Businesses Appeal to Chinese Government over Cybersecurity

Businesses Appeal to Chinese Government over Cybersecurity

By: Dan Hart

An alliance of forty-six business groups appealed to the Chinese government to reconsider proposed legislation that would enforce strict cyber-security rules. These business groups, hailing from the United States, Europe, and Asia, believe the new regulations will negatively impact foreign trade with China and serve to further isolate the country.[1] These complaints are the latest against a perceived trend of economic isolationism, or favoritism towards domestic business over foreign investors.[2]

The rules would allow any business to transfer data, required for business purposes, past China’s borders only after passing a security evaluation. The rules would impose a legal requirement on internet providers to cooperate with enforcement agencies’ counter-terrorism and criminal investigations by providing data deemed relevant.[3]  They would also require network operators to accept government supervision and to “comply with social morals.”[4]

The proposed cyber security regulations affect international business to varying degrees, but would have the greatest impact on domestic Chinese businesses and Chinese citizens. Chinese citizens would be required to store all their personal information as well as their business information on Chinese servers.[5]

These new security rules would grant the Chinese government even greater control over their citizens’ private lives and information, limiting both what they can see from the rest of the world and how they can interact with that world.

 

[1] http://www.businessinsider.com/ap-business-groups-appeal-to-china-over-cybersecurity-law-2016-8

[2] http://www.businessinsider.com/ap-business-groups-appeal-to-china-over-cybersecurity-law-2016-8

[3] http://fortune.com/2016/08/17/china-cybersecurity-law-foreign-business/

[4] http://www.reuters.com/article/us-china-cyber-lawmaking-idUSKCN0ZD1E4

[5] http://www.reuters.com/article/us-china-cyber-lawmaking-idUSKCN0ZD1E4

Microsoft’s Battle: Privacy Up in the Clouds

By: Cecilia Santostefano

It’s no surprise that we live in a world largely permeated by technology. It influences how we live – from the developing industries to the outlets we use to communicate with each other. However, rapid increases in the use of technology, particularly the internet, raise privacy concerns. After all, the right to privacy is greatly valued by Americans.

While whistleblower Edward Snowden fixated his concerns on computer hackers, so-called Big Brother is the more relevant privacy concern today.[1] Back in 2013, the Department of Justice served Microsoft with a court order to hand over e-mail communications that the company stored outside of the United States.[2] This is similar to Apple’s face-off with the DOJ from early 2016.[3] Microsoft’s response was two-fold. First, customers trust the cloud. If customers don’t believe their communications are secure from government viewing, then that risks the use and, ultimately, the success of the cloud.[4] Second, the government requires what is known as a ‘secrecy order’ when conducting its electronic investigations. A secrecy order compels Microsoft to keep information regarding ongoing investigations secret from its customers for a certain period of time; typically one to three months.[5] This delayed notification concerned Microsoft, who feared this provided the government with a means to continue searching customer information without a specific reason.[6] The latter claim is the basis for Microsoft’s lawsuit against the DOJ.[7]

In early September, sizeable entities including Google, Amazon, and Snapchat joined Microsoft’s DOJ-resistant efforts.[8] Other civil liberty groups like The Washington Post also stand united with Microsoft.[9] The allies believe their customers “do not give up their rights [to privacy] when they move their private information from physical storage to the cloud.”[10] While Microsoft executives have agreed secrecy orders are necessary under certain conditions where government investigations cannot be compromised, the corporation retains an emphasis on the importance of privacy.[11]

 

[1] See Jennifer Schlesinger, Is Big Brother really watching you?, CNBC, (June 3, 2014, 9:08 AM), http://www.cnbc.com/2014/06/03/is-big-brother-really-watching-you.html.

[2] David Goldman, Microsoft is fighting the DOJ too, CNN, (Feb. 23, 2016, 6:52 PM), http://money.cnn.com/2016/02/23/technology/microsoft-ireland-case/.

[3] Mikey Campbell, DOJ confirms successful iPhone data extraction, withdraws encryption case against Apple, Apple Insider, (Mar. 28, 2016, 2:47 PM), http://appleinsider.com/articles/16/03/28/doj-to-withdraw-san-bernardino-iphone-court-action-suggests-discovery-of-successful-bypass.

