New Media and Technology Law Blog
Jeffrey Neuburger

Jeffrey Neuburger

Partner

Jeffrey Neuburger is a partner, co-head of the Technology, Media & Telecommunications Group, a member of the Privacy & Cybersecurity Group and editor of the firm’s New Media and Technology Law blog.

Jeff’s practice focuses on technology, media and advertising-related business transactions and counseling, including the utilization of emerging technology and distribution methods in business. For example, Jeff represents clients in online strategies associated with advertising, products, services and content commercialized on the Internet through broadband channels, mobile platforms, broadcast and cable television distribution and print publishing. He also represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements.

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Court Denies TRO against Data Scraper That Accessed Private Database via Registered Accounts

This past week, a Texas district court denied a bid from a web service for a temporary restraining order (TRO) to enjoin a competitor that allegedly scraped a large amount of proprietary data from its closed site via several user accounts. (BidPrime, LLC v. SmartProcure, Inc., No. 18-478 (W.D. Tex. June 18, 2018)). While tempting … Continue Reading

New York State Court Declines to Compel Arbitration, Cites Purported Ambiguities in Mobile Contracting Process

Courts are increasingly taking a magnifying glass to electronic contracting processes, particularly how the presentation of the terms of service and call to action are displayed.  As such, companies might take a second look at their own user registration and e-commerce purchase processes to ensure they offer reasonably conspicuous notice of the existence of contract … Continue Reading

A Busy Month in the Facebook Photo Tagging Biometric Privacy Dispute

As discussed in past posts about the long-running Facebook biometric privacy class action, users are challenging Facebook’s “Tag Suggestions” program, which scans for and identifies people in uploaded photographs for photo tagging. The class alleges that Facebook collected and stored their biometric data without prior notice or consent in violation of the Illinois Biometric Information … Continue Reading

Researchers May Challenge the Constitutionality of the CFAA “Access” Provision as Applied to Web Scraping

Such Scraping “Plausibly Falls within the Ambit of the First Amendment” The Ninth Circuit is currently considering the appeal of the landmark hiQ decision, where a lower court had granted an injunction that limited the applicability of the federal Computer Fraud and Abuse Act (CFAA) to the blocking of an entity engaging in commercial data … Continue Reading

Illinois Considering Amendments to Biometric Privacy Law (BIPA) That Would Create Major Exemptions to Its Scope

We have written before about the issues presented by the Illinois Biometric Information Privacy Act, 740 Ill. Comp Stat. 14/1 (“BIPA”).  BIPA is still the only state biometric privacy statute with a private right of action. It has garnered national attention and become the epicenter of biometrics-based litigation, with dozens of cases pending alleging violations … Continue Reading

FOSTA Signed into Law, Amends CDA Section 230 to Allow Enforcement against Online Providers for Knowingly Facilitating Sex Trafficking

Today, the President signed H.R. 1865, the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (commonly known as “FOSTA”).  The law is intended to limit the immunity provided under Section 230 of the Communications Decency Act (“CDA Section 230”) for online services that knowingly host third-party content that promotes or facilitates … Continue Reading

Facebook Granted Dismissal of Biometric Privacy Claims Brought by “Non-Users”

This week, the District Court for the Northern District of California dismissed the Gullen putative class action asserting Illinois biometric privacy claims brought by “non-users” based on evidence that the social media site did not use its facial recognition technology on business or organizational accounts (as opposed to personal social media pages).  (Gullen v. Facebook, Inc., … Continue Reading

Federal Circuit Again Reverses California Court in Oracle-Google Copyright Dispute over Java APIs – Releases a Major Ruling on Fair Use in the Software Context

In this long-running dispute that has been previously dubbed “The World Series of IP cases” by the presiding judge, Oracle America Inc. (“Oracle”) accuses Google Inc. (“Google”) of unauthorized use of some of its Java-related copyrights in Google’s Android software platform. Specifically, Oracle alleges that Google infringed the declaring code of certain Java API packages … Continue Reading

Federal Omnibus Spending Bill Includes CLOUD Act – Outlines Obligations of Providers to Turn over Electronic Communications Stored Overseas and Procedures to Quash for Comity Purposes

In the flurry of deal-making that resulted in a 2,232-page funding bill released Wednesday, lawmakers negotiated the inclusion of “The Clarifying Lawful Overseas Use of Data Act” (often referred to as the “CLOUD Act”) (see page 2,201 of the bill text).  The CLOUD Act provides a procedural structure for law enforcement to pursue the preservation … Continue Reading

New York Court Rebuffs Ninth Circuit’s Copyright “Server Test,” Finds Embedded Tweet Displaying Copyrighted Image to Be Infringement

UPDATE: On March 19, 2018, the district court granted the defendant’s motion for certification of the court’s February 15th partial summary judgment decision for interlocutory appeal to the Second Circuit.  In allowing immediate appeal, the court agreed that its prior order “has created tremendous uncertainty for online publishers” and “given the frequency with which embedded … Continue Reading

California Court Declines to Dismiss Illinois Facial Recognition/Biometric Privacy Suit against Facebook on Standing Grounds

