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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 first part of that line is from Shakespeare (Hamlet, Act 2, Scene 2). The underlying principle is embodied in many local federal rules that set page or word limits on the length of various submissions, such as briefs and memoranda. In the District of Minnesota, the objections to the ruling of a magistrate judge are limited to 3,500 words, a measurement that can be made with ease using the “word count” technology in most word processing programs. But it is possible to tweak the word count technology to achieve a higher or lower word count.

In high school, we might have tweaked the word count technology to yield a higher number of words, in order to meet the length requirement for a term paper. But in Northbrook Digital LLC v. Vendio Services, Inc., 2008 U.S. Dist. LEXIS 45019 (D. Minn. June 9, 2008), counsel for the defendant did the opposite, the court found, and tweaked the technology to attain a lower word count in order to satisfy the 3,500 word limit. This approach turned out to be too clever by half.

In a dispute between the operators of rival “amphibious sightseeing tours,” a panel of the First Circuit disagreed with the trial court’s conclusion that the phrase “duck tours” was non-generic, and vacated the entry of a preliminary injunction against the defendant’s use of the term. Boston Duck Tours, LP v. Super Duck Tours, LLC, 2008 U.S. App. LEXIS 12771 (1st Cir. June 18, 2008).

What’s a “duck tour,” you ask?

Greenberg v. National Geographic, in which photographers seek royalties for the inclusion of their works in the CD-ROM version of the National Geographic Magazine, is a case with legs, that’s for sure. First filed ten years ago, it has been argued at the circuit court level three times, with several trips back to the trial court and at least one petition for certiorari to the U.S. Supreme Court. Only a few weeks after the first Eleventh Circuit court ruling in the case, the U.S. Supreme Court rendered its opinion in New York Times Co. v. Tasini, 533 U.S. 483 (2001), finding that freelance writers of newspaper articles are entitled to royalties for the inclusion of their works in an electronic database. Subsequent proceedings in Greenberg have sought to grapple with the applicability of the Tasini ruling that the disaggregation of the articles in an electronic database was outside the privilege provided in § 201(c) of the Copyright Act for a “revision” of a collective work under.

 In the latest opinion in Greenberg, the en banc ruling on June 30, the majority held that the CD-ROM version of the National Geographic Magazine is a privileged “revision” under § 201(c) because the CD-ROM presentation, unlike the electronic database in Tasini, replicated the “contextual fidelity” of the original collective work. That means, of course, that the plaintiff photographers whose works were included in the original, print version of the magazine, unlike the freelance writers in Tasini, are not entitled to royalties for the inclusion of their works in the CD-ROM version. There are two vigorous dissents.

The subject of the auction being a former home of Elvis Presley, and one of the plaintiffs being “celebrity psychic Uri Geller,” the district court’s ruling in Gleason v. Freeman, No. 06-2443 (W.D. Tenn. June 16, 2008) is getting a lot of press. (And prompts one to wonder how it is that Geller didn’t foresee that the litigation would have an unfavorable outcome, and save some attorney fees.)

Some commentators on the ruling of the District Court in Vernor v. Autodesk [citation] are touting it as a victory for the applicability of the copyright first sale doctrine to licensed software, and while that is literally true in terms of the result in the case, it may not remain in the “win” column in the long run.  In ruling on the issue, Judge Richard A. Jones sent a clear signal, something like a really loud shout, to the parties and to the appellate court to the effect that precedents in the Ninth Circuit on the copyright first sale doctrine are conflicting and need to be reconciled.