IP & the Internet

Gavin Law Offices expands into Charlottesville

Posted on by Gavin Law Offices

A Richmond law firm that boasts clients in the entertainment industry has expanded its practice westward.

Gavin Law Office, which was founded locally in 2002, last month opened an office in Charlottesville.

The expansion was prompted by the addition of Elva Mason Holland, a Charlottesville attorney who had a longtime solo practice before joining Gavin.

Firm founder Pam Gavin said she’s had her eye on Holland for years.

“I’ve been trying to get her to work with me forever,” Gavin said. “She’s been solo. She needs more depth to the bench and I’m always interested in growing.”

Gavin said her firm’s practice and Holland’s book of business fit nicely together. Gavin Law represents musicians and a range of businesses, from startups up to large companies, in intellectual property matters. Holland represents talent in the entertainment business.

The new addition brings Gavin’s attorney headcount to six. Its local office is in Henrico County at 2229 Pump Road.

Holland has her bachelor’s and law degrees from UVA.

Gavin, also a UVA grad, began her career in bank marketing, before going back to law school at William & Mary. She started her own firm in 2004 after stints at McGuireWoods and Reed Smith.

Gavin has expanded the firm previously, including by adding a solo practioner in Bedford years back, before that attorney in that office decided to go back out on his own. She said this latest stop in Charlottesville won’t be the firm’s last.

“I’m always planning and plotting,” she said. “Continued expansion is on the horizon.”

Click here to read the full story in Richmond BizSense

Gavin Law Offices Recognized in Legal Elite 2017

Posted on by Gavin Law Offices

Gavin Law Offices is pleased to announce, Pamela Gavin has been recognized for the eighth time in the Virginia Business Magazine among Virginia’s Legal Elite for 2017. Each year, the honor of Virginia Legal Elite recognizes the top Virginia lawyers as voted by their peers and in cooperation with the Virginia Bar Association.

This is truly an honor!

Consumer Review Fairness Act

Posted on by Collin Atkins

The Consumer Review Fairness Act (the “Act”) became effective in March 2017 and has significant implications for most companies offering consumer products or services, especially for those with interactive websites.  The Act limits what companies can include in their standard contracts, including the terms and conditions of some websites.  Beginning on December 14, 2017, the Federal Trade Commission (the “FTC”) and state attorneys general will treat the use of contracts violating the Act as an unfair and deceptive trade practice, making it subject to potential financial penalties or other enforcement.

What Does the Act Do?

The definitions included in the Act are fairly technical, but in short, the Act protects consumer reviews of products and services when a purchase is made under a non-negotiated form contract.  To accomplish this, the Act prohibits the use of “form contracts” lacking meaningful negotiation and containing terms that (i) prohibit or restrict reviews of the seller’s products/services, (ii) impose a penalty or fee for such reviews, or (iii) transfer certain intellectual property rights in reviews. The Act also voids the provisions of any “form contracts” that do any of the foregoing.  However, the contracts can still prohibit the posting of certain content, such as trade secrets, confidential information, certain personal information, offensive language, and computer viruses, to name a few.

What Does the Act Apply to?

The Act applies to all “form contracts” used in the course of a sale to consumers that cannot reasonably be negotiated.  The Act never defines “goods and services,” so the Act has no real limitation on what type of seller it applies to.  It would seem to include websites that provide an interactive service for which they charge a fee as well as traditional sellers and service providers.  The Act also neglects to specify exactly what situations fall within the Act’s reach. It could include only contracts for sale, or it could also include terms of use for a website that advertises products or services.  While this is unclear from the Act itself, it would be safer to assume maximum applicability until we see how the Act is actually enforced.

Does the Act Prohibit Deletion of Social Media Posts or Other Reviews?

The Act never actually states that it is unlawful to remove reviews, but rather that it is unlawful to have “form contracts” restricting reviews in the manner described.  However, the FTC states on its website that the Act applies to social media (at www.ftc.gov/tips-advice/business-center/guidance/consumer-review-fairness-act-what-businesses-need-know).  The terms described in the Act do clearly seem to include posts on social media accounts.  Still, because there is no blanket restriction in the Act from removing reviews, the Act seems only to prevent companies from including terms in their “form contracts” that limit social media posts (or any other reviews described in the Act).  None of this seems to limit a company’s ability to actually delete social media posts, so long as none of the company’s “form contracts” restrict or prohibit covered communications.  However, it should be noted that the FTC may attempt to enforce this Act broadly, and courts have not yet had significant opportunity to interpret its reach.

