When Congress enacted the DMCA in the Fall of 1998, it was trying to solve some of the issues that were arising with respect to the posting of other’s intellectual property on the internet.   The important “safe harbor” protections were designed to shield “service providers” from liability for infringement due to content posted by a user on a service provider’s website.

It is beyond the scope of this article to describe all the nuisances of what constitutes a “service provider”, and there have been many twists and turns in the way the DMCA has been interpreted over the years.  One of the most significant issues that has arisen is whether a service provider is exercising “control” over the infringing content.  Notably, curated content, for example, may fall outside the safe harbor, if a company is determining which user content to share on its website.

Take down procedures included in the terms of service of a company’s website are what people commonly associate with the DMCA.  The protocols that a company must implement should it receive notice, pursuant to its procedures, to take infringing content down must be followed in order for the service provider to receive the benefit of the safe harbor rules.  But there are other considerations.  For example, if a user repeatedly posts infringing content, it may not be enough simply to play “whack-a-mole” with that user by simply removing each instance of infringement as they occur; such a user may have to be banned from using the website completely.

The 2016 amendments do not really solve these concerns.  Instead, they focus on administration concerning how online service providers should designate their registered agents with the U.S. Copyright Office.

By streamlining the process through an online registration system and requiring the registrations to be renewed every three years, the public will have better access to the information necessary to contact registered agents and complain about infringing content.

The existing paper registration system will be completely replaced by online registration;
all paper registrations will become invalid on December 31, 2017.  Accordingly, if you already have a registration on file with the U.S. Copyright Office, you will need to file for a new registration by using the online system before the end of this year.  Note that any change to a registration triggers a new three-year renewal period.  On the bright side, the registration fee has been reduced from $105 to a flat rate of $6 per designation.  That could be a big cost savings for some companies.  The same fee applies to amendments and renewals.

For more information, review the information on the U.S. Copyright Office website.

PIX 11’s Senior Correspondent Marvin Scott interviews Emily Campbell, the Firm’s Managing Member, about the domestic violence pandemic, including types and causes of domestic violence, how abusers can exert control over their victims through technology and social media, resources that people impacted by domestic violence can access and a new book “Something To Be Brave For” that puts the spotlight on how domestic abuse can even impact people of high socio-economic status. Also featured on the program is Audace Garnett, Technology Safety Specialist of the National Network to End Domestic Violence. The program originally aired on Pix 11 on June 25, 2017.

FOX 5’s Antoine Lewis, host of “Good Day Street Talk,” interviews Emily Campbell, the Firm’s Managing Member. Ms. Campbell discusses pro bono and low bono representation of persons who are abused and how the criminal justice system treats such persons, including her work with women who fight back against their abusers. Also featured on the program is Audace Garnett, Technology Safety Specialist for the National Network to End Domestic Violence. The program originally aired on Fox 5 on June 24, 2017.

The Super Lawyers ratings are coveted and cannot be “bought.”  The process used by Thomson-Reuters to identify those attorneys worthy of Super Lawyers status is patented.  Only those attorneys with a high-degree of peer recognition and professional achievement are selected.  That selection process includes independent research, peer nominations and peer evaluations.

“When the award package arrived, I was incredibly surprised,” said Ms. Campbell.  “It is harder to get recognized for corporate work when you work on private deals, so it’s taken a long time to get this important recognition.”

The Super Lawyers designation is a validation of the sophisticated business practice Ms. Campbell has developed over the last 25 years.  “It’s my 25^th anniversary this year.  This recognition is the perfect anniversary gift,” Ms. Campbell said.

Ms. Campbell’s name was listed in the Business/Corporate category in the widely-distributed national edition of the Super Lawyers Magazine, and her name was also listed in the Business/Corporate category in the popular Super Lawyers Magazine included as an insert in The New York Times published on October 1, 2017.  Ms. Campbell was very delighted that she was recognized in the Business/Corporate category, as this is the principal focus of her practice.  “Being recognized for my Business/Corporate practice is a great honor, since it is an extremely competitive area of practice,” Ms. Campbell said. Her profile is available on the Super Lawyers website.