[4] See Nick Wingfield, Microsoft’s Challenge to Government Secrecy Wins Dozens of Supporters, NY Times, (Sept. 2, 2016), http://www.nytimes.com/2016/09/03/technology/microsofts-challenge-to-government-secrecy-wins-dozens-of-supporters.html?ref=technology&_r=0.

[5] Wingfield, supra note 4.

[6] Id.

[7] Sarah McBride, Microsoft sues U.S. government over data requests, Reuters, (Apr. 15, 2016, 8:48 AM), http://www.reuters.com/article/us-microsoft-privacy-idUSKCN0XB22U.

[8] Wingfield, supra note 4.

[9] Id.

[10] Jose Pagliery, Microsoft sues government for secret searches, CNN, (Apr. 14, 2016, 4:08 PM), http://money.cnn.com/2016/04/14/technology/microsoft-secret-search-lawsuit/.

[11] See Wingfield, supra note 4.

“Blurred Lines” in the World of Copyright: What Does the Latest Appeal Mean for The Music Industry?

By: Caitlin Holland

We have all heard the anecdote that all songs include the same three notes. Musicians often cite the lates and greats as “inspiration” for the latest pop song making the radio rounds. But how far can “inspiration” go before it is considered a crime? How much of a song is copied for it to be considered substantially similar rather than just in the same genre? Where do we draw the line between inspiration and stealing?

In the world of Copyright litigation, the line between inspiration and copying is becoming more and more blurred thanks to a recent decision that is opening the proverbial floodgates of litigation. Famous recording artists who have been parties to copyright infringement claims this year include Robin Thicke and Pharrell[1], Ed Sheeran[2], Sam Smith[3], Hans Zimmer[4], and Led Zeppelin[5].

The litigation of the “Blurred Lines” case between the family of Marvin Gaye, copyright owners of Gaye’s song “Got to Give it Up,” and Robin Thicke, Pharrell and T.I. is probably the most noteworthy. In the highly publicized decision set down last year in California, the damage award set a record high in a copyright case at $7.4 million, reduced to $5.3 million. Most notably, the substantial similarity that lead the judge to rule that there was infringement of Gaye’s copyright was the extrinsic and intrinsic similarities. The test for extrinsic similarities employs expert testimony to determine whether the works share similar expressions. Intrinsic similarity is shown if an ordinary, reasonable listener would conclude that the total concept and feel of the works are substantially similar.[6] In this case the plaintiff’s expert brought forth examples of material appropriated by the “Blurred Lines” creators cited as “the pulse that runs through the song.”[7] The jury made the decision that the “feel” of the two works bore sufficient similarity to conclude that there had been an infringement. [8]

Last month, 200 musicians filed a brief with the Ninth Circuit Court of Appeals expressing their concern about the ruling in the “Blurred Lines” case.[9] The musicians cite a possible chilling effect saying that the ruling could have an “adverse impact on their own creativity, on the creativity of future artists, and on the music industry in general, if the judgment is allowed to stand.”[10] The brief submitted by the artists states that reducing the similarities of the two works to simply a “feel” or “vibe” reduces the copyright to an idea, which is not a copyrightable medium of expression.[11] Rather than on the substantial similarity of the notes, words, and arrangement, the song was found in violation of Marvin Gaye’s copyright based on the stylistic and atmospheric influence.

The verdict in this case has expanded the scope of copyright protection to abstract ideas and feelings, contrary to the very language of The 1976 Copyright Act. If this appeal fails, the 9th Circuit may effectuate an unwelcome change to the music industry as we know it.

 

[1] Williams v. Bridgeport Music, Inc., 2015 U.S. Dist. LEXIS 97262 (9th Cir. 2015).

