SCENES A FAIRE

“Scenes a faire” is neither the title of a French ” New Wave” film nor is it a description of French President Francois Hollande’s personal life, in which he had four children with a fellow Socialist politician, then dated a reporter for the magazine, Paris Match, who moved into the Presidential Palace with him, during which time had an affair with a French Actress. No, it is a doctrine of copyright law which holds that there are “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978). Similarity of expression, whether literal or nonliteral, which necessarily results from the fact that the common idea is only capable of expression in more or less stereotyped form will preclude a finding of actionable similarity. Such stock literary devices are not protectable by copyright.

So, while a plaintiff may prove copying by showing that a defendant had access to plaintiff’s work and that the two works are substantially similar, under the above doctrine, that plaintiff may not be eligible for relief for copyright infringement if the alleged similar aspects of both works are Scenes a Faire.

The courts have been very specific in various cases in identifying what qualifies as these. In Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978), the court listed a number of types of incidents that are not copyrightable in a slave story; attempted escapes, flights through the woods pursued by baying dogs, the sorrowful or happy singing of slaves …. scenes portraying sex between male slave owners and female slaves and the resentment of female slave owners … slave owners complaining about the high price of slaves ….

In a case involving the classic video game, “Asteroids,” the court wrote, “There are certain forms of expression that one must necessarily use in designing a video game in which a player fights his way through space rocks and enemy spaceships. The player must be able to rotate and move his craft. All the spaceships must be able to fire weapons which can destroy targets. The game must be easy at first and gradually get harder, so that bad players are not frustrated and good ones are challenged. Therefore, the rocks must move faster as the game progresses. In order for the game to look at all realistic, there must be more than one size of rock. Rocks cannot split into very many pieces, or else the screen would quickly become filled with rocks and the player would lose too quickly. All video games have characteristic sounds and symbols designed to increase the sensation of action. The player must be awarded points for destroying objects, based on the degree of difficulty involved. All these requirements of a video game in which the player combats space rocks and spaceships combine to dictate certain forms of expression that must appear in any version of such a game. In fact, these requirements account for most of the similarities between “Meteors” and “Asteroids.” Similarities so accounted for do not constitute copyright infringement, because they are part of plaintiff’s idea and are not protected by plaintiff’s copyright. See Atari, Inc. v. Amusement World, Inc., et al., 547 F.Supp. 222 (D. Maryland 1981).

In a case involving a film script, Muller v. Twentieth Century Fox Film Corporation, 794 F.Supp.2d 429 (S.D.N.Y. 2011), that court wrote that “certain literary or cinematographic elements are not protected even if they take the form of concrete expression, such as ‘stock’ themes or ‘scenes a faire.” Id. “Stock themes, or themes that are “commonly linked to a particular genre,” are only protected under copyright law “to the extent they are given unique…expression in an original creation.” Examples in a film or film script depicting a poor crime-ridden neighborhood would include images of drunks, prostitutes, rodents and abandoned cars, and such features, the court held were unprotectable “scenes a faire.” Muller, at 441.

As to Barbie, in a Second Circuit case, Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133 (2004) involving the copyright infringement of the “Barbie doll,” the court wrote in dictum that “Mattel’s copyright in a doll visage with an upturned nose, bow lips, and widely spaced eyes will not prevent a competitor from making dolls with upturned noses, bow lips, and widely spaced eyes, even if the competitor has taken the idea from Mattel’s example, so long as the competitor has not copied Mattel’s particularized expression. An upturned nose, bow lips, and wide eyes are the “idea” of a certain type of doll face. That idea belongs not to Mattel but to the public domain.”

And in a 2013 case, Rucker v. Harlequin Enterprises, decided by the United States District Court in Houston, that court identified numerous instances of scenes a faire, for example, “[C]onspiracies, characters with superhuman qualities, and advanced technology . . . are unoriginal and uncopyrightable stock elements of the action-adventure and science fiction film genres,” “shared characteristics of both parties’ Santa toys of a “traditional red suit and floppy cap, trimmed in white, black boots and white beard” and “nose like a cherry” are common to all Santas and not probative of copying,” and “a beautiful woman and a handsome, wealthy man fall in love, become estranged, find themselves alone together in close quarters, have a passionate reunion, rediscover their love and commitment, and begin a new life together…are familiar plot elements in the romance genre and would be scenes à faire.

In addition, “cliched language, phrases, and expressions conveying an idea that is typically expressed in a limited number of stereotypical fashions are not protectable in and of themselves.” See Green v. Lindsey, 885 F. Supp. 469 (S.D. N.Y. 1992.)

The Scenes a Faire doctrine can therefore be a defense to a claim of copyright infringement if the alleged copied elements are not sufficiently creative as to be protectable. And another example where federal judges act as critics.

 

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LOGO DESIGN PSYCHOLOGY

See the following infograph:

http://webmag.co/logo-design-psychology/?utm_source=websitemagazine&utm_medium=email&utm_campaign=newsletter

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Acquiring and Maintaining a Trademark

Apple Store Trademark Registration

Frank Lloyd Wright Home

 

Acquiring and maintaining a trademark is much like purchasing and maintaining a home. Before they purchase a home, reasonable buyers will have it inspected. That inspection will, among other items, check the electrical system to see if it is safe and has sufficient capacity for the buyer’s needs, test the HVAC system to see if it is working properly and how long its useful life is, check the roof to make sure that it keeps the elements out and how long it will last, check the plumbing and drainage for leaks and make sure that it functions correctly; and in some areas of the country, inspect for termites and check to make sure that the home is not in a flood plain. The buyer will also have an appraisal done, comparing that house with comparable homes in the same area to confirm that it is priced correctly. Then after they buy that home, they will have to maintain it; fix the fence, maintain the yard, repair the shingles, insulate the windows, replace the appliances, etc.

Intellectual property is like a home. While it is different in that it is intangible property, it is property nevertheless, has value and, like a home, once you purchase it, you need to maintain it to maintain its value.

Trademarks may be generic. “Computer” would be a generic trademark for a computer. They may be descriptive. “Raisin Bran” would be a descriptive trademark for a cereal containing raisins and bran. They may be suggestive. “Roach Motel” would be a suggestive trademark as, while the product is a place that you want roaches to stay in, they generally don’t check out as they would in a motel. They may be arbitrary. “Apple” would be an arbitrary mark for a computer as would be “MacIntosh” and a fanciful mark would be “Exxon” or “Clorox,” i.e., a made-up word.

