Beware: Copyright Trolls Have Landed in Tennessee

It was only a matter of time before copyright trolls filed a bit-torrent lawsuit in Tennessee, like they've done in so many other jurisdictions across the country.  Over the past couple of years, I have helped individuals who find themselves at the opposite end of one of these lawsuits.  Now they've come to roost in our own backyard, filing suit on behalf of "Inseparable Prez" against more than 80 unknown defendants in Nashville, and more than 70 in Knoxville.  I imagine this is just the tip of the iceberg.  (For a 2012 article in the ABA Journal where I'm quoted on the copyright troll problem, see here.)

I am a strong believer in our copyright system, and I represent rights-holders every day against infringers.  But this is a different animal.  While owners of copyrights have every right to enforce and protect their copyrights, the technique the trolls are employing here is a modern twist on the old-fashioned shake down.  In my opinion, their methods are questionable at best and close to extortion at worst.

Their methods are similar wherever they go.  They obtain IP (Internet protocol) addresses of individuals they suspect have used a "bit-torrent" device to access movie content without paying for it.  They then file suit in federal court against multiple "John Does" and attach a list of the IP addresses as an exhibit to the complaint.  Next, they file a motion explaining that they need a subpoena to order the ISPs (Internet service providers, such as Charter or Comcast) to reveal the identity of individuals associated with each particular IP address.  By law, the ISPs are required to reach out to the John Does and tell them they have 30 days to file a "motion to quash" the subpoena, or otherwise settle the lawsuit.  If the individuals take no action, the ISPs will release their identities to the Plaintiff, after which the Plaintiff will amend the complaint to name the individual in the copyright infringement action -- for all the world to see.

Some courts have found several problems with the Plaintiffs' methods in these cases.  First, these Plaintiffs are suing IP addresses, not individuals.  Second, many of the individuals may not reside in Tennessee -- in legal terms, the court has no personal jurisdiction over them.  Third, they are attempting to "join" multiple defendants into a single action, when they involve completely different facts.  The only thing linking them together is that they allegedly accessed the same movie without permission, but all on different days and times, and all in different places.  When faced with copyright trolls in West Virginia, the federal court there dismissed the entire action, forcing those attorneys to pack their bags and find a friendlier location -- Washington, D.C. 

There are also practical problems with this approach to suing for copyright infringement.  I'll be the first to disagree with people who believe that everything on the Internet should be free.  But plenty of the folks who receive these letters from their ISP never actually accessed these movies.  Some did, but plenty of them merely neglected to password protect their wireless router, or trusted their teenage children to use the Internet responsibly.  Defending one of these lawsuits is time consuming and expensive, so many people choose to settle.  Others need to settle to protect their anonymity, either because they work in the entertainment business and their credibility is on the line, or because they're high profile individuals, or because the movie in question is x-rated and they don't want their names associated with the title. 

Individuals who receive one of these letters from their ISPs should contact a qualified attorney familiar with this area to seek advice and possible representation.   Another good option is to read over the subpoena defense resources provided by the EFF (Electronic Frontier Foundation).

Celebrating Books in Nashville: WaterCooler, Parnassus & the Southern Festival of Books

For the past three years, WaterCooler has been hosting events that highlight the hidden gems in Nashville, some old and some new.  Over the past year, we have tried be more programmatic in our events, tying them to cultural happenings in the city.  For us, these are some of the reasons Nashville is a great place to call home.

The most recent example of this was the WaterCooler hosted at Parnassus Books, on August 19. We heard from Serenity Gerbman of Humanities Tennessee, which hosts the Southern Festival of Books, among other programs; Karen Hayes, Co-Owner of Parnassus; and the award-winning novelist, Ann Patchett, who happens to co-own Parnassus Books with Karen. 

These speakers gave us insight into all the opportunities to be a reader in Greater Nashville.  Parnassus has a program called the First Editions Club, which is like a coffee-of-the-month club, but which delivers signed first editions of books, hand selected by the folks at Parnassus, 10-12 times a year.  They’ve also got something called the Founders Rewards Program that, in exchange for showing your support in an independent bookstore, provides fringe benefits ranging from invitations to high-profile artist receptions to personal use of the store after hours – pretty cool place for a date, if you ask me.

Serenity Gerbman, who is Director of Literature and Language Programs at Humanities Tennessee, helps oversee programs including the Southern Festival of Books: A Celebration of the Written Word.  It’s scheduled for October 12-14 at Legislative Plaza.  This is actually the 24^th anniversary of the Southern Festival of Books.  It’s completely free and there are no advanced registrations.  Just like WaterCooler, if something interests you, show up and it’s first come first serve.  Serenity said that they are still looking for volunteers to host the rooms in which the various authors will be speaking and presenting.  So, in true WaterCooler fashion, we’re always looking for ways invite people to plug into our community, and this is an easy opportunity. 

