Cyberlaw Concepts - Trademark Infringement

1.       This video found on YouTube is clearly a parody for Walmart, specifically with all the wage disputes in the news regarding Walmart employees. Please discuss Trademark law and what Walmart can do against YouTube. Does Walmart have any recourse? What are the remedies? Is Walmart likely to succeed, why or why not? Be sure to apply the concepts of Trademark law.

Although this scenario is presented to discuss possible trademark infringement actions against YouTube and not the entity responsible for the published work, it should be noted that JibJab, if subjected to trademark infringement proceedings, could argue any of the following defenses: Parody under the First Amendment, Laches, Unclean Hands, or Fraud (and/or misrepresentation by the plaintiff in obtaining trademark registration).

Trademarks, another abstract concept privy to shelter under the umbrella of Intellectual Property, comprise “any word, name, symbol, device, or any combination, used, or intended to be used in commerce to identify and distinguish the goods from one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods” (Craig, 2013). In order to register a trademark, a person or an entity generally seeks the legal stamp of approval from the United States Patent and Trademark Office (USPTO or PTO). If an application for trademark registration is denied by the USPTO, an appeals process is available whereby final arbitration is ultimately determined by the USPTO Trademark Trial and Appeal Board (TTAB).

The primary law governing the protection of trademarks remains the Lanham Act, a.k.a. the Federal Trademark Act or the United States Trademark Act, which safeguards both trade/commercial names and service marks. Under the Lanham Act, any party “may be liable for trademark infringement…if the plaintiff establishes that (1) the plaintiff has a valid mark that is entitled to protection…(2) the defendant used the mark, (3) in commerce (4)…without the plaintiff’s consent” (Craig, 2013). Moreover, the courts have typically weighed six additional factors in examining if a “likelihood-of-confusion” exists between litigious parties.

The retail giant Walmart filed with the USPTO in an attempt to trademark the acronym “EDLP”, or “everyday low prices”, a reference to their intensive cost-based marketing strategy, in 2005. Walmart withdrew its application in 2007 in the face of strengthening opposition. Although unsuccessful in co-opting “ELDP” for their own enterprise, Walmart was able to trademark the phrase “Low Prices You Can Trust. Everyday.” (Justia, 2016). Baring the parody JibJab created in their spoof Big Box Mart, the potential for legal action by Walmart against them persists in part because of one line, “Oh Big Box Mart/My paycheck reminds me/Your everyday low prices have a price/They aren’t free” (JibJab, 2005). As such, Walmart reserves the right to directly seek an injunction as well as petition for monetary damages.

This is not to say that Walmart does not have any recourse regarding perceived infringement by YouTube. Walmart may certainly seek domestic protection, and possible reparation, under either the Lanham Act, the Trademark Dilution Revision Act of 2006, and/or the Anticybersquatting Consumer Protection Act (ACPA), as applicable and appropriate. Internationally, protection can be found under the Paris Convention, the Madrid Protocol, and/or the Trademark Treaty Law (TTL).

Conversely, the non-profit New Media Rights notes that YouTube “doesn't have a legal obligation to do anything…because the law gives the…holder the sole right to enforce” (Karobonik, 2011).  In this scenario, the simplest remedy, outside of the courts, is to attempt to reach a resolution with the account holder in question. However, if resolution cannot be achieved between Walmart and the account holder then Walmart can issue notice of a trademark complaint to YouTube (a process YouTube has well established on their site at either https://support.google.com/youtube/answer/6154218?hl=en or https://support.google.com/youtube/answer/6154228?hl=en).

Assuming that Walmart sought the simplest redress unsuccessfully and that YouTube has failed to removed the subject material after proper notification, Walmart may then, at a minimum, purport a latent contributory trademark infringement case although the potential for plaintiff loss threatens to be high. In order for their plea to be successful before the courts, Walmart must demonstrated trademark usage in commercial endeavors, registration with a resultant listing in the Principle Register (not required but recommended), and appropriate markings as well as demonstrate a willful malicious knowledge by YouTube with regards to the infringement. The courts will ultimately render a decision based upon Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982). If a decision is found in their favor, Walmart can petition the courts for either a restraining order, an injunction, or monetary compensation but, in order to request such, they must demonstrate “an irreparable injury that remedies…are inadequate to compensate…equity is warranted and the public interest would not be disserved by a permanent injunction” (Craig, 2013).

Reference List

Craig, B. (2013). Cyberlaw: The Law of the Internet and Information Technology. Boston: Pearson.