“It truly is an honor to be named Super Lawyer this year,”  Ms. Campbell said.  “I thank my peers for recognizing my achievements, hard work and dedication to the profession.”

Emily Campbell’s personal entrepreneurial experience continues to develop.  Most recently, Ms. Campbell is getting into the very hot New York City food scene with the planned launch in early 2017 of a grab ‘n go café and market called Brooklyn Chow.  Brooklyn Chow is locating its first location in the up-and-coming Hipster+Caribbean section of Crown Heights in trend-setting Brooklyn.  Ms. Campbell has been involved in everything from lease negotiation to build-out, from logo design to uniform design, from market item selection to menu creation, from employment decisions to operations.  This type of experience in what is designed to be a scalable business takes Ms. Campbell’s personal entrepreneurial experience well-beyond real estate development, theater production and on-line business development.  It also takes her far beyond what growing this Firm, a professional service business, and servicing its clients, could ever do in terms of exposure to risk analysis and implementation challenges – many of which can be mitigated by careful planning from a legal point-of-view.  This new experience gives Ms. Campbell insights into what it takes to grow a hybrid product-service business from the ground up and will be invaluable in her work with clients – whether they are running products or service businesses.

When asked how she manages to handle a full-time law practice and other business interests, Ms. Campbell maintains that it is important that she have other business interests because she can appreciate business risks and help clients manage them by having to make tough decisions in her own businesses.  “My personal entrepreneurial experience has always been a value-added proposition for my clients.  My latest entrepreneurial experience gives me even more tools for my tool-chest.  For example, when we’re negotiating a lease for a client, based on this new experience, I am even more cognizant of what would trigger the option – or more importantly what would make the option to extend not exercisable – having gone through a painstaking negotiation for Brooklyn Chow’s lease,” Ms. Campbell shared.  “Moreover, when I counsel clients on trademarks, and they come out of the gate wanting to brand everything, I can have them focus in ways that may not occur to some trademark practitioners who themselves are not invested in building a brand.  In other words, my personal experience forms a framework in which I empower clients to make informed choices.  I get to live by our Firm’s mantra – that is, ‘Empowering Clients Through The Practice Of Law.’”

One of the other reasons Ms. Campbell continues to be involved in businesses besides her law practice is the impact that she can have in the community and beyond.   “I believe it is important to give-back.  Launching Brooklyn Chow will give me more of a systematic ability to give something back to charities dealing with poverty and hunger – systemic problems that are really important to me to work toward eliminating. ” Ms. Campbell shared that Brooklyn Chow will be making an initial commitment to Hunger Free America .  “There are many wonderful charities out there, but Hunger Free America is our out-of-the-gate choice because of the great work that the charity does.  Its slogan is ‘Ending Hunger Lifts Us All’.  And I believe that.”

Ms. Campbell, a member of the 18-B Panel for Kings County volunteered to be appointed to the Queens 18-B Panel for this one case, being attracted to the assignment because of the difficult nature of the criminal case, with its potential collateral consequences, including through the sex-offender registration procedures.

The defendant had already had two other criminal lawyers before Ms. Campbell was appointed.  “It’s always hard to follow other lawyers, since some of the strategy is already determined by choices other practitioners made,” Ms. Campbell said.  But Ms. Campbell was up to the challenge.

Ms. Campbell jumped right into the case and began preparing the case for trial, building confidence with the client to be able to actually try the case. Among other relationship-building efforts, Ms. Campbell made multiple visits to Rikers Island to prepare the client for trial.  “There was no point in the defendant continuing to wait,” Ms. Campbell stated.  “Justice is not served by having someone spend more time in jail than they could ever be sentenced for.  Indeed, by the time the case went to trial, the client had already served more time than the maximum sentence he could have received if convicted on all counts.”

Cases like this one are the types of cases Ms. Campbell likes to take.  “Being able to try cases is the reason I started doing criminal work in the first place.  It keeps my trial skills active because criminal cases are actually tried, while most civil cases settle.  The idea that the People were going to drop the charges was obviously not going to happen, given the People’s position.  So preparing for trial from the outset was absolutely necessary.”

