Technology and Business Law Blog

Privacy Rights of Celebrities and Others

When it comes to publicity and privacy rights it can be a fine dividing line. Madonna the famous singer has won a case against the U.K tabloid the Mail for publishing her wedding pictures.  Madonna is a celebrity and as such does not normally have privacy rights to her pictures that were taken by someone even without her permission.  This statement would have been true if the pictures were taken when she was in a public place, but the fact that the wedding was an private affair where no pictures were taken and the ones taken were by a photographer Jean-Baptiste Mondino and they were presented to Madonna as a gift. These pictures were never published and were kept in her house away from the eyes of the public.

Even celebrities have a right to privacy and in terms of the copyrights on the photographs, if Madonna had hired the photographer then she would own the copyrights to them even if the photographer chose not charge for them and gifted them to Madonna, but if the photographer on his own accord took the photos and then gave them to Madonna as a gift then he will still own the copyrights to the photographs.

Another privacy issue is the searching of digital devices like cell phones and laptops at the U.S borders when one enters the country. Objecting to this practice, civil rights groups have filed cases, claiming racial profiling, invasion of privacy and unreasonable search and seizer without probable cause.  Now a handful of bills have been introduced that could pass next year.

One measure, sponsored by Sen. Russell Feingold, D-Wis., chairman of the Constitution subcommittee, would require reasonable suspicion of illegal activity to search the contents of electronic devices carried by U.S. citizens and legal residents. It would also require probable cause and a warrant or court order to detain a device for more than 24 hours. And it would prohibit profiling of travelers based on race, ethnicity, religion or national origin.

Rep. Eliot Engel, D-N.Y., is sponsoring a bill in the House that would also require suspicion to inspect electronic devices. Engel said he is not trying to impede legitimate searches to protect national security. But, he said, it is just as important to protect civil liberties. Read here.

This in my opinion is good since, under the Bush Adminstration, under the Patriot Act, laws were streatched and many of our constitutional rights were under seige. Hopefully, under the new  adminstration there will be more of a balance and ordinary people will not be harrassed just because there have different sounding last names or because they look different.

December 8, 2008 Posted by | Uncategorized | | 1 Comment

Steps to Set Up a Nonprofit Corporation in California

Here are the basic steps that need to be followed in the case of a nonprofit, assuming that the organization does not have any assets, is not leasing any property and that you don’t receive more than $25,000 in gross receipts in a year.

1. Reserve name for the nonprofit corporation with the Secretary of State and after receiving the reserved name need to file the articles within 60 days, otherwise need to send in another application to reserve the name.

2. File the articles (4 copies) for the nonprofit corporation along with a cover letter and check of $30.00 (filing fee) to the Secretary of State in Sacramento. Need to make four copies of the typed articles (3 for filing and 1 for the records of the organization). The person who reserved the name for the corporation must sign the cover letter.

3. Even before actually filing the articles with the Secretary of State it is a good idea to have the State and Federal tax exemption forms ready to see if the organization will qualify for nonprofit status. Have an accountant do this, the tax aspects for nonprofits are pretty challenging and very important. Also, before filing these forms with the State and Federal tax authorities the nonprofit corporation has to be formed (which means that the articles has to be filed, certified and sent back by the Secretary of State).

4. After the certified articles are received, one of the certified copies must be sent by the nonprofit organization to the Franchise Tax board along with the state tax exemption form (form 3500), the second to the IRS with the federal tax exemption form (form 1023)*** and the third certified copy will be forwarded by the California Secretary of state to the Attorney General, Registry of Charitable Trusts, who will get back to the nonprofit organization with additional forms to be filled. See # 9 below.

Also make additional copies of these certified articles to be used for filing with the post office to get a nonprofit mailing permit and for other later needs.

5. Prepare the Bylaws. Non-membership corporations are simpler to operate and establish. Opt for a non-membership corporation run by a board of directors and the number of directors has be more than two but less than five people.

6. Set up a corporate records book, a corporate kit might not be needed if membership certificates are not being issued.

7. Prepare the Minutes of the First Board of Directors Meeting. The purpose of the meeting is to transact the initial business of electing officers, fixing the legal address of the corporation etc. It could be a paper meeting.

