Snapchat Now Accused of Stealing Faces

Social media giant Snapchat just can’t seem to keep itself out of the courtroom in recent months. Back in April, Snapchat was sued over a distracted driving accident. Earlier in July, the company was sued over allegedly offensive content surfacing on the app. Now, Snapchat is being sued for stealing people’s faces. That’s right, stealing faces.

So how can social media app can steal someone’s face? Well, it hasn’t joined the cult of the Many-Faced God if that is what you are thinking.In reality, it is a little more complicated. According to a report from NBC Chicago, two Illinois men have filed a class-action suit in California alleging that Snapchat captures users’ facial data without their consent in violation of the Illinois Biometric Information Privacy Act. Specifically, the suit targets Snapchat’s Lenses technology, an object recognition feature contained the app that allows users to swap faces or add quirky elements to their snapshot.

The biometric law at issue was introduced back in 2008 in response to certain gas stations and grocery stores testing the use of fingerprinting to make financial transactions. The American Civil Liberties Union took issue with the practice and spearheaded the passage of the law in an effort to prevent biometric identifiers getting into the hands of the wrong people.

For the same reason, the ACLU has been eyeballing Snapchat. According to ACLU legislative director Mary Dixon:

What we were concerned about is how [facial recognition technology] could be acquired and used, even in ways we didn’t know about . . . While you can, with great difficulty, change your Social Security number, you cannot change your unique biological identifier.

We here at Abnormal Use can certainly appreciate the right to privacy. Nonetheless, we think the fear of the plaintiffs and the ACLU are unfounded. The Lenses technology apparently does not capture and create a database of faces. Rather, it simply figures out whether an object is a face and, if so, where each facial feature is located. For Snapchat users, this is the technology that lets the app know where to put the dog nose, the heart eyes, and the rainbow tongue. In other words, it is the all the good in Snapchat.

New Hero Armed with 24-Year Old Drawing Emerges In Fight Against Apple

During the last few years, Apple has been no stranger to patent litigation over the design of its smartphones and tablets. In fact, to many of us, it seems as if the smartphone patent wars may extend into an era where no one has ever heard of an iPhone. While Apple’s feud with Samsung garners all the media attention, we here at Abnormal Use are here to tell you that a new opponent has entered the arena.

That opponent is Florida resident, Thomas S. Ross. Or, as we like to refer to him as “David” (or “Jon Snow” or “Frodo” or any other hero facing seemingly insurmountable odds). If you have never heard of Ross, you will.  According to reports, Ross filed suit against Apple in the U.S. District Court for the Southern District of Florida alleging that the iPhone, iPad, and iPod are a rip off of his idea.  That idea being Ross’ 1992 hand-drawn “Electronic Reading Device” (depicted below).

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Ross alleges that he was the “first to file a device so designed and aggregated” nearly 15 years before the introduction of the iPhone. The gadget, imagined by Ross in 1992, possessed the capability for mixed media-browsing and communications and featured a touch-screen display, a disk drive, a modem and solar panels to power up the device.  s a result of Apple’s alleged patent thievery, Ross allegedly has experienced “great and irreparable injury that cannot fully be compensated or measured in money.” He will, however, settle for $10 billion in damages plus 1.5 percent of upcoming iPhone sales.

To be fair to Ross, he did, in fact, apply for a utility patent with the U.S. Patent and Trademark Office for the drawings of his gadget back in November 1992. However, the application was declared abandoned in April 1995, for failure to pay application fees. Ross also submitted a copyright application with the U.S. Copyright Office in 2014. While we have serious doubts Ross will ever see anything close to those financial demands contained in his lawsuit, we hope this goes well for him. We still have a picture of a flying car we drew after the release of Back to the Future II in 1989 that we would love to cash-in on in the future.

Snapchat Target Of New Suit Over Allegedly Offensive Content

According to reports, social media giant Snapchat has been hit with a class-action lawsuit over sexual content. While perusing the app, the 14-year old son of Plaintiff Lynette Young apparently came across pictures of Disney characters that included “pornographic text and innuendo next to the photographs.” Young, presumably upset with her teenage son viewing images of cartoon characters admonished by sexual references, retained famed attorney Mark Geregos to sue Snapchat on her behalf as well as all others similarly situated.