Just like homes, certain trademarks would be appraised as having more value than others. Since a generic trademark can’t be protected; anyone can use it, it would have little or no value for your use as a brand as competitors could use the same term and, therefore, you could never achieve brand recognition for it. A descriptive trademark cannot be registered with the United States Patent and Trademark Office without proof that the relevant purchasing public has come to see that mark as identifying a single source for a product or service. [The advantages of federal registration are that it is prima facie evidence of the validity of that registered mark, the registrant’s ownership of that mark, and of its exclusive right to use that mark throughout the U.S. as well as gives the registrant the right to sue for infringement in federal court. Also, anyone seeking to register a similar mark in the U.S. will find your trademark application or registration in the records of the U.S. Patent and Trademark Office, which should encourage them not to adopt and use a similar mark for similar goods or services.] Therefore, a descriptive mark could best be described as a fixer-upper. Ten years ago, Kellogg’s owned a federal trademark registration for KELLOGG’S RAISIN BRAN and General Mills owned a federal trademark registration for GOLD MEDAL RAISIN BRAN. Both companies were required by the Patent Office to disclaim exclusive rights to the term, RAISIN BRAN, on the ground that that term was descriptive, Like a fixer-upper home, the owner of a descriptive trademark needs to put substantial money into marketing its goods and services under that brand to the point that the relevant purchasing public has come to associate that mark with them and not as a merely descriptive term and to the point that a court or the Patent Office would concur. Like a fixer-upper home, that effort could turn into a money pit and the trademark owner might never reach that goal. Selecting a suggestive mark is like buying a house in a subdivision where property values are stable. You can get a solid house for a very good price, a registrable trademark, that doesn’t require a lot of work to keep up. Since it suggests a quality of your goods, the mark itself, without anything more, will aid in the marketing and selling of your product; you can throw it on a store shelf and with the right label, like a white picket fence, a well-tended lawn and a fresh coat of paint, it will attract buyers. But, like that house in that subdivision, every third house will be pretty much the same, with the result that in the trademark world, there are likely to be similar marks out there, giving you only narrow protection for your mark. Like a house, should you want to sell, if there are other houses in that subdivision that area for sale at the same time, your house is likely to be on the market for a while.

Now an arbitrary or fanciful mark is a different matter. Like a distinctive house, you may have to put some work into it, e.g., a house designed by Frank Lloyd Wright like the one depicted above, but unlike that generic fixer-upper, once you do that, the end result may be one of a kind and worth millions. You are going to have to spend money creating a brand that people will find instantly identifiable and that evokes a particular positive impression in buyer’s minds. Consider what Steve Jobs did when he returned to Apple to create the iMac, the iPhone as well as the interior of the Apple Store. He created products that did not look like any other competitors’ products out there, and, which, while they may not have had some of the features that those other products had, like a fine architect, created a reputation for design that made you want to own those products. It took a great deal of talent and money to get there but today Apple is #1 on Forbes Most Valuable Brands List and is worth close to three-fourths of a trillion dollars.

So, before you select a trademark, remember that intellectual property is like real property. If you do a home inspection or trademark search first to make sure that it is a good property, put money into it to maintain it; you need to police your trademark, watch for copycats and enforce your rights against them by demanding that they cease and desist their use of similar marks for similar products or services, and, start off with a distinctive design (or name), its resale value will be good.

And if you have a very good trademark attorney and a very good architect you can create both a valuable architecturally distinctive building and a valuable distinctive trademark at the same time. See U.S. Trademark Registration #4,277,914 for the design of the Apple Store, above.

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E-mail Laws Around the World

See http://webmag.co/email-laws-around-the-world/

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SECURING YOUR DATA

Yesterday, the Wall Street Journal had an entire section devoted to Information Security. With that in mind, I thought I’d reprint my own post from last October containing some helpful hints in that regard:

How do you, with a cell phone ensure that the images one takes on one’s phone or, any information that you input onto that phone or your computer; everything from your texts and e-mails, your vacation plans, your financial information, your sources, if you’re a journalist, or your briefs, if you’re a lawyer, stay private.

Which brings us to you and me. On August 6th of this year, Molly Wood, the technology columnist for the New York Times, reported that hundreds of millions of email addresses and other types of personal identification were found in the hands of Russian hackers. She wrote, assume that your personal information is stolen, and recommended that you change your password for sites that contain sensitive information like financial or credit card data.

Here lies the conundrum. If you log in to a typical site that holds financial or credit card data, that site will usually pose a series of security questions such as “Where did you go on your honeymoon?,” “What is the name of your dog?,” “What was the first car that you owned?,” “In what hospital were you born?,” “What was the name of your elementary school?” or “What city would you like to visit?” Now go to your Facebook profile or page. There you will likely find the name of your hometown, pictures of your dog and maybe your vacation photos. Now, let’s recall how Jennifer Lawrence’s photos were obtained; through a targeted attack on user names, passwords and security questions. Unless you grew up in New York City, a hacker could easily run through the names of the elementary schools in your hometown, if he could find your birthplace, he could easily run through the names of the hospitals there; I haven’t lived in Washington D.C. in many years and I can still identify the names of eight hospitals located there at the time that I lived there. If someone can get on your Facebook page, they could probably find out the name of your dog and from your photos what city you would like to visit. So a brute force attack could probably get through the bar posed by your security questions. As for your password, it is suggested that it not be based on dictionary words and that even a word obscured with symbols and numbers can be cracked relatively quickly. So use a password like 4J@2stiI. That’s a great idea….now try to remember it and use a different similarly designed password for Google, Twitter, Instagram, Facebook, your bank, your investment account, Uber, etc. Unless you’re an idiot savant, I doubt that you can. So Molly Wood suggests using a password manager; i.e., a site that creates a unique password for each website you visit and stores them in a database protected by a master password that you create. Here, I must disagree with Ms. Wood. Would you hand over the keys to your home to someone who knocks on your door and promises that he’ll take care of your house? I doubt it. People ensure the security of their home to either companies with a long-standing reputation for safety like ADT (They’ve been around since 1874.) or leave their keys with a trusted neighbor or relative whom they know very well. The value of your investment account or bank account or personal reputation, all of which may be accessed by someone with your password, may be much greater than that of your house. Would you leave your password with a company that may not be around in three years? Even the most innocent photo that you put in your iCloud account or Google Drive may not be so innocent if you’re pictured associating with someone about whom someone might draw the wrong inferences, for example, an attractive colleague at work or someone who is later indicted, e.g., an Illinois politician.

