Editor: As co-head of Proskauer’s Technology, Media and Communications Group and a member of the Privacy & Data Security Group, your practice covers many different areas. Please describe these broad areas.
Neuburger: The practice is quite diverse, generally covering the use of technology in business. It involves business transactions where technology is part of the ultimate product or service, e.g., digital distribution of content, as well as where technology supports the back office or infrastructure of the business. It covers transactions that relate to intellectual property rights, particularly in the context of emerging distribution platforms, such as how intellectual property rights get sliced and diced to accommodate those platforms. The practice includes online advertising, broadband, mobile and cable distribution, print publishing, e-commerce and other technology initiatives. Privacy is involved in all of these areas, as technology obviously has given companies the ability to collect a lot of information about their customers and employees.
Editor: What has been the effect of the “new media” on the practice of IP law?
Neuburger: The term “new media” – in usage for sometime – means different things at different times. As emerging platforms come to commercial fruition, the rights issues become more and more complicated. For example, a common question is whether the right to distribute content through an established medium includes distribution of content through an emerging platform. As distribution technologies and so-called new media continue to evolve, we’ll see those issues continually debated.
Editor: What are some of the gray areas in the exercise of new media that are still undergoing clarification?
Neuburger: The iPad is a perfect example. There is already litigation in that area. Mobile devices are another area of concern. Does a license agreement that grants a licensee the right to distribute to a “computer” include the right to distribute to a smartphone? How do you interpret the new technologies in the context of language from older licenses that didn’t anticipate new technology? How do you draft license agreements today to address this issue?
Editor: In writing license agreements, do you generally include all the various delivery systems?
Neuburger: The definitions of how people may use content are constantly being challenged. We advise clients to talk about functionality as opposed to particular uses of delivery systems – in other words, how you envision your customer interacting with the content, as opposed to the device or system used to access the content.
Editor: What difference will cloud computing make in terms of data storage? Are there privacy concerns in terms of storage on a cloud?
Neuburger: Yes, the cloud has changed the picture of data storage. First of all, it makes it so much easier and cheaper to store large volumes of data, thus allowing retention of much more data. In terms of the legal issues associated with its use, privacy is one of the major issues. There is a lot of data, and it’s accessible. What should be the limitations on such storage and use? Another privacy issue with cloud computing is that in a true cloud computing configuration, the data is spread across the cloud. It might be stored in data centers that are outside a particular jurisdiction where a person is located. If your personal data is being stored in Canada, South America or the European Union, are the privacy issues of those local jurisdictions relevant to your data in protecting you?
Editor: There has been some controversy regarding the “fair use doctrine” and how it may have been abused. Would you comment on this in light of the Righthaven cases?
Neuburger: Fair use is a doctrine that is fact specific on a case-by-case basis. It is a misunderstanding to think that material on the web is available for free use. Content owners and users of content have been struggling to define the line of fair use on the web. Righthaven is an organization that acquired certain rights from certain publishers to bring actions against users of the content without permission. Righthaven did certain things that did not engender a lot of sympathy with the courts, and as a result, fair use principles were applied in unusual ways. It is to be hoped that the law surrounding the Righthaven cases gets clarified in the future. In the meantime, Righthaven has faced increased scrutiny.
Editor: How does emerging technology impact privacy issues?
Neuburger: One of the most interesting cases just decided on January 23 by the Supreme Court is a criminal case (United States v. Jones) involving the tracking of a suspected drug dealer by using a GPS device on his car and monitoring it for 28 days without a valid warrant in order to gather evidence. The majority opinion written by Justice Antonin Scalia held that GPS tracking is a search under the Fourth Amendment. The government had argued that the car could just have well been tracked by a squad of police cars to obtain the same information as was obtained through the GPS technology.
The result in the case was unanimously against the tracking in that case, but the reasoning of the various Justices was anything but unanimous.
Justice Antonin Scalia's majority opinion held that the tracking was a search under the Fourth Amendment because it involved attaching a device to Jones's automobile. But Justice's Scalia's rationale, that attaching the device was in the nature of a trespass, rejected the more modern "reasonable expectation of privacy" analysis that the Court has applied in search cases since the mid-1960s. For this reason alone, the case is an important one, as it suggests a possible narrowing of the warrant requirement, even though the suspect in this case came out on the winning side.
The concurring opinions of Justices Sotomayor and Alito rejected Justice Scalia's narrow view of the case, and considered the wider implications of new technologies on the law. Both expressed discomfort in the use by the government of media technology as a violation of privacy. Justice Sotomayor in particular commented that there might be a need to reconsider old legal doctrines to make them more responsive to the implications of new communications technologies that require users to share personal information for functional reasons.
Although United States v. Jones is a criminal case, the Justices opinions should be carefully considered for their implications not only for privacy cases in general, but for other cases involving new technologies.
Editor: How will technology affect established business models in the media industry?
Neuburger: The evolution of technology will change the business models of many established industries. I believe that content creators will have more of an ongoing direct relationship with their customers and subscribers in the future. For example, in the book publishing industry today, authors not only write their books, but they also publish blogs and have interactive sessions with their readers. This is very different from the traditional book-publishing industry model in which a publisher signs up an author, the author writes the book, goes on a book tour and then goes on to the next project.
Editor: What are companies doing to manage the availability of large volumes of business data?
Neuburger: The concept of “big data” is a phenomenon that people in the business community are actively talking and thinking about. It relates to the fact that there are large volumes of useful data available but in inconsistent formats and configurations. How does a company harness all of that data and render it useful? New businesses involving data analytics are spawning an entire new industry based on studying, organizing and extracting value from that data. Some of the largest technology companies are now in the business of helping companies organize their data so that they can study it systematically. IBM, Oracle and a number of start-up companies are involved in organizing other companies’ data. The issue of data organization will be a key concern in 2012 and raises all kinds of legal issues, such as privacy, liability for false or faulty information, and various types of performance issues.
Editor: Are there “new media watchers” who are forecasting the evolution of future developments that might pose even more problems for companies in terms of controlling their data or invading the right of privacy of some of their employees or others?
Neuburger: All of our clients are looking at emerging technologies and asking themselves, what opportunities do they present? How can we better serve our customers? What kinds of products and services can be created from the technology? With every technology there are going to be issues that emerge, but I think that if companies are careful they can address those issues head-on in advance to minimize problems.
Editor: Is there anything further you would like to add about this new frontier we’re dealing with?
Neuburger: It’s a great practice area. Companies have to be careful. There are many opportunities for growth, but a misstep now can create problems for a company both near and long term. If companies take the initial right steps, they should be in good shape for the duration.