Drone Drain [Update]

Aeryon_Scout_In_FlightBy Brooks Lindsay

This blog post follows up on an article I wrote for the Washington Journal of Law, Technology and Arts for the Spring 2015 issue. I submitted the article as a comment to the FAA on behalf of the UW College of Engineering. The article, titled “Drone Drain,” suggested the FAA be forward-looking with its draft unmanned aerial vehicle (UAS) rules. This blog post attempts to assess the FAA’s work since then.

Since the end of the comment period, the FAA created registration rules for drones weighing between .55 lbs and 55 lbs. This is an important step in the maturation of drone law because, like with cars, the identification of a drone after an accident is critical for victims to bring tort claims or the government to press charges for a misdemeanor or felony. If people don’t know who crashed a drone, then they can’t hold that registered person legally accountable. Without accountability, UAS pilots might feel emboldened to take risks without fear of legal consequences. Registration rules cut through this cycle and facilitate the maturation of a legal ecosystem for drones. Continue reading

Wrongful Classification of Employees as Independent Contractors – Will Tech Companies Fare Better Than Transport Companies?

Screen Shot 2015-11-30 at 7.18.26 AMBy Cheryl Lee

What do Uber, Amazon and FedEx have in common? They are all multibillion dollar companies using independent contractors for transport and have faced or are facing lawsuits alleging they wrongfully classified employees as independent contractors.

Generally, independent contractors are cheaper for companies to hire. Employers do not have to offer benefits like health insurance and 401(k)s, pay overtime or give paid days off, cover the employer share of their payroll taxes, or withhold income taxes. Independent contractors essentially run their own business with autonomy to decide when, where and how to do the work assigned. They have the freedom to take on projects with other companies. Continue reading

Five Stars for the Recent Crackdown on Fake Reviews

fakeBy Alex Bullock

Think of the last time you were in the market for a product or to find a restaurant for dinner – did you search online for reviews of the product or the business? If you’re like me and many other modern consumers, the answer is likely, “Yes.” And again, if you’re like me, you may take for granted that those online reviews are objective and real. That is why it is encouraging to hear that a company like Amazon, as well as the Federal Trade Commission (FTC), are taking steps to ensure that consumers can trust those reviews.

In October, Amazon filed suit against more than 1,000 people who allegedly offered to write reviews of products they had not used in exchange for a fee. According to the company’s complaint in King County Superior Court, each of the individuals sued in this case used the website Fiverr, a global online marketplace for individuals offering tasks and services in order to offer to create fake reviews for a fee. The complaint outlines a typical encounter between an Amazon seller and a prospective fake reviewer. Continue reading

U.S. Internet Giants (Probably) Hit Hard By European Safe Harbor Privacy Ruling

privacyBy Brooks Lindsay

The European Court of Justice ruled on October 6 to scuttle a 15-year data-transfer pact with the United States. This pact provided a “safe harbor” to over 4,000 transatlantic U.S. companies that claimed to satisfy “adequate” data-protection standards under European law. The “safe harbor” principles allowed U.S. companies operating in Europe, like Facebook and Google, to gather the private information of European citizens and transfer that data to U.S.-based servers, so long as those companies self-certified that they complied with the E.U.’s “adequacy” standards for privacy protection. The European court decided that these principles violated Europeans’ rights to privacy because they allowed American government authorities to gain easy access to Europeans’ online information through U.S.-located databases.

The Court’s ruling is in many ways a reaction to revelations over the past few years of U.S. government mass-surveillance programs, highlighted most poignantly by Edward Snowden’s leak in 2013. The Court’s ruling is based in large part on the premise that the U.S. government and U.S. companies can no longer credibly certify that they are protecting Europeans’ privacy and meeting Europe’s baseline data-protection standards. Continue reading

Online Retailers Beware: Amazon Search Results Might Violate Watchmaker’s Trademark

Untitled2 By Brennen Johnson

Last week, the Ninth Circuit Court of Appeals handed down its decision in Multi Time Machine, Inc. v. Amazon.com, Inc.. Although the case doesn’t deal with time travel like the name might suggest (so disappointing!), the Court’s decision on whether the behemoth online retailer’s search results could have violated the watch manufacturer’s trademark certainly is interesting. In a two to one decision, the panel of three judges decided that Amazon might have violated Multi Time Machine’s (“MTM”) trademark by displaying competitors’ watches when online customers searched for a particular MTM model.

So how is this interesting? Let’s paint this case in the terms used by Judge Silverman in his dissent against the other two judges—If a patron walks into a restaurant and orders a “coke” and the waiter responds, “We carry Pepsi,” has the restaurant infringed on Coca Cola’s trademark? The majority’s decision suggests that the restaurant might have infringed, but that it is a question for a jury. Similar to the restaurant’s actions, Amazon, who is unable to carry MTM watches, displays the similar products of MTM’s competitors when the customer searched for MTM watches.

It seems absurd that Amazon could be liable for simply responding to requests for an unavailable product by suggesting other similar products. However, things get a bit more murky when you consider the root question that results in liability for this type of trademark infringement: could a reasonable person be initially confused by the search results and believe that the watches displayed on Amazon’s page were somehow affiliated with MTM? If so, then customers might consider buying the competitors’ watches based on the reputation of MTM’s trademark, and both Amazon and the competitor would unfairly profit from MTM’s hard work in building a well-respected business.

So, how might Amazon’s search results confuse a customer? Well, in this author’s opinion, only by being a pretty thick dunce. The law requires that the results be confusing to a “reasonably prudent consumer,” and in my book, the poor dunce who gets confused by these search results doesn’t quite make the cut. Like the district court that first considered the case and Judge Silverman (who dissented from the majority’s opinion), I believe that the results are so clearly labelled that no reasonable mind would think that they were somehow affiliated with or originated from MTM. But you don’t have to take my word for it. You can check out the image in the thumbnail above or click here to see for yourself.

The majority opinion reaches a different opinion by determining that the text “MTM special ops” which remains displayed in the search box at the top is sufficient to confuse customers about who manufactured the products. The majority explained in its opinion that, although the displayed results were each clearly labeled as the product of a different company, the clarity of the page’s layout as a whole created a legitimate question of whether or not it might confuse a customer about the origins/maker of the displayed products.

As an additional note that online retailers should consider taking to heart, the majority said when reaching its conclusion, “A jury could infer that the labeling of the search results, and Amazon’s failure to notify customers that it does not have results that match MTM’s mark, give rise to initial interest confusion.” If an online retailer wants to avoid this whole debacle, the cleanest method would be to spell it out when none of the products it provides meet the exact product description typed into the search bar.