A student-run resource for reliable reports on the latest law and technology news
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Facebook Blocks British Insurance Company from Basing Premiums on Posts and Likes

By Javier Careaga– Edited by Mila Owen

Admiral Insurance has created an initiative called firstcarquote, which analyzes Facebook activity of first-time car owners. The firstcarquote algorithm determines risk based on personality traits and habits that are linked to safe driving. Firstcarquote was recalled two hours before its official launch and then was launched with reduced functionality after Facebook denied authorization, stating that the initiative breaches Facebook’s platform policy.

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Airbnb challenges New York law regulating short-term rentals

By Daisy Joo – Edited by Nehaa Chaudhari

Airbnb filed a complaint in the Federal District Court of the Southern District of New York seeking to “enjoin and declare unlawful the enforcement against Airbnb” of the recent law that prohibits  the advertising of short-term rentals on Airbnb and other similar websites.  Airbnb argued that the new law violated its rights to free speech and due process, and that it was inconsistent with Section 230 of the Communications Decency Act, which protects online intermediaries that host or republish speech from a range of liabilities.

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Medtronic v. Bosch post-Cuozzo: PTAB continues to have the final say on inter partes review

By Nehaa Chaudhari – Edited by Grace Truong

The Court of Appeals for the Federal Circuit (“the Federal Circuit”) reaffirmed its earlier order, dismissing Medtronic’s appeal against a decision of the Patent Trial and Appeal Board (“PTAB”). The PTAB had dismissed Medtronic’s petition for inter partes review of Bosch’s patents, since Medtronic had failed to disclose all real parties in interest, as required by 35 U.S.C. §312(a)(2).

 

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California DMV Discuss Rules on Autonomous Vehicles

DOJ Release Guidelines on CFAA Prosecutions

Illinois Supreme Court Rule in Favor of State Provisions Requiring Disclosure of Online Identities of Sex Offenders

Research Shows Concerns for Crucial Infrastructure Information Leaks

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Flash Digest: News in Brief

By Cristina Azcoitia – Edited by Kayla Haran

FTC Explores Crowdfunding Oversight

Comcast Sues Nashville to Stall Google Fiber

FCC Imposes New Consumer Privacy Rules on Internet Service Providers

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Sixth Circuit Rules that High-Volume Phone and Email Campaign Violates Computer Fraud and Abuse Act

By Michael Hoven – Edited by Abby Lauer

Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am., Nos. 09-2245; 10-1673 (6th Cir. Aug. 2, 2011)
Slip opinion

The Sixth Circuit affirmed in part and reversed in part the United States District Court for the Eastern District of Michigan, which had granted the Laborers’ International Union of North America’s (“LIUNA”) motion to dismiss Pulte Homes’ claim that LIUNA had violated the Computer Fraud and Abuse Act (“CFAA”) by carrying out a phone and email campaign against Pulte. The district court held that Pulte failed to show that LIUNA intentionally caused damage to Pulte’s phone and email systems.

The Sixth Circuit held that Pulte had successfully stated a “transmission” claim under the CFAA but agreed with the district court that it had not stated an “access” claim. The Sixth Circuit concluded that Pulte alleged sufficient facts to state a transmission claim, which requires showing that the defendant intentionally caused damage. The court reasoned that LIUNA’s phone and email bombardment had caused damage to Pulte’s computer system by diminishing Pulte’s ability to send and receive calls and emails. Such damage was also intentional, the court found, because LIUNA likely knew it was causing damage even if it acted without actual knowledge of the consequences of its phone and email barrage. The Sixth Circuit agreed with the lower court that Pulte failed to state an access claim but articulated different reasoning, holding that LIUNA’s actions were not “without authorization” because Pulte allowed members of the public to contact its offices and executives by phone or email. In so holding, the court adopted a “diminished-ability” standard for assessing damage, which may broaden liability under the CFAA.