The complaint, filed in California federal court, alleges that Snapchat failed to warn users about discoverable sexual content on its app. Specifically, the suit targets the “Discover” section of the app where users can browse content posted by media partners. In particular, the complaint identifies two articles titled, “People share their secret rules for sex” and “10 things he thinks when he can’t make you orgasm,” as prime examples of this allegedly harmful content. Young alleges that such conduct is “profoundly sexual and offensive material to children” and in violation of the Consumer Decency Act. While Snapchat has yet to be served with the complaint, it has issued the following statement on the lawsuit:

We haven’t been served with a complaint in this lawsuit, but we are sorry if people were offended. Our Discover partners have editorial independence, which is something we support.

Just a couple of months ago, we here at Abnormal Use wrote about another Snapchat lawsuit in which the social media company was sued for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application. We questioned the merits of that suit arguing that ultimate liability fell on the user. At first glance, the same may hold true here – with one caveat. Ultimately, social media sites are filled primarily with user-generated content, not so much content posted by the app maker itself. Some of this content you certainly may have a problem with children seeing if discovered. While this case is admittedly distinguishable in that does not arise over content posted by a “friend,” but rather by a “news” source, the principle is the same. A social media app in many ways is an extension of the Internet itself. User beware. All parents in this day in age know as much.

The caveat to this idea is that some of this allegedly offensive material at issue in this case comes through Snapchat’s Discover section. Snapchat denies having any control over this content, which may in fact be the case. While it may not control the content itself, it does control the Discover feature and, thus, presumably could do something to filter or, at a minimum, warn users of the sexual content. With that said, Snapchat still remains a bit of an anomaly to us, as we are apparently light years beyond the age of the average user. So, what do we know anyway? Remember that time, we did try out the app? It didn’t go so well.

Another Day In The Life Of A Lawyer: The Highs And Lows Of Travelling

As lawyers, our work often necessitates a good bit of travel. Whether by car to attend a deposition across the state or plane to attend a conference on the opposite coast, traveling affords us the opportunity to see parts of this great country. Most often, travel is an aspect of our profession we enjoy. It certainly ranks well above conducting late-night legal research in one’s office. Other times, traveling for work purposes can turn into an utter nightmare (as can traveling for any purpose).

Recently, I took a deposition in a small town in Mississippi situated a few hours from the nearest airport. While it may not sound enjoyable, I looked forward to it, as I had never spent any time in the state apart from driving across Interstate 20.  he trip started off well enough. I caught a flight to Jackson, rented a car, and traversed through acre upon acre of farm land before reaching my destination. After checking into my hotel, I headed to Doe’s Eat Place, a James Beard Award-winning restaurant housed in a former turn-of-the-century grocery store listed in the National Register of Historic Places. You won’t find a menu at Doe’s, but the waitress informed me that they served steak, tamales, and spaghetti. I chose the steak, and I discovered the best 10 ounces of filet mignon. Sampling local fare is a travel perk, and Doe’s set my trip off in the right direction.

The good vibes from Doe’s, however, were ephemeral. The following day, I took the deposition without a hitch and returned to Jackson to catch my return flight home. Unfortunately, there were no direct flights from Jackson to Greenville, South Carolina, so I made a pit stop in Atlanta, the city where this story begins to sour.

My flight from Atlanta was scheduled to depart at 8:59 p.m. and arrive in Greenville at approximately 10:11 p.m. (In case you are wondering, it is a 29-minute flight, but in typical airline fashion, they built in a cushion in case, well, you know). I boarded the plane around 8:30 and gladly traded my coveted aisle seat to another passenger in exchange for a middle seat. It is only a 29-minute flight, after all, and worth the personal sacrifice to please another. After assuming my temporarily uncomfortable position and listening to the flight attendants deliver the standard, monotonous safety instructions, the pilot made his own announcement over the radio:

Ummmm [never a good thing to hear from the pilot] … We have discovered that the plane’s braking mechanism is leaking some hydraulic fluid. The good news is that we have the replacement part at the airport. The bad news is that it is on the other side. Maintenance is telling me it will be another hour before we get up and running. Worst case.