8. File the Domestic Corporation Statement (form SI-200). The form will request basic organizational information. The initial agent designated in the articles of incorporation is the agent for the service of process. This form must be filled out and sent back to the Secretary of State within 90 days of the date the articles are filed.

9. After the Secretary of State forwards a copy of the articles to the attorney general, the attorney general will send a initial report form (Form CT-1) to complete and file, and an annual reporting form (RRF-1) to complete and file for the second and subsequent years of the corporation.

*** The tricky part of forming a nonprofit corporation is the tax aspects of it, and one of the main reasons to form such an organization is to avail of the tax benefits. It is very important to consult with an accountant who is well versed in the taxation aspects of nonprofit corporations to check as to the various forms that need to be filled, the requirements in the forms, the deadlines, if and how the organization can qualify. There are also tax forms that need to be filled after the corporation is formed like IRS Form 990-EZ or Form 990-T.

It is important that the tax authorities do not classify the organization as a nonprofit private foundation, in which case the corporation might need to be dissolved immediate

October 14, 2008 Posted by | Uncategorized | , | 19 Comments

Oh Harry Potter/ Hari Puttur!

There we go again, this time Warner Bros is filing a suit against the release of the Bollywood film “Hari Puttur” because when pronounced in American or British English accent it sounds like “Harry Potter”. This is so ridiculous and shows clear ignorance, intolerance and unwillingnessto open up to different languages and cultures of the world.

‘Hari’ is a very common name in India and means God, and in Punjabi puttur means son, so “Hari puttur” could mean either the son of God or the son of a man named Hari. When said with an Indian or Punjabi accent it no way sounds like “Harry Potter”. Please Warner Bros don’t exhibit your ignorance, intolerance and desperation by filing legal suits in India, they will be thrown out. The movie Hari Puttur doesn’t have anything common to the movie “Harry Potter”.  J.K. Rowling should spend her time writing books and not filing law suits all over the world. She has a law suit in the U.S. which is defended by the Stanford law school ‘Fair Use’ project.

Last year there was another law suit filed in India stating that the pandal or structure for a Durga puja celebration was similar to the Hogwarts building in the film Harry Potter, but the courts in India dismissed the law suit.

August 31, 2008 Posted by | Uncategorized | | 2 Comments

Recent IP and Technoloy Law Happenings

Here are some interesting recent happenings both in the U.S. and in India on IP and technology law.

The litigation that was on for a while and made interesting reading is the battle between the fashion icons Barbie v. Bratz and the more long standing and mature co ntender Barbie wins $100 million in a copyright infringement law suit. The side issue in the matter was breach of contract because Mattel the maker of Barbie filed a law suit against MGA Entertainment the maker of Bratz stating that the design for Bratz was taken from Barbie while the designer worked with Mattel.

Now, the greatest cyber criminal in the world is an Indian and has allegedly helped a criminal gang steal identities of an estimated eight million people in a hacking raid that could ultimately net more than 2.8 billion pounds in illegal funds.

More on cyber crimes, malicious software, the worm, called Koobface, turns compromised computers into “zombie” machines that can be used in other types of online attacks.

In India, criminal proceeding against eBay India under section 85 of the Information Technology Act, 2000 for an alleged sale of an obscene video clip showing two Delhi students was halted by the Supreme Court.

What do “hacktivists” do? They scrutinize a new weapon of international warfare: cyber attacks.

The Indian government has drafted new company law. The law permits to recognize e-mail as a valid piece of evidence. Also the government at various levels are trying to harmonize related legislations like Information Technology Act and Evidence Act on the subject, so as to avoid regulatory overlaps. Even as the company law awaits amendments to this effect, the Competition Commission of India (CCI) feels corporate e-mails could be crucial evidence in cartel investigations.

August 27, 2008 Posted by | Uncategorized | , | 2 Comments

Take Down Notices Don’t Work

In spite of all the DMCA take down notices sent to YouTube, copyright infringement continues to grow on the site and the infringed material stays for a while before it is taken down and during that time it is viewed by a large number of people across the world. The take down notices have not really had an impact on reducing copyright infringement and has not reduced piracy.

Smaller artists have been promoting their songs etc, via YouTube and it has served as a good advertising platform, so the larger media companies have joined the bandwagon and follow the saying, if you cannot beat them, join them.

