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Articles by Tom Kulik
Election 2020 (Part II): 3 Security Questions Electronic Voting Systems Providers Need To Answer
Some things just need to be said: the year 2020 has been (and continues to be) one of the most challenging years of our lifetime — it is a gift that just keeps on giving.
Election 2020: When Copyrights & Voting Systems Collide
As if 2020 could not be more of a “hitshow” with COVID-19, who would have thought that this election season would still be happening. Regardless of which side of the political spectrum you may rest, it is indisputable that this year’s presidential election has been anything but normal.
Closing Thoughts On Section 230: The Good, The Bad & The Unapologetically Ugly
Unless you have been hiding under a rock lately, you are aware that the CEOs of Twitter, Facebook, and Google were grilled on Capitol Hill last week about their “fact checking” of content and ostensible fight against disinformation on their platforms. At best, it was an opportunity for the American public to hear about these actions taken by these platforms straight from the horse’s mouth, so to speak.
A Lack Of (Good) Faith III: Rethinking Section 230 For The 21st Century
Who would have thought that the current election season would have vaulted Section 230 of the Communications Decency Act into the forefront of the electoral conversation? Then again, social media platforms like Twitter and Facebook have brought intense scrutiny on themselves.
A Cry For ‘Yelp’: When Social Justice, Good Intentions, And Legal Liability Collide
“The heresy of heresies was common sense.” — George Orwell, 1984 Just when you think you have seen everything, something else pops up that surprises you. Admit it — many of us have found ourselves in this place and being amused at the discovery. That said, rarely is this occurrence something so confounding, so jaw-droppingly unbelievable that it literally stops you in your tracks.
A Lack Of (Good) Faith II: 3 Reasons Why We All Need To Rethink Section 230 Immunity
Think about this scenario: A mother of college-age kids decides to pursue her passion as an interior designer and love of the European modernist aesthetic, and simply starts posting her ideas own Instagram and Twitter. As her following grows, she begins to promote videos of her design tips on her own YouTube channel. As a result of her efforts, she develops a substantial YouTube subscriber base (millions of subscribers) and a similar following on Twitter (not to mention Facebook and Instagram).
A Lack Of (Good) Faith: Why Social Media Needs To Respect Section 230 Immunity
Sometimes you really need to be careful with what you have — especially if you are a social media platform. In today’s current political climate, this point is a compelling understatement.
The US-EU Privacy Shield Is Dead … Now What?
This issue is a big deal, but one that comes as little surprise to those following subject. As you may have already heard, the Court of Justice of the European Union (ECJ) recently ruled that the current data transfer agreement between the European Union and the United States known as the “Privacy Shield” did not provide adequate protections for the data of EU citizens when such data is transferred to the United States.
Size Matters? When Copyrights, Social Media, And Art Collide
Copyright law and social media enjoy an interesting dance together. Social media platforms permit the posting of user “content” for other users — subscribers if not the entire online world — to see. Some platforms are even wholly focused on the sharing of images (Pinterest) or audiovisual works (YouTube). Sometimes the content reflects the user’s own authorship; other times it may involve the sharing of another creator’s works (and not always legally).
When Generic Isn’t Generic: Why The Booking.com SCOTUS Ruling Is Not That Big A Deal
Sometimes things are just not what they seem on their face. This maxim seems to hold true in the context of trademark law, especially in light of a recent Supreme Court of the United States ruling involving generic trademarks. In United States Patent and Trademark Office v. Booking.com, the nation’s highest court held that “[a] term styled ‘generic.com’ is a generic name for a class of goods or services only if the term has that meaning to consumers.” What does this mean?
Peekaboo, I See You II: Why Facial Recognition Technology Needs Humans As Much As AI
Over the past few years, facial recognition technology has progressed significantly — so much so that it is becoming more and more prevalent in our everyday lives. As I have previously written on this topic, however, this progress has not come without significant concerns over personal privacy and other rights — having your photo as part of a database for servicing of tailored advertising to you is one thing, but being part of a surveillance platform is quite another.
