CLBR’s 5th Season Debut With Mark Sableman on Top 5 Internet Law Shifts of 2014
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Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns and will discuss his recent article “The Top 5 Internet Law Shifts of 2014“.
The shifts include:
- Cell phone privacy. The Supreme Court’s April 2014 ruling, in Riley v. California, that police cannot search digital information contained on a cell phone without a warrant, is a game changer in two ways.
- Stronger recognition of fair use. The fair use doctrine in copyright law, which some view as a safety valve for strict-liability copyright law, came into its own in 2014, with a series of significant rulings. Such as (i) the HathiTrust ruling in the Second Circuit that even full-text copying for library indexing purposes constitutes fair use, (ii) the White v. West Publishing decision that full-text copying of legal briefs by Westlaw and Nexus constitutes fair use because use of briefs in interactive legal research tool was transformative, and the similar ruling in Denison v. Larken implicitly recognizing a litigation-use fair use consideration; (iii) the ruling in Levyfilm v. Fox Sports that news use of a copyrighted photograph contained on DVD cover was fair use, because the photo had become a news story; (iv) the holding, in preliminary injunction context, in Hoge v. Schmafeldt, that the defendant had a possible fair use defense for significant quotation of plaintiff’s blog posts within defendant’s own critical blog and Twitter posts; and (v) the controversial decision by the Second Circuit in Cariou v. Prince, finding fair use with respect to 25 of 30 disputed works involving art works created by defendant that collaged, overpainted and otherwise used images from plaintiff’s book of photography.
- Need for clear assent to web agreements. In several cases, courts in 2014 refused to follow website terms and conditions, or privacy policies that in their view never received clear assent from Internet users. These cases seem to mark an increasing frustration by courts of lax procedures for obtaining clear assent from Internet users. See related Cyber Report post.
- Recognition of the value of data collection. The White House’s May 2014 report on privacy didn’t take the privacy-above-all approach that advocacy organizations like the Center for Democracy and Technology often seem to advocate. Rather, it recognized that data collection, storage and use can often be extremely valuable to both businesses and American citizens.
- Acceptance of keyword based advertising (AdWords). It seems hard to believe, but keyword-based advertisements have been around for more than 15 years. (Yes, longer than AdWords, the $50+ billion centerpiece of Google’s profitability.) But what may seem even harder to believe is that these ads have been in shrouded in legal uncertainty for most of that time. That uncertainty is no longer plausible.
Mark’s practice focuses on facilitating clients’ communications, in media, marketing and business. He helps clients gather and publish news, build brands, fight infringement and false advertising, protect and use information technology, and conduct business in the online world. In legal terms, he concentrates in intellectual property, media, and information technology law.
Mark is a trial lawyer, having spent more than nine months in federal and state courtrooms in trials of business, media and intellectual property cases. But he recognizes that most cases are resolved out of the courtroom, and he directs his practice toward effective and speedy procedures for resolving disputes, often using direct negotiations, mediation, and alternative dispute resolution techniques.
Mark litigates trademark, copyright, patent, advertising, libel, privacy, unfair competition, and trade secret cases, as well as technology and Internet-related claims. He advises clients with intellectual property, media, technology, and Internet issues.
Mark has written one book, More Speech, Not Less: Communications Law in the Information Age, and more than a dozen law review articles and book chapters. His article on Internet linking law won the International Trademark Association’s Ladas Award, and his article on artistic expression won a Burton Award for Legal Achievement. Mark has also taught Internet Law, and Censorship and Free Expression, at Washington University School of Law. He has been listed since 1995 in The Best Lawyers in America® (Copyright 2014 by Woodward/White, Inc., of Aiken, S.C.).
Not only is Mark a fellow Hoya Lawyer but he began his career as a reporter with the Clearwater Sun and Washington Post.