Archives for January 2018

The Cyberlaw Clinic at Harvard University, in conjunction with “a collection of lawyers and creative folks,” has authored “The Cyberlaw Guide to Protest Art.” Published on Medium.com, the guide aims to help creators of protest art navigate legal issues in the digital age. Social media platforms and other digital technologies have made it increasingly easy for protest art, “ posters, songs, poems, memes, and more,” to be misappropriated and otherwise exploited in contravention of established intellectual property law. The guide features plain English descriptions of legal concepts, often accompanied by cartoon illustrations, so that artists, writers, and musicians can use basic intellectual property law to their advantage.

Topics covered include:

Copyright (in three parts)
Trademark
Rights of privacy and publicity
Sharing and merchandising

To see the guide in full, please click here.

The guide aptly includes a disclaimer that it is only to be used for “background educational purposes” and not for individualized legal advice. To learn how Castaybert PLLC can assist with matters of intellectual property law, please click here.

Congratulations to Steve Levy on his 300th victory in domain name disputes! His most recent victory was on behalf of Jack Daniels Properties, which disputed the domain name <JackDaniel.com> in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy. The panel found that the domain name was confusingly similar to the Jack Daniels trademark, that the registrant was not making a legitimate noncommercial or fair use of the domain name, and that the registrant had registered and was using the mark in bad faith. Having established all three elements required by the ICANN policy, the panel ordered the transfer of the domain name to Jack Daniels Properties. Please click here to view the decision in full.

January 29, 2018 – André Castaybert, principal attorney at CASTAYBERT PLLC, has received a 2018 Martindale Hubbell peer review AV rating of “Preeminent” in ethical standards and legal ability for the past four years.

In the digital age, employers must take various precautionary measures to ensure that trade secrets and other confidential information is not misappropriated by their current and former employees. Below is a list of steps employers can take to prevent improper access to valuable company information:

Constantly update the network credentials of current employees

Several recent cases have demonstrated that ex-employees can and do use their former colleagues’ account credentials to gain network access. To prevent this, current employees should change their passwords on a regular basis, and they should be instructed to never provide others with their passwords—this can in fact amount to aiding and abetting criminal conduct.

Ensure that current employees create unique passwords; use two-factor authentication

All too often, employees create simplistic passwords that can be easily guessed by others, especially those who know them well. Employees should be instructed to create unique passwords that differ from those used for other accounts. To assure a higher level of security, employers should implement a two-factor authentication process, which requires unique secondary identification (a passcode that has been texted to the employee, for example) each time the account is accessed.

Cut off ex-employees’ remote and cloud access capabilities

Immediately upon termination, employees should lose remote network access, as well as the ability to access companies’ cloud-based accounts such as Dropbox or Google Drive. Several cases have involved ex-employees who maintained remote access after they were fired and used this access in a way that damaged their former companies.

Collect all authentication and storage devices

Ex-employees often still maintain their access cards or digital storage that contains company information, such as USBs. These physical devices should be taken from employees at the time of termination.

Limit and monitor employee access to sensitive information

Current employees should only be able to access company material that is necessary to do their jobs. Employee access to privileged information should also be monitored, so it is readily apparent when a former employee’s access credentials are used, or when a current employee’s credentials are used in a suspicious or unlawful way.

Instruct employees about proper network behavior and the consequences of unlawful access

Employees should be trained that the fact that they can access a network or cloud-based account does not always mean that they should. The clearly applies when an employee has been terminated, but it also applies to current employees whose access to certain information should remain limited. Employees should be warned about what can happen to employees who unlawfully access confidential information: criminal convictions and prison sentences. Former employees have been sentenced for up to three years in prison for wrongfully using network access information.

To learn how Castaybert PLLC can assist with matters of employment law, please click here.

To learn how Castaybert PLLC can assist with trade secrets, please click here.

On January 18, an S.D.N.Y. judge sentenced software engineer Xu Jiaqiang to five years in prison. The crime? Stealing source code from IBM, his former employer. The Department of Justice successfully argued that as an employee, Xu had taken advantage of his unique access to IBM’s valuable source code. The company had taken significant measures to safeguard the code, including storing it behind a firewall and limiting access to specific employees, all of whom were made to sign confidentiality agreements. In spite of these precautions, Xu took the source code when he left the company in 2014 “for his own profit and intending to benefit the People’s Republic of China.” Xu attempted to sell software that was created with the code to undercover FBI agents.

This case demonstrates the need for a company to take precautions to prevent trade secret theft. Even though these measures may not ultimately be successful, they are necessary in order for the company to have full access to legal remedies (both civil and criminal) when the theft does occur.

To learn about how Castaybert PLLC can assist with trade secret matters, please click here.

With the help of advanced algorithms, machines are now capable of producing intricate, compelling works of art. As a result, new legal issues have begun to surface regarding the rights to these works. How should attorneys approach copyright issues, draft licenses, and manage disputes regarding robotic art?

Jessica Fjeld and Mason Kortz, of the Cyberlaw Clinic at Harvard University, authored a Comment entitled “A Legal Anatomy of AI-generated Art,” which seeks to help practitioners prevent and address conflict associated with this emerging field. The first part of a two-part series on the legal implications of robotic art, the Comment outlines key definitions related to the process by which the art is generated. Fjeld and Kortz maintain that “when the parties to an agreement or dispute share a common vocabulary and understanding of the nature of the work, many areas of potential conflict evaporate.”

