Internet – A Right to be Forgotten?

            Last year, on May 13, 2014, the Court of Justice of the European Union (CJEU) issued its ruling in Google Spain SL and Google Inc. v Agencia Española de Protecciónde Datos (AEPD) and Mario Costeja González ("Case").  In that case, the CJEU found that Google was a data controller under EU law (see Case, para 41), and therefore should remove links from its search engine to articles relating to Mr. González's home foreclosure because the proceedings had been resolved. 

            The finding that Google should remove links has been coined a "right to be forgotten."  However, that is an oversimplification because there is no literal right to be forgotten.  Rather, E.U. citizens may have a right to have certain information delisted from a search engine results when the citizen can show that the information is "inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed".  See Case, para 94.  However, if the citizen plays a role in public life, then the right can be curtailed.  See Case, para 97.

            It is important to note that the right to delist from a search engine does not mean that the material from the original source has been deleted.  See Working Party Guidelines, at p.2.  Rather, it makes finding information about a particular subject much more difficult.

- Henry Park

Unlocking Your Cell Phone

             In the U.S., most cell phones are "locked" to a cellular carrier because the phones are sold with a subsidy in exchange for a service plan, and the carriers wanted to ensure that the phones were used long enough on their networks to recoup the subsidy.  The "lock" is software that prevents the phone from being used with another carrier's SIM card.

            Under the Digital Millennium Copyright Act ("DMCA"), circumventing technologies that control access to copyrighted works, such as the software "lock" on cell phones, is prohibited.  See 17 U.S.C.1201(a)(1)(A).  Thus, it is illegal for a person to circumvent the software lock or "unlock" their cell phone without the permission of their cellular carrier.  However, the DMCA gave the Library of Congress the ability to grant three-year exemptions to the circumvention prohibition. See 17 U.S.C. 1201(a)(1)(C).  In 2006 and 2009, the Librarian of Congress granted an exemption for cell phone unlocking.  However, in 2012, the Librarian did not renew the exemption.

            The Librarian's decision led Congress to pass the "Unlocking Consumer Choice and Wireless Competition Act" which was signed into law by President Obama on August 1, 2014.  See Pub. L. 113-144.  This law repealed the Librarian's 2012 decision to not grant an exemption for cell phone unlocking and reinstated the exemption.  See Pub. L. 113-144, section 2(a).  The law, however, did not make the exemption permanent.  Rather, the 2009 exemption was reinstated and will be reviewed  at next rulemaking this year in 2015. See Pub. L. 113-144, section 2(b).  In is possible that as a result of the 2015 rulemaking, the Librarian could determine that the exemption for unlocking cell phones should not be renewed again.  Thus, the exemption could be short lived.  But, given the support of Congress, the President, the FCC, and the thousands of people who petitioned to have reverse the Librarian, it is unlikely that the exemption will not be renewed.

            Additionally, at roughly the same time, the Federal Communications Committee("FCC") wrote to the CTIA-The Wireless Association, which represents the wireless communications industry, about making its unlocking policies consumer friendly.  The CTIA and five major cellular carriers (AT&T, Sprint Corporation, T-Mobile USA, U.S. Cellular, and Verizon Wireless) eventually agreed to six guidelines for unlocking of cell phones and tablets.

(1) Disclosure. Each carrier will post on its website its clear, concise, and readily accessible policy on postpaid and prepaid mobile wireless device unlocking.

(2) Postpaid Unlocking Policy. Carriers upon request, will unlock mobile wireless devices or provide the necessary information to unlock their devices for their customers and former customers in good standing and individual owners of eligible devices after the fulfillment of the applicable postpaid service contract, device financing plan, or payment of applicable early termination fee.

(3) Prepaid Unlocking Policy. Carriers, upon request, will unlock prepaid mobile wireless devices no later than one year after initial activation, consistent with reasonable time, payment or usage requirements.

(4) Notice. Carriers that lock devices will clearly notify customers that their devices are eligible for unlocking at the time when their devices are eligible for unlocking or automatically unlock devices remotely when devices are eligible for unlocking, without additional fee. Carriers reserve the right to charge non-customers/nonformercustomers with a reasonable fee for unlocking requests. Notice to prepaid customers may occur at point of sale, at the time of eligibility, or through a clear and concise statement of policy on the carrier’s website.

(5) Response Time. Within two business days after receiving a request, carriers will unlock eligible mobile wireless devices or initiate a request to the OEM to unlock the eligible device, or provide an explanation of why the device does not qualify for unlocking, or why the carrier reasonably needs additional time to process the request.

(6) Deployed Personnel Unlocking Policy. Carriers will unlock mobile wireless devices for deployed military personnel who are customers in good standing upon provision of deployment papers.

Further, the carriers agreed to enact all six guidelines within 12 months from February 11, 2014 (i.e., by February 11, 2015).  Thus, even if the Librarian should not renew the exemption, it appears the cellular industry will abide by their guidelines and continue to unlock your cell phone.

Notes:

1.         The exemption currently only applies to cell phones.  The Librarian is to consider whether to extend the exemption to other wireless devices.

2.         Unlocking a cell phone does not mean that it will work on other cellular carriers because different carriers use different technologies (GSM v. CDMA) and wireless spectrum bands.

3.        Verizon 4G LTE devices are not locked and can be used on other carriers.  There is no lock because when Verizon won licenses for the 700 MHz band of spectrum, the licenses had certain open-access rules from the FCC requiring that a consumer must be able to use any device and any lawful application on the networks.  In response, Verizon decided not to lock devices that access that spectrum.

