BACKGROUND:

 

SPEECH –

An example of “public speech”, in this context, would be an open and notorious change to one’s LinkedIn profile, such as adding a project, an interest, or a competency and skill; and then positively choosing to publicize these profile changes to one’s network.

 

WHISPER –

An example of a “public whisper”, in this context, would be changing one’s skills or communication preferences to show openness to career opportunities, thereby letting recruiters know that one might be interested in opportunities; willingly sharing one’s LinkedIn profile with potential recruiters; or making a public speech as above, but then “specifically” choosing to not announce this profile change to one’s network or to members of the general public.

 

LINKEDIN

LinkedIn    (“LinkedIn”) is a very widely-used networking site that allows users to choose between making such public speech and public whispers, in their settings preferences.

 

hiQ

hiQ Labs, Inc. (“hiQ”), is a data analytics entity that has developed and deployed automated “bots” that can access public speech and that last definitional element of a public whisper[1] (hushed or stealthy profile changes) on LinkedIn in a Skill Mapper, allegedly not always in accordance with LinkedIn user-selected visibility preferences,[2] and then further share, publicize or sell the results whether in the raw or aggregated formats to its own customer base of interested employers and parties and persons attempting to contact such job-seeking, job-interested, and passively job interested LinkedIn users.

 

“Companies like LinkedIn, Twitter and Facebook view scraping of the data generated by their users not just as theft – they sometimes charge to license data (to higher level business users) – but a violation of their users’ privacy, because some information can be limited so not all users can view it”[3] [additional words in parentheses].

 

Understandably, LinkedIn, “which charges recruiters, salespeople and job hunters for higher levels of access to profile data”,[4] issued a 3-page cease-and-desist letter to hiQ on May 23, 2017,[5] advising the recipient that it was in violation of the LinkedIn user agreement with those behaviours, notifying  the recipient that additional security precautions had been implemented to prevent any recurrence, demanding that the recipient delete and destroy all such “improperly obtained material” in its possession or custody or control, and putting the recipient on notice that any further such behaviour would be in violation of applicable state and federal laws, with citation to a leading 2015 case in that jurisdiction of the United States federal District Court for the Northern District of California (USDC, NDCA), in which the court had barred similar “website data scraping” conduct.[6]

 

hiQ promptly filed for a Temporary Restraining Order (TRO) in California federal court (USDC, NDCA),[7] to bar any actual application of that cease-and-desist language pending ultimate determination of the underlying matters in a court of competent jurisdiction.  And so it was, that on Monday, August 14, 2017, the court granted hiQ its TRO.[8]

 

 

ANALYSIS:

 

CRAIGSLIST

In the case that LinkedIn cited within its cease-and-desist letter to hiQ, Craigslist, Inc., had filed a Complaint against the defendant, but the defendant had not timely answered.  As a result, Craigslist then applied for and was granted, a Default Judgement.[9]  According to the ruling, a certain Brian Niessen, a Craigslist user, had answered a Craigslist advertisement posted by another Craigslist user, for a “Skilled Hacker at Scraping Web Content”.[10]  Niessen had described himself as a hacker, and professed that he was already scraping several thousand websites, including “[c]raigslist, Twitter, Groupon, Zagat, and others.”[11]  3taps then entered into a business relationship with Niessen to continue his scraping, for them, which Craigslist stated was in violation of its terms of use (TOU) and constituted a breach of contract because Niessen, as a registered Craigslist user, had agreed to the TOU on several occasions.[12]

 

“The TOU prohibit, among other things, “[a]ny copying, aggregation, display, distribution, performance or derivative use of craigslist or any content posted on craigslist whether done directly or through intermediaries, […]”[13]

 

Craigslist did secure injunctions against the Niessen co-defendants, including Lovely, PadMapper, and 3taps.[14]  However, Niessen – named along with those co-defendants in the Amended Complaint with its 17 Claims for Relief,[15] was somewhat more elusive; as he was first difficult to effectively serve with the Complaint, and then after being served, he failed to provide an answer within the specified time.[16]  As a result, the Clerk of Court first entered a Notice of Default against Niessen, and then Craigslist made Motion for a Default Judgement against Niessen, which the court granted.[17]

 

 

LINKEDIN –

LinkedIn had sought a response by May 31, 2017 to its cease-and-desist letter of May 23, 2017.[18]  However, hiQ filed its Complaint for Declaratory and Injunctive relief against LinkedIn on June 7, 2017.[19]  In summary, with the first paragraph of the Introduction for same, hiQ writes:

 

“This is an action for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201 and 2202, and for injunctive relief under California law.  hiQ seeks a declaration from the Court that hiQ has not violated and will not violate federal or state law by accessing and copying wholly public information from LinkedIn’s website.  hiQ further seeks injunctive relief preventing LinkedIn from misusing the law to destroy hiQ’s business, and give itself a competitive advantage through unlawful and unfair business practices and suppression of California Constitutional free speech fair guarantees.  hiQ also seeks damages to the extent applicable.”[20]

 

hiQ did promptly and appropriately seek and retain counsel to engage in discussions with LinkedIn upon receipt of the cease-and-desist letter, in order to better understand LinkedIn’s position and seek an accommodative solution to their serious differences.[21]  LinkedIn argued through counsel that it was protecting the interests of its users and seeking to remedy violations of state and federal laws; and hiQ argued through counsel that not only did LinkedIn lack any proprietary interests in the posted data, which was still owned by its users, but that LinkedIn was therefore attempting to “pervert the purpose of the laws at issue by using them to destroy putative competitors, engage in unlawful and unfair business practices and suppress the free speech rights of California citizens and businesses.”[22]

 

On May 30, 2017, hiQ then sent its own letter to LinkedIn seeking the ongoing interim website access that would allow it to persist as a going concern – because “complying with LinkedIn’s demands would essentially destroy hiQ’s business”,[23] while continuing discussions towards “a mutually amicable resolution” of their impasse.  However, on receiving no response, hiQ filed its Complaint for declaratory and injunctive relief.[24]

 

 

HIQ –

The parties entered into a standstill agreement that preserved hiQ’s access to the public LinkedIn data, and agreed to convert hiQ’s original motion into one for a preliminary injunction, after the court had heard the initial party arguments on the hiQ complaint on July 27, 2017.[25]  In California federal District Court, “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.[26]  Within the United States Court of Appeals for the Ninth Circuit, which lays-down controlling precedent for United States Federal District Courts in California and several other states and territories,[27] there is a sliding scale for the standard of proof on these elements; which means “a stronger showing of one element may offset a weaker showing of another.”[28]

 

The court also grappled, inter alia, with the language of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030,[29] which prohibits and sanctions unauthorized (whether lacking authorization ab initio or with authorization later revoked), or improperly elevated or improperly applied access to a computer or computer system, because although the LinkedIn profiles were public, they rested on one or more private servers, which were computers.[30]  However, as the court finally opined, “[…] hiQ has, at the very least, raised serious questions as to applicability of the CFAA to its conduct.[31]

 

“The CFAA must be interpreted in its historical context, mindful of Congress’ purpose. The CFAA was not intended to police traffic to publicly available websites on the Internet – the Internet did not exist in 1984. The CFAA was intended instead to deal with “hacking” or “trespass” onto private, often password-protected mainframe computers.”[32]

 

With regard to hiQ‘s claims that the LinkedIn conduct had violated applicable California free speech laws, the court was more circumspect.  hiQ had cited to Robins v. Pruneyard Shopping Ctr.,[33] a case involving attempts to curtail political speech in a privately-owned shopping mall, to analogize that the LinkedIn site was a public forum akin to a shopping mall with guaranteed free access, free speech, and free association, because “[…] the state’s guarantee of free expression may take precedence over the rights of private property owners to exclude people from their property.”[34]

 

The court was very loathe to start traveling down this most slippery of slopes, stating that: no court had, as yet, extended Pruneyard to the internet in so complete a manner; unlike a shopping mall, the Internet had no single controlling authority; there may result significant repercussions on the capacity of social media hosts to curate posted materials in such a public forum; and there was a lingering question as to whether the same rules would apply to the websites of small, medium, and large entities, alike.[35]  The court therefore concluded, that “[i]n light of the potentially sweeping implications discussed above and the lack of any more direct authority, the Court cannot conclude that hiQ has at this juncture raised “serious questions” that LinkedIn’s conduct violates its constitutional rights under the California Constitution.[36]

 

On the balance, the court agreed that hiQ had raised enough of a question as to whether LinkedIn’s actions against it had violated the provisions of California’s Unfair Competition Law (UCL)[37] by “leveraging its power in the professional networking market for an anticompetitive purpose”;[38] disagreed that hiQ had either claimed to be a third-party beneficiary of LinkedIn’s promise to its users that they could control the publicity of their profiles, or shown that a third-party could assert such a claim of promissory estoppel in the first instance;[39] and agreed that the public interest favoured a granting of hiQ’s injunction, because “[i]t is likely that those who opt for the public view setting expect their public profile will be subject to searches, date (sic) mining, aggregation, and analysis.”[40]

 

 

CONCLUSION:

 

Of note, regarding all of its claims and especially the estoppel claim, hiQ had also argued that LinkedIn had long acquiesced to its usage of the website and publicly available user data in this way; including attending hiQ conferences where the host thoroughly explained its methodology and business model, and even gave at least one LinkedIn employee an award.[41]  Indeed, some industry commentators have opined that LinkedIn has merely had a change in policy subsequent to its acquisition by Facebook which the courts should not enjoin, and they foresee several other negative repercussions from the outcome of this case if hiQ prevails, and they expect LinkedIn to appeal the District Court ruling.[42]  However, there are also several strong voices supporting hiQ that see negative repercussions if LinkedIn prevails.[43]

 

Suffice it so say that for now, LinkedIn has been Ordered to withdraw its cease and desist letters to hiQ, and stop blocking hiQ, both with immediate effect from the August 14, 2017 date of the Order of Edward M. Chen, United States District Judge.[44]

 

We await LinkedIn’s appeal,[45] if any, but in the interim …… all who so do, are advised to publicly shout, and to publicly whisper, with caution, because they never know who might be cataloguing their words – and where those words that they own might land; (or more specifically, land the originator of those very words) in this Gig e-conomy[46] that exemplifies the gentle admonition that “sharing is daring!