For me, the most fascinating part of this WaterCooler was hearing the amazing line up of literary talent coming to Nashville in the next few months, including Caroline Kennedy, Molly Ringwald, Patricia Cornwell, Barbara Kingsolver, and Jon Meacham.  All of these authors are part of Humanities Tennessee's Salon@615 program,

Another great option is to attend the Authors in the Round, the fundraising dinner that kicks off the Southern Festival of Books, where diners are paired with well-known authors.  If you love schmoozing with writers, and hate dancing and silent auctions, this fundraiser is for you.  This year, it will be held on October 12 at the historic War Memorial Auditorium.  If you’d like an invitation or for more information, visit their website.

In wrapping up at WaterCooler, Ann Patchett said something that everyone in the audience appreciated.  She said that Parnassus's staff is what sets them apart from online book vendors.  She compared Parnassus to an old fashioned hardware store where you bring in your broken parts and the employees tell you exactly what you need.  Same thing with Parnassus: walk on in, tell them what you’ve been reading, and they can recommend your next favorite book.  But, if you come into Parnassus, take advantage of the recommendations from the staff, and then go home to buy it on Amazon.com for $5.00 cheaper, Ann says you’re “just flat not welcome.”  Everyone in the room loved the straight shooting.  For a group like WaterCooler, which promotes locally-owned businesses, we couldn’t agree with you more, Ann.

Follow the Southern Festival of Books on Twitter at @SoFestofBooks.

Follow Parnassus Books on Twitter at @ParnassusBooks1.

Follow WaterCooler on Twitter at @WaterCoolerNash.

Follow me on Twitter at @StephenZralek.

Using Pinterest without Committing Copyright Infringement

            Pinterest is a platform that is gaining popularity like Facebook and Twitter did a few years ago.  Its users report an addiction stronger than Starbucks coffee.  Pinterest invites users to find images that other people have posted on the web and add them to the Pinterest user’s virtual pin board.  It has the potential to drive tremendous traffic to business websites and to help them sell products and services, but most of the images selected by each Pinterest user are “owned” by someone else under U.S. Copyright Law, presenting many pitfalls to be sued for copyright infringement.

            Copyright law in the United States protects all original content from the moment of creation for the life of the author plus 70 years, whether or not it is registered with the Copyright Office and whether or not it bears the copyright symbol of ©.  The copyright laws give exclusive rights to the author to publish, distribute, and make derivative works of the original work of authorship.

            Many people think that giving attribution to the original source is good enough, but attribution and permission are two different things.  How do you use Pinterest without committing copyright infringement?  Here are eight practical tips to minimize your exposure to claims of copyright infringement:

1.      Use your own content.  By using your own content, such as photographs that you personally take, you minimize the risk of copyright infringement.  (There is still a risk of copyright infringement if, for example, you photograph then pin an entire poem that belongs to someone else.)  The trade-off of using your own material on Pinterest is that you are giving Pinterest a “non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use, display, reproduce, re-pin, modify . . . , rearrange and distribute” your content, according to its updated Terms of Service.  By pinning it on Pinterest, you give up your exclusive rights to that work whenever you pin it on Pinterest.

2.      Get permission.  The surest way to avoid claims of copyright infringement is to get permission from the owner of the work that you wish to pin.  Get it in writing.

3.      Use the “pin it” button.  If a content owner encourages users to share their material with the Pinterest “pin it” button, arguably the content owner is giving you an implied license to pin it.

4.      Give attribution.  Whenever you pin something that belongs to someone else, be sure to attribute the original source.  This will not protect you from a claim of copyright infringement if you’re lacking actual permission, but it may minimize your exposure.  A further tip:  don’t just upload directly from Google Images.  When you do that, Pinterest gives the attribution to you by stating “uploaded by user,” rather than giving it to the original source.

5.      Pin products rather than art.  This is based more on common sense than the law, but businesses selling products presumably want to get the word out about their products and appreciate the free word of mouth publicity you’re generating on their behalf.  Some artists appreciate you pinning their work, too, but many artists make money selling or licensing original works, and would argue that you’re driving down the value of their work.  (Caveat: some brand owners may assert claims of trademark infringement if you use their marks without permission.)

