Legal Bytes

Krakatoa: East of Java; Google West of Fair Use

Joseph I. Rosenbaum — Mon, 07 May 2012 16:54:50 -0500

Some of you may remember the 1969 disaster film, "Krakatoa: East of Java" (which, coincidentally ties nicely to a recent Useless But Compelling Fact topic). Well today, Legal Bytes is happy to alert you to the results of jury deliberations – yet another copyright law disaster – just unfolding out West (West Coast of the United States, that is). Just hours ago (and providing more evidence that confusion reigns and continues to increase under existing copyright law), the jury has rendered its decision in the copyright phase of yet another intellectual property trial relevant to the online and mobile world. As you may recall, just last month we reported another copyright flip-flop winding its way through the courts in our post entitled, Appeals Court Vacates Summary Judgment in Viacom v. YouTube.

Today, a jury in California, deliberating in a case brought by Oracle against Google and alleging that Google infringed Oracle’s Java copyrights, concluded that Google did use the Java interfaces, but couldn’t reach any conclusion if that was protected use under the copyright "fair use" exception ("fair use" is a defense to copyright infringement). The jury did find separately that Google infringed some of the Java code and used it in developing the mobile phone platform, Android. However, before Oracle celebrates prematurely, Judge William Alsup noted that because only a minimal amount of code was actually used, Oracle’s request for $1 billion in damages or some share of Google’s profits was essentially ridiculous, and that only statutory damages, ostensibly a relatively nominal amount, would likely be applicable.

Indeed, these cases bolster a growing argument that as digital technology and innovation move forward, current copyright law is either inadequate or irrelevant, or both. Legal Bytes will continue to monitor developments in this evolving and convoluted intellectual property dilemma. I encourage you to take a look at an opinion piece I wrote separately entitled, A Contrarian’s View of Copyright: Much Ado About Nothing. But that’s just my opinion; the jury’s verdict is fact!

If you would like further information or need help making sense of the legal issues arising in our digital online and mobile world, feel free to contact me, Joe Rosenbaum, or the Reed Smith attorney with whom you regularly work.

Useless But Compelling Facts - April 2012

Joseph I. Rosenbaum — Tue, 24 Apr 2012 11:04:34 -0500

It happens rarely – usually no more than once a century or so – but when it does happen, it always occurs in pairs, eight years apart. It happened in 1761 and again in 1769. It will happen in 2117 and again in 2125. But it also happened in June 2004 and, in a little more than a month from now, at the beginning of June 2012, the second of this eight-year pair is scheduled to take place. What is it?

If you know the answers and are first to send them to me, you’ll win. Send your answers directly to me at jrosenbaum@reedsmith.com.

Useless But Compelling Facts - March 2012 Answer

Joseph I. Rosenbaum — Tue, 24 Apr 2012 11:02:50 -0500

Last month, we asked you to tell us about the 100th birthday celebration that took place, starting from its humble beginnings on March 6, 1912, in New York.

Thanks to long-time friend and loyal Legal Bytes reader, Sam Dressler, for correctly reminding us that it is the OREO cookie. Happy Birthday, and congratulations Sam!

Appeals Court Vacates Summary Judgment in Viacom v. YouTube

Joseph I. Rosenbaum — Thu, 05 Apr 2012 14:13:17 -0500

Back in December of 2010, after a previous ruling against Viacom in the billion-dollar copyright infringement case brought by Viacom (Viacom Appeals Google/YouTube Ruling) Legal Bytes reported that three legal scholars filed a brief in support of Viacom’s appeal, stating that “the central issue in this case are the legal tests for contributory and vicarious liability for copyright infringement from the use of Internet sites - in this instance, the YouTube site - to reproduce and disseminate large amounts of copyrighted material without authorization from copyright owners.” The U.S. District Court had previously ruled in favor of YouTube and Google, holding them protected against claims of copyright infringement by the safe harbor provisions of the Digital Millennium Copyright Act.

Today, in ruling on the appeal, the U.S. Second Circuit Court of Appeals essentially breathed new life into Viacom’s case, remanding it back to the lower court and instructing the District Court judge to determine whether YouTube had knowledge of specific infringing material and willfully blinded itself to that knowledge.

The ruling vacates the District Court’s summary judgment against Viacom, noting the facts might be interpreted by a reasonable jury in a way that would not exonerate or exculpate YouTube from liability. In his opinion, U.S. Circuit Judge Jose A. Cabranes wrote: "We conclude that the District Court correctly held that the 512(c) safe harbor requires knowledge or awareness of specific infringing activity, but we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website."