 

 

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Author:

Ekundayo George is a lawyer and sociologist.  He is a keen student of organizational and micro-organizational behavior and has gained significant experience in regulatory compliance, litigation, and business law and counseling.  He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services and Public Finance, Public Procurement, Healthcare and Public Pensions, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.

 

Of note, Mr. George has now worked at the municipal government, provincial government, and federal government levels in Canada, as well as at the municipal government, state government, and federal government levels in the United States.  He is also a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and enjoys complex systems analysis in legal, technological, and societal milieux.

 

Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT).  See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

 

[1] See Infra note 7 at Introduction, ¶2.  hiQ does specifically state in its Complaint, that: “hiQ does not analyze the private sections of LinkedIn, such as profile information that is only visible when you are signed-in as a member, or member private data that is visible only when you are “connected” to a member. Rather, the information that is at issue here is wholly public information visible to anyone with an internet connection.”  But See HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 6.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>…

“LinkedIn maintains that […] while the information that hiQ seeks to collect is publicly viewable, the posting of changes to a profile may raise the risk that a current employee may be rated as having a higher risk of flight under Keeper even though the employee chose the Do Not Broadcast setting. hiQ could also make data from users available even after those users have removed it from their profiles or deleted their profiles altogether. LinkedIn argues that both it and its users therefore face substantial harm absent an injunction; if hiQ is able to continue its data collection unabated, LinkedIn members’ privacy may be compromised, and the company will suffer a corresponding loss of consumer trust and confidence” [emphasis added].

[2] Id. at Introduction, ¶5.  On this point, hiQ writes to specify LinkedIn’s 5 levels of profile visibility preference, and emphasize its own limited access to and use of same:

“LinkedIn members can choose to (1) keep their profile information private; (2) share only with their direct connections; (3) share with connections within three degrees of separation; (4) allow access only to other signed-in LinkedIn members, or (5) allow access to everyone, even members of the general public who may have no LinkedIn account and who can access the information without signing in or using any password. It is only this fifth category of information – wholly public profiles – that is at issue here: hiQ only accesses the profiles that LinkedIn members have made available to the general public.”

[3] Thomas Lee.  LinkedIn, HiQ Spat Presents Big Questions for Freedom, Innovation.  Published July 8, 2017 on sfchronicle.com.  Web: <http://www.sfchronicle.com/business/article/LinkedIn-HiQ-spat-presents-big-questions-for-11274133.php#comments>

[4] Ibid.

[5] LinkedIn Corporation.  RE: Demand to Immediately Cease and Desist Unauthorized Data Scraping and other Violations of LinkedIn’s User Agreement.  Letter dated May 23, 2017.  Web: <https://static.reuters.com/resources/media/editorial/20170620/hiqvlinkedin–ceaseanddesist.pdf>

[6] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. October 9, 2015).  ORDER Granting Application for Default Judgment, issued by Charles R. Breyer, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA).  Web: <http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv03816/257395/280/>

[7] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-LB (N.D. Cal. June 7, 2017).  COMPLAINT FOR DECLARATORY JUDGMENT UNDER 22 U.S.C. § 2201 THAT PLAINTIFF HAS NOT VIOLATED: (1) THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030); (2) THE DIGITAL MILLENNIUM COPYRIGHT ACT (17 U.S.C. §1201);(3) COMMON LAW TRESPASS TO CHATTELS; OR (4) CAL. PENAL CODE § 502(c); INJUNCTIVE RELIEF TO ENJOIN: (1) INTENTIONAL INTERFERENCE WITH CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE; (2) UNFAIR COMPETITION (CAL. BUS. & PROF. CODE § 17200); (3) PROMISSORY ESTOPPEL; AND (4) VIOLATION OF CALIFORNIA FREE SPEECH LAW; AND RELATED MONETARY RELIEF. Filed 2017, in the United States District Court for the Northern District of California (USDC, NDCA).  Web: <https://www.unitedstatescourts.org/federal/cand/312704/1-0.html>

[8] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA).  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[9] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. October 9, 2015).  ORDER Granting Application for Default Judgment, issued by Charles R. Breyer, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA).  Web: <http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv03816/257395/280/>

[10] Id. at 2.

[11] Ibid.

[12] Id. at 3.

[13] Id. at 2.

[14] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. October 9, 2015).  ORDER Granting Application for Default Judgment, issued by Charles R. Breyer, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 3.  Web: <http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv03816/257395/280/>

[15] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. November 20, 2012).  First Amended Complaint.

Web: <http://www.3taps.com/images/pics/430_Amended Compalint .pdf>

[16] Supra note 14 at 3.

[17] Ibid.

[18] LinkedIn Corporation.  RE: Demand to Immediately Cease and Desist Unauthorized Data Scraping and other Violations of LinkedIn’s User Agreement.  Letter dated May 23, 2017.  Web: <https://static.reuters.com/resources/media/editorial/20170620/hiqvlinkedin–ceaseanddesist.pdf>

[19] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-LB (N.D. Cal. June 7, 2017). COMPLAINT FOR DECLARATORY JUDGMENT UNDER 22 U.S.C. § 2201 THAT PLAINTIFF HAS NOT VIOLATED: (1) THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030); (2) THE DIGITAL MILLENNIUM COPYRIGHT ACT (17 U.S.C. §1201);(3) COMMON LAW TRESPASS TO CHATTELS; OR (4) CAL. PENAL CODE § 502(c); INJUNCTIVE RELIEF TO ENJOIN: (1) INTENTIONAL INTERFERENCE WITH CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE; (2) UNFAIR COMPETITION (CAL. BUS. & PROF. CODE § 17200); (3) PROMISSORY ESTOPPEL; AND (4) VIOLATION OF CALIFORNIA FREE SPEECH LAW; AND RELATED MONETARY RELIEF.  Filed 2017, in the United States District Court for the Northern District of California (USDC, NDCA).  Web: <https://www.unitedstatescourts.org/federal/cand/312704/1-0.html>

[20] Id. at Introduction, ¶1.

[21] Id. at ¶¶27-8.

[22] Id. at ¶28.

[23] Id. at ¶¶34, 38, 46.

[24] Id. at ¶29.

[25] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 3.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>…

[26] Id. at 4.

[27] The United States Court of Appeals for the Ninth Circuit covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington state.  See generally Geographical Boundaries of United States Courts of Appeals and United States District Courts.  Online: <https://www.supremecourt.gov/about/Circuit Map.pdf>

[28] Supra note 25 at 4.

[29] Congress of the United States, United States Code18 USC 1030: Fraud and related activity in connection with computers.  Title 18: Crimes and Criminal Procedure; Part I: Crimes; Chapter 47: Fraud and False Statements. Web: <uscode.house.gov/browse/prelim@title18/part1/chapter47&edition=prelim>

[30] Supra note 25 at 10.

[31] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 16.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[32] Id. at 10.

[33] See Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 905 (1979).

[34] Supra note 31 at 18

[35] Id. at 19.

[36] Id. at 20-21.

[37] See Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §17200 et seq.

[38] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 21.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[39] Id. at 23.

[40] Id. at 24.

[41] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-LB (N.D. Cal. June 7, 2017). COMPLAINT FOR DECLARATORY JUDGMENT UNDER 22 U.S.C. § 2201 THAT PLAINTIFF HAS NOT VIOLATED: (1) THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030); (2) THE DIGITAL MILLENNIUM COPYRIGHT ACT (17 U.S.C. §1201);(3) COMMON LAW TRESPASS TO CHATTELS; OR (4) CAL. PENAL CODE § 502(c); INJUNCTIVE RELIEF TO ENJOIN: (1) INTENTIONAL INTERFERENCE WITH CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE; (2) UNFAIR COMPETITION (CAL. BUS. & PROF. CODE § 17200); (3) PROMISSORY ESTOPPEL; AND (4) VIOLATION OF CALIFORNIA FREE SPEECH LAW; AND RELATED MONETARY RELIEF. Filed 2017, in the United States District Court for the Northern District of California (USDC, NDCA), at ¶7.  Web: <https://www.unitedstatescourts.org/federal/cand/312704/1-0.html>

[42] See generally Tristan Greene.  The future of your data could rest in the outcome of LinkedIn vs HiQ case.  Posted August 24, 2017 on thenextweb.com.  Web: <https://thenextweb.com/insider/2017/08/24/hiq-is-the-david-to-linkedins-goliath-in-legal-battle-over-user-data/#.tnw_Q1Tn05Hv>…

[43] Id.

[44] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 21.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[45]  – Reserved

[46] For a general overview of the Gig e-conomy and its monopoly potential, see e.g. Ekundayo George.  Monopolies and Market Dominance in the “GIG” e-conomy: What Might These Look Like / Are We There Yet?  Published July 16, 2017 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/>

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ECJ

INTRODUCTION:

On October 6, 2015,[1] the Court of Justice of the European Union (ECJ) declared invalid a decision of the European Commission on July 26, 2000[2] that had, pursuant to the relevant EU data protection law,[3] granted and acknowledged safe harbour for certain United States entities when transferring the personal data of European Union citizens to, and processing and storing that data within the United States. The case had been referred to the ECJ for a preliminary ruling from the High Court of Ireland, with a subsequent non-binding Opinion from the ECJ Advocate General, Yves Bot,[4] that the ECJ eventually followed.

