In The News

Entertainment Industry's New Copyright Alert System May Create New Form of Evidence in Copyright Infringement Lawsuits & Lead to Higher Damages


It was big news earlier this month when many of the big entertainment companies entered into an agreement with Internet service providers (ISPs) regarding efforts they will take to self-regulate and self-police copyright infringement. The name of this plan is the "Copyright Alert System."
According to the Wall St. Journal and the Center for Copyright Information, the plan has six steps, from the mildest (in issuing warnings), to the intermediate (in requiring users to acknowledge that they received notice), to the most severe (in slowing down the speed at which alleged infringers may access the Internet).
As a copyright lawyer who goes to court to resolve disputes, I am most interested in the intermediate step. It strikes me that if users are forced to acknowledge that they have received a warning that their conduct may constitute infringement and yet they proceed forward anyway, the fact that they acknowledged such warning may be used against them in a copyright infringement action. The ISPs will not be releasing the identity of these users voluntarily. But a court can always grant permission to subpoena material showing that they took this intermediate step. This new policy may be opening up a whole new world of evidence of willfulness that can be used against people who knowingly infringe on others' copyrights. And willful infringement entitles copyright plaintiffs to increased money damages.

 

Entertainment Industry's New Copyright Alert System May Create New Form of Evidence in Copyright Infringement Lawsuits & Lead to Higher Damages


It was big news earlier this month when many of the big entertainment companies entered into an agreement with Internet service providers (ISPs) regarding efforts they will take to self-regulate and self-police copyright infringement. The name of this plan is the "Copyright Alert System."

According to the Wall St. Journal and the Center for Copyright Information, the plan has six steps, from the mildest (in issuing warnings), to the intermediate (in requiring users to acknowledge that they received notice), to the most severe (in slowing down the speed at which alleged infringers may access the Internet).


As a copyright lawyer who goes to court to resolve disputes, I am most interested in the intermediate step. It strikes me that if users are forced to acknowledge that they have received a warning that their conduct may constitute infringement and yet they proceed forward anyway, the fact that they acknowledged such warning may be used against them in a copyright infringement action. The ISPs will not be releasing the identity of these users voluntarily. But a court can always grant permission to subpoena material showing that they took this intermediate step. This new policy may be opening up a whole new world of evidence of willfulness that can be used against people who knowingly infringe on others' copyrights. And willful infringement entitles copyright plaintiffs to increased money damages.


"Always On," Consumers Expect Businesses to Embrace Technology Even More

In this new iPhone world, where consumers can download an app at the press of a button, businesses must embrace technology or risk being left behind.  When I say embrace technology, I'm not talking about just having an Internet presence or just using social media for marketing.  I mean using technology to create new apps, tools or games that let you instantly connect and engage with your customers.

Brian X. Chen, a writer for Wired Magazine, was recently interviewed on NPR's Fresh Air from WHYY.  Here's a link to the story and the interview.  In the interview, he discussed his new book, Always On: How the iPhone Unlocked the Anything-Anytime-Anywhere Future -- and Locked Us In.

From a business perspective, the most fascinating part of the book is Chen's comment on how consumers' expectations have changed in light of the way the iPhone lets them unlock worlds of knowledge in the swipe of their phone screen.  In an excerpt from his book, he writes: "The iPhone changed our standards for what we expect from technology, and as a result, businesses are being forced to give us more for our money. We don't want seven pieces of hardware to perform seven different tasks; we want a single gadget capable of doing anything-anytime-anywhere. Soon, manufacturers will no longer be able to sell single-function gadgets lacking an internet connection because those gadgets will soon be obsolete. Consequently, a large number of companies and industries find themselves threatened because a downloadable app can easily replace nearly any dedicated, single-use product."

How is your business using technology to satisfy consumer expectations?  What app could you develop to keep your customers engaged?  Are you thinking from the mindset of a customer who owns an iPhone, and who expects information immediately? No matter your industry -- entertainment, publishing, banking, technology, professional services, arts, health care, environmental -- customers want more from you, and they expect it in the form of instantly accessed technology.

