By: Ryan Kennedy Section 7 of the United States’ National Labor Relations Act allows groups of American workers to engage in concerted activity for the purposes of collective bargaining or for “other mutual aid or protection.” This latter protection has been extended in cases such as Lafayette Park Hotel to workers outside the union context. Starting in 2005, the National Labor Relations Board increasingly signaled to employers that concerted activity may take place on social media such as Facebook. However, the Board proper delivered its first written opinion articulating these rules in the 2012 case of Hispanics United of Buffalo, Inc. There, the Board found the employer in question to have committed multiple unfair labor practices when it fired five employees over a series of Facebook posts due to violating the employer’s zero-tolerance no bullying policy. This article argues that the majority opinion of the Board misapplied Lafayette Park Hotel’s test for whether employer conduct “would reasonably tend to chill employees” from legitimate, protected uses of their §7 rights. This article explains the two largest errors in the Board’s decision: (1) a failure to identify a missing, important element for concerted activity protection under §7, the nexus between employee discussion
By: Stephen J. Wang By the time the U.S. Supreme Court decided Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. in 2005, Internet users around the globe who engaged in copyright infringement had already turned to newer, alternative forms of peer-to-peer filesharing. One recent development is the “seedbox,” a virtual private server rentable for use to download and upload (“seed”) files through the BitTorrent protocol. Because BitTorrent is widely used for both non-infringing and infringing purposes, the operators of seedboxes and other rentable BitTorrent-capable virtual private servers face the possibility of direct and secondary liability as did the defendants in Grokster and more recent cases like UMG Recordings, Inc. v. Shelter Capital Partners LLC and Viacom Intern., Inc. v. YouTube, Inc. This Issue Brief examines whether the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) may shield virtual private server providers with customers running BitTorrent clients from potential liability for copyright infringement. It argues that general virtual private server providers are likely to find refuge in the safe harbor provisions as long as they conscientiously comply with the DMCA. In contrast, virtual private server providers specifically targeting BitTorrent users (“seedbox providers”) are much less likely to receive DMCA safe harbor protection.