JibJab (2005). Big Box Mart. Retrieved from http://www.jibjab.com/originals/big_box_mart

Justia. (2016). Retrieved from Justia Trademarks: https://trademarks.justia.com/865/57/low-prices-you-can-trust-every-86557402.html

Karobonik, T. (2011). How do I report Copyright Infringement on YouTube? Retrieved from New Media Rights: http://www.newmediarights.org/business_models/artist/how_do_i_report_copyright_infringement_youtube

Kenya's Dilemma: Constitutional Protected Privacy vs. Hate Speech

Approximately 1300 people were killed and over a half a million persons displaced in the wake of the 2007 Kenyan Presidential elections. Many commentators pointed to inciting political language as the primary mechanism which fueled ferocious unrest. The government was left to answer what could be done to prevent future recurrences. Businesses, especially communications media, were left to answer how to prevent future recurrences.

One apparatus for preventative change was the passage of the National Cohesions and Integration Act of 2008 which established the Kenya National Cohesion and Integration Commission (NCIC), an agency whose primary duties include the promotion of ethnic harmony as well as being imbued with investigative authority into ethnic/racial relations. A truly difficult tasked faced by the NCIC was defining hate speech (Integrated Regional Information Networks, 2012), a challenge akin to Supreme Court Justice Potter Stewart’s struggle to define pornography.

Some guidance arose from the 2010 Kenyan Constitution in which the freedom of expression, a right granted to every person, specifically sates that personal expression does not include “propaganda for war; incitement of violence; hate speech; or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination” (Kenya Law Reform Commision, 2010). The challenged remained though in balancing censorship against another constitutional guarantee where “every person has the right to privacy, which includes the right not to have…the privacy of their communications infringed” (Kenya Law Reform Commision, 2010).

In 2012, the National Communications Commission of Kenya (CCK) further required the installation of Internet traffic monitoring equipment, the Network Early Warning System (NEWS), by all Internet service providers. Additionally, the CCK promulgated the “Guidelines for the Prevention of Transmission of Undesirable Bulk Content/Messages via Electronic Communications Networks”. Likewise, they also banned the use of any language other than Swahili and English when proliferating political messages during designated campaign periods in an attempt to deter outside influence and reduce violence stemming from ethnic nationalism amongst tribes (Integrated Regional Information Networks, 2012).

One dominant media entity Safaricom, with a 63% share of mobile subscriptions as well as a 69% share of internet subscriptions (Freedom House, 2013), took an early lead in working with and embracing the Kenyan government’s desire to mitigate political violence. According to the Digital Dangers report, “one of the main sources that helped model Safaricom’s internal guidelines were those issued by national newspapers on political advertisements” (Purdon, 2013).  Safaricom’s actions to target bulk short message service (SMS) message requests, a response to the unrestrained violence surrounding the 2008 elections, were intended to curb “any language…that was “partisan” or sought to divide communities” (Purdon, 2013) while also reducing corporate culpability under Kenyan law. Although 68 bulk SMS requests, totaling 963,762 text messages (Gathura, 2013) were processed within 48 hours of the 2013 election, only 1 was blocked for content (Stair & Reynolds, 2014).

A later investigation unveiled a “Blue Coat PacketShaper appliance – a device that can help control undesirable traffic by filtering application traffic by content category”  (Freedom House, 2013) – but it was not determined to have been employed in any political censorship initiatives.

The 2013 elections, in comparison to the tumultuousness of the 2007 elections, transpired in a manner of quiet democracy baring the fact the “elections passed with only one attack resulting in the death of six police officers” (Stair & Reynolds, 2014). Nonetheless, human rights watch groups still argued that the targeting of only bulk SMS were insufficient as such selectiveness failed to filter peer-to-peer text messages. While Safaricom’s resolve to seek guidance, abide by the people’s Constitution, and balance privacy against censorship demonstrates a commitment to ethical behavior, the success of government and business driven initiates to minimize violent partisan conflict cannot be deemed successful only by a reduction in violence. Atsango Chesoni, Executive Director of the Kenya Human Rights Commission, expressed that, while positive steps are being advanced, ineffective enforcement of hate speech statues and subsequent failed prosecutions shall serve continue to foster divisive rhetoric (Integrated Regional Information Networks, 2012).

Reference List

Freedom House. (2013). Freedom on the Net: Kenya. Retrieved from Freedom House: https://freedomhouse.org/report/freedom-net/2013/kenya

Gathura, G. (2013). Kenya: Safaricoms' Bulk SMS Filter on Hate Speech Now a Global Case Study. Retrieved from Standard Digital : http://www.standardmedia.co.ke/business/article/2000100677/safaricom-s-bulk-sms-filter-on-hate-speech-now-a-global-case-study

Integrated Regional Information Networks. (2012). Taming Hate Speech in Kenya. Retrieved from IRIN: http://www.irinnews.org/report/96168/analysis-taming-hate-speech-kenya

Kenya Law Reform Commision. (2010). Consitution of Kenya. Retrieved from Kenya Law Reform Commision: http://www.klrc.go.ke/index.php/constitution-of-kenya/112-chapter-four-the-bill-of-rights/part-2-rights-and-fundamental-freedoms/199-33-freedom-of-expression

Purdon, L. (2013). Digital Dangers: Corporate Responses to Hate Speech in the 2013Kenya Presidential Elections. Institute for Human Rights and Business. Retrieved from https://www.ihrb.org/pdf/DD-Safaricom-Case-Study.pdf

Stair, R. M., & Reynolds, G. W. (2014). Fundamentals of Information Systems (8th ed.). Boston: Cengage Learning.