 - Henry Park

updated on 2/13/15 to revise the first and second paragraphs
updated on 4/9/15 to change the font

USPTO and Java v8 update 31

    If you are like me, you haven't upgraded to the latest version of Java because you (1) don't want to upgrade to an incompatible version of Java and create issues with your work computer, and (2) you aren't sure which version of Java is compatible with the USPTO's PAIR and EFS-Web services.

    I just talked with an Electronic Business Center representative, and he told me that they are compatible with the Java version 8 update 31.  He also told me to download the new version of Java from the Java.com website.

    Happy upgrading.

- Henry Park

Interstate Moves – Beware the Carmack Amendment

            If you are moving across state lines and using a moving company, you need to know about the Carmack Amendment (49 U.S.C. § 14706).  The Amendment will affect your ability to recover monetary damages from the moving company should your goods be damaged in transit.

            The Amendment established uniform federal liability guidelines for interstate carriers.  In doing so, it made recovering damages simpler because it made a carrier strictly liable up to the actual loss or damage to the shipped goods.

            The Amendment, however, also provides some tangible benefits to the carriers. 

1.             It preempts state common law claims against an interstate carrier related to shipped goods that are damaged or lost.  See Missouri, K. & T.R. Co. of Tex. V. Harris, 234 U.S. 412, 420 (1914).  Certain jurisdictions have interpreted broadly Carmack preemption.  See Hoskins v. Bekins Van Lines, 343 F.3d 769, 777 (5th Cir. 2003) (holding common law claims of outrage, intentional and negligent infliction of emotional distress, breach of contract, breach of implied or express warranty, violation of state consumer protection law, slander, misrepresentation, fraud, negligence and gross negligence, and violation of the common carrier's statutory duties as a common carrier under state law preempted); Hughes v. United Van Lines, Inc., 829 F.2d 1407 (7th Cir. 1987) (holding common law claims of negligence, breach of insurance contract, breach of contract of carriage, conversion, intentional misrepresentation, negligent misrepresentation, and negligent infliction of emotional distress preempted).  However, certain jurisdictions have held that some types of claims survive the Carmack Amendment's preemption.  See Smith v. United Parcel Service, 296 F.3d 1244 (11th Cir. 2002) (acknowledging that "separate and distinct conduct rather than injury must exist for a claim" not to be preempted);  Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377 (5th Cir. 1998) (acknowledging that claims "separate and apart from those resulting directly from the loss of shipped property" would not be preempted);  Gordon v. United Van Lines, 130 F.3d 282 (7th Cir. 1997) (holding claim for intentional infliction of emotional distress is not preempted); Rini v. United Van Lines, Inc., 104 F.3d 502 (1st Cir. 1997) ("a claim for intentional infliction of emotional distress alleges a harm to the shipper that is independent from the loss or damage to goods and, as such, would not be preempted").

2.             It allows a carrier to limit the amount of time for a filing a claim (49 U.S.C. § 14706(e)).  A carrier may require any claims be brought within nine months.

3.             It allows a carrier to limit the amount of the liability.  To limit its liability, a carrier must have offered the shipper a reasonable opportunity to choose between two or more levels of liability.  On moving contracts, the choice typically appears between "full (replacement) value", which costs additional money, or "waiver of full (replacement) value protection", which is free but only provides protection equal to 60 cents per pound.  Thus, under the latter choice, an audio component worth $500 and weighing 20 pounds would be covered for $12.00.

            Thus, your choice as to the amount of liability protection is very important because, if something should happen to your goods during the move, your ability to recover damages will be limited by the Carmack Amendment.

- Henry Park

[updated on January 30 and 31, 2015 to clarify scope of preemption]

Happy Holidays

Wishing everyone the brightest and merriest of holidays.

Happy Thanksgiving

The Law Office of Henry Park, PC wishes everyone a Happy Thanksgiving.

Internet – Getting a domain name registrant to correct their false registration information

             Domain name registrants or owners are supposed to provide accurate and correct registration information, such as address, telephone number and e-mail address.  However, registrants often enter false mailing address and telephone number information because it increases the difficulty of finding the domain name registrant.  Fortunately, domain name registrars will help you correct any inaccurate registrant information.

            Domain name registrars require as part of their registration agreements that registrants provide current and accurate.  For example, GoDaddy's Domain Name Registration Agreement at Section 4 (emphasis added)

You [the registrant] agree to notify Go Daddy within five (5) business days when any of the information you provided as part of the application and/or registration process changes. It is your responsibility to keep this information in a current and accurate status. Failure by you, for whatever reason, to provide Go Daddy with accurate and reliable information on an initial and continual basis, shall be considered to be a material breach of this Agreement and a basis for suspension and/or cancellation of the domain name.

The initial and continuing requirement exists because domain name registrars must maintain a public database -- the WHOIS database -- that "is available to be searched by the members of the public in order to allow rapid resolution of technical problems and to permit enforcement of consumer protection, trademark, and other laws." See Whois Data Reminder Policy (WDRP) FAQs For Domain Name Registrants, at "What is a Whois Record? What is my duty to keep the information in the record current?"  

            Thus, when a domain name registrar is informed that a registrant has entered false information, they will attempt to contact the registrant to obtain corrected inaccurate information.  If the registrar can reach the registrant, then the information will be updated and you will have an accurate contact information for the registrant.  If the registrar cannot reach the registrant, then the registrar will suspend or cancel the domain name until the registrant contacts the registrar and updates its contact information.

 

- Henry Park