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Posts Tagged: "safe harbor"

Stopping Cyber-Fakes: A Guide to the SHOP SAFE Act 2020

Online shopping has become a huge part of our everyday lives. In fact, 15% of all 2020 retail sales are projected to take place online. Unfortunately, despite their convenience, e-commerce retail platforms also provide fertile ground for counterfeiters because shoppers cannot physically examine the products being sold and shoppers often cannot identify the ultimate seller.  Worse yet, online counterfeiting is not limited to fake fashion and luxury goods, but more often involves poor quality or tainted products that endanger the health and safety of the purchaser. Reported incidents of dangerous online counterfeit purchases have included children’s car seats that disintegrate in crashes, engine oils that contain dirt and water, cold medications that are simply sugar pills, and cell phone adapters that can shock or electrocute consumers. Counterfeiting is no longer a sort of comic fakery that only dupes designer bargain hunters. Rather, it has become a real problem for everyday consumers.

USMCA Set To Export U.S. Copyright Law to North American Neighbors

The United States-Mexico-Canada Agreement (USMCA) was passed by the U.S. Senate on January 16, 2020 and will be signed by President Trump today. The treaty, which renegotiates and cancels the 1994 North American Free Trade Agreement (NAFTA), is expected to dramatically affect many areas of law of its three member states. With respect to copyright law, the USMCA largely exports copyright standards from the United States. Once it is implemented, content creators and owners, Internet Service Providers (ISPs) and copyright professionals can expect the laws of Mexico and Canada to more closely resemble those of the United States with respect to liability and safe harbors for ISPs, the term of the life of a copyright, rights for sound recordings used in interactive streaming and anti-circumvention measures.

National Courts Can Order Worldwide Takedown, Says CJEU in Case Against Facebook

The Court of Justice of the European Union (CJEU) has ruled that host providers, such as Facebook, can be required to take down illegal content, including identical or equivalent variations, worldwide once they are made aware of it. The Court was ruling on the interpretation of the E-Commerce Directive (Directive 2000/31/EC) in a defamation case brought by an Austrian politician. (Eva Glawischnig-Piesczek v. Facebook Ireland Limited, Case C-18/18 [ECLI:EU:C:2019:821].) The politician, Eva Glawischnig-Piesczek of the Green party, asked Facebook Ireland (which operates Facebook outside of the U.S. and Canada) to delete a news clipping and associated comment, which she claimed insulted and defamed her. Following court proceedings in Austria, Facebook Ireland disabled access in Austria to the specific content published. However, the case raised the following questions: could Facebook Ireland additionally be ordered to remove posts with identical or equivalent content to that already found to be illegal, and should it disable access to the illegal content worldwide?

Closing a Loophole to Prevent Online Sex Trafficking

The U.S. Senate is slated to vote on the Stop Enabling Sex Traffickers Act (SESTA), legislation that would help prevent online sex trafficking by holding accountable the websites that knowingly facilitate such trafficking. After overwhelmingly passing the House in late February, and with 67 co-sponsors already on the Senate version, the legislation is almost certain to head to President Trump’s desk. Despite significant support from Congress, the White House, and stakeholders including the Fraternal Order of Police, U.S. Institute Against Human Trafficking, UNICEF USA, and Teens Against Trafficking, SESTA has received considerable pushback from portions of the tech community who are concerned with the changes the legislation would make to Section 230 of the Communications Decency Act (CDA)

Innovators and Content Creators Urge USTR Lighthizer to Fight for Strong IP in NAFTA Negotiations

ACTION for Trade asks Lighthizer to consider advocating for strong IP protections and robust enforcement to benefit a diverse group of industries, including digital content producers and distributors, biopharmaceutical firms and software developers… Along with strong patent policy, ACTION for Trade calls for the establishment of regulatory data protection (RDP) provisions which are consistent with U.S. law, especially where medical innovations are concerned. The letter to USTR Lighthizer notes that U.S. law recognizes a 12-year period of RDP for biologic treatments and a 5-year period of RDP for small molecule treatments. Such provisions would allow the original innovators of novel medicines to submit data on the safety and efficacy of medicines while shielding that data from others who might produce generics based on the data.

No DMCA safe harbor for Cox’s 13-strike policy for terminating repeat infringers

On February 1, 2018, the U.S. Court of Appeals for the Fourth Circuit issued a decision in the case, BMG Rights Management LLC v. Cox Communications, Inc. The Fourth Circuit affirmed in part the district court’s granting of summary judgment to BMG on the § 512(a) Digital Millennium Copyright Act (DMCA) safe harbor defense. Ultimately, the Fourth Circuit agreed with the district court’s decision that Cox was not entitled to the safe harbor defense, finding that Cox’s 13-strike policy for repeat infringers was effectively no policy at all, and far less than the termination policy required in order to maintain safe harbor protections.