Home - The Ultimate Internet of Things!

The following video has been produced and released by Corning Incorporated. It demonstrates a future of compete at-home IT integration and beyond. After watching this, I think most of us would agree that granite counter-tops and stainless steel appliances will not continue to be the most attractive feature for potential home buyers!

Copyright Infringement in Virtual Reality

1.       Is there a copyright law difference between the Brittney Spears video and the Black Eyed Peas parody? What is the difference and how does it matter legally?

2.       Please discuss any claims for copyright infringement that either Brittney or the Black Eyed Peas could assert against YouTube for the videos. What are the remedies for either and what do you think the likely outcome is and why.

A stipulation shall be to bar the fact that both artists in this scenario have faced numerous accusations of copyright infringement over their commerical activities and that the actual ownership of the original works by the artists is tentative. (Max Martin wrote …Baby One More Time and David Guetta is credited with I Gotta Feeling.) It is also stipulated that Brittney Spears’ appearance on the Nickelodeon Kid’s Choice Awards is an original performace of her creation. Although this scenario is presented to discuss possible copyright infringement ramifications against YouTube and not the entities responsible for the published works, it should be noted that both MadTV and CollegeHumor, if subjected to copyright infringement proceedings, could argue any of the following defenses: Public Domain, First Sale Doctrine, or Fair Use Doctrine.

Copyright law, a protection established under the U.S. Constitution and afforded to Intellectual Property, establishes exclusive ownership over “original works of authorship” (qtd. Craig, 2013) as well as potential derivatives of those originals works. The traditional legal exception to this exclusiveness remains “the right of others to use part of the work…to parody or satirize the original work as such use…does not compete with the original” (Ocean State Lawyers for the Arts, n.d.). In addition to parody and satire, such undertakings also include, but are not limited to, rendering criticism, news reporting, as well as academic purposes.

MadTV’s imitative cover of Brittney Spears’ …Baby One More Time, reinterpreted as Make My Boobies One More Size, and CollegeHumor’s spinoff of Black Eyed Peas I Gotta Feeling both push the copyright infringement boundaries. However, MadTV produced a parody, simplistically defined as an act of legal defamation. Although the claim of parodic work is not an affirmative defense, it could still be argued that MadTV’s rendition does not create a “likehood of confusion” (Craig, 2013). CollegeHumor rendered a transformative product thereby establishing for themselves an affirmative defense under the Fair Use doctrine. Although both comical endeavors utilize every musical aspect other than the artists’ words (even using Brittney Spears image in MadTV’s work), both recreations separate themselves from the originals words so as to demonstrate legal defensibility as a retort to accusations of copyright infringement.

While it may seem understandable from an outside perspective, licensing, or attaining permission from the orignator, remains the particular proactive tool to alleviate the potential for being indemnified for copyright infringment. One need look no further then the commercial success of Weid Al Yankovic and his “music parodies produced pursuant to a license from the copyright holder” (qtd. Liebler, 2014). Conversely, his process has been argued as “justification to limit fair use” (Liebler, 2014).

Nevertheless, if either Brittney Spears or the Black Eyed Peas decided to pursue legal recourse against YouTube as a device protmoting copyright infringement they must first complete three actions, the first two of which are not legally mandated but are prerequisites for legal action: (1) establish copyright notice, (2) complete copyright registration, and (3) issue notice to YouTube (a process YouTube has well established on their site at https://support.google.com/youtube/answer/2807622?hl=en).

Assuming that all of the actions have taken place, and YouTube has not removed the subject material, the potential for plantiff loss remains high. YouTube has consistently found protection under the safe Harbor provision of the Digital Millennium Copyright Act of 1998. As recently as 2013, the court has ruled “a service provider must have actual knowledge or be willfully blind of “the specific locations of infringements” to lose the DMCA “safe harbor” from copyright infringement liability…Anything short of this is apparently insufficient to strip a service provider of its DMCA protection” (Lawhorn, 2013). Although YouTube has successfully continued to stave off any liabilty as a result of user copyright infringement, litigation continues to never be far from their front door (Ingham, 2016).

Reference List

Craig, B. (2013). Cyberlaw: The Law of the Internet and Information Technology. Boston: Pearson.