After some additional pre-trial motion practice – including an extensive 30-30 motion that Ms. Campbell prepared on the client’s behalf, arguing that the People had waited too long to prosecute the case – and that the case should be dismissed — the case was eventually tried in the Spring of 2016.  Although, after a week-long jury trial, the jury decided against the accused and found him guilty of the crimes charged, because the defendant had already served his time, he was released soon after the post-trial motion practice was completed.

“There are many issues that were preserved for an appeal,” Ms. Campbell noted, “including appealable issues surrounding an important pre-trial ruling that went against the accused about the nature of a prior crime.”

Corporate clients and friends of Ms. Campbell sometimes ask why she would commit to helping people accused of these type of crimes.  Ms. Campbell simply smiles, knowing that she is doing the right thing.

“Every client accused of a crime deserves a strong defense because the People need to prove the case against the accused beyond a reasonable doubt,” Ms. Campbell said.  “The People need to work for the verdict.”

Ms. Campbell always reports being proud to represent people accused of crimes, including crimes that make some people feel uncomfortable, including those accused of child abuse, sex crimes and homicides.  “I would want someone like me representing me if I were accused of a crime,” Ms. Campbell offered.  “It is important to me to represent people accused of crimes through the low-bono 18-B program, as well as through my pro-bono work.  It’s an easy choice for me, as these clients need me as a advocate just as much as my corporate clients need me.”

Procedural justice involves making sure that the client has a good experience even when the outcome is not ideal.  By stepping into these difficult cases, where other lawyers aren’t always willing to get involved, Ms. Campbell demonstrates her commitment to pursue justice on behalf of clients who cannot always afford to pay the market-rate to obtain competent counsel.  “I know I have had a positive impact on my indigent clients, and that is professionally rewarding.” Ms. Campbell concluded.

In October 2016, Ms. Campbell attended a two-day intensive seminar presented by The New York State Defenders Association on Representing Veterans in Criminal Matters.  In that training, Ms. Campbell was trained to understand better post-traumatic stress disorder (PTSD) issues facing many veterans, how to relate to veterans by understanding more about military hierarchy and terminology to speak their language and what legal issues veterans may face when they head to criminal court, including some family court collateral consequences.

“I wanted to be in a position to help veterans as a way to serve my country,” Ms. Campbell said.  “My father served in the Navy.  My uncle was served in the Army during the Korean War.  One of my friends from high school served in the Army; he was ranked as a Colonel before he retired from the service and was highly decorated after serving multiple tours of duty in Iraq and Afghanistan.  Still other friends served our country, including a dear friend who proudly wears the insignia of the Air Force on his business suit lapel, even though his service was many years ago.  If any of them were in need of representation, I would want someone like me to stand up with them.”

The issues veterans face are complex, and there are specialty courts in many jurisdictions to deal with their cases.  Many of the cases involve issues of domestic abuse and assault because often veterans are still in a “fight or flight” mode, when they return from international conflict zones.  Being able to consider brain trauma and psychological conditions and educate the judge and the jury about these issues is important, and with Ms. Campbell’s background in social psychology, this seemed like a natural choice for her.

When a second training opportunity arose to utilize her psychological background and work toward the protection of human rights, Ms. Campbell again raised her hand to volunteer to make a difference.  In November 2016, Ms. Campbell attended The Legal Aid Society’s training on Legal Issues Involved in Human Trafficking.  In this training, Ms. Campbell learned how to better understand people who are charged with prostitution or loitering for the purposes of prostitution — recognizing that not everyone who is charged with such crimes is a criminal; often such persons are victims.  Sometimes people accused of such crimes are being manipulated by others to commit those crimes; in other words, those persons may be trafficked.

In New York City, there are special courts set up to deal with human trafficking issues.  Ms. Campbell has received the training to appear there, being apprised of the special alternative programs for victims to receive assistance instead of doing time for crimes, when appropriate.