What’s In A Name? Trademarks, Surnames, And The Search For Secondary Meaning
Just when you think you have seen it all, there is always something new to surprise you. In over 25 years of legal practice, that maxim holds true today more than ever. Sadly, it proved itself once again when I learned that someone has filed a federal trademark application for the name “George Floyd.” The applicant is not one of Floyd’s relatives or his estate, but a third party that, as far as I can tell, seems to have no affiliation with Floyd.
3 Things Political Candidates Should Consider When Using Audiovisual Works In Campaigns
(Photo by Mark Wilson/Getty Images) Who would have thought that with the nation slowly rising out of (hopefully) the worst of the COVID-19 pandemic, we would become embroiled in civil unrest resulting from the horrific mistreatment and death of George Floyd at the hands of now-former police officers of the Minneapolis Police Department. Like most Americans with a conscience, I remain stunned and horrified by it.
Idle Chatter: 3 Big Misconceptions About Section 230 Of The Communications Decency Act
First Amendment expression is a significant pillar of our constitutional freedoms in the United States, and when it comes to free expression online, the protections for vigorous debate over the internet should be no exception. Now, more than ever, online platforms such as Facebook and Twitter are providing incredible means through which to share not only ideas but news and events.
Rethinking Linking II: Some New Thoughts On Embedded Copyrighted Images & Social Media
When it comes to photographs on the internet, there is definitely more here than meets the eyes. A little over two years ago, there was a big brouhaha over a New York federal district court summary judgment ruling that held embedding a tweet on a web page constitutes copyright infringement. In fact, I wrote about this ruling previously, making the point that there was a lot of exaggeration and hyperbole out there regarding this summary judgment decision, and not to fret about it.
3 Considerations To Help Prevent Your IP From Becoming A Casualty In The COVID-19 Pandemic
I think we can all agree that COVID-19 is one of the most significant health events of our lifetime. Many of you are likely sheltering in place, working remotely, and trying to make the best of a very difficult situation. Thankfully, technology is helping make this difficult situation a bit more palatable when it comes to online legal practice, including the use of mobile devices, videoconferencing, and remote access apps and platforms.
The Unforeseen COVID-19 Casualty
We are living in strange times. I don’t think anyone could have predicted the COVID-19 pandemic, let alone its transmissibility and the seriousness of the illness. Being sheltered-in-place and working remotely is one thing — doing so because everyone’s life may depend on it is another. This got me to thinking about how the medical, scientific, and technological experts are battling this disease, and the vast resources of data they are using to do so.
States’ Rights Revenge? 3 Key Takeaways From SCOTUS Ruling In Allen v. Cooper
The U.S. Supreme Court (by Joe Ravi via Wikimedia – CC-BY-SA 3.0) Pirates have been known to pillage and plunder others’ treasures, but these are not actions normally attributed to states of the United States. On its face, pirates and states don’t seems to have anything in common, but given a recent ruling by the Supreme Court of the United States, one may be inclined to think otherwise. In Allen v.
Don’t Bet On It: Tarts, Trademark Infringement, And Trademark Use
(Photo by Michael Reaves/Getty Images) They call it the “sport of kings,” and few things embody this reference to horse racing in America more than the Kentucky Derby. Held annually at Churchill Downs in Louisville, Kentucky, on the first Saturday in May, the “Run for the Roses” (named for the blanket of roses draped on the winning horse) has been held there since 1875. The event is not only the first race of what’s known as the “Triple Crown” but also a grand spectacle with many traditions.
Faking It (Again): There’s More Than Meets The Eye With Deepfake Audio
Who would have thought the old maxim that “if it walks like a duck and quacks like a duck” would no longer hold true? The meteoric rise of computing power and the internet have given rise to capabilities we at one time thought impractical if not impossible (streaming video on demand, anyone?). Unfortunately, such powerful capabilities can also be used for more nefarious purposes. Enter the rise of “deepfakes” (a combination of the phrase “deep learning” and the word “fake”).
