Scanning books to create a searchable database of books constitutes fair use. Scanning books to create eBooks does not. Will scanning images (or other copyright-protected content) to create a generative AI model for use in creating images be deemed fair use?…
Continue Reading Will eBook Ruling Impact Fair Use Analysis for Generative AI?
Today, the CFPB has issued the small business lending final rule to implement changes to the Equal Credit Opportunity Act made by Section 1071 of the Dodd-Frank Act to require financial institutions to compile data regarding certain business credit applications and report that data to the CFPB (we previously discussed Section 1071 rulemaking in prior blog posts here and here). According to the CFPB, Section 1071’s purposes are “facilitating enforcement of fair lending laws and enabling the identification of business and community development needs and opportunities for women-owned, minority-owned, and small businesses.” While the final rule includes almost 900 pages of rulemaking, highlights include the following:…
The City of Los Angeles’ Fair Work Week Ordinance will take effect on April 1, 2023. The Ordinance, which was unanimously passed by the Los Angeles City Council in November 2022, requires retail employers in the City of Los Angeles to provide employees at least 14 days’ advance notice of their work schedules and to compensate employees in the event of certain schedule changes. You can read our prior blog article on the Los Angeles Fair Work Week Ordinance here.…
Welcome to the Cost Corner. This is the first in a series of articles exploring the complex cost and pricing regulations that apply to government contractors. This article provides an overview of the regulatory framework and its rationale. Subsequent articles will explain specific aspects of the regulations in further detail and provide periodic updates on new developments.…
The US Department of Health and Human Services recently updated its guide to help the private and public healthcare sectors develop cybersecurity protocols that address NIST’s Framework for Improving Critical Infrastructure Cybersecurity. The guide is a toolkit, with information and resources intended to help companies implement cybersecurity programs in the health care space. While the aim of this guidance is to help companies implement NIST’s protocols for protecting US critical infrastructure, the recommendations contained in the guide mirror other agencies’ security recommendations (for example those we have written about from the Department of Labor and the FDA).…
On March 1, 2023, the Center for Biologics Evaluation and Research (CBER) at the U.S. Food and Drug Administration (FDA) published its first untitled letter of the year to Thomas Advanced Medical LLC (Thomas)[1] for marketing human cells, tissues, or cellular or tissue-based products (HCT/Ps)[2] without FDA premarket review. The letter described Thomas’ marketing of products derived from human umbilical cord, umbilical cord blood and amniotic tissue as “regenerative therapy solutions” or “stem cell derived biological product” to treat various diseases and conditions including cardiac disease, Alzheimer’s, Parkinson’s, lung disease, diabetes and COVID-19.…
Continue Reading FDA Issues First Untitled Letter of the Year to HCT/P Manufacturer
Colorado’s Privacy Act regulations have now been finalized, in advance of the law’s July 1 effective date. As we have written previously, the Colorado privacy law applies to companies that conduct business in the state and either (1) control or process personal data of 100,000 Colorado consumers during a calendar year, or (2) derive revenue or receive a discount on the price of goods or services from the sale of personal data and processes or controls the personal data of at least 25,000 Colorado consumers. The law mirrors in many ways the comprehensive privacy laws of other states.…
Continue Reading Colorado Privacy Law Regulations Finalized: Time to Review Information Practices
Retailers and service providers with US business operations should take note: the Federal Trade Commission (FTC) is increasing its scrutiny of negative option marketing activity to combat unfair or deceptive practices related to subscriptions, memberships and other recurring-payment programs. The FTC just issued a notice of proposed rulemaking as part of its ongoing review of its 1973 Negative Option Rule—one of the primary guides for the FTC’s enforcement focus.…
Continue Reading Negative Option Practices Under Increased Scrutiny in the US
Can unionized employees sue their employers in court for violations of Illinois’ Biometric Information Privacy Act (BIPA)? In a rare victory for BIPA defendants, the Illinois Supreme Court unanimously ruled they cannot.…
Continue Reading Illinois Supreme Court Finds Federal Law Labor Preempts Union Members’ BIPA Claims
On March 16, 2023, the U. S. Copyright Office (USCO) launched a new AI Initiative to examine the copyright law and policy issues raised by artificial intelligence (AI), including the scope of copyright in works generated using AI tools and using copyrighted materials in AI training. According to the USCO: “This initiative is in direct response to the recent striking advances in generative AI technologies and their rapidly growing use by individuals and businesses.” It is also a response to requests from Congress and the public.…