"Always On," Consumers Expect Businesses to Embrace Technology Even More

In this new iPhone world, where consumers can download an app at the press of a button, businesses must embrace technology or risk being left behind.  When I say embrace technology, I'm not talking about just having an Internet presence or just using social media for marketing.  I mean using technology to create new apps, tools or games that let you instantly connect and engage with your customers.

Brian X. Chen, a writer for Wired Magazine, was recently interviewed on NPR's Fresh Air from WHYY.  Here's a link to the story and the interview.  In the interview, he discussed his new book, Always On: How the iPhone Unlocked the Anything-Anytime-Anywhere Future -- and Locked Us In.

From a business perspective, the most fascinating part of the book is Chen's comment on how consumers' expectations have changed in light of the way the iPhone lets them unlock worlds of knowledge in the swipe of their phone screen.  In an excerpt from his book, he writes: "The iPhone changed our standards for what we expect from technology, and as a result, businesses are being forced to give us more for our money. We don't want seven pieces of hardware to perform seven different tasks; we want a single gadget capable of doing anything-anytime-anywhere. Soon, manufacturers will no longer be able to sell single-function gadgets lacking an internet connection because those gadgets will soon be obsolete. Consequently, a large number of companies and industries find themselves threatened because a downloadable app can easily replace nearly any dedicated, single-use product."

How is your business using technology to satisfy consumer expectations?  What app could you develop to keep your customers engaged?  Are you thinking from the mindset of a customer who owns an iPhone, and who expects information immediately? No matter your industry -- entertainment, publishing, banking, technology, professional services, arts, health care, environmental -- customers want more from you, and they expect it in the form of instantly accessed technology.

July 2011 Newsletter Features James Mackler, Freedom Run, Las Vegas & Online Reputation Management

Bone McAllester Norton welcomes attorney James E. Mackler to our team!  To read our newsletter, click here

Privacy? Anyone Remember What That Is?

Does privacy really exist any more?  Sure it does, but sometimes it's easy to forget. 

Take the story's in today's Tennessean: "Nashville Residents Take on Google Wi-Spy, Join Privacy Lawsuit."  Google is accused of tapping into wireless networks while it drove by individuals' houses to capture a copy of their homes for placement on Google Earth.  According to the article, the wire tapping had nothing to do with capturing images of the homes; rather, it was done to improve Google's LBS -- location based services.

What's LBS? It's new technology that allows us consumers to get more accurate information at our fingertips when we log into a new app.  For example, when you go to TripAdvisor's App, if you allow it to track your location, it can send you a map showing you restaurants, parks, hotels, and music venues -- all tailored to your location.  When I go on vacation this fall, I can open up my iPad, tap on the app, and it will move with me, knowing I'm in another location, and providing me with the same instant information -- I don't have to key in the location, because the app does it for me. 

Are there privacy concerns in this?  Of course there are.  And that's ignoring Google's alleged wire tapping.  The concerns are that we give up some privacy when our smart phones know our location.  Who else knows our location?  Surely someone's finding a way to sell that information and make money -- this is called "monetization."

As I explained while recently speaking on a panel at Lipscomb University, our free Internet, and our incredibly tech savvy tools, are not truly free, even though they appear to be.  They come at a price and, as a society, we're just beginning to see what that price is: our privacy.

The lawyers at Covington & Burling have compiled a great summary of privacy bills pending before Congress.  As Congress wades through these bills, it is faced with the same tensions we all face: how much privacy are we willing to give up in exchange for the luxuries of information technology?  To protect our privacy, we may decide it's time to pay to protect ourselves, and we may begin to realize that things that seem too good to be true (an Internet without a price tag) really might be.

Privacy? Anyone Remember What That Is?

Does privacy really exist any more?  Sure it does, but sometimes it's easy to forget. 

Take the story's in today's Tennessean: "Nashville Residents Take on Google Wi-Spy, Join Privacy Lawsuit."  Google is accused of tapping into wireless networks while it drove by individuals' houses to capture a copy of their homes for placement on Google Earth.  According to the article, the wire tapping had nothing to do with capturing images of the homes; rather, it was done to improve Google's LBS -- location based services.