I understand the need for safety, especially when we are about to undertake a short, yet epic battle with gravity. Brakes come in handy at the end of such a journey. So, I chalk it up as a minor inconvenience and figure I will be home slightly later than my scheduled arrival (given the pre-planned buffer). If only the estimated “worse case” was so. At approximately 9:45, the pilot announced that maintenance faced some difficulty with the installation process and estimated it would be another 45 minutes until departure. Not wanting to keep us hostage, the pilot stated that we are free to leave the place so long as we stay near. Remembering the bar immediately outside the gate, I deplaned and sought a beer.  Only after leaving the plane did I discover that the bar closed at 10. Still in good spirits, I found a nearby Chick-fil-A and grabbed a sandwich (I actually ordered nuggets by the way, but I am not complaining about the mishap).

When I returned from Chick-fil-a, I was greeted by the unwelcome sight of everyone exiting the plane. Apparently, the whole “another 45 minutes” thing was a gross understatement. To the airline’s credit, its representatives tried to lighten the mood by providing snacks and non-alcoholic beverages. They also gave me a free drink coupon good for one beer or cocktail. The rub, however, was that it could only be used on the plane.  he plane that we had just been kicked off of and wanted desperately to board once again. The bitter irony.

Several minutes before midnight, the pilot came out and announced that the plane had been fixed and we were ready to re-board. Unfortunately, the gate attendant had gone AWOL. After a 15 minute search, she was located and we proceeded with boarding the plane. Again. Took the middle seat. Again. Listened to the standard, monotonous safety instructions. Again. At least this time, however, on a plane with a braking mechanism smack full of hydraulic fluid. We eventually pulled away from the gate, rose into the air, and landed around 1:15 a.m. A mere 3 hours after my scheduled arrival. After retrieving my car from the garage and driving home, I strolled wearily into my house, reached into my pocket, and felt something unfamiliar: the free drink coupon, apparently forgotten amidst the frustration of a lawyer’s plight to get home.

After writing these thoughts and sharing this story, I can’t help but be reminded how travel is one of the many things I love about the practice of law. Despite the late-night, mid-week nightmare trying the get home, I am thankful for the experience. At the end of the day, I got to take a deposition, eat a steak at Doe’s, and experience a state to which I had never traveled. Certainly, it would have been better with an aisle seat, a beer, and a plane with functioning brakes, but we can’t expect everything to be perfect, can we?

“Stairway to Heaven” Plagiarism Suit Set For Trial

A while back, we here at Abnormal Use wrote about a copyright infringement lawsuit filed against Led Zeppelin. The suit, filed by the estate of Randy California of the band Spirit, alleges that Led Zeppelin lifted the opening chords of “Stairway to Heaven” from the Spirit’s song “Taurus.”  Now, some two years later, that case is on the eve of trial.  Jury selection is set to begin this very morning. Trial is is expected to last less than a week, with each side allotted 10 hours to present testimony. In case you are wondering, the great Jimmy Page and Robert Plant are expected to be in attendance at trial.

We will be curious to see how this one plays out at trial. If the plaintiff prevails, it would mean that a jury found by a preponderance of the evidence that one of history’s most prolific songs was partially plagiarized from Spirit of all bands. While we appreciate the classic California band and, in particular the song, “I Got a Line on You,” it is hard for our minds to grapple with notion that Jimmy Page and Robert Plant didn’t conceive the majestic opening chords of “Stairway to Heaven.” We get that many bands (including Led Zeppelin) are no strangers to “musical inspiration” in creating their own hits, but it still pains us to think that our favorite songs are anything less than original.  Of course, we are also the same folks who questioned whether Tyson intentionally bit off Holyfield’s ear or whether Lance Armstrong used performance enhancing drugs. So take it for what it is worth.

The plaintiff alleges that Jimmy Page got his musical inspiration for “Stairway” when Led Zeppelin was the undercard for Spirit during a 1968 U.S. Tour and heard the band play “Taurus.” According to Page, the band apparently was paying that much attention. In a 6-page declaration filed with the court, Page stated the he never heard nor was he aware of “Taurus” until a couple of years ago. We will wait and see which way the jury wants to go.