Continue Reading Copyright Office Artificial Intelligence Initiative and Resource Guide
The Department of Justice (DOJ) lost its third jury trial in its mission to secure criminal convictions against companies and executives accused of labor-side antitrust violations on March 22, 2023, when a jury in Maine acquitted four home healthcare staffing executives of violating Section 1 of the Sherman Act. In United States v. Manahe, the DOJ charged Faysal Kalayaf Manahe, Yaser Aali, Ammar Alkinani, and Quasim Saesah with entering into an approximately two-month conspiracy between April and May 2020 not to hire each other’s caretakers and to fix caretaker wages.[1] After the district court declined to dismiss the indictment, holding the DOJ had successfully alleged a per se conspiracy to fix wages and allocate employees, the case proceeded to a two-week trial. At trial, defendants—all immigrants from Iraq, many of whom served as translators for U.S. forces there—admitted that they discussed setting wage levels and refraining from hiring each other’s employees, and even drafted an agreement with signature lines that outlined the terms of defendants’ discussions.[2] Defendants argued that they never reached an agreement in violation of Section 1 because the draft agreement was never signed. Defense counsel emphasized in opening statements that in defendants’ culture, “when dealing with business matters . . . the only way to confirm a commitment is to put it into a formal written contract.” Given the verdict, it appears the jury agreed.…
Continue Reading DOJ Loses Third Consecutive Antitrust Labor Trial
The Department of Justice (DOJ) lost its third jury trial in its mission to secure criminal convictions against companies and executives accused of labor-side antitrust violations on March 22, 2023, when a jury in Maine acquitted four home healthcare staffing executives of violating Section 1 of the Sherman Act. In United States v. Manahe, the DOJ charged Faysal Kalayaf Manahe, Yaser Aali, Ammar Alkinani, and Quasim Saesah with entering into an approximately two-month conspiracy between April and May 2020 not to hire each other’s caretakers and to fix caretaker wages.[1] After the district court declined to dismiss the indictment, holding the DOJ had successfully alleged a per se conspiracy to fix wages and allocate employees, the case proceeded to a two-week trial. At trial, defendants—all immigrants from Iraq, many of whom served as translators for U.S. forces there—admitted that they discussed setting wage levels and refraining from hiring each other’s employees, and even drafted an agreement with signature lines that outlined the terms of defendants’ discussions.[2] Defendants argued that they never reached an agreement in violation of Section 1 because the draft agreement was never signed. Defense counsel emphasized in opening statements that in defendants’ culture, “when dealing with business matters . . . the only way to confirm a commitment is to put it into a formal written contract.” Given the verdict, it appears the jury agreed.…
Continue Reading DOJ Loses Third Consecutive Antitrust Labor Trial
On March 17, the FTC announced its inquiry into the small business credit reporting industry. In particular, it is ordering five firms to provide detailed information about their products and processes.…
Continue Reading FTC Examining Small Business Credit Reporting System
On March 15, the CFPB issued a Request for Information (RFI) about data broker business practices to inform planned rulemaking under the FCRA and provide the CFPB with insight into the full scope of the data broker industry. In particular, CFPB is seeking information about (i) new business models that sell consumer data and (ii) consumer harm and market abuses.…
Continue Reading CFPB Launches Inquiry into the Business Practices of Data Brokers
On February 28, 2023, the FTC and the CFPB issued a joint request for information (“RFI”) seeking public comment on background checks used to screen potential tenants for rental housing. As part of the RFI, the FTC and the CFPB are asking current tenants, prospective tenants, advocacy groups, commercial and individual landlords, property managers, background screening companies, other consumer reporting agencies, and others to weigh in on a wide array of issues that affect tenant screening, such as:…
Continue Reading CFPB, FTC Seek Public Comment on Tenant Background Checks
Retailers and service providers should take note: the Federal Trade Commission (FTC) is increasing its scrutiny of negative option marketing activity to combat unfair or deceptive practices related to subscriptions, memberships and other recurring-payment programs. The FTC issued today a notice of proposed rulemaking as part of its ongoing review of its 1973 Negative Option Rule—one of the primary guides for the FTC’s enforcement focus.…
Continue Reading FTC Increases Scrutiny of Negative Option Marketing
