4th Circuit: No Warrant Needed to Track Cellphone Location

4th Circuit: No Warrant Needed to Track Cellphone Location

A three-judge panel in the 4th Circuit Court had previously ruled that police officers needed a warrant to track location services and access information on a subject’s cellphone. The court was split on this decision, but the three-judge panel prevailed in limiting law enforcement authority. On May 30, the en banc 4th Circuit Court reversed its own decision and said no warrant is required for law enforcement officials to track location information for a subject’s cellphone. The court said all that would be required would be showing the court that the cell phone is relevant to the subject’s case. As long as the cell phone is relevant, law enforcement authorities will be able to get information about the cell towers through which the calls were made and received.

The US Supreme Court mandated precedent saying that information voluntarily provided to third parties, such as cell phone service providers, lacks requisite confidentiality. Therefore, no warrant is needed to access this information. Cellphone location information can be seen as similar to hotel bills and credit card statements, which are also not considered confidential. The Supreme Court did mention that this “third-party doctrine” may be modified or eliminated in the future. Congress has the power to require a warrant for cell-site location, but the controlling law does not require a warrant for cellphone location. It has been argued that allowing authorities to gain access to a subject’s cellphone does not violate the Fourth Amendment.

Many attorneys and legal scholars are concerned that this decision by the 4th Circuit gives law enforcement authorities unlimited power to gain access to every American cellphone user without a warrant. Cellphones for many Americans contain intimate information and they may not want the government to see everything they see on their personal devices. Attorney Meghan Skelton intends to appeal the 4th Circuit decision to the Supreme Court. As an attorney for the defendants in the Baltimore case the 4th Circuit ruled on, Skelton believes her appeal to the highest court in the nation will better protect Americans. Although Skelton is optimistic, it is unlikely the Supreme Court will even hear the case. All of the circuit courts in the nation now agree that cell tower information is not private and it is very unlikely the Supreme Court will disagree with them.

We have previously blogged about a Supreme Court decision where they found that GPS tracking does count as a search and therefore must require a warrant. In that case, a unanimous decision said that if the government attaches anything to your body or your property, it counts as a search. Once again, the Fourth Amendment and advances in technology seem to be contradicting. However, tracking the location of your cellphone is different from attaching something to your body to track you. Perhaps this was the reason the 4th Circuit Court reversed their previous decision and now allows law enforcement officials to get cell tower information without a warrant. While unlikely to succeed, it would be interesting to how an appeal to the Supreme Court would play out.

hqdefault

Source referenced: ABA Journal

Why Your Office Needs Stand-up Desks

Why Your Office Needs Stand-up Desks

Stand-up desks are a glimpse into the future of office spaces. Many of us have heard about the benefits of using a balance ball instead of a regular chair when sitting at the desk. However, a new study out of Texas A&M shows that there is no need for any type of chair. The study found that employees were 46% more productive at their call center job while at a stand-up desk. The study lasted for six months and focused on 167 workers. Texas A&M measured the productivity of the workers by looking at the number of calls each worker completed per hour. The office workers were split into two groups. 74 workers used stand capable work stations, while 93 worked at their desk with a chair. At the end of the day, those at the stand-up desks spent 1.6 extra hours standing. Looking simply at this information, it may seem like standing up led workers to be more productive. However, researchers believe there may be another reason for the increased productivity.

Over the six month study, those using stand-up desks said they experienced less discomfort. This would be saying that sitting at a desk is more uncomfortable than standing up. Since these workers experienced less discomfort, they were feeling a lot better and feeling good leads to better customer service over the phone. In this age of technology where many of us are constantly glued to our phones, anything that forces us to stand and be physical is good for our bodies and makes us happier workers.

While this study was conducted at a call center and may not apply to all work environments, it never hurts to try out or modify something to see if it works for you. Mark Benden, director of Texas A&M’s Ergonomics Center, said he would be thrilled to even get 23% more productivity out of his workers. He and many other believes a small investment in changing the workplace layout and furniture may pay off very well in the future.

We hope this post has been informative and has hopefully inspired business owners to make some changes around the office. Not only have stand-up desks proven to increase employee’s productivity, they also decrease discomfort for the employee. Sitting on a chair all day can definitely be tiring. Perhaps changing around the furniture in your office can help your business run more efficiently in the future.

02-standing-desks-ergo-depot-jarvis-630

Source referenced: ABA Journal

Is Cloud Computing Ethical?