CASE HISTORY:

The case began when Maximilian Schrems, an Austrian Citizen (and law student at that time), spearheaded a group to file a complaint with the Irish Data Protection Commissioner (DPC)[5] against Facebook Ireland Ltd, which is the company’s European headquarters. When Billy Hawkes, the Irish DPC rejected the case,[6] Schrems and his group sought and were granted judicial review at the High Court of Ireland.[7] Citing pre-emption on the key issues by European law, Mr. Justice Hogan adjourned the case pending referral to the European Court of Justice (ECJ).[8] Those key issues were: (a) whether the Edward Snowden revelations of 2013[9] revealed such a wholesale (both actual and potential) lack of compliance with European law that the U.S. Safe Harbour provisions with regard to transferring the personal information of European Citizens were essentially invalid; and (b) whether EU member states were bound by controlling EU privacy laws regarding those safe harbours, or free to pursue their own investigations into allegations of privacy breach or other non-compliance as and when needed, and were then subsequently able to suspend data transfers if they violated EU laws and/or EU citizen rights. Advocate General Bot had opined in the affirmative on both of these points,[10] and the ECJ agreed.

IMPLICATIONS:

Being effective immediately and with no grace period (or period of suspended invalidity as would likely have been applicable in Canada,[11] were the matter heard under Canadian jurisdiction),[12] the ruling immediately put the businesses and business practices of thousands of entities in legal jeopardy for their reliance on an invalid law. Fortunately for all, the European Union’s 28 national data protection authorities, acting through their Article 29 Working Party, issued an October 16, 2015 statement[13] encouraging those entities impacted by the ruling to negotiate, establish, and implement their own interim measures to ensure compliance with the ruling, including, in a later Q&A compliance release of November 6, 2015, that they “consider putting in place any legal and technical solutions to mitigate any possible risks they face when transferring data”;[14] assuring European businesses and citizens that privacy and data protection remained key elements of European law, and that they would issue further guidance at a national level, but at a later date; and implying quite strongly, that coordinated enforcement actions might issue if an appropriate successor framework could not be negotiated with the United States by the end of January, 2016.[15] That specific “deadline” language, read:

“If by the end of January 2016, no appropriate solution is found with the US authorities and depending on the assessment of the transfer tools by the Working Party, EU data protection authorities are committed to take all necessary and appropriate actions, which may include coordinated enforcement actions.”[16]

Essentially, then, the Commissioners agreed to implement a suspended enforcement as they could not retroactively seek or secure any period of suspended invalidity from the ECJ, and nobody had asked for one to be considered on the possibility of such a decision resulting. It would have been interesting to read the ECJ views on Canadian and other such precedent …. Perhaps we’ll read that some other time!

For now, we watch as companies scramble to “not” comply with this newly invalid law;[17] we wait for both that national European guidance (whether or not uniform or coordinated);[18] and we follow – to the extent made public – negotiations between the United States and Europe up to January 31, 2016. There may already be light at the end of that negotiation tunnel, as two identical bills – H.R.1428[19] in the House of Representatives (now passed by the full House), and S.1600 in the United States Senate[20] may eventually grant the United States District Court for the District of Columbia (USDC, DC) exclusive jurisdiction to hear foreign citizens’ privacy breach complaints against federal (not state) government actors of the United States. But, only the President can sign any final version of either Bill, into law.

In addition, the matter – now transferred back to the Irish High Court for further deliberations, may still result in a finding that Facebook cannot provide adequate data privacy protections for European citizens. If again referred or appealed to the ECJ, and upheld, Facebook’s European operations might cease under subsequent enforcement actions in one or many European jurisdictions on such a ruling.

And so, one way or the other, we wait![21]

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Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in regulatory compliance, litigation, and business law and counseling. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

[1] Schrems (Judgment) [2015] EUECJ C-362/14 (06 October 2015), [2015] EUECJ C-362/14, [2015] WLR(D) 403, EU:C:2015:650, ECLI:EU:C:2015:650. Online: http://www.bailii.org/eu/cases/EUECJ/2015/C36214.html

[2] Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (OJ 2000 L 215, p. 7)

[3] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).

[4] Case C-362/14 Maximillian Schrems v. Data Protection Commissioner [2015] EUECJ C-362/14, Opinion of AG Bot (23 September 2015). Online: http://www.uni-muenster.de/Jura.itm/hoeren/itm/wp-content/uploads/C0362_2014-EN-Opinion.pdf

[5] RTE News. Data Protection Commissioner says no action will be taken against Apple and Facebook. Published on rte.ie, July 26, 2013. Online: http://www.rte.ie/news/2013/0726/464770-data-protection/

[6] Id.

[7] Schrems v. Data Protection Commissioner [2014] IEHC 310 (18 June 2014). Online:http://www.bailii.org/ie/cases/IEHC/2014/H310.html

[8] Ruadhán Mac Cormaic. High Court refers Facebook privacy case to Europe. Published on irishtimes.com, June 19, 2014. Online: http://www.irishtimes.com/business/technology/high-court-refers-facebook-privacy-case-to-europe-1.1836657

[9] Barton Gellman. Edward Snowden, after months of NSA revelations, says his mission’s accomplished. Published on washingtonpost.com, December 23, 2013. Online: >http://www.washingtonpost.com/world/national-security/edward-snowden-after-months-of-nsa-revelations-says-his-missions-accomplished/2013/12/23/49fc36de-6c1c-11e3-a523-fe73f0ff6b8d_story.html

[10] Supra note 4.

[11] Schachter v. Canada, [1992] 2 S.C.R. 679 at 715-16, 1992 CanLII 74 (SCC) per Lamer, CJ. Online: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/903/index.do

A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void. This approach is clearly appropriate where the striking down of a provision poses a potential danger to the public (…) or otherwise threatens the rule of law (…). It may also be appropriate in cases of underinclusiveness as opposed to overbreadth. For example, in this case some of the interveners argued that in cases where a denial of equal benefit of the law is alleged, the legislation in question is not usually problematic in and of itself. It is its underinclusiveness that is problematic so striking down the law immediately would deprive deserving persons of benefits without providing them to the applicant. At the same time, if there is no obligation on the government to provide the benefits in the first place, it may be inappropriate to go ahead and extend them. The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine whether to cancel or extend the benefits. (Citations omitted).

[12] As I wrote in an earlier blog post, Canadians are very much aware of the challenges of international data governance and transnational privacy protection. See e.g. Ekundayo George. In who’se pocket is your data packet? – International Data Governance. Published on ogalaws.wordpress.com, February 6, 2013. Online:

https://ogalaws.wordpress.com/2013/02/06/in-whose-pocket-is-your-data-packet-international-data-governance/

[13] Article 29 Working Party (Art. 29 WP). Statement on the implementation of the judgement of the Court of Justice of the European Union of 6 October 2015 in the Maximilian Schrems v Data Protection Commissioner case (C-362-14). Brussels, October 16, 2015. Online: http://ec.europa.eu/justice/data-protection/article-29/press-material/press-release/art29_press_material/2015/20151016_wp29_statement_on_schrems_judgement.pdf

[14] European Commission – Fact Sheet. Q&A: Guidance on transatlantic data transfers following the Schrems ruling.

MEMO/15/6014. Brussels, November 6, 2015. Online: http://europa.eu/rapid/press-release_MEMO-15-6014_en.htm

[15] Supra, note 13.

[16] Id.

[17] See e.g. supra, note 14.

[18] Technology executives and politicians alike have even warned that if these concerns over, and an increasingly vocal resistance to, targeted and/or bulk collection of personal data through government surveillance continue to “trend”, we may very soon see a real splintering of the internet into several disparate and walled-off variants. See e.g. Stephen Lawson, IDG News Service. Jitters over US surveillance could break the Internet, tech leaders warn. Published on itworld.com, October 8, 2014. Online: http://www.itworld.com/article/2825590/security/jitters-over-us-surveillance-could-break-the-internet–tech-leaders-warn.html

[19] First introduced in the United States House of Representatives (the “House”) on March 18, 2015 by Representative F. James Sensenbrenner, a Wisconsin Republican, the HR.1428 Bill is officially known as The Judicial Redress Act of 2015, and has a stated purpose “[t]o extend Privacy Act remedies to citizens of certified states, and for other purposes”. Online: https://www.congress.gov/bill/114th-congress/house-bill/1428/all-info

[20] First introduced in the United States Senate (the “Senate”) on June 17, 2015 by Senator Christopher S. Murphy, a Connecticut Democrat, the S.1600 Bill has now been referred (as H.R.1428) to the Senate Judiciary Committee, but it is yet to be considered and voted upon by the full Senate. Online: https://www.congress.gov/bill/114th-congress/senate-bill/1600/all-info

[21] *Reserved (pending further news).

Aereo has had quite an exciting ride since its advent on the business scene and unbridled challenge to incumbents in the media and broadcast space,[1] to its defense of several and serial legal and regulatory challenges that went as far as the United States Supreme Court,[2] its maneuvering to find some safe harbor that would permit continued operations,[3] and its eventual succumbing in filing for bankruptcy,[4] after losing the fight against a temporary injunction[5] that sounded the death knell of its business model.

 

Of course, if you subscribe to the “circle of life, death, and rebirth”, then an end may also be a beginning, as shown by regulatory hints or suggestions[6] that the copyright and broadcast rules may be changed or even go so far as to favour entities such as Aereo in the future.[7] However, we will only know and believe it when we can see, sell, order, download, and display it (and out of), prime time.

 

Whether the company was a little guy (with big funding), that was just too far ahead of its time,[8] or an upstart that flaunted the law and appropriately got slammed for it,[9] varies by audience. On that much, we can all continue to disagree. However, until such time as another Aereo rises, or the rules change to invite same, Aereo is a part of business and media history,[10] and rather unlikely to make a comeback.

 

In all corners of the media and infotainment space – both new and old, lessons have been taught, and hopefully learned.

