Jeff Neuburger

Jeff Neuburger

Proskauer Rose LLP

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Latest Publications


Tenth Circuit Affirms Lower Court Ruling on Meaning of “User” in DMCA §512(c) Safe Harbor

Title II of the Digital Millennium Copyright Act (DMCA) offers safe harbors for qualifying service providers to limit their liability for claims of copyright infringement. To benefit from the Section 512(c) safe harbor, a...more

5/11/2016 - Copyright Infringement Copyright Litigation Corporate Counsel DMCA Internet Service Providers (ISPs) Photographs Safe Harbors User Agreements User-Generated Content Website Owner Liability

California Court Refuses to Dismiss Biometric Privacy Suit against Facebook

The District Court for the Northern District of California recently issued what could be a very significant decision on a number of important digital law issues. These include: the enforceability of “clickwrap” as compared...more

5/10/2016 - Biometric Information Biometric Information Privacy Act Choice-of-Law Clickwrap Agreements Corporate Counsel Data Collection Enforceability Facebook Facial Recognition Technology Shutterfly Terms of Use

User of Free App May Be “Consumer” under the Video Privacy Protection Act

This past week, the First Circuit issued a notable opinion concerning the contours of liability under the Video Privacy Protection Act (VPPA) – a decision that stirs up further uncertainty as to where to draw the line...more

5/4/2016 - Corporate Counsel Geolocation Mobile Apps Personally Identifiable Information Popular Reversal Subscribers Third-Party Service Provider Video Privacy Video Privacy Protection Act

Self-Publishing Platforms Deemed Distributors, Not Publishers in Privacy Suit over Unauthorized Book Cover

We live in a world that has rapidly redefined and blurred the roles of the “creator” of content, as compared to the roles of the “publisher” and “distributor” of such content. A recent case touches on some of the important...more

4/4/2016 - Amazon Barnes and Noble Distributors e-Books Intellectual Property Protection Invasion of Privacy Online Platforms Publishers Right of Publicity Right to Privacy Terms and Conditions User Agreements User-Generated Content

Google Is the Latest Online Provider to Face Class Action over Collection of Faceprints

As we have previously written about, there are several ongoing biometric privacy-related lawsuits alleging that facial recognition-based systems of photo tagging violate the Illinois Biometric Information Privacy Act (BIPA). ...more

3/18/2016 - Biometric Information Biometric Information Privacy Act Facial Recognition Technology Google Injunctive Relief Photographs Putative Class Actions Shutterfly Written Consent

Website HTML Is Copyrightable, Even If Look and Feel Is Not

In a notable ruling last month, a California district court ruled that the HTML underlying a custom search results page of an online advertising creation platform is copyrightable. In Advertising FZ-LLC v....more

2/8/2016 - Copyright Infringement Copyright Office Copyrightable Subject Matter E-Commerce Intellectual Property Protection Leave to Amend Websites

FTC Releases Big Data Report Outlining Risks, Benefits and Legal Hurdles

The big data revolution is quietly chugging along: devices, sensors, websites and networks are collecting and producing significant amounts of data, the cost of data storage continues to plummet, public and private sector...more

1/16/2016 - Big Data ECOA FCRA FTC FTCA Section 5 Title VII

FTC Issues Enforcement Policy Statement on Native Advertising in New Media

Digital media marketers are aggressively increasing the use of so-called sponsored content, or native advertising to reach new customers. Particularly with the growing use of ad blockers on web and mobile browsers, marketers...more

1/5/2016 - Digital Media Disclosure Requirements FTC FTCA Native Advertising Policy Statement Unfair or Deceptive Trade Practices

Photo Storage Service’s Collection of Faceprints May Violate Illinois Biometric Privacy Statute

As we have previously noted, there are several ongoing privacy-related lawsuits alleging that facial recognition-based systems of photo tagging violate the Illinois Biometric Information Privacy Act (BIPA). The photo storage...more

1/5/2016 - Biometric Information Privacy Act Consent Databases Facebook Facial Recognition Technology Personal Jurisdiction Putative Class Actions Shutterfly

Facebook Seeks Dismissal in Illinois Facial Recognition Biometric Privacy Suit

As we have previously noted, Facebook has been named as a defendant in a number of lawsuits claiming that its facial recognition-based system of photo tagging violates the Illinois Biometric Information Privacy Act (BIPA). ...more

11/25/2015 - Biometric Information Privacy Act Facebook Facial Recognition Technology Motion to Dismiss Photographs Popular

European Court Gives Bitcoin a Tax-Free Boost

In an important ruling for digital currency service providers, EU’s top court, the Court of Justice of the European Union (CJEU), ruled that transactions to exchange a traditional currency for bitcoin virtual currency, or...more

10/28/2015 - Bitcoin Currency Exchange EU European Court of Justice (ECJ) Exemptions Value-Added Tax Virtual Currency

Video Privacy Protection Act Narrowed – App’s Transmission of Roku ID Not Disclosure of Personal Information

A New York district court opinion is the latest addition to our watch of ongoing VPPA-related disputes, a notable decision on the issue of what exactly is a disclosure of “personally identifiable information” (PII) under the...more

10/28/2015 - Analytics Anonymization Corporate Counsel Data Privacy Data Protection Data Security Disclosure Disney Internet Streaming Mobile Devices Personally Identifiable Information Popular Roku Third-Party Video Privacy VPPA Young Lawyers

Biometrics: Facebook Files Motion to Dismiss Privacy Suit over Facial Recognition Technology

