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Posts by Dov Szego

Liable for texting a driver? Not new, not remarkable, and what else?

The recent case of Kubert v. Best, (August 27, 2013) in New Jersey has caused a great stir:  The facts of the case are, essentially, that the plaintiffs were “grievously injured by an eighteen-year-old driver who was texting while driving and crossed the center-line of the road.”  New Jersey prohibited texting while driving at the time (N.J.S.A. 39:4-97.3).  The underlying claims against the driver were settled, but the Plaintiffs appealed the dismissal of their claims “against the driver’s seventeen-year-old friend who was texting the driver much of the day and sent a text message to him immediately before the accident.”  In its opinion New Jersey’s three-judge Court of Appeals panel decided, with a concurring opinion but no dissenting opinion, that “when the sender ‘has actual knowledge or special reason to know,’ … from prior texting experience or otherwise, that the recipient will view the text while driving, the sender has breached a duty of care to the public by distracting the driver.”  Contrary to popular belief, the texter was not held liable in this case, and the dismissal of claims against her was upheldThis despite the fact that :

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WIN8: Microsoft’s Misstep?

The author runs the table on OSes:  I have a Linux-laptop, a Windows XP laptop and desktop, a Windows Vista laptop, a Windows 7 laptop, and a Windows 8 laptop.  To call Windows 8 a “disappointment” is like calling the Atlantic Ocean a puddle…  You may be wondering what Windows 8 has to do with business law.  The fact of the matter is that Windows, in its various versions, is the most popular software ever, and the migration (or failure to migrate) to a new version is a major business concern.

More importantly, Windows XP, sometimes billed as “the most popular operating system ever,” is set to reach “End of Life” less than a year from now, on April 8, 2014.  This might not seem like an issue, but millions of users, particularly businesses, continue to use the venerable Microsoft XP operating system.  For those of you who are visual, consider the following data from Netmarketshare:

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Piracy, ISPs, and six strikes: not two outs, or even one…

In a voluntary self-policing effort most likely intended to help safeguard their Communications Decency Act (“CDA”) Section 230 immunity from suit, several Internet Service Providers (“ISPs”) have created a “Copyright Alert System” (“CAS”) to allow content owners the opportunity to report piracy, through which “strikes” can be issued to Internet service users as a warning for piracy.  This YouTube user who I can’t identify as an authority, has a few generally accurate, and fairly informative videos about the CAS regime.  It’s not clear whether this user is a representative of the ISPs or not.  Comcast also has a pretty good set of faqs on the CAS.

Essentially, the CAS allows content owners to identify infringing IP addresses after verifying that infringement is taking place by P2P (“peer to peer”) file sharing.  The ISP then sends a warning to the Internet service user who had that IP address at the relevant time.  After multiple warnings the Internet service user may be required to view a video about piracy, and after several warnings that user’s service may be “throttled,” or slowed down to make piracy more difficult or time-consuming.  The CAS includes an arbitration process for challenging warnings (Russell’s teapot: How do you prove you weren’t pirating?), but no circumstance under which an Internet service user’s account is to be terminated.

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How Your Cell Phone Became a Perching Felony: About the Recent DMCA Transition to Making Cell Phone Unlocking Illegal

Before you read any further, go read and take note of this petition.  You may want to sign it (I did), but context will help in reading this blog post.  In case you’ve been studying really, really hard for the Bar Exam, or were suffering from a surprise case of “dead” over the last week, you inevitably heard that the process of “unlocking” cell phones, previously legal, is now illegal because of government fiat.  For those who may not have understood or thought to ask, “unlocking” is not the same as “jailbreaking.”  In a nutshell, jailbreaking involves making it possible for a device to run code either from sources the manufacturer did not intend the device to be able to use or to run code the manufacturer did not intend it to be able to run (though most people talk about Apple IOS devices, Sony, for example, will note that other devices can also be “jailbroken”).  Unlocking, however, involves making it possible for a device intended for use on one wireless network to be used on a different network – wireless devices sold by a particular wireless company are generally, but not always, sold programmed so that they can only use that company’s network.

Regular readers of Internetbizlaw and the Centre Knowledge blog know that I am pro technology consumer, and very cynical about the “graying” of property rights.  I am not going to spend a lot of time in this post discussing the “right and wrong” of legalizing unlocking, or not, but everyone should understand a few facts:

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If You Can Read This, You Might Just Have to Sue Someone…

How long did it take for this page to load?  Not fast enough for you?  Well you might just have a potential lawsuit on your hands.

While my cynical humor may seem funny to some and sad to others, it also has grains of truth.  In this age of digital consumer sophistication and the debate over net neutrality some consumers have taken to the Courts to enforce ISP speed and bandwidth claims.

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FTC v. Epic Marketplace: It’s not paranoia if…

Remember that Rockwell song from the 80’s: “I always feel like somebody’s watching me…”?  Chances are, while you were online, Epic Marketplace was.  Earlier today the Federal Trade Commission (FTC) reached a settlement with Epic Marketplace that required that company to stop “datasniffing” websurfers’ browsing and destroy records gained by doing so.  Find the Consent Order here.

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Digital Rights Management Issues Continue to Tangle Consumers

There was a time, long ago, when we bought something and it was ours.  We could use it, give it away, light it on fire… whatever, but it was ours.  Recently it came to be that something that was ours was also sort of somebody else’s (the recent Supreme Court Kelo case) – or something that was somebody else’s was kind of ours (the more venerable Supreme Court Sony Betamax case) (confused yet?).  Today, things that are ours, aren’t really ours at all.

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The Digital Ag(u)e: FCC launches “Small Biz Cyber Planner 2.0” to help confront cybersecurity concerns

Did you know that October was “National Cyber Security Awareness Month”?  Neither did I or anybody else, and I do this for a living.  The fact of the matter is that issues with cyber security are omnipresent, and growing in both number and severity.  Foreign nations, which will go unnamed here (but didn’t in recent presidential debates), continue to hack government computer systems, even as “activist groups” hack companies, and employees are accused of undermining their employers’ computer systems.

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