Carolyn Toto

Carolyn Toto

Pillsbury Winthrop Shaw Pittman LLP

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Latest Publications


Do Kanye’s Words Speak Louder than Tidal’s TOS?

A Chicago law firm has challenged Jay-Z and Kanye West, filing a class action complaint for violations of the California Business & Professions Code, fraudulent inducement and unjust enrichment in the Northern District of...more

4/26/2016 - Corporate Counsel Fraudulent Inducement Jay Z Kanye West Music Streaming Representations and Warranties Terms of Service Twitter Unjust Enrichment Young Lawyers

From Ashley Madison to the Panama Papers: Is Hacked Data Fair Game?

We’ve previously written about the distinctions between hacking credit and other financial data in comparison to hacking private information. (See Ashley Madison and Coming to “Terms” with Data Protection.) The issue of how...more

4/25/2016 - Ashley Madison Attorney-Client Privilege Confidential Information Corporate Counsel Data Breach Data Privacy Hackers Inadvertent Disclosure Popular Public Disclosure Young Lawyers

Rehearing Denial Leaves ITC’s Jurisdiction Tethered to the Material World

Last week, the en banc Federal Circuit declined to rehear its November 10, 2015, decision in ClearCorrect v. ITC, 2014-1527, leaving the U.S. International Trade Commission’s (ITC) Section 337 jurisdiction to “material...more

4/8/2016 - Digital Data Imports Infringement Intellectual Property Protection Internet of Things ITC Jurisdiction Section 337

Google and Oracle Agree to Ban Internet Research on Jurors … this Time Around

In a March 25, 2016 Order, Judge William Alsup of the Northern District of California gave Google and Oracle the choice between agreeing to a ban on conducting Internet and social media research on jurors until the trial is...more

4/5/2016 - Disclosure Google Internet Juror Oracle Research Tools Social Media Trial Court Orders

The Dancing Baby Returns: Computer Algorithms, Good Faith and Fair Use

In “The Case of Prince, a Dancing Baby and the DMCA Takedown Notice,” we discussed the potential impact of the Ninth Circuit decision in Lenz v. Universal Music Corp., 801 F.3d 1126 (2015), a.k.a. the “dancing baby case,” in...more

3/31/2016 - Algorithms Copyright Copyright Infringement Corporate Counsel Digital Media DMCA Fair Use Good Faith Music Industry Online Videos Popular Takedown Notices Universal YouTube

Lord & Taylor Case Shows the Importance of Transparency in Advertising

Consumer protection is always in style with the Federal Trade Commission (FTC). Under the FTC Act, a company cannot make a misrepresentation that would affect the consumer’s conduct or decisions with regard to a product or...more

3/25/2016 - Enforcement Actions FTC Instagram Lord & Taylor Online Advertisements Social Networks

Rolls-Royce & the Rapper: Social Media Activity Helps Decide a Trademark Tussle

We recently wrote about a musician who got into some trouble with a court by using social media to flaunt images of hundred dollar bills after he had filed for bankruptcy. Now, an Atlanta-based rapper known as Rolls Royce...more

3/24/2016 - Corporate Counsel Dilution Lanham Act Music Industry Popular Rolls-Royce Social Media Trademark Infringement Trademark Litigation Trademarks Unfair Competition Young Lawyers

Google Searches & Jury Selection: What Role Should Social Media Have in Voir Dire?

We have written previously about the role of traditional discovery roles in “newer” platforms, and how social media content can be discoverable and used in litigation. What about using information from social media in jury...more

3/22/2016 - Discovery Evidence Google Jury Selection Oracle Patent Litigation Social Media Voir Dire Young Lawyers

Fox News & Fair Use: How Transformed Does Reposted Content Need to Be?

At its heart, social media’s purpose is sharing content; however, fair use can only take one so far. A recent case serves as yet another reminder to exercise caution when reposting content, and that, in a litigious society,...more

3/8/2016 - Copyright Copyright Infringement Digital Media Fair Use Fox Broadcasting Motion for Summary Judgment Popular Social Media Young Lawyers

50 Cent Breaks the Golden Rule of Social Media Posting

“Be careful what you post.” This may be the most obvious of social media commandments. Yet, it’s also true that it’s difficult to control the degree of public access to photos and messages posted on a social media platform,...more

3/1/2016 - Consumer Bankruptcy Discovery Instagram Judgment Creditors Litigation Strategies Online Platforms Photographs Popular Social Media Social Networks

The Case of the Hacked Hospital: When a Cyber Breach Becomes a Health Crisis

Recently, we noted vulnerability issues from use of the Internet of Things and how that has come to impact the health industry. Recent events continue to highlight this development. Since the start of the year, there have...more

2/26/2016 - Cyber Attacks Cybersecurity Data Breach Hackers Health Care Providers Internet of Things PHI Popular Ransomware

The Value of Terms Limits: YouTube’s Broadly Defined TOS Does the Trick

Frequent readers of our blog will recall that in prior posts on companies such as Uber, Ashley Madison and Twitter, we have stressed the importance of having a robust terms of service (TOS) agreement. In many instances, TOS,...more

2/9/2016 - Corporate Counsel Limitation of Liability Clause Online Platforms Social Media Terms of Service YouTube