So, what should you do?

1.Pick a strong password with a combination of numbers and letters, capitals and small letters and punctuation marks that you can remember. Use at least eight or more characters. Don’t use the same user name/password combination for multiple websites.

2. Play with the security questions. For example, you went to Pyongyang on your honeymoon, your dog’s name is FreddyMercury, the first car that you owned was a Tucker, your were born in the Damascus Hospital for the Criminally Insane, your elementary school was the Chernobyl grammar school and the city you’d most like to visit is Mogadishu. Answers like these will be more difficult to guess than if your dog’s name was Fluffy, your first car was a Ford, you were born in St. Joseph’s Hospital and the city you’d most like to visit is Paris. Don’t everyone use these examples or the won’t work.

3. Use two-factor authentication. This works with Google. If someone tries to access your Google account on another computer, including you, Google will send a one-time code via text message to your cell phone. If you happen to be using checking your Gmail in a public library, this can be embarrassing. You then enter that code to log in. Two-factor authentication should become standard as it essentially generates a random multi-digit number that you must key in to gain entrance to a web site that resides in the cloud and if your cell phone has a “kill switch,” in the event it is stolen, and you activate that “kill switch” it becomes useless as a key to your personal records located in the cloud.

Obviously, one way to avoid these issues is not to put your personal information on the “cloud.” The problem with this is that your Gmail, Google browsing history, Facebook posts, on-line banking records, credit card statements, mobile phone calling records, tweets, Amazon purchases and buying preferences and Instagram photos are all on the cloud and, chances are, you don’t want to give up using Google, sending out e-mails, banking on-line, social networking or sending photos to your friends. Anil Somayaji, an associate professor at Carleton University in Ottawa is quoted as saying, “The thing with the cloud is when it gets compromised, it can get really compromised.” Cloud providers could go bankrupt, change their policies in a way that prevents you from accessing your data or suffer a security breach themselves. Somayaji goes on to say, while he thinks services like Microsoft, Google and Yahoo are “really good” and have good policies, “they’re just one software glitch away from blowing away all the email you’ve ever had.

So this is what I recommend. Buy a back-up hard drive or a DVD or a USB key and maintain a spare copy of your photos and important documents and e-mails. I save these documents and e-mails in .PDF format so that they are easily accessible as software versions change or in the event that I or someone else who needs access to those files in the future is using a different OS from the one that I am using now. Don’t carry the back-up with you; if at home, keep it in a locked fire-safe box and, if you are leaving town for an extended period, and you have a safe-deposit box, put it there. If the back-up is in the Office, at least keep it in a secure locked drawer, and if you can do it safely, bring it home on weekends and on vacation and follow the procedure noted above. Encrypt access to the back-up drive if possible. If you’re going on vacation or working at a Starbuck’s leave the backup disk in one of the safe locations noted above. Wait until you return home or to the office to back up your data. Also, perform a back-up every day that you use your computer. If you have a mobile phone, the principle involved is the opposite. Here, you are carrying the drive with all your personal information and it is with you all the time. Here, to protect yourself, make sure that phone has a “kill switch” and a password so no one else has access to your phone other than you. Then back up the data on your phone to the cloud using the password tips noted above.

And remember, if you travel, the border is a privacy-free zone and the government, namely the U.S. Customs and Border Protection Agency, has the right to take a look at your laptop computer, open up the folders on that computer and peer inside as it can do with your luggage. And if you travel to China, as I noted back in April of 2012, the Chinese have installed key-logging software on visitors’ laptops which renders password protection useless. In addition, Bluetooth and Wi-Fi connections can be used to remotely access computing devices, which include smartphones, tablets and laptops. That New York Times has quoted a former counterintelligence official as stating, “If a company has significant intellectual property that the Chinese and Russians are interested in, and you go over there with mobile devices, your devices will get penetrated.” Chinese hackers have been known to access computing devices’ microphones and cameras remotely. In fact, an official of McAfee, the computer security company, was quoted as stating that if any employee’s device was inspected at the Chinese border, it can never be plugged into that company’s network again.

So the bottom line is you can’t avoid the cloud, but if the information is really personal and of an intimate nature or otherwise potentially embarrassing or, for whatever reason, you are never going to want to disclose it to the world, don’t put it on Facebook or Tweet about it and lock it up outside the cloud where neither thieves nor hackers can have access to it. The celebrities who had their intimate photos hacked should have treated them as if they were the galleys to their autobiography or their diary or as Apple treats its product development plans; in the most secure manner, out of the rest of the world’s reach and not in a data center combined with the confidential information of thousands of other people and likely accessible to a 20-year old something male with a great deal of technical computer knowledge. Just ask the NSA…Edward Snowden was 29 when he walked off with their secrets.

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Failures to Communicate

There is a famous line in the 1967 film Cool Hand Luke, “What we’ve got here is failure to communicate.” Such failures shouldn’t occur in attorney/client relationships.

This issue came to my attention during a trip to another jurisdiction over the recent holidays. That jurisdiction will remain unnamed except that I will state that it does not adjoin Illinois. In conversations with relatives and a client who relocated there I heard stories of missed statutes of limitations and unreturned telephone calls. While, in the latter case, the only harm done was that a lawyer lost a prospective client, in the former case, the facts may have rose to the level of malpractice.

So here are some practice pointers regarding attorney/client communication.

When I send out documents, such as trademark registrations or other documents that have to be renewed a number of years hence, I usually advise my clients to calendar those events. Of course, I maintain a calendar and timely remind my clients when those documents have to be renewed or maintained, but those events may not occur for another decade; e.g. in the case of trademark renewals. A lot can happen in a decade; clients can relocate, attorneys may relocate, their practices may be merged or sold and so it is important that both parties keep records of those dates. Nowadays, keeping a calendar is easy…while there are numerous specialized products for attorneys to use for this; on the client side, Microsoft Outlook and Google Calendar are easily available. And if you are going to set up a reminder for a deadline, give yourself at least 30 days warning.