Don’t Get Rickrolled: Words Of Copyright Caution For Video Game Developers
Sometimes even doing everything right gets something wrong. When it comes to video game development, this statement is right on point. It should come as no surprise to those in the video game development and publishing community that a host of considerations must be weighed when developing a video game.
3 Big Pitfalls To Avoid Regarding The California Consumer Privacy Act Compliance
When it comes to the internet, the online collection, use, and disclosure of personal data has become the rule, rather than the exception. Personal data is being collected and used by online providers in a myriad of ways, and for companies in the United States, such practices have been subject to only limited disclosures of their data collection and usage practices. Times, however, are changing.
Peekaboo, I See You: An Argument For Legislation Concerning AI & Facial Recognition Technology
Let’s face it: people are sensitive when it comes to facial recognition technology. Having your photo as part of a database for servicing of tailored advertising to you is one thing, but being a part of a surveillance platform is another. Having large amounts of photos in a database is nothing new, but the advent of artificial intelligence (AI) has created new ways to analyze and use such images and related data.
Hey, You, Get Off Of My Cloud: Cybersecurity Considerations For Managed Service Providers
It should come as no surprise that cloud computing has taken the consumer and business world by storm over the past decade. From Platform-as-a-Service offerings for businesses (Office 365 anyone?) to the availability of Software-as-a-Service to the consumer (such as Dropbox and Evernote, to name a few), the leveraging of these capabilities on the internet is transforming the way we use the internet.
Happy New Year: 3 Hot Topics For Technology And The Law In 2020 (& Beyond)
Happy New Year! Believe it or not, we have entered a new decade — if the past is any bellwether of the present (or future), that means that technology advances will continue to accelerate. Think about it — just in the past decade, we have witnessed a vast expansion in mobile computing platforms, vast improvements in computer memory (i.e., smaller physical footprints and lower costs), as well as rapidly increasing communication speeds.
‘Tis The Season To Be Wary II: 3 Considerations For Trademark Policing Before The New Year
It’s that holiday time of year again! For those celebrating the holiday season (which I hope is most of you), it’s not just a time for gathering family and friends to celebrate the season – it’s also a time to exchange gifts as well. Unfortunately, the season brings with it a fair amount concern over counterfeit products.
Unfair Use, Revisited (Again): Google, Oracle, And The ‘Copyright Case Of The Decade’
Sometimes making the right call doesn’t mean getting the right result. This is how the grant of certiorari by the Supreme Court of the United States (SCOTUS) in Google v. Oracle feels to me right now. As I have written before here, the dispute between Google and Oracle regarding the copyrightability of application programming interfaces (APIs) is a big deal for business. Let’s face it — virtually every business today uses some form of software in providing its goods and services to its customers.
Dot Com Dilemma? gTLD Extensions And Testing The Boundaries Of Genericness
When it comes to trademarks, descriptiveness is not good thing. It makes sense — when a term or phrase describes some ingredient, quality, or characteristic of the goods or services in question, it does not lend itself to being a source identifier.
Why IoT & Big Data Is A Bigger Deal For Privacy Than You Think
Like it or not, the internet is gaining access to every aspect of our lives. You may have a smart thermostat in your house that “learns” when you are home so that the temperature in your home can be adjusted when you are away. Your home may also have a smart doorbell (and networked home security cameras) that will track not only visitors, but can track your comings and goings as well.
Some Big Reasons Why The CCPA Is More Of A Problem Than You Think
By now, you have probably heard about the California Consumer Privacy Act, or “CCPA.” Whether you agree with it or not, you need to pay close attention. Taking a page from Europe’s General Data Protection Regulation (GDPR), the CCPA appears to be California’s answer to protecting consumer data. Effective January 1, 2020, the CCPA will impact how businesses collecting personal information from California consumers can collect, store, and handle such personal information from them.
