A year ago, the Court of Justice of the European Union invalidated the U.S. Privacy Shield framework as an adequate safeguard under the General Data Protection Regulation (GDPR), which had previously been a popular safeguard mechanism to cover the export of personal data from the EU to the U.S. While the same decision also held that another GDPR-sanctioned cross-border transfer safeguard mechanism – Standard Contractual Clauses (SCCs) – remained valid, the Court took the opportunity to note in its decision that the then-current SCCs may not go far enough to safeguard the rights of European data subjects.
SCCs are pre-approved contractual terms between an EU controller or processor to a non-EU processor or sub-processor. By adopting them into a contractual arrangement where an EU party is transferring personal information to another country, the international transfer is said to have adopted “adequate safeguards” under Article 46 and should avoid running afoul of the GDPR’s restriction on such transfers. The SCCs the Court opined on pre-dated the GDPR, and there has been a push to update them since the GDPR went into effect on May 25, 2018. On June 4, 2021, the European Commission announced it had finally approved new versions … Keep reading
Does the Computer Fraud and Abuse Act (CFAA) and its harsh penalties apply to employees who exceed their authorized access to computer systems for personal reasons? The Supreme Court has now said no.
The Supreme Court issued a 6-3 decision this week limiting the application of the CFAA against company “insiders” who exceed the scope of their authorization to access company data. The CFAA, generally speaking, provides both civil relief and criminal penalties against individuals who “access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Prior to this decision, there was a circuit split where some courts interpreted “unauthorized access” as including access to data that exceeded a limited scope of authorization provided to an individual, and other courts interpreted “unauthorized access” more narrowly to mean that the CFAA only applied to individuals who had no scope of authorized access.
In Van Buren vs. U.S., police sergeant Nathan Van Buren accessed a law enforcement database through his police-issued laptop to provide license plate information to a third-party for non-law enforcement purposes for money. The transaction was part of a … Keep reading
Does a trademark applicant’s belief that the cannabis goods specified in its trademark application will become federally lawful in the future provide a sufficient basis upon which to predicate its claimed “intent to use” the mark in lawful U.S. commerce? This was the question recently presented at the Trademark Trial and Appeal Board (TTAB) – the administrative body tasked with hearing appeals of refusal to register marks by the U.S. Patent and Trademark Office (USPTO).
Overview of Federal Trademark Lawful “Use” Requirement
In general, federal trademark rights provide the owner with national, exclusive rights to use a mark in connection with a specific set of goods and services. Unlike most other countries, the USPTO has a “use based” trademark system, meaning it requires trademark owners to demonstrate actual use of their marks in lawful U.S. commerce in order to register and/or maintain their trademark rights.
A federal trademark application must include a description of goods and services described with sufficient particularity to be understandable to the average person. The application can be based either on current use of the trademark in connection with the claimed goods and services in U.S. commerce or based on its future intent … Keep reading
Breaking news out of Florida: On April 21, 2021, the Florida House, in a near unanimous vote, passed the Florida Privacy Protection Act (FPPA). Largely modeled after the California Consumer Privacy Act (CCPA), the FPPA would have made Florida the third state to pass a comprehensive privacy and data security law, following Virginia’s passage of its Consumer Data Protection Act (CDPA).
Just as quickly as it passed the Florida House, though, it was killed by the Senate on April 30, 2021, after disagreement between the House and Senate as to whether the bill should give individuals a private right of action to sue companies that violate their privacy rights under the FPPA. The pro-private-right-of-action camp believes a privacy act without a private right of action is an impotent law, while the anti-private-right-of-action camp believes the right unduly burdens businesses with costly compliance obligations.
Washington’s version of the CCPA, the Washington Privacy Act, suffered a similar fate a month ago after a similar fallout over the same private right of action question.
The failure of both Washington and Florida to pass comprehensive privacy laws – along with California’s and Virginia’s passage of comprehensive privacy laws that include a private right … Keep reading
Copyright is a form of intellectual property rights providing owners of creative content with the exclusive right to reproduce, prepare derivative works, distribute copies, publicly perform, publicly display, and publicly transmit their work. These rights vest automatically at creation; however, generally, registration is required in order to enforce a copyright in court. Copyright protects “…original works of authorship fixed in any tangible medium of expression…” but the threshold for both creativity and originality has been interpreted as being very low – requiring only a minimal degree of creativity.
Unlike patent and trademark applications, copyright applications are low cost and subject to less vigorous examination, making them arguably one of the most user-friendly forms of intellectual property registrations for creators to seek without an attorney. However, misconceptions about copyright protection are pervasive. Below are our top five myths on copyright protection, debunked for your reading pleasure:
Failing to credit an author of a work is considered “plagiarism” and can be a violation of someone’s copyright rights. However, the reverse – crediting the author to mitigate against a copyright infringement claim – is … Keep reading
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