What's LBS? It's new technology that allows us consumers to get more accurate information at our fingertips when we log into a new app.  For example, when you go to TripAdvisor's App, if you allow it to track your location, it can send you a map showing you restaurants, parks, hotels, and music venues -- all tailored to your location.  When I go on vacation this fall, I can open up my iPad, tap on the app, and it will move with me, knowing I'm in another location, and providing me with the same instant information -- I don't have to key in the location, because the app does it for me. 

Are there privacy concerns in this?  Of course there are.  And that's ignoring Google's alleged wire tapping.  The concerns are that we give up some privacy when our smart phones know our location.  Who else knows our location?  Surely someone's finding a way to sell that information and make money -- this is called "monetization."

As I explained while recently speaking on a panel at Lipscomb University, our free Internet, and our incredibly tech savvy tools, are not truly free, even though they appear to be.  They come at a price and, as a society, we're just beginning to see what that price is: our privacy.

The lawyers at Covington & Burling have compiled a great summary of privacy bills pending before Congress.  As Congress wades through these bills, it is faced with the same tensions we all face: how much privacy are we willing to give up in exchange for the luxuries of information technology?  To protect our privacy, we may decide it's time to pay to protect ourselves, and we may begin to realize that things that seem too good to be true (an Internet without a price tag) really might be.

July 13, 2011 Newsletter Features Recap of Beer and Liquor Legislation

The Bone McAllester Norton Alcoholic Beverage Group has kindly published a legislative recap to help you stay aware of beer and liquor laws.  To read the rest of our newsletter click here.

Changes to TABC Regulations

The TABC revised regulations governing all liquor licensees.  Our Alcoholic Beverage Group is pleased to highlight the major changes for you.  Grouped by the license held, the summaries should not replace consultation or full review.  Contact Will Cheek or Chris Raybeck with questions.

General Applicability—All Types of Licensees





  • Responsible Vendor Mitigation Program:  The TABC has established an informal program for licensees, similar to that of the responsible vendor for beer retailers.  Licensees following the program may have fines alleviated (by up to half) for any citations.  The program requires a written policy that all employees complete a course in alcohol awareness (including training on applicable laws and regulations) and annual refresher courses.


  • Prior Approval of Advertisements:  In most cases, prior TABC approval of advertising copy is no longer necessary.


Liquor-by-the-Drink (“LBD”) and Catering

  • Advertising.  The ABC eliminated the rules prohibiting advertising happy hour and drink prices.  Licensees may now advertise both, provided the happy hour on liquor ends at 10:00 p.m. and the drink price covers the cost of the ingredients.  Outside signs and billboards may advertise the name of a licensed establishment and the name of a particular brand of alcohol, as long as the LBD licensee pays for the advertising.  Also, availability of alcoholic beverages can be advertised on radio and TV, subject to the same restrictions imposed on other types of licensees.

  • Marketing.  While licensees are still prohibited from giving away alcohol, the term “give” has been refined by replacing the word “drink” with “alcoholic beverage or wine.”  Also, LBD licensees have been removed from the regulation restricting advertising novelties and specialties to consumers, broadening the types of items LBD licensees may give to customers.

  • Managers:  The TABC has specified that new managers and assistant managers have seven days to submit questionnaires to the TABC or face a citation.  Also, all managers and assistant managers should expect to need their own server permits, if they supervise those who serve alcohol.

  • Seating:  The TABC has specified that seats at bars will be counted toward the minimum 75-seat restaurant requirement if the bar is big enough and if meals are regularly served there.  Patio seating that is not heated and cooled year-round will not count toward the minimum seating requirement but will count toward the seat count for license fees.

  • Server Permits:  Temporary server permits will no longer be issued.  Also, LBD licensees must have available for review documentation of the date of hire (dated employment application, dated W-4, etc.) of all servers and managers on premises.  Without it, it will be assumed the employee has been working for more than 61 days.

  • Changing Locations:  For LBD licensees who want to change locations, an abbreviated application process is now available.

  • Catering.  For the first time, there are regulations explicitly governing catering licensees.


Retail Licensees (Off-Premises Consumption)

  • Direct Mail:  Retailers now only need a written request authorizing direct mail, eliminating the requirement of signing the request on–premises.  The rules require removal of recipients within 30 days of the second request to remove.