The Computer Fraud/Data Protection blog provides an overview of the case. Techdirt criticizes the decision for expanding the CFAA beyond its original purpose of combating computer hacking to cover emails sent as part of a labor protest. The Technology & Marketing Law Blog questions whether Pulte had suffered significant damage and whether the allegations were sufficient to demonstrate intent on the part of LIUNA. (more…)

Posted On Aug - 18 - 2011 Comments Off READ FULL POST

Written by Katie Booth
Edited by Vivian Tao
Editorial Policy

I. Introduction: Not all data uses are created equal.

Google recently introduced a new social networking tool called the Google+ project, which capitalizes on the fact that consumers want more control over whom they share their personal information with online. Google+ allows users to set up separate groups—such as a group for friends, a group for family, and a group for coworkers—and then share different information with each group. This recognizes a simple fact of life: As Google puts it, “[n]ot all relationships are created equal.” The popularity of the national Do Not Call Registry, which prohibits telemarketers from calling phone numbers listed in the registry, is another example of consumers’ desire to keep particular groups of people, such as telemarketers, from using their personal data.

In Sorrell v. IMS Health, however, the Supreme Court held that the First Amendment did not allow the government to regulate speech on the basis of the types of categorical distinctions between speakers that consumers make all the time. Invalidating a Vermont statute that prohibited data mining companies from using physician prescription data for marketing purposes, the Court held that the government could not engage in “content” or “viewpoint” discrimination against marketers by prohibiting the commercial use of this data while permitting its non-commercial use. Sorrell at 2659, 2663-64.[1] This ruling, which seemingly has its roots in the Court’s Citizens United decision, eviscerates the commercial speech doctrine—the First Amendment doctrine governing speech with a commercial viewpoint and content—by effectively holding that the government cannot regulate commercial speech, such as marketing, differently than other types of speech just because the speaker is a corporation or the content of the speech is commercial.

If Sorrell applies to the world of online data, then the Court leaves legislatures with difficult choices when it comes to regulating data privacy. Under Sorrell, legislatures cannot regulate the commercial use of data any differently than its non-commercial use. This means that proposed legislation such as the Commercial Privacy Bill of Rights Act of 2011 (“Commercial Privacy Bill”), which aims to do precisely the opposite, would likely not pass constitutional muster. Instead, legislatures may have to consider universal opt-in or opt-out schemes, under which consumers could individually opt in or out of the use of their personal data for any purpose, not just commercial use. In its opinion, the Sorrell Court mentioned HIPAA, the Health Insurance Portability and Accountability Act of 1996, which requires all consumers to receive and acknowledge notice of the ways in which health care providers may use their personal data, approvingly in this context. However, both opt-in and opt-out data privacy schemes may negatively affect innovation, research, and even privacy. If legislatures choose to pass consumer data privacy laws in the wake of Sorrell, they will face difficult choices between competing values and may ultimately leave consumer data privacy up to the market.  (more…)

Posted On Aug - 17 - 2011 Comments Off READ FULL POST

Court Shuts Down DVD Streaming Service Zediva
By Daniel Robinson – Edited by Kassity Liu

Warner Bros. Entertainment Inc., et al. v. WTV Systems, Inc., No. CV 11-2817-JFW (C.D. Cal. August 1, 2011)
Slip Opinion

On August 1st, the District Court for the Central District of California granted a preliminary injunction ordering Zediva, an online video service, to shut down.

The order, by Judge John Walker, held that the Plaintiffs Warner Bros. and other movie studios were likely to succeed on the merits of their copyright claim, and that the potential harm the service posed to the plaintiffs outweighed the burden of an injunction on the defendants. In so holding, the court held that the defendants’ service violated the plaintiffs’ public performance right by transmitting content from DVDs to its subscribers.

Reuters provides an overview of the case. Techdirt criticizes the decision, arguing that streaming a DVD to one customer is not a “public performance.” Ars Technica provides a detailed description of the holding. (more…)

Posted On Aug - 12 - 2011 Comments Off READ FULL POST

Federal Circuit Upholds Patentability Of Isolated Genes
By Albert Wang – Edited by Kassity Liu

Ass’n for Molecular Pathology v. USPTO, No. 2010-1406 (Fed. Cir. July 29, 2011)
Slip Opinion

The Federal Circuit reversed the United States District Court for the Southern District of New York on the issues of whether Myriad’s patent claims regarding the BRCA gene and BRCA screening were valid. The Circuit affirmed on the issues of standing and patentability of Myriad’s method of comparing DNA sequences.