6.      Limit your pinning to repining.  When you re-pin material that has already been pinned on someone else’s board, you arguably have the protection of Pinterest’s Terms of Service, which explain that no one should pin anything on Pinterest unless they have the right to do so.  Thus, if ever sued for copyright infringement, you could argue that you had a good faith belief, based on Pinterest’s Terms of Service, that any material you re-pinned was originally posted on Pinterest by someone who had rights to put it there.

7.      Be careful when pinning for profit.  A defense many people point to when sued for copyright infringement is the Fair Use Doctrine, which looks at four factors, one of which is the nature of the copying, and whether it is commercial (meaning, for money) or not.  It is harder to successfully argue fair use when the copying is done for profit than for a hobby or educational purposes.

8.      Pin less than an entire image.  Back to the Fair Use Doctrine: it’s harder to succeed with this defense when you’ve copied the entire image of a work belonging to someone else.  Consider copying only a small portion of the image instead.

            Using Pinterest is a lot like riding in a car.  In a car, you can use a seat belt, turn on your lights, and pay attention to the road to avoid accidents, but you can still be hit.  These are some tips to help you minimize the risk of being sued for copyright infringement when using Pinterest.  The smarter you are, the lower your risk; the more aggressive you are, the higher your risk. 

            Businesses have a lot to gain by using Pinterest, mainly driving traffic to their websites and building brand identity, loyalty, and interaction with customers.  To help protect your business from exposure to lawsuits when using Pinterest, consult a qualified intellectual property lawyer who can tailor advice to your unique situation.  The above tips are not intended as legal advice.

Three Days in January that Made Copyright History

Three days in January 2012 witnessed some of the most important events in recent history in the world of copyright.

On January 18, the Supreme Court issued Golan v. Holder, which held that Congress is empowered remove works like the symphony classic Peter and the Wolf from the public domain in the United States, preventing orchestras, musicians and others from using these works unless they get permission and pay a license fee to the copyright holders.

On the same day, the technology community mobilized millions of people to voice their disagreement with SOPA and PIPA, two bills supported by the entertainment industry that were designed to fight online piracy. After blackouts by Wikipedia and protests encouraged by tech giants like Google, by January 19 most members of Congress had withdrawn their support for both bills.

On January 20, the United States arrested Kim Dotcom. He was arrested in Auckland, New Zealand for a file-sharing site called Megaupload.com that was based in Hong Kong. The site allegedly generated over $175 million by illegally copying and distributing music, movies and other copyrighted material without authorization.

What does all of this tell us? Three important things.

First, protection of our country’s intellectual property relies on international cooperation. For us to arrest Mr. Dotcom, who is alleged to have stolen millions from American content creators, we needed the help of authorities in Hong Kong and New Zealand. Which is where Golan v. Holder comes in: no one likes hearing that Peter and the Wolf and other classics have fallen out of the public domain and back into exclusive ownership, but for our country to benefit from international copyright treaties, we also must abide by them. International treaties are what prompted Congress to pull certain works out of the public domain, and what prompted the Supreme Court to reach the conclusion it reached in that lawsuit.

Second, if we didn’t recognize it before the rise and fall of SOPA and PIPA, there’s no denying the tension between content creators and content providers; between the entertainment industry and the technology industry. Our technology is intertwined with our entertainment and our content, so we need these camps to work together. Unfortunately for now, the tension is insurmountable: technology camps want free flow of information while content creators want protection for their original works. Ultimately, these two teams will have to reach a compromise, and Congress cannot ignore the need to protect American intellectual property from online international piracy, like the theft allegedly coordinated by Mr. Dotcom.

Finally, the online protests of SOPA and PIPA mobilized a new segment of concerned citizens. Google claims it gathered over seven million signatures in 24 hours in opposition to the bills. The implications of that statistic are at the same time impressive, intimidating and infinite.

Recent Interview on TV about Recapturing Copyrights

Recently my law partner, Stephanie Taylor, and I were interviewed by Jesse Goldberg, on his show, “Mind Your Own Music Business.”  Following up on an article that I wrote for The Tennessean, we discussed copyright recapture rights. 

This is a very important issue right now for any authors and heirs of original works who transferred rights in their copyrights in the past under the 1976 Copyright Act, which affects works first published on or after January 1, 1978.  Thirty-five years after the initial transfer, a five year window opens up during which the authors/heirs may provide notice of their desire to recapture the copyrights that they previously transferred.  To make it more complicated, authors and heirs must provide notice of their intent to recapture no earlier than ten, and no later than two, years prior to the notice being effective.   Thus, for those authors wishing to recapture copyrights that they transferred in 1978 (for which the five year window opens up in 2013 and runs through 2018), the minimum two-year notice prior to the five year window is right now in 2011. 