_____________________________________________________

Author:

Ekundayo George is a lawyer and a sociologist.  He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling, diverse litigation, and regulatory compliance practice.  He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications through work in the Satellite Policy Branch, International Bureau, at the Federal Communications Commission, eCommerce, Outsourcing, and Cloud contracts); Financial Services, Healthcare, Entertainment, Real Estate and Zoning; International/cross-border trade and other service industry sub-sectors; and Environmental Law & Policy.  A published author on the National Security aspects of Environmental Law, he has also represented clients in courts and before regulatory bodies in both the United States and Canada, and he enjoys complex systems analysis in legal, technological, and societal milieux.

 

As a Lead Consultant and founder of a consulting subsidiary, Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on small, medium and large strategic projects with multiple stakeholders and multidisciplinary teams.  Our selected consulting competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education and Training; Law and Regulation; Policy and Plans; Statistics, Economics, and Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT) in other parts of the world.  See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

********************************************************************

[1] See Ekundayo George. WNET, THIRTEEN v. Aereo, Inc.: Antennas Jousting in and at Clouds, in the Eye of a Global Storm. Posted April 28, 2014, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2014/04/28/wnet-thirteen-v-aereo-inc-antennas-jousting-in-and-at-clouds-in-the-eye-of-a-global-storm/<

[2] See Ekundayo George. WNET THIRTEEN v. Aereo, Inc. – the United States Supreme Court (U.S.S.C.) Verdict. Posted June 26, 2014, on ogalaws.wordpress.com. Online: > https://ogalaws.wordpress.com/2014/06/26/wnet-thirteen-v-aereo-inc-the-united-states-supreme-court-u-s-s-c-verdict/<

[3] Aereo sought relief and an operating reprieve by way of the statutory licensing of cable transmissions through the below section of the Copyright Act; with itself to be deemed as a cable broadcaster in light of analysis within the United States Supreme Court’s ruling. However, the Copyright Office declined to grant it that status in a letter to Aereo of July 16, 2014, as the Aereo transmissions were not sufficiently “localized”. The Copyright Office did, however, accept the filing provisionally, pending further legislative or regulatory developments.

 

17 U.S. Code §111 – Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable. See Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, United States Copyright Office. Letter to Aereo. Re Section 111 Statement of Account Filings, dated July 16, 2014. Posted on nab.org and visited November 25, 2014. Online: >http://www.nab.org/documents/newsRoom/pdfs/071614_Aereo_Copyright_Office_letter.pdf< See also Cornell Legal Information Institute (LII), 17 U.S.C. §111. Online: >http://www.law.cornell.edu/uscode/text/17/111<

 

Aereo also sought relief from the FCC, in having itself deemed a multichannel video program distributor (MVPD) over the internet. Noting a lack of clear legal rules that could assist new entrants in their challenge to incumbents, and their efforts at market expansion in favour of the consumer, Counsel for Aereo wrote in the letter, that:

 

“The Commission could provide such assurance to new market entrants like Aereo by defining or construing “MVPDs” to include systems that transmit linear channels of video programming to consumers via the internet—thereby securing to all MVPDs, in a technology-neutral way, the right to engage in timely, good faith negotiations to license channels by retransmission consent.”

 

After meeting with the FCC Commissioners and senior staffers to present its case and plea for an expedited notice of proposed rulemaking (NPRM) procedure, however, and before the Commission could issue a ruling on the matter, the New York Federal District Court made its adverse preliminary injunction ruling against Aereo.

 

“Finally, Aereo emphasized that timely Commission action is crucial to its ability to bring such a service to market. Issuing the proposed NPRM within the next several weeks, and adopting the proposed rule within several months thereafter, would support Aereo’s re-launch as a viable and sustainable new entrant in competition with incumbent MVPDs.”

 

See Seth Greenstein, Esq., of Constantine Cannon LLP, Counsel to Aereo. Letter to the Federal Communications Commission (FCC), Re: Ex Parte Presentation Notice, Interpretation of the Terms “Multichannel Video

Programming Distributor” and “Channel,” MB Docket No. 12-83, dated October 10, 2014. Published on apps.fcc.gov. Online: >http://apps.fcc.gov/ecfs/document/view?id=60000972464<

[4] On November 20, 2014, Aereo filed for protection from its creditors under Chapter 11 (reorganization) of the United States Bankruptcy Code, in the United States Bankruptcy Court for the Southern District of New York. The case number is 1:14-bk-13200. See Pacer for a fuller chronology of the petition. Online: >https://www.pacermonitor.com/public/case/5258727/Aereo,_Inc<

[5] See American Broadcast Companies, Inc., v. Aereo, Inc., 12-cv-1540, and WNET et al. v. Aereo, Inc., 12-cv-1543, October 23, 2014 temporary injunction Opinion and Order of The Honourable Alison J. Nathan, United States District Judge, in the United States District Court for the Southern District of New York. Posted on nab.org, visited November 25, 2014. Online: >http://www.nab.org/documents/newsRoom/pdfs/102314_Aereo_injunction.pdf<

 

“In light of the Supreme Court’s decision, Plaintiffs are now able to demonstrate a likelihood of success on the merits. The balance of hardships also now tips in their favor and, as previously held, an injunction would not disserve the public interest, Aereo I, 874 F. Supp. 2d at 403-404.”

Opinion and Order at page 16: III Conclusion.

 

The court in its ruling, soundly rejected both the Aereo’s arguments under 17 U.S.C. §111 (community antenna television system/cable broadcaster), and 17 U.S.C. §512(a) (innocent conduit). See also 17 U.S. Code §512 – Limitations on liability relating to material online. Published on Cornell Legal Information Institute (LII). Online: >http://www.law.cornell.edu/uscode/text/17/512<

[6] See T.C. Scottek. FCC considers backdoor rule change that could jumpstart the era of internet television. Posted May 23, 2012, on theverge.com. Online: >http://www.theverge.com/2012/5/23/3038777/fcc-rule-change-internet-tv-cable-mvpd< In 2012, conventional wisdom placed the FCC on the verge of re-interpreting the word “channel” under the Communications Act of 1934 (as amended by the Telecommunications Act of 1996), to be used both ““in a “container” sense, to refer to a range of frequencies used to transmit programming, and in a “content” sense to refer to the programming itself,”” which would have put internet television providers (online video distributors, or “OVDs”) such as Hulu and Netflix into the same category as mainstream cable and satellite companies – such as Comcast and TimeWarner, and forced the incumbent major networks to provide them with content as multichannel video programming distributors (MVPDs). However, the initiative did not hold its ground.

[7] Chairman Tom Wheeler, the United States Federal Communications Commission (FCC). Tech Transitions, Video, and the Future (Official FCC Blog). Posted October 28, 2014, on fcc.gov/blog. Online: >http://www.fcc.gov/blog/tech-transitions-video-and-future<

 

“The mantra “Competition, Competition, Competition” fits perfectly with consumers’ desires for video choices. That’s why I’m asking my fellow Commissioners to update video competition rules so our rules won’t act as a barrier to this kind of innovation. Specifically, I am asking the Commission to start a rulemaking proceeding in which we would modernize our interpretation of the term “multichannel video programming distributor” (MVPD) so that it is technology-neutral. The result of this technical adjustment will be to give MVPDs that use the Internet (or any other method of transmission) the same access to programming owned by cable operators and the same ability to negotiate to carry broadcast TV stations that Congress gave to satellite systems in order to ensure competitive video markets.”

 

“A key component of rules that spur competition is assuring the FCC’s rules are technology-neutral. That’s why the definition of an MVPD should turn on the services that a provider offers, not on how those services reach viewers. Twenty-first century consumers shouldn’t be shackled to rules that only recognize 20th century technology.” (Emphasis added).

 

[8] TMP Staff. Aereo bankruptcy: A visionary tech startup killed off by big media and courts? Posted November 22, 2014, on techmediapolitics.com. Online: >http://www.techmediapolitics.com/aereo-bankruptcy-a-visionary-tech-startup-killed-off-by-big-media-and-courts/<

[9] Joan E. Solsman. Aereo’s bankruptcy filing marks a fade to black: After months of “not dead yet” declarations, the streaming-TV startup files for Chapter 11 reorganization, the clearest sign that a Supreme Court ruling set it on a road to nowhere. Published November 21, 2014, on cnet.com. Online: >http://www.cnet.com/news/aereo-files-for-bankruptcy-protection/<

[10] See e.g. Aereo. The Next Chapter. Posted November 21, 2014, on blog.aereo.com. Online: >http://blog.aereo.com/2014/11/next-chapter/<

 

In April, we presented a brief summary of the Aereo case, its history, and some of the issues, laws, and policies at stake,[1] as the case awaited a final judicial opinion from the United States Supreme Court (U.S.S.C.). Now, the U.S.S.C. has ruled,[2] and the result for Aereo, was bad.

 

WHO (which side or what) WON?

The broadcaster won, as Aereo was found to have infringed their exclusive copyrights in making near-simultaneous “transmissions”[3] of the copyrighted works at issue through its record-and-stream service, to any subscriber “personal computer, tablet, smart phone, Internet-connected television, or other Internet-connected device.”[4]

 

The Judges

Six Judges formed the majority opinion (Holding) – delivered by Breyer, J, and joined by Roberts, C.J., and Kennedy, Ginsburg, Sotomayor, and Kagan, JJ. Three Judges felt and would have ruled otherwise (Dissent), which Scalia, J, delivered, and Thomas and Alito, JJ, joined.

 

WHY?

