Richard Raysman

Richard Raysman

Holland & Knight LLP

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“Look and Feel” of a Website can Constitute Protectable Trade Dress

The United States District Court for the Northern District of California, in Ingrid & Isabel, LLC v. Baby Be Mine, LLC, --- F. Supp. 3d ----, 2014 WL 4954656 (N.D. Cal. 2014), in reviewing the arguments before it, attempted...more

10/16/2014 - Trade Dress Trademarks Website Design Websites

Down the Rabbit Hole – The Impact of Alice on Software Patents

Software patents recently took another hit as courts continue down the rabbit hole following the Supreme Court decision in Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014). In Alice, the Court held that claims to...more

10/13/2014 - CLS Bank v Alice Corp Covered Business Method Patents Patent-Eligible Subject Matter Patents Software USPTO

Is a LinkedIn Contact List a Trade Secret? Potentially, Yes

As a LinkedIn user, the decision concerning whether to share your entire list of connections with any individual connection can often implicate a number of strategic questions. As of May 2014, LinkedIn boasts 300 million...more

9/29/2014 - Corporate Counsel LinkedIn Popular Social Networks Trade Secrets

Affiliate Marketer Can Survive Motion to Dismiss on Breach of Contract for Referrals

Affiliate marketers are a considerable cog in assisting companies, including search engines and online retailers, in guiding potential customers to click on sponsored links. In expediting the acquisition of potential...more

9/23/2014 - Breach of Contract CBS Click-Through Nexus Internet Retailers Marketing Search Engines Software Tortious Interference

Fake Affiliate Registrations Can Trigger RICO Claims

The Racketeering Influenced Corrupt Organizations Act (RICO) (18 U.S.C. § 1962) is a federal civil and criminal statute originally designed to thwart organized crime. It has been previously used to prosecute, among others,...more

8/27/2014 - Affiliates Anti-Corruption Corruption Foreign Affiliates Racketeering RICO Trucking Industry

Clicking “I Agree” Renders Mandatory Arbitration Provision Enforceable

Day in and day out, Internet users sign various forms of agreements for a variety of reasons, from joining a dating site, to participating in an online auction, to uploading media to a storage locker. These agreements,...more

8/5/2014 - Arbitration Agreements Class Action Clickwrap Agreements Internet Mandatory Arbitration Clauses Momentis Websites

Creating Fake Customer Reviews Site Could Be False Advertising and Trade Libel

As evidenced by the success and robust market capitalization of the consumer review site Yelp, Internet users are increasingly turning to "regular people" as a lodestar for whether to purchase goods or services. This is...more

7/25/2014 - Corporate Counsel False Advertising Lanham Act Online Reviews Trade Libel Yelp

Reviews Posted Under a Pseudonym Could be Defamatory

As written on this blog before, plaintiffs often have difficulty when alleging claims of defamation against anonymous defendants. Unsurprisingly, websites that provide a forum for anonymous commentary are loathe to reveal the...more

7/17/2014 - Anonymity Anti-SLAPP Corporate Counsel Defamation Online Reviews Popular Websites

Message Board Post Highly Critical of Company is Opinion and Thus Not Defamatory

An essential defense to a defamation claim is "pure opinion." In other words, if the defendant can show that the statements alleged to be defamatory are opinions protected under the relevant free speech laws, the defamation...more

7/16/2014 - Corporate Counsel Defamation First Amendment Internet Pharmaceutical Social Networks Statement of Facts

Sixth Circuit Vacates Lower Court Judgment and Awards Website Operator Immunity

In August of 2013, this blog wrote about the case Jones v. Dirty World Entertainment Recordings, LLC, 965 F. Supp. 2d 818 (E.D. Ky. 2013) ("Jones I"). As described then, Jones I dealt with the following set of facts...more

6/24/2014 - Appeals Communications Decency Act Immunity Materiality TheDirty.Com Website Owner Liability

Virginia Supreme Court Agrees to Hear Appeal in Yelp Users Defamation Case

Yelp.com (Yelp) labels itself an "online urban guide." Specifically, the website allows users to write reviews about experiences at businesses they've visited. It also permits users to browse the posted reviews. The...more

6/18/2014 - Defamation First Amendment Internet Online Reviews Popular Yelp

Pejorative Statements by Former Patient are not Defamatory, but Protected Opinion

It is fair to say that doctors trade on their reputations more so than most other professionals. When one relies on the doctor to ensure his or her health, and occasionally save a life, the import of such a choice often...more