Ingham, T. (2016). YouTube Faces Superstar Backlash Over DMCA – But is it the Best Strategy? Retrieved from Musc Business Worldwide: http://www.musicbusinessworldwide.com/youtube-fight-steps-lady-gaga-sir-paul-mccartney-go-anti-dcma/

Lawhorn, J. M. (2013). YouTube Stays Safe under DMCA “Safe Harbor”. Retrieved from Cowan, Debaets, Abrahams & Sheppard LLP: http://cdas.com/youtube-stays-safe-under-dmca-safe-harbor-2/

Liebler, R. (2014). The Continuing Influence of Weird Al on Law, Especially Copyright Law. Retrieved from The Learned Fangirl: http://thelearnedfangirl.com/2014/07/the-continuing-influence-of-weird-al-on-law-especially-copyright-law/

Ocean State Lawyers for the Arts. (n.d.). Music Parody - Fair Use? Retrieved from OSLA Arts & Laws: www.artslaw.org/parody.htm

Big Brother: Constraining Civil Liberties to Ensure National Security

In the aftermath of the September 11^th terror attacks, the American government enabled itself with broad, discretionary powers to identify, investigate, prevent and combat global terrorism. Unfortunately, accountability became distracted by accusation. Fear eviscerated measured logic and response. Security trumped liberty. Historical analysis of this reflexive reaction in the aftermath of the attacks (made possible only by whistleblower) reveled an amazing lack of oversight producing seemingly unchecked overreach.

The primary authority and jurisdiction of the government stemmed from the Patriot Act (50 USC 1861), especially Section 215 and its targeting of “business records”. The resulting ostensibly boundless cornucopia of data upon which the intelligence community, particularly the National Security Agency (NSA), could dine indefinitely was to be scoured in an attempt to “discover an individual’s network of associations and communication patterns” (Greenwald, 2013). Trend analysis of this metadata promised to reveal “whom a terrorist had been in contact with, when they have been in contact with these individuals, how often, and where they and their contacts are located” (Stair & Reynolds, 2014).

What alluded the American public, and remained hidden until Edward Snowden leaked the Foreign Intelligence Surveillance (FISA) Court warrant, was the vast scope of information to being collected without contest on U.S. citizens. As specified in the FISA warrant, Verizon was to provide:

“"telephony metadata"…(i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls…metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call” (Spiering, 2013).

Personally Identifiable Information (i.e. subscriber names, addresses, and message content) remained outside the scope of the warrant. In November 2015, the NSA lost such indiscriminate powers with the expiration of the Patriot Act. However, the USA Freedom Act (50 USC 1801) quickly reestablished the government’s capabilities with increased external oversight of government surveillance programs and limited the acquisition of telephone metrics (Note: Internet and social media still remain open sources for data mining).

Yet the quagmire remains - should the NSA continue to collect or, as written under current law, force business to preserve metadata? Oppositional voices espouse that such intelligence initiatives are not supported by a cost-benefits analysis which is to say that the costs associated with such programs do not produce or support the effort and supposed results. This claim, specifically regarding the collection of bulk telephone data, has been bolstered by independent review. Furthermore, Americans remain fearful of a loss of privacy as well as the potential for misuse of collected data.

Conversely, intelligence programs, such as Prism and Bullrun, resolutely demonstrate a posture of increased threat awareness while enabling a sufficiently increased response apparatus. Trend-analysis, if not prior to an incident but certainly after-the-fact, fosters that response as well. Without preservation of data, intelligence gathering efforts would not be able to support ongoing investigative endeavors. Mass surveillance, or metadata collection, is an everyday aspect of the technologically-connected society. Think with Google resulted from such collections. Advertising via social media feeds is a result of such collections. No one cares about Google or Twitter but when the Government does it we suddenly become convinced that Orwell was Nostradamus. In a post-9/11 environment, the fact remains that surveillance is a necessary evil.

Reference List

Greenwald, G. (2013). NSA Collecting Phone Records of Millions of Verizon Customers Daily. Retrieved from The Guardian.

Spiering, C. (2013). Full Text: The FISA Court Order Forcing Verizon to Hand over Data. Retrieved from Washington Examiner: http://www.washingtonexaminer.com/full-text-the-fisa-court-order-forcing-verizon-to-hand-over-data/article/2531272

Stair, R. M., & Reynolds, G. W. (2014). Fundamentals of Information Systems (8th ed.). Boston: Cengage Learning.

Nuclear Embracement of Technological Advancements

Duke Energy’s Oconee Nuclear Station, located near Seneca, SC, achieved a milestone in the early part of this decade by becoming the first American nuclear power plant exploiting a fully digital safety system across all three of its reactors.  The new digital control panels cost approximately $250 million, part of a $2 billion overall infrastructure investment (Wheeler, 2012).  

As with any progressive initiative, a major concern focused on attaining approval by overcoming conservative opinion, specifically that of the Nuclear Regulatory Commission (NRC), regarding the digital conversion of the analog reactor protection systems (RPS) as well as the engineered safeguard protection systems. In order to overcome the skepticism of the NRC, Duke Energy had to demonstrate via an all digital operating system the ability to “ensure that the principle of “defense-in-depth” is maintained, not only for the new hardware but for the accompanying software” (Nuclear Entergy Institute, 2016) as well as prevent cyber intrusions.

Duke Energy opted to pursue approval of the field-tested, and globally-employed, Areva Teleperm XS (TXS) system as it promised “high reliability through fail-safe design, fault tolerance, integrated self-checking, structural simplicity, and robustness, including resistance to temperature swings, vibration, seismic loads and electromagnetic radiation” (Hashemian, 2011).  With its approval “the NRC confirmed the new system’s ability to meet safety requirements as well as federal cyber security requirements to isolate the system from cyber-attacks (sic)…data flow from the plant’s safety-related systems remains isolated from the Internet” (Nuclear Entergy Institute, 2011).

After surmounting this obstacle, Duke Energy moved forward with its digital conversion. A primary focus of this transfiguration revolved around Oconee’s aging analog safety systems such as the RPS. In any nuclear power station, the function of the RPS remains “to protect the integrity of the plant’s nuclear fuel by monitoring inputs from the reactor core” (Hashemian, 2011).  According to Areva’s documentation, the TXS software possessed such capabilities due to its redundant architecture in design, self-monitoring capabilities, employed logic via deterministic system behavior, engaged diversity and handling of common-cause failures, and upheld system security measures (Areva).

The implementation of a fully digital system provided plant operators with greater operational control by integrating the capabilities of “monitoring plant systems, trending analyses and component malfunction predictions…which, in turn, increases plant safety above the high levels already being achieved” (Nuclear Entergy Institute, 2016). Additionally, “digital instruments by comparison are more precise, less liable to break down than their electro-mechanical counterparts, and can monitor themselves as well as a wider array of plant systems” (Nuclear Entergy Institute, 2016). This inherent reliability “reduces maintenance downtime and makes for greater operational efficiency and cost-effectiveness”. (Nuclear Entergy Institute, 2016). Although analog systems remained in place as back-up protocol mechanism, the Oconee’s new digital RPS possessed “four redundant protection channels that monitor safety-related plant parameters and generate reactor trip signals to protect the fuel and fuel cladding, the reactor coolant system and the reactor building from damage” (Hashemian, 2011).

Reference List

Areva. (n.d.). Teleperm XS System Overview. Retrieved from Areva: http://www.areva.com/mediatheque/liblocal/docs/activites/reacteurs-services/reacteurs/pdf-teleperm-xs-feat.pdf

Hashemian, H. M. (2011). USA's first fully digital station. Retrieved from Nuclear Engineering International: http://www.neimagazine.com/features/featureusa-s-first-fully-digital-station/

Nuclear Entergy Institute. (2011). Duke's Oconee Reactor Goes Digital. Retrieved from NEI: http://www.nei.org/News-Media/News/News-Archives/dukes-oconee-reactor-goes-digital

Nuclear Entergy Institute. (2016). Digital: The New Word in Nuclear Power Plant Control Rooms. Retrieved from NEI: http://www.nei.org/News-Media/News/News-Archives/Digital-The-New-Word-in-Nuclear-Power-Plant-Contro

Wheeler, B. (2012). Entering the Digital Age: Upgrading I&C Systems at U.S. Nuclear Plants. Power Engineering, 116(9). Retrieved from Power Engineering: http://www.power-eng.com/articles/print/volume-116/issue-9/features/entering-the-digital-age.html

Cyberlaw and Jurisdictional Considerations

1.       Lindsay Lohan, a resident of California, sees on the internet that Brad Pitt, a resident of Louisiana, has posted on his Facebook page that Lindsay is, “A Cracked out Ho.” Lindsay wants to sue Brad. Please discuss all possible places that Lindsay can assert jurisdiction over Brad.

For the purpose of answering this scenario, I stipulate the following presumptions:

1.       Both parties are non-celebrities,

2.       There is a consideration by the plaintiff regarding the financial impact of travel to/from a foreign court,

3.       Both parties are solely residents of the states ascribed in the scenario and each is subject to the jurisdiction of their respective states,

4.       There is complete diversity,

5.       There is less than $75,000 at stake (thereby placing the suit solely in the hands of state courts),

6.       Any ruling concerning jurisdiction does not violate the right of the defendant to “due process”,

7.       The statement was singular in occurrence (Both states dictate a one-year statute of limitation based upon the single publication rule. However, in Louisiana, the single publication rule has been extended to encompass multiple reprints via mass media as ruled under Gregoire v. G. P. Putnam's Sons (298 N.Y. 119, 81 N.E. (2d) 45 (1948)))

In the simplest of terms, authority equates to a government’s (federal, state, tribal, etc.) legal power to act. Jurisdiction then refers to that same government’s power to exercise authority (over people, places, etc.). In order for a court to hear a case, the court must first determine jurisdiction, specifically person jurisdiction in this matter.

 In this scenario, Ms. Lohan faces a decision to seek redress from Mr. Pitt for internet defamation, specifically libel. Ms. Lohan must weigh the options of filing in either a California court, where the court is faced with determining personal jurisdiction over a non-resident, or in a Louisiana court where the defendant resides.

If Ms. Lohan decides to file against Mr. Pitt, the defendant, in California, the court is faced with first determining personal jurisdiction over a non-resident.  In this case the court first faces determining if it can “bring a [non-resident] into its adjunctive process” (Craig, 2013). In order to make such a determination the court, in its application of its long-arm statute, must weigh two significant rulings: the “minimum contacts test” established under International Shoe Co. v. Washington (326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)) and the “effects test” established under Calder v. Jones (465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804, 1984 U.S. 41) (Raucher, n.d.). If the California court can answer yes to either of these legal “test”, the California courts may assert personal jurisdiction over the defendant. Ms. Lohan may proceed with filing her case within her state of residence. If California cannot assert personal jurisdiction, then Ms. Lohan faces the decision to travel to Louisiana to file her case.

As a point of order, two 2010 higher state court rulings (Ohio - Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551 and Florida -  Internet Solutions Corp. v Marshall No. SC09-272) (Torralba, 2010) currently challenge previously mentioned stalwart Supreme Court precedent with regards to state long-arm statutes. Additionally, a Florida lower court ruling in 2003, Scheff v. Bock, demonstrated foreign state exercise of personal jurisdiction over a non-resident, specifically a Louisiana resident.

If Ms. Lohan, the plaintiff, were to include Facebook as a co-defendant, Facebook’s terms of service specifically incorporates a choice-of-law provision, as well as a forum selection clause, whereby “you will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions” (Facebook, 2015). However, the Communications Decency Act of 1996, Section 230, almost all but exonerates Facebook from liability in this matter.

Reference List

Craig, B. (2013). Cyberlaw: The Law of the Internet and Information Technology. Boston: Pearson.

Facebook. (2015). Statement of Rights and Responsibilities. Retrieved from Facebook: https://www.facebook.com/legal/terms

Raucher, S. (n.d.). RRB Law Blog. Retrieved from www.rrbattorneys.com: http://www.rrbattorneys.com/blog/civil-litigation/defamatory-social-media-posts-california-residents-dont-necessarily-subject-defamer-personal-jurisdiction-california-3

Torralba, M. (2010). State courts rule libel lawsuits extend beyond borders. The News Media & The Law, 34(3), p. 23. Retrieved from http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2010/state-courts-rule-libel-law

2.       Jay Z, a resident of Illinois, sees an ad online from Cheap Cruises R US a company registered in Delaware. This company has never sold a cruise to anyone from Illinois. Jay Z books a cruise and arrives in Florida to find out that the cruise does not exist. Please discuss all the possible places that Jay Z can assert jurisdiction over the company.

For the purpose of answering this scenario, I stipulate the following presumptions:

1.       The plaintiff is a non-celebrity,

2.       Cheap Cruises R Us is a small, independent business (non-multinational) incorporated in Delaware,

3.       Cheap Cruises R Us’ principle place of business is Delaware,

4.       There is a consideration by the plaintiff regarding the financial impact of travel to/from a foreign court,

5.       Any ruling concerning jurisdiction does not violate the right of the defendant to “due process”

As previously described in question one, jurisdiction is a determination that the government has executable authority. In order for Jay Z, the plaintiff and a resident of Illinois, to seek redress from Cheap Cruises R Us, the defendant and resident of Delaware, the courts must first determine jurisdiction. In this scenario a breach of contract is the ultimate matter of the dispute. The contract was initiated via the Internet but failed to execute in the state if Florida. The statute of limitations varies in this particular matter with Illinois’ being significantly longer than Delaware’s.

If the plaintiff chooses to file in his resident state of Illinois, the court faces a determination of personal jurisdiction. In order to make a determination in the application of its long-arm statute, the court must weigh two significant rulings: the “minimum contacts test” established under International Shoe Co. v. Washington (326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)) and the “effects test” established under Calder v. Jones (465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804, 1984 U.S. 41) (Raucher, n.d.). It should be noted that tort law determinations regarding jurisdiction have traditionally been extended to contract law where the “effects” questions are slightly modified to determine “purposeful availment” (Tang, 2015) actions by the defendant.

If the Illinois court can answer yes to either of these legal “test” then the Illinois courts may assert personal jurisdiction over the defendant and the plaintiff possess the right to file his case in the Illinois state courts. If the state courts determine that they cannot assert personal jurisdiction, the plaintiff has the right to file with his case within the Delaware state courts. Furthermore, the federal courts may accept the case if a determination of complete diversity between parties can be established and the matter concerns a dollar amount in excess of $75,000. If, and only if, both criteria are met then the federal court possess diversity jurisdiction, a form of subject matter jurisdiction.  Subject matter jurisdiction grants “the authority of a particular court to hear a certain type of case” (Craig, 2013). Federal jurisdiction would include the federal courts of Illinois, Delaware, and Florida.

An additional complicating factor facing the courts in determining the matter of jurisdiction is whether or not a “Terms of Service” (ToS) agreement existed, did the plaintiff agree to the ToS, did the ToS contain a choice-of-law provision and/or choice-of-exclusive-law provision, and was the ToS valid/enforceable. A legitimate, enforceable ToS will force the plaintiff into a foreign court as predicated by the ToS. However, a recent ruling against a major online retailer, predicated by defining ToS’s as either “clickwraps” or “browsewraps” (Goldman, 2012), demonstrated the penetrability of a once-perceived ironclad means of conducting e-commerce.

Reference List

Craig, B. (2013). Cyberlaw: The Law of the Internet and Information Technology. Boston: Pearson.

Goldman, E. (2012). How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked. Forbes. Retrieved from http://www.forbes.com/sites/ericgoldman/2012/10/10/how-zappos-user-agreement-failed-in-court-and-left-zappos-legally-naked/#1e52c45c2f6b

Raucher, S. (n.d.). RRB Law Blog. Retrieved from www.rrbattorneys.com: http://www.rrbattorneys.com/blog/civil-litigation/defamatory-social-media-posts-california-residents-dont-necessarily-subject-defamer-personal-jurisdiction-california-3

Tang, Z. S. (2015). Electronic Consumer Contracts in the Conflict of Law (2 ed.). Oxford: Hart Publishing.

From Boat Trash to Respectable Geek

Information Technology (IT) remains one of the fastest growing employment realms in our current economy. According to the Bureau of Labor Statistics, IT occupations are “projected to grow 12 percent from 2012 to 2024” (U.S. Department of Labor, 2015). Between 2010 and 2015 alone, IT job growth expanded 15 percent with addition 9 percent growth projected through 2020 (Pizzo, 2015). Depending on the source, the median annual wage of those employed in IT occupations ranges between $81,430 (U.S. Department of Labor, 2015) and $83,366 (Pizzo, 2015).

The importance of expanding organizational information technology systems is demonstrated by the maritime industry, an industry currently facing post-recession slow economic growth. According to IHS Markit, in their analysis of trends with the potential to shape the future of the global maritime industry, investment in integrated information infrastructures will prove key to weathering the current economic slowdown while maintaining long-term viability. From shipyards developing more technologically advanced approaches to Automatic Identification System (AIS), “IHS believes 2016 will see an increased development and adoption of big data analytics…to mitigate risks and transform challenges into opportunities” (Information Handling Services, 2015).

Moving forward knowing this information, I chose an IT education plan concentrating on information security and assurance. Information Security Analysts, those responsible to “plan and carry out security measures to protect an organization’s…network and systems” (U.S. Department of Labor, 2015), currently demonstrate the fastest growth potential at 16 percent (Campbell, 2015). The median annual income for Information Security Analysts ranges from $88, 899 (Pizzo, 2015) to $90, 120 (U.S. Department of Labor, 2015) however employment typically requires a Bachelor’s degree as a minimum level of educational competency.

Potential long-term future engagement in the IT field may lead me towards becoming a Computer and Information Research Scientists, imbued with the responsibility to “invent and design new approaches to commuting technology and find innovative uses for existing technology” (U.S. Department of Labor, 2015) across all occupational disciplines. The field of computer and information research has a 9% projected job growth (Pizzo, 2015), slightly above the national projected job growth rate, but the median annual salary ranges between $108,347 (Pizzo, 2015) and $110,620 (U.S. Department of Labor, 2015). To reap such financial rewards typically requires either a Doctoral or professional degree.

A previously unknown enjoyment stemming from an introduction to web design provided a third additional career opportunity as a Web Designer. Web Designers, responsible for the design, execution, and maintenance of an organizations e-initiatives and abilities, persist as the heartbeat of any organization. The web design occupation is expected to “grow 11 percent in the next five years” (Campbell, 2015). Persons choosing to become Web Designers can expect a median annual income of between $63,482 (Pizzo, 2015) and $64,970 (U.S. Department of Labor, 2015).  As a ray of sunshine against the bleak storm of student debt, potential candidates can enter into this field possessing an Associate’s degree.