We discussed a variety of issues, many of which have not made their way to the courts yet, but surely which will require litigation.  These included whether sound recordings are considered works for hire, and thus not eligible for recapturing; whether session musicians, producers, sound engineers, and others might qualify as authors; and the gap grant problem for those authors who entered into contracts transferring their copyrights pre-1978, but who didn’t create or publish their works until after January 1, 1978.  We also discussed how Nashville courts likely will be called on to decide some of these significant legal issues in the coming years, given Nashville’s importance in the entertainment, publishing, and technology industries. 

As soon as the show airs on TV and is up on the web, I'll update this post and provide links.

Celebrating Two Years of WaterCooler: Young Entrepreneurs Networking in Nashville

Two years ago, I was talking with my friend Wade Munday about how I wanted to start a fun, informal, monthly event for young entrepreneurs in Nashville to meet each other.  The goal was to provide networking opportunities and to learn about interesting topics or hear from speakers within our own age range (20s through 40s).  He helped me come up with the name WaterCooler, which sounded a lot better than CornerOffice and other names that we considered.  Then he moved to Boston for a year before coming home and getting married.

My friend Renata Soto, who runs Conexión Americas, graciously agreed to co-chair and co-host these events with me.  Our first speaker was Kimberly Pace of Owen Management School at Vanderbilt University, who talked about personal brands:  how each of us creates a personal brand with every action or inaction that we take.  We hosted the first one at Cantina Laredo, which had awesome guacamole and margaritas, but didn’t have the best acoustics.  We later moved to 1808 Grille at The Hutton Hotel, which provided a rock star environment, but was too small for our growing crowds.  Then we moved to Miro District.  We decided it was time to take the show on the road. 

During that time, we hosted some amazing speakers, ranging from Becca Stevens, who talked about her work with former prostitutes at Magdalene and Thistle Farms, to Clint Smith of Emma, Laura Creekmore, who gave an overview of social media (which now seems like it was eons ago), and Alan Young of Armor Concepts, whose products I see on billboards all around the city.

Our first field trip was to Yazoo Tap Room, where Linus Hall and Neil McCormick gave everyone a tour of their brewery and free tastes of Yazoo.  That event turned out to be our most popular yet, and it showed us that WaterCooler was good not only for participants (who, in that case, reaped free beer) but also for the hosts whose businesses we showcased, because it gave them an opportunity to connect with their audience and further build brand loyalty.  I know, for myself, that I buy a lot more Yazoo beer now than I did before, because I heard Linus’ story and know how fresh it is, in addition to merely wishing to support the local economy.

From there, we realized that our niche was really in focusing on locally-owned businesses and entrepreneurs, and not just hearing from a variety of speakers in our age range.  We went to Oliver & Sinclair Chocolate Factory, which was so jam packed that we had to turn people away at the doors for fear of overcrowding/fire marshals.  We also visited Corsair Distillery and heard from Darek Bell and his partner.  More recently, we toured CentreSouce, then walked down the street to City House for drinks.

Our hope in doing this, in hosting and starting WaterCooler, was to build connections, for ourselves, and with each other.  We want folks to come whenever they’re inspired by the topic or have an interest in the location or the host or the product.  But we didn’t want to do anything that required people to sign up for one more commitment.  Everyone has enough of those already.  Because of that, we don’t have an official membership, and we don’t ask people to pay dues. 

We know that we are achieving our goal, because we have made connections with you resulting in new clients for our businesses/practices, new donors for our non-profits, new jobs, and more generally new friends.  And we know that you have done the same.  Emma has gotten new clients because one person who attended was impressed with Clint Smith's story.  And at least one person has gotten a new job because of a relationship she made while trying to attend our event at Olive & Sinclair.  These are the sorts of things we want to happen with WaterCooler.  If you have more examples of good connections that you’ve made, or if you have interesting locally-owned businesses based in Nashville that you want to highlight, please let us know.  These are the stories that we want to help you tell.

Using Technology to Tap into New Sources of Revenue: Highlights of Technology Panel at Bone McAllester Norton

Recently my law firm hosted a panel on technology.  It was a packed audience, and more guests showed up than rsvp’d, showing us that this was a topic that people really want to know more about.  Usually law firms invite clients and friends to hear about risks or changes in the law.  This event was all about business opportunity.

Since the beginning of 2011, I’ve given 1-2 speeches a month on the legal issues involved in using social media.  These talks typically have revolved around social media as a marketing tool, but not necessarily linked directly with creating new revenue.  At our tech panel, we wanted to focus instead on how companies and individuals can use technology to create new streams of revenue.  How can they tap into new revenue sources by creating their own apps, games and contests?  And what is on the horizon that none of us has even contemplated?

