Getting Big on YouTube and Shrugging Copyright Law

3904Michelle Phan has achieved the YouTube dream with about 6.7 million subscribers on her YouTube channel which was started in 2007. But now Phan faces a law suit which is anything but a dream come true.

Ms. Phan, a self-made beauty how-to guru has built a mini empire around her YouTube channel on which she broadcasts her videos about style, looks and makeup. She has been featured in Dr. Pepper commercials and struck a deal to unveil her own line of cosmetics. The problem? Super popular videos created by Phan carry soundtracks she has never licensed for use. Now Ultra Records is demanding $150,000 per copyright infringement. Total damages? Ultra seeks a minimum of $15 Million.

Ultra, an electronic dance music label represents musicians such as deadmau5, Calvin Harris and Kaskade, all artists whose songs Ms. Phan has used as soundtracks in her videos.

Old School Copyright Law on the New School Playground

Ironically, while large brands in the entertainment industry spend millions on social media promotion to vie for attention, some of the same companies squelch their own viral spread by shutting down use of songs and clips that they didn’t authorize. Highlighting the conflicting views of all concerned, Kaskade, the artist whose work is primarily named in the complaint made this comment via Twitter regarding the suit:

I’m not suing @MichellePhan + @ultrarecords isn’t my lapdog. I can’t do much about the lawsuit except voice support for her

Kaskade himself expressed further frustration when his own music was removed from his own Soundcloud account by that system’s copyright infringement detection system. Kaskade stated that today’s copyright laws were “a dinosaur, ill-suited for the landscape of today’s media”.

Finding a Balanced Approach to Copyright Law

How can a company strike a balance in copyright enforcement without shooting themselves in the foot? Some such as Disney have intentionally turned a blind eye to the use of its assets on YouTube. One recent example sited is a popular (albeit smaller scale in comparison with Phan) channel in which an independent singer did a cover of Disney’s song “Let it Go” from the animated film, Frozen. Thus far, Disney has opted to ignore this overt use of material despite the 74,000 subscribers that follow the channel.

Will entertainment brands such as Disney teach irritable record labels to relax? Or will laws change to suit the seemingly unstoppable social media movement?

NSA, Apple, Google Take Away Favorite FBI Spy Toys.

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Worries over government spying on private citizens is no longer the realm of foil-hat-wearing conspiracy theorists. The permeation of smartphones into virtually every aspect of daily life has raised legitimate privacy concerns for many years now. Especially since Apple made the smartphone the standard for cellular devices with the intro of the iPhone. Now, spotting a flip phone toting holdout is rare enough to sneak a snapshot and post it on Instagram with a “#grandpa” tag in the comments.

This ubiquity of iPhone and Android devices has opened a potential doorway into the individual lives of the millions of Americans by surveillance pros. This plus the publicity and public outcry over NSA activities exploiting smartphone device security to its own ends and their response by promoting higher device security has led to quite the public debate on device security.

Apple’s position? According to their own terms of service, personal content on your iPhone or iPad such as email, contacts, messages, calendar items and notes are protected by the device’s encryption and can only be unlocked (legitimately) by device passcode. Further, Apple does not build in an override that would allow them as a company access to personal material on your phone. Thus, they have no ability to give access to law enforcement agencies.

Rumor is that Google is following suit by building an automatic encryption technique in a future version of Android. Thus, even if armed with the proper warrants, detectives could be faced with a dead-end on an avenue of evidence that once led to much easier convictions. Location logs, stored text files, and even images can pin a suspect to a time and location such that virtually no other source of evidence aids enforcement agencies – especially police detectives – so well.

FBI Director James Comey expressed frustration with Apple and Google’s all-encompassing efforts to protect device privacy highlighting the blow felt by the law enforcement community and prosecution lawyers to their arsenal.

Unwarranted Outcry?

Interestingly, while device security is progressively yielding bricks that were once smartphones to prying eyes, most modern devices are now connected by default to some form of cloud backup which can duplicate much of the data that an encrypted phone guards. While not as rich a source of data, such material resides on servers that are not the property of the phone’s owner and come under different terms of service. Of course the FBI knows this. So why are law enforcement officials so upset?

One piece of the puzzle might be found in the comments of one legal professor who was quoted by Washington Post as saying, “The outrage is directed at warrantless mass surveillance, and this is a very different context. It’s searching a device with a warrant”.

In other words, outcry over NSA activities has taken a toll on what law enforcement views as legitimate and rare sources of evidence when the original upset was over blatant big brother surveillance. Further, some data cannot be found on anything but a person’s device itself.