On the attorney side, a lawyer should get back to you within 72 hours, with reasonable exceptions, e.g. if he or she is in hospital, there is an illness or death in the family or the lawyer is climbing Mount Everest or canoeing the Boundary Waters. That may seem like a high standard but with the invention of the smartphone and tablet, it’s not an unachievable one. Now, the expectation here is not that the attorney, who is on a family vacation to Disney World, for example, will render a ten page legal opinion while sitting by the pool but the attorney can shoot out an e-mail letting the client know that he is with the family at Disney World and will get back to the client in 2-3 days when he or she returns to the office or will have an associate resolve the matter. And sometimes emergencies come up that must be handled quickly when an attorney is away. When a client receives a letter, for example, accusing it of trademark infringement, the attorney should (a) reassure the client ASAP and (b) write the other side advising it that you are out of the office and will attend to the matter as soon as you return. Similarly, if a media outlet contacts you with questions about a client, not responding promptly is likely to invite more questions about that client. And then, there are some instances when, for example, you are trying to settle a trademark infringement matter before a complaint is imminently filed against your client, when despite the best laid vacation plans, you find yourself pulling off the road frequently to e-mail responses back and forth. Sometimes substantive questions arise that can be answered relatively easily, in twenty minutes or so, so if I’m sitting in an airport lounge or in a hotel room, I find that, if at all possible, it is better practice to answer the question then rather than write that I’m on vacation and will answer the question when I return.

Clients need to know that there are some limitations to this. If a client wants more than a few paragraphs drawn up or an infringement opinion drafted, the attorney is not going to be able to do it from the side of a road or while waiting for his or her flight to take off. However, with the cloud and a good Internet connection he or she may still be able to give the client a sample agreement to review for discussion even when on the road.

So with a little conscientiousness on the part of the lawyer and some calendaring by the lawyer (and client) there should never be a failure to communicate. And if you don’t hear from your lawyer in a couple of weeks ring him or her up. Cell phones can still make calls and a telephone message will never be routed to your spam box or buried amid the 100 emails one gets a day.

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Protecting Your I.P. While Doing Business in China

Because it may be the most cost-effective place for your business to have products manufactured with a satisfactory level of craftsmanship, you may want to do business with a Chinese supplier.

If so, here are some suggestions on how you can do so and protect your intellectual property. Note that this is not intended to be an inclusive list.

1. Be careful about digital espionage! I have previously noted instances where the Chinese have installed key-logging software on visitors’ laptops which renders password protection useless and used Bluetooth and Wi-Fi connections to remotely access smartphones, tablets and laptops. I quoted a former counterintelligence official as stating, “If a company has significant intellectual property that the Chinese and Russians are interested in, and you go over there with mobile devices, your devices will get penetrated.” I quoted an official of McAfee, the computer security company, as stating that if any employee’s device was inspected at the Chinese border, it can never be plugged into that company’s network again. If you visit China, do not bring a laptop with your business’ trade secret and confidential data on it into that country. Consider if your communications with individuals in that country identify technologies that derive their economic value from not being generally known to other persons who can obtain economic value from their disclosure or use that the Chinese government may seek to acquire them and, therefore, limit those communications regarding those technologies. Also consider purchasing a phone for use in China while you’re there that you can toss when you return to the states. See http://markscounsel.com/protecting-your-i-p-while-abroad/

2. Be sure to protect your intellectual property rights in the U.S. U.S. Customs and Border Protection will detain and seize imported goods which violate intellectual property rights in the United States. For this to happen, your product must be the subject of a trademark that has been registered with the U.S. Patent and Trademark Office or of a copyright that has been registered with the U.S. Copyright Office. With regard to your trademark, this poses a dilemma as you cannot obtain a trademark registration for goods in the U.S. until goods bearing that trademark have actually been shipped in interstate commerce and if you are waiting for your Chinese supplier to manufacture those goods, then you will not be able to record your trademark with U.S. Customs until after you have engaged your Chinese supplier and it has commenced shipping goods to you. However, even at that point, you should still record that registered trademark with Customs as this will prevent the importation of unauthorized product bearing your trademark into the U.S. If your goods are computer software, games, literary works, musical compositions, dolls, toys, puzzles, craft kits, posters, photographs, or figurines, you can obtain a copyright registration in the U.S. covering those goods prior to their manufacture in China and as soon as you have firmed up your relationship with a Chinese vendor you should then record that copyright registration identifying the details of that vendor with U.S. Customs and Border Protection. This will bar the importation of unauthorized products infringing your copyrighted design. The Customs recordation fee is $190.00 per trademark registration class and $190.00 per copyright registration. You can also record your unregistered trade name with U.S. Customs as long as that name has been used for at least six months to identify a manufacturer or trader. Note that words or designs used as trademarks, whether or not registered in the U.S. Patent and Trademark Office, shall not be accepted for recordation as a trade name.

3. You should consider obtaining from your prospective vendor its business registration certificate and proof of its company’s paid up capital. This will give you an idea of how substantial its operations are and whether it can meet your requirements. Note that these documents will likely be in Chinese.

4. You should register your trademarks in China. The reason for this is not that a Chinese entity could register your mark in China without actually selling product there and then allege that they own the mark there and block your shipments to the U.S.  See http://www.chinaeconomicreview.com/tesla-starts-offering-cars-china for an example of this. Here, you can register the English version of your mark and you can register the Chinese transliteration of your mark or your can choose a Chinese brand, i.e., a Chinese term that evokes the same commercial impression as your English brand. Here, see http://www.nytimes.com/2011/11/12/world/asia/picking-brand-names-in-china-is-a-business-itself.html?_r=0 Sometimes, transliterating your English mark is the way to go; the Chinese characters for Tide detergent literally mean “gets rid of dirt.” On the other hand, the most common definitions of the Chinese character pronounced as “bing,” as in the name of Microsoft’s search engine, is “virus” or “disease.” Call it BI-YING and the translation means “responds without fail.”

5. You should hire a broker to handle importation of your product into the U.S. He will facilitate getting your product through Customs. You should also retain a freight forwarder who will make sure that your product gets to the U.S. port of entry. For example, a freight forwarder can combine your shipment with another container shipment coming from China to save you money. You will also need to post a surety bond with Customs to make sure that any applicable customs charges are paid when the product enters a U.S. port of entry.

6. In addition, you need to make sure that your product complies with any U.S. marking and labeling requirements as well as any relevant consumer product regulations.

7. Terms relating to, but not limited to, the respective parties’ intellectual property rights, the delivery of product, the risk of loss, freight provisions, quality control, safety, payment for defective products, pricing, specifications, confidentiality, the arbitration of disputes, product liability insurance, and working conditions Pshould be attached to your purchase order or included in a separate contract referencing your purchase orders.

8. Finally, it helps to visit China to learn about your supplier and build a relationship, particularly, before you make the final payments on your order before the goods ship out. Alternatively, you can use a purchasing agent to look after your business in China.