Large Media companies have finally woken up and realized that they cannot fight the postings on YouTube and now let the infringing material stay on the Youtube site and have decided to use it as advertising material. That is good thinking to save money, energy and time and surely creating goodwill and promoting the posted material. Curt Marvis, the president of digital media at Lionsgate Entertainment, said  “We don’t want to condone people taking our intellectual property and using it without our permission,” “But we also don’t like the idea of keeping fans of our products from being able to engage with our content.” he said. “For the most part, people who are uploading videos are fans of our movies. They’re not trying to be evil pirates, and they’re not trying to get revenue from it.”

August 18, 2008 Posted by | Copyright Infringement, DMCA, YouTube | | Leave a comment

Cyberlaw is Being Tested in Indian Courts

A business based in India is suing Google India (which was used as a blogging platform by a blogger) for hosting material that the plaintiff found to be defamatory and stated in its petition that a series of articles that amounted to a ‘hate campaign’ against the company were posted on Google’s blogging site with a title ‘Toxic Writer’ between January and February.

Cyberlaw is a new area of law that is still in its infancy all over the world and India is no exception. A case of this nature is for the first time being litigated and the court’s decision will set a precedent for similar cases to follow. The courts have to weigh this carefully before forming a judgement.

In the U.S. bloggers have the same constitutional protections as mainstream media and the First Amendment rights of free speech are zelously protected. According to EFF, First Amendment protections for publications are strong and can help you defend against unwarranted legal threats. If one receives a notice of a subpoena and they wish to retain their anonymity, they can file a motion to quash (drop) the subpoena. Many courts have required the subpoenaing party to show a compelling need for the information that outweighs the speakers’ constitutional rights to free speech and privacy.

Investigations by the Mumbai police’s cyber crime cell police could not make a break through as Google’s India office refused to co-operate.

August 16, 2008 Posted by | cyberlaw, Defamation, Free Speech, Google, India | 3 Comments

Sharing Media Content Without Infringing Copyright

If you cannot fight them then join them and if you can make money in the process nothing can beat that. A company called Digital Containers (www.digitalcontainers.com) introduced a new software that allows content owners to share, store and distribute copyrighted material over the Internet without losing control while providing monetization and metrics to the content owners.

The company provides ‘super distribution’ of online content for sharing digital media between consumers. According to the Washington Post article the way it works is that: Digital Containers works with media companies to “package” pieces of content, like an episode of “Lost,” in a container with an encrypted seal. As it’s passed from person to person, each new viewer that “unzips” the container agrees to either watch a few ads, or pay a few bucks, in exchange for getting premium content. When that viewer passes the container to another user, that person also starts a “relationship” with the media company that produced it. You may have to tell the company how old you are, or whether you’re male or female, which then helps to sell ads. Or, if you happen to share a lot of Jonas Brothers‘ songs with friends, Disney may want to give you a reward or incentive for spreading the music and helping to build the brand.

According to the company the way it handles the copyright issues are it legally licenses media from the copyright holders and therfore gains their permission to distribute their digital media, and then they digitally protect each copyrighted media file with copyright protection software or Digital Rights Management (DRM). DRM is the umbrella term referring to any of the several technologies used to enforce pre-defined policies controlling access to software, music, movies or other digital data. It distributes content by utilizing the different channels of the Internet like search engines, p2p, the web, RSS, blogs, social networks, IPTV, mobile etc and provides consumers with rich media experienc.

So unlike lots of other sites, their’s is not a website and it is a perfectly legal network marketing style distribution channel to share content.

August 15, 2008 Posted by | Copyright, Technology | | 1 Comment

Artistic License Terms- Copyright Infringement

In Jacobsen v. Katzer, the appellant brought an action against the appellees for copyright infringement for not following the terms of the Artistic License while copying and incorporating materials from it’s website.

The District court had stated that open source Artistic License created an “intentionally broad” non-exclusive license which is unlimited in scope and thus did not create liablity for copyright infringement. The appellete court’s analysis was otherwise stating that the Artistic License and other open source licenses cannot be randomly copied and modified without following the terms set forth in the license.

In this case the Artistic License required that changes to the computer code be tracked so that downstream users know what part of the computer code is the original code created by the copyright holder and what part has been newly added and altered by another collaborator. The appellate court stated that a user who downloaded the JMRI copyrighted material is authorized to make modifications and to distribute the materials “provided that” the user follows the restrictive terms of the Artistic License.