[2]Musician Ed Sheeran Faces Copyright Lawsuit Over ‘Thinking Out Loud,’ Reuters, Aug. 10, 2016, http://www.reuters.com/article/us-music-edsheeran-lawsuit-idUSKCN10L04X ; Piya Shinha-Roy, Ed Sheeran Faces $20 Million Copyright Lawsuit over ‘Photograph’, Rueters, June 9, 2016, http://www.reuters.com/article/us-music-edsheeran-lawsuit-idUSKCN0YU2R4

[3] Daniel Kreps, Sam Smith on Petty Settlement: ‘Similarities’ But ‘Complete Coincidence,’ Rolling Stone, Jan. 26, 2016,http://www.rollingstone.com/music/news/sam-smith–tom-petty-settlement-20150126

[4]Hans Zimmer Wins Copyright Lawsuit & An Apology, Billboard, Aug. 25, 2016, http://www.billboard.com/articles/news/7487729/hans-zimmer-wins-copyright-lawsuit-apology

[5] Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006 (9th Cir. 2016).

[6] Williams, supra at 52.

[7] Id. at 68.

[8] Id.

[9] More Than 200 Musicians Support ‘Blurred Lines’ Appeal – The Associate Press – http://www.nytimes.com/aponline/2016/08/31/us/ap-us-blurred-lines-song-dispute.html

[10] Brief of 212 Songwriters, Musicians, and Producers as Amici Curiae Supporting Appellants, Pharrell Williams, et al. v. Frankie Christian Gaye, et al., 2015 U.S. Dist. LEXIS 97262 (2015)(No. 15-56880), available at https://pacer-documents.s3.amazonaws.com/3/15-56880/009028333811.pdf.

[11] 17 U.S.C. 106 (1976).

Inspired by the U.S., West Africans Wield Smartphones to Fight Police Abuse

Jeffrey Cullen

Cellphones have become a very powerful weapon in the hands of civilians worldwide. They have the capability of recording events and distributing them to various social networks. These recorded events have the capability of enlightening a vast aray of viewers throughout the world of hot button issues such as police brutality and abuse of power.

The United States has proven that the use of smartphones can be a useful tool to bring awareness and fight off oppressive police conduct. Many nations have followed the United States’ lead to highlight corruption and abuse in the hopes of bringing about deterrence of these issues. According to Searcey and Barry’s article, a civilian witnessed a bus driver being threatened by soldiers brandishing firearms. The civilian took out his phone and began to record in an effort to deter this apparent abuse of power against innocent people.[1] The increased use of smartphones in recording and sharing videos in West Africa are due to longstanding frustrations about abuse of power and lack of prosecution of responsible perpetrators. The use of technology to bring about awareness of police abuse of power will hopefully trigger governments to take action to eliminate this unacceptable behavior.
[1] Dionne Searcey and Jaime Barry, Inspired by the U.S., West Africans Wield Smartphones to Fight Police Abuse, NY Times (Sept. 16, 2016). http://www.nytimes.com/2016/09/17/world/africa/police-abuse-videos-west-africa.html?ref=technology&_r=0

‘Five-Second Rule’ for Food on Floor is Untrue, Study Finds

 

Shamsheer Kailey

Professor Donald Schaffner, a food microbiologist at Rutgers University, New Jersey debunked the five second rule for food on floor in a study. The two-year study concluded that regardless of how fast the food is picked up from the floor, it will pick up bacteria with it.

The study tested four different surfaces – stainless steel, ceramic tile, wood and carpet and four different foods – cut watermelon, bread, buttered bread and strawberry gummy candy. The four surfaces were treated with a bacterium similar to salmonella and food was dropped on it from a height of five inches. Next, four different contact times of food with the surface were measured – less than one and five seconds, 30 and 300 seconds. Different combinations of surface, food and seconds were replicated 20 times for a total of 128 combinations resulting in 2,560 measurements.

The study found that no fallen food escaped contamination entirely and that longer contact times resulted in more bacteria contamination. While the transfer rate of bacteria for wood varied, carpet had the lowest transmission rate in comparison to tile and stainless steel. Regarding the food, composition of the food, surface it falls on and the length of time determines the rate of contamination. Contamination was highest for watermelon (with moisture) and lowest for gummy candy.