First Wrongful Death Lawsuit Hits Marijuana Industry

Since its recent legalization in certain states, marijuana has found itself in the middle of several product liability lawsuits. A new lawsuit filed in Colorado has just upped the ante. According to a report from the L.A. Times, a new suit has been filed accusing marijuana of being the culprit for a homicide. In the first wrongful-death suit against a recreational marijuana company, the children of Kristine Kirk, murdered by her husband, Richard Kirk, back on April 14, 2014, have filed suit against Gaia’s Garden, LLC, claiming that the company’s Kandy Orange Ginger chew candy triggered the shooting. The plaintiffs allege that Gaia’s failed to warn customer that marijuana edibles could lead to paranoia, psychosis and hallucinations.

According to Kristine Kirk’s 911 call, the shooting happened after Richard burst into their home ranting about the end of the world. Thereafter, he laid on the floor and asked for someone to kill him. Richard then retrieved a pistol and shot Kristine. Richard has been charged with first-degree murder. He initially pleaded not guilty, but has since changed his plea to not guilty by reason of insanity.

We here at Abnormal Use will be interested to follow this suit as the facts develop. Reading the reports of the incident make it sound more like those involving bath salts than recreational marijuana. It is so outside-the-box that we almost wonder whether marijuana was the culprit at all. Interestingly, toxicology reports showed that the amount of THC in Richard’s blood was less than half the legal limit. Prosecutors actually contend that the murder is the result of increasing marital stress.

In any event, we see this as a case akin to suing Anheuser-Busch for a driving under the influence accident. Gaia’s apparently complied with all state labeling requirements regarding the potential adverse health effects. With legal marijuana being so new to the marketplace, we suppose this lawsuit is an attempt to test the waters with marijuana litigation. We assume that the same legal principles applied to similarly situated products will continue to apply.

McDonald’s Accused Of Not Making Drive-Thrus Accessible to the Blind

Be it hot coffee or greasy french fries, McDonald’s often finds itself as a defendant in some intriguing litigation. A new lawsuit filed in an Illinois federal court against the fast food giant might just take the crown as the most interesting. According to a report from the Chicago Tribune, a Louisiana man has sued McDonald’s because its drive-thrus are not accessible to the blind. Specifically, the man has challenged McDonald’s policy of not serving individuals who walk up to the drive-thru window without a car. During the normal operating hours, the prohibition is hardly a problem as customers without cars can simply walk inside the restaurant. However, after hours, the restaurant only serves customers through the drive-thru and, thus, people who do not have cars or otherwise cannot drive, such as blind persons, cannot order from McDonalds, the suit alleges. According to the suit, such failure to accommodate constitutes a violation of the Americans with Disabilities Act.

We here at Abnormal Use are not certain as to how this McDonald’s policy will be construed under the ADA. We do have some questions, however, as to certain statements the plaintiff’s lawyer made about the litigation. In commenting on the suit, attorney Roberto Luis Costales stated that the late-night snacks are a “quintessentially American activity that should not be denied to someone because of their disability.” Moreover, he indicated, “This is something simple that can cause a lot of hurt to disabled people, especially if, like [Plaintiff], they cannot cook for themselves.” We must admit that we, too, have been known to take a late night food run, particularly during our college days. But, we question whether it is a “quintessential American activity,” so ingrained in our nation’s DNA that it cannot be denied. Maybe if we were talking about a more critical issue like healthcare, we could take this rhetoric seriously.

Costales claims that McDonald’s could remedy the situation by installing a phone to allow customers to call in orders from outside and have the orders brought out to the customers. However, this proposal ignores the primary purpose of the late night drive-thru-only policy in the first place – security. If McDonald’s is going to be bringing orders out to customers, it might as well just open the restaurant in the first place. Or, maybe that is the end goal of the master plan and the lawsuit is just the mechanism of delivery.

 

Kanye West Accused Of Ripping Off 1969 Hungarian Pop Favorite

According to reports, Kanye West, rap star and most recent addition to the Kardashian clan, has been sued for ripping off the beats of a Hungarian composer. The complaint, filed by Hungarian composer Gabor Presser in the U.S. District Court for the Southern District of New York, alleges that West used a portion of his band Omega’s song “Gyöngyhajú lány” (recorded way, way back in 1969) in the song “New Slaves,” released in 2013 on the Yeezus album. The Omega song is allegedly “one of the most beloved pop songs ever in Hungary and across Eastern Europe.” In other words, Omega is basically the Beatles. Or, something like that.