  • Donations to 501(c)(3) Organizations:  Retailers are authorized to make withdrawals from inventory for donations to non-profits with 501(c)(3) exempt status.

  • Tastings / Consumer Education:  Written notification to the TABC is required for tastings where the retailer hosts, sponsors, or provides an employee to work at the tasting (not just where alcohol is consumed).  The $50 processing fee for notifications has been eliminated.  Also, employee-only tastings may be held on the retailer’s premises in areas not accessible to the public.

  • Marketing:  Retailers may sell gift cards to consumers.


Manufacturers / Importers and Wholesalers

  • Visits to Retailers:  The regulations have been revised to allow manufacturers and importers to visit retailers—on and off-premises consumption—for the purpose of promoting products or attending to displays.

  • Non-Resident Sellers:  For the first time, there are regulations that explicitly govern non-resident importers and application requirements.

  • Wholesaler Deliveries:  Employees of wholesalers may now deliver up to 20 cases of alcohol in vehicles that are not owned or leased by the wholesaler, and the wholesaler name need not be affixed to the vehicle.  But, the employee must possess documentation with the seller and purchaser identity and type and size of delivery.  Also, the regulations have removed the restriction that a wholesaler may deliver to another wholesaler only if in the same county.

  • Retail Orders; Wholesaler Employee Permits:  Wholesalers are expressly prohibited from delivering and invoicing part of an order made by one retailer to another retailer.  Wholesaler employee permits are not explicitly valid for 5 years.

  • Tied-House Provisions:  The regulations prohibiting tied-houses now include references to third-party marketing entities, which are not allowed as intermediaries between industry members (manufacturers, importers, and wholesalers) and retailers.  The regulations now explicitly prohibit arrangements that result in exclusion of brands.  The monetary value of items that may be provided to retailers by industry members is now aligned with TTB amounts.  Industry members may supply outside signs to retailers, and the allowable point-of-sale advertising materials have been updated.  Industry members may provide retailers with routine business entertainment (meals, events, parties), subject to restrictions.

  • Donations:  Industry members are authorized to withdraw from inventory donations to special occasion permittees; manufacturers must do so through wholesalers.


Wineries

  • Record-Keeping:  Records regarding the source of all agricultural products used in wine production must be kept for three years.  All Tennessee-licensed wineries must file, with the TABC, their contracts with Tennessee grape growers regarding their intention to purchase grapes.

  • Sale on Premises:  The 15,000 gallon / 20% rule for annual on-premises sales has been deleted in favor of the amounts allowed by state statute.

  • Samples; Selling Non-Wine Products:  The regulations now provide that wineries may provide samples to winery visitors in certain limited areas of the winery.  Also, wineries may now sell gift-related items with wine themes or related to wine drinking.


Beer Permittees / Responsible Vendor Program

For the first time, there are regulations that explicitly govern off-premises beer permittees that have enrolled in the Responsible Vendor Program.  Many of the regulations simply articulate the TABC’s past practices.

Non-Profits (Special Events)

Regulations have been made explicitly governing special occasion permits, one-day permits allowing alcohol service in a specifically designated area by “qualified entities” (non-profits).  A formal application process is set forth, and proceeds from the special event must be deposited with the special occasion

Direct Shipment of Wine Takes Off

Shipment of wine into Tennessee was illegal until the 2009 legislature authorized a new direct shipment license.   Many industry observers thought that the direct shipment was a token to placate oenophiles, but result in few sales.  Surprisingly, nearly 400 out of state wineries have paid the $300 application fee and $150 yearly license fee, plus registering to pay Tennessee taxes.

This year, the legislature legalized direct shipment to the entire state, including dry areas where wine cannot be purchased at package stores.  Wineries no longer have to worry about determining which areas of Tennessee are approved for direct-to-consumer shipping.

Direct shipment was opposed by wholesalers and retail liquor stores, which saw direct shipment as new competition and potentially a method to avoid payment of Tennessee taxes.  Opposition to direct shipment touted the dangers of sales to minors, among other concerns that have apparently not materialized.  Direct shipment of wine was quite controversial at a national level during the 2000’s, but most states have legalized some form of direct shipment and only a handful still have an absolute prohibition.

