Law Blog – Latest Articles

Working with an unpaid intern

So you want to hire an unpaid intern. How do you do it?

543 369 Cynthia Conlin

Many small business owners would like to hire an unpaid intern.  However, it’s vital they follow federal guidelines. Federal law, the Fair Labor Standards Act (FLSA), as well as Florida state law, requires employers to…

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Exactly what is ‘Fair Use’?

150 150 Cynthia Conlin

As you probably know, it is generally an infringement to use another’s copyrighted work without authorization. However, one common defense to infringement actions is “fair use.” But how can you determine whether something is used in “fair use”?

The courts follow a four-step balancing test, which can be quite complex and examines both the original and the copied works in much detail. Only after examining and weighing all four factors will the courts decide whether an item was used in “fair use.”

The first factor is the “purpose and character of the use.” For instance, non-profit educational purposes will weigh more in favor of fair use than for-profit uses. Uses exploiting an original work for commercial gain tend to weigh in the other direction. This factor also considers the transformative nature of the new work. For instance, a “parody” (assuming it’s a true parody) will weigh in factor of fair use in this factor.

The second factor is the “nature of the copyrighted work.” The more informational and functional the original work, the broader the scope of the fair use defense. For original creative expressions such as many songs and paintings, this factor generally weighs against fair use.

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Bloggers beware! If you lift other’s content, it may cost you … up to $150,000

150 150 Cynthia Conlin

One Nevada attorney-turned-serial copyright litigant seems to have created a new legal niche — at the expense of bloggers and website owners nationwide.

Steve Gibson is an Illinois- and Nevada-licensed attorney living in Las Vegas, where he helms Gibson Lowry Burris LLP, a law firm that focuses on, among other things, copyright law. Around the beginning of the year, Gibson formed Righthaven, LLC, a company with the purpose of buying and registering copyrights of newspaper articles which have been lifted at least in part by bloggers and website operators, and then suing whoever he can find who has copied them.

Since the company’s formation, Righthaven has filed more than 80 copyright infringement lawsuits, sometimes several in a day, and all in the District Court for Nevada, against bloggers and website operators throughout the country.

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A tree hangs onto your neighbor’s property: Who pays to trim it?

150 150 Cynthia Conlin

It’s a common and old quandary:  A tree growing from your land has branches or roots intruding onto your neighbor’s property, or vice versa.  So . . . whose responsibility is it to trim the…

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Anonymous bloggers not always protected

150 150 Cynthia Conlin

Earlier this week, the Ninth Circuit issued an opinion resulting from a case where Amway-successor Quixtar, Inc. had sued it competitor Signature Management TEAM, LLC (“TEAM”) for allegedly carrying out an “Internet smear campaign” to induce Quixtar’s independent business owners to terminate their contracts with Quixtar and instead join a competing multilevel marketing company affiliated with TEAM. In re. Anonymous Online Speakers, 2010 U.S. App. LEXIS 14166 (9th Cir. Nev. July 12, 2010)

The alleged “Internet smear campaign” included a set of anonymous blogs of both text and video postings. At the lower court, during discovery, Quixtar obtained a court order compelling TEAM to identify the anonymous bloggers. TEAM, arguing that the anonymous bloggers were protected by the First Amendment, appealed the order to the Ninth Circuit. In response, Quixtar cross-petitioned the Court to order a TEAM employee to reveal the bloggers’ identity.

In the end, the Ninth Circuit held that the bloggers’ identity was not protected from the discovery process.

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Court says porn site venue ‘CocoDorm’ violated city zoning laws

150 150 Cynthia Conlin

The U.S. Court of Appeals for the Eleventh Circuit decided last month that Flava Works Inc., a company selling sexual images filmed in a house in Miami, had violated city zoning laws by “illegally operating a business in a residential zone.”

The case, Flava Works Inc. v. City of Miami, originated in 2007 when the City issued a zoning violation then order against Flava Works. Although Flava Works used a separtate office for its general office work, it also maintained a residential house, the “CocoDorm,” where independent contractors had “sexual relations which are captured by the webcams located throughout the house” in exchange for $1,200.00 a month plus room and board.

The City found that the CocoDorm violated two City Codes: (1) “adult entertainment not permitted in C-1 zone property” and (2) “illegally operating a business in a residential zone.”

Flava Works appealed the order to the Southern District of Florida and, at the District Court level, won. The District Court pointed to a 2001 case, Voyeur Dorm, L.C. v. City of Tampa, it found controlling. The “materially indistinguishable” facts of the Voyeur Dorm case included a house of women who disrobed and performed “intimate” acts on webcam in exchange for rent and payment. The Eleventh Circuit held that the Tampa “adult entertainment” ordinance at issue did not apply to the Voyeur Dorm because customers were never physically invited to the house, and the Voyeur Dorm only offered entertainment “over the Internet in ‘virtual space.’”

The City of Miami appealed the District Court’s decision and argued that, although the Voyeur Dorm decision may be controlling as it pertains to application of one of the zoning ordinances (specifically, the one prohibiting “adult entertainment” in C-1 zone property), it could not pertain to whether Flava Works had violated the other zoning ordinance: “illegally operating a business in a residential zone.”

Flava Works argued no actual “business” was conducted at the CocoDorm, as “no goods were bought or sold and nothing was manufactured” there, and all commercial transactions took place at a separate office, and that the second ordinance could not apply either.

Disagreeing with Flava Works, the Eleventh Circuit Court of Appeals said, “it can be reasonably asserted that raw video images, which were later sold over the internet, were created” at the CocoDorm. “While these images are not tangible goods, they have a commercial value and enable Flava Works to earn a profit.” Furthermore, the activities at the CocoDorm are “part and parcel to Flava Works’s business operation,” and “the sole reason individuals are paid to live and engage in sexual activities” is business.

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collectors

Collection agencies that fail to register with state of Florida may expose themselves to potential litigation

721 481 Cynthia Conlin

It’s no secret, with the falling economy, that collection practices and lawsuits against debt collectors have been on the rise. One recent court decision may have given consumers in Florida even more protections from unscrupulous creditors.

In Florida, like in many states, debt collectors must comply with at least two bodies of statutory law. First, there is the Fair Debt Collection Practices Act (FDCPA), a federal law enacted by Congress in 1978 that establishes general standards of conduct, defines and restricts abusive collection practices, and provides specific rights for consumers. Next, the Florida Consumer Collection Practices Act (FCCPA), a state law enacted by the Florida legislature in 1993, gives consumers additional protections.

With some exemptions, the state act (specifically, Fla. Stat. § 559.555) requires collection agencies engaging in business within the state of Florida to register with the Florida Office of Financial Regulation. To register, they must pay a $200.00 fee and provide certain information to the Office, and they must renew their registration annually. Although the state act allows consumers to sue debt collectors for various other reasons, it provides no private right of action for a consumer to sue a debt collector for its failure to register.

However, a few months ago, in LeBlanc v. Unifund CCR Partners, 601 F.3d 1185 (11th Cir. 2010), the United States Court of Appeals for the Eleventh Circuit addressed whether a consumer in Florida could, pursuant to the federal act, sue a collection agency for its failure to register with the Florida Office of Financial Regulation in violation of the state act.

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