Reference List

Campbell, A. F. (2015). Best IT Jobs for 2016. Retrieved from The Atlantic: http://www.theatlantic.com/politics/archive/2015/12/best-it-jobs-for-2016/433722/

Information Handling Services. (2015). IHS Identifies Top Five Trends in 2016 That Will Shape the Global Maritime Industry for the Coming Decade. Retrieved from IHS Markit: http://press.ihs.com/press-release/maritime-trade/ihs-identifies-top-five-trends-2016-will-shape-global-maritime-industry

Pizzo, L. (2015). Where IT Jobs are Expected to Grow in the Next Five Years. Retrieved from EMSI: http://www.economicmodeling.com/2015/11/03/where-it-jobs-are-expected-to-grow-in-the-next-five-years/

U.S. Department of Labor. (2015). Computer and Information Technology Occupations. Retrieved from Bureau of Labor Statistics: http://www.bls.gov/ooh/computer-and-information-technology/mobile/home.htm

Privacy Concerns Over Facebook - Who is Responsible?

One could argue that the introduction of the World Wide Web to the Internet was inherently social even if lacking in direct communications ability. Entrepreneurs capitalized on this deficiency. Businesses appeared almost overnight competing to fill the void and establish competitive advantage. Customers were clamoring for the offered services. Yet, as with any business endeavor, the advice of the ancient Romans needs heeding, reminding us “CAVEAT EMPTOR, QUIA IGNORARE NON DEBUIT QUOD JUS ALIENUM EMIT – Let a purchaser beware, for he ought not to be ignorant of the nature of the property which he is buying from another party” (FindLaw, n.d.).

Facebook, an entrepreneurial enterprise launched in February of 2004, filled the direct connect void, and remains the juggernaut, albeit dogged, of the social media world. Its reign has not been without problems. In 2009 Facebook reset its privacy settings without warning inadvertently exposing “private” user data (Taylor, 2012). In 2010 Facebook was found acting against its privacy policy, providing online retailers with user information (Taylor, 2012). Then came the “Timeline”. Facebook has faced a near continuous maelstrom of controversy as it continues to pioneer and chart the seemingly limitless, unknown waters of the sea of social media.

Through it all the question remains. Should Facebook be completely responsible for privacy of data users deem “personal”? The legal, contractual terms of service suggest a yes answer so long as we ignore how those same terms of service are further complicated by their classification (“clickwrap” or “browsewrap” (Goldman, 2012)). However, before that questioned is answered perspective must be re-established.

 The Industrial and Commercial Bank of China, the largest bank in the world, has slightly less than 153 million customers (China Daily, 2006), both corporate and individual, and employs 466,346 people (Google Finance, 2016). Banks require people to provide the most damaging of personal identifiable information AND to trust them with customer money. Customers expect such institutions to safeguard information even in the face of known, and unknown, dangers lurking on the Web.

Facebook has accumulated an average of over 1.13 billion daily users (Facebook, n.d.) and is currently staffed by 14,495 employees (Facebook, n.d.). Simply put Facebook has just slightly more than seven times as many customers, is 32 times smaller, and only requires your email address. Yet users, voluntarily sharing information (I say voluntarily because no one forced anyone to provide anything beyond an email address), expect their information to be provided a level of security equivalent to Swiss banks.

In conclusion, I can succinctly answer the question initially asked by unequivocally stating that Facebook is not ultimately responsible for user privacy. The onus of responsibility remains on the user. Each and every Facebook has a choice in determining of what information is presented as well how he/she interacts with information received. Any expectation to divert blame away from the individual is unreasonable (based on numbers), unrealistic (based on reality), and continues to erode the foundational concept of personal responsibility.

Reference List

China Daily. (2006). Nation's largest commercial bank launches IPO. Retrieved from China Daily: http://www.chinadaily.com.cn/china/2006-09/27/content_698025.htm

Facebook. (n.d.). Company Info. Retrieved from Facebook Newsroom: http://newsroom.fb.com/company-info/

FindLaw. (n.d.). What Does 'Caveat Emptor' Mean? Retrieved from FindLaw: http://consumer.findlaw.com/consumer-transactions/what-does-caveat-emptor-mean-.html

Goldman, E. (2012). How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked. Forbes. Retrieved from http://www.forbes.com/sites/ericgoldman/2012/10/10/how-zappos-user-agreement-failed-in-court-and-left-zappos-legally-naked/#1e52c45c2f6b

Google Finance. (2016). Industrial and Coml Bank of China Ltd. Retrieved from Google Finance: https://www.google.com/finance?q=SHA%3A601398&ei=lNC_V_HgGYfVjAGR46CwDg

Taylor, C. (2012). A Short History of Facebook Privacy Failure. Retrieved from Mashable: http://mashable.com/2012/12/26/facebook-privacy-fail/#DU0Waq6V7SqK