Tennessee taxes wine at $1.21 per gallon, plus applicable sales taxes.  Despite only being able to ship one case of wine to any individual during a calendar month and an annual limit of 3 cases, the license has proven to be popular.

According to shipcompliantblog.com, “Approximately 35% of wineries that ship wine direct are licensed to ship into Tennessee. The increased market access [to dry areas in Tennessee] is likely to encourage additional wineries to add Tennessee to their direct shipping programs, meaning more consumer choice and increased state revenue.”

 

Stephen Zralek discusses online reputation management with News 2

Stephen Zralek was interviewed by WKRN on Friday in regards to online reputation management and offers his professional insight on how to handle different situations from a legal standpoint.
Posted:   Jun 24, 2011 9:13 PM CDT   


By Tiani Jones, Reporter







NASHVILLE, Tenn. – A  person"s online reputation is becoming increasingly more important as employers take to the Internet as a reference, which is why   lawyers around the country are seeing more cases involving online reputation assault.





Stephen J. Zralek is an attorney at the Bone McAllester Norton law firm in Nashville.

 

Will Cheek moderates panel on beer growlers and wine kegs.

Alcoholic Beverage Team Leader Will Cheek was a prominent attendee at the national liquor conference in Las Vegas.  Cheek moderated a panel on beer growlers and wine kegs, featuring Master Brewer Kevin Reed of the country's largest brew pub chain, CraftWorks Restaurants & Breweries, and growler compliance expert Alex Heckathorn.


Bone McAllester Norton Sponsors Youth Life Learning Centers Girls Benefit Luncheon

Bone McAllester Norton is a sponsor for this year's luncheon.



Youth Life would like to invite all leaders in the community to be a role model to young, at-risk girls at our upcoming Women and Girls Benefit Luncheon on July 28th with keynote speaker, Dr. Bernice King, daughter of Dr. Martin Luther King Jr, and Beckah Shae as musical guest.  Register now and win giveaways in various ways including Trivia Thursdays.


Women and Girls Benefit Luncheon
Time/Date:
July 28, 2011 11:00AM - 1:30PM
Description:
In celebration of its tenth anniversary, the Youth Life Foundation of Tennessee (YLFT) is hosting its first Women and Girls Benefit Luncheon, and welcomes Dr. Bernice King, daughter of Dr. Martin Luther King Jr., as the event’s keynote speaker and Beckah Shae as musical entertainment.


Based in Nashville, the Youth Life Foundation of Tennessee (YLFT) operates the Youth Life Learning Centers, after-school academics for at-risk youth in Nashville and Memphis, and in Jacksonville, Fla. through a partnership with the Boselli Foundation. With a staff of certified teachers and community volunteers, Youth Life provides educational support in academics, character development and service learning for children who live in inner-city neighborhoods. To learn more, visit www.yllc.org.

Location:
Lipscomb University, Allen Arena
One University Park Drive
Nashville TN 37204

 

June 2011 Newsletter Features New Attorney, Stephanie Taylor, Human Relations Award Dinner, Wildhorse Saloon, & Jackalope Brewing Company.

Bone McAllester Norton is thrilled to welcome Stephanie Taylor and congratulate Charles W. Bone on being honored for making a difference at the 40th Annual CommunityNashville Human Relations Award Dinner.  To read the rest of our newsletter, click here.

Jailbirds Don't Tweet

Wildhorse Saloon, 120 2nd Avenue North, Nashville


Stephen Zralek, and the Harmon Group, will present "Jailbirds Don’t Tweet:

How to Build a Social Media Campaign That Won’t Land You In Legal Hot Water”.


Click here to RSVP. When creating your login, please note that you are a guest of Bone McAllester Norton.


Complimentary light breakfast will be served.

Parking is available at the Commerce Garage on

3rd and Commerce.

Bonelaw Client Stays with Trends

Growlers, half gallon jugs used to transport beer, are one of the hottest growth areas in the beer business, most recently expanding to upscale beer stores in the Nashville area.



