We previously wrote about a Virginia federal magistrate judge’s report recommending dismissal of a declaratory judgment action brought by several radio stations asking the court to rule that webcasts limited in scope via geofencing technology to 150 miles from the site of the transmitter should be exempt from liability for
Jeffrey Neuburger
Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.
Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.
As one of the architects of the technology law discipline, Jeff continues to lead on a range of business-critical transactions involving the use of emerging technology and distribution methods. For example, Jeff has become one of the foremost private practice lawyers in the country for the implementation of blockchain-based technology solutions, helping clients in a wide variety of industries capture the business opportunities presented by the rapid evolution of blockchain. He is a member of the New York State Bar Association’s Task Force on Emerging Digital Finance and Currency.
Jeff counsels on a variety of e-commerce, social media and advertising matters; represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements; advises on the implementation of biometric technology; and represents clients on a wide range of data aggregation, privacy and data security matters. In addition, Jeff assists clients on a wide range of issues related to intellectual property and publishing matters in the context of both technology-based applications and traditional media.
QVC Sues Shopping App for Web Scraping That Allegedly Triggered Site Outage
Operators of public-facing websites are typically concerned about the unauthorized, technology-based extraction of large volumes of information from their sites, often by competitors or others in related businesses. The practice, usually referred to as screen scraping, web harvesting, crawling or spidering, has been the subject of many questions and a fair amount of litigation over the last decade.
However, despite the litigation in this area, the state of the law on this issue remains somewhat unsettled: neither scrapers looking to access data on public-facing websites nor website operators seeking remedies against scrapers that violate their posted terms of use have very concrete answers as to what is permissible and what is not.
In the latest scraping dispute, the e-commerce site QVC objected to the Pinterest-like shopping aggregator Resultly’s scraping of QVC’s site for real-time pricing data. In its complaint, QVC claimed that Resultly “excessively crawled” QVC’s retail site (purpotedly sending search requests to QVC’s website at rates ranging from 200-300 requests per minute to up to 36,000 requests per minute) causing a crash that wasn’t resolved for two days, resulting in lost sales. (See QVC Inc. v. Resultly LLC, No. 14-06714 (E.D. Pa. filed Nov. 24, 2014)). The complaint alleges that the defendant disguised its web crawler to mask its source IP address and thus prevented QVC technicians from identifying the source of the requests and quickly repairing the problem. QVC brought some of the causes of action often alleged in this type of case, including violations of the Computer Fraud and Abuse Act (CFAA), breach of contract (QVC’s website terms of use), unjust enrichment, tortious interference with prospective economic advantage, conversion and negligence and breach of contract. Of these and other causes of action typically alleged in these situations, the breach of contract claim is often the clearest source of a remedy.
Music Publishers Bring Contributory Copyright Claims Against ISP for Infringing Activities of Subscribers
In a novel lawsuit that tests the bounds of service provider liability, two music publishers brought suit against an ISP for contributory copyright infringement for allegedly facilitating infringement by failing to terminate the accounts of broadband subscribers who were purportedly repeat infringers that had unlawfully downloaded copyrighted music from BitTorrent…
California Supreme Court Denies Review of Ruling Allowing Restaurant Owner’s False Advertising Claims to Proceed Against Yelp
On November 12, 2014, the California Supreme Court denied review of the California Court of Appeals decision in Demetriades v. Yelp, Inc., 2014 WL 3661491 (Cal. App. July 24, 2014), which allowed a restaurant owner to proceed with false advertising and other claims against the consumer review site Yelp based…
FinCEN Releases Two Rulings Classifying a Bitcoin Payment System and Virtual Currency Trading Platform as MSBs
In its opening salvo bringing bitcoin under the watchful eye of the federal government, the Financial Crimes Enforcement Network (FinCEN) issued a Guidance (FIN-2013-G001) in March 2013 clarifying that anti-money laundering regulations concerning record keeping and recording apply to digital currency exchanges. Under this initial guidance, a bitcoin exchange that…
Landmark Oracle-Google Android Copyright Dispute May End Up In Supreme Court
While many smartphone users were gazing upon their new iPhone 6 Plus’s 5.5-inch screen with wonder, there was another notable development in the mobile/tech world – the ongoing software copyright dispute between Oracle and Google over the development of the Android mobile platform just heated up again.
This past week,…
Emerging Technology and Existing Law: Can Geofencing Provide Radio Webcasters a Workaround of Digital Performance Royalties?
New technology continues to generate business models that test the limits of intellectual property laws enacted before such technologies were ever contemplated. The latest example is the use of “geofencing” in an attempt to avoid certain obligations to pay certain digital performance royalties.
In February 2014, VerStandig Broadcasting, the owner…
Website Marketing Statements: The Achilles’Heel to CDA Protection?
It’s no secret that local directory/consumer review websites are popular among consumers looking for recommendations before dining out, hiring a contractor, or even picking a dentist or day spa. Yelp reported around 138 million monthly unique visitors in the second quarter of 2014, searching among over 61 million local reviews. …
Browsewrap Agreement Held Unenforceable Against Consumer Due to Insufficient Notice
Many commercial websites rely on “browsewrap” agreements to bind visitors to commercial terms. A recent decision by the Ninth Circuit suggests that a review of how those terms are presented may be in order to ensure enforceability.
A browsewrap agreement is a set of terms which is accessible via a…
Proposed “Bitlicense” Regulations Published to the New York Register
Today’s New York State Register includes a Notice of Proposed Rule Making from the New York State Department of Financial Services (the “NYSDFS”) regarding the regulation of virtual currency (“Regulation of the Conduct of Virtual Currency Businesses,” No. DFS-29-14-00015-P). The proposed rule calls for the creation of the…