As we have over the years, Legal Bytes will continue to monitor developments in this complex, high stakes litigation involving significant intellectual property issues in our online and digital world. If you would like further information, feel free to contact me, Joe Rosenbaum, or the Reed Smith attorney with whom you regularly work.

Gift Card Issuers Fight & Switch

Joseph I. Rosenbaum — Mon, 02 Apr 2012 13:53:14 -0500

Back in August 2010, Legal Bytes reported that a New Jersey law applicable to abandoned property (escheat) would effectively alter the tenor and scope of the New Jersey gift card law (see, Gift Cards in New Jersey: It's Complicated!).

Well today, in an Associated Press article published by ABC News Internet Ventures. Yahoo! - ABC News Network, it is being reported that American Express, which was already pursuing its legal rights and remedies in a law suit filed to overturn the law, has now opted to pull gift cards from retail sale in New Jersey.

The new law would require sellers in New Jersey to capture the ZIP code of everyone who buys a gift card. Monies left on those gift cards bought in New Jersey that lie dormant and unused after two years would then ostensibly be required to escheat to the state. After the law was passed about two years ago, American Express (joining forces with the New Jersey Retail Merchants Association and others), filed suit challenging the new law. Initially, a U.S. District Court issued an injunction against implementing it, but more recently the injunction was removed – perhaps the stimulus for the reported move by American Express.

If you have been coming back to Legal Bytes to keep up with this and other developments in the law of Advertising Technology & Media (“ATM”), you know that Keri Bruce in Reed Smith’s ATM practice group previously posted a report entitled Gift Cards Tag Along with Credit Card Legislation, noting that federal legislative and regulatory requirements will soon apply to gift cards. You will also see links to a U.S. Gift Card Statutory Chart (Updated), which those of you who work with gift cards and similar financial payment instruments may find helpful; and you already know we follow and advise clients in this area all the time, assisted by a team of financial services regulatory specialists as well.

So if you need help from lawyers who know this area and can provide experienced, practical counsel, contact Joseph I. (“Joe”) Rosenbaum or Keri Bruce, or your favorite Reed Smith lawyer, all of whom will be happy to help.

Taxing Storm Clouds Gather Over Utah

Kelley C. Miller — Mon, 02 Apr 2012 08:31:55 -0500

In June 2010, we announced the launch of an initiative focusing on Cloud Computing ('Transcending the Cloud' - Reed Smith Announces White Paper Series & Legal Initiative on Cloud Computing), showcased with a series of individual and topical white papers, in time being compiled into a comprehensive work entitled, “Transcending the Cloud: A Legal Guide to the Risks and Rewards of Cloud Computing.” One of the first in our series was a paper on the state tax implications of cloud computing, entitled: “Pennies From Heaven”

Just as clouds have different shapes, sizes and shades of gray, different states are approaching taxation of cloud transactions differently. Well now, our State Tax practice reports that taxing storm clouds are gathering over Utah. In a marked about-face from the state's previously issued guidance, the Utah Sales Tax Commission has ruled that web services that charge a fee constitute sale of a service, subject to sales tax. The implication being that mere access of or to an application is enough to subject the provider to a tax liability.

Notable for cloud computing providers, even though the product at issue was access to remotely hosted software that allowed users to conduct webinars "in the cloud," allowing customers to download a free device application for access to that service had the state seeing "software" (sales of which are subject to sales tax in Utah). With at least one state looking at clouds from the application side now, it will be interesting to see if other states quickly follow.

For more information about the Utah ruling, or to stay on top of the developments in the taxation cloud products and platforms, visit www.taxingtech.com. To get legal assistance and guidance from someone who really knows that state of state taxation of cloud computing, contact Kelley C. Miller directly. Of course, you can always find out more about our Cloud Computing initiative or get the assistance you need by contacting me, Joseph I. ("Joe") Rosenbaum, or the Reed Smith attorney with whom you regularly work.

Useless but Compelling Facts - March 2012

Joseph I. Rosenbaum — Fri, 23 Mar 2012 14:47:51 -0500

On March 6, 2012, a 100th birthday was celebrated – having been born in New York in 1912. Beloved around the world, bringing smiles to the faces of young and old for 100 years. Name?

