JOLT Digest

By Tyler Lacey

Gamer Appeals Ban from Sony’s Playstation 3 Network

On September 22, 2009, the United States District Court for the Northern District of California dismissed Erik Estavillo’s lawsuit against Sony. Fox40.com reports that Estavillo was banned from Sony’s Playstation 3 Network after allegedly uttering “racial and homophobic slurs to other online gamers.” Estavillo alleged that his freedom of expression was abridged, and likened Sony’s network to a company town. The district court dismissed Estavillo’s First Amendment claims, stating: “Sony’s Network is not similar to a company town. The Network does not serve a substantial portion of a municipality’s functions, but rather serves solely as a forum for people to interact subject to specific contractual terms.” Estavillo recently appealed the dismissal to the Ninth Circuit and has also filed a second lawsuit against Sony.

German Government Pledges to Protect Online Journalism in Germany with a “New Kind of Copyright”

On October 29, 2009, the New York Times reported that Germany’s governing coalition “has pledged to create a new kind of copyright to protect online journalism” with the goal of “level[ing] the playing field with Internet companies like Google.” German publishers fear that Google may be “exploiting their content to build lucrative businesses without sharing the rewards.” Google aggregates news from many news outlets on its Google News website; however, Google News operates in Europe without collecting any advertising revenue. Although “[d]etails of how the proposal would work have not been spelled out,” analysts believes that the new copyright scheme may allow online journalists to “claim royalties for the use of their content by Google or other online ‘aggregators’ of news.” In support of the new scheme, counsel for the German Newspaper Publishers Association argues that there is “no fundamental right to information for free on the Internet.”

United Kingdom to Crack Down on Online Piracy; Could Lead to Outright Disconnection of Pirates

On October 28, 2009, the BBC reported on new legislation that will come into force in the United Kingdom in April 2010. Although “the details of it would need to be hammered out at European level,” the legislation will impose bandwidth restriction on suspected pirates. If necessary, more restrictions will be introduced in the spring of 2011 that could completely disconnect the suspected pirates from the Internet. The legislation already faces challenge from ISP TalkTalk, which has created a “Don’t Disconnect Us” campaign and threatened litigation. Although the legislation is designed to protect the United Kingdom’s creative content industries, legislators emphasize that the long-term solution is for “the industry to educate users and to offer new and cheaper ways to download content.”

By Davis Doherty

Freedom of Speech Prevails in UK Thanks to Twitter

On October 12, the UK-based newspaper The Guardian reported it was unable to report on a question asked of a minister during Parliamentary proceedings due to “legal obstacles, which cannot be identified.” Political bloggers and tweeters quickly responded, reporting the question was related to the oil-trading company Trafigura, which is under investigation for allegedly dumping toxic waste in the Ivory Coast. Within hours, Trafigura rose to the top of the Twitter “trending topics.” The resulting publicity led the company to relax the terms of its court-ordered gag rule. On October 13, the Guardian reported the details of Trafigura’s “super-injunction,” a gag order so broad that it prevented the newspaper from revealing the injunction’s existence.

Copyright Treaty a Secret, Unless You’ve Got Connections

The next round of negotiations for the multinational Anti-Counterfeiting Trade Agreement (ACTA) is scheduled to run November 4 through November 6 in Korea, but the United States Trade Representative is being coy about its contents. Wired reports that although the language of the treaty is classified, forty-two individuals from the private sector are allowed access to its contents under a nondisclosure agreement. Their names, including both industry and public interest organization representatives, were revealed after Knowledge Ecology International requested the information under the Freedom of Information Act.

Winner of Patent Suit Against Microsoft Sues Internet Giants

Eolas, an internet technology company that won a patent-infringement suit against Microsoft in 2003, is now taking action against the rest of the high-tech world. Ars Technica and CNET reported on October 6 that Eolas, which holds two patents related to web browser plug-in technology, is suing twenty-three other companies for infringement in the U.S. District Court for the Eastern District of Texas. After withstanding Microsoft’s legal challenges to its patent in the 2003 case, Eolas is looking to repeat its success against the likes of Apple, Amazon, Google, Yahoo, and YouTube. However, a Supreme Court decision in the upcoming case Bilski v. Doll may reduce Eolas’ chances at court if software patents are weakened.

By Andrew Jacobs

ISPs Found Liable for Websites’ Trademark and Copyright Infringement

Computerworld and Ars Technica report that on August 28, a federal jury handed down a $32.4 million judgment against two ISPs that hosted websites selling counterfeit Louis Vuitton products. Louis Vuitton successfully argued on a theory of contributory infringement, overcoming the ISPs’ claims of immunity under the Digital Millennium Copyright Act’s “safe harbor” provisions. Evidence that the ISPs had received and failed to respond to notices of the illegal activity from Louis Vuitton was key to the case.

