Apple Music versus Spotify

Apple Music versus Spotify

Apple is perhaps one of the most popular and successful companies in the world right now. However, this may come at a price. Several months ago we heard about Apple versus Samsung. After the San Bernadino shooting, we heard about Apple taking on the Federal Government. Now, there is something else Apple can add its its list, Apple versus Spotify. Spotify, the music streaming service, says Apple is making it harder for the company to compete by blocking a new version of its iPhone app. Apple cited “business model rules” when rejecting Spotify’s app and said they would approve it if Spotify agreed to use Apple’s billing system. Spotify claims the real reason Apple is not allowing their app to be accessible for users it because they are attempting to promote Apple Music, which launched June 2015 and has not been too successful. They believe Apple is using the App Store as a weapon to harm its competitors.

Spotify is not alone in claiming that Apple’s subscription policies punish third-party music services that use Apple’s platform. Many other music streaming services have complained about the same thing. Apple’s comment about the billing system may also be an attempt for the company to make more money. Apple charges a monthly billing fee of up to 30% for those who use its billing system. These policies were introduced in 2011 and after much hesitation, most publishers agreed to them. If Apple does not change its App store policies, Spotify has no real market to go to in order to sell to iPhone users. Having only Android users may not be enough for the company to thrive. Spotify, possibly knowing that they would have problems with Apple in the future, started asking users to visit their website to get a three months of service for $0.99 in Fall 2015. In June 2016, Spotify revived its offer for new users. Although Spotify did not promote this offer, they turned off the App store billing option. This is what really started the dispute.

Spotify published the letter it wrote for the public to see and even handed it out to members of Congress. Spotify is powerful voice in the streaming media market. In June 2016, Apple Music had 15 million paid subscribers, while Spotify has 30 million. This may be one reason for Apple to take a step back and consider what they are requiring of Spotify. Both Apple and the music streaming service declined to comment on the debate over the App store billing option. We look forward to seeing how this debate unfolds.

apple-music-vs-spotify

Source referenced: Recode

How Your Body Language Shapes You

How Your Body Language Shapes You

Amy Cuddy, a social scientists, focuses on nonverbal human behavior. Our posture, a handshake, an awkward hug, a smirk, and many other things fall under this category. She says our body language is a form of communication. Social scientists have spent a fair amount of time looking at the effect of our body language on other people. Our body language helps others make judgments and inferences about us. An example would be during a job interview. However, we focus a lot on how others are impacted by our body language but fail to look at how we are impacted by our body language. In her research, Cuddy focused on nonverbal expressions of power and dominance. For animals, they make themselves big and take up more space with their body. For humans, something similar takes place. To illustrate her point, Cuddy shows an image of Oprah and an Olympic runner stretching. A power pose is demonstrated by Cuddy in the image below.

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Cuddy then focuses on how men and women exhibit different body language and nonverbal expressions. As a professor at Harvard Business School, Cuddy has seen that male MBA students tend to take up more space around their desk area and be more dominant in the classroom. Females find their small space and prefer to be there and only raise their hands slightly, continuing to take up less space. This is not surprising because women feel less powerful than men. She then goes on to compare the minds of powerful and powerless people. In physiology, high power individuals have high levels of testosterone and low levels of cortisol. This is evidence that the body can shape the mind and the mind can shape the body.

Cuddy and her colleagues conducted an experiment where they took a student’s saliva sample, asked them to do either a low or high level pose for two minutes, asked them a series of questions about taking risks/gambles, and then took a saliva sample again. They found that those who did the high power pose were more likely to take risks/gambles. High power people also had higher levels of testosterone and lower levels of cortisol in only two minutes. This shows that our nonverbal behaviors govern how we think and feel about ourselves. How can we apply to this everyday life?