Useless But Compelling Facts - December 2011 Answer

Joseph I. Rosenbaum — Fri, 23 Mar 2012 14:34:54 -0500

As 2011 came to a close, with the buzz and frenzy over the upcoming Facebook (www.Facebook.com) IPO, we asked you to tell us the first company in the world that ever issued stock, where it was incorporated, the year stock was issued, whether it paid a dividend and whether it – or actually a successor corporation – is still around.

Drum roll . . . . . .

The Dutch East India Company (in Dutch: Vereenigde Oost-Indische Compagnie, VOC) was established in 1602, and although one other company had been chartered (incorporated) before it, the Dutch East India Company was the first to issue stock. Perhaps the quasi-sovereignty of Google (www.Google.com), Facebook (www.Facebook.com) and other mega-corporations should not be so surprising since my own research uncovered the fact that its charter permitted the company to wage war, imprison and execute convicts, negotiate treaties, and even establish colonies and coin money. And that was in 1602! It must have been doing something right back then because the Dutch East India Company actually paid an 18 percent annual dividend for almost 200 years. Unfortunately, the company became fraught with corruption and by 1800, having gone bankrupt, it was formally dissolved as a corporation, with its land holdings becoming the Dutch East Indies which, over the course of ensuing centuries, expanded into what is now known as Indonesia.

German Court Requires Facebook to About Face

Joseph I. Rosenbaum — Thu, 22 Mar 2012 16:06:40 -0500

This post was written by Katharina Weimer.

A German Court thinks it may be time to de-friend Facebook. On 6 March 2012, the Regional Court in Berlin took a rare opportunity to rule on several features available on the social media platform Facebook, and not surprisingly opined that Facebook needs to provide more transparency and ask for consent when using users’ information. Worded in the form of consents, the German Court held:

Consent No. 1: Facebook may no longer make available one of its most used features, the “friend finder,” without proper information of the user and consent of the user’s contacts who are invited to join Facebook via email
Consent No. 2: The exploitation of user content that is protected by intellectual property rights requires affirmative and specific user consent. The language purporting to grant Facebook a comprehensive, worldwide, royalty-free license that is incorporated into Facebook’s existing terms of use is not sufficient.
Consent No. 3: Facebook needs to reword its consent regarding the use of personal data for advertising purposes

Although the judgment is technically not legally binding as yet, Facebook announced it will carefully review the consequences and consider legal remedies once the judgment is available in full length. This decision may lead the way to more transparency and user control over social media and the use of information in Germany. Having a world of information at your fingertips and incorporating user content in Web 2.0 services is a great tool for user interaction and learning more about them, but the court’s ruling suggests that Facebook not forget for whom their service was created – the users, not the advertisers. As Facebook edges closer to an IPO and looks to monetize its services and features, the German Court’s view is that Facebook needs to continue to give its users control over their content and information. Stay tuned to Legal Bytes for more details as the court proceedings continue.

Vielen dank (many thanks) to Katharina Weimer for the insights and the update. If you need legal or regulatory counsel, contact Katharina directly, or you can always contact me, Joseph I. (“Joe”) Rosenbaum, or the Reed Smith lawyer with whom you regularly work.

White House Releases Privacy Report and Calls For a Consumer Bill of Rights

Joseph I. Rosenbaum — Thu, 23 Feb 2012 13:04:50 -0500

Earlier today, Secretary of Commerce John Bryson and Federal Trade Commission Chairman John Liebowitz outlined the Obama administration's strategy for ensuring “consumers’ trust in the technologies and companies that drive the digital economy.” On the heels of their announcement, and although it is dated January 2012, the Department of Commerce released a long-awaited report entitled “Consumer Data Privacy in a Networked World, A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy,” the administration’s roadmap for privacy legislation and regulation in the years ahead.

The announcement and privacy blueprint envisions a comprehensive and integrated framework for data protection, rather than the current sector-patchwork-quilt approach, and is comprised of four key pillars: (1) a consumer privacy bill of rights; (2) a multi-stakeholder process and approach dealing with how such a bill of rights would apply in a business context; (3) more effective enforcement; and (4) greater commitment to harmonization and cooperation in the international community.

The Report outlines the seven principles of its proposed Consumer Privacy Bill of Rights and, although calling for legislation and regulation to codify and memorialize these rights, also sets out consumer privacy standards that companies are asked to immediately and voluntarily adopt in a cooperative public-private partnership. These seven principles are:

Individual Control Through Choice
Greater Transparency
Respect for Context
Secure Handling
Access & Correction Rights
Focused Collection
Accountability

The Report notes that a company's adherence to the voluntary codes will be viewed favorably by the FTC in any investigation or enforcement action for unfair and deceptive trade practices. By implication, a company that does not adopt and follow these principles might be used as evidence of a violation of Section 5 of the FTC Act, even if federal legislation is not passed on the subject. The FTC is expected to soon release its Final Staff Report on Consumer Privacy that will be consistent with the Obama administration’s proposed Framework Report. The report reinforces the administration’s commitment to international harmonization, and also touches upon the role state attorneys general in the United States can play. While we are still reviewing the details – and more will likely be forthcoming from the administration in the weeks and months ahead – Legal Bytes will keep you on top of these developments as they arise.

You can read the entire report right here: Consumer Data Privacy in a Networked World, A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy.

These are developments that affect all businesses, domestic and multi-national, global and local, consumers and regulators. The complexity and challenges of compliance should not be underestimated, nor should the administration’s commitment to follow the roadmap outlined. Reed Smith has teams of lawyers who have experience and follow developments in privacy and data protection, from prevention and policy to compliance and implementation. If you want to know more, need counsel, need help navigating, or if you require legal representation in this or any other area, feel free to call me, Joseph I. (“Joe”) Rosenbaum, or any of the Reed Smith lawyers with whom you regularly work.

2012 ANA Conference - Gnu & Gnoteworthy

Joseph I. Rosenbaum — Fri, 17 Feb 2012 09:25:27 -0500

Learn what you need to know to stay on the cutting-edge of today’s regulatory and legal issues at the 2012 ANA Advertising Law & Public Policy Conference in Washington, D.C., March 28-29. Hear from two top regulators, FCC Chairman Julius Genachowski and FTC Commissioner Julie Brill; and a leading member of the judiciary, Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit and a noted IP expert. Topics will include:

A session on FTC cases involving two major marketers – Dannon and Reebok – featuring both in-house and outside counsel representing both companies
The most recent news from Congress and the agencies
The future of the Internet after ICANN’s plan to open up the top-level domain space
What’s next in the online piracy fight post-SOPA/PIPA, and the future of online governance

Continuing Legal Education (CLE) credits will be available.

To view the agenda, please visit ANA’s website; and if you have questions, feel free to contact my partner, Douglas J. Wood, who is Co-Chairing the Conference, or me (Joseph I. Rosenbaum), or any Reed Smith attorney with whom you regularly work.

Robocop Fights Robocalling

Joseph I. Rosenbaum — Thu, 16 Feb 2012 13:43:53 -0500

In the 1987 film "Robocop", directed by Paul Verhoeven, a terminally wounded cop returns to the police force as a powerful cyborg, albeit with haunting memories, to fight crime and evil. Fast-forward to 2012 and "robo calling."

One of the government’s main consumer cops, the Federal Communications Commission, has acted to tighten rules regarding the use of so-called "robo calling" (ok, it's auto-dialing systems). The FCC's official order has not been released, but the following is clear:

Express written consumer consent in advance will be required before using an autodialer or prerecorded message
You can no longer rely on an "established business relationship" as an exception to the prior written consent requirement
Each robocall must include an automated opt-out mechanism
Rules governing abandoned or "dead air" calls will be tightened

When the final regulations and order designating the effective date and detailing precisely how these rules will be applied are released, we'll bring you the news; but in the meantime, you can read more about the FCC's action and its thinking right here: FCC Approves Order to Tighten Regulatory Treatment of Robocalls Under the Telephone Consumer Protection Act.

As always, if you need legal or regulatory counsel, call me, Joseph I. ("Joe") Rosenbaum, or any of the lawyers highlighted in the full client alert, or, of course, the Reed Smith lawyer with whom you regularly work.

Stealing Limelight from Hollywood, California Shines the Light on Privacy

Joseph I. Rosenbaum — Wed, 15 Feb 2012 12:06:19 -0500

California’s Shine the Light Act, California Civil Code 1798.83, responded to the perceived need for transparency and provides consumers certain rights in connection with how businesses share information about California residents for purposes related to direct marketing. The regulatory team at Reed Smith has prepared a Reed Smith Shine the Light Act Reference Guide; and while the Act doesn’t apply to every business, if it does apply, liability may be as high as $3,000 per violation. You can view the entire blog posting on our sister GRE Law Blog.

As always, if you need guidance from lawyers who have experience and resources aligned to deal with these issues, call me, Joseph I. (“Joe”) Rosenbaum; any of the lawyers highlighted in the posting; or, of course, the Reed Smith lawyer with whom you regularly work.

Online Gambling. Time to Change Legal Bytes to Legal Bets?

Joseph I. Rosenbaum — Fri, 30 Dec 2011 11:01:18 -0500

On December 23, 2011 the U.S. Department of Justice reversed its decade long position on the applicability of the U.S. Wire Act to online gambling that does not involve sports betting. In previous years, prosecutions were brought against any form of online gambling based on their interpretation of the Wire Act. This opinion, reverses the long standing position and may well clear the way for States to become more aggressive in legislatively enabling intra-State online gaming and who knows, perhaps the Federal government will consider licensing and regulation permitted online gambling. This is not simply big news within the United States. Gaming and gambling operators around the world who may already be working with governments on their lottery initiatives and many other companies who have no presence in the United States may now be looking to establish a foothold and ultimately a major presence in the U.S. Similarly, U.S. casino and gaming operators already licensed, may sense the opportunity for foreign investment and the injection of new capital, new expertise and a more global platform.

Reed Smith and its interdisciplinary team of experienced gaming transactional, e-Commerce, payment, privacy, technology and marketing lawyers have their eye on this new development that has the potential to energize the data-intensive, multi-billion dollar online gambling industry in the U.S. market. Joe Rosenbaum, Ramsey Hanna and Joshua Marker have authored a Client Alert which you can read here: U.S. Federal Government Reverses its Stance on Online Gaming.

Happy New Year Wishes for 2011

Joseph I. Rosenbaum — Wed, 28 Dec 2011 14:34:45 -0500

About 4,000 years ago, the ancient Babylonians celebrated the New Year upon seeing the first new moon after the vernal equinox. Today, festivities in New York's Times Square are televised around the world. Although my traditions don't date back nearly as far as either of these, each year at this time I try to create a Legal Bytes piece intended to be more thoughtful and philosophical. So this posting will contain no hypertext links to distract you; it will not have citations to offer more information about a snippet; nor will it dazzle you with factoids or intrigue you with today's news. It's just me philosophizing, about where we've been and where we're going. My one chance during the year to simply ramble about where we've been and where I think we might be headed – without any credentials, qualifications or expertise to do so.

So, loyal Legal Bytes' readers, just pull up an easy chair, put away your other distractions for a moment, pour a glass of your favorite beverage, sit back and enjoy . . . and again, thank you.

Much has been written about social media. Whether it's the Facebook phenomenon, now with 1 billion "friends" in sight, or the Twitter tweets that either rock or knock the world – everyone's talking about it. I just read an interesting blurb from a powerhouse of a social media strategist I follow on Twitter, describing the social media and corporate world as an example of "orthogonal bliss," and I thought, that's interesting, but not quite right. Why, you ask? (You did ask, right?) Hang on.

Much has also been written about privacy and data protection. Online behavioral advertising, geo-targeting and location-based services, tracking, identity theft, the buzz words go on and on. I keep reading how advertisers capable of more accurately determining my preferences represent a massive invasion of my privacy and my rights. Wait a minute. That's not quite right either. Why, you ask? (You did ask again, right?)

Well, let's put these in perspective, because all of these inter-relate with cloud computing and mobile and wireless technology and, yes, drive-up windows! When Henry Ford introduced mass-production assembly lines in the early 1900s, prices of automobiles dropped, making personal transportation more affordable. Closed body construction, first available on General Motors' Cadillac Model Thirty in 1910, as well as the first use of an electric starting motor (invented by Charles Kettering), also in the Cadillac sold in 1912, made the automobile easy for anyone to start and capable of being used in all sorts of weather.

More than just trivia, society as we know it in the industrial age has largely been based on the rapid increase in personal transportation: Drive-up windows, shopping malls, suburbs, gasoline/petrol stations, rumble seats, not to mention paved roads, interstate highways and so much more. Try to imagine not just the vehicles themselves, but also the lifestyles that have changed, the culture and society that has arisen around personalized transportation. The airplane has shrunk the globe, and the automobile has enabled us to go where and when we like on it!