Experimental Psychologist and professor, William Hallman, at Department of Human Ecology at Rutgers University explained why people still follow the five second rule stating that people make quick decisions with the data available to them. It is a lot easier to pick up and eat a yellow M&M from the floor because germs are invisible thus easier to ignore. Professor Hallman also noted that men are more likely than women to pick up food from floor and consume it. The findings were a result of a phone survey of 1,000 Americans in 2005.

____________________________________________________________________________

Christopher Mele, Five-Second Rule for Food on Floor is Untrue, Study Finds, N.Y. Times (September 19, 2016), http://www.nytimes.com/2016/09/20/science/five-second-rule.html.

 

Bring Out Your Dead… Again: New Louisiana Technology Helps Track Down Tombs

Emma Fusco

Climate change is an issue that has affected everyone around the world, both living and dead.  Global warming due to human action has caused a rise in ocean water due to melting of ice at Earth’s poles.[1]  Though we’ve heard of these threats for decades, the little boy is now actually crying wolf.

Louisiana has been notorious for their history with flooding, but because of the higher temperatures, the harsher and more intense coastal storms have wreaked havoc on neighborhoods north of Baton Rouge.[2]  The aftermath of Hurricane Katrina put in place many provisions in their landscape to prevent another flood from happening, but it wasn’t until recent events that Louisianans have begun to take a new look at how to work with the inevitable issue of flooding.[3]

Instead of reinventing the wheel, Louisiana is now waving the white flag and working with the floods rather than against them in incredibly unique ways – especially when it comes to graveyard cleanup.

Louisiana’s most recent flooding in Baton Rouge had been the worst flooding residents had seen since Katrina, and in some areas, even worse than the 2005 catastrophe, which make flood-tossed tombs nothing new.[4]  Hurricane Rita in 2005 revealed coffins and vaults that had gotten lost in Hurricane Ashley over 50 years earlier in 1957.[5]  What is the difference between then and now?  We’ve created a market around the travelling dead.

After causing a stir around not being able to place people back into their graves without “popping the top” and the morbidity found inside, funeral homes and burial sites have attempted to keep better track of their maps in addition to hiring “cemetery recovery consultants”.[6]  In an attempt to identify corpses in their caskets, records have now been intricately kept of whether or not someone was buried with an identifying tangible item such as a golf club or a unique rosary.[7]

In addition to change in business practice, caskets have been engineered to include a small tube where a death certificate or another type of identifier can be placed in the event of a flood-tossed tomb.[8]

The most intriguing innovation yet is an app created to track down roaming tombs where the casket has a chip that can be tracked using GPS technology and barcodes to identify the person inside without having to take off the lid.[9]  Though the app is still in its early stages, the main issue being fleshed out is how to keep the batteries alive along enough to track their inevitable travel.[10]

In addition to this new market for tracking tombs, this may also change the way we plan our deaths in the legal world.  While doing the rest of our estate planning, will we now execute a new document of how to keep track of us after we’re 6-feet-under along with our last will and testament? If this new technology comes to fruition, it has the ability to make changes the Medicaid law in the sense that this new technology could be associated with and included in burial plans.

This GPS has incredible potential – especially in the estate planning area of law.

With the rise of sea levels and increased temperatures due to global warming, this issue will worsen among coastal burial grounds.  With the threat of fiercer storms and heavier flooding, this technology will only become more desirable.

 

[1] Justin Gills, Global Warming’s Mark: Coastal Inundation, N.Y. Times, Sept. 4, 2016, at A1.

[2] Id.

[3] Campbell Robertson, Louisiana Sharpens Its Skills in Tracing Flood-Tossed Tombs, N.Y. Times, Sept. 19, 2016, at A1.

[4] Campbell Robertson and Alan Blinder, Flooding Compounds Pain of Tragic Summer in Baton Rouge, N.Y. Times, Aug. 18, 2016, at A13.

[5] Robertson and Blinder, supra.

[6] Robertson, supra.

[7] Id.

[8] Id.

[9] Roberston, supra.

[10] Id.

Apple Loses in Trademark Case Against Swatch

Caitlin Holland

In 2015, Apple launched its “Apple Watch.” Some consumers noticed the difference in the watch’s name compared to Apple’s other tech products such as the iPod, iPhone, and iPad. A trademark dispute between the Swiss watchmaker Swatch and Apple was probably a key factor causing the difference in name.

