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Posted on Monday, December 12, 2011 at 10:04 pm

Chanel v. Does

District Judge Seems to Pilot Test SOPA in a Temporary Restraining Order
By Julie Dorais – Edited by Matt Gelfand

Chanel, Inc. v. Does, et al., 11-cv-01508-KJD-PAL (D. Nev. 2011)
Order

On November 14, 2011, the U.S. District Court for the District of Nevada issued a far-reaching temporary restraining order (TRO) in response to luxury goods company Chanel’s allegations that 288 defendants were selling counterfeit goods online. In addition to ordering the seizure of the defendants’ domain names, the ruling requires that domain registries transfer the domain names to GoDaddy.com, that GoDaddy.com redirect incoming traffic to a separate website, and that search engines and social networks remove the domain names from search results.

Commentators note that the remedy bears an uncanny resemblance to the remedies available under the recently proposed Stop Online Piracy Act (SOPA). As explained by Information Today, SOPA would give the government the expanded ability to obtain injunctions to seize domains that appear to be hosting infringing material. The injunctions may also direct certain actions by third parties, such as service providers and search engines. JOLT Digest has covered the proposed bill and the surrounding controversy.

CBS News summarizes the Nevada judge’s ruling and comments on its comparison to SOPA. Technology and Marketing Law Blog, Ars Technica, TechNewsWorld and TechDirt offer critical commentary. In particular, Technology and Marketing Law Blog argues that the ruling raises issues about due process, and questions the enforceability of the broad order. (more…)

RELATED ENTRIES: District Courts,Internet,Legislation,Trademark,Uncategorized

Posted on Monday, October 31, 2011 at 8:00 am

Stop Online Piracy Act

Stop Online Piracy Act Seeks to Block Piracy Websites
By Amy Rossignol – Edited by Charlie Stiernberg

H.R. 3261 – Stop Online Piracy Act
Bill

The proposed Stop Online Piracy Act, introduced by House Judiciary Committee Chairman Lamar Smith (R-TX), would vest in the U.S. Attorney General the power to regulate and prevent access to foreign websites infringing on U.S. Intellectual Property (“IP”) rights. The U.S. Attorney General, with court approval, would be able to issue orders to block access to and commercial transactions with the suspected websites.

The bill would grant immunity from liability to Internet service providers, payment network providers, advertising services, or domain name registries that choose to voluntarily block or end affiliation with a website suspected of being “dedicated to theft of U.S. property.” The bill also seeks to ban any tools designed to circumvent or bypass such measures.

Ars Technica provides an overview of the bill. Wired compares the bill to the Senate’s Protect IP Act. The Los Angeles Times discusses more of the political motivation behind the bill. (more…)

RELATED ENTRIES: Copyright,Internet,Legislation

Posted on Tuesday, August 2, 2011 at 1:49 pm

Flash Digest: News in Brief

By Andrew Crocker

Activist Arrested for Allegedly Hacking JSTOR

On July 19, police arrested Aaron Swartz, a 24-year-old programmer and Internet activist, in Cambridge, Massachusetts for allegedly committing wire and computer fraud when he downloaded approximately 4.8 million scholarly articles and other files from the JSTOR database, reports the New York Times.  As alleged in the indictment, beginning in September 2010, Swartz used MIT’s network to run an automated script to download the material from JSTOR, and eventually physically jacked into a network closet on the MIT campus after MIT blocked his remote access.  Swartz is known for his work on Really Simple Syndication (“RSS”) and the social news website reddit. He also founded the organization Demand Progress, which advocates for progressive Internet and government transparency policies.  Wired reports that although the indictment alleges Swartz intended to distribute JSTOR’s copyrighted material, he may have been conducting research, having previously worked on a study that analyzed the funding sources for a several hundred thousand law review articles.  According to Ars Technica, Swartz’s arrest has provoked protest by at least one fellow proponent of open access to scholarly works, who responded by posting nearly 19,000 scientific articles on Pirate Bay.

Ninth Circuit Reverses Conviction for Online Threat Against Obama

In a split opinion, the Ninth Circuit Court of Appeals has reversed the conviction of a California man who posted an online comment in October 2008 that appeared to call for then-Senator Barack Obama’s assassination, reports Wired.  Walter Bagdasarian was convicted under a federal law that makes it a felony to threaten to kill a major presidential candidate, but Judge Reinhardt, writing for the majority, found that Bagdasarian’s post did not rise to the level of a “true threat,” because there was insufficient evidence that “a reasonable person who read the postings within or without the relevant context would have understood either to mean that Bagdasarian threatened to injure or kill the Presidential candidate.”  In addition to failing this objective test for a true threat, the postings would also not support a subjective test for Bagdasarian’s intent to threaten Obama, and according to the court, either failure would be sufficient grounds for overturning the conviction.  Furthermore, although the post could be read as “an imperative intended to encourage others to take violent action,” the relevant statute does not criminalize exhortations to others, so Bagdasarian could not be convicted on this basis.  However, Eugene Volokh suggests that given the uncertainty in constitutional precedent on true threats and protected speech, this case is likely not settled and will either be reheard by the Ninth Circuit en banc or by the Supreme Court.