Each transmission (under the Aereo service “watch” function)[5] was deemed to be a performance (with viewer initiation deemed an insufficient intervening issue to render Aereo akin to a copy shop that could not be held liable for patron copyright infringement),[6] and each such performance was deemed to be a performance to the public (with no weight given to the fact that they received their performances individually).[7] In its Holding, however, the Court noted that it was not issuing any opinion on the copyright status of transmitting the pre-recorded programming that an Aereo customer had recorded for later playback through the service[8] (the “record” function).[9] Neither, for that matter, was it passing issue on any other technologies that had not been brought before it:

We agree with the Solicitor General that “[q]uestions involving cloud computing,[remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented.[10]

 

Similarly, the availability of additional action from Congress, was also acknowledged:

And we note that, to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress.[11]

 

WHAT NEXT?

 

In the Case

The verdict below (denying the injunction) was reversed, and the case was remanded to the United States Court of Appeals for the Second Circuit for further proceedings accordingly.

For Aereo:

Now, Aereo must shut down under a temporary injunction pending final disposition of the additional issues on remand. It can then:

(a) never re-open;

(b) re-open under a new business model that (it might claim) does not infringe copyright;

(c) re-open after negotiating mutually-acceptable copyright licensing fees with the broadcasters (which will be unlikely, as the rates requested will likely make Aereo subscriber-fees equal to or higher than cable rates in order for good cost-recovery and preservation as a going concern);

(d) re-open, as led by a “rogue element” or in the form of a copycat/knock-off, in a jurisdiction that has a different view of United States and international copyright laws – and perhaps other laws, as seems the norm in the current climate, but with varying results (as with Bitcoin, Mega Upload, proponents of online gambling, and others); or

(e) pursue a fifth, as yet undetermined path.

 

In Congress:

The United States Congress is, as always, free to consider amending or clarifying any law that might jeopardize or impinge negatively, upon existing or proposed business ventures.

 

For Everyone Else:

In the meantime, other cases may be brought (citing this ostensibly limited Aereo precedent), by and between competitors who want to shut each other down. The field (and courts) may become quite crowded as the level and depth of “artful pleading” on the topic progresses.

(…) [T]hen (assuming one shares the majority’s estimation of right and wrong) what we have before us must be considered a “loophole” in the law. It is not the role of this Court to identify and plug loop­holes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes.[12]

 

THE DISSENT

The dissenting opinion also deserves some further consideration. Justice Scalia found that Aereo made no performance whatsoever – whether public or private – and he championed the copy shop analogy in his opinion, [13] as earlier stated.

The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.[14]

 

Further criticising the Courts “guilt by resemblance regime”,[15] Justice Scalia notes that there is a lack of any “volitional conduct” by Aereo:

(i) as contemplated by the language of the Copyright Act and legal authorities on the Copyright Act;[16]

(ii) that has been upheld by every United States Circuit Court that has opined on the issue (an upon which the Supreme Court still had yet to rule);[17] and he further finds –

(iii) that Aereo is essentially neither like a video-on-demand service nor a pure and simple copy shop; “[r]ather, it is akin to a copyshop that provides its patrons with a library card[18] (in the form of those Aereo antennae that customers can use to call-up programming that may either be in the public domain already, or still remain copyright-protected).

 

Ironically, even though Justice Scalia appears to have concurred in the practical result (reversal and remand) but not the process, his dissent is not captioned as so concurring, and he goes to great lengths to critique the legal result (bifurcation into 2 separate tests for primary infringement: the traditional volitional act standard, and the new Aereo lookalike standard).

I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it. As discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement.

 

Justice Scalia feels that the Aereo ruling has opened a can of worms, but the majority feels that it has effectively kicked the ball back into the Congressional corner for much needed clarification through amendments that accord to the modern (and fast-changing) technological landscape. Sadly enough, I think that both sides of the Court may be right in their predictions, and the amendment process will be hard-fought with many more related cases in the interim.

 

So, did the public interest win, as I had originally hoped? I would say no, because a broader or more comprehensive ruling would have settled more issues, saved on judicial resources (in future cases re-biting this apple), and clarified the landscape for those related current businesses such as the cloud, proposed or potential future businesses, and of course, Aereo itself. As things now stand, the United States Court of Appeals for the Second Circuit may still be second-guessed by the United States Supreme Court on the matter of Aereo’s secondary liability for performance infringement, primary and secondary liability for reproduction infringement, or related matters; as may other Circuit courts if there are glaring or highly technical splits in their opinions on copyright law and related matters going forwards.[19]

 

Clearly, this issue has not been fully, effectively, or finally settled.[20]

 

*********************************************************************

 

Author:

Ekundayo George is a sociologist and a lawyer. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other Services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

 

Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant- sourcing, managing, and delivering on large, strategic projects with multiple stakeholders and multidisciplinary teams. Our competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – sometimes also termed Information Communications Technologies, or ICT). See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.

 

[1] See Ekundayo George. WNET THIRTEEN v. Aereo, Inc.: Antennas Jousting in and at Clouds, in the Eye of a Global Storm. Published on ogalaws.wordpress.com, April 28, 2014. Online: > https://ogalaws.wordpress.com/2014/04/28/wnet-thirteen-v-aereo-inc-antennas-jousting-in-and-at-clouds-in-the-eye-of-a-global-storm/< The case is actually 2 cases: WNET Thirteen et al. v. Aereo Inc.; and American Broadcasting Companies, Inc., et al v. Aereo, Inc.  The Supreme Court decision uses the latter case caption.

[2] American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014). No. 13–461, Slip Opinion, argued April 22, 2014—Decided June 25, 2014, Supreme Court of the United States (U.S.S.C.). Online: >http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf<

[3] See Cornell Legal Information Institute (LII). U.S. Code: Title 17 – Copyrights. Online: >http://www.law.cornell.edu/uscode/text/17<

 

17 U.S.C. §101 – Definitions.

To perform or display a work “publicly” means-

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. (Emphasis added).

[4] Supra note 2.  American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014), Slip Op. (Holding) at 2.

[5] Justice Scalia discussed the “watch” and “record” functions in his dissent.  See Id. Slip Op. (Dissent) at 11.

[6] Id. Slip Op. (Holding) at 10.

In other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act. But the many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here. We conclude that Aereo is not just an equipment supplier and that Aereo “perform[s].”

See also Infra, note 13 and accompanying text.

[7] American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014). No. 13–461, Slip Op. (Holding) at 15, argued April 22, 2014—Decided June 25, 2014, Supreme Court of the United States (U.S.S.C.). Online: >http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf<

Similarly, an entity that transmits a performance to individuals in their capacities as owners or possessors does not perform to “the public,” whereas an entity like Aereo that transmits to large numbers of pay­ing subscribers who lack any prior relationship to the works does so perform. (…) In other words, “the public” need not be situated together, spatially or temporally. For these reasons, we conclude that Aereo transmits a performance of petitioners’ copyrighted works to the public, within the meaning of the Transmit Clause.

[8] Id. Slip Op. (Holding) at 17.

We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us.

[9] Id. Slip Op. (Dissent) at 11. Legality of the “record” function is one of the matters set for resolution on remand.

[10] Id. Slip Op. (Holding) at 17, citing to the Brief for United States as Amicus Curiae 34 (itself quoting Sony, supra, at 431 (alteration in original)).

[11] Id.

[12] See e.g. American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014). No. 13–461, Slip Op. (Dissent) at 12, argued April 22, 2014—Decided June 25, 2014, Supreme Court of the United States (U.S.S.C.). Online: >http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf<

[13] Id. Slip Op. (Dissent) at 4.

[T]he customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customer’s commands. Because the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy.

[14] Id. Slip Op. (Dissent) at 1.

[15] Id. Slip Op. (Dissent) at 10.

[16] Id. Slip Op. (Dissent) at 2-3.

The Networks’ claim is governed by a simple but profoundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act. See 3 W. Patry, Copyright §9:5.50 (2013). This requirement is firmly grounded in the Act’s text, which defines “perform” in active, affirmative terms: (…).

[17] American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014). No. 13–461, Slip Op. (Dissent) at 3, argued April 22, 2014—Decided June 25, 2014, Supreme Court of the United States (U.S.S.C.). Online: >http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf<

Every Court of Appeals to have considered an automated-service provider’s direct liability for copyright infringement has adopted that rule. See Fox Broadcasting Co. v. Dish Network LLC, 747 F. 3d 1060, 1066–1068 (CA9 2014); Cartoon Network, supra, at 130–131 (CA2 2008); CoStar Group, Inc. v. LoopNet, Inc., 373 F. 3d 544, 549–550 (CA4 2004).1 Although we have not opined on the issue, our cases are fully consistent with a volitional-conduct requirement.

[18] Id. Slip Op. (Dissent) at 5, 6.

[19] If, due to this very narrow ruling, additional issues are raised by the Aereo case, the parties may well return to the United States Supreme Court for a second bite at this apple. The Court may well have inadvertently created for itself, a serial visitor.

[20] Please stay tuned!

  1. WHAT IS IT?

Aereo, the service, allows people to watch re-transmitted television programming (live, or recorded by the customer as individualized copies) over the internet on compatible devices, and at their own time-shifted leisure.[1] This is accomplished through technical wizardry that allocates miniature antennae to each subscriber to link with Aereo’s cloud-based data servers, thereby serving every customer separately, but at once.[2]

 

  1. WHY IS THERE A PROBLEM?

The problem starts with the International Law of Copyright, which grants a bundle of exclusive rights[3] to the creators of certain artistic and literary works.[4] These include the rights to reproduction and public performance, and that is why creators of content get royalties, and broadcasters are paid for their signals (out of which they, in turn, also pay royalties). Most simply put, Aereo contends that:

(i) the recording of this formerly licensed content (an exception to Copyright when done for private usage) is the function that it facilitates; and

(ii) the later viewing of that content as recorded or time-shifted, as well as the original viewing of that content if not recorded or time-shifted, is (due to the antenna usage and individualized copies) a private performance for each customer so viewing it, being another exception to Copyright. As a result, they should not need to pay anyone for anything, and neither should their customers.

