The Law and Technology

In this blog I will disucuss the confluence between traditional and emerging doctrines of law, and technological applications of the 21st Century.


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Thursday, October 26, 2006

Technosis Inducement - A New Cause of Action?

I am sure that anyone who is reading this knows at least one person who is constantly using some sort of devise used to 'stay connected'. They walk down the street chatting on their cell phone, pause to read and respond to email on their blackberry, check news/stocks/sports on their cell phone, and then jump on their laptops - and this is all before they have even arrived at work or school. This condition is commonly known as 'technosis' or 'technophilia', and it's basically an obsession with 'staying connected'.

For the average person, in fact for every person, no one absolutely needs this kind of connectivity. It's one thing when a CEO is in the process of negotiating a very large deal, or a lawyer is in the middle of a big, highly publicized trial - at these times it probably does pay to stay connected on a constant basis. However, it really does take a certain type of narcissism to actually believe that your day-to-day affairs are so high priority that any semblance of a private life needs to be sacrificed entirely.

This condition did not occur over night. Rather, as new types of wireless devices hit the market, large companies have been encouraging their personnel to stay connected on a constant basis. Recent studies that have been cited in last Monday's edition of Investors Business Daily show that there are almost no executives out there who are not constantly connected. More importantly, this type of connectivity can easily impact one's personal life, and adversely effect one's family life and psychological condition (personally, I can't stand it when my wife is glued to her Blackberry during our few moments of the day that we spend together).

Since it could be argued that this condition could be attributed to the actions and policies of employers, could 'technosis inducement' one day surface as a new cause of action? I think that it's a long shot, but who knows these days? I can imagine a creative tort lawyer arguing that an employer's conduct constituted negligent infliction of emotional distress, or maybe even intentional infliction of emotional distress if the actions are particularly egregious. I suppose we will have to see...

Tuesday, October 24, 2006

Is Google the Next to be Sued?

Since it received so much press coverage, I am sure that most people have heard of Google's recent acquisition of YouTube. A sizable issue that has been raised is whether Google will likely be sued due to possible copyright and trademark infringement located on the YouTube site.

In the past, private parties and large organizations like the RIAA and MPAA have sued dozens of web sites that feature infringing content. Even if we are to assume that YouTube does not market itself as a method of infringement (like in the Napster and Grokster cases), and even assuming that YouTube does not know that the infringing content exists, they are still amenable to suit since they profit from the infringement and they are in a position of control over the infringement.

In such a suit, Google and YouTube would have two likely legs to stand on. First, they could argue that they are not liable since it is not reasonable for them to examine the literally millions of postings, searching for infringing content. While this seems like a good argument as a practical matter, I am not aware of any case where a court actually agreed with such an assertion. There have been cases where such a defense was argued (i.e. the recent Marvel case involving a video game that allowed users to create custom characters, a miniscule percentage of which were arguably infringing), however these cases were all settled before a legal determination was made. A second defense is that YouTube may fall within the safe-harbor provisions of the DMCA. Whether or not this defense will work really depends on facts that are clearly not public, but given the extreme complexities of the DMCA, there is at least a substantial chance that the exceptions do not apply to YouTube.

Shortly after youTube was acquired by Google, several parties stated or implied on the record that they were gearing up for a lawsuit. However, no one has filed yet to date. Rather, Google has implemented a very interesting strategy. In stead of trying to fight with content owners, they either granted complaining parties an interest in the company, or simply removed whatever content was requested. In fact, literally tens of thousands of videos have been removed from the YouTube site since the acquisition. Conceivably, one could imagine that this may be the downfall of YouTube, since huge swaths of data may be removed and later posted on some future site that complies strictly with the DMCA and makes sure to decline to take profits or encourage infringing activity so as to avoid third-party infringement liability.