We invited an expert panel, comprised of David Owens of Vanderbilt University Owen Graduate School of Management, Nicholas Holland, CEO and Founder of CentreSource, and two of our clients, Parker Polidor, CEO and Co-Founder of Cell Journalist and Carter Hopkins, CEO and Co-Founder of City Streak, LLC.  Our audience was made up of leaders of financial institutions, educational institutions, technology companies, start-ups, developers, and venture capital firms.  We asked our panel and our audience to focus on three things:  (1) using technology to create new revenue streams, (2) tapping into the growing technology sector here in Nashville, rather than shipping assignments out of state to Silicon Valley or Texas, and (3) using our panelists’ stories as inspiration.

David Owens kicked off the discussion by talking about how companies that develop technology these days are recruiting high school students and high school graduates rather than college graduates, because young people are so connected with technology these days.  He talked about how younger people are physically developing stronger hands, fingers and forearms as a result of constantly using Smartphones, and how marketing firms are beginning to place signs and advertisements at foot level and knee level in stores, rather than overhead, because our bodies are getting used to looking down at a hand-held device all day, rather than looking up.  These are just some of the physiological and physical changes that are taking place from an evolutionary perspective, based on our recent adoption of certain technological devices.

Nick Holland did a great job providing an overview of how businesses can tap into technology from a variety of perspectives and in order to accomplish multiple goals.  His company is one of the fastest growing technology companies in America, and its based right here in Nashville.  Already as a result of our panel, members of the audience have hired CentreSource to help them with their needs.  This is great for them, for CentreSource, and for Nashville.

Parker Polidor shared his company’s amazing story, which deserves far greater recognition in Nashville than it currently has.  Cell Journalist is one of the biggest connectors and providers of user-generated content (UGC), such as videos of the floods captured from the Northeast over the past few weeks on individuals’ cell phones, which they then upload to various local and national news stations across the country.  As a direct result of the panel that we hosted, Cell Journalist was approached by one of the nation’s largest media conglomerates and is in the process of negotiating additional work.

Finally, Carter Hopkins, who was the youngest person in the room, and had just graduated from college at SMU in May 2010, captivated the audience by telling his story of how he and his business partner invested just over $10,000 to start this company, which already has thousands of fans and followers on Twitter and Facebook.  His company is similar to a combination of The Amazing Race and Groupon, which lets its target audience of individuals in college and recent graduates go on scavenger hunts in urban locations around the country.  They hunt for prizes and the game is based on speed and skill.  They also realize that they are in a unique position to help companies promote their products and services by incorporating them into the scavenger hunt as clues.  One of my take-aways from the morning was a conversation after the event with one of the older attendees, who said how inspired she was by Carter’s presentation.  She said it got her wheels spinning and that she is already thinking about new ways she can incorporate similar concepts into her own app.

Congress Should Take up Conyers' proposal to Clarify Copyright Law

Today's New York Times reports that Rep. Conyers is calling on Congress to revise the Copyright Act to clarify that recording artists are entitled to recapture ownership over their copyrights in sound recordings.  As the article explains, and as I referenced in my last blog post, questions exist whether transfers in copyrights in sound recordings (like other works) may be terminated, or whether they are "works made for hire," disqualifying them from being recaptured/terminated. 

The article indicates that the big four record labels and their allies in Congress may prefer to ignore the issue and let the courts decide it.  While such strategy would undoubtedly provide job security for us copyright litigators, it seems to make little sense for anyone else.  This is an issue that Congress can and should decide now, putting recording artists in the same camp as every other type of author, with all of the same rights. 

Regaining Ownership over Copyrights

The Tennessean recently published my article on recapturing copyrights.  You can see a copy of it here or read what I wrote here:

         

             If they’re not scrambling yet, Nashville songwriters, recording artists, publishing houses and labels soon will be as they jockey to control copyrights.  Starting this year, authors can begin to give notice to terminate the transfer of any copyright that was published on or after January 1, 1978. 

            Generally, whoever owns the copyright owns the right to distribute, sell and reproduce the work in question, whether it be lyrics or music to a song, sound recordings, motion pictures, manuscripts, software, architectural designs, or photographs.  When an author transfers ownership, he or she loses those rights.  But by terminating the transfer, authors redirect royalty streams away from the current owners (labels, publishers, and so forth) and back to the original authors.

            A five year window opens up 35 years after publication, allowing authors to terminate transfers they made in the past.  For those works published in 1978, the first opportunity to terminate the transfer will be in 2013.  (For works published or registered prior to 1978, different rules apply, but authors can still recapture their copyrights.)  The Act requires authors to provide at least two years notice, so those who want to terminate their 1978 transfers in 2013 must send notice in 2011.