The broadcast networks as producers, creators, licensors and purveyors of copyrighted content disagreed (and still do) most vehemently with this, and characterized the Aereo business model in much of their verbal arguments and submissions to the courts at various levels, as nothing more than theft.

 

  1. WHERE DID THIS ALL GO?

So far, the broadcasters tried to stop Aereo before it launched in 2012, suing for an injunction in Federal District Court for the Southern District of New York (as copyright is a matter of federal law). The Judge denied their injunction request.

“Because the Court concludes that it cannot accept Plaintiffs’ novel attempt to distinguish Cablevision, Plaintiffs have not shown a likelihood of success on the merits. And although they have demonstrated that they face irreparable harm, they have not demonstrated that the balance of hardships decidedly tips in their favor. As such, the Court DENIES Plaintiffs motion for a preliminary injunction.”[5]

Then, the broadcasters appealed to a panel of three judges at the United States Court of Appeals for the Second Circuit (2d. Cir.). Two of those judges affirmed the ruling below in denying the injunction, but one of them dissented and took the side of the broadcasters.[6] In their opinion that favoured Aereo, the 2nd Circuit majority cited to their decision in Cartoon Network,[7] an earlier case, and focused-in on the “transmission” element of exclusive public performance rights.[8] As the Second Circuit majority wrote in finding there was no infringing public performance, there had been no intervening United States Supreme Court (U.S.S.C.) decision since Cablevision that would warrant ruling against an established and much relied-upon (especially by the Cloud industry) Appellate decision, and the Appellants could not provide sufficient reasons to depart from that Cablevision ruling in the Aereo case.[9]

 

CARTOON NETWORK/CABLEVISION

In Cartoon Network, Cablevision Systems Corporation (CSC) proposed to start providing its customers with a remote storage, digital video recorder (RS-DVR) device, to which the plaintiffs took deep offence. As the plaintiffs complained:

On information and belief, Cablevision will provide the Service as follows: Cablevision will give Service subscribers the opportunity to request that Cablevision make a copy of programming. The request can be made either as the programming is airing or in advance of the airing time. Upon receiving such a request, Cablevision will make an unauthorized digital copy of that programming on one of its own servers, at the time the programming airs. (…) Cablevision will store the unauthorized copy on its servers for an indefinite period of time. On demand from a Service subscriber, Cablevision will transmit this stored programming to the subscriber in the same way as it transmits its On Demand service.”[10]

At this first instance, the federal District Court in the Southern District of New York agreed that the proposed service would cause a direct infringement of plaintiffs’ exclusive reproduction rights (17 U.S.C. §106(1), and the plaintiffs’ exclusive public performance rights (17 U.S.C. §106(4)).[11] Hence, the Federal District Court for the Southern District of New York (S.D.N.Y.) entered summary judgment for the plaintiffs and granted an injunction barring any unlicensed copying or public performance of plaintiffs’ copyrighted materials, and essentially, banning the service.[12] CSC promptly appealed, and the United States Court of Appeals for the Second Circuit (2d Cir.) reversed and remanded, vacating the injunction with a summary judgment, finding that the S.D.N.Y. had erred in reaching that conclusion.[13] However, the window for potential liability was not totally closed, as the Second Circuit wrote:

This holding, we must emphasize, does not generally permit content delivery networks to avoid all copyright liability by making copies of each item of content and associating one unique copy with each subscriber to the network, or by giving their subscribers the capacity to make their own individual copies. We do not address whether such a network operator would be able to escape any other form of copyright liability, such as liability for unauthorized reproductions or liability for contributory infringement.”[14] (emphasis added).

The plaintiffs appealed to the United States Supreme Court (U.S.S.C.), but the Court denied Certiorari (which meant that it declined to hear the case). The fact that the U.S.S.C. has now decided to hear the Aereo case, which must be decided on a similar matter, shows that something may be changing in its thinking on Copyright, and/or the public interest in light of fast-moving technological developments.

 

  1. WHEN WILL WE KNOW?

The United States Supreme Court is expected to render a decision in or about June, 2014. After that, there is no higher court and nothing can be changed other than by an amendment of law by Congress. It is possible that Congress might act to change something before the Court rules. However, due to high demonstrated partisanship and a desire amongst the parties to see how the Supreme Court Judges think on the issues as they analyze the cases and facts, this is unlikely to happen within the next few months.

 

  1. WHO (as in which side) “SHOULD” WIN?

This is the kicker, because there are other prongs to consider if one performs a fuller horizon scan and “TOP” Analysis,[15] to look at the bigger picture. Let me focus on just three of these other prongs:

First, there is the public interest; second, there is technical pushback; and third, there is related law. I will address these in reverse order.

 

RELATED LAW (net neutrality) –

On this third prong, the United States Federal Communications Commission (FCC) has just announced a pending potential end to the doctrine of “Net Neutrality”. This doctrine, encompassed by 3 principles,[16] is the FCC commitment to “ensuring that every American has access to open and robust high-speed Internet service- or broadband”.[17] Ushering-in a new paradigm, the FCC has recently announced that it will circulate proposed rules to modify those rules. Before anyone had seen the proposed legislation, speculation began to spread that a two-tiered internet would result – one for the haves, and one for the have-nots. The FCC moved swiftly to correct the record, and FCC Chairman Tom Wheeler, stated inter alia, that: “[t]he allegation that it will result in anti-competitive price increases for consumers is also unfounded. That is exactly what the “commercially unreasonable” test will protect against: harm to competition and consumers stemming from abusive market activity.”[18]

If these proposed rules come into force, then marketing of faster internet services and service speeds for a fee, may become the order of the day. Aereo service (if sustainable under the law) could be marketed as a faster or slower alternative, as applicable, or it could still be slowed down and throttled into obscurity in its journey to those consumer Form Factors (phones, tablets, and computers) by ISPs who are weary of running afoul of that still potentially available “contributory infringement” liability left open by the Cablevision court.

 

THE GLOBAL STORM (more related law) –

The above are just some of the many possible results that may still come on the domestic scene. Then, of course, there is also the international dimension. Brazil has recently passed, in the lower house, an internet law the “Marco Civil” championing equal access (net neutrality), multiparty governance (no more U.S. hegemony), and certain other privacy protections for Brazilian citizens.[19] Consider also, that:

(i) On September 12, 2011, China, Russia, Tajikistan, and Uzbekistan proposed an Internet Code of Conduct to the United Nations;[20]

(ii) On February 12, 2014, the European Commission put forth a proposal for democratizing the internet and ostensibly reducing the dominance of certain parties and practices, stating that: “[i]n the wake of large-scale Internet surveillance and reduced trust in the internet, the European Commission today proposes a key reform to the way the Internet is managed and run. The proposal calls for more transparent, accountable and inclusive governance”;[21]

(iii) The United States National Telecommunications and Information Administration (NTIA), a federal government entity, announced on March 14, 2014, that it will withdraw from its leadership role in the Internet Corporation for Assigned Names and Numbers (ICANN), as originally envisaged, but now also (and with certain caveats) “[t]o support and enhance the multistakeholder model of Internet policymaking and governance;”[22] and

(iv) Going back to Brazil, the nation also recently hosted Net Mundial, an April 23-24, 2014 conference on the preferred future of the internet.[23]

Many of us have read or seen various “works of fiction” depicting alternative realities in a future where different jurisdictions and groups of jurisdictions have wildly different laws in the technology field, but all still manage to somehow, “almost” get along with the words “Free”, or “Neutral” in their names. Electronic conduct that is completely illegal in one, may be more permissible or even empowered by law in the other – consider mass surveillance as against mass and effective encryption; copyright infringement as against fair usage; differential download speeds (for a fee) as against one speed for all; and so forth. Any platform provider doing business in multiple such “Zones” may be moved to have, and provide, and support multiple devices for multiple such locations; or may in the alternative, be encouraged or compelled to have a single device with different functionalities either enabled or disabled by insertion of a chip-type device that is specific to each Zone, and the laws and mores of each Zone.

The seed for this is already here in phone “sim” cards. However and at the same time, we have seen how one person’s internet programming and/or oversight mistake can apparently endanger the entire system;[24] how some cybersecurity vulnerabilities may allegedly come pre-installed;[25] and how export restrictions and sanctions can starve persons and places of critical technologies.[26] As a result, once you take technology made by someone else, somewhere else, subject to the will of some other government(s) … you “are” in their debt for updates and support, and you “may also be” in their pocket!

Whatever the case and whichever way you look at it, something is building-up and the world is going somewhere that looks like that general “work of fiction” direction.

Will this be:

DOOR NUMBER ONE – A single internet with a unified governance system;

DOOR NUMBER TWO – Multiple internets with disparate rules and eBusinesses juggling to retain compliance due to their many governments and government groups “seeing RED” in arguing for:

(i) “R”egulatory sovereignty and “R”eal sovereignty (rules and regulations, and the right to react and redact in the face of social media free? speech created by foreign governments,[27] economically enabled from other jurisdictions, or owned by opaque/operated by irresponsible foreign entities,[28] as well as the right and capability to detect, detour-about, defuse, debunk and delete information warfare, manipulated media, and ruinous requisitioned reporting – a.k.a. censorship);

(ii) “E”lectronic sovereignty (payment systems, virtual currencies, financial transparency, and autonomy to engage in cybercrime countermeasures, and to develop and deploy (offensive), and detect and defend against (defensive) electronic warfare operations in, from, or to any one or any place in any way, and at any time); and

(iii) “D”ata sovereignty (data and personal privacy and the way and means in which it may be curtailed or canceled outright, data residence including the extraterritorial treatment of the data of its own Citizens, and assorted solo and coalition national security operations in the data domain); or –

DOOR NUMBER THREE …….??