Controversial Data Retention Bill Clears House Committee

H.R. 1981, a bill that would require Internet providers to retain users’ IP addresses and other personal information for one year, has cleared the House Judiciary Committee by a vote of 19-10.  The bill, which CNET reports has received support from the Justice Department, is intended to make it easier for law enforcement officials to investigate crimes committed over the Internet.  According to the National Journal, critics of the bill have pointed to what they see as its politically opportunistic name, the Protecting Children From Internet Pornographers Act of 2011, as an attempt to hide its broad scope and lack of privacy protections.   In addition to lawmakers from both parties, civil liberties organizations, such as the Center for Democracy & Technology, have criticized the bill, arguing that its data retention provisions are invasive, confusing in scope, and burdensome to small Internet providers.

RELATED ENTRIES: 9th Circuit Decisions,Flash Digest,Hacking,Legislation,Privacy

Posted on Tuesday, July 5, 2011 at 10:41 pm

Brown v. EMA

Supreme Court Holds California Ban on Violent Video Games Violates First Amendment
By Raquel Acosta – Edited by Dorothy Du

Brown v. EMA, No. 08-1448 (June 27, 2011)
Slip Opinion via supremecourt.gov

The Supreme Court affirmed a Ninth Circuit decision that had found that a California law that restricted the sale or rental of violent video games to minors did not comport with the First Amendment and permanently enjoined its enforcement.

Justice Scalia delivered the opinion of the Court.  In a 7-2 decision, the Court upheld the lower court decisions and repealed California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746-1746.5 (West 2009) (“the Act”) (a law passed in 2005 by the California State Legislature which required more stringent rating standards on video games), banned the sale of violent video games to anyone under the age of 18, and imposed a maximum $1000 per violation.  The Supreme Court held that video games were afforded the same First Amendment protections as other forms of communication.  Areas in which restrictions on free speech are allowed are limited to obscenity, incitement, and fighting words.  In so holding, the Court rejected the Government’s argument that a balancing test may be used to justify restrictions, holding that a legislature may not add new categories of unprotected speech.

The Virtual World Law Blog provides an overview of the case.  David Kopel, writing for the Volokh Conspiracy, examines the “the weapons effect” (the theory that being exposed to aggressive stimuli will make ordinary individuals more inclined towards aggressive behavior) and uses the Brown decision in his critique of legislative anti-gun laws. Wikipedia provides a thorough analysis of the case and is informative as to the case history and the context in which Brown arises. SCOTUSblog contains an interesting commentary on the litigation strategies used.

(more…)

RELATED ENTRIES: Entertainment,First Amendment,Legislation,Supreme Court,Video Games

Posted on at 3:34 pm

Leahy-Smith America Invents Act

House Passes Patent Reform – Keeps Senate’s “First-To-File”, Differs on PTO Funding
By Albert Wang – Edited by Matt Gelfand

H.R. 1249 – Leahy-Smith America Invents Act
Bill

Govtrack.us Summary

On June 23, 2011, the House passed the Leahy-Smith America Invents Act. Sponsored by House Judiciary Committee Chairman Lamar Smith (R-Tex.) and passed by a vote of 304 to 117, the legislation implements a first-to-file system, a post-grant review system, and a fund for PTO fees, among other procedural changes. Smith promised in a statement that the bill would help “to encourage innovation, job creation and economic growth” by reducing the application backlog and attacking frivolous patent litigation. The Act’s purpose is to “promote industries to continue to develop new technologies that spur growth and create jobs across the country which includes protecting the rights of small businesses and investors from predatory behavior that could result in the cutting off of innovation.”

Originally passed in the Senate by a vote of 95 to 5 (previous Digest coverage), H.R. 1249 includes a number of changes relative to its Senate counterpart, S. 23. Of note, H.R. 1249 retains the Senate bill’s first-to-file regime, which makes the “effective filing date” of a claimed invention the actual filing date, thus dismantling the existing first-to-invent regime. First-to-file has been criticized by the Inventors Network of the Capital Area and Tea Party politicians like Phyllis Schlafly for unfairly advantaging large companies, foreign actors, and other parties with the resources to file patents quickly, according to Mother Jones. Your Patent Guy argues in contrast that resource advantages already work to bias interference proceedings, and that the bill gives institutional actors no advantage that they did not already enjoy under the existing system. (more…)

RELATED ENTRIES: Legislation,Patent
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