patents are valuable and which aren’t.

Of course, the chances of it happening are slim but remember Google and Samsung, you read it here first.

Nothing to Hide, Nothing to Fear?

Interception of Communications Commissioner“If you’ve nothing to hide then you’ve nothing to fear” is often trotted out in the debate around privacy and secrecy. Superficially it seems reasonable but even with a modicum of critical thinking, the adage becomes trite and flawed. However, even if you did believe that “nothing to hide, nothing to fear” was reasonable, then the latest report from the British 2011 Annual Report of the Interception of Communications Commissioner (.pdf) ought to give food for thought.

The report covers the Regulation of Investigatory Powers Act (RIPA) which includes the postal service, telephony and electronic forms of communication, and can be carried out for both law enforcement and national security purposes. There are two distinct areas, the first being the interception of communications and the second being the acquisition of communications data. Simplistically, the first area is about directly listening in on a communication and the second is about who, when and where a communication took place.

In 2011, the total number of lawful interception warrants for the UK was 2911, and this all seems quite reasonable, given the population of the UK (60-odd million). However, in amongst the successful security operations, we also find that the security and associated agencies made 42 mistakes (1.4%), usually through typographic errors. In all instances, the error was discovered before the intercept took place or else all the material associated with intercept was destroyed.

Communication data requests cover information about communications, mainly subscriber data, service use data and traffic data, rather than the content of the communication itself. There were 494 078 communication data requests in 2011, an 11% decrease on the previous year. As you might guess, there were a few errors there too, with 895 mistakes being reported. Although this represents an error rate of only 0.18%, I’m sure it will be of little comfort to the two wholly innocent individuals who were arrested by the police because of these mistakes. Again typographic errors in the transcriptions of phone numbers or IP addresses were largely to blame but of additional concern was that nearly 100 of the errors were identified by auditors and weren’t recognised at the time of the requests.

If you think that because you’ve nothing to hide then you’ve nothing to fear, think again. You’ve everything to fear from the transposed digit, the wrong post code look-up and the minimum-wage flunky copying and pasting from the wrong records.

Probably not what you were worried about at all.