 

TECHNICAL PUSHBACK (digi-tagging)

On this second prong, content owners are already quite adept at Region Coding[29] on DVDs, to ensure that the content on them can only be accessed in those regions for which they have been specifically pre-programmed to work. It may now be technically possible to have:

(i) sub-codes for timed release (to prevent unfavourable time-shifting);

(ii) sub-codes for specific ISPs and phone telecommunications entities (to prevent cross-portability of content – although this may well defeat the purpose of “broadcast” by turning it into “limi-cast”, or run so afoul of some analogy on free number portability between carriers, or other laws and regulations, that it is unfeasible); or

(iii) some other digi-tag countermeasure.

 

PUBLIC INTEREST (sometimes subjective) –

On this first prong, we have a wildcard that nobody can predict. Is it more in the public interest to have content widely available, than it is to uphold a rigid reading of the law? Is it better to read the law loosely and protect fledgling domestic businesses like Aereo as well as U.S. global Cloud industry giants (based in the United States but under foreign and domestic suspicion after the Snowden revelations[30]), while allowing a perceived weakening of copyright protections? Will any of these three prongs be considered in a determination of whether the proposed merger of Comcast and Time Warner[31] will be in the public interest, or whether that proposed merger has any bearing on the Aereo case? Who can say?

I think that the public interest “should” win, but only the Court can decide what that public interest is, and on which side of the litigation it will finally fall. All of us, including the litigants, can only wait and see what and where that will be ………. and then Congress as a group can say yea or nay, or just let it be.

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Author:

Ekundayo George is a sociologist and a lawyer. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other Services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant- sourcing, managing, and delivering on large, strategic projects with multiple stakeholders and multidisciplinary teams. Our competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – sometimes also termed Information Communications Technologies, or ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.

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[1] See Aereo. What is Aereo?   Visited April 24, 2014. Online: >http://support.aereo.com/customer/portal/articles/359733-what-is-aereo< For details on further proceedings in this case, see also Ekundayo George.  WNET THIRTEEN v. Aereo, Inc. – the United States Supreme Court (U.S.S.C.) Verdict.  Posted on ogalaws.wordpress.com, June 26, 2014.
Online: >https://ogalaws.wordpress.com/2014/06/26/wnet-thirteen-v-aereo-inc-the-united-states-supreme-court-u-s-s-c-verdict/<

[2] See Aereo. About. Visited April 24, 2014. Online: >https://aereo.com/about<

[3] Cornell Legal Information Institute (LII). U.S. Code: Title 17 – Copyrights. Online: >http://www.law.cornell.edu/uscode/text/17<

17 U.S.C. §106 – Exclusive rights in copyrighted works.

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 

Government of Canada, Justice Laws Website. Copyright Act. Online: >http://laws-lois.justice.gc.ca/eng/acts/C-42/FullText.html<

Copyright Act (R.S.C., 1985, c. C-42) – Canada.

PART I COPYRIGHT AND MORAL RIGHTS IN WORKS

Copyright in works.

3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

(a) to produce, reproduce, perform or publish any translation of the work,

(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,

(h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,

(i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and

(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

and to authorize any such acts.

[4] Copyright law is codified in the United States at 17 U.S.C. § 101 et seq. With a few distinctions, such as the definitions of works protected in different countries (e.g. “original works of authorship fixed in any tangible medium of expression” in the United States and “literary, dramatic, musical, and artistic works (…) computer programs” in Canada), the law is quite uniformly applied through a number of treaties and conventions beyond the limited scope of this blog post. See also note 3, supra.

17 U.S.C. §102 – Subject matter of copyright: In general.

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

[5] See judgment of July 11, 2012, issued by the Honourable Alison J. Nathan, U.S.D.J., in WNET Thirteen et al. v. Aereo Inc.; American Broadcasting Companies, Inc., et al v. Aereo, Inc.,874 F. Supp. 2d 373 (S.D.N.Y. Jul. 11, 2012), at page 52. Online: >https://www.eff.org/files/filenode/Denial%20of%20PI.pdf< In saying and citing “Cablevision”, the judge was referring to the 2nd Circuit’s 2008 “Cartoon Network” decision, infra at note 7 of this blog post.

[6] See WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc., 12-2786-cv; 12-2807-cv (2d Cir. 2012), decided April 1, 2013. Dissenting opinion of The Honorable Denny Chin, Circuit Judge. Online:  >http://docs.justia.com/cases/federal/appellate-courts/ca2/12-2807/202356377/0.pdf< For substantially the same reasons, Judge Chin was also joined by Judge Richard C. Wesley, Circuit Judge, in dissenting to the denial of an en banc hearing on the appeal (by the entire United States Court of Appeals for the Second Circuit). Online: > http://www.ca2.uscourts.gov/decisions/isysquery/2dcd67b0-2b31-42d4-a190-1f09b735f5d2/2/doc/12-2786_12-2807_enbanc_complete.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2dcd67b0-2b31-42d4-a190-1f09b735f5d2/2/hilite/<

[7] The Cartoon Network LP, LLLP v. CSC Holdings, Inc., 07-1480-cv(L) & 07-1511-cv(CON), 536 F. 3d 121 (2d Cir. 2008), decided August 4, 2008. Online: >https://www.eff.org/files/filenode/studios_v_cablevision/cablevision-decision.pdf<

[8] See Cornell Legal Information Institute (LII), supra note 3.

17 U.S.C. §101 – Definitions.

To perform or display a work “publicly” means-

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

See also supra note 1 and accompanying text. Aereo’s individual antennae (apparently) make the performances and re-performances private, thus technologically avoiding a “public” element needed for copyright infringement.

[9] WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc., 12-2786-cv; 12-2807-cv (2d Cir. 2012), decided April 1, 2013, at note 19 of the ruling and accompanying text. Online: >https://www.eff.org/files/filenode/aereo_opinion.pdf< Cartoon Network and Cablevision are used interchangeably in this blog post.

[10] See ¶20 of original Complaint of The Cartoon Network LP. LLLP and Cable News Network LP, LLLP, filed May 26, 2006, in the United States District Court for the Southern District of New York, as 06-cv-4092. Online: >http://tipp.ucla.edu/documents/case50/Cartoon_Network%27s_Complaint.pdf

[11] See judgment of April 4, 2007, issued by The Honorable Denny Chin, U.S.D.J., in The Cartoon Network LP. LLLP et al v. CSC Holdings, Inc. et al, 06-cv-4092 and 06-cv-3990 (S.D.N.Y. Apr. 4, 2007), at paragraphs 4-5. Online: >http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2006cv04092/285045/62<

[12] Id. at paragraph 6. The full reasoning and opinion behind that S.D.N.Y. judgement, can also be found here: Online: >http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2006cv04092/285045/61<

[13] Supra note 6, Cartoon Network, at 44.

[14] Supra note 6, Cartoon Network, at 43-44.

[15] See Ekundayo George. “TOP” analysis: a timely successor to SWOT analysis? Published on ogalaws.wordpress.com, May 6, 2012. Online: >https://ogalaws.wordpress.com/2012/05/06/top-analysis-a-timely-successor-to-swot-analysis/<

[16] See United States Federal Communications Commission (FCC). Guide: The Open Internet. Online: >http://www.fcc.gov/guides/open-internet<

The FCC and Open Internet Rules.

“There are three basic Open Internet rules:

1. Transparency: Broadband providers must disclose information regarding their network management practices, performance, and the commercial terms of their broadband services;

2. No Blocking: Fixed broadband providers (such as DSL, cable modem or fixed wireless providers) may not block lawful content, applications, services or non-harmful devices. Mobile broadband providers may not block lawful websites, or applications that compete with their voice or video telephony services;

3. No Unreasonable Discrimination: Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. The no blocking and no unreasonable discrimination rules are subject to limited exceptions for “reasonable network management.””

[17] Id.

[18] Commissioner Tom Wheeler, Chairman of the Federal Communications Commission. Setting the Record Straight on the FCC’s Open Internet Rules. Published on fcc.gov, April 24, 2014. Online: >http://www.fcc.gov/blog/setting-record-straight-fcc-s-open-internet-rules<

[19] See Mike Palmedo. English Translation of the New Version of Brazil’s Marco Civil (courtesy of Carolina Rossini).  Posted on infojustice.org, November 18, 2013. Online: >http://infojustice.org/archives/31272< Please note that this early version shown is not exactly the same as the actual version recently passed.

[20] United Nations Organization (UN). Letter dated 12 September 2011 from the Permanent Representatives of China, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to the Secretary-General.  Sixty-sixth session Item 93 of the provisional agenda* Developments in the field of information and telecommunications in the context of international security. A/66/359.  Dated September 14, 2011. Online: >http://content.netmundial.br/files/67.pdf<

[21] European Commission. Commission to pursue role as honest broker in future global negotiations on Internet Governance. Press Release published on europa.eu, February 14, 2014. Online: >http://europa.eu/rapid/press-release_IP-14-142_en.htm<

[22] National Telecommunications and Information Administration (NTIA). NTIA Announces Intent to Transition Key Internet Domain Name Functions. Press Release posted on ntia.org, March 14, 2014. Online: >http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions<

[23] RT. Brazil passes ‘internet constitution’ ahead of global conference on web future. Posted on rt.com, April 23, 2014.   Online: >http://rt.com/news/154168-brazil-internet-freedom-law-conference/<  See also >http://netmundial.org/<

[24] Robert Merkel. How the Heartbleed bug reveals a flaw in online security. Posted on theconversation.com, April 11, 2014. Online: >http://theconversation.com/how-the-heartbleed-bug-reveals-a-flaw-in-online-security-25536<

[25] Danielle Walker. Pre-installed security software leaves computers vulnerable to remote hijack, experts reveal.