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SELECTING A DOMAIN NAME

Frequently, a client will come to me and say that they have come up with a name that they think is great for their business or for a product or service that they intend to offer and have gone ahead and registered the domain name. While it doesn’t cost much to register a .COM domain, I would suggest that the client has done things in reverse.

If the domain name is intended to be the name of your business, prior to selecting that domain name, you should check the records of your state Secretary of State to determine if the business name is available. In Illinois the business name must be distinguishable upon the records of our Secretary of State from the corporate name or assumed corporate name of an existing Illinois corporation or a foreign corporation authorized to transact business in Illinois or the name of a limited liability company in those records, or a name that is otherwise currently registered or reserved.

In addition, if the corporate name is also intended to be used as the name of the products or services that you sell, that is, it is intended to be affixed to your product or its labeling or used in connection with marketing the services that you provide, i.e., used as a trademark, you should conduct a trademark search as well. For example, General Motors is the name of the corporation that makes Chevrolets, Cadillacs and Buicks. However, the General Motors name is not generally used as a trademark on those vehicles. On the other hand, if you fuel up one of those vehicles at a Shell gas station, Shell Oil Company is the trade name of the U.S. based subsidiary of Royal Dutch Shell, a multi-national oil and gas company with headquarters in The Hague, Netherlands, and SHELL is also Shell’s federally registered trademark for “vehicle gasoline service station services.” The purpose of conducting such a search should be to determine if that name or a confusingly similar name is the subject of either a federally registered trademark or an application to register a trademark with the United States Patent and Trademark Office, whether it is the subject of a state trademark registration or whether it is in use but not registered. If someone is using the identical or a similar mark on related goods or services, i.e., goods or services that would are customarily sold together by the same supplier or manufacturer, then that prior user or federal trademark applicant could object to your use of your proposed mark and while it may not cost much to change your domain name, it probably will cost a lot more to create a new website or take down all of your signs if your are a brick and mortar  business. In addition if it is determined as a result of your trademark search that your proposed name is available for federal registration and that name will be used in connection with the marketing of goods and services, one of the benefits of a federal trademark registration is that it is prima facie evidence of the registrant’s exclusive right to use its mark throughout the U.S.  Therefore, not only would you register your domain name at that point but I would recommend, assuming that it is available, that you go ahead and federally register it.

Note that the name may not be immoral, deceptive or scandalous, disparage a person or institution, merely describe the goods or services in connection with which it is intended to be used or be primarily geographically descriptive of the goods.

Further, the domain name should be memorable and easy to spell. While adding descriptive words that immediately evoke what you are trying to sell on your website and identify the content of your website may seem like a good idea for a domain name, if you follow-up by trying to register that domain name, you run the risk that the U.S. Patent and Trademark Office will refuse to register it, at least not until it has become so recognized in the marketplace that it loses its general descriptive context and becomes identified with you. For example, the owners of HOTEL.COM had to submit 160 pages of evidence, including videocassettes of television advertising to get a federal service mark registration for their mark. Another travel website, ORBITZ.COM, merely had to submit a three page response to deal with some technicalities with the Patent Office to receive its registration.  GOOGLE and AMAZON are examples of highly memorable domain names that are distinctive trademarks and do not describe the content present thereon.

If a .COM suffix is not available, you can show your national identity with a .us domain name; if you are in the business of presenting streaming video, for example, you can use the .tv domain extension. You also now have available the new generic top level domains. See http://newgtlds.icann.org/en/program-status/delegated-strings These include such domains as .PIZZA, .BUSINESS, .RESTAURANT, .HEALTHCARE, .NYC, .LAWYER, .SOFTWARE, .DENTIST, .FITNESS, .FINANCIAL, .INVESTMENTS, .EDUCATION, .INTERNATIONAL, .SEXY and .CLOTHING among others. Remember, though, that web searchers are still used to adding a .COM to a brand name to find it on the web so it may take some non-web marketing to bring people to your site using these domains. However, if you own a pizza place or a chain of urgent care centers, it’s going to be tempting to use .PIZZA or .HEALTHCARE as part of your domain. To be successful though, say your business name is Tony’s Pizza or Spectrum Healthcare, you will need to train your potential customers and current customers to insert the dot in the right place, to type in TONYS.PIZZA or SPECTRUM.HEALTHCARE and not have them leave the dot out and look for the COM. See http://t.co/x1Jpq1E2YN

Also, make it easy on your customers or potential customers. Keep things simple so that your customers can find you and type in the right name. Don’t register TONYSPIZZA2GO.COM as they will have to remember to type in the numeral as opposed to the word “to” and add “2go” to order to take-out on line. Stick to TONYSPIZZA.COM or maybe TONYSCHICAGOPIZZA.COM if you’re located in Chicago or sell Chicago-style pizza and dedicate a portion of your site to ordering pizza on-line for takeout. Remember that letters and digits from “0” to “9” are registrable as well as hyphens. Capitalization doesn’t make a difference and while hyphens are also allowed, it is very easy for people to forget to type the hyphens. Now, non-English character domain names are available as well. See http://www.dynadot.com/domain/idn-search.html

Finally, is the name easily pronounceable and not  easily confused with another domain name?  Also, even if your trademark search (See above.) finds no confusingly similar names, you should be careful to make sure that there is not a confusingly similar domain name out there. For example, make sure that a competitor is not using your same domain name with which you are using the .com suffix with a .net suffix or vice versa, or if you’re in the pizza business, with a .pizza suffix or if you’re in the porn business with a .xxx suffix.

Hopefully, your business will be successful and around for a long time. You want loyal customers. And to keep them loyal, you need a strong, distinctive easily remembered and not easily confused name; that’s going to be around for a long time…not a name that you are going to have to change because your lawyer received a cease and desist letter from a competitor or because you are losing business to the listing immediately above you when someone types your name into Google. See http://markscounsel.com/tips-from-a-seasoned-lawyer/

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When You Should Call A Lawyer

You wake up one morning after a thunderstorm-filled night to find your driveway filled with roofing shingles, the problem being they’re from your roof and you didn’t order them. You don’t think twice …you call a roofer.

You turn on your kitchen tap only to find a torrent of water flowing from beneath your sink into the cabinet below. Unless you’re handy with plumbing, you don’t think twice…you call a plumber.

Every time you turn on your microwave or your air conditioner cycles on, one of your circuit breakers blow. You don’t think twice…you call an electrician.