            Historically, when working to get established, authors (be they poets, songwriters, filmmakers or sculptors) have had little leverage with their publisher or label.  In exchange for receiving financial advances and getting published, young authors often must transfer ownership of the copyright in the work to the publisher/label.  For example, Garth Brooks currently has a lot more negotiating power than newer artists because he has a track record of producing huge hits. 

            Recognizing the uneven bargaining power that authors possess when first trying to make it big, Congress leveled the playing field by giving them the ability to recapture the copyrights they transferred to the publisher/labels 35 years ago.  Whether an artist’s record contract says he has created a work made for hire, or whether she has signed a contract promising never to terminate the transfer, it doesn’t matter because the right to terminate transfer is irrevocable.

            Congress left open many unanswered questions that courts across the country will have to answer.  With Nashville’s stature in the music and publishing industries, as well as our growing technology community, this has the potential to wreak as much havoc on business as the switch from vinyl to digital.  Given the impact of this law on our own community, I feel certain that Nashville’s federal courts will be in the center of this storm.

            The rules in this area are complicated, even to many lawyers.  They are highly technical and require jumping through many hoops.  Once the window to recapture closes, it generally closes for good.  Authors who are interested in recapturing their copyrights should start working on this right away, take this into account when writing their wills, and enlist professional help from a lawyer in this field. 

Entertainment Industry's New Copyright Alert System May Create New Form of Evidence in Copyright Infringement Lawsuits & Lead to Higher Damages

It was big news earlier this month when many of the big entertainment companies entered into an agreement with Internet service providers (ISPs) regarding efforts they will take to self-regulate and self-police copyright infringement. The name of this plan is the "Copyright Alert System."

According to the Wall St. Journal and the Center for Copyright Information, the plan has six steps, from the mildest (in issuing warnings), to the intermediate (in requiring users to acknowledge that they received notice), to the most severe (in slowing down the speed at which alleged infringers may access the Internet).

As a copyright lawyer who goes to court to resolve disputes, I am most interested in the intermediate step. It strikes me that if users are forced to acknowledge that they have received a warning that their conduct may constitute infringement and yet they proceed forward anyway, the fact that they acknowledged such warning may be used against them in a copyright infringement action. The ISPs will not be releasing the identity of these users voluntarily. But a court can always grant permission to subpoena material showing that they took this intermediate step. This new policy may be opening up a whole new world of evidence of willfulness that can be used against people who knowingly infringe on others' copyrights. And willful infringement entitles copyright plaintiffs to increased money damages.

"Always On," Consumers Expect Businesses to Embrace Technology Even More

In this new iPhone world, where consumers can download an app at the press of a button, businesses must embrace technology or risk being left behind.  When I say embrace technology, I'm not talking about just having an Internet presence or just using social media for marketing.  I mean using technology to create new apps, tools or games that let you instantly connect and engage with your customers.


Brian X. Chen, a writer for Wired Magazine, was recently interviewed on NPR's Fresh Air from WHYY.  Here's a link to the story and the interview.  In the interview, he discussed his new book, Always On: How the iPhone Unlocked the Anything-Anytime-Anywhere Future -- and Locked Us In. 

From a business perspective, the most fascinating part of the book is Chen's comment on how consumers' expectations have changed in light of the way the iPhone lets them unlock worlds of knowledge in the swipe of their phone screen.  In an excerpt from his book, he writes: "The iPhone changed our standards for what we expect from technology, and as a result, businesses are being forced to give us more for our money. We don't want seven pieces of hardware to perform seven different tasks; we want a single gadget capable of doing anything-anytime-anywhere. Soon, manufacturers will no longer be able to sell single-function gadgets lacking an internet connection because those gadgets will soon be obsolete. Consequently, a large number of companies and industries find themselves threatened because a downloadable app can easily replace nearly any dedicated, single-use product."

How is your business using technology to satisfy consumer expectations?  What app could you develop to keep your customers engaged?  Are you thinking from the mindset of a customer who owns an iPhone, and who expects information immediately? No matter your industry -- entertainment, publishing, banking, technology, professional services, arts, health care, environmental -- customers want more from you, and they expect it in the form of instantly accessed technology.

Privacy? Anyone Remember What That Is?

Does privacy really exist any more?  Sure it does, but sometimes it's easy to forget. 

