Zoom & the Law

6 Essential Zoom Court Tips

Since the Coronavirus pandemic, Zoom has used to conduct court hearings. While Zoom does help facilitate with one’s busy schedules, it is imperative that you still come in with your full attention and with the same respect as you would give in an actual court. Failure to do so could make a negative impact in your case. Below are a couple tips with regard to Zoom hearings.

I. Put Some Pants On

This one should definitely go without saying. However, inadequate dress been a problem with Zoom court. Several people have been caught wearing no pants when entering a Zoom begins. At one point during a SCOTUS oral argument, one of the attorneys could be heard flushing a toilet.

II. Proper Setting

Find a good quiet enough place to take a Zoom call, most preferably one where you are authorized to be. So that you can be heard, test your microphone settings prior to the meeting. Finally, make sure there are no potential dangers in the room.

III. No Multitasking

There have been instances where parties have logged onto a Zoom hearing while getting a haircut at a barbershop or while performing a surgery on a patient. Some of the things that people might do in the middle of a Zoom hearing can be extremely reckless and for some professions, this could lead to revocation of one’s license.

IV. No Filters

You might love wearing dog ears on Snapchat, or you might like to be a cat on other Zoom calls. But please do not put on any filters in the middle of your Zoom calls.

V. No Food & Drink

Do not eat or drink during your Zoom hearing. Finish your meal before the hearing begins, or wait until after.

VI. Netiquette

Etiquette on the Internet is extremely important in the middle of a Zoom call. Not everybody has the strongest of Internet connections either. So be respectful and courteous. Do not speak out of turn or interrupt when someone is talking.

IP & Entertainment

Understanding Trademark Distinctiveness

What makes a mark distinct? A logo or brand, for purposes of trademark law, becomes distinct when it is capable of identifying the source of goods or services and of distinguishing those goods or services from the goods or services of others. Distinction can be acquired either inherently or through secondary meaning, which is based on the consumer’s experience with a mark.

Various factors that may be taken into consideration may include the: (a) association of a mark with a particular source by actual purchasers (typically measured by customer surveys); (b) length, degree, and exclusivity of use; (c) amount and manner of advertising; (d) amount of sales and number of customers; (e) intentional copying; and (f) unsolicited media coverage of the product embodying the mark.

The barometer for distinctiveness was introduced in the in the case of Abercrombie & Fitch Co. v. Hunting World, Inc.

Fanciful Marks

Fanciful marks comprise of entirely invented or “fanciful” signs or words. For example, Pepsi had no other meaning prior to its use as a soda brand.

Arbitrary Marks

Arbitrary marks are usually common words which are used in a meaningless or nonrelevant context. Some examples of these include Apple Computers, The, and Dominoes’ Pizza.

Suggestive Marks

Suggestive marks tend to indicate the nature, quality, or a characteristic of the products or services in relation to which it is used, but does not describe this characteristic, and requires imagination on the part of the consumer to identify the characteristic. Suggestive marks invoke the consumer’s perceptive imagination. Take Gorilla Glue for example, which suggests that the product’s durability and adhesion is as strong and tough as a gorilla (or even King Kong).

Descriptive Marks

Descriptive marks are usually terms with a dictionary meaning which is used in connection with products or services directly related to that meaning. Descriptive marks must acquire secondary meaning in order to be distinct. Take Good Burger (home of the good burger) for example. The term “good” is descriptive of the burgers they sell.

Additionally, merely altering the spelling of a word will not give the mark inherent distinction. This includes marks like Icees and TastyKake.

Generic Marks

Generic marks are never distinctive. Some marks like thermos and aspirin face genericide after widespread use.  Thus, a generic term is not capable of serving the essential trademark function of distinguishing the products or services of a business from the products or services of other businesses, and therefore cannot be afforded any legal protection.

IP & Entertainment

What Is CDA Section 230?

Section 230, which was annexed into the Communications Decency Act (CDA) by Congress in 1996, asserts that a provider or user of an interactive computer service, such as a social media platform, is not to be considered the publisher or speaker of information created by an information content provider. Immunity for interactive computer services under Section 230 essentially boils down to three things:

  1. The defendant must be a “provider or user” of an “interactive computer service.”
  2. The cause of action asserted by the plaintiff must treat the defendant as the “publisher or speaker” of the harmful information at issue.
  3. The information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.

Prior to Section 230, interactive computer services could be held liable, even if they only exercised editorial control, for the content posted by others who used the service. However, after Section 230 was passed, the court in Zeran v. America Online, Inc. held that an interactive computer service can be immune from liability, even if it knew that the posting was false and acted unreasonably under the circumstances. Furthermore, internet computer services can make editorial actions, such as simply selecting posts for publication or providing commentary (that by itself is not defamatory) on the content of a third party, without being held liable, so long as they do not create or develop the information in whole or in part. While Section 230 has been most known for being a defense to online defamation and invasion of privacy claims, the issue of Section 230 has been raised in other legal contexts, especially within the past couple of years.

  1. Products Liability

The Section 230 defense has also been brought in avoiding strict products liability lawsuits against Plaintiffs who faced harm from defective goods. The most common scenario is where consumers purchase an electronic good (from headlamps to hoverboards) from giant online retailers like Ebay and Amazon. Those products are faulty to the point that they can catch on fire or explode, causing physical injuries to people or serious damage to a person’s home or place of business.