Now, we understand if you have some doubts as to how a rap mogul the likes of Kanye West could come across a 1969 Hungarian pop tune. Whether it be through iTunes or an excursion into the darkest corners of the internet, West allegedly was aware of the song and even asked Presser for permission to use it. According to Presser, West’s lawyer emailed him soon after the marketing of New Slaves began, indicating that West “would like to work out a deal with you as soon as possible.” Presser allegedly was given 24 hours to respond. Presser agreed in principle to the use of the song on the condition that a formal deal follow. However, a formal agreement allegedly never came to fruition. West allegedly sent Prosser $10,000 as an advance for the audio track, but Prosser never cashed the check. Now, he is seeking $2.5 million in damages.

We here at Abnormal Use have no idea whether the allegations of the suit have any merit. We have listened to the two tracks (available here) and, admittedly, can at least hear some resemblance. West has apparently at least acknowledged some resemblance and copyright issues by virtue of the alleged offer to work out a deal. If true, what is curious is whether West intentionally borrowed from the 1969 Hungarian track or created “New Slaves” independently, discovered the resemblance, and tried to hedge off any issues, knowing that musicians are no strangers to copyright lawsuits. Presser apparently thinks it is the former more so than the latter. He alleges that West “knowingly and intentionally misappropriated plaintiff’s composition,” and “after his theft was discovered, [West] refused to deal fairly with plaintiff.”

Is this a case of coincidence or a musician digging through the depths of the music library of Eastern Europe to make music? Take a lesson to the songs, and we will let you be the judge.

Goya Accused Of The Old Octopus Bait and Switch

According to a report from Business Insider, a lawsuit has been filed in California against Goya Foods, Inc., the largest Hispanic-owned U.S. food company, alleging that the company has been selling canned octopus products that actually contain canned squid. Apparently, independent DNA testing has confirmed the alleged cephalopod bait and switch. The lawsuit was filed by Plaintiff Luis Diego Zapata Fonseca on behalf of purchasers of Goya canned octopus in garlic sauce, hot sauce, pickled sauce, or olive oil, and seeks $5 million in damages.

We here at Abnormal Use do not know what is more surprising, that there is a market for canned octopus or that the suit was filed in the first place. We have eaten our fair share of canned food in our day and take no issue with the practice. However, we can’t imagine a world where octopus-in-a-can is acceptable. If there were ever a product we would assume should be served fresh, octopus would be it. Tentacles just don’t sound like they would take well to preservation. But, what do we know?

In any event, we acknowledge that it is probably deceptive to sell one animal product as another. Nonetheless, how much damage have consumers really sustained in this case? We are sure the most sophisticated palate could distinguish between octopus and squid, but we have serious doubts as to whether those people are actually buying canned octopus bathed in garlic sauce, hot sauce, pickled sauce, or olive oil. Our guess is that the average canned-octopus buyer can’t tell the difference between octopus and squid tentacles. In fact, the plaintiff in the lawsuit seems to acknowledge the same. In the complaint, Fonseca alleges that Goya “intentionally replaced the octopus in its octopus products with squid as a cheap substitute to save money because it knew an ordinary consumer would have trouble distinguishing the difference.” We are certain that we would fall squarely within that category.

As with many class actions, we predict this class action will be resolved with all class members receiving a voucher for a free, delicious canned octopus product of their choosing. Hopefully, they will then have an existential awakening about why they are eating garlic marinated octopus out of a can in the first place.

Snapchat Lawsuit Inspires Inaugural Abnormal Use Field Test

Recently, we here at Abnormal Use wrote about a new lawsuit which seeks to hold Snapchat liable for a high speed motor vehicle accident that allegedly occurred as a result of the at-fault motorist’s use of the social media application. Thereafter, we decided to take a more hands-on approach to our work and signed up for the Snapchat. After a week of fiddling with the application, we have a much greater understanding of Snapchat and, thus, a better insight on the lawsuit. Hoping to help our readers who are strangers to Snapchat, we thought we would provide you with out observations and how they relate to the suit’s allegations.