Take the story's in today's Tennessean: "Nashville Residents Take on Google Wi-Spy, Join Privacy Lawsuit."  Google is accused of tapping into wireless networks while it drove by individuals' houses to capture a copy of their homes for placement on Google Earth.  According to the article, the wire tapping had nothing to do with capturing images of the homes; rather, it was done to improve Google's LBS -- location based services.

What's LBS? It's new technology that allows us consumers to get more accurate information at our fingertips when we log into a new app.  For example, when you go to TripAdvisor's App, if you allow it to track your location, it can send you a map showing you restaurants, parks, hotels, and music venues -- all tailored to your location.  When I go on vacation this fall, I can open up my iPad, tap on the app, and it will move with me, knowing I'm in another location, and providing me with the same instant information -- I don't have to key in the location, because the app does it for me. 

Are there privacy concerns in this?  Of course there are.  And that's ignoring Google's alleged wire tapping.  The concerns are that we give up some privacy when our smart phones know our location.  Who else knows our location?  Surely someone's finding a way to sell that information and make money -- this is called "monetization."

As I explained while recently speaking on a panel at Lipscomb University, our free Internet, and our incredibly tech savvy tools, are not truly free, even though they appear to be.  They come at a price and, as a society, we're just beginning to see what that price is: our privacy.

The lawyers at Covington & Burling have compiled a great summary of privacy bills pending before Congress.  As Congess wades through these bills, it is faced with the same tensions we all face: how much privacy are we willing to give up in exchange for the luxuries of information technology?  To protect our privacy, we may decide it's time to pay to protect ourselves, and we may begin to realize that things that seem too good to be true (an Internet without a price tag) really might be.

The Next Tidal Wave in Social Media: Video, Apps, QR Codes and Location-based Software

Video, apps, QR Codes and LBS (for location based software, not pounds) are about to be the next tidal wave in social media. It's not that Facebook, Twitter and LinkedIn are losing any prominence (yet), but more and more businesses are waking up to see new ways to connect with their audiences. When law firms and banks (conservative by nature) start adding video to their home pages, you know something's catching on.

As these forms of social media become more popular, they raise new issues for the law to grapple with. Who owns the content? Did you get permission to include an image of that person or that song in your video? Have you informed your users that you plan to sell information about their visiting patterns whenever they view your site? Thoughts for businesses, legislatures and the courts to consider...

Video: Protecting Your Family & Your Reputation when Using Social Media

I was recently invited to speak on "Digital Citizenship and the First Amendment" at The Leadership and Civility in a Digital Age speaker series, presented by Lipscomb University’s Nelson & Sue Andrews Institute for Civic Leadership and Department of Communication and Journalism and by Centerstone.  My friend Debi Tate, a former commissioner on the FCC, invited me to join First Amendment scholar Gene Policinsky on the panel. 

Typically when I speak on legal issues in social media, it is to an audience of business leaders or marketing professionals.  Last night was an opportunity to look at these issues from the perspective of the individual consumer and citizen.  With that in mind, I titled my talk "Protecting Your Family & Your Reputation when Using Social Media."  We had a great crowd and a good conversation.  For a link to the video, go here. 

WaterCooler goes to Corsair Distillery for Exclusive Tasting & Tour

If you missed the last WaterCooler, you missed a great event!  Nashville's only distillery, Corsair, gave us a behind-the-scenes tour of how they make and distill what is quickly becoming one of the most sought-after small batch liquors in the U.S. when they hosted us in April 2011. 

Located in Marathon Village, which used to house Yazoo Brewery, Corsair had to work mighty hard to even get up and running in Tennessee. 

Darek Bell

Because Tennessee's laws and Nashville's laws were so onerous, Corsair actually began in Bowling Green, Kentucky.  Only after they were able to convince the state and local lawmakers to allow them to "manufacture intoxicating liquors" were they able to come back home. 

As part of a private event for WaterCooler, co-owners Darek Bell and Andrew Webber showed us around, told the story behind Corsair, and gave us samples in their tasting room.  The Tennessean just reported that members of the public won't get this same opportunity until the laws are changed. 

Andrew Webber

To join the invitation list and receive news about upcoming WaterCooler events, shoot me an email. Thanks to everyone who showed up.  See you at the next on on May 9 at Conexion Americas! 

Here are some photos from WaterCooler at Corsair:

Music & Margaritas: Preview Party for Conexion Americas' Annual Breakfast

How lucky was it to stumble upon the first night of incredible weather in early April when we held a garden party kicking off the annual breakfast for my favorite non-profit in town Conexion Americas? 

We called it "Music & Margaritas." 

Everyone expected a good margarita and some great conversation, but no one expected to hear "Rumba," the number one band in Nashville's corporate band challenge, hosted by the Arts & Business Council!  When my friend Leon said he would take care of the music, we thought he meant he and another guy would bring their guitars, but he showed up with an entire Latino rock band.  Incredible. 

