Today, President Obama signed the Better Online Ticket Sales (BOTS) Act of 2016, which makes it unlawful to use software to purchase tickets online. The new law is intended to create equitable consumer access to tickets for certain events, which has been susceptible to the automated purchase and resale by various third parties. Under the law, it is now illegal for anyone to use software (or a "bot") to circumvent the rules set by a ticket issuer, such as purchase limits. Additionally, it is also illegal to sell or offer to sell any ticket in interstate commerce purchased in violation, and liability extends to anyone who knew or should have known that the event ticket was acquired unlawfully with the assistance of software. The full text of the bill can be found at https://www.congress.gov/bill/114th-congress/senate-bill/3183/text.
Following our November notice, we are again reminding all online "service providers" to re-register with the U.S. Copyright Office's new DMCA agent directory. Any service provider that has designated an agent with the Office already prior to December 1, 2016, must re-submit a new designation electronically using the new online registration system by December 31, 2017, in order to avoid loss of DMCA safe harbor protection (17 USC 512). The new flat fee is now only $6 per registration (compared to the $105 previously). However, registrations will now expire after three years, and online service providers need to renew their registrations before the time of expiration in order to maintain the safe harbor protection. To familiarize users with the new system, the Copyright Office has released a number of tutorial videos: https://www.copyright.gov/rulemaking/onlinesp/NPR/index.html.
A new Copyright Office rule will go in effect this December 1, 2016, and will require all service providers to now electronically register with the Copyright Office, in order to qualify for DMCA Safe Harbor. This new filing system replaces the old, and will also require even those who have already filed with the Copyright Office to re-register. Further, re-registration will be required every three years thereafter. The cost of each filing now, however, will only be $6, compared the the $105 fee previously set. The DMCA Safe Harbor provision, codified in 17 USC 512, provides limitations to liability for certain conduct of a service provider's users which may violate the copyright ownership of another, so long as the service provider is in compliance. To avoid inadvertent loss of this protection, please contact your copyright counsel or file a new registration by December 31, 2017.
California AB 691 was recently signed into law, which sets forth default rules governing the disposition and probate of digital assets to a surviving fiduciary or beneficiary. In enacting this legislation, California joins 19 other states, including Florida, in adopting of the Fiduciary Access to Digital Assets Act. The term digital assets include a person's social media accounts, websites, domains, email accounts, blogs, as well as other accounts and digital content related thereto. This law will go in effect January 1, 2017, and establishes a three step hierarchical test for determining who may access a decedent's digital assets.
As a result of an action brought by the FTC, the U.S. Court of Appeals for the Second Circuit recently found LeadClick Media, LLC liable for false claims made by third party affiliate marketers, which drove traffic to LeanSpa, a maker of weight-loss supplements. As a result, LeadClick was ordered to pay $11.9 million for its part in helping to promote a deceptively marketed weight-loss supplement. This decision marks the first by a court of appeals, which holds the operator of an affiliate marketing network liable for the deception of third-party marketers.
The Internet domain name space continues to expand, with over 100 new generic top-level domains (gTLDs) added to the Internet's root zone, and more to come in each following week. Overall, the new gTLD expansion will result in an increase in top-level domains from a mere 22 to a total of 1400 over the next few years. The expansion creates unique opportunities but also raises new enforcement challenges for brand owners.
The Federal Communications Commission was dealt a major blow today when a portion of its net neutrality rules were struck down by the U.S. Court of Appeals for the District of Columbia. The rules are part of the FCC Open Internet Order adopted in 2010 aimed towards protecting consumers, which forbid Internet service providers (ISPs) from blocking services or otherwise denying content providers equal access to the network.
The Supreme Court has granted cert on several new cases today including four relating to intellectual property issues, including a copyright case, a trademark case, as well as two patent cases. Lyle Denniston of the Scotus Blog reports that the new cases will probably be argued in April, the last sitting of the term.
The New York Attorney General's office recently levied $350,000 in penalties against 19 companies for astroturfing and false endorsements. Dubbed "Operation Clean Turf," the year long investigation into the reputation management industry found that companies had flooded the Internet with fake consumer reviews on websites including Yelp, Google, and CitySearch. Throughout the investigation, the Attorney General's office found that many companies, including those in the Search Engine Optimization (SEO) industry, used techniques to hide their identities, such as creating fake profiles on review websites and paying copywriters from around the world for $1 to $10 per review.
California is preparing to adopt several additional privacy and data breach notification laws this month. These include S.B. 46, a notification requirement for breaches of an individual's user name or email address; SB 568, which extends the federal COPPA rules to all children under 18 years of age; and A.B. 370, a do-not-track disclosure law requiring disclosure about behavioral tracking. These laws affect not only companies based in the state, but all companies that do business within the state.
Does the Federal Communications Commission (FCC) have the authority to enforce rules designed to keep the Internet as an open and neutral platform? The question regarding network neutrality is in front of a federal appeals court today in Verizon v. FCC. The outcome of this case could have profound implications in how Internet service providers (ISPs) are able to operate in the future, which will inevitably affect anyone who uses the Internet, from consumers to startups and tech giants who have built billion dollar businesses online.
With potentially hundreds of new generic top level domains (“gTLDs,” e.g. .store, .law, .food) just around the corner, the Internet Corporation for Assigned Names and Numbers (ICANN)—the organization response for overseeing Internet domain name allocations--recently opened its Trademark Clearinghouse (TMCH), where current brand owners can record their existing trademarks.