Answering this question was very important to Cuddy. She found that displaying confident and high power nonverbal behavior is important where we are being judged by others. This can be during a job interview or at a lunch meeting with friends. Since most people experience nonverbal shutdowns during a job interview, Cuddy conducted an experiment where several people were sent to an interview where they interviewers exhibited absolutely no nonverbal clues. The candidates came out very stressed and with high cortisol levels. At the end of the experiment, third party reviewers came in and looked at the videos of the interviews. They only preferred to hire the high power individuals because their nonverbal communication was a lot better. Cuddy tells a personal story of how she faked it until she made it at her first few jobs as a professor and speaker. She says you should not fake it until you make it, but fake it until you become it. Lastly, Cuddy concludes by saying everyone should try a power pose before stressful event and share this science to help others.

Source referenced: TED

Insurer Found Liable for Settlement Negotiated by Insured

Insurer Found Liable for Settlement Negotiated by Insured

San Diego Apartment Brokers prohibited riding bikes in the complex’s parking lot and other common areas after receiving complaints from several residents. Despite the new changes in policy, Juse Urista’s child continued to ride his bicycle in common areas. Brokers noticed that Urista was not complying with the new policy and served him an eviction notice. Urista sued Brokers claiming the eviction was wrongful and discriminatory. He also claimed negligence and violations of the Federal Fair Housing Act. Urista said the eviction also caused him depression and bodily injury.

Brokers received the claim and tendered it to its general liability insurer California Capital Insurance Company (CCIC). Brokers had not yet evicted Urista from his apartment at this point. CCIC refused to defend Brokers because Urista had not been evicted. Brokers’ attorney said CCIC could not refuse to defend his client without a valid defense. CCIC reviewed the case once again, but concluded that they did not have the authority to defend Brokers under the policy. They provided four reasons for not defending Broker’s action.

  1. Urista did not claim a separate physical injury
  2. Broker’s actions leading to the incident were decisions, not accidents
  3. A wrongful eviction had not taken place
  4. Even though Urista’s family had moved out, Urista’s continued residence precluded coverage

After CCIC refused to defend Brokers, Brokers ended up settling the case with Urista for $20,000. Then, Brokers sued CCIC for breach of contract and bad faith. The jury found in Brokers’ favor and awarded them $30,552. CCIC appealed the verdict by arguing that they never acted in bad faith because there was no genuine coverage dispute. However, the court rejected CCIC’s argument by saying Broker’s wrongful evictions claim clearly fell under potentially covered lawsuits.CCIC was being unreasonable by not defending Brokers. CCIC also ignored many of the other claims made by Brokers. CCIC’s refusal to defend Brokers was not in good faith. This case showed that an insurer can be held liable for settlement costs of its insured when the insurer refused to fends it insured in bad faith.

Sources referenced:

  1. JD Supra
  2. San Diego Apartment Brokers, Inc. v. California Capital Ins. Co., No. D062945, 2014 WL 1613449 (Cal. Ct. App. Apr. 22, 2014).
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
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

 

 

How to Make a Great First Impression

How to Make a Great First Impression

As we go on with our day to day life, we meet many new people. Businessmen and women often believe that showcasing their skills, experience, and capabilities is more important than presenting themselves as trustworthy and likeable. Amy Cuddy, a Harvard Psychologist, says establishing your credentials is not always the first thing you should do when meeting a new client. She says the first question a potential client subconsciously ask themselves is: “Can I trust him/her?” Here, trust is defined as being likeable and warm. Cuddy believes only after you have proven yourself trustworthy should you being showcasing your skills and talents. Many people do not have trouble with showing off their expertise, but not everyone is able to immediately make a great first impression. In this blog post, we will discuss Cuddy’s tips on how to make a great first impression.

Don’t Talk, Listen: We have the tendency to talk a lot more than we listen. However, listening to the other person and offering nonverbal cues, such as nodding or smiling, helps the other person feel like they are important. In addition, do not offer advise until you are specifically asked for it.

Praise Others : Everyone enjoys hearing that they did well on a certain projects or assignments. If you do not know much information about someone, find out ahead of time about what they have been working on and recognize their hard work. Not only do people enjoy being recognized for their achievement, it is more likely to motivate them to work even harder in the future.

