Monthly Archives: June 2013

May a movie studio fail to pay its workers a wage simply by calling their job an internship?

May a movie studio fail to pay its workers a wage simply by calling their job an internship? Glatt v. Fox Searchlight Pictures Inc., United States District Court for the Southern District of New York (Civil Action No. 11-cv-06784) (WHP) answered that question in the negative.
In that case, Fox Searchlight Pictures Inc. (“Fox”) hired the plaintiffs to perform basic chores such as taking lunch orders, answering phones, arranging travel plans, tracking purchase orders, taking out trash and assembling office furniture. This mirrored the same duties that were being performed by paid employees. However, the plaintiffs were not paid solely because they were designated as interns.
The plaintiffs sued, taking the position that this violated the Department of Labor standards. Those standards indicate that internships should not be to the immediate advantage of employer, but instead should be structured as an extension of their training and an adjunct to their schooling. Interns should not be doing the work of employees, since the duties of an employee are not primarily related to teaching the employee, so much as benefiting the employer. The Court ruled in favor of the plaintiffs.
This case is consistent with the general trend to force employers to pay for work that an employee should be doing, regardless of whether the employee is designated as an intern. A similar ruling has been brought against Harper’s Bazaar. Additionally. Charlie Rose’s production company, Charlie Rose, Inc., settled with nearly 200 former interns by providing them with back-wages.

Does the statute of limitations for an Internet defamation claim begin to run again every time the defamatory statement is republished?

Does the statute of limitations for an Internet defamation claim begin to run again every time the defamatory statement is republished? This question was addressed in a recent case entitled, Solomon v Gannett Co., Inc., Superior Court of New Jersey, Appellate Division (Docket No. A-6160-11T4).
In that case, the plaintiff was the subject of a news article posted on the Internet which reported that a police raid of his home had resulted in the seizure of two loaded .357 caliber handguns and a “slew of drugs and gun charges”. The plaintiff stated that this was defamatory because the guns that were seized were unloaded and the raid did not result in a “slew” of charges.
Unfortunately the plaintiff filed a lawsuit one year after the initial publication on the website. Since the statute of limitations in New Jersey for defamation is one year, the defendant filed the motion to dismiss the case as time-barred.
The plaintiff took the position that it was not time-barred because it had been republished each time the defendant changed ads on the site “to reach a new or broader audience.”

Does the statute of limitations for an Internet defamation claim begin to run again every time the defamatory statement is republished?

Does the statute of limitations for an Internet defamation claim begin to run again every time the defamatory statement is republished? This question was addressed in a recent case entitled, Solomon v Gannett Co., Inc., Superior Court of New Jersey, Appellate Division (Docket No. A-6160-11T4).

In that case, the plaintiff was the subject of a news article posted on the Internet which reported that a police raid of his home had resulted in the seizure of two loaded .357 caliber handguns and a “slew of drugs and gun charges”. The plaintiff stated that this was defamatory because the guns that were seized were unloaded and the raid did not result in a “slew” of charges.

Unfortunately the plaintiff filed a lawsuit one year after the initial publication on the website. Since the statute of limitations in New Jersey for defamation is one year, the defendant filed the motion to dismiss the case as time-barred.

The plaintiff took the position that it was not time-barred because it had been republished each time the defendant changed ads on the site “to reach a new or broader audience.”

The Court disagreed and determined that the case was time-barred under the principle enunciated in Churchill v. State,  378 N.J. Super. 471, 478 (App. Div. 2005). That principle is known as the first publication rule. It states that “a plaintiff alleging defamation has a single cause of action, which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold.”

