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Jeffrey Neuburger

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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.

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The above maxim is so often repeated that it is taken as true in all cases. But chapter 231, section 92 of the Massachusetts General Laws says otherwise, according to the U.S. Court of Appeals for the First Circuit in Noonan v. Staples, No. 07-2159 (1st Cir. Feb. 13, 2009), rehearing and rehearing en banc denied (1st Cir. Mar. 19, 2009). Section 92 provides in its entirety as follows: "The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved."

Construing Section 92 in a defamation action brought by a discharged employee, the appeals court concluded that "Massachusetts law … recognizes a narrow exception to [the defense of truth]: the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with ‘actual malice" in publishing the statement.’

It’s not as trendy as Twitter or as headline-grabbing as Myspace, but health information technology is getting something that they won’t be getting – a massive infusion of federal cash.

Pushed to the back pages a bit in the attention given to the recently signed federal stimulus legislation (H.R. 1) are the provisions that aim to give a huge push to the adoption of electronic health records (“EHR”) and thereby improve health care quality, prevent medical errors, and reduce health care costs, among many other projected benefits identified in the bill.

The federal push for the adoption of electronic health records is backed up with a projected near-$20 billion in federal funds over the next half-decade, making health IT a likely an area of major growth for technology providers.

The technical details involved in communicating via a Web mail service such as Google’s G-Mail or Yahoo! Mail are not something that most users think about often, or perhaps ever. It may appear to a user that all of the computing operations involving the use a Web mail service take place remotely, on the servers of the Web mail service, but that may not be the case. Unbeknownst to most users, some Web mail services save “cache” or temporary files on the user’s local computer, files that may contain copies of the user’s e-mails.

If that local computer belongs to an employer, the employee may have unknowingly exposed the contents of personal e-mail to scrutiny by the employer. A New Jersey court recently held that an employee who accessed her personal Web mail account using her employer’s laptop not only waived her privacy rights in the contents of those e-mails, she waived her attorney-client privilege in the contents as well.

The “Ripoff Report” consumer complaint Web site is well known to those who follow rulings involving the application of Section 230 of the Communications Decency Act, including some who self-identity as “Section 230 junkies.” Xcentric Ventures, the operator of the Ripoff Report, and its founder Ed Magedson have been serial defendants in defamation cases brought by various parties who sought to establish that the site was liable for defamatory statements made by posters to the site. Xcentric and Magedson have prevailed in almost all of those cases, even in situations where the plaintiffs sought to establish that the Magedson and Xcentric employees either wrote or substantially edited some of the alleged defamatory postings and thus were not entitled to CDA Section 230 immunity. And the Ripoff Report boasts about those successes on the Web site.

Now a defamation plaintiff, instead of bringing an action against Magedson or Xcentric with respect to a Ripoff Report post, has filed a John Doe lawsuit and is seeking discovery of the identity of the authors of the anonymous posts via a third-party subpoena to Xcentric.

The cause of action for misappropriation of reports of breaking news, i.e., “hot news” misappropriation, has been around for going on a century, since the U.S. Supreme Court opinion in International News Service v. Associated Press, 248 U.S. 215 (1918). In that landmark case the Court recognized a “quasi property” right in such reports on the part of a news-gathering organization under federal common law.

Survival of the hot news misappropriation claim, and its applicability to online news aggregators, has been the subject of much discussion and debate as news aggregation sites have become ubiquitous on the Internet, on sites ranging from Google News to thousands of more modest offerings. The AP, which was the prevailing plaintiff in the landmark case 90 years ago, has been successful in obtaining settlements with a number of online news aggregators that used its material, including a settlement with Google News in 2006 and a settlement with Moreover and its parent company Verisign last year.

The AP has again made progress in this ongoing battle, this time in its hot news misappropriation lawsuit against online aggregator All Headline News Corp. In this case, the court issued a ruling that recognizes not only the AP’s misappropriation claim, but its claim under the Digital Millennium Copyright Act copyright management provision as well.

With the rough and tumble of the debate over the stimulus legislation starting to wind down, Congress is starting to turn to other subjects. The House Judiciary Subcommittee on Commercial and Administrative Law held hearings yesterday on “libel tourism,” the filing of libel lawsuits against U.S. defendants in libel-plaintiff friendly countries such as the U.K.