“The human trafficking scenarios you sometimes see on ‘Law & Order: Special Victims Unit’ are real.  It may seem far-fetched, even ‘crazy,’ that people are here working as sex-slaves to pay-off debts they owe to their pimps – but it does happen.  It happens more often than one would like to believe.”

There are lots of collateral consequences in the human trafficking arena, including immigration and potential deportation consequences.  Ms. Campbell learned that, in some instances, people may be able to seek protection in the U.S. if they have been trafficked.

“I am proud to be helping out in any way I can.” Ms. Campbell said.  “I realize how lucky I am to be able to make my living in an office, sitting at a desk, doing legal work, and I know that not everyone can.  I am lucky to be sitting on this side of the jail cell — the side that allows me to turn around and walk out when my meeting with a client at Rikers is over.  I’m very lucky indeed.”

When the Firm was considering its move from 80 Broad Street in Downtown Manhattan five years ago, Emily Campbell, the Firm’s Managing Member, met the Founder of WeWork, Adam Newman, when touring WeWork’s initial Downtown location.  At the time, the Firm was not considering a move to Midtown, but Mr. Newman made a very convincing argument for joining the WeWork community. Notably, the Midtown location has a very professional design and is conveniently located to many subways, making it extremely convenient for clients.  In 2011, WeWork was just completing the building at 349 Fifth Avenue, which was only the second building WeWork had developed; the Firm became the first tenant on the third floor at 349 Fifth Avenue and has been a tenant ever since.

“WeWork is a very exciting environment,” Ms. Campbell shared,  “It is energizing to be around people who are building businesses and working just as hard as you are, but without pretense or stuffiness!”

Although WeWork does have, in some of its buildings, true co-working spaces, where there are large, shared spaces, there are individual office spaces in the WeWork community – ranging in sizes as small as a single office to multi-person offices for a single company to gather its team.  The Firm occupies private office space.  Confidentiality is maintained by having individual space, rather than sharing space with others, but the Firm still benefits from the all-glass design, giving the space a very friendly, open feeling.  “The beauty of this system is that the Firm can take additional space only as needed and not carry large overhead,” Ms. Campbell said.  “This allows the Firm to manage its operational costs and keep its billing rates affordable for smaller and growing companies.”

“The community feel is wonderful,” Ms. Campbell also said.  “WeWork’s Founder is Israeli, and I would tell you that the WeWork team has built the equivalent of a ‘kibbutz for entrepreneurs,’ where it really feels like a cooperative environment, not simply a place to have an office.  You have to buy into the whole concept and mindset, but once you do, it is an office experience like no other.”

The Firm has never taken space in a traditional law-office collective in the almost 15 years since the Firm’s founding, choosing instead to locate in buildings primarily with entrepreneurs and other types of service providers. That was a deliberate decision by the Firm’s Founder, Ms. Campbell.  “Having had direct space when I founded the Firm and going from there to the WeWork community, where, among other things, someone else has to worry when the internet and copy machines stop functioning, I can say, without hesitation, that WeWork is hands-down the best office environment I have ever been in since founding the Firm in 2002.”

While it is true that WeWork agreements are month-to-month and a company locating at WeWork does not have to be locked in for a long time, if it’s working, it’s an ideal place to be – at least for the Firm, given its needs for a high-tech infrastructure that would be difficult to duplicate for a small firm, without investing in a ton of additional equipment, whether leased or purchased, and a separate technology contract or multiple contracts to service all that technology.

“Beyond that, WeWork is aesthetically pleasing, with an up-beat, modern design, which is appealing to many of our start-up and high-tech clients or established companies that have a younger generation at the reigns.  And it has an energy about it,” Ms. Campbell said.

There are start-ups in WeWork, as well as established businesses like the Firm, and there are foreign companies with satellite offices that have located in WeWork buildings.  WeWork attracts all sorts of people – all sorts of industries.  And recently, WeWork raised approximately $450 million to launch in China.  About that time, Mr. Newman made the cover of The Real Deal, a well-known real estate magazine, demonstrating WeWork’s strong foothold in the entrepreneurship community.