As discussed in a previous post on facial recognition technology, a putative class action has been filed against Facebook over the collection of “faceprints” for its online photo tagging function, Tag Suggestions. (See e.g.,...more

10/16/2015 - Biometric Information Biometric Information Privacy Act Consent Data Collection Data Privacy Data Protection Data Security Databases Facebook Facial Recognition Technology Injunctions Motion to Dismiss Personal Data Photographs Popular Putative Class Actions Shutterfly Statutory Damages

Important Circuit Court Ruling Limits Scope of VPPA Liability

The Eleventh Circuit issued a notable ruling this week limiting a mobile app’s liability under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710, a law enacted in 1988 to preserve “consumer” personal privacy with...more

10/15/2015 - Advertising Android App Developers Cartoon Network Data Privacy Data Protection Data Security Digital Downloads Internet Streaming Mobile Apps Nonsubscribers Online Videos Personally Identifiable Information Third-Party VPPA Web Tracking

Section 230 of the Communications Decency Act: More Lessons to Be Learned

Courts continue to struggle with the application of CDA immunity to shield service provider defendants from liability in extreme cases. In this case, the Washington Supreme Court, in a 6-3 decision, affirmed the lower court’s...more

10/1/2015 - Affirmative Defense Communications Decency Act Immunity Internet Service Providers (ISPs) Online Advertisements Sexual Assault Third-Party Service Provider User-Generated Content Websites

Clickwrap Agreement Available Only Through Hyperlink Enforceable Under New York Law

Last week, the Southern District of New York followed a long line of precedent under New York law and upheld the enforceability of a website clickwrap agreement, granting a website operator’s motion to compel arbitration...more

7/24/2015 - Actual or Constructive Knowledge Arbitration Borrowers Clickwrap Agreements Contract Terms Loans Motion to Compel Online Contracts Terms and Conditions

Supreme Court Rejects Google’s Appeal in Java API Dispute

On June 29th, the Supreme Court denied certiorari in Google’s appeal of the Federal Circuit’s 2014 ruling that that the declaring code and the structure, sequence, and organization of 37 Java API packages are entitled to...more

7/1/2015 - APIs Copyright Google Oracle Oracle v Google Popular SCOTUS The Copyright Act

Facial Recognition Technology: Social Media and Beyond, an Emerging Concern

This week, a major self-regulatory initiative intended to address privacy concerns associated with facial recognition technology hit a significant stumbling block. Nine consumer advocacy groups withdrew from the National...more

6/24/2015 - Biometric Information Clickwrap Agreements Corporate Counsel Facebook Facial Recognition Technology Fair Use FTC Informed Consent NTIA Opt-Outs Popular Prior Express Consent Privacy Concerns Privacy Disclosures Privacy Policy Putative Class Actions Self-Regulatory Organizations Social Media Transparency Young Lawyers

Meeting of the Minds at the Inbox: Some Pitfalls of Contracting via Email

We have had a number of clients run into issues relating to whether or not an email exchange constituted a binding contract. This issue comes up regularly when informality creeps into negotiations conducted electronically,...more

6/10/2015 - Commercial Contracts Contract Formation Contract Negotiations Corporate Counsel Disclaimers E-Signatures Electronic Agreements Email Enforceability Intent Proof of Intent UETA Young Lawyers

New York Releases Final BitLicense Rules

Readers of this blog will know that we have been following the recent legal developments relating to bitcoin and other virtually currency systems. Yesterday, in a significant development reflecting the general maturation of...more

6/6/2015 - BitLicense Corporate Counsel Department of Financial Services Popular Virtual Currency

Upcoming Summer Blockbuster: Impending Shortage of IPv4 IP Addresses

There is an interesting article in today’s Wall Street Journal about the impending shortage of IPv4 IP addresses (forcing tech companies and cloud providers to scramble to secure the remaining stock for U.S. users) and the...more

5/14/2015 - Cloud Computing Technology Sector

Who Exactly Is a ‘User’ under the DMCA Safe Harbor?

The DMCA was enacted in 1998 to preserve “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in a digital networked environment.” As part...more

5/12/2015 - Copyright Copyright Infringement Corporate Counsel Digital Media DMCA End-Users Media Publishers Young Lawyers

Emergence of Live Streaming Apps Brings Up Copyright, Privacy, Legal Concerns

The big fight may be over, but the implications of Mayweather vs. Pacquiao with respect to real-time, one-to-many streaming of video through apps like Meerkat and Periscope are still rippling through the media industry. In...more

5/5/2015 - Copyright DMCA Internet Streaming Live Streaming Mobile Apps Popular Privacy Concerns Smartphones Social Media Social Networks Sports Takedown Notices

U.S. Dept. of Commerce Releases Multistakeholder Guidance on DMCA Notice and Takedown Best Practices

On Tuesday, the U.S. Dept. of Commerce’s Internet Policy Task Force released a guidance containing a list of best practices (and notable “bad” practices), all designed to improve the DMCA’s notice and takedown system for both...more

4/10/2015 - DMCA New Guidance Takedown Notices Task Force U.S. Commerce Department

FCC Adopts Net Neutrality Rules, Reclassifies Broadband Access under Title II

After nearly 4 million public comments, and months of vigorous public, industry, and Congressional debate, the FCC, by a 3-2 vote, approved revised net neutrality rules to “protect the Open Internet.” As expected by the...more

3/2/2015 - FCC Internet Net Neutrality Telecommunications Act

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