JOLT Digest

Ninth Circuit Applies Fourth Amendment to Text Messages at Work
By Anna Volftsun — Edited by Evie Breithaupt

Quon v. Arch Wireless Operating Company, Inc.
Ninth Circuit, June 18, 2008, No. 07-55282
Slip Opinion

On June 18, 2008, the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials viewed text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

In late 2001, Sergeant Jeff Quon received a pager from his employer, the Ontario Police Department. The pagers’ wireless text-messaging service provider, Arch Wireless, had stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon paid the overage fee several times without further inquiry into the content of the messages until August 2002, when the Ontario police Chief Scharf moved to obtain transcripts of Quon’s text messages from a support specialist at Arch Wireless.

At least three department employees, including Quon’s immediate supervisor, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Quon and several recipients of the messages brought suit in the District Court of Central California. They appealed the district court’s holding, arguing that Arch Wireless had violated the SCA. Quon also argued that the city violated his Fourth Amendment right to be free from unreasonable search and seizure, as well as his rights under the California Constitution.

(more…)

Ninth Circuit Assesses Copyright Damage Awards
By Debbie Rosenbaum — Edited by Stephanie Weiner 

Derek Andrew, Inc. v. Poof Apparel Corp.
9th Circuit, June 11, 2007
Slip Opinion 

The Ninth Circuit reversed and remanded in part the decision of the District Court for the Western District of Washington, which had awarded statutory damages under the Copyright Act for a copyright infringement, as well as attorney’s fees. 

Under § 504(a) and (c) of the Copyright Act, a copyright owner can elect to recover statutory damages for an infringement instead of actual damages and any additional profits.  This is limited, however, by § 412(2), which bars recovery of statutory damages for “any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.”  17 U.S.C. § 412(2).  The Ninth Circuit held here that § 412 precludes recovery of statutory damages for post-registration infringements where the first infringement in a series occurred before registration.  This was the first time the Ninth Circuit had addressed the provision in the context of post-registration infringement.  In so holding, the court joined several other circuits in rejecting a reading of the Copyright Act that would allow an end run around § 412.

An overview of the case is available at The Patry Copyright Blog and by Michael Atkins of the Seattle Trademark Lawyer Blog
Filewrapper features commentary, including pictures of the trademark in question  

(more…)

Ninth Circuit Allows Individuals to Use Devices to Decrypt Satellite Television Signals

By Nick Bramble — Edited by Wen Bu

DirecTV, Inc. v. Huynh
Ninth Circuit, No. 05-16361, September 11, 2007
Slip Opinion

Faced with the question of how to resolve a provision of the Federal Communications Act banning the assembly and modification of devices primarily designed for the unauthorized decryption of satellite signals, the Ninth Circuit held on September 11 that this provision applies only to “assemblers, manufacturers, and distributors of piracy devices” and not individual end users of such devices.

Jennifer Granick expects that the ruling will “prevent[] satellite and cable TV companies from piling on excessive damages that would punish and chill legitimate encryption research.”
Declan McCullagh discusses the various legal and illegal uses of the smart card devices purchased by defendants.

(more…)