Consumer Law & Policy Blog

New Identity Theft Threat?

by Jeff Sovern

An article in today's New York Times reports on a conflict between researchers and credit card issuers over potential security problems in credit cards which need not be "swiped" through credit card readers.  Tens of millions of these credit cards--which can be read through radio waves--have been issued by American Express, J.P. Morgan Chase and others.  Though the issuers claim that the data in the cards is encrypted, the researchers found that some of the cards bear unencrypted information that can be read by devices "the size of a couple of paperback books, which they cobbled together from readily available computer and radio components for $150."  One researcher compared the situation to wearing your name and credit card information on a T-shirt.  Because the cards need not be swiped, a reader can obtain the credit card data from envelopes in mailboxes or while standing near a person in a crowd.  On the other hand, credit card issuers denied that the cards present a real threat to consumers.  They argued that the researchers' sample was too small to be reliable and that the transmitted information was useless.  I cannot help but wonder if the gain in convenience is worth it.

Company: Taking Pictures of Our Product Is Copyright Infringement

by Greg Beck

One of the many advantages of the Internet for consumers is the competition it creates.  When Internet shoppers can easily compare the prices of hundreds of dealers online, it is difficult for any one dealer to get away with charging more.  Thus, prices fall and consumers benefit.

Not surprisingly, however, some companies don't like their prices being undercut on the Internet and have devised a variety of strategies to squelch unwanted competition.  Some companies claim using their names in an online listing infringes their trademark in the name.  An even more common approach is to claim copyright infringement over unauthorized use of product images.

California resident Jamie Olson ran into this problem when she decided to make some money selling salon hair care products online.  To test the waters, she bought some shampoo made by a company called Aquage and put it up on eBay.  Because consumers generally like to see what they are buying, the eBay listing includes a picture of the bottle that Olson took with her own camera.

The company was not pleased.  Olson soon received an email from a private investigator hired by SalonQuest, the maker of Aquage, demanding that she stop selling the products.  The reason:  "You are displaying copyrighted Aquage containers in your advertisements," which, according to the private investigator, is a "violation of SalonQuest's legal rights under the federal Copyright Act."  Olson was given five days to "immediately remove all Aquage products from your Ebay offerings" and "confirm for us in writing your agreement to permanently discontinue all sales of Aquage products over the internet or through any other form of mail order."  In other words, displaying a picture of the company's product, according to the company, infringes its copyright in the product's packaging.

Blogosphere Aboil

So the ABA Journal reports about New York's proposed ethics rules that would make it difficult for attorneys to blog.

This Blog Is False and Misleading (in New York)

by Greg Beck

In the name of protecting consumers from false and misleading lawyer advertising, New York is proposing draconian new restrictions on Internet communications and other forms of attorney advertising that will directly impact attorneys who maintain blogs or websites in New York, or in many cases who simply send an email into the state.  Instead of protecting consumers, however, the proposed rules will burden completely truthful and non-misleading communication by attorneys, and will serve no purpose other than to deprive consumers of useful information about their legal rights, protect established law firms from competition, and render many aspects of the Internet largely unusable for New York attorneys.

Stripped to their essence, the proposed amendments would define the term "advertisement" extremely broadly as any public communication made "by . . . a lawyer . . . about a lawyer."  Sec. 1200.1(k). This definition explicitly includes all forms of communication on the Internet, including websites, email, and instant messaging.  Sec. 1200.1(m).  There is no requirement that the speech be commercial in nature or related to the lawyer's practice of law.