Conexion Americas serves as a bridge between the established community in Nashville and the recently-arriving Latino community.  Its mission is to promote the social, economic and civic advancement of Latino families in Middle Tennessee.  It was a great chance for friends to learn about the amazing work of Conexion Americas, and a great opportunity for Conexion Americas to make some new friends.

Mark your calendars for the annual breakfast on May 26 at 7:30am at Loews Vanderbilt!

Here are some photos from Music & Margaritas:

Want to Limit Liability Against Copyright Infringement Claims when Hosting User Content on your Website?

If you host a website that invites the public to submit content, often called UGC (or User Generated Content), you may want to read the recent summary judgment decision in Arista Records LLC v. Myxer Inc. and stay tuned to the final outcome at trial.  Website hosts that allow UGC run the risk of being sued for copyright infringement, among other claims, because users sometimes submit material whose copyright belongs to someone else.  If a copyright owner sues you for copyright infringement in your role as a website host, one of the most common defenses asserted is that the web hosting is protected under the DMCA (Digital Millennium Copyright Act). 

On April 1, 2011, a federal court in California issued the above decision in a case pitting content owners against website hosts.  UMG Records and other music companies sued Myxer and its principals for copyright infringement because Myxer hosts a website that invites the public to upload music and then download it as ring tones on cell phones.  Myxer doesn't pay UMG anything, and UMG argues that it loses money every time a ring tone is downloaded through Myxer.

Myxer asserted two primary defenses: that its use was fair use and that it was protected by the DMCA's "safe harbors."  On summary judgment, the court rejected Myxer's fair use defense, finding that converting the songs into ring tones did not qualify as a "transformative" use and finding that Myxer's business model likely cut into UMG's market. 

But the court kept alive Myxer's DMCA defense.  It found that genuine issues of fact existed regarding Myxer's implementation of a DMCA policy and regarding the speed with which it removed allegedly infringing material.  Now it will be up to Myxer to prevail on this defense at trial.

Just like Myxer is hoping to do, businesses that allow the public to post content on their websites may limit their liability against copyright infringement lawsuits by following some steps under the DMCA.  As a ground rule, if you create or direct content on your website that infringes on another's copyright, you can't turn to the DMCA for help.  But if all you do is host content created by others, to get the benefits of DMCA protection you need to (1) adopt a  DMCA policy and communicate it to your users, (2) appoint a DMCA agent, (3) follow the DMCA steps of quickly responding to accusations of hosting material that infringes another's copyright, (4) permanently remove repeat infringers, and (5) receive no financial benefit directly attributable to any infringing activity on your site. 

To read more about how to protect your business under the DMCA, check out this great resource from the EFF (Electronic Frontier Foundation), or contact an attorney with experience in copyrights and intellectual property law.

Griffin Technology Hosts WaterCooler

WaterCooler is a monthly networking event for "young" entrepreneurs.  (I take liberty with use of the word "young" since my co-founder and I are pushing 40, and since we'd like to stay involved for a while.  With that in mind, we include anyone in their 20s, 30s and 40s.)  We started this fun venture in September 2009 and highlight a different local business or expert each time.  Lately we've been enjoying the field trips, visiting Yazoo Brewery, Olive & Sinclair Chocolate Co., and (coming up on April 18) Corsair Distillery.  It's a casual way to meet others who are active in the business, cultural and philanthropic worlds of Nashville.  Hopefully connections will be made at WaterCooler that spur new entrepreneurial and community collaborations.  If you'd like to be added to the list, email me at szralek@bonelaw.com.

Griffin Technology graciously hosted us on April 23.  Jackie Ballinger, its Marketing and PR guru, welcomed each guest and provided us with an incredible array of food and drink.  Also greeting guests as they arrived was this VW bus, which employees use for impromptu meetings, and which Griffin has traveled in for marketing at SXSW and Bonnaroo, to name a few:

Photo courtesy of Griffin Technology

Mark Rowan, Griffin's President, spoke about its background, its international reach and its commitment to Nashville. 

Photo courtesy of Griffin Technology

It was clear that Griffin is a dominant player in the global tech scene, and we're lucky to have it right here in our own backyard.

After, Jackie led us on a tour of their new work space.  We saw the wall of awesome accessory covers, the vending machine stocked with beer, and the work station decked out in action figures -- none of which is a regular feature where most of us work:

In the highest form of flattery (jealousy), everyone decided to ditch their current job and apply to work at Griffin. 

Here are some photos of the event: