Reporting Computer, Internet-related or Intellectual Property Crime

By: Paul B. Overhauser  Publisher: Indiana Intellectual Property Law News

Internet-related crime, like any other crime, should be reported to appropriate law enforcement investigative authorities at the local, state, federal, or international levels, depending on the scope of the crime. Citizens who are aware of federal crimes should report them to local offices of federal law enforcement.

A guide to reporting intellectual property crime:

Type of Crime  Appropriate federal investigative law enforcement agencies 
Copyright piracy
(e.g., software, movie, sound recordings)
Trademark counterfeiting
Theft of trade secrets/Economic Espionage

 

The U.S. Department of Justice has also produced a guide, “Reporting Intellectual Property Crime: A Guide for Victims of Counterfeiting, Copyright Infringement, and Theft of Trade Secrets,” available as a PDF file. This guide is contained in Appendix C of the Report of the Department of Justice’s Intellectual Property Task Force (October 2004). The guide also contains the following checklists for reporting intellectual property crime to law enforcement:

Checklist for Reporting a Copyright Infringement or Counterfeit Trademark Offense (PDF)
Checklist for Reporting a Theft of Trade Secrets Offense (PDF) 

Other government initiatives to combat cybercrime include:

National Intellectual Property Rights Coordination Center

The IPR Coordination Center’s responsibilities include:

  • Coordinating U.S. government domestic and international law enforcement activities involving IPR issues.
  • Serving as a collection point for intelligence provided by private industry, as well as a channel for law enforcement to obtain cooperation from private industry (in specific law enforcement situations).
  • Integrating domestic and international law enforcement intelligence with private industry information relating to IPR crime, and disseminating IPR intelligence for appropriate investigative and tactical use.
  • Developing enhanced investigative, intelligence and interdiction capabilities.
  • Serving as a point of contact regarding IPR law enforcement related issues.

The STOP Initiative (www.stopfakes.gov):

The stopfakes.gov website provides information to consumers and businesses on intellectual property, including information on how to report trade in fake goods.

Those with specific information regarding intellectual property crime can submit an IPR Coordination Center Complaint Referral Form.

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By: Paul B. Overhauser, Publisher, Indiana Intellectual Property Law News

Overhauser Law Offices, LLC provides intellectual property services including patents, trademarks, copyrights and infringement litigation. Whether you’re an entrepreneur launching your first invention or a corporation looking for a litigation specialist, we have the legal experience to meet your goals.

To learn more about how Overhauser Law Offices can help you, browse our website to meet our lawyers and peruse our practice areas.  Then contact us, and we’ll put our expert team to work for you.

© 2015

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Blog, Intellectual Property Blog0 Comments

Law Tips: Smoking Guns; 3 Ways Technology has Changed Employment Law

Technological advancements such as email and the virtual office have made life easier, for sure! But these conveniences can carry challenges. Certain areas of law, such as employment law, are impacted directly by these changes in the technology arena. Our latest Law Tips participant, Danuta (Donna) Bembenista Panich, of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, is acutely aware of these effects on the practice of employment law. Ms Panich has been an employment law practitioner for more than 35 years and serves as chair of Ogletree Deakins’ Record Retention and E-Discovery Practice Group. I appreciate her sharing with Law Tips readers background on the “smoking guns” she encounters and the prudent advise she offers employers:

Clearly, the advent of computers and the intemet was technology change of proportions not experienced by anyone who graduated from law school after 1995. But I want to focus here on more recent, incremental changes in technology that have substantively altered employment law, as well as materially affected its practice:

  1. The virtual office
  2. Mobile communications devices
  3. Electronic communication and messaging systems
  4. Social media
  5. Big data (aka centralized databases).

Individually or in combination these advances in technology have affected employment law in at least the six ways discussed here.

I. “Off The Clock” And “Refusal To Accommodate” Claims Are Proliferating.

The virtual office has greatly expanded the ability to work from home and outside regular hours. There are positive effects flowing from the flexibility this creates: flex-time makes employees happier and makes it easier to balance work and family needs. But blurring the lines between workplace and home and on-duty/off-duty time also creates employment issues. The ability to work remotely opens the door to more accommodation claims under the Americans with Disabilities Act. The requirement to work specific hours from the confines of an office is harder to justify in today’s virtual environment. Similarly, that environment makes it far more difficult to argue against flexibility when requested by a pregnant employee, thus increasing the likelihood of Title VII liability. Prudent employers should carefully consider whether such accommodations are workable, rather than assuming they are not.

Because working from home/outside regular hours is difficult to supervise/control, the virtual office, particularly when coupled with mobile communications devices, can result in some challenging off the clock claims under state and federal wage and hour laws. If an employee checks email, or looks at a work order from a car or home, is that time compensable? And if it is compensable, does it prematurely start or extend the continuous workday?

Employers should be very deliberate in establishing and enforcing policies in order to avoid liability for unintended work time. This is particularly true since date and time stamping of all computer-related activities has provided a ready means of measuring time outside the confines of a time-clock. This ability makes proof of lost time far easier and more accurate. It concurrently increases the burden on the employer who must locate, reserve, and produce the data. In combination, these factors enhance the plaintiff employee’s chance to turn his claim into a class or collective action while also improving his or her settlement posture.

II. The Number Of “Smoking Guns” Have Increased Because We Have Changed The Formality And Frequency With Which We Communicate In Written Form.

People treat email, text messages, tweets and other electronic communications as the equivalent of oral communications. They blurt out whatever comes to mind, pay little attention to whom they direct their communications, and fail to proofread.

Electronic communication has also become a substitute for oral communication. People used to “tell” off-colored jokes to a small well-defined group. Now they broadcast them in written form, for endless redistribution. The result? The number of EEO and retaliation cases continues to grow. Nor is there any diminution in the percentage of cases found meritorious. Given the fact that 50 years of operation under equal opportunity laws must have resulted in less, not more, overt discrimination, one can only conclude that the proliferation of smoking guns has contributed to the seemingly inverse results. Employers should redouble efforts to sensitize employees to these dangers, and might wish to consider new rules on appropriate use of electronic communications.

Poor communication hygiene has also dramatically changed litigation practice. The plaintiff focuses on all forms of electronic communication as the richest potential source of helpful evidence – even if there is no true smoking gun, it is a rare case that does not include problematic or at least embarrassing electronic communications. Defense counsel’s witness preparation takes on a whole new dimension of scouring the record for any potentially harmful remark, and ensuring that the witness is cognizant of, and prepared to explain, all his/her linguistic faux pas. (Plaintiffs preparation should be similarly rigorous.)

III. Metadata and Big Data Create Unprecedented Transparency

Metadata – information about information – sometimes makes guilt or innocence irrefutable. For example, in a retaliation claim, the create date of a document in which the plaintiff’s termination from employment is discussed and agreed upon may prove beyond doubt that the decision was made before a protective activity occurred.

Conversely, metadata reflecting deletion of files, access to files, sending files, or the date of certain communications may prove the violation of a non-compete agreement or the theft of trade secrets.

Big data allows an employer to track every moment of an employee’s workday and every activity of the employee. Performance and productivity can be measured with astonishing precision both in and out of the office. The positive effects in the employment environment are that neither employees nor employers can avoid accountability and subjectivity and selective memory are removed from the decisional process. The negative impacts are greater job stress, less interdependence, trust, and loyalty. From the practitioner’s perspective, the results are more claims, more hard evidence, but less institutional knowledge and client loyalty.

Let’s take a break at this point in Donna Panich’s discussion of issues presented to employment law practitioners by technological change. But stay tuned! In next week’s Law Tips she talks about the alterations in such areas as asymmetrical discovery and the tracking of cross-country incidents.

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About our Law Tips faculty participant:
Danuta (Donna) Bembenista Panich, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, has a varied practice dealing with all aspects of labor and employment law. However, since 1995, she has focused primarily on defending employers – including many of the nation’s largest companies – in class actions, multi-plaintiff and collective actions, pattern and practice claims, and other “bet the company” matters such as investigations of catastrophic industrial accidents. Ms. Panich has dealt extensively with electronic discovery and litigation preparedness. Since she joined Ogletree Deakins in 2007, she established, and has since served, as chair of Ogletree Deakins’ Record Retention and E-Discovery Practice Group.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Blogs, Law Tips0 Comments

I.P. Blog: Vizio Accused of Spying on Users of its Smart TVs, Selling Ill-Gotten Data

By: Paul B. Overhauser  Publisher: Indiana Intellectual Property Law News

Hammond, Indiana – Plaintiff Stanley Pagorek of Dyer, Indiana filed an intellectual property lawsuit in the Northern District of Indiana alleging that Vizio, Inc. of Irvine, California and Cognitive Media Networks, Inc. of San Francisco, California monitor, track and report viewing habits and information about devices attached to home networks for profit. Pagorek seeks class-action status for this Indiana litigation.

Defendant Vizio produces and sells internet-capable televisions. It also offers audio and entertainment products, including sound bars, tablets, DVD players and Blu-ray players. Vizio has a controlling stake in Defendant Cognitive, an advertising company.

Defendants are accused of surreptitiously including tracking software on more than 10 million Vizio high-definition, internet-connected televisions (sometimes known as “smart TVs”). The functionality of the software includes Cognitive’s content-recognition capabilities.

According to the lawsuit, filed by intellectual property lawyers for Pagorek and the putative class, the tracking software is activated by default, most customers would not be made aware of it in the process of setting up their TVs and, for those who were, disabling the software is less than intuitive. The software enables Vizio to monitor and identify the viewing habits of those smart TV customers. The complaint also indicates that the analysis done by the tracking software enables Vizio to infer with reasonable certainty which person is watching what programming.

That information is then provided to third-party advertisers and content providers. Those third parties are then able to customize the advertising and other content displayed to the smart TV customers not only on the Vizio smart TV, but also on any other “smart” device, such as smartphones, tablet computers, laptop computers and desktop computers, that is connected to the same internet protocol address as the Vizio smart TV.

In this complaint, the following is alleged:
• Count One: Violations of the Video Privacy Protection Act (18 U.S.C. § 2710)
• Count Two: Violation of the Prohibition of Disclosure by Persons Providing Video Recording Sales or Rentals Without Written Consent (Cal. Civ. Code § 1799.3)
• Count Three: Violation of California’s Unfair Competition Law (Cal. Civ. Code § 17200, et seq.)
• Count Four: Violation of California’s Consumer Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.)
• Count Five: Indiana Deceptive Consumer Sales Act (Ind. Code §§ 24-5-0.5, et seq.)
• Count Six: Unjust Enrichment
• Count Seven: Fraud by Omission
• Count Eight: Breach of the Implied Warranty of Merchantability
• Count Nine: Violation of the Electronic Communications Privacy Act (18 U.S.C. § 2511)

Plaintiff Pagorek, on behalf of himself and the other members of the proposed class, requests damages, injunctive relief, interest, attorneys’ fees and costs.

The case was assigned to Judge Jon DeGuillio and Magistrate Judge Paul R. Cherry in the Northern District of Indiana and assigned Case No. 2:15-cv-00472-JD-PRC.

Complaint

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By: Paul B. Overhauser, Publisher, Indiana Intellectual Property Law News

Overhauser Law Offices, LLC provides intellectual property services including patents, trademarks, copyrights and infringement litigation. Whether you’re an entrepreneur launching your first invention or a corporation looking for a litigation specialist, we have the legal experience to meet your goals.

To learn more about how Overhauser Law Offices can help you, browse our website to meet our lawyers and peruse our practice areas.  Then contact us, and we’ll put our expert team to work for you.

© 2015

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Intellectual Property Blog0 Comments

Negotiation Blog: See Value of Face-to-Face Meetings

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“Why should we negotiate face-to-face? Isn’t it more efficient to text, e-mail or even pick up the phone?”

I get asked this a lot. And I often end up recommending a face-to-face meeting. Why? Here are my Top 5 Reasons to Negotiate Face-to-Face.

1: Easier to get a “yes”
It’s much easier to say “no” by text or e-mail or even the phone than it is in person. If you want a “yes,” meet face-to-face.

Sophisticated sales professionals know that if they can get a face-to-face meeting with a prospect, it’s a big deal. It doesn’t guarantee a “yes,” but it moves you strongly in the right direction.

2: Better at building rapport and relationships
Some can masterfully build rapport and relationships online through texts, e-mail and social media. Doing this is a real art.

More folks, however, excel at relationship and rapport-building in person. For most, it’s just easier to build relationships face-to-face than electronically.

Of course, this may be generational. Kids today are growing up with an intravenous connection to their smart phones. So this might be changing.

But for the business professional now, you can’t duplicate the rapport and relationship-building opportunity of a face-to-face meeting, especially early in a negotiation.

3: More effectively read non-verbal signals
Researchers estimate the human face can project more than 250,000 different expressions.

Non-verbal signals like facial expressions and body language, plus tone, and even elements of sincerity and truthfulness, can only be evaluated in person or, to a lesser degree, by phone.

In a recent New York Times article M.I.T. professor Sherry Turkle, author of “Reclaiming Conversation: The Power of Talk in the Digital Age,” notes that technology was a significant factor in research finding a “40 percent decline in empathy among college students, with most of the decline taking place after 2000.”

Effectively exhibiting empathy and accurately reading the non-verbal signals of others are crucial skills in most negotiations – and don’t really take place except in face-to-face settings.

4: Lessens likelihood of miscommunication
How many of us have jumped to inaccurate conclusions about another’s intent or position based on a text or e-mail? It’s easy to do this.

If we were in a face-to-face meeting and weren’t sure of a person’s meaning, many naturally would ask “what do you mean?”

This immediate interactivity and ability to instantaneously explore a person’s meaning or fundamental interests can be crucial in negotiations. Yet this is often lost or less likely to occur when communicating electronically.

5: Increase efficiency
Finally, e-mail and text inherently seem more efficient than meeting in person. Just write and send, right?

Yet sometimes we go back and forth with e-mails and written offers and counters, sometimes taking weeks to narrow the gaps and resolve the issues.

That same back-and-forth process can often be accelerated and more efficiently conducted in person, which is a major benefit of mediation (an in person negotiation with an independent third party mediator who effectively manages the process.)

Now don’t get me wrong – I am a big fan of texting, e-mail and the extraordinary benefits of new technology (check out my column next month on my Top Five Reasons to Negotiate through Technology).

But there’s a time and a place to negotiate through technology, and a time and a place to meet in person.

Latz’s Lesson: Next time you start typing a significant e-mail to your counterpart, consider instead an in-person meeting. You might just grab that next flight out.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Negotiation/Mediation Blog, News0 Comments

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