UPDATE: On March 2, 2018, in a related biometric privacy litigation surrounding Tag Suggestions brought by non-users of Facebook, a California district court in a brief order declined to dismiss the action for lack of standing, citing its reasoning in the Patel opinion.  (Gullen v. Facebook, Inc., No. 16-00937 (N.D. Cal. Mar. 2, 2018)). While … Continue Reading

Data Aggregator Seeks Ruling Allowing It to Scrape Public LinkedIn Data

UPDATE:  On February 22, 2018, the district court granted 3taps’s motion to relate its action to the ongoing hiQ v. LinkedIn litigation. This motion was based upon a local Northern District of California rule that holds that cases should be related when the actions concern substantially the same parties, transaction or event, and there would … Continue Reading

CFAA “Unauthorized Access” Web Scraping Claim against Ticket Broker Dismissed Because Revocation of Access Not Expressed in Cease and Desist Letter

A California district court issued an important opinion in a dispute between a ticket sales platform and a ticket broker that employed automated bots to purchase tickets in bulk. (Ticketmaster L.L.C. v. Prestige Entertainment, Inc., No. 17-07232 (C.D. Cal. Jan. 31, 2018)). For those of us who have been following the evolution of the law … Continue Reading

Will Facebook’s Recent Announcement of Changes to News Feed Affect Legal Immunities for User Content?

Facebook recently announced that it would make changes to its news feed to prioritize content that users share and discuss and material from “reputable publishers.”  These changes are part of what Mark Zuckerberg says is a refocusing of Facebook from “helping [users] find relevant content to helping [users] have more meaningful social interactions.”  This refocus … Continue Reading

Ninth Circuit Issues Important Decision on Software Licensing Practices and Web Scraping

Earlier this month, the Ninth Circuit issued a noteworthy ruling in a dispute between an enterprise software licensor and a third-party support provider.  The case is particularly important as it addresses the common practice of using automated means to download information (in this case, software) from websites in contravention of website terms and conditions.  Also, … Continue Reading

Canadian Court Asserts Jurisdiction over Craigslist Based on Cloud-Based Virtual Presence in Canada

A Canadian appellate court ruled that a lower court had jurisdictional authority to issue a production order to craigslist based upon its virtual (but not physical) presence in British Columbia. The production order requested that Craigslist produce to Canadian officials documents relating to a user post in connection with a criminal investigation. (British Columbia (Attorney … Continue Reading

Google Extends Commitments with the FTC over Crawling of Third-Party Content for Use in Own “Vertical” Sites

In a blog post last month, Google announced that it would extend certain commitments it made to the FTC in 2012 that were set to expire relating to, among other things,  the scraping of third-party content for use on certain Google “vertical search” properties such as Google Shopping.  The announcement came days before the commitments … Continue Reading

Google App Disables Art-Selfie Biometric Comparison Tool in Illinois and Texas

We have been closely following the legal and legislative developments relating to biometric privacy, and in particular, the flow of litigation under the Illinois biometrics privacy law.   It was interesting to see how the Illinois law (as well as a similar Texas law) influenced Google’s  offering of a new facial recognition feature on the Google … Continue Reading

Litigants Alleging Procedural Violations of Illinois Biometric Privacy Statute (BIPA) Are Not “Aggrieved” Parties That May Seek Legal Remedies

As 2017 drew to an end, we noted the continuing flood of Illinois biometric privacy suits filed over the past year.  There are literally dozens of cases pending, most in Illinois state courts, alleging violation of Illinois’s Biometric Information Privacy Act (BIPA), which regulates the collection, retention, and disclosure of personal biometric identifiers and biometric … Continue Reading

Reflections on Technology-Related Legal Issues: Looking Back at 2017; Will 2018 Be a Quantum Leap Forward?

As we approach the end of 2017, it is a time to reflect on the dizzying pace of technology evolution this year, and the amazing array of legal issues it presented. Similarly, it is a time to look forward and anticipate what technology-related issues we will be thinking about in the coming year. For 2017, … Continue Reading

Proskauer Launches “Blockchain and The Law” Blog

I am pleased to announce that Proskauer has recently launched a new blog focused exclusively on the use of blockchain in business. The blog will be wide ranging in nature, covering the legal issues associated with blockchain as applied to financial services, health care, real estate, supply chain management, media and entertainment, advertising, content delivery, … Continue Reading

No Liability for Self-Publishing Platforms over Author’s Use of Unauthorized Cover Photo

In a brief, unpublished opinion, the Sixth Circuit affirmed the dismissal of right of publicity and privacy claims against a host of self-publishing platforms and service providers for distributing an erotic (and purported “less than tasteful”) book whose cover contained an unauthorized copy of the plaintiffs’ engagement photo because the plaintiffs failed to plead more … Continue Reading

Wave of Illinois Biometric Privacy Suits Continues Unabated

After noting the flood of Illinois biometric privacy suits in September, it appears that the flow of such suits remains robust.  Dozens of suits have been filed in Illinois state court against Illinois-based employers and other businesses alleging violation of Illinois’s Biometric Information Privacy Act (BIPA), which generally regulates the collection, retention, and disclosure of … Continue Reading
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