Thirty years ago, computers were largely mainframe monoliths, connected to dumb terminals requiring rocket scientists with punch cards and a working knowledge of Boolean algebra to do anything. Raised floors for cabling, sophisticated air conditioning cooling systems – 1 megabyte of memory in 1978 cost more than $30,000. Why would anyone ever need more than 64K!

Today, personal information systems are transforming our society and our culture as well: Everything from how we work, play, game, learn, research, find things and, yes, interact with each other and the world around us. Rapidly. Our appetite for personalized capabilities has created successful companies that have learned the skills of "mass customization" – yes, there's an app for that! Devices become smaller and more powerful. I can take my toolkit, my work, my school books, my roadmap, my address book, my email and my phone with me wherever I go. I can keep in touch and shop with one device. "Clouds" and wireless devices proliferate – in the next year or so, estimates indicate there will be more than 5 billion active mobile phone contracts, most Web enabled and most with GPS tracking capability.

Social media isn't really "media." Social networking isn't really "networking." Online (or more correctly, "digital") behavioral and geo-targeting isn't really an invasion of privacy. Is it? Are they? Getting back to my "orthogonal bliss" observation, social media and corporate aren't really at right angles, intersecting on a single axis point for each and diverging orthogonally – are they? When corporations have "Chief Tweeters" and pages on Facebook, and display Twitter, Facebook, Linkedin, Plaxo, Google+, Digg and a host of other icon/links on their own domains and even in print and television, as well as online/mobile advertising – is it orthogonal? Not sure. Don't have a better solution, but I'd like to think about it and that's key. The site that gave me that description – the strategist who mentioned the word "orthogonal" and noted it came from a "fancy" person, with "fancy" words at a "fancy" evening party – well, that site made me think. Isn't that what this is all about? Let's conclude by breaking down some myths:

True, some elements of social media depend on media. Some are even social.

True, some aspects of behavioral tracking and location-based services could intrude on my rights.

But we continue to use language that is increasingly irrelevant to the reality of what we do and what we want. The Internet was originally designed as a communications mechanism. Remember Arpanet? Tim Berners-Lee found a way to establish residences (domains) on the information superhighway. Lou Montulli gave us animated GIFs and, yes, cookies, among other things.

So now we can communicate, store, process, transmit, retrieve and use information ourselves, with our friends, family and colleagues; with strangers around the world or around the corner. The "borderless world" envisioned (or perhaps more aptly, reported) by Kenichi Ohmae is here. Privacy – a word that really doesn't capture the accumulation of information about my publicly available activities – does it? Social media – words that don't really describe the amazing revolution and evolution taking place at home, at work, how we educate and how we shop.

Neither of these terms (and without getting to boring, none of the laws or regulations) really hit the nail on the head. I'm not necessarily advocating a change in terminology. Meanings of many words have changed over the years, but we need to change the conversation so that the words and the meanings start to more closely align. If we can't, then change the words. Because the meanings and the ways in which you and I use and want to use this fantastic technological capability – and those emerging into the future – will not stop moving forward.

When a human being first set foot on the moon, the space ship, the lunar landing craft, the clothing used to make that incredible feat of scientific and engineering magic, were all depicted and predicted with unnerving accuracy in fiction, science fiction and writings from Jules Verne, and perhaps earlier. What was equally amazing and unpredictable was that when Neil Armstrong placed his left boot on the surface of our moon at 2:56 UTC July 21, 1969, almost the whole world could watch the live transmission on television.

I daresay 800 million people aren't really friends – on Facebook or otherwise. Yet we use the word as if it is meaningful in the same way. Can a judge be "Friends" with lawyers appearing in their courtrooms? Can an employee of PepsiCo, "Like" Coca-Cola with impunity? Think about all the ways we give information to others willingly and in what context. Are we really complaining about privacy or are we more concerned with our loss of control over information about us?

Something and some things to think about. Some ramblings to ruminate about. Fortunately someone else has to proofread this (thank you Lois). I'd like to tell you I have the answers because that would make me both rich and famous. I don't (not yet).

My second tradition has always been limited to my personal contacts – friends, family, colleagues – but this year I received so many kind words and so many requests to post it and share it with others, that I have reformatted my personal holiday message for Legal Bytes and I share it with you. Perhaps the start of another tradition. Here goes:

This is the time of year when season's greetings, holiday and new year's wishes, regardless of religion, culture, ethnic background or heritage, fill the air. We spend a lot of time and attention on cards, gifts, attending or hosting parties, dinners and otherwise gaining the 10 pounds we resolve to lose in the New Year. Far be it from me to screw up the tradition, so among the flurry of well-wishers, holiday revelers, frosty noses and smiling faces, let me join with others and wish you a cheery and joyous holiday season now; and in the months ahead, a healthy, happy new year filled with wonder, challenge, excitement and, yes, traditions old and new.