The Second Phase of America Invents Acts Offers Important Provisions

The second phase to the America Invents Act commenced in September 2012. According to an excellent article in the New Jersey Law Journal entitled “In-House Counsel Prepare for Phase 2 of America Invents Act”, http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=1202571463821&InHouse_Counsel_Prepare_for_Phase_2_of_America_Invents_Act, this phase not only contains new methods for challenging patents, but places a greater emphasis on closely supervising existing patents. 
One of the most significant provisions of the second phase noted in the article is the right of third-parties to make early submissions objecting to an application. Any third party who disagrees with the issuing of a patent can submit past art, an existing patent or a printed publication of any sort to be considered by the
patent examiner. This provision could potentially help avoid litigation by allowing an objecting party to submit important information relating to their objection to the patent before it is issued.
Another vital addition to the AIA is a provision which permits third parties to demand an “inter partes” review of any patent issued. The article describes this as is a small hearing which allows current patent legitimacy to be challenged. The implementation of this provision is important because it streamlines and speeds up the process and places a statutory time limit on the review of patents (a ruling must be determined within one year of a patent’s issuance) A modification to the process of reviewing patents after they are issued is also part of the new law. Third parties are now able to request a post grant review of any current patent. Unlike inter partes review which is centered on existing published patent applications, post grant review is obtained after the grant of a patent and may be based on any source of invalidity. This review has a time limit as well; it must be requested within the first nine months of a patent being issued Id.
Another amendment to the AIA that will eliminate the possibility of litigation is that “patent owners will be able to request a supplemental examination of their issued patent. If the examination is granted, the owner can submit prior art to the USPTO that was not submitted in the initial patent application”.
Overall, the second phase offers cost and time effective alternatives to district court litigation. Nonetheless, in-house counsel needs to be aware of a few factors when executing the new provisions. Whether it is in their best interest to demand for any sort of review must be strategically considered. Shuchman also writes that timing must also be carefully contemplated.  Additionally, in-house counsel should stay vigilant and watchful over competitor and NPE patents.

Will Forcing Institutes of Higher Education to Guard Internet Networks Against Piracy Decrease the Rate of Illegal Downloading?

As the accessibility and knowledge of how to use technology has increased, so has the ability to take advantage of them. College students today have found loop holes in downloading files for free and this has caught the attention of entertainment industries. An excellent article Colleges and Universities Join Anti-Piracy Fight discusses how the Recording Industry of America (RIAA) and the Motion Picture Association of America (MPAA) have waged a battle on piracy for many years but finally urged for provisions to the Higher Education Opportunity Act of 2008 http://sciencetechlaw.healthreformwatch.com/2010/07/.
Aside from institution requirements and information on available grant programs, the Higher Education Opportunity Act of 2008 contained synopses of law provisions that would affect the higher education system. One of which focused on Copyright Infringement, which stated that institutions needed to “develop plans to detect and prevent unauthorized distribution of copyrighted material over campus networks”. It expanded to include all forms of intellectual property, including music and video files (http://www.cga.ct.gov/2008/rpt/2008-R-0470.htm).
Nonetheless, RIAA and MPAA continued to complain that piracy was an increasingly rapid problem. According to an analysis by the Institute for Policy Innovation, global music piracy was the direct source for $12.5 billion of economic losses and 71,060 U.S. job losses per year (http://www.riaa.com/faq.php). Furthermore, it was recorded that only 37% of acquired music by American consumers was paid for in 2009.  From these numbers, it was quite obvious that piracy had a negative impact on the music industry.
Since college students were/are some of the most avid music and media consumers in today’s society, clearly, some of the blame needed to be placed on the absence of stricktly enforced anti-piracy policies at universities and colleges.  As a result, entertainment industries wanted the provision to require universities and colleges to “implement at least one ‘technology based deterrent’ such as blocking file transfers, traffic shaping, or preventing access to peer-to-peer file transfer sites”. In the absence of that, it wanted to deny access to federal student financial aid.
The provision was made effective in 2010, and has received both positive and negative reviews. Some universities and colleges were able to successfully implement anti-piracy technology devises and have testified in having less copyright infringement notifications. On the other hand, the issue of piracy will always be a concern, as one cannot completely control the use of technology. To some, this new provision also seems to be just another tactic for entertainment industries to monopolize online music and media.