Take It To the Bank(sy): Why Works Of Art As Trademarks Are Not As Simple As You Think
(Photo by Chris J Ratcliffe/Getty Images) I admit a certain admiration for the anonymous England-based street artist known as “Banksy” — the unique style of street art combined with the artist’s political activism spiked with a healthy dose of dark satire is something to behold. Usually fixing his/her works on publicly visible surfaces and walls as well as physical prop pieces made by the artist, Banksy has become renowned the world over.
Cybersecurity, The C-Suite, & The Boardroom: The Rising Specter Of Director & Officer Liability
Let’s face it — data security is significant problem for corporate America. If you don’t think so, here’s a statistic that may help convince you: in Q1 2019 alone, there were 1.9 billion records exposed. In fact, a business falls victim to a ransomware attack every 14 seconds. That’s right — every 14 seconds. In fact, the global cost of online crime is expected to reach $6 trillion by 2021. Sadly, there are lot more statistics where those come from, and they are not encouraging.
Blowing Smoke? Some IP Considerations For The Cannabis Industry
For a product that remains illegal federally, the cannabis industry in the United States remains a rapidly budding industry. Forgive the pun, but the reference is justified — this emerging industry took in nearly $9 billion in sales in 2017, despite recreational marijuana use being legal in only 11 states and the District of Columbia (although medical marijuana use is legal in 34 states).
A Different Landscape: The Intersection Of Artwork, Architecture, And Copyright
The Mercedes-Benz company had a commercial in the early 1990s that stated “some things are too important not to share.” Fast forward to 2019, and it seems that all these years later Mercedes-Benz still feels that way, at least when it comes to pictures of their vehicles that incorporate buildings with artwork on them in the background.
Nailing The Competition? Trademark Infringement, Keyword Advertising, And A New Take On An Old Problem
The internet has transformed everything from information access and communication (email, social media, etc.) to shopping, but in the process, it has also pushed the boundaries of trademark law as well. One of the ways this has occurred involves what is known as keyword advertising — a form of online advertising whereby the advertiser pays to have an advertisement appear in a search results listing when specific words or phrases are used in the search.
Leaving A Mark III: Final Thoughts On Trademark Licenses In Bankruptcy Under Mission Products Holdings v. Tempnology, LLC
They say that the third time is the charm — I don’t know how applicable that phrase may be in most circumstances, but in this case, it may be right on point. I previously wrote on the Supreme Court of the United States (SCOTUS) opinion in Mission Products Holdings v. Tempnology here and here.
Icing On The Cake: 3 Considerations For Protecting Recipes In Your Business
Vacations have a way of placing things in perspective, perhaps in unexpected ways. As summer draws to a close, many (including myself) return from vacation harboring great memories of family and fun. Sometimes that fun involves not just great locales, but great food and drink. Being an intellectual property attorney, I couldn’t help but think about the great recipes and drinks I enjoyed and how they are (or aren’t) protectable.
Privacy, Big Data, And The Argument For U.S. Federal Privacy Legislation
Most of us have heard the phrase “someone watching over you,” and some take solace in it and view it as a good thing. Unfortunately, it seems that may not be the case when it comes to your privacy. The fact is that there are more and more “eyes” on you and your personal data everyday.
Form Over Function: The Interplay Of Design Patents & Trade Dress In Your IP Strategy
When it comes to developing an intellectual property strategy, it can be easy to miss the forest for the trees. The main pillars of intellectual property (patent, copyrights, trademarks, and trade dress) are usually the focus (and rightly so), but how the various types of intellectual property work together can sometimes be lost in the process. This is especially true when it comes to design patents and trade dress protection.
Faking It: Why Deepfakes Pose Specific Challenges Under Copyright & Privacy Laws
You’ve probably seen them by now, and if you haven’t, you will probably ask yourself the same question everyone else does, which is: how do they do it? For the uninitiated, I am talking about “deepfakes” (an interesting combination of the phrase “deep learning” and the word “fake”).