In addition to explaining what exactly AI-generated art is, the “Legal Anatomy” defines the following terms:

Input – the existing artwork that is “fed” to the machine in order to train it
Learning Algorithm – the learning system that identifies and analyzes relevant characteristics of the Inputs, creating a data structure that forms the basis of the Trained Algorithm
Trained Algorithm – the component that uses the data structure produced by the Inputs and Learning Algorithm to create probabilities and operations that form the basis of the Outputs, or generated art
Output – the result of the operations of the Trained Algorithm, which takes a form recognizable to the human eye as art

Click here to read the Comment in full. The second Comment in the series, which provides practitioners with insights regarding copyright interests and AI-generated art, is yet to be published online.

To learn how Castaybert PLLC can assist with art law matters, please click here.

To learn how Castaybert PLLC can assist with intellectual property law, please click here.

On January 3, 2018, the Second Circuit held that the “Wandering Dago” food truck (“WD”) was unconstitutionally excluded from a New York State lunch program because of its use of ethnic slurs. The opinion repeatedly cites to the 2017 case Matal v. Tam, in which the Supreme Court held that the USPTO’s prohibition of disparaging trademarks violated the First Amendment.

In Wandering Dago, Inc. v. Destito, the food truck featured the slur “Dago” in its name, and it also served sandwiches called “Goombah,” “Guido” and “Polack.” According to the owners of the truck, the slurs were used in a mocking way to “signal to . . . immigrant groups that this food truck is for them.” The New York State Office of General Services (OGS), however, found the slurs offensive and denied WD’s participation in New York’s “Summer Outdoor Lunch Program” on this basis.

WD brought a §1983 action against OGS, alleging that the denial amounted to a violation of the First and Fourteenth Amendments, as well as the New York State Constitution. The district court granted summary judgment in defendants’ favor, holding that constitutional protection did not apply to WD’s speech because it was either:

government speech,
private speech contracted by the government, or
private speech in a government forum.

In its reversal, the Second Circuit held that OGS had engaged in viewpoint discrimination, because WD’s use of ethnic slurs reflected a viewpoint “about when and how such language should be used,” and the truck was denied access solely on account of this viewpoint. The unanimous panel disagreed with the district court on whether constitutional protection applied to WD’s speech, holding that:

it was not government speech, as it was “implausible that OGS, by permitting WD’s full participation in the Lunch Program, would be viewed by the public as having adopted WD’s speech as its own,”
WD, as a private entity seeking to pay for access to a forum for food trucks, was not contracted by OGS, and
whether the private speech was conducted in a private or public forum was legally irrelevant.

Finally, the Court examined whether there was a compelling government interest behind OGS’s decision to deny WD’s application. The record did not support such a finding. The Second Circuit reversed the district court’s grant of summary judgment to OGS and awarded summary judgment to WD on its free speech, equal protection, and state law claims.

On December 17, 2017, the New York County Supreme Court dismissed claims asserted by financial analytics firm First Manhattan Consulting Group that its competitor, Novantas, Inc., poached its employees to steal trade secrets. The specific claims against Novantas were tortious interference with contract, unfair competition, and misappropriation of trade secrets. First Manhattan also filed suit against two individuals who were officers at the firm and who were subject to contractual confidentiality and employee non-solicitation obligations.

Ultimately, the jury did not find Novantas to have engaged in a “pattern and practice of poaching” First Manhattan’s employees, and the tortious interference or unfair competition claims against the firm were dismissed. Most notably, the Court refused to submit the misappropriation claim to the jury on the grounds that the information presented by First Manhattan did not constitute specific trade secrets, and there no testimony concerning the alleged misappropriation. The case thus affirmed the necessity of detailed, comprehensive information about trade secrets to be presented at trial, including a full account of the nature of the misappropriation, as well as how exactly the plaintiff was damaged.

To learn how Castaybert PLLC can assist with intellectual property law, including trade secrets, click here.

To learn how Castaybert PLLC can assist with matters of employment law, click here.

This past December, the Second Circuit held that unpaid students working at Hearst Communications were in fact interns, and not entry-level employees, as Xuedan “Diana” Wang claimed in her lawsuit against the corporation. Her 2011 complaint alleged that Hearst interns were actually entry-level employees, mislabeled as interns, who were denied minimum wage and overtime payment in violation of the Fair Labor Standards Act and state law. The Second Circuit, in determining “whether Hearst furnishes bona fide for-credit internships or whether it exploits student-interns to avoid hiring and compensating entry-level employees,” considered the test established in Glatt v. Fox Searchlight Pictures Inc., which asks who the primary beneficiary of the internship relationship is. Citing various relevant factors, including that the internships were tied to an academic program, that they provided an educational experience—even in including repetitive or menial tasks—and that Hearst made clear that there would be no monetary compensation, the Court ruled in favor of the defendant.

Shortly following the decision, the Department of Labor issued “Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act,” a set of guidelines which outlines seven factors to help determine whether students working for “for-profit” employers are entitled to minimum wages and overtime pay:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

It is important to note that though these factors clarify how courts analyze the legality of an unpaid position, no single factor is determinative, and “whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.”

To read more about the status of unpaid internships in the fashion industry, click here.

To learn how Castaybert PLLC can assist with matters of employment law, please click here.

To learn how Castaybert PLLC can assist with fashion law matters, please click here.

In its recent Chaca v. Abraham decision, the New York State Court of Appeals held that an employee may seek punitive damages where the employer’s discriminatory actions were willfully or wantonly negligent, or where there was “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.” This aligns with the state’s common law standard for punitive damages, but it departs from federal law, under which punitive damages are not awarded without a showing the employer intentionally discriminated with malice or reckless indifference to protected rights. The Court maintained that its distinction is supported by the broad remedial purpose of the New York City Human Rights Law.

To learn how Castaybert PLLC can assist with matters of employment law, click here.