Well, and I’m not merely being self-serving here, there are times when you should not think twice…you should call a lawyer. Here are some examples  of when you should call a lawyer: [These are not meant to be all-inclusive.]

1. You have children. In the event that you and your partner and not your kids happen to be traveling on the wrong plane at the wrong time or be in the wrong country at the wrong time or hit an icy patch of road and meet your demise, who will take care of your child or children. You should have a friend or relative you can trust and who shares your values and who your children know be selected as a guardian and you should have a clause naming that guardian included in you and your partner’s wills. Of course let the guardian know first.

2. You have irresponsible children. If you have one or more children who like to spend lots of money on the wrong things and, in the event of your demise, stand to obtain lots of money, you might want to set up your will or trust in such a way that they can’t use your money when you’re dead in ways that you would not want them to use your money when you were alive.

3. To have a will and/or trust prepared.

4. When you start a business. One of my favorite things not to do is incorporate and then call a lawyer and ask them to trademark your name. First, ask a lawyer to see if the name is available, then incorporate or set up a limited liability company (whichever is appropriate in your circumstances) in that name, assuming that it’s available, and then, if you wish to register that name as a trademark, do so in the corporate or limited liability company’s name. See http://markscounsel.com/tips-from-a-seasoned-lawyer/

5. When you start a business. To enjoy the advantages of protecting yourself from personal liability from the liabilities of the business, either incorporate it or form a limited liability company. If the business is intended to remain in the hands of a small group of original owners or is created for a limited purpose, such as to build a building and then sell it, a limited liability company offers the advantage of simplicity in terms of legal requirements. However, if you intend to seek additional investors in the business in the future or sell the business to Google, then incorporate as you can issue securities (shares) in the business to those investors and raise capital as that business grows. [Note that there are other ways to finance a business, e.g., though loans or lines of credit with a financial institution.] Also, note that if you incorporate in Delaware or Nevada, if your company actually does business in Illinois, you will need to file an application for authority to transact business in Illinois, pay franchise taxes here and, in doing so, perhaps disclose information that you incorporated in Nevada to avoid disclosing.

6. When you start a business. If you have partners, you probably want a partnership agreement with them. If you hire a key employee, e.g., a programmer who will have access to your business’ key data and operations, you probably want to have her sign an employment agreement. If your business involves an innovative product or service you will probably want all of your employees to sign confidentiality and non-disclosure agreements.

7. When you develop that innovative product or service, whether you’re an individual, a corporation or a limited liability company, you will need to protect it from being stolen by your employees or your competitors. There are things you can do to do this, by protecting it as a trade secret, by patenting it, or by copyrighting it; if it is in the form of computer code, or if it’s a board game or recording or motion picture, for example.

8. When you sell those goods or services, to protect your brand by registering that brand as a trademark or service mark. See http://markscounsel.com/dont-wait-to-register-your-mark/

9. When you set up your website, if you hire a developer to do it for you, to make sure that you own the rights to it. See http://markscounsel.com/selecting-domain-name/

10. When you get a demand letter from a lawyer, whether it’s asking you to stop having your dog poop on your neighbor’s lawn or asking you to stop infringing a competitor’s trademark or asking you to stop using a domain name, don’t try to handle it yourself. Even if you think the claim is baseless, obviously, the sender doesn’t believe so, otherwise he wouldn’t have gone to the expense of retaining a lawyer to write a letter and, presumably, that lawyer didn’t take the complainant’s money if he didn’t think the complainant had a winnable case. So, get a lawyer involved and quickly. As unpleasant as dealing with the matter may seem at first, going to court, which you may be able to avoid, will be a lot more unpleasant and expensive.

11. When you buy or sell a house or condo. You should have a lawyer review the contract or prepare the contract if you are selling it yourself. He may raise issues that could get you a better price on either the purchase or sale or advise you on how to do so.

12. There are many other instances I could raise. I don’t practice matrimonial law so I won’t advise you to get a prenup or whether you need a divorce lawyer; if you’re not sure, call a lawyer…

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YOUR SECURITY IN THE CLOUD

The issue of computer security and your privacy when using your computer or mobile device went beyond the technology pages and blogs earlier this month when it was revealed that intimate images of dozens of celebrities including actress Jennifer Lawrence and supermodel Kate Upton were leaked online by an anonymous hacker who claimed to have stolen materials from more than 100 entertainers. These include nude photographs of the two young women identified above as well as other movie and television personalities and were reportedly accessed through a security weakness in the celebrities’ iCloud accounts.

Regardless of the fact that Lawrence appears clad largely in blue paint in X-Men First Class and Upton was clad also only in paint in the 2011 Sports Illustrated Swimsuit Issue the law recognizes a right of privacy against intrusion upon an individual’s physical solitude and the appropriation of an individual’s likeness for commercial benefit. While an individual may choose to take a “selfie” or make a sex tape of herself with her partner, she has the right to not have those images disclosed publicly and, as a celebrity, it is more than likely that those images would be offered for sale for someone’s commercial benefit.

So, here’s the problem, how do you, whether you’re Jennifer Lawrence or the girl (or guy next door) with a cell phone ensure that the images one takes on one’s phone or, any information that you input onto that phone or your computer; everything from your texts and e-mails, your vacation plans, your financial information, your sources, if you’re a journalist, or your briefs, if you’re a lawyer, stay private. In the case of the celebrity hack, the accounts were compromised by a very targeted attack on user names, passwords and security questions.

Which brings us to you and me. On August 6th of this year, Molly Wood, the technology columnist for the New York Times, reported that hundreds of millions of email addresses and other types of personal identification were found in the hands of Russian hackers. She wrote, assume that your personal information is stolen, and recommended that you change your password for sites that contain sensitive information like financial or credit card data.