EU to Investigate Oracle/Sun Deal

On September 3, the European Union’s antitrust regulators announced plans for a formal investigation of Oracle’s planned buyout of Sun Microsystems, The Washington Post reports. The investigation will center on the competitive consequences of “the world’s biggest proprietary database company . . . tak[ing] over the world’s leading open-source database company.” The European Commission will come to a ruling on the deal by January 19; the U.S. Department of Justice has already approved it.

Authors Voice Privacy Concerns in Objection to Google Settlement

A group of authors and publishers filed an objection to the proposed settlement between The Authors’ Guild and Google Book Search (GBS), the Electronic Frontier Foundation (EFF) reported on September 8. A fairness hearing regarding the settlement is set for next month. In the objection, prepared by EFF, the ACLU, and the Samuelson Clinic at UC Berkeley School of Law, the authors assert that GBS’s collection of personally identifiable information regarding users’ habits will having a chilling effect on readership. Limited information retention and strict disclosure standards are among the authors’ specific demands.

By Sharona Hakimi

WTO Finds China’s Media Laws Violate International Trade Laws

On August 12, Ars Technica and the New York Times reported that the World Trade Organization ruled against China in a complaint by the United States regarding China’s limitation on imports of songs, movies, and books. The Chinese laws constituting trade violations require that many forms of imported media must be distributed by a single, state-owned company. The laws also limit foreign ownership of Chinese media companies and allow domestic companies to bypass trade censors. Ron Kirk, the US trade representative at the WTO conference in Geneva, said that the “decision promises to level the playing field for American companies working to distribute high-quality entertainment products in China so that legitimate American products can get to market and beat out the pirates.”

Hollywood Group Secures Preliminary Injunction against DVD Copying Software

On August 11, U.S. District Court Judge Marilyn Patel issued a preliminary injunction against RealNetworks, barring the company from selling its RealDVD copying software until a jury can decide the issue, CNET News reports. She stated that RealNetworks cannot use fair use as a defense under the Digital Millennium Copyright Act or the company’s license with the DVD Copy Control Association, but noted that “[i]t may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual’s computer.” While the decision is seen as a major victory for the Motion Picture Association of America, the Electronic Frontier Foundations views it as a setback for innovators and consumers.

David Kappos Sworn in as New Director of USPTO

Patently-O reports that on August 13, David Kappos was sworn as Director of the United States Patent and Trademark Office. Kappos addressed USPTO employees at the ceremony, pledging to work on “reducing the backlog of unexamined patent applications, cutting pendency dramatically, working off the mounting appeals backlog, [and] improving re-exam processing.” He also projected his goals to secure more stable financial backing or the USPTO, hoping there will be no need to utilize the Office’s new authority to use trademark funds to pay for patent operations. A video of Kappos’s swearing in ceremony is available on the blog Anticipate This!

By Tyler Lacey

Law Enforcement Using Cell Phone Data During Investigations, Privacy Laws Yet to Catch Up

On July 5, The New York Times posted an analysis of the use of cell phone forensics by law enforcement. According to the article, major cell phone service providers receive hundreds of requests each month from law enforcement agencies for data that can be used to track a user’s cell phone. Many of these requests are not backed by search warrants that require a showing of probable cause that a crime has been committed. The article reported that since September 12, 2001, federal prosecutors in New Jersey alone have used cell phone data without search warrants in 98 investigations, resulting in 83 prosecutions. The article also reports that civil liberties groups such as the ACLU are concerned about the loss of privacy caused by modern cell phone technology in combination with the failure of federal privacy law to properly catch up and regulate cell phone tracking.

RIAA Seeks Order Requiring Harvard Professor to Remove “Unauthorized and Illegal” Recordings From Website

On July 6, Wired.com reported that the Recording Industry Association of America (RIAA) is seeking a court order requiring Harvard Law School Professor Charles Nesson to remove recordings of depositions and telephone conversations regarding an ongoing music piracy lawsuit from his blog. The RIAA argues that the recordings are “unauthorized and illegal,” but Professor Nesson insists that the privacy laws that allegedly prevent him from posting the recordings are “outrageously unconstitutional.” Professor Nesson had previously failed to obtain permission to broadcast a live webcast of the trial.

Network Management Company Tells Canadian Agency Net Neutrality Doesn’t Exist; Regulations Inevitable

On July 6, the CBC reported that the Canadian Radio-television and Telecommunications Commission held hearings during which representatives from industry and consumer advocacy groups offered their views on the proper way to regulate how internet service providers (ISPs) can manage network traffic. Sandvine, a company that sells traffic management technology to ISPs, said that network congestion disproportionately affects certain types of internet services, and that traffic management could potentially alleviate the inequality. Sandvine argued that net neutrality does not exist because of these inequalities in network traffic, and that network traffic should be managed by ISPs to prioritize certain types of packets. The Public Interest Advocacy Centre stated that packet inspection of the type made possible by Sandvine raises privacy concerns because it allows ISPs to identify the type of applications used by their customers in addition to other personal information. The group warned “there will be abuse” if such prioritization is allowed.