As an initial matter, Snapchat is much different that any other social media app that we have ever used. While we admittedly don’t understand its purpose (perhaps due to our age or our familiarity with much different social media platforms), Snapchat is extremely easy to use. Users can create and post a “snap” with nothing more than the push of a button. When a user opens the Snapchat application, it opens immediately to the camera screen. A quick press of the camera button takes a snap photo. A longer press records a snap video. The user can then dress up the snap with emojis or filters (we will discuss this more later); however, it is not required. The snaps are then saved to the users “story” (which stays live for 24 hours) or sent directly to other users (which are available for 10 seconds after they are viewed). Unknown purpose aside, Snapchat cannot be any simpler.

Twitter and Facebook, on the other hand, require much deeper cognitive processing and interaction from the user. Even though users can (and often do) use the applications to post pictures or videos, Twitter and Facebook typically require the user to think of and type out a sentence or two expressing a thought. Twitter and Facebook require body movements analogous to sending a text message. From a mechanical standpoint, Snapchat and Twitter/Facebook are worlds apart.

What gives Snapchat its character is the ability to alter each photo. Where Instagram focuses primarily on preset filters and borders, Snapchat gives users more personal control over the editing process. At the touch of a button, users can add text, emojis, or drawings. Users also have access to a number of Snapchat filters which can add a somewhat bizarre twist to their photos (i.e. rainbows flowing from mouths, fire emanating from heads, etc.). The ease of use of each alteration is as simple as creating the photo or video in the first place.

The controversy in the Snapchat lawsuit centers around a Snapchat feature we refer to as the “speed filter.” The speed filter utilizes a phone’s GPS system to calculate the speed a user is moving at the time the snap is created. The speed reading is added to the photo/video from the editing screen with a simple swipe to the left. Like the other editing features mentioned above, the speed filter is available as an option only after the photograph or video has been captured.

Being dedicated to our jobs, we put the speed filter to the test. (Not behind the wheel of a car, of course). As a PASSENGER in the front seat of a car and again on the rear of a jet ski, we found the speed function to be fairly accurate, typically measuring speeds within 2-3 mph of that posted on the vehicle’s speedometer. However, the speed filter routinely registered 1-2 mph of speed when sitting still as if it was trying to compensate for the earth’s rotation. Nonetheless, its ease of use was as seamless as the other Snapchat features.

The most important component of our findings and perhaps the most relevant to the lawsuit is that we have yet to find any component of Snapchat that encourages users not to exercise sound judgment. Admittedly, we found no warnings apparent within the application notifying users not to use the speed filter while operating a motor vehicle. Last we checked, there are also no such warnings about plenty of other things which can distract drivers like changing radio stations, applying make-up, or reading the newspaper. We expect motorists to know better when getting behind the wheel of a car. The plaintiff in the lawsuit contends that Snapchat encourages such behavior by awarding users with Snapchat trophies for using the speed filter. It is true that Snapchat has a trophy system to signal various milestones and use of certain features. However, nowhere does Snapchat award a “Using the Speed Filter While Driving” trophy. The speed filter has a completely valid purpose for those traveling on a bike, a horse, a plane, or as passengers in car. We found nothing within Snapchat that encourages users to use the filter while driving or otherwise serve as a substitute for sound judgment.

When you understand what the speed filter actually is and how it operates, it becomes apparent that there is no difference between Snapchat and anything else that conceivably distract a driver.  Now that we can appreciate Snapchat, our initial concerns about the lawsuit resurface. Holding Snapchat liable in this lawsuit opens the door to a whole host of distracted driving lawsuits. Twitter, Facebook, service providers, and cell phone companies all stand in the shoes of Snapchat as potential targets. Taking the argument to its extremes could even lead to suits against any product manufacturer whose product was negligently being used by a distracted driver. The reason these suits are traditionally atypical is that fault lies with the distracted driver. By any negligence standard, the reasonable person knows better than to use a cell phone or application while driving. The true tortfeasor is easily identifiable. No filters necessary.