JOLT Digest

Court Suppresses Email Evidence in Bear Sterns Case
By Stuart K. Tubis – Edited by Jad Mills

U.S. v. Cioffi, et al., Case No. 08-CR-415 (FB) (E.D.N.Y. Oct. 26, 2009)
Slip Opinion (hosted by WSJ)

The Eastern District of New York granted defendant Matthew Tannin’s motion to suppress evidence obtained from his personal Gmail account. Ralph Cioffi and Matthew Tannin were charged with conspiracy, securities fraud and wire fraud in connection with their roles as Bear Sterns hedge fund managers. Prosecutors obtained a warrant to search Tannin’s personal Gmail account, but the warrant failed to specify what evidence could be seized or to what crimes the evidence must relate.  After some initial difficulty, Google delivered a copy of the email account to the Government. As the Wall Street Journal reported, one email contained a comment that funds Tannin managed could “blow up.” Tannin moved to suppress this evidence on the ground that it violated the Fourth Amendment.

District Judge Block held that the warrant was facially overbroad and thus violated the Fourth Amendment. The Court reasoned that because the warrant itself was not particular as to either the items to be seized or to a particular crime, and because the affidavit was not attached or incorporated into the warrant, the warrant was unconstitutional. The court also held that the warrant did not merit a “good faith” or “inevitable discovery” exception, largely because the executing officers should have known the warrant was overbroad.

The Wall Street Journal provides a brief overview of the case. The Eric Goldman Blog also provides a summary of the case. Orin Kerr of the Volokh Conspiracy criticizes the ruling, saying that the good faith exception should have been granted since the case law was not firmly established at the time of execution. (more…)

Federal District Court Rules Ringtones Not Public Performance
By Debbie Rosenbaum – Edited by Eric Engle

In re: In the Matter of the Application of Cellco Partnership d/b/a Verizon Wireless, Case Nos. 09-cv-07074 & 41 Civ. 1395 (S.D.N.Y. Oct. 14, 2009)
Opinion (Hosted by EFF)

The Southern District of New York has ruled that cell phone ringtones do not constitute a public performance, and thus mobile phone carriers do not need to pay performance royalties under the Section 110(4) of the Copyright Act.  The court also dismissed the argument that cell phone carriers publicly perform when they reproduce and download a ringtone to a phone.

United States District Judge Denise Cote dismissed the music industry argument that a ringtone is like a concert hall when it begins ringing/playing in public, instead determining that playing music in public, when done without any commercial purpose, does not infringe copyright.   In so holding, the court ruled that cell phone users are not liable for royalty payments and that carriers are not secondarily liable.  Judge Cote reasoned that the exemption Section 110(4) applies because cell phones announce phone calls and are not sources of commercial public entertainment.

Ars Technica and Wired.com provide an overview of the case.  Both EFF and CDT applaud the decision as a major win for consumers and fair use. (more…)

By Brian Kozlowski

Lori Drew “Cyberbullying” Conviction Thrown Out

The Los Angeles Times reports that on July 2nd, a federal judge dismissed the case against “cyberbully” Lori Drew, saying that the clear terms of the Computer Fraud and Abuse Act (CFAA) preclude a guilty verdict. The Lori Drew case received widespread media attention eight months ago when the 50 year-old mother was found guilty of “unauthorized computer access” under the CFFA for aiding her daughter in creating a fake MySpace account that led to another girl’s suicide. The guilty verdict was ardently criticized for criminalizing violations of websites’ terms of service, which few users actually read when creating accounts, essentially allowing websites to make their own law.

China’s Mandatory Client-Side Censoring Program Delayed

Only a day before the previously announced July 1st deadline, the Chinese government announced, through official news agency Xinhua, a delay in the requirement that PC makers pre-install a web-filtering program called “Green Dam Youth Escort.” The Wall Street Journal reports that the project is not abandoned, but merely delayed. Green Dam was first released several months ago as a pornography-filtering program and didn’t evolve into a requirement until the beginning of June, much to the chagrin of PC manufacturers. After the University of Michigan discovered serious security holes, which would open computers to remote code execution, PC manufacturers began to worry about liability issues and possibly acquiring reputations for supporting censorship. So far, only Sony has shipped computers with the software pre-installed in advance of the July 1st deadline.

Supreme Court Allows Remote Storage DVR

Ars Technica and Wired both report that the Supreme Court declined to hear a final appeal in the Cablevision DVR case on the final day of its term. The Second Circuit had allowed Cablevision to continue offering its customers a recording system that is different from traditional recording only in that it stores the customers’ recordings of copyrighted content remotely on Cablevision’s servers. Because the consumer maintains control over the recordings, rather than accessing an on-demand library provided by Cablevision, the court ruled that the recordings were still fair use. Television networks called the case the most important since the 1984 ruling that consumer VHS recording of copyrighted movies falls under fair use. The Supreme Court’s silence aligns with the filing by the Obama administration suggesting that this case was not the appropriate forum to “clarify” the legal issues of fair use.

Another Nesson-RIAA Continue to Clash over File-Sharing

As reported by Ars Technica, Harvard Law professor Charlie Nesson is once more facing off against the RIAA’s MediaSentry in the illegal file-sharing suit against Joel Tenenbaum. Tenenbaum, like Jammie Thomas-Rasset before him, is accused of sharing songs illegally on KaZaa. Nesson and his associates aim to try the same legal tactic that has failed them in the past, namely attempting to discredit the evidence brought by the RIAA as being gathered illegally. The high-profile cases, including controversial high damage awards and internal defense disputes, have been part of a larger attempt to establish solid legal precedent, or prompt a legislative solution, for future file-sharing disputes.

Content by Vera Ranieri

Google Sued for Use of Trademarked Terms in Adwords Program

A class action was filed against Google on May 11, 2009 in federal court in Texas challenging its use of trademarked terms in its adwords program. The New York Times covered the case and surrounding issues. Ars Technica analyzes Google’s new AdWords policy.

ACLU Challenges Constitutionality of Gene Patents

The ACLU filed suit in the Southern District of New York challenging the patenting of genes and genetic tests as unconstitutional. The New York Times reported on the suit and the ACLU’s plaintiff. Patently-O provides further analysis and links to the ACLU blog and the complaint.

Second Circuit Reverses Dismissal of Trademark Infringement Suit Against Google
By Debbie Rosenbaum – Edited by Stephanie Weiner

Rescuecom v. Google
Second Circuit, April 3, 2009, 06-4881-cv
Opinion (hosted by EFF)

On April 3, 2009, the Court of Appeals for the Second Circuit vacated the District Court for the Northern District of New York’s dismissal of a trademark infringement suit against Google by Rescuecom, Corp., a computer repair firm.

At issue was Google’s AdWords program, which allows advertisers to purchase ads based on the appearance of another (often competing) company’s name in search terms, thus allowing the purchaser’s ads to appear in the search results alongside links to the searched-for company. Also in dispute was Google’s Keyword Suggestion Tool, which recommends potential keywords to advertisers for use in the AdWords program. The key issue was whether Google’s use of Rescuecom’s trademark in both programs constitutes a “use in commerce” under § 1127 of the Lanham Act.

Ars Technica explains that, having distinguished away precedent, the court determined that Google was appropriating trademarked terms. Google’s claim – that it was only using these terms internally as part of its ad-placing algorithm – was dismissed as disingenuous because its Keyword Suggestion Tool was specifically suggesting trademarks to potential ad buyers. The Wall Street Journal Law Blog notes that this may add some clarity to the jumbled law on the use of keywords. (more…)