Apple applied for registration of its “iWatch” mark with the UK’s Intellectual Property Office in in 2013. It was met with an objection from Swiss watchmaker, Swatch, in 2014. Before a decision was granted, Apple named the smartwatch “Apple Watch.”

After a hearing in April of this year, the UK’s Intellectual Property Office issued a decision this month in agreement with Swatch’s assertion that the “iWatch” was too similar in name to Swatch’s “iSwatch” and “Swatch.”

Trademark registrations are still handled territorially, meaning that global companies like Apple must apply for trademark registration in every “country of interest.” The decision limited Apple’s use of the mark to computer accessories and software and did not extend its use to its smartwatch. This decision is a clear example of the difficulties awaiting by global companies in launching and naming new products designed for global use and marketing.
[1] Swatch Succeeds in Trademark Case Over Apple ‘iWatch,’ http://www.bbc.com/news/technology-37350870.

New Report Finds Chromium-6 in U.S. Drinking Water

Ashley Menard

According to a national report released on September 20, 2016, dangerous levels of chromium-6 are contaminating tap water consumed by millions of Americans. Chromium-6 is the carcinogenic chemical that was brought to the national forefront by the popular movie “Erin Brockovich,” starring Julia Roberts.

Chromium is a naturally occurring element found in rocks, animals, plants, soil, and volcanic dust and gases. A chromium compound known as “Chromium-6” is generally produced by industrial processes. The compound is widely used in electroplating, stainless steel production, leather tanning, textile manufacturing, and wood preservation. The U.S. is one of the world’s leading producers of chromium compounds.

The U.S. Environmental Protection Agency has never specified a specific limit for chromium-6 in drinking water, despite the fact that the chemical is carcinogenic. The National Toxicology Program has conducted studies showing that sodium dichromate dehydrate, a compound containing chromium-6, causes cancer in laboratory animals following oral ingestion.

The national report released in September 2016 reveals that throughout the nation, the tap water of 218 million Americans contains levels of chromium-6 that the group considers dangerous. The report revealed that levels of chromium-6 are at or above 0.03 parts per billion (ppb) in 75% of the samples tested in local water utilities between 2013 and 2015. Further, seven million Americans receive tap water with levels of chromium-6 that are higher than 10 ppb.

Despite it being well known that chromium-6 has contaminated drinking water in the past, the contaminant in our drinking water is still unregulated. Perhaps now that the problem ranges on a larger scale than originally believed, action will finally be taken.

Consumer Protection or Protectionism Unify Digital Market in European Union

Xiang Qi

In wake of a decade of sluggish growth and to provide European customers with better access to digital and online service, European Union is set to unveil a series of new rules governing its digital market on Wednesday. [1]  American tech companies are likely to suffer the bigger hit under these new rules as they will be forced to abide by stringent competition, privacy and copyright rules.

The rules to be announced by the European Commission include potentially giving publishers the right to charge Google and other internet companies when they use online content from newspapers or magazines on websites like Google News or Facebook; placing greater scrutiny on internet phones and messaging services like WhatsApp; giving European consumers the right to watch and buy some premium streaming content from different platforms; and providing financial incentives to regional telecom operators like Deutsche Telekom to invest in the region’s mobile and broadband networks. [2]

While the European policy makers claim that they are trying to protect people’s rights in an increasingly digital world by requiring all the market players to follow the region’s stringent laws, some of the US tech companies worry that they will suffer more from the new regime in the digital market. Europe has a history of doubling down stringent regulation regarding Apple’s tax evasion or Google’s antitrust charge. As some of the US companies encroached upon more market shares in Europe than it does on US domestic market, the E.U. has been struggling to strike a balance between encouraging local competition while containing U.S. influences. For example, Spotify, a homegrown success from Sweden, became a worldwide hit through its expansion in the U.S. market. [3]

Whether the new set of rules works to regulate the E.U. market or it is helping regional forces to fight against tech giants from the other side of the ocean remains to be seen.