In these types of suits, companies like Amazon and Ebay generally emphasize two things. The first is that cannot be held liable for failure to give warning, because the product description is provided by the seller that uses the online retailer, not the retailer itself. The second point that online retailers have generally made is that they cannot be held liable for strict products liability claims, because they do not fall within the chain of title for such claims. In other words, online retailers do not take title to such defective products, unlike a brick-and-mortar store, such as Walmart or Target. However, federal appellate courts in California and in Texas have seemed to reject such use of the Section 230 defense, and have instead held that such online retailers can be held liable for faulty products. There are a couple reasons for this. One is the increasing number of people who are shopping on the Internet. Lastly, although companies like Amazon do not take title to the goods in order to be considered a seller, they literally do everything that a seller would do, such as payment processing, packaging and shipping, warehouse storage, etc.

  1. Child Sex Trafficking

In 2018, President Donald J. Trump signed the Fight Online Sex Traffickers Act (FOSTA), which carved out an exception to Section 230 immunity with regards to civil and criminal charges of sex trafficking. The act dealt greatly with sex trafficking issues pertaining to classified ad sites, such as Craigslist and Backpage. However, this measure did not stop social media platforms from enabling the distribution of nonconsensual pornography, harassment, and child sexual abuse imagery. For instance, one federal lawsuit accuses the social media platform Twitter of being complicit in sex trafficking by knowingly distributing and profiting from child abuse of a minor after failing to take down a sexually exploitative video, until the Department of Homeland Security intervened. Additionally, Section 230 still provides safe haven to companies like Pornhub, who have been accused of profiting off of video of child rape, revenge porn, and egregious sexual abuse.

Last year, several senators created a bipartisan legislative effort to further amend Section 230. Under the Eliminating Abuse and Rampant Neglect of Interactive Technologies (EARN IT) Act, companies would have to “earn” the protection by showing that they are following the recommendations for combating child sexual exploitation laid out by a 16-person commission. Essentially, this would seem to reduce the incredible flexibility on content-moderation, which was criticized in Zeran and other cases, since the act would incentive interactive computer services to make diligent efforts in removing sexually exploitative content.

  • Free Speech

Finally, Section 230 has viewed as a shield for big tech to censor speech that they deem offensive or contradictory with their political and social views. Public interest groups and free speech platforms, such as Parler and many others, have declared for Section 230 to be repealed and rewritten. Proponents believe that this will not only prevent big tech from having too much power, but also hold them accountable in effectively moderating the content on their platforms.

Zoom & the Law

Have You Been Zoom Bombed?

Since the Coronavirus pandemic, the use of Zoom videoconferencing has been widespread. But with such innovative means of communication and doing business comes a new form of trolling and hijacking known as Zoombombing.

Zoombombing is the unwanted, disruptive intrusion, generally by Internet trolls, into a video-conference call. A typical Zoombombing incident can result in, but is not limited to, insertion of material that is lewd, obscene, racist, homophobic, or antisemitic in nature, typically resulting in the shutdown of a teleconference session. Like many forms of cyberhacking, this sort of hijacking on the Internet can have devasting impacts on social and family settings, religious services, business meetings, and remote learning environments. In addition to potential copyright infringement, there are several violations that can occur when one commits a Zoombomb.

  1. Violation of Privacy Laws

Many states allow plaintiffs to sue for invasion of privacy, however the extent in which they do recognize these types of claims may vary. One kind of invasion of privacy is the public disclosure of private facts, which can arise when one who gives publicity to a matter concerning the private life of another and the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. Another is the intrusion upon seclusion, which occurs when one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, and such intrusion would be highly offensive to a reasonable person.

Unfortunately, these claims do not generally succeed when security settings, such as waiting room and password features, are not put in place. Anything that discussed on an online setting that lacks these kinds of security features will generally be treated as public instead of private.

What if you’ve enabled security features in your Zoom conference call, and someone is still able to Zoombomb you? This is where the Computer Fraud & Abuse Act (CFAA) can be affected. The CFAA is a federal privacy statute “makes it illegal to intentionally access a computer without authorization or in excess of authorization.” Violations of the CFAA can sometimes lead to criminal prosecution, making it perhaps one of the most punitive statutes in privacy law. Although the CFAA was initially implemented to counteract against computer hacking, it has been applied in other contexts as technology has evolved. For instance, the CFAA was used as an attempt to prosecute cyberbullying back in 2008 in the case of United States v. Drew. Again, security settings can be a factor in determining whether access is authorized or in excess of authorization, as well as any cease-and-desist letters received.

  1. Trespass to Chattels

Another relevant tort action is trespass to chattels, which is the intentional interference of another’s personal property. The first case to apply this tort to the Internet was CompuServe Inc. v. Cyber Promotions, Inc back in 1997. Between the late 1990s and early 2000s, courts had applied trespass to chattels when dealing with spamming, screen-scraping, and data havesting. However, the court in Intel v. Hamidi emphasized that the tort does not extend to claims in which the electronic communication involved “neither damages the recipient computer system nor impairs its function.” To the California Supreme Court in this case, the alleged economic productivity lost due to company disruption caused by emails was not sufficient in satisfying a trespass to chattels claim.

  • Breach of Contract

Using Zoom, Skype, or FaceTime in a way that is not allowed under their terms of service can potentially lead to a breach of contract. The key issue with this kind of claim is whether the Zoombomber had notice of the online platform’s terms, and whether such notice was conspicuous enough.