Nashville's newest brewery, and Will Cheek client, Jackalope, joins a growing trend of breweries selling only kegs and growlers of beer.  This allows the brewery to open without purchasing expensive bottling equipment.  Some say it also enhances the mystique of the craft brewer.

The Next Tidal Wave in Social Media: Video, Apps, QR Codes and Location-based Software

Video, apps, QR Codes and LBS (for location based software, not pounds) are about to be the next tidal wave in social media. It's not that Facebook, Twitter and LinkedIn are losing any prominence (yet), but more and more businesses are waking up to see new ways to connect with their audiences. When law firms and banks (conservative by nature) start adding video to their home pages, you know something's catching on.

As these forms of social media become more popular, they raise new issues for the law to grapple with. Who owns the content? Did you get permission to include an image of that person or that song in your video? Have you informed your users that you plan to sell information about their visiting patterns whenever they view your site? Thoughts for businesses, legislatures and the courts to consider...

The Next Tidal Wave in Social Media: Video, Apps, QR Codes and Location-based Software

Video, apps, QR Codes and LBS (for location based software, not pounds) are about to be the next tidal wave in social media. It's not that Facebook, Twitter and LinkedIn are losing any prominence (yet), but more and more businesses are waking up to see new ways to connect with their audiences. When law firms and banks (conservative by nature) start adding video to their home pages, you know something's catching on.

As these forms of social media become more popular, they raise new issues for the law to grapple with. Who owns the content? Did you get permission to include an image of that person or that song in your video? Have you informed your users that you plan to sell information about their visiting patterns whenever they view your site? Thoughts for businesses, legislatures and the courts to consider...

Bone McAllester Norton Welcomes Stephanie Taylor!

Bone McAllester finds musician to lead entertainment group


Classically trained violinist joins law firm
Published June 10, 2011 by NashvillePost.c...

Bone McAllester Norton has hired an attorney and accomplished musician to lead its entertainment law group.

Stephanie R. Taylor, a classically trained violinist and country/bluegrass fiddle player, joins Bone McAllester after running her own local firm. Taylor represents artists and music industry professionals and negotiates entertainment industry contracts for artists, as well as licensing and distribution deals for original television programs. She has been a professor of music business at Middle Tennessee State University and directed MTSU’s Recording Industry Exchange program with Russia.

“We are pleased to announce Stephanie in her new role. She brings experience and a vast knowledge of the entertainment industry and has an excellent track record in her representation of clients in the business," said Charles W. Bone, firm chairman.

Taylor earned her law degree and bachelor's in music education from the University of Nebraska-Lincoln. She received master's degree in business administration with an emphasis on music business from Belmont University.

Taylor's musical career has included eight years as a contract violinist with the Lincoln Symphony Orchestra in Lincoln Nebraska, and she has played with numerous big-name musicians, including with Grammy nominated Chris Young, award winning singers/songwriters Billy Yates and Billy Falcon, bluegrass talent Dana Romanello and country duo Joey and Rory. She was recently inducted into the South Dakota Old Time Fiddlers Hall of Fame.

Click here for the whole article (subscription needed)

 

Bone McAllester Norton welcomes attorney James E. Mackler to our team!

James is a graduate of Duke University, where he graduated cum laude with a degree in public policy studies.  He received his law degree, with honors,  from the University of Washington School of Law where he served as the president of the Moot Court Honor Board.
After spending seven years developing a successful private practice in Colorado, James was inspired by the events of September 11, 2001 to join the Army.  He spent three years as a Blackhawk helicopter pilot with the 101st Airborne Division, including a one year deployment to Iraq.  After returning from Iraq, James transferred to the Judge Advocate General Corps where he served as a legal advisor to high level commanders and as a senior trial counsel.



James lives in Nashville with his wife Shana, and their two daughters, Hanna and Sylvie. He continues to serve in the Army Reserves.   He is actively involved in the Nashville community, including service on the board of Jewish Family Services.


Along with his litigation practice, James will provide legal assistance to members of the military transitioning into the civilian sector, including entrepreneur start-ups, fundamental business issues, and the day to day legal issues that veterans encounter with a new business.