5/29/2014 - Defamation First Amendment Free Speech

LabMD Attempt to Overturn FTC Decision Declared an Unripe Claim

As far as disputes between administrative agencies and investigated companies, this one has gotten particularly public and ugly. The dispute in question involves the Federal Trade Commission (FTC) and LabMD Inc. (LabMD)...more

5/28/2014 - Enforcement Actions FTC LabMD Ripeness

The CFAA Does Not Apply To Facebook Photo Theft

The Computer Fraud and Abuse Act (CFAA), codified at 18 U.S.C. § 1030 et seq, is a criminal statute that forbids, among other things, "intentionally access[ing] a protected computer, without authorization" when the access...more

5/16/2014 - CFAA Facebook Photographs Theft

"Deliberate Ignorance" Sufficient Mens Rea For Criminal Conviction Under DMCA

As a Circuit judge recently noted in dissent, the Digital Millennium Copyright Act (DMCA) strives to "achieve a balance between strengthening copyright law and preserving consumer rights, promoting technological innovation,...more

4/10/2014 - Copyright Infringement Criminal Prosecution DMCA First Amendment

Manipulating User Postings Removes Service Provider from CDA Immunity

As detailed on this blog before, the immunity from "publisher or speaker" liability for interactive computer service providers under the Communications Decency Act (CDA) is broad and generally encompasses a wide variety of...more

3/24/2014 - Communications Decency Act Electronic Communications Immunity User-Generated Content

Online Product Management Beyond DMCA Safe Harbor

The Digital Millennium Copyright Act (DMCA) was in large part designed to help content providers prevent copyright infringement on the Internet. Nonetheless, a countervailing concernt is firmly embedded into its text. In...more

3/24/2014 - Copyright Copyright Infringement DMCA Internet Safe Harbors

Willful Fair Credit Reporting Act Violation Confers Article III Standing

Whether they would admit it or not, most people have probably at some point searched for their own name in a search engine. Often the results illustrate how much personal information has been scraped and aggregated by...more

2/19/2014 - Article III FCRA Spokeo Standing Willful Violations

Domain Name Squatting to Gain Leverage Can Trigger "Bad Faith Intent" in an ACPA Claim

A required element to sustain a claim under the Anti-Cybersquatting Consumer Protection (ACPA) (15 U.S.C. § 1125(d)(1)(A)) is proof that the defendant acted with "bad faith intent to profit from that mark." As bad faith...more

2/3/2014 - Bad Faith Cybersquatting Domain Names gTLD Internet

Nurse Using Abusive Language Toward Hospital Administrator on Facebook Justifies Firing

As this blog has covered on a number of occasions, employee speech on Facebook, particularly if it is profane, vituperative or threatening, can lead to termination. A number of courts in recent months have grappled with the...more

1/20/2014 - Facebook Healthcare Professionals Hospitals Offensive Language Termination

Disputed Facebook Post Can Justify a Firing And Is Not Pretextual

As this blog illustrated recently, sentiments posted on Facebook, if sufficiently vulgar or offensive, can cause a person to lose his job. The Seventh Circuit recently issued a decision analyzing whether a profane and...more

12/3/2013 - Employer Liability Issues Facebook First Amendment Obscenity Offensive Language Termination

First Amendment Does Not Prevent State From Firing Employee For Derogatory Facebook Comments

Though the First Amendment affords greater free speech protections for government employees relative to those in the private sector, the speakers do not have carte blanche to insult or deride whomever they see fit. Rather,...more

11/18/2013 - Facebook First Amendment Free Speech Public Employees Social Media Termination

Hyperlinking within an Online Article could Immunize the Speaker against a Defamation Claim

For even the most novice internet user, hyperlinks are undoubtedly helpful to the browsing experience. Hyperlinks assist users in navigating through the vast amounts of undesirable content on the web by providing a reference...more

11/6/2013 - Defamation Immunity Internet

Facebook User Voluntarily Shared Image; Cannot Claim "Reasonable Expectation of Privacy" under Fourth Amendment

It's not far-fetched to say that this blog could run every day solely on posts analyzing the recent legal developments regarding Facebook. As the social networking behemoth has become a functionally ubiquitous presence in the...more

10/24/2013 - Facebook Privacy Policy Reasonable Expectation of Privacy Social Media

Angry Facebook Posts and Tweets by Passenger about an Airport Employee Considered Expression of Frustration and Therefore not...

Twitter, Facebook and other social networking sites have become the latest battleground between two often conflicting legal concepts: the right of a person to speak freely, even in a vitriolic way, versus the right of another...more

10/16/2013 - Defamation Emotional Distress Damages Facebook False Light Free Speech Invasion of Privacy Slander Social Media Twitter

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