With a multi-billion dollar valuation now, WeWork has certainly seen some changes in the way it handles its challenges, often competing with itself with multiple locations in cities like New York.  But one thing never changes – the way companies like the Firm are treated by WeWork’s managers and staff.  “WeWork is all about hospitality,” said Ms. Campbell.  “That translates into not only how I am treated and how my team is treated, but how my clients are greeted when they first arrive at the reception area.  The Firm hopes to remain here for the foreseeable future.  It’s a happy place, and I’m very happy to be here.”

The EU’s laws that are systematized and implemented across the member jurisdictions yield many benefits. With Britain pulling out, there is much speculation about what will happen next. Will Britain continue to adopt the EU rules it has benefitted from as its own, or will it endeavor to create new rules? How much additional legal compliance will the separation add? Will Britain adopt inconsistent policies that will make it more difficult to deal with creating uniform policies for businesses operating in multiple countries?

Uniformity in branding with trademark protection, for example, may become more challenging. Emissions controls from a compliance prospective may become more problematic if differing standards are adopted. If you are doing business overseas and you want to choose English law to govern, how will that turn out, if otherwise EU law would have governed?

Privacy considerations from a marketing perspective, including social media and website policies, and the use of the data collected on-line, may diverge, as we already know that EU standards are different from those of the U.S. (and even in the U.S. the standards can be impacted by state privacy considerations). This is especially true for sensitive data, including protected health care information and financial data.

What you need to consider if you are doing business in the UK is that the consistency previously enjoyed by the application of EU law to a variety of issues may necessitate your American counsel not only consulting with EU counsel, but with British counsel specifically.  This will understandably increase the cost of compliance and potentially necessitate changes in the way a U.S. company does business in Britain or otherwise with British companies.

Some commentators have predicted that other European countries such as France and Italy may follow suit. If this happens, a domino effect could follow, and then the EU may find itself without many of the core Western European countries as members.

Just watch the legal landscape carefully so as not to be caught off guard with these types of changes. Consult with your legal counsel, and be proactive in meeting the challenges that are sure to follow from Brexit.

The short answer:  It depends.

The employer who narrowly tailors a non-competition clause in terms of length of the restriction and geographic scope will have a much easier time enforcing the restrictive covenant.  The broader it becomes, the easier it will be for the employee to skirt it.

Of course, the employee should be aware of a couple of critical factors in deciding whether to take his or her chances in going against the restriction on its face.  First, the new employer (or a new company started by the employee) could get sued along with the employee.

Second, a court, if there is language in the contract permitting a rewriting of the clause to fall within “a rewrite to comply” (within the then-state of the law) may wind up being restricted in some form.  In other words, the court may not throw out the entire provision, and depending on how the court slices it, the employee may wind up violating the terms of the court-sculpted version of the non-compete provision.

Third and perhaps most importantly, the fact that there would be litigation at all may put the employee in the difficult position of having to hire a lawyer and spend money to defend himself or herself against an employer’s attempt to enforce the restrictive covenant.

For low-level employees, restrictive covenants across the board may be more problematic.  Often attempting to restrict everyone – having everyone sign the same documents – may be unwise, as indeed a delivery person or a secretary may not be privy to really sensitive information, developments and plans, marketing concepts and other business strategies.  Any attempt to restrict such employees without access to “important information” must be carefully reviewed.  Indeed, a food delivery person making minimum wage versus an officer of a growing food business should not be treated the same, just as a low-level coder should not be treated the same as the lead software architect for a new technology product.

Companies need to understand that they may be able to accomplish the same goals by beefing up their agreements’ protections on confidential information, as well as their restrictions on non-solicitation of customers and employees.  Working with a lawyer is critical to the success of any company’s restrictive covenant goals.  Similarly, working with a lawyer is critical to the success of any employee who is in a position to negotiate the clause or who wishes to understand the restrictions being placed upon him or her.   In the end, the goal is to get to an agreement that both parties can live with because, if it comes to litigation, both the employer and the employee could find themselves wishing the language of a non-competition clause had been more carefully crafted or was not included at all, depending on how high up on the employment food-chain the employee actually sits.