Over the past 30+ years I have agonized over gifts to clients, colleagues, family and friends. About three years ago, I started a new tradition (for me), passed on to me from a colleague who had started doing it years before. He told me to write a thoughtful note and send it out – let the ripples flow through time and touch the people that you know. So as we leave 2011 behind and look forward to 2012, I gratefully appreciate you for allowing me to share my personal holiday and new year's wishes with you.

We can't all change the world. But we might just be able to change a life or two or three. Yes, it's corny. So what? We are already edgy and hip. We are all cool. Can you spare some good old-fashioned corny? We talk about random acts of kindness as if it were a bumper sticker. Sure, maybe the homeless guy will spend it on a beer - maybe not. Yes, someone might be ripping off money from the battered women's shelter - maybe not. Maybe showing a little faith and kindness to those who have felt so little, will pay more dividends than we care to believe. The real inconvenient truth is that we use failure as an excuse not to give to or help others who have less. Think about every person who is extolled for their selfless dedication to helping others. We admire them not because they gave to others; rather, we honor them because they never gave up helping others. Adversity. Challenge. Humiliation. Their belief in helping others was steadfast. Beat them down, they simply got up and went on. Perhaps each of us, in our own small way, should try and show others who are less fortunate that we care and we are willing to help - even if we are not sure they will use our help wisely or to turn their lives around, and even if we are disappointed. Have a little faith - it's not about religion, it's about tolerance and understanding and a willingness to accept that we may not know why some people are what they are, but we can help nonetheless. I am not the paradigm of virtue. I've walked past my share of corrugated cardboard box people without a glance - avoiding their gaze so I'm not shamed into coughing up a few dollars. Then I realize I spend more on my newspaper subscription or Starbucks and I feel guilty. Sometimes I go back - not often enough - but when I do I feel better. I like that feeling. Stupid me, I don't reproduce it often enough. My father did, rest his soul. I should have learned from him. Hopefully it's not too late. So I'll try again, starting now, to be better. I'll also try to keep in touch more.

I also value the diversity of people I've come to know and care about over the years and throughout the world - you know who you are and if you aren't among them, send up a flare and say "hi." There is much I still have to learn from each of you.

So to family and friends, colleagues and acquaintances, clients and adversaries, loyal Legal Bytes readers and those who browsed here by accident, let me wish you peace, comfort and joy. May those who love you come closer and those who dislike you become fans. But most of all, I wish all of you the extraordinary sense of goodness that comes with changing another person's life for the better... a person to whom you owe nothing and who expects nothing from you. Think what the world would be like if we all did that.

No matter what language you prefer, it means "Thank You," and I offer my thanks to all you readers and fans, new subscribers and sporadic browsers. A special appreciation to Erin Bailey, Lois Thomson, Rebecca Blaw and the Reed Smith and Lexblog team that makes what I do appear a lot easier. Thank you all for everything you do to make Legal Bytes a special place to visit.

Happy Holidays & Best Wishes

for

Health, Happiness, Prosperity and Peace in 2012

- Joe Rosenbaum

Useless But Compelling Facts - December 2011

Joseph I. Rosenbaum — Wed, 14 Dec 2011 13:27:53 -0500

Having just posted the Super Bowl answers, let's turn our attention to another sport – initial public offerings, or IPOs. Hearing the news that a Facebook public offering is in the works, and that analysts are prognosticating it might be worth US$100 billion, I thought I would do a little digging of my own about how this all got started.

So our trivia questions to bring 2011 to a close relate to the world of IPOs. Let's see how business savvy you all are and perhaps we'll let you ring in the New Year with a bottle of bubbly as the prize.
What was the name of the first company in the world that ever issued stock? Just so we don't make it too easy, you need to also tell us where it was incorporated, the year the stock was issued, whether it paid a dividend (some of you are saying, "You’re kidding, right?") and whether it – or actually a successor corporation – is still around.

If you think you know the answers, send me an email at jrosenbaum@reedsmith.com, and if you are first with the complete, correct answer, you'll win.