Judge Lourie, writing for the Circuit, reasoned that the isolated BRCA gene was chemically different from the gene in its naturally occurring state. Similarly, Myriad’s patient-screening included enough transformation to be patent-eligible.

PatentlyO provides an overview of the case. Genomics Law Report provides further analysis and predicts further uncertainty to come with regard to gene patents, noting that the decision only curtails attacks based on patentability of the subject matter. PharmaPatents criticizes the court’s distinction between isolated DNA and other products extracted from nature. The Digest previously covered the district court’s decision(more…)

Posted On Aug - 12 - 2011 Comments Off READ FULL POST

by Heather Whitney

Google calls competitors’ patent acquisition anticompetitive; Microsoft claims Google was invited

Techcrunch reports that Google accused Microsoft of buying the Nortel patents in order to supress competition from Android, Google’s popular mobile operating system. On Wednesday, Google SVP and Chief Legal Officer David Drummond released a blog post calling, among other things, the recent Nortel patent auction win by a consortium including competitors Microsoft, Apple, and Oracle anticompetitive, done to stifle Android innovation through litigation. On Thursday, Microsoft’s General Counsel, Brad Smith, tweeted a response, explaining that Microsoft asked Google to bid jointly but Google refused. Microsoft’s Head of Communication tweeted a follow-up, attaching an image of an email sent from Kent Walker, Google’s GC, to Microsoft’s GC, where Google expressly declined to bid jointly. Google responded again, as did Microsoft. In the end, Google contends that a joint bid would not have protected Android from patent litigation since Microsoft would have the patents too. Microsoft argues Google refused to join in the bid because Google was looking to buy up additional patents to use to go after Microsoft.

Facebook’s Marketing Director says online anonymity has to “go away”, leaves Facebook to start her own media company

According to the Huffington Post, during a discussion last Tuesday on cyber bullying, Facebook’s Marketing Director Randi Zuckerberg gave a solution: get rid of online anonymity all together. “I think anonymity on the Internet has to go away. People behave a lot better when they have their real names down… I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.” The EFF responded, claiming that while private companies like Facebook can require users to give their real names, requiring anybody roaming the Internet at all to do so constitutes a freedom of expression “disaster”. Faster Forward, a Washington Post blog, reports that, while purportedly unrelated, Zuckerberg submitted her letter of resignation a week and a day later. In her letter, Zuckerberg said she plans to leave and start her own social media company.

Eighth Circuit affirms that student’s IM with threats to third party not protected speech

Education Week reports that the Eighth Circuit, in D.J.M. v. Hannibal Public School District, affirmed a lower court’s ruling that a student’s instant message containing a threat to third party students, sent outside of school, is not protected speech. The Appeals Court found that because the student directed his IMs at a student who could reasonably be seen to forward the threats to the actual victims, it was a true threat. The Eighth Circuit also analyzed the situation under the Tinker “substantial disruption” test, finding that the IM comments, given that they were easy to copy and thus foreseeably likely to be forwarded on to school administrators, constituted such a substantial disruption of the school.

Senator Grassley objects to rumored removal of NIH conflict of interest disclosure requirements.

Senator Chuck Grassley wrote a letter to Office of Management and Budget this week, urging them not to strip a proposed transparency rule of one of its central features – a requirement that universities post the financial conflicts of publicly funded medical researchers on  a public website. Senator Grassley’s letter was prompted by a Nature article reporting that the requirement had been dropped. Senator Grassley also demanded documents related to meetings on the rule attended by Cass Sunstein, the head of OMB’s Office of Information and Regulatory Affairs. Pharmalot reports that Sunstein is rumored to have disliked the website requirement. Grassley has asked for a response from OMB by August 25.

Posted On Aug - 10 - 2011 Comments Off READ FULL POST
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