Don’t Practice Selective Hearing: There are many times when people feel superior to others in a conversation. Think back to the last time you had a conversation with your boss. There was most likely a moment when he/she was not really listening to what you had to say. This does not feel good. In order to make a great first impression, stop practicing selective hearing and give everyone a fair chance to make themselves heard. Someone’s social status or position in the business should not impact your behavior towards them.

Pay Attention: There are many times during conversations where we become distracted by our phones or even our thoughts. Not giving someone your full attention can definitely result in a bad first impression. If you give someone your full attention, it is more likely to will enjoy being around you.

Don’t Receive, Give: This may sound confusing to some, but it is something we do on a daily basis. In conversations and throughout the day, we are often concerned with how we can receive a benefit from something. However, you should only be focusing on giving and establishing a real relationship with someone you have just met.

Don’t Act Self-Important: If you walk into the room expecting attention or behave pretentiously, nobody will want to be around you. Stop trying to impress people and try to connect with them instead.

Other People are More Important: Instead of acting like you are the most important person in the room, treat other people like they are more important than you. By doing this, you will be able to learn more from them. If you just treat yourself as a the star of the room, others will hesitate to open up to you.

Choose Your Words Carefully: The words you choose can portray a lot about your attitudes and feelings towards others. Instead of saying you have to go to a meeting, say you get to go to a meeting with wonderful people. Always associate yourself with happiness and enthusiasm. Not only can the words you choose make a better first impression, they can help people around you feel better as well.

Don’t Discuss the Failures of Others: In an office setting, there are times when everyone enjoys hearing a little bit of gossip. However, never be the one that dishes out the dirt. If someone makes a mistake, don’t laugh at them. Simply learn to be kind. If you are one of the first ones to laugh at another person, the people around you will start to wonder if you do the same to them when they are not around.

Admit Your Failings: While it is not always wise to poke fun at others mistakes, do not be afraid to admit your own failures. Be humble and prepared to share your mistakes with others. Learn to laugh at yourself and this will cause those around you to laugh with you, instead of laughing at you. The more fun and open you seem, the more likely that people will want to be around you.

Source referenced: Inc.

Vinod Khosla’s Martins Beach Dispute

Vinod Khosla’s Martins Beach Dispute

The Surfrider Foundation is a nonprofit organization set up to protect oceans, beaches and the public’s access to them. In September of 2014, Surfrider brought suit against Vinod Kholsa to open the gates to his Martins Beach Property. Khosla, the founder of Martins Beach 1, LLC and Martins Beach 2, LLC, bought the property from a previous owner and continued their practice of charging a car parking fee to allow access to the beach. This continued until 2011, but then Kholsa closed and locked the gates leading to Martin’s Beach. He also hired security guards to be sure their were no trespassers. Surfrider filed suit against the billionaire at the CA Superior Court in San Mateo County. Surfrider wanted public access to the beach, as well as penalties against Khosla for a violation.

Superior Court Judge Barbara Mallach sided with Surfrider in saying that Khosla had violated the California Coastal Act by blocking public access to the beach. She said permanently locking the gates and hiring a security guard clearly prevented public access to the beach. Judge Mallach said Khosla and his company must apply for coastal development permits if they want to lock the gates and prevent public access. Until the correct permits are granted, the beach must be publicly accessible. Surfrider also wanted Khosla and his companies to pay penalties for locking their gates, but Judge Mallach did not agree with the foundation. She said since Khosla’s behavior was “in good faith,” penalties were not justified.

Surfrider celebrated a victory and claimed that “great wealth cannot be used to circumvent and ignore the law.” Vinod Khosla is expected to appeal the decision. He said he was disappointed with the court’s decision and says he “will continue to seek protection of the constitutional rights of private property owners that are guaranteed by the U.S. and California Constitutions .” Fast forwarding into 2016, Kholsa’s years-long dispute is headed to trial. A federal appeals court in San Francisco has approved the case against Khosla and his attorney’s are eager to protect the right’s of coastal property owners in the upcoming trial.

Sources referenced:

  1. Silicon Valley Business Journal
  2. Fortune