Important Notes:

  • The Act covers any oral, written, or pictorial review, whether electronic or not. This includes more than just online reviews, although online reviews are likely to be the main area the Act will be applied.
  • The limitation against “prohibiting or restricting” reviews could apply broadly. Terms of use reserving a broad ability to remove or censor posts could violate the act, even if they do not specifically impose a penalty or restriction.
  • “Form contracts” can still transfer some intellectual property rights in reviews, so long as they meet the requirements of the Act.
  • The Act does not limit a business from bringing claims of defamation, libel, or slander over a review.

How Do I Comply with the Act?

  • Website terms of use and policies for sites that allow any type of reviews or customer comments should be reviewed and revised for compliance with the Act, even if the website does not have an e-commerce component.
  • All contracts with consumers that are (for all practical purposes) non-negotiable should be reviewed and revised for compliance with the Act. This includes most electronic contracts, such as e-commerce contracts, and paper contracts that are standard forms, such as pre-printed contracts used in over-the-counter sales or rentals.
  • Although it seems unclear at this point whether deleting negative social media posts could bring on an FTC enforcement action, the best practice would be to not delete any negative posts or reviews made by customers unless they are clearly false, misleading, or meet one of the other specifically permissible reasons. Although the Act does not specifically prohibit this, the FTC may view it as within the scope of the Act and may pursue such activity.  Even if you are ultimately successful in defending a challenge, that could be a costly and embarrassing fight.
  • To ensure best practices, you may consider developing an internal policy that meets these standards.

Contact us for more information on the Act or to get specific advice on how to comply. — Collin Atkins

New Online Registration Requirements for Designated Agents Under the Digital Millennium Copyright Act

Posted on by Rina Van Orden

The U.S. Copyright Office has developed a new electronic system for registering your designated agent under the Digital Millennium Copyright Act (“DMCA”).  As of December 2016, the U.S. Copyright Office has begun transitioning to an online registration system which allows online service providers to register a designated DMCA agent in a centralized public directory.  Any new registrations must be completed through this online system.  Most importantly, even if a service provider has previously registered its designated DMCA agent with the Copyright Office through the previous paper filing system, the service provider must re-register through the Copyright Office’s new online system before December 31, 2017.

Registering and maintaining a designated agent with the Copyright Office for copyright infringement takedown requests is necessary to obtain safe harbor protection under the DMCA.  Safe harbor protection can help shelter online service providers from potential copyright liability for any third party content posted on or transmitted via their websites.  In order to qualify for safe harbor protection under the DMCA, any online service provider that has a website or application which allows users to post, share, transmit, or comment on content must designate a Copyright agent.  To designate an agent, an online service provider must not only provide the contact information for the agent to the Copyright Office as part of its online public directory, but also make the contact information for the agent available to the public on the online service provider’s website so that users can notify the service provider of allegedly infringing material.

On the Copyright Office’s online registration system, online service providers must create an account and provide all necessary information regarding the service provider itself, the designated agent, and the associated websites.  Registration costs $6 per online service provider submission.

While the registration forms seem relatively simple, they raise additional issues that need to be considered carefully.  For example, related companies that are separate legal entities (parents, subsidiaries, etc.) and own related but separate websites must register separately.  An online service provider must also provide all alternate names under which the service provider is doing business, such as any of its associated website names and/or domains, software application names, or any other commonly used name that the public would be likely to use to search for the service provider’s designated agent.  In many cases a website owner can submit multiple websites/alternate names in one submission, but it depends on the specific circumstances.  The DMCA must be strictly complied with in order to receive full safe harbor protection, so it is essential that the registration forms are properly and fully completed.

Once the DMCA agent has been designated through the Copyright Office’s online system, online service providers must ensure that all of the registered information remains up to date.  Any failure to maintain accuracy in this information could result in losing the protection of the DMCA safe harbor provisions.  For example, if an online service provider’s designated agent changes, the service provider must make sure that the agent registration information is updated not only with the Copyright Office, but also in all places on the service provider’s website where the designated agent is identified.

Online service providers can amend their registrations at any time for an additional $6 per submission.  Additionally, the Copyright Offices requires online service providers to renew their agent designation at least every 3 years.  To do this, service providers must resubmit their registration before it expires, either with the same information if still accurate or with any updated information.  Renewals are also $6 per submission.  Any amendment filed will begin a new 3-year period before a renewal is due.

All online service providers should carefully review their current DMCA policies and materials and determine whether they may need assistance with drafting online DMCA policies for consumers, establishing and maintaining a designated agent with the Copyright Office, and/or drafting internal policies and procedures on reviewing and addressing DMCA takedown notices.  Online service providers do not want to miss out on compliance with the DMCA’s safe harbor provisions and potentially face copyright infringement liability for user content.  — Rina Van Orden