DMCA 2017: 9th Cir. decides safe harbor, anti-circumvention cases

In 2017, there were several noteworthy decisions relating to the Digital Millennium Copyright Act (DMCA). Specifically, the Ninth Circuit addressed two separate cases, one dealing with safe harbor provisions, the other on anti-circumvention. This article discusses three separate decisions including Mavrix Photographs LLC v. LiveJournal Inc., 873 F.3d 1045 (9th Cir. 2017)(on DMCA safe harbor), and Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017)(anti-circumvention provisions).

5 ways companies can stay in compliance with DMCA

Understanding the Digital Millennium Copyright Act (DMCA) has become increasingly important for companies that want to protect their digital content. The DMCA was created primarily as a solution for service providers such as YouTube that host content uploaded by third parties rather than create their own original content. Service providers benefit from the DMCA because it protects them from liability in the event content uploaded to their site infringes another’s copyrights. While the DMCA addresses a number of copyright issues, the “safe harbor” provision remains one of its most important aspects.

The Impacts of the Pending Rule 11 Amendments on the Patent System

The effects of proposed Rule 11 on the patent system will be like putting an additional bullet to a dying man. As far as patent litigation is concerned, the pending rule is intended to deliver what was missed in the AIA: shifting fees from infringers to patent owners.

Proposed Amendments to Rule 11 Will Adversely Impact Patent Owners

Congressman Lamar Smith (R-TX), has sponsored a bill to amend Rule 11 — H.R. 720. The changes are made to remove the safe harbor provision and make sanctions mandatory. This bill has passed the House. A companion bill — S. 237 — has been introduced in the Senate with no action yet being taken… The proposed changes to Rule 11, if enacted, will have an impact of keeping unrepresented parties out of courts, and make the U.S. courts even more inefficient. It will have an adverse impact on patent owners in patent cases… Given the nature of patent litigation, experience teaches that it is inevitable that whenever a case is disposed of the winner will almost certainly try to shift litigation fees by any means possible, including by invoking Rule 11 sanctions. The parties with strong financial powers will have better chances to get sanction awards.

Capitol Records v. Vimeo: Courts Should Stop Coddling Bad Actors in Copyright Cases

Just how much knowledge about piracy on its system does an online service provider need before it loses its safe harbor protection, which severely limits its potential liability for copyright infringement, under the Digital Millennium Copyright Act (DMCA)? In Capitol Records v. Vimeo, the Second Circuit sets the bar very high, further blurring one of most important lines in copyright law—the line between actual and red flag knowledge—and protecting a not-so-innocent service provider in the process. Worse still, the Second Circuit leaves copyright owners with little chance of a remedy in the face of rampant piracy, even against a service provider that welcomes the infringement.

From Safe Harbor to Privacy Shield: Making order from chaos on data protection

To replace the now-defunct Safe Harbor agreement, last week the European Commission published the first details of its transatlantic Privacy Shield. The Privacy Shield is meant to strengthen obligations on US companies to protect European personal data, and improve regulations regarding data monitoring by US government agencies. With the release of the draft Privacy Shield, many are skeptical that it will ensure proper privacy protection and some believe that it may be challenged after implementation.

U.S., EU work towards safe harbor replacement that balances privacy, surveillance concerns

Safe harbor in the world of international digital data transfer has been a major topic of discussion in the tech world in recent weeks. Since 1998, data transferred from European citizens to American shores by U.S. tech companies have been regulated by the U.S.- EU safe harbor agreement. Under these rules, American companies have been able to make international data transfers if they can self-certify that they can keep the personal data of European citizens secure to the privacy standards of the European Union, which operates a much different data security regime than is implemented in the United States. These rules have come under the crosshairs of a recent ruling by the European Court of Justice, the EU’s highest court, which has invalidated the safe harbor agreement in light of revelations made by Edward Snowden on the data surveillance tactics of America’s National Security Agency (NSA).

CJEU declares Commission’s US Safe Harbor Decision Invalid

The decision creates significant uncertainty for organizations who rely on Safe Harbor either for their own, internal data transfers, or because they use a service provider which, in turn, relies on Safe Harbor to provide adequacy for its transfers to the US. Alternative methods of addressing data transfers will be needed – such as implementing EU Commission approved data transfer agreements, or obtaining individual consent. Although the decision has invalidated Safe Harbor – with immediate effect – organizations will need to look to the reactions of national data protection authorities to determine how urgently to implement alternative data transfer solutions.

Momenta Pharmaceuticals: The Hatch-Waxman “Safe Harbor” Widens to Include Post-FDA Approval Activity*

While the Supreme Court may have expanded the reach of the Hatch-Waxman “safe harbor,” the Medtronic and Merck cases only involved pre-marketing FDA approval activity. But the recent split Federal Circuit panel decision in Momenta Pharmaceuticals, Inc. v. Amphastar Pharmaceuticals, Inc. has now (alarmingly in my view) further widened the applicability of this “safe harbor” beyond such pre-marketing FDA approval activity. In Momenta Pharmaceuticals, Judge Moore (writing for the majority joined by Judge Dyk) ruled that this “safe harbor” could also apply to post-FDA approval activity, even if that activity was at least arguably commercial in nature.