The ITC Tries an En Banc Shot to Redefine Its Regulatory Authority

In our recent post, Living in a Nonmaterial World: Determining IP Rights for Digital Data, we discussed the potential impact of the Federal Circuit decision in ClearCorrect v. ITC, 2014-1527, in which the appeals court held...more

2/4/2016 - 3D Printing Digital Data En Banc Review Infringement Internet ITC Tariff Act of 1930

Uber and Lyft Choose Different Routes in Navigating Legal Challenges

The future of ride-sharing companies has hung in the balance for more than two years while class actions and labor complaints were pending against industry giants Uber, Lyft and others. The ride-sharing companies have...more

2/2/2016 - Class Action Corporate Counsel Independent Contractors Lyft Misclassification Sharing Economy Uber Wage and Hour Young Lawyers

Twitter, the Drone Selfie and Charting a Course for New Technology

A recently published patent application filed by Twitter provides a possible glimpse into the future of social media and selfies—and it’s a future arriving on the wings of that poster child of modern technology, the unmanned...more

1/28/2016 - Corporate Counsel DMCA Drones Federal Aviation Administration (FAA) Popular Registration Requirement Safe Harbors Selfies Social Media Twitter Unmanned Aircraft Systems Young Lawyers

The Complicated Relationship between DMCA Takedown Notices and the Word “Expeditious”

Hours. Days. Weeks. Months. When it comes to acting on copyright infringement takedown notices, just how fast is fast enough for social media platforms? Some recent (and not-so-recent) cases reveal how difficult the question...more

1/20/2016 - Copyright Infringement Corporate Counsel DMCA Photographs Popular Social Media Takedown Notices Tumblr Young Lawyers

Living in a Nonmaterial World: Determining IP Rights for Digital Data

The U.S. International Trade Commission (ITC) regulates U.S. trade and oversees Section 337 investigations that address unfair competition based on alleged infringement of intellectual property rights. The ITC has been a...more

1/12/2016 - ALJ Digital Data Electronic Data Transmissions Intellectual Property Protection ITC Patent Infringement Unfair Competition

Hashtags, Trademarks and One #ProudMama

We have previously discussed how the use of the hashtag in trademarks is continuously evolving. As it turns out, the latest evolutionary wrinkle might have started to form this past March, thanks to one of pop culture’s more...more

12/30/2015 - Fair Use Hashtags Popular Trademark Infringement Trademark Registration USPTO

Google Gives Fair Use on YouTube a Fighting Chance

Last month, Google announced a groundbreaking policy that may help shift the balance of power between copyright claimants and those who upload YouTube videos that may be covered by fair use. According to Google’s Public...more

12/17/2015 - Copyright Infringement DMCA Fair Use Google Online Videos Takedown Notices YouTube

Shielding Your Patent from “Abstract” Reasoning

Patents related to games are facing new challenges for being too “abstract,” but a recent court ruling highlights the limits to this line of attack. Last year, the Supreme Court reinvigorated a body of law that defines the...more

12/8/2015 - Abstract Ideas Gaming Inventive Concept Test Patent-Eligible Subject Matter Patents Young Lawyers

The Year of Pokémon: the Potential & Pitfalls of AR Gaming

In 2016, Niantic will blur the lines between our world and the world of Pokémon with the release of Pokémon GO, its upcoming augmented reality game for mobile phones, which will allow fans to see and interact with Pokémon in...more

12/3/2015 - Civil Liability Mobile Apps Nintendo Video Games Virtual Reality

Pintrips Emerges with Its “Pin” Intact in Trademark Dispute with Pinterest

In a recent federal district court case in the Northern District of California (Case No. 13-cv-04608-HSG), Pintrips Inc., a website-based travel planning service, effectively pinned to the mat the trademark claims brought...more

12/1/2015 - Corporate Counsel Descriptive Trademarks Online Travel Vendors Pinterest Popular Social Networks Trademark Infringement Young Lawyers

As Reliance on “Digital Influencers” Grows, So Does FTC Enforcement

As we saw in a prior post regarding Kim Kardashian and Instagram, the FDA pays attention to how brand companies use paid celebrities to endorse their products. Likewise, the FTC closely scrutinizes how brand companies use...more

11/17/2015 - Advertising Ann Taylor Disclosure Requirements Endorsements FTC Hewlett-Packard Social Networks Strategic Enforcement Plan

New DMCA Exemption Keeps Enthusiasts in the Game

Due to efforts by the Electronic Frontier Foundation (EFF), the Library of Congress adopted in its recent guidelines a limited exemption to the Digital Millennium Copyright Act (DMCA), allowing gamers and preservationists to...more

11/10/2015 - Copyright DMCA Video Games

Establishing the Boundaries of the OCILLA Safe Harbor

As user-generated content explodes over the Internet, intellectual property disputes over posting or uploading such content without the owner’s consent continue to escalate. As we touched on in a recent post, social media...more

11/5/2015 - Copyright Infringement Corporate Counsel DMCA Independent Contractors Intellectual Property Protection Internet Internet Service Providers (ISPs) News Stories Online Platforms Online Videos Photographs Popular Safe Harbors Social Media Social Networks Spam Third-Party Third-Party Liability User-Generated Content Websites Young Lawyers

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