Is Cloud Computing Ethical?

In this age of increased technology, attorneys are turning to “virtual law offices” (VLO) and cloud technologies to maintain office files and information. There have been concerns raised about whether maintaining files online still complies with an attorney’s ethical obligations. Cloud computing is accepted by the Business and Professions Code and the Rules of Professional Conduct, but attorneys may be required to take additional steps to confirm that he or she is fulfilling ethical obligations with the cloud. There are no new or greater duties imposed on VLO, but attorneys are asked to be more cautious when taking this approach.

In a VLO, attorneys are able to communicate with clients through a secure internet portal. The attorney’s website can store information regarding the client’s case. The information on the client matters are password protected and encrypted. The State Bar of California understands the flexibility and convenience of legal services provided through VLO. However, this does not mean a client’s confidentiality could be sacrificed. Every lawyer, they believe, has a duty to “maintain inviolate the confidence, and at every peril to himself or herself, preserve the secrets of his or her client.”

Whether or not an attorney violates his or her duties to confidentiality when using technology will depend on the particular technology being used. Before using an technology in the course of representing a client, an attorney must evaluate:

  1. The level of security attendant to the use of that technology, including considerations of whether reasonable precautions may be taken using it.
  2. The legal ramifications to a third party who intercepts or accesses the electronic information.
  3. The degree of sensitivity of the information.
  4. The possible impact on the client of an inadvertent disclosure of confidential information.
  5. The urgency of the situation.
  6. The client’s instructions and circumstances.

We hope both our clients and other attorneys found this post useful in understanding the changing nature of the legal field. While the State Bar does not impose additional rules or restrictions on VOL, attorneys are asked to be more cautious when using a cloud. The information provided above comes from specific ethical guidelines from California’s State Bar. Opinions by other Bar Associations may vary.

Sources referenced:

  1. State Bar of CA Formal Opinion 2010-179
  2. CA State Bar Formal Opinion 2012-184
Spirit v. Led Zeppelin: “Stairway To Heaven” Infringement Lawsuit

Spirit v. Led Zeppelin: “Stairway To Heaven” Infringement Lawsuit

There were many issues surrounding the Spirit lawsuit against Led Zeppelin and we will try to break down those issues in this post. Spirit claimed that Led Zeppelin infringed on its copyright with the iconic guitar arpeggio opening of “Stairway to Heaven.” Spirit believes their instrumental track “Taurus” is very similar to Led Zeppelin’s track. In order to better understand the case, let us first take a look at the issues that may come forth at trail.

Statute of Limitations

Led Zeppelin released their song about 43 years ago. The US Copyright Act says action must be “commenced within three years after the claim accrued.” This means Spirit would not be able to recover for any alleged infringement during the first 40 years of the song’s release. Recovery of new formats or new releases of the song would also be limited. Since the song has historically performed well, Spirit may still be able to recover a large amount of money. However, Spirit is concerned with more than just money. The band is also seeking an injunction to prohibit a new Led Zeppelin’s album by Jimmy Page.

Copyright Infringement

Many listeners are conflicted on whether Led Zeppelin copied Spirit’s song or whether the two bands just used the same instruments. To determine whether or not actual infringement took place, it is necessary to look at the court’s two-prong test:

  1. Copying of a prior work; and
  2. A substantial similarity to the prior work sufficient to constitute improper appropriation.

(1) Copying

This first element can be proven by either direct or circumstantial evidence. The more access a party had to prior work, the easier it becomes to prove similarity. In this case, proving access will not be a problem because Led Zeppelin and Spirit performed together the day after Christmas 1968 and many times in 1969. Spirit played “Taurus” at many of these concerts and music festivals. Since there is evidence of both access and similarity in this case, it must now be determined whether the second element is met.

(2) Substantial Similarity

In addition to proof of copying, there must also be a substantial similarity to the work. Substantial is defined as “qualitatively or quantitatively” and similarity means “similar in the ears of the ordinary member of the intended audience.” If the case reaches the trial court, both parties will present expert witnesses to show the similarities and dissimilarities between the two songs. Ordinary members of the listening audience may also be called upon to give their opinion.

