Flash Digest – News in Brief

First Amendment Flash Digest

Supreme Court to Decide Rights of U.S. to Overseas Data

On Monday, October 16, 2017, the Supreme Court agreed to hear a case on whether a U.S. email service provider must comply with U.S. search warrants that compel disclosure of its data stored abroad. During the course of a drug-trafficking investigation, U.S. prosecutors served a warrant on Microsoft in Redmond, WA, requiring the production of certain emails under the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2703. The email contents sought by prosecutors were stored on Microsoft servers in Ireland. Brad Smith, Microsoft President and Chief Legal Officer, responded to the decision of the high court to hear the case. He stated that ECPA was never intended to reach outside the United States, that the Department of Justice’s interpretation of the statute would create conflicts with foreign laws, and that the outdated ECPA, which was enacted in 1986, should instead be updated for “the world of the cloud” through legislative action. Commentators have noted the lack of federal circuit court split on this issue prior to the Supreme Court’s grant of cert, suggesting the Court’s recognition of the importance of digital evidence collection.

 Amazon, Netflix, and Other Movie Studios Sue TickBox TV

On Friday, October 13, 2017, a group of content creators, including Amazon, Netflix, and six movie studios, filed a complaint in the United States District Court for the Central District of California, alleging that TickBox TV sells a device that encourages and enables customers to commit acts of copyright infringement. The complaint calls these devices, “tool[s] for the mass infringement of plaintiffs’ copyrighted motion pictures and television shows” and alleges that the devices operate by providing customers access to links that stream unauthorized online sources of copyrighted content. The complaint alleges intentional inducement of, and knowing and material contribution to, infringement of plaintiffs’ copyrighted works, and that plaintiffs are entitled to damages under 17 U.S.C. Section 504 and injunctive relief under 17 U.S.C. Section 502. Commentators note that TickBox TV’s website asserts that their product is legal because it only acts as a “directory” for content, but similar defenses have failed in the past, such as in the well-publicized MGM Studios v. Grokster, 545 U.S. 913 (2005) hosted by law.cornell.edu.

 Patent Litigation Since TC Heartland

Since the decision of the Supreme Court in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017) earlier this year, many commentators have speculated on the impact of the decision on future patent litigation in the United States. On Thursday, October 12, 2017, litigation analytics company Lex Machina published a report on trends in patent case filings. This report showed that the number of patent cases filed in the Eastern District of Texas decreased significantly, while the number of patent cases filed in the District of Delaware increased. In the 90 days before the decision, 33% of patent cases were filed in the Eastern District of Texas and 13% of patent cases were filed in the District of Delaware. In the 90 days after the decision, 13% of patent cases were filed in the Eastern District of Texas and 26% of patent cases were filed in the District of Delaware. Commentators believe that the trend of patent cases leaving Texas is likely to continue in the wake of the recent decision of the Court of Appeals for the Federal Circuit in In re: Cray Inc., No. 2017-129 (Fed. Cir. 2017). Other commentators add that the long-term trends are uncertain, especially due to the heavily congested Delaware docket, and their overextended judicial resources.