[1] Mark Scott, E.U. Rules Look to Unify Digital Market, but U.S. see protectionism, The New York Times, http://www.nytimes.com/2016/09/14/technology/eu-us-tech-google-facebook-apple.html?ref=technology&_=0

[2] Id.

[3] Id.

Under Armour vs. Uncle Martian: The Trademark Wars

Thomas Carlon

The sky’s the limit when it comes to the imagination of people; their creative ideas, interests, how they see the world. But, when does it become apparent that one company is blatantly copying the creative idea of another? Such is the case with China’s newest sportswear brand, Uncle Martian.

Under Armour is one America’s most well-known sportswear brands, it is worn by your everyday American, as well as New England Patriots quarterback Tom Brady.[1] Under Armour has built its reputation on quality products that hold up during even the most rigorous exercises. But, the true question is whether Under Armour has any recourse against Uncle Martian.

According to United States law, trademarks are governed primarily by the Lanham Act of 1946.[2] Under this statute, infringement will be found under the “likelihood of confusion test,” which is laid out in Polariod v. Polarad.[3] Where the defendant would be found liable if the new trademark infringes on the existing trademark, where a consumer is likely to confuse the companies and mistakenly purchase the wrong product. There are several factors to consider when applying the confusion test: strength of the plaintiff’s trademark; degree of similarity between the two marks at issue; similarity of the goods and services at issue,[4] along with a few other factors too. If, Uncle Martian were to begin sales within the states or attempt to register the logo with United States Patent and Trademark Office (“USPTO”), then Under Armour could file suit for infringement in the federal circuit. But, as it currently stands Uncle Martian has not yet begun sales in the states.

Under Armour began its operation in 2010, and since that time has opened over 75 stores.[5] Premium sportswear in China has become a fashion trend and is regarded highly within the country.[6] It is evident that a local corporation would be interested in participating in this market. Since Uncle Martian has only recently launched in China, it is unlikely that Under Armour could sue for trademark infringement within the United States jurisdiction, therefore the only recourse currently for Under Armour is within China’s jurisdiction.

According to Entrepreneur, China has similar copyright laws to that of Western countries like the United States.[7] “China has been a part of the World Trade Organization since 2001, which requires it to establish significant intellectual property law.”[8] For Under Armour this should sound like wonderful news, unfortunately for our well-known sportswear provider, they may encounter some difficulties. Within China, their intellectual property rights laws are difficult to enforce.[9] For Under Armour it would be in their best interest to seek a court injunction against Uncle Martian for infringement, as opposed to seeking statutory damages too. Because, within in China there is no discovery procedure, like there is in the United States.[10]

Did Uncle Martian copy Under Armour’s logo? The largest difference between the two is that Uncle Martian’s upward facing arc and the downward facing arc do not intersect. How likely will it be for someone to confuse the two logos and purchase the wrong product – pretty likely. As a consumer, the two logos are strikingly similar and I believe Uncle Martian is attempting to copy rival sportswear company Under Armour.

 

[1] Michael Forsythe, Chinese Appear Underwhelmed by Under Armour Knockoff, The New York Times (Apr. 29, 2016), http://www.nytimes.com/2016/04/30/world/asia/china-uncle-martian-under-armour.html.

[2] Lanham Act 15 U.S.C.A § 1051 (1946).

[3] Polaroid v. Polarad, 287 F.2d 492 (2nd Cir. 1961)

[4] Id.

[5] Victoria Ho, Chinese brand Uncle Martian is blatant rip-off of Under Armour, Mashable (Apr. 29, 2016), http://mashable.com/2016/04/29/uncle-martian-under-armour/#NA59lF1aXuq3.

[6] Id.

[7] Will Heilpern, A Chinese Sportswear Brand Called Uncle Martian Just Launched, and it Appears to Be Openly Ripping Off Under Armour, Entrepreneur (Apr. 29, 2016), https://www.entrepreneur.com/article/274920.

[8] Id.

[9] Id.

[10] Christina Nelson, Enforcing Intellectual Property Rights in China, China Business Review (Oct. 1, 2012), http://www.chinabusinessreview.com/enforcing-intellectual-property-rights-in-china/.