Here lies the conundrum. If you log in to a typical site that holds financial or credit card data, that site will usually pose a series of security questions such as “Where did you go on your honeymoon?,” “What is the name of your dog?,” “What was the first car that you owned?,” “In what hospital were you born?,” “What was the name of your elementary school?” or “What city would you like to visit?” Now go to your Facebook profile or page. There you will likely find the name of your hometown, pictures of your dog and maybe your vacation photos. Now, let’s recall how Jennifer Lawrence’s photos were obtained; through a targeted attack on user names, passwords and security questions. Unless you grew up in New York City, a hacker could easily run through the names of the elementary schools in your hometown, if he could find your birthplace, he could easily run through the names of the hospitals there; I haven’t lived in Washington D.C. in many years and I can still identify the names of eight hospitals located there at the time that I lived there. If someone can get on your Facebook page, they could probably find out the name of your dog and from your photos what city you would like to visit. So a brute force attack could probably get through the bar posed by your security questions. As for your password, it is suggested that it not be based on dictionary words and that even a word obscured with symbols and numbers can be cracked relatively quickly. So use a password like 4J@2stiI. That’s a great idea….now try to remember it and use a different similarly designed password for Google, Twitter, Instagram, Facebook, your bank, your investment account, Uber, etc. Unless you’re an idiot savant, I doubt that you can. So Molly Wood suggests using a password manager; i.e., a site that creates a unique password for each website you visit and stores them in a database protected by a master password that you create. Here, I must disagree with Ms. Wood. Would you hand over the keys to your home to someone who knocks on your door and promises that he’ll take care of your house? I doubt it. People ensure the security of their home to either companies with a long-standing reputation for safety like ADT (They’ve been around since 1874.) or leave their keys with a trusted neighbor or relative whom they know very well. The value of your investment account or bank account or personal reputation, all of which may be accessed by someone with your password, may be much greater than that of your house. Would you leave your password with a company that may not be around in three years? Even the most innocent photo that you put in your iCloud account or Google Drive may not be so innocent if you’re pictured associating with someone about whom someone might draw the wrong inferences, for example, an attractive colleague at work or someone who is later indicted, e.g., an Illinois politician.

So, what should you do?

1.Pick a strong password with a combination of numbers and letters, capitals and small letters and punctuation marks that you can remember. Use at least eight or more characters. Don’t use the same user name/password combination for multiple websites.

2. Play with the security questions. For example, you went to Pyongyang on your honeymoon, your dog’s name is FreddyMercury, the first car that you owned was a Tucker, your were born in the Damascus Hospital for the Criminally Insane, your elementary school was the Chernobyl grammar school and the city you’d most like to visit is Mogadishu. Answers like these will be more difficult to guess than if your dog’s name was Fluffy, your first car was a Ford, you were born in St. Joseph’s Hospital and the city you’d most like to visit is Paris. Don’t everyone use these examples or the won’t work.

3. Use two-factor authentication. This works with Google. If someone tries to access your Google account on another computer, including you, Google will send a one-time code via text message to your cell phone. If you happen to be using checking your Gmail in a public library, this can be embarrassing. You then enter that code to log in. Two-factor authentication should become standard as it essentially generates a random multi-digit number that you must key in to gain entrance to a web site that resides in the cloud and if your cell phone has a “kill switch,” in the event it is stolen, and you activate that “kill switch” it becomes useless as a key to your personal records located in the cloud.

Obviously, one way to avoid these issues is not to put your personal information on the “cloud.” The problem with this is that your Gmail, Google browsing history, Facebook posts, on-line banking records, credit card statements, mobile phone calling records, tweets, Amazon purchases and buying preferences and Instagram photos are all on the cloud and, chances are, you don’t want to give up using Google, sending out e-mails, banking on-line, social networking or sending photos to your friends. Anil Somayaji, an associate professor at Carleton University in Ottawa is quoted as saying, “The thing with the cloud is when it gets compromised, it can get really compromised.” Cloud providers could go bankrupt, change their policies in a way that prevents you from accessing your data or suffer a security breach themselves. Somayaji goes on to say, while he thinks services like Microsoft, Google and Yahoo are “really good” and have good policies, “they’re just one software glitch away from blowing away all the email you’ve ever had.

 

So this is what I recommend. Buy a back-up hard drive or a DVD or a USB key and maintain a spare copy of your photos and important documents and e-mails. I save these documents and e-mails in .PDF format so that they are easily accessible as software versions change or in the event that I or someone else who needs access to those files in the future is using a different OS from the one that I am using now. Don’t carry the back-up with you; if at home, keep it in a locked fire-safe box and, if you are leaving town for an extended period, and you have a safe-deposit box, put it there. If the back-up is in the Office, at least keep it in a secure locked drawer, and if you can do it safely, bring it home on weekends and on vacation and follow the procedure noted above. Encrypt access to the back-up drive if possible. If you’re going on vacation or working at a Starbuck’s leave the backup disk in one of the safe locations noted above. Wait until you return home or to the office to back up your data. Also, perform a back-up every day that you use your computer. If you have a mobile phone, the principle involved is the opposite. Here, you are carrying the drive with all your personal information and it is with you all the time. Here, to protect yourself, make sure that phone has a “kill switch” and a password so no one else has access to your phone other than you. Then back up the data on your phone to the cloud using the password tips noted above.

And remember, if you travel, the border is a privacy-free zone and the government, namely the U.S. Customs and Border Protection Agency, has the right to take a look at your laptop computer, open up the folders on that computer and peer inside as it can do with your luggage. And if you travel to China, as I noted back in April of 2012, the Chinese have installed key-logging software on visitors’ laptops which renders password protection useless. In addition, Bluetooth and Wi-Fi connections can be used to remotely access computing devices, which include smartphones, tablets and laptops. That New York Times has quoted a former counterintelligence official as stating, “If a company has significant intellectual property that the Chinese and Russians are interested in, and you go over there with mobile devices, your devices will get penetrated.” Chinese hackers have been known to access computing devices’ microphones and cameras remotely. In fact, an official of McAfee, the computer security company, was quoted as stating that if any employee’s device was inspected at the Chinese border, it can never be plugged into that company’s network again.

So the bottom line is you can’t avoid the cloud, but if the information is really personal and of an intimate nature or otherwise potentially embarrassing or, for whatever reason, you are never going to want to disclose it to the world, don’t put it on Facebook or Tweet about it and lock it up outside the cloud where neither thieves nor hackers can have access to it. The celebrities who had their intimate photos hacked should have treated them as if they were the galleys to their autobiography or their diary or as Apple treats its product development plans; in the most secure manner, out of the rest of the world’s reach and not in a data center combined with the confidential information of thousands of other people and likely accessible to a 20-year old something male with a great deal of technical computer knowledge. Just ask the NSA…Edward Snowden was 29 when he walked off with their secrets.