Posted on scmagazine.com, February 12, 2014. Online: >http://www.scmagazine.com/pre-installed-security-software-leaves-computers-vulnerable-to-remote-hijack-experts-reveal/article/333808/< See also Lily Hay Newman. One More Reason to Stop Using Internet Explorer. Posted on slate.com, April 28, 2014. Online: >http://www.slate.com/blogs/future_tense/2014/04/28/internet_explorer_has_a_vulnerability_that_microsoft_admits_is_being_exploited.html<

[26] Staff Report. Iran sanctions main hurdle in gas pipeline. Published on dailytimes.com.pk, April 28, 2014. Online: >http://www.dailytimes.com.pk/business/11-Apr-2014/iran-sanctions-main-hurdle-in-gas-pipeline<  But see Srinivas Laxman. India overcame US sanctions to develop cryogenic engine. Posted on indiatimes.com, January 6, 2014. Online: >http://timesofindia.indiatimes.com/india/India-overcame-US-sanctions-to-develop-cryogenic-engine/articleshow/28449360.cms<

[27] Desmond Butler, Jack Gillum, and Alberto Arce. US secretly created ‘Cuban Twitter’ to stir unrest. Posted on ap.org, April 4, 2014. Online: >http://bigstory.ap.org/article/us-secretly-created-cuban-twitter-stir-unrest<

[28] Sometimes, the dealings of odd entities, nondescript government agencies, and extremely wealthy families and individuals, can be found to have occurred in well-known, but un-named and highly opaque (if not regulatorily impenetrable) “tax-advantaged” jurisdictions.

[29] Sony Corporation. What are DVD region codes? Available on us.en.kb.sony.com, last Updated: 01/07/2014. Online: >https://us.en.kb.sony.com/app/answers/detail/a_id/38063/~/what-are-the-dvd-region-codes%3F<

[30] Stephen Shankland. Snowden revelations spook Hightail’s cloud-computing customers. Published on cnet.com, December 11, 2013. Online: >http://www.cnet.com/news/snowden-revelations-spook-hightails-cloud-computing-customers/<

[31] Comcast. Time Warner Cable to Merge with Comcast Corporation to Create a World-Class Technology and Media Company. Press Release posted on comcast.com, February 13, 2014. Online: >http://corporate.comcast.com/news-information/news-feed/time-warner-cable-to-merge-with-comcast-corporation<

PREAMBLE:

So far in this study, we have introduced the complexities of 3 of the 5 Domains or “faces” of Data as a complex system: Form Factors,[1] Applications,[2] and Categories.[3] Now, in Part 4, we consider End-Users.

 

ANALYSIS:

End-Users.

These are the different users and user-groups who can and do, make various uses of the data.

 

Level 2 (provenance): As the ultimate consumer, that end-user can be any or all of an individual or a group, a business or business group, or a government or government agency, or government collective. Hence, at this level, we have placed just two options: (i) Insiders, who are the known and permitted users of the data, and (ii) Outsiders, who are the not permitted but sometimes known users of the data, if and when a breach can be tracked-back to its point of origin,[4] or when the user without permission can be found.

 

Level 3 (management): Here, the end-users can be categorized into three separate groups for management purposes. (i) Vetted, are those end-users who have been cleared and properly credentialed for data access. (ii) Unknown users are those with spoofed or un-trusted credentials – whether it is hacked passwords, expired security certificates, or other sharp workarounds of security protocols that allow data access. (iii) CMC, are those criminal, malicious, or compromised users who may appear to be vetted or unknown, but who have ulterior motives. The essential and constant challenge for all IT security and IT governance professionals is to ensure that the vetted remain vetted; the unknown do not become or appear to be vetted; and that the CMC remain on the outside of the trusted data-user community. [5]

 

Level 4 (security): As with earlier installments, there are on this level, categories for: (i) identity and access management (IAM); (ii) management “controls for risk, encryption, and security technique” (CREST); and two categories for regulatory compliance, being (iii) Regulatory Compliance (generic) which includes privacy and Intellectual Property Rights (IPR); and (iv) Regulatory Compliance (specific), which includes subnational, national, and transnational rules, and any industry-specific codes of compliance.

 

Level 5 (attack vectors): Here, we will specify the attack vectors as targeted at or emanating from, one or more of these five distinct groups. These are: (i) individual; (ii) family; (iii) group or network; (iv) business or business group; and (v) government, or government agency or collective. The individual might be a hacktivist, or someone with a form factor that has been unknowingly compromised. The family, again, might just be the innocent victim of a botnetted[6] machine within the household that identifies their IP address as the attack’s malicious source. The group or network may have third-party packet sniffer software installed that its Sys-admin does not catch, or chooses to ignore and/or not disclose to others. And then, the business or business group may be compromised directly, or through a third-party vendor.[7] Recent revelations about alleged government cooperation with internet and technology companies,[8] show how this fifth attack vector might stand alone; might combine with the third in a complicit Sys-admin (who does or does not see a lawful warrant); or might even combine with a targeted intelligence operation by a government agency that sees a keylogger, for example, installed on a business or household form factor known or suspected to be used by, some person of interest.[9]

 

Level 6 (aggregation): Finally, data end-users can also be found and aggregated across 6 spaces. There are two, under each of: (a) being at the individual’s option (such as for biometrics and geolocation, or other consumer-friendly applications – as opted-into or “not” opted-out of); (b) the commercial need and machine-driven (such as for SCADA/Supervisory Control and Data Acquisition, RFID/Radiofrequency Identification, or other business-inspired or business enhancing applications; and (c) the Government-aggregation (for various overt matters including health, morals and welfare, on one hand; or for covert matters, such as law enforcement and intelligence-driven surveillance operations, on the other hand).

 

CONCLUSION:

The depth and breadth of Data as a complex system continue to be enhanced by the interactions of its five Domains, and of the many faces therein. Having now considered Form Factors, Applications, Categories, and End-Users, our next and final installment will consider the “Scale” Data Domain.[10]

*********************************************************************

Author:

Ekundayo George is a sociologist and a lawyer. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other Services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, and enjoys complex systems analysis in legal, technological, and societal milieux.

 

Mr. George is also an experienced strategic consultant; sourcing, managing, and delivering on large, strategic projects (investigations, procurements, and diverse consulting engagements) with multiple stakeholders and multidisciplinary project teams. See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.

____________________________________________________

[1] Ekundayo George. The 100 “FACES” of Data: a 5-part Complex Systems Study (Part 1 – Form Factors). Published on ogalaws.wordpress.com, November 1, 2013. Online: >https://ogalaws.wordpress.com/2013/11/01/the-100-faces-of-data-a-5-part-complex-systems-study-part-1/<

[2] Ekundayo George. The 100 “FACES” of Data: a 5-part Complex Systems Study (Part 2 – Applications). Published on ogalaws.wordpress.com, December 27, 2013. Online: >https://ogalaws.wordpress.com/2013/12/27/the-100-faces-of-data-a-5-part-complex-systems-study-part-2-applications/<

[3] Ekundayo George. The 100 “FACES” of Data: a 5-part Complex Systems Study (Part 3 – Categories). Published on ogalaws.wordpress.com, February 4, 2014. Online: >https://ogalaws.wordpress.com/2014/02/04/the-100-faces-of-data-a-5-part-complex-systems-study-part-3-categories/<

[4] Both insiders and outsiders can be sources of significant threat to any business, or other data producer or data consumer. However, some research shows that the most significant threat comes from the outsider. See e.g. Ericka Chickowski. Should Insiders Really Be Your Biggest Concern? Published on darkreading.com, April 23, 2013.   Online: > http://www.darkreading.com/insider-threat/should-insiders-really-be-your-biggest-c/240153455 <. See contra. Ponemon Institute. Fourth Annual Benchmark Study on Patient Privacy and Data Security. Published on ponemon.org, March 12, 2014. Online: >http://www.ponemon.org/blog/fourth-annual-benchmark-study-on-patient-privacy-and-data-security< In the medical field with regard to patient data security, insider risk is greater.

[5] There is a technical, definitional difference between unauthorized and non-credentialed. Credentials, such as passwords, pass keys, and biometric inputs all grant access, and so a properly credentialed user may be vetted and therefore authorized to access data on system A, but although vetted, “not” unauthorized to access data on system B. That user on system A may nevertheless try to gain access to data on system B, as a CMC (criminal, malicious, or compromised) user. On the other hand, if one gains access or attempts to gain access to data on system A or system B with stolen or spoofed credentials (apparently vetted), or through a credentials workaround (clearly non-credentialed), then this is essentially a non-credentialed access by an unknown user (absent the availability of more information), and it is unauthorized.

[6] Jeremy Reimer. FBI: Over one million computers working for botnets. Posted on arstechnica.com, June 14, 2007. >http://arstechnica.com/security/2007/06/fbi-over-one-million-computers-working-for-botnets/<

[7] Brian Krebs. Email Attack on Vendor Set Up Breach at Target. Published on krebsonsecurity.com, February 12, 2014. Online: >http://krebsonsecurity.com/2014/02/email-attack-on-vendor-set-up-breach-at-target/<

[8] Anthony Wing Kosner. All Major Tech Companies Say NSA Actions Put Public Trust In Internet At Risk. Published on forbes.com, December 9, 2013. Online: >http://www.forbes.com/sites/anthonykosner/2013/12/09/all-major-tech-companies-say-nsa-actions-puts-public-trust-in-internet-at-risk/<

[9] Declan McCullagh. Feds use keylogger to thwart PGP, Hushmail. Published on cnet.com, July 10, 2007. Online: >http://www.cnet.com/news/feds-use-keylogger-to-thwart-pgp-hushmail/<

[10] See Ekundayo George.  The 100 “FACES” of Data: a 5-part Complex Systems Study (Part 5 – Scale).  Published on ogalaws.wordpress.com, May 15, 2014.  Online: >http://www.ogalaws.wordpress.com/2014/05/15/the-100-faces-of-data-a-5-part-complex-systems-study-part-5-scale/<

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