This is not the first Congressional run at the subject, which is of particular interest to authors and media companies that publish online and thus are more likely to be susceptible to claims of harm caused in distant locations. Indeed, authors and publishers of print works that may be sold online to offshore purchasers should be concerned as well, as a foreign court may predicate jurisdiction on even a small number of such sales.

In Doe v. SexSearch.com, Inc., the Sixth Circuit considered the appeal of a user of the SexSearch online dating service from dismissal of his breach of contract, fraud and other state law claims (based on Ohio law) against the service for its failure to screen out underage minors. Doe was arrested and charged with unlawful sexual conduct with a minor for his encounter with a fourteen year old who represented herself on the service as eighteen. As the opinion notes, the charges were later dismissed and the record sealed for reasons undisclosed, but Doe subsequently brought suit claiming that the service was at fault for his relationship with the minor and for the resulting harm caused by his arrest.

In a relatively brief opinion, the court upheld the district court’s dismissal of each of Doe’s 14 causes of action for failure to state a claim, based in large part upon the disclaimers contained in the Terms and Conditions in the contract.

The Free Software Foundation has filed a copyright infringement complaint against Cisco Systems. The complaint alleges that Cisco’s Linksys products contain certain works in which the FSF holds the copyright, but Cisco has not complied with the requirements of the licenses pursuant to which the FSF makes the works available.

This is the first copyright infringement action ever filed by the FSF, according to the press release announcing the filing of the action. The filing of the lawsuit follows on the ruling by the United States Court of Appeals for the Federal Circuit last August in Jacobsen v. Katzer that open source licenses are enforceable under copyright law.

UPDATE:  There is a brief account of the oral argument on the pokerlistings.com Web site.

That’s the interesting issue that a Kentucky appeals court will consider on Friday in an interlocutory appeal from the ruling of a Kentucky trial court. In Commonwealth v. 141 Internet Domain Names, Case No. 08-CI-1409 (Ky Cir. Ct., Oct. 16, 2008), a Kentucky trial court ruled that Kentucky courts of general jurisdiction have subject matter and in rem jurisdiction over civil forfeiture proceedings seeking seizure of domain names through which illegal gambling was conducted in Kentucky. The court upheld its prior ex parte order finding probable cause to allow the Commonwealth of Kentucky to proceed with the seizure of 141 domain names alleged to connect users to illicit gambling Web sites. The ex parte order also directed the service of a seizure order on the registrars of the respective domain names. When the trial court scheduled the forfeiture proceeding for December 3, the appellate court granted the stay sought by the vicsbingo.com domain name and the Interactive Gaming Council (see their petition for writ of prohibition), stayed the trial court proceedings and scheduled this Friday’s oral argument.

In ruling that the seizure could proceed, the Kentucky trial court reasoned that domain names are property that is present in Kentucky, and as such, can be the subject of an in rem proceeding there. The court further held that its ex parte seizure order did not offend due process because shutting down illicit gaming is an important government interest and the domain names could be removed from the reach of the government if advance notice were given. The court did rule that gaming Web site owners could avoid forfeiture, however, by installing geographic blocks preventing Kentucky residents from accessing their Web sites.

The Internet Corporation for Assigned Names and Numbers (ICANN), the organization that is responsible for the allocation of Internet domain names and IP addresses, is about to launch a new program that will  permit organizations to create and operate generic top-level domains (“gTLD”s) (e.g., .com, .net, etc.).  Last week, ICANN released a draft version of the “Draft Applicant Guidebook for new Generic Top-level Domains” (the “Guidebook”) which sets out proposed policies and processes for the new gTLD program.

There are currently 21 top level domains, including the familiar .com, .net and .org domains, and the less well-populated .info, .kids and .biz domains. Under the new gTLD program applicants can design and “self-select” a new domain that they feel is appropriate for their customers or for their target market.  By way of example, the “XYZ” company might choose to apply for and operate the “.xyz” domain on behalf of itself and its related corporate entities, or a trade organization might choose to apply for and operate a domain reflecting the nature of its membership.

You should be aware of the new gTLD program and the draft Guidelines.