Useless But Compelling Facts - October 2011 Answer

Joseph I. Rosenbaum — Wed, 14 Dec 2011 13:24:05 -0500

For you Super Bowl football fans (as in U.S. football, not as in soccer, as football is known in the rest of the world), here are the answers to our last Useless But Compelling Facts contest:

The team that has scored the most points in Super Bowl games is the Dallas Cowboys (221), and the team that has had the most points scored against it is the Denver Broncos (206). The only team that didn't score a touchdown in a Super Bowl game was the Miami Dolphins in Super Bowl VI.

Advertising Internet Speeds: Can You Handle the Truth?

Joseph I. Rosenbaum — Tue, 13 Dec 2011 11:21:20 -0500

In The Wall Street Journal online, Carl Bialik, The Numbers Guy writer and blogger, analyzes the numbers behind advertised versus actual broadband Internet download speeds, and government efforts to measure what the consumer receives compared with what is promised by the ISPs.

In his posting entitled, "How Speedy Are High-Speed Internet Lines?", Mr. Bialik examines the issue of whether statistics derived from a report commissioned by the Federal Communications Commission (www.fcc.gov) are used in a way that is meaningful to consumers when evaluating the offerings of Internet service providers.

Notably, Mr. Bialik's article also compares the approach taken by the UK's Office of Communications (Ofcom) in measuring the speeds offered on the other side of the pond, which maintains the panel of tested carriers in secret to prevent any "gaming" of the test process and system.

Joseph I. ("Joe") Rosenbaum is quoted in the posting in connection with some of the legal issues that arise when statistics and factual information contained in government or other reports are used in advertising. Truth (facts) may not, as in the case of defamation, be an absolute defense.

The government may feel that consumers can't handle the truth. Or at least the truth, depending on the context and the manner in which it is used in advertising. When, for example, can statements that are literally true become false or misleading? As has been previously noted in Legal Bytes, using old facts can be deceptive and misleading when facts are outdated and new facts are available, or when the old facts clearly don’t apply.

In some cases, even current facts can be misleading. If I advertise that an article will be posted on Legal Bytes once a month and I post two, can I claim that Legal Bytes beats its own advertised promise to consumers by double? If you and I enter a race and I win, can you advertise that I came in next to last and you came in second? Is that true? Yes. Is it misleading? Yes. I've omitted facts that are material to the information quoted and that are material to the context for you to evaluate.
The truth, after all, is not always that simple and I am grateful for that. As in the words of William Jennings Bryan: "If it weren't for lawyers, we wouldn't need them."

Whatz Gnu

Joseph I. Rosenbaum — Wed, 26 Oct 2011 09:29:34 -0500

Many thanks to the International Law Office (ILO) for publishing a derivative of our Legal Bytes article. You can download and read a personal copy of the ILO posting FTC Targets Ads That Target Kids, or you can read the original Legal Bytes blog posting at "Mom, is it OK for them to follow me?" FTC Targets Ads That Target Kids.

MMA Releases Mobile App Privacy Guidelines - Appy Days Are Here Again

Joseph I. Rosenbaum — Tue, 25 Oct 2011 11:36:10 -0500

A few days ago (October 17), the Mobile Marketing Association released its MMA Mobile Application Privacy Policy, which the MMA asserts is the first industry guideline to deal with data protection and privacy specifically related to mobile and wireless applications. The guideline being made available for comment is slated to be finalized sometime after November 18, 2011, when the MMA’s comment period is scheduled to close. The press release notes that there are currently more than 425,000 iPhone/iPad apps available from Apple’s App Store, and more than 200,000 available for Android.

The document is intended to deal with some of the basic privacy principles and text that developers should consider incorporating into mobile apps to let consumers know how their data is collected and used, as well as information regarding confidentiality and the security of information that becomes available when a consumer installs and uses a mobile app. Obviously, legal disclaimers and disclosures and issues related to privacy and data protection are quite jurisdiction-specific, and compliance will always require consultation with legal counsel to be sure mobile, and all other online and other applications and processes, conform to the legal requirements of each jurisdiction that applies to consumers for that application or process.

Reed Smith’s offices around the world are open, coordinating with our Advertising Technology & Media law practice group, ensuring that lawyers knowledgeable in data protection and privacy, as well as in mobile technology and marketing, are available to help you. As always, if you want to know more about how lawyers who understand can help your business, feel free to contact me, Joe Rosenbaum, or any of the Reed Smith attorneys with whom you regularly work.