Possible Affirmative Defenses by Led Zeppelin

  • The chord progression in “Taurus” is not original.
  • The chord progression in “Taurus” is not protectable under copyright law.
  • “Stairway to Heaven” was independently developed by Led Zeppelin without referenced to “Taurus.” Any borrowing from Spirit’s song would be seem as so minor that is it disregarded by the law. This would be “de minimis use.”
  • Since only short portions of “Taurus” were used by Led Zeppelin, the recording could be covered under the “fair use” limitations. However, this may not be the best defenses since copyright owners are entitled to as sales and licenses of their work.

Likely Outcome

If the court and ordinary members of the listening audience see enough similarities in the work to fulfill the two elements of copyright infringement, Led Zeppelin will be held strictly liable. It does not matter whether or not the copying with intentional or accomplished subconsciously.

It is very unlikely this dispute will makes its way deep into the legal system. Led Zeppelin has resolved prior claims of copyright infringement brought by third parties outside of court. In the case, Led Zeppelin is most likely to conclude the dispute with a confidential settlement agreement. The agreement may involve payments to Spirit and writing credit for the song “Stairway to Heaven.” However, Jimmy Page testified on behalf of his band on June 16, 2016. The trial is heating up and may not turn out as previous copyright infringement lawsuits have worked out for Led Zeppelin the past.

Source referenced: Forbes

California’s Commisioned Employee Exemption

California’s Commisioned Employee Exemption

In a 2014 ruling, the California Supreme Court said that employees must be paid premium wages for any overtime worked in pay periods not qualifying for the exemption. This decision significantly impacts employers with commissioned salespeople. After this ruling, employers must be sure their employees receive 1.5 times minimum wage in every bi-monthly paycheck. To better understand the implication of this ruling, let us first take a look at the case that forced the California Supreme Court to split from federal law on commissioned employee exemption compliance.

Peabody v. Time Warner Cable, Inc.

Susan Peabody worked for Time Warner Cable as a commissioned salesperson. She received approximately $9.61 per hour for her 40 hours per week. In addition to her wages, Peabody received her commission wages every other pay period. Time Warner did not pay Peabody overtime as a commissioned employee. If Time Warner did not exclude Peabody from overtime pay, she would have earned at least 1.5 time minimum wage and half of their compensation in commissions.

When Peabody filed a class action suit against Time Warner for not paying her 1.5 times minimum wage in all pay periods, Time Warner responded by saying Peabody’s “periodic commission payments brought her monthly earnings above that threshold.” While the US District Court and 9th Circuit Court of Appeals agreed with Time Warner and granted their summary judgment motion, they asked the CA Supreme Court to review the case.

Very unexpectedly, the CA Supreme Court reversed the federal court’s decision and ruled in favor of Peabody. The Supreme Court found that commissioned employee exemptions depend on each pay period, not monthly wages as Time Warner has calculated. They said each employee must be paid bi-monthly and each bi-monthly pay period must include compensation equal to no less than 1.5 times minimum wage. Federal law allows commissioned employees to be paid monthly and qualify for the exemption based upon monthly compensation, but the California Supreme Court deviated from this.

In light of this ruling, we recommend all employers take a careful look at their commission programs and consider whether their program is in need of modification. Employees must be paid on a bi-monthly basis and the commission pay must be adequately spread to ensure compliance with this decision.

Source referenced: JD Supra

What is a Trade Secret?

What is a Trade Secret?

Last week we discussed the past and future of trade secret legislation. This week we take a step back and look at how a California court broadly defined the information that would fall under the category of a trade secret. The case brought forth in the California Appeals Court,  Altavion, Inc. v. Konica Minolta Systems Laboratory Inc., added to our knowledge of trade secret law in this state. This case was notable because it expanded what qualifies as a trade secret and permitted a more general recovery for trade secret misappropriation. Let us take a closer look at the case on hand.

Altavion v. Konica Minolta Systems Laboratory

KMSL and Altavion had attempted to work together before this lawsuit came about. Defendant KMSL manufactured printers and plaintiff Altavion was a small company that “invented a process to create self-authenticating documents by using barcodes with encrypted data about the contents of the original document that enable detection if the document had been altered from the original.” KMSL approached Altavion about their technology and the pair discussed embedding Altavion’s technology into KMSL’s printers. After more than forty meetings about the possible licensing deal, the two were not able to come up with a suitable agreement.