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THE .TV DOMAIN NAME & THE STORY OF THE INTERNET

Actually, Al Gore didn’t invent the Internet. But we (the United States) did. The predecessor was something called the ARPANET, the concept for which was devised by one J.C.R. Licklider who was hired by the U.S. military to interconnect their main computers at Cheyenne Mountain, Colorado, which was the command center for the North American Aerospace Defense Command, Strategic Air Command headquarters, and the Pentagon in Washington, DC. His successor, Robert Taylor, took the ARPANET live in 1969 connecting the University of California, Los Angeles and the Stanford Research Center. By 1981, there were 213 hosts on the ARPANET and two years later it adopted the TCP/IP protocol, which is used by the Internet to specify how data should be packetized, addressed, transmitted, routed and received at the destination. That same year, the military portion of ARPANET was broken off and became MILNET.  However, because the other side of the ARPANET was government funded, it was limited to non-commercial uses. The final restrictions on carrying commercial traffic ended in 1995 when the National Science Foundation ended its sponsorship of a major part of the Internet backbone, which was initially created to link researchers to the Foundation’s funded supercomputing centers.

Meanwhile, back in 1984 the ARPA-Internet and the DARPA research community set up domains, which were described as administrative entities for the new networks. The idea was that in the future most of the top level names would be very general categories like “government”, “education”, or “commercial”.  The motivation is to provide an organization name that was free of undesirable semantics. Note that now .XXX is a domain name. Hence, .GOV, .EDU, .COM, .ORG and .MIL were formed. The following year the Internet Assigned Numbers Authority (IANA), which was initially formed under a U.S. Defense Department contract and later operated under a U.S. Department of Commerce contract, established country code top level domains. The first three were .US, .UK and .IL (for Israel). Other country code domains followed. Some countries require that the users of the domain have a local presence, such as .CA (Canada) or .DE (Germany.) Others are open to anyone.

One country whose domain name is open to anyone is the country of Tuvalu. Located midway between Hawaii and Australia, it has a population of just under 11,000, has a land mass of 10 square miles and consists of three reef islands and six atolls. 10% of Tuvalu’s total government revenue comes from royalties generated from the right to sell its country code top level domain name .TV, which, because it is an abbreviation for television, has become popular to denote the on-line video outlets of various brands. Late last month, Amazon announced that it would pay over a billion dollars for a website that streams people playing video games. The website is called TWITCH and the address is TWITCH.TV. Want to watch major league baseball games live on your mobile device; subscribe to MLB.TV. Want to view extreme slip and sliding; there’s REDBULL.TV.

So as online video becomes more popular, subscribers of .TV websites help support the inhabitants of Tuvalu and can feel a little less guilty as climate change threatens to engulf that country whose highest point is 15 feet above sea level.

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MONKEY CAN’T OWN COPYRIGHT IN SELFIE

If a monkey steals your camera and takes a “selfie,” does it own a copyright in the resulting image? According to the U.S. Copyright Office it does not. And your cat doesn’t have ownership of its cat videos either. See http://www.theguardian.com/technology/2014/aug/22/monkey-business-macaque-selfie-cant-be-copyrighted-say-us-and-uk

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ILLINOIS OUTLAWS PATENT TROLLS

Troll under Fremont BridgePatent trolls beware!

The state of Illinois enacted a measure this week making it illegal to demand a royalty payment from a company if the complainant doesn’t hold or represent the patent holder itself, or if the patent that is the subject of the demand has been invalidated in a court proceeding or has expired. Also, now illegal is the use of any written communication, including an email, to falsely accuse someone of infringing a patent with the intent of forcing a settlement.

The state legislator who sponsored the measure stated that it will help companies that “aren’t in a position to hire pricey legal representation and embark on lengthy court battles against harassing fraudsters.” BTW, that state legislator is a mathematician, not a lawyer.

 

 

 

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E-MAIL & THE ATTORNEY/CLIENT PRIVILEGE

I have previously written on the dangers of using e-mail, which is, probably other than texting, the most convenient form of communications available today, providing a largely free means to send someone correspondence, images, legal documents, etc., instantly, anywhere in the world.I wrote that the FISA court could allow the government’s acquisition of all telephone and e-mail communications to and from a country of foreign policy interest, e.g., Russia or Venezuela, including communications made to and from U.S. citizens and residents without a showing of probable cause.

I wrote that Employers are entitled to monitor employees’ e-mail when they are using their company’s e-mail systems. While employers should warn employees of this fact in writing, logging on to one’s own Yahoo or Gmail account will not cloak you from your employer’s prying eye. Since you are using your employer’s computer network to do so, he or she is still entitled to monitor the system.

Well, now comes a new threat to the use of e-mail as a communications means. In prosecuting an extortion case against one Thomas DiFiore, “a reputed boss” in a New York crime family, prosecutors informed Mr. DiFiore that they would be reading the emails sent to his lawyers from jail and using their content as evidence against him. This practice, according to the July 22nd New York Times, is not limited to New York City but has been adopted by federal prosecutors across the country. In Texas, according to the Times, this practice has extended to recording attorney-client calls from jails. Prosecutors in Brooklyn, New York once filtered lawyer e-mails out from inspection but “budget cuts no longer allow for that.”

So, say you have been incarcerated, let’s assume wrongly, and would like to prepare a case to get yourself exonerated. How do you communicate with your attorney to build that case? You can have your attorney drop by the jail and visit you, but apparently a visit to a surgeon accused of Medicare fraud, (not to minimize it but not exactly a violent crime, except to taxpayer’s pockets) from Manhattan to Brooklyn by the surgeon’s lawyers took five hours, including travel time and waiting for jail personnel to retrieve the surgeon/defendant. A look at minimum security institutions on the Federal Bureau of Prisons website reveals that the closest minimum security prison camp to Chicago is in Duluth, Minnesota, an 8 hour drive or a $269.00 plane trip according to Google Maps. According to the surgeon’s lawyer, confidential postal mail takes up to two weeks to reach a Defendant; and Brooklyn is a lot closer to Manhattan than Duluth is to Chicago. Oh, and the surgeon’s lawyer is a public defender being paid $125.00/hour.

A U.S. District Court Judge in Atlanta ruled in 2012 that an inmate, in prison for conspiring to import fake prescription drugs, had no reasonable expectation of privacy in using email. In a decision involving the reputed crime boss, the New York judge overseeing the case ruled that the government was allowed to review the e-mails writing that, “The government’s policy does not unreasonably interfere with his ability to consult [his] counsel.”

So that call from jail is going to cost more than the proverbial “dime” and e-mail may not always be the best means to communicate important information. It’s probably not a good idea to post it on Facebook either. See http://nyti.ms/1nSGKwD

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