Letting Them Know What You Don’t Know? 3 Tips for Notification Compliance Under The GDPR
It really is possible to have too much of a good thing, at least as far as General Data Protection Regulation (GDPR) notifications are concerned. According to a report issued by Pinsent Masons using data from the United Kingdom’s Information Commissioner’s Office (ICO) and other EU data protection authorities, data breach notifications substantially increased since the effective date of the GDPR in May 2018. How much?
‘Foul’ Ball II: Why The SCOTUS Decision On ‘Scandalous’ And ‘Immoral’ Trademarks Is Not What You Think
(Photo by Charley Gallay/Getty Images for RVCA) For those who have been following the fight for registrability of scandalous and immoral trademarks, you may have heard that the Supreme Court of the United States (SCOTUS) recently issued its decision in Iancu v.
The Biggest Reasons Why The GDPR Requires A ‘TEAM’ Approach
It has been a little over a year since the GDPR became effective, and what a wild ride it has been (to say the least). A comprehensive update to the European Union’s Data Protection Directive 95/46/EC, the GDPR substantially increases the rights provided to individual “data subjects” in the EU regarding their “personal data.” That said, it has also substantially increased the responsibilities placed upon companies (as “data controllers” and/or “data processors”) regarding such personal data.
Leaving A Mark II: Why Trademark Licensees Need To Beware The Holding In Mission Products Holdings v. Tempnology, LLC
It feels good when you go on the record that the Supreme Court of the United States will probably rule a certain way, but being right has its consequences. I previously wrote about Mission Products Holdings v. Tempnology, LLC (the ”Mission Products case”) here, and what it may mean for trademark licensees. In the Mission Products Holdings case, the issue was whether trademark licensees retain rights to such trademarks after rejection of the license by the licensor in bankruptcy.
Unfair Use, Revisited: Why SCOTUS Should Review Copyrightability And Fair Use Of APIs In Google v. Oracle
Whether you like it or not, software is an essential part of the operation of every business. From custom-developed mobile applications to software-as-a-service solutions, computer software is no longer a supporting element but an indispensable part of every business. Nowhere is this point more prevalent than with mobile devices, their operating systems, and corresponding applications.
What Do You Meme? Copyright, ‘Pepe The Frog,’ And Fair Use
Expressing yourself on the internet can take many forms, but none are arguably more prevalent than the internet “meme.” Take the recent passing of “Grumpy the Cat,” a furry feline with a furrowed brow and piercing glare that can best be described as the face that launched a thousand memes — this cat’s permafrown became a virtual banner of voicing displeasure online.
Avoiding The ‘Data Liability Trap’: Protecting Against Third-Party Data Security Risks
This may be difficult for most people to accept, but your data is everywhere. The more websites you shop online, the more you are providing personal data in the process. The more you search online, the more that the internet service provider you are using (as well as the search engine) gets to know about your interests and internet-surfing habits. Whether you like it or not, this loss of privacy in exchange for the convenience of a connected world is a fact of everyday online life.
The One Question Every Startup Must Ask When Seeking IP Protection
We have all heard that hindsight is 20/20, but when it comes to intellectual property, one can argue that hindsight is more like 20/15. Hindsight is a luxury one can ill afford when it comes to intellectual protection — getting something wrong at the outset can have direct (if not devastating) consequences to not only what is protected, but whether it may be protected at all. Strangely, many entrepreneurs fail to appreciate this point.
Strange Things Happening? How Implied-In-Fact Contracts May Succeed Where Copyright Infringement Claims Can’t Do So
Having grown up through high school and college in the 1980s, it should come as no surprise that I am a fan of the Netflix series Stranger Things. Part 80s retro-nostalgia, part science fiction-thriller mixed with a healthy dose of paranormal mystery, the series revolves around a group of adolescents living in the fictional town of Hawkins, Indiana.
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