Civil liberties activists are unsympathetic to the plight of the out-teched police. The same Washington Post article referenced earlier quoted a leader of one such group based in San Francisco as stating, “Law enforcement has an enormous range of technical and old-fashioned methods to go after the perpetrators of real crime, and no amount of security effort at Silicon Valley tech companies is going to change that fact. The reality is that if the FBI really wants to investigate someone, they have a spectacular arsenal of weapons.”

Personality Tests in the Workplace: New Grounds for Discrimination?

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A recent Wall Street Journal article highlighted developments in the use (or ceasing of use) of personality tests by major companies in the hiring and management of staff.

According to this article:

 

-          Xerox believes that personality tests that it utilizes can be credited with a reduction in high-turnover customer-service by 20 days on average.

-          Dialog Direct, a major call center provider states that personality testing software has allowed management predict which employees will get highest performance scores with 80% accuracy.

-          RadioShack incorporates limited questions based on personality test techniques to evaluate potential employee candidates.

-          Lowe’s tests job applicants on what their natural response would be to hypothetical customer interaction situations.

-          McDonald’s claims that personality questions are not used to assess qualifications but to elicit “accurate and candid responses”.

-          Kroger Co., a supermarket chain along with PetSmart use tests from an assessment vendor called Unicru Inc.

-          CVS settled a civil “charge of discrimination” with the Rhode Island American Civil Liberties Union over several application questions that could have elicited responses that indicated certain mental health or physical disabilities (against RI laws).

-          Whole Foods stopped including personality testing in their hiring in 2007 after managers noticed that workers who cleared the questions proved to lack basic food preparation skills.

Obviously, personality testing in employment practices is ripe for controversial discussion. The personality testing tend continues to grow in HR practices. WSJ cited a testing company as stating the growth of commercial personality testing at 10% to 15% per year in an already ½ billion dollar per year business.

The more personality testing merges with standard hiring practice, the more questions about efficacy, effectiveness and more interestingly (from a legal standpoint), legality of certain testing procedures arise.

The U.S. Equal Employment Opportunity Commission is at the forefront of pursuing and investigating cases involving potential discrimination practices in employment – including those arising out of personality testing. Notably, the EEOC is currently attempting to find evidence that personality testing intrinsically filters people who suffer from certain disabilities that exhibit responses not tied to personality. Such findings could create a case that personality testing causes illegal discrimination in many cases.

On the other hand, the EEOC is currently pursuing much lower hanging fruit. On 9/25/2014, the EEOC filed the first transgender discrimination lawsuit. By comparison, the personality testing legal questions that increasingly arise may stay out of the big headlines for now. But do a search on ‘(fill in the blank big company) personality test questions’ and you’ll see that the Internet is overflowing with discussions about the first hand experiences of job applicants in perceived grossly unfair personality questions.

Pennsylvania Has Nowhere to Send Juvenile Criminal Defendant?

A triblive.com article on Sept. 30th 2014 mentioned an interesting case in which defense attorney Pat Thomassey expressed frustration with the State of Pennsylvania for lacking a single mental health treatment facility which could house his client.

Murrysville, PA high school student Alex Hribal is facing charges as an adult for the stabbing of 20 classmates as attempted killings. A Westmoreland County Judge ruled that the disturbed juvenile was in need of attention and ruled he be sent to a facility for mental health treatment.

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Above: Alex Hribal being moved to face arraignment

Unfortunately, officials were at a loss as to how to comply with the ruling stating that there was nowhere secure enough to send the teen. Hribal was turned away from Southwood Psychiatric Hospital in Upper St. Clair.

The triblive.com article quoted a Philadelphia Dr. that runs several mental healthcare programs regionally and nationally as stating that ‘Pennsylvania has no specific programs providing inpatient mental health treatment in a facility secure enough to house juveniles charged as adults with violent crimes.’

Thomassey was quoted by another source at CBS Pittsburgh as saying, “I think they should be ashamed of themselves. I mean, this young man needs some help, some psychiatric therapy and I can’t find a place to take him and I think that’s pathetic.”

After said source article was published, evidently Southwood Hospital changed its position and according to CBS Pittsburgh affiliate KDKA, conceded to admit the suspect.

District Attorney John Peck does not agree with the decision to move Hribal to a mental hospital stating that while he agreed that mental health attention was needed, hospitalization is not. Peck further sited that treatment had been declined by the defendant several times.