About a year later, Altavion saw that KMSL was filing for patents with Altavion’s barcoding technology. Altavion immediately filed suit against KMSL for trade secret misappropriation. A bench trial revealed that KMSL had misappropriated trade secrets Altavion disclosed to KMSL during negotiations for a licensing deal. The trial court found more information about the misappropriation and awarded Altavion $1 million in damages, $513,400 in prejudgment interest, and almost $3.3 million in attorneys’ fees.

KMSL appealed the trial court’s decision by saying generalized ideas and inventions are protected under patent law, not trade secret law. The court disagreed and cited California’s UTSA, section 324, which states there is substantial overlap between patent and trade secret law. The Court of Appeals also determined that Altavion’s barcode has some independent economic value. KMSL made a second argument by saying that Altavion did not take the necessary steps to protect its trade secret because it publicly disclosed he concept of verifying documents using a unique barcode technology. Once again, the court did not agree and said Altavion only disclosed how the technology could be used, not its unique detail designs.

Future Implications

This ruling by a California Court of Appeals provides us with a better understanding of what exactly falls under the broad definition of a trade secret. We know now that trade secrets are more than a specific formula or a set of lists. Trade secrets can be concepts and designs to solve problems. This means technological innovations can also fall under trade secrets. We may be seeing an increase in the number of trade secrets in the near future.

Source referenced: Lexology

 

The Future of Trade Secret Law

The Future of Trade Secret Law

As patents are becoming more and more difficult to obtain and enforce, many intellectual property owners are beginning to see trade secret law as a way to protect their IP assets. Congress is also considering providing federal private right of action for trade secret misappropriation. However, before deciding whether you should protect your IP with trade secret law, it is necessary to make sense of the history behind trade secret legislation.

Federal Trade Secret Legislation

The Supreme Court ruled in 1974 that state trade secret laws may “protect inventive subject matter without running afoul of the federal patent system.” After this ruling, states continued what they were doing and also continued to keep an eye out for trade secret misappropriation. When Congress saw that states varied on the type of trade secret legislation, they passed that Uniform Trade Secrets Act (UTSA) in 1979. This permitted companies with operations in several states to function more easily and with more protection. Although most states have adopted the UTSA in part or in whole, state court ruling have often led to differences for trade secret protection.

Commonalities Across States

When looking at trade secret legislation across different states, there are some common features that exist among them. First of all, the definition of trade secrets is common. The majority of the states define trade secrets as “information that derives some independent economic value.” States also agree that it is the duty of IP owners to keep information away from those who would use it for their own economical value.

Similar to the definition, states also agree on the scope of of trade secret law. While the scope of patents is often debated, most states tend to agree that “any information relevant to a business’ economic success” would fall in the category of a trade secret. State also agree that the IP owner must actively takes steps to protect and maintain the secrecy of his/her information. Lastly, states agree in saying that trade secret misappropriation should be criminalized. This is because states find that misappropriation usually occurs through theft, bribery, misrepresentation, or a breach of duty to protect secrecy.

More Trade Secret Legislation

Congress passed the Economic Espionage Act (EEA) in 1996 to criminalize trade secret misappropriation by foreign actors or governments. In addition, the EEA criminalized domestic trade secret misappropriation that impacted interstate commerce. Although high profile convictions under the EEA have increased awareness of misappropriation consequences, only a few number of criminal cases have actually been brought under the EEA.

Congress hoped to amend the EEA to “create a federal private right of action for trade secret owners to obtain redress for misappropriation.”  The Defend Trade Secrets Act (DTSA) would allow a trade secret owners to bring a federal civil action in response to acts of misappropriation or foreign economic espionage. The proposal also highlighted damages, injunctive relief, fee-shifting, and treble damages. The most important part of the DTSA would be that it provides “an ex parte order for preservation of evidence or seizure upon the verified complaint or affidavit of a trade secret owner.”

Another proposal to amend trade secret law was the Trade Secret Protection Act (TSPA) of 2014. The TSPA is fairly similar to the DTSA, but it preserves the right of the Attorney General to seek an injunction through a civil proceeding against someone who commits trade secret misappropriation. Unlike the DTSA, the TSPA puts additional restrictions on the civil seizures. This proposal was made in the House, while the DTSA was proposed in the Senate.

The Future

Federal trade secret law could be expanding in the new future and this is good news for IP owners across the nation. Both the DTSA and the TSPA will create a civil right of action for trade secret misappropriation. We recommend all intellectual property owners to carefully consider the changes DTSA and TSPA will bring to their business and their IP rights.

Source referenced: JD Supra