The crux of the appeal was that whether the terms of the Artistic License are just actionable under breach of contract based on covenants or if they were breach of conditions enforceable under copyright infringement. The court held that the term “provided that” denotes a condition and under copyright law the conditions under an Artistic License are enforceable. and so the Artistic License terms were conditions enforcable copyright conditions.

August 14, 2008 Posted by | Contract, Copyright Infringement, Licensing | | Leave a comment

Technology and the Fourth Amendment

Technology has made our lives magical and a fantasy. Not too many years ago, to communicate with others we wrote letters (real paper snail mail ones), before going somewhere we called people to get directions and poured over paper maps, when we missed an exit in the freeway we pulled over at a gas station and asked for directions or used the coin operated public telephones and we also minded our own businesses, did not invade into people’s privacy and followed established legal procedures to prosecute people.

Although technology has brought flexibility and convenience it has not reduced crime and in fact crime is getting more sophisticated and we have to now deal with the traditional and the technology related crimes. One of these technology crimes happens by invading our privacy and getting hold of our personal information. On the flip side technology is also being used by the enforcement authorities to track down and keep the crime rate down.

The issue that then arises is the conflict between use of technology and traditional principles of law laid down in the Constitution. One of the most common area of conflict arises in the area of the Fourth Amendment which relates to right to privacy. The text of the Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

According to Wikipedia, the Fourth Amendment specifies that any warrant must be judicially sanctioned for a search or an arrest, in order for such a warrant to be considered reasonable. Warrants must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a peace officer) who has sworn by it and is therefore accountable to the issuing court.

This safeguards the citizens rights against the enforcement officials stepping over the line, following procedures established by law and not being persecuted under any pretext.

Across the country, police are using GPS devices to snare thieves, drug dealers, sexual predators and killers, often without a warrant or court order. Privacy advocates said tracking suspects electronically constitutes illegal search and seizure, violating Fourth Amendment rights of protection against unreasonable searches and seizures, and is another step toward George Orwell’s Big Brother society. Read here.

Craig Fraser, director of management services for the Police Executive Research Forum, said tracking technology’s new capabilities might eventually require legal adjustments.

“The issue is whether the more sophisticated tools are doing the same things we used to do or are creating a different set of legal circumstances,” he said.

It is true that technology is helping the enforcement officials catch offenders of the law and cuts down on the resources utilized but on the other hand what about the citizens invasion of privacy and how does one decide in what circumstances it is OK to cross the line and not follow established procedures. Privacy has been greatly affected by the advancement in technology and the new challenge is figuring out how to use technology without the government breathing over our necks and also other entities and individuals misusing our personal information.

The solution is to use common sense by not putting out personal information out in the open and courts restricting the governments use of technology without following procedures.

August 14, 2008 Posted by | privacy, Technology | , , | Leave a comment

Surveillance and the Warrantless Wiretapping Bill

President Bush after signing the surveillance and the warrantless wiretapping bill, said the bill gives the government anti-terror tools it needs without compromising Americans’ civil liberties.

I don’t understand how the bill does not compromises Americans’ civil liberties. In fact it has shut the door on any possibilities for civil liberties that are so fundamental in the Constitution. It is just a political game to which the Democrats have succumbed. I am real disappointed that Obama for all that he said that he was against the war on Iraq and was going to CHANGE things in Washington, voted for the bill and just joined forces with Washington.

ACLU’s has filed a lawsuit on behalf of several civil rights groups. It wants a federal judge in New York to rule that the law is an unconstitutional violation of free speech and the right against unlawful search and seizure. It also asks that the judge permanently block intelligence officials from conducting surveillance under the law.

“The new law gives the government the power to conduct dragnet surveillance that has no connection to terrorism or criminal activity of any kind,” said Jameel Jaffer, director of the ACLU’s National Security Project, in a conference call to reporters.

I hope the court decides that the bill is unconstitutional and preserves the sanctity of the judicial process just as the Supreme Court decided that holding the prisoners in Guantanamo Bay indefinitely without a trial was unconstitutional and that the prisoners had a right to a civil trial.

July 11, 2008 Posted by | Uncategorized | , | 2 Comments