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The FCC’s Net Neutrality Rules on Protecting and Promoting Open Internet

By Shuli Wang – Edited by Yaping Zhang

Two weeks after voting on regulating broadband Internet service as a public utility, on March 12, the Federal Communications Commission (”FCC”) released a document (the FCC Order and Rules) on net neutrality, which reclassifies high-speed Internet as a telecommunications service rather than an information service, thus subjecting Internet service providers (ISPs) as common carrier to regulations under Title II of the Communications Act of 1934. The purpose of the new rules is to ensure the free flow of bits through the web without paid-for priority lanes and blocking or throttling of any web content.

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White House releases administration discussion draft for Consumer Privacy Bill of Rights Act of 2015

By Lan Du – Edited by Katherine Kwong

On February 27, 2015, President Obama released an administration draft of a proposed Consumer Privacy Bill of Rights Act. The proposed bill’s stated purpose is to “establish baseline protections for individual privacy in the commercial arena and to foster timely, flexible implementations of these protections through enforceable codes of conduct developed by diverse stakeholders.”

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Federal Circuit Flash Digest: News in Brief

By Patrick Gallagher

Federal Circuit Affirms Denial of AT&T Motion to Extend or Re-open Filing Period for Appeal in Patent Infringement Suit

In Patent Suit Against Apple, Federal Circuit Affirms in Part, Reverses in Part

Federal Circuit Reverses DNA Sequencing Technology Patent Construction

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Wikimedia Sues NSA for Upstream Surveillance

By Paulius Jurcys – Edited by Sarah O’Loughlin

Wikimedia Foundation filed a suit against the NSA challenging the constitutionality of upstream surveillance programs, which allow the NSA to communicate by Americans and persons abroad. The claim, which was joined by eight other human rights organizations, challenges NSA’s actions as violations of the First and Fourth Amendments of the US Constitution.

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Florida Considers a Bill Outlawing Anonymous Websites

By Paulius Jurcys – Edited by Anton Ziajka

Florida lawmakers are considering a bill, the “True Origin of Digital Goods Act,”  that would require owners and operators of websites that disseminate “commercial” recordings or audiovisual works to prominently disclose their true names, physical addresses, and telephone numbers or email addresses on the websites. The bill extends to all websites that deal “in substantial part” in disseminating such recordings or audiovisual works, “directly or indirectly,” to Florida consumers.

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By Chinh Vo

Republican Senators Draft Bill in Opposition to FCC’s Net Neutrality Regulations Plans

CNET reports that a group of Republican senators, led by Sen. Jim DeMint of South Carolina, is sponsoring a new bill designed to thwart the FCC’s plans to regulate broadband providers. The bill, dubbed the Freedom for Consumer Choice Act, would allow the FCC to impose requirements on the broadband industry only if marketplace competition is inadequate, giving the agency authority similar to the Department of Justice’s ability to enforce antitrust. As JOLT has previously reported, many members of Congress have expressed concern over the FCC’s attempt to impose Net neutrality rules by reclassifying broadband as a telecommunications service, following the decision in Comcast Corp. v. FCC limiting the agency’s jurisdiction over broadband services.

Lawyers Drop Suit Against Scribd Featuring Novel Application of Copyright Act

Wired reports that lawyers have dropped a copyright infringement lawsuit against document-sharing website Scribd. The case, filed last September by children’s writer Elaine Scott after one of her books appeared on Scribd, had been closely watched because Scott’s lawyers sought a novel application of the Copyright Act. In addition to attacking the site for failing to block the unauthorized upload, Scott’s lawyers claimed Scribd’s copying and insertion of her copyrighted work into its filtering system — to prevent future unauthorized uploads — was itself a violation of the Copyright Act. Many university sites, social networks, and user-generated content sites employ similar filtering methods that compare uploaded materials to a database of copyrighted works.

Cell Phone Group Files Suit to Block San Francisco Radiation Ordinance

PCWorld reports that CTIA, an international group representing the wireless telecommunications industry, has sued the city of San Francisco in an attempt to block a recently-enacted ordinance requiring cell phone retailers to post how much radiation their devices emit. The complaint, filed in the Northern District of California, argues that the city exceeded its authority by passing regulations related to an issue already addressed by the FCC. According to CTIA, the ordinance conflicts with federal law because the heightened labeling requirements undermine the FCC’s determination that all FCC-compliant cell phones are safe. The suit also alleges that the city ordinance violates the Communications Act by imposing a condition for entry to the wireless market — a power the Act limits to the federal government.

Posted On Jul - 27 - 2010 Comments Off READ FULL POST

Ninth Circuit Argues for Less Stringent Test for Protecting Anonymous Online Commercial Speech
By Kathryn Freund – Edited by Janet Freilich

In re: Anonymous Online Speakers, No. 09-71265 (9th Cir. July 12, 2010)
Opinion

The Ninth Circuit Court of Appeals denied writs of mandamus appealing the District Court of Nevada’s order to disclose the identities of anonymous online posters. Although the Circuit Court denied the writs of mandamus for procedural reasons, the decision provides a discussion of Free Speech protection of commercial speech posted on the Internet.

Judge McKeown held that the District Court committed no clear error in ordering the release of the identities of three anonymous online speakers. In discussing the various tests for protecting anonymous speech, she stated that the District Court applied too stringent a standard for commercial speech by relying on the test announced in Doe v. Cahill, 884 A.2d 451 (Del. 2005), which involved political speech. The court noted that the First Amendment affords less protection to commercial speech, and thus the balancing test between discovery and Free Speech should be based on “the nature of the speech,” with commercial speech subject to less stringent protection. In re: Anonymous Online Speakers, at *9920. In the discussion, the court noted the likelihood of an increasing number of cases involving anonymous online commercial speech and the lack of appellate decisions involving such discovery disputes.

The Internet Cases blog provides an overview of the decision and points out the significance of the case as the third federal circuit court case to address the issue of online anonymity. Citizen Media Law Project provides a more extensive overview and questions whether the Ninth Circuit’s definition of commercial speech will reduce free speech protection for “legitimate consumer criticism.” (more…)

Posted On Jul - 27 - 2010 Comments Off READ FULL POST

Use of Trademark in Domain Names Found to Be Nominative Fair Use
By Harry Zhou – Edited by Anthony Kammer

Toyota Motor Sales v. Tabari, No. 07-55344 (9th Cir. Jul. 8, 2010)
Slip Opinion

On July 8, 2010, the Ninth Circuit Court of Appeals vacated and remanded an injunction against Farzad and Lisa Tabari by the United States District Court for the Central District of California in a trademark infringement claim brought by Toyota Motor Sales U.S.A. (“Toyota”).  The Ninth Circuit stated that on remand the injuction must be modified to permit some use of Toyota’s “Lexus” trademark in Internet domain names.

Led by Chief Judge Alex Kozinski, the majority concluded that Tabari’s use of the string “lexus” in domain names “buy-a-lexus.com” and “buyorleaselexus.com,” under which Tabari operated an automobile brokerage, was nominative fair use, a defense that shielded Tabari from Toyota’s claim of trademark infringement.  The nominative fair use doctrine is a defense that gives individuals to right to use another’s trademark to refer to the trademarked good itself. The majority reasoned that Tabari’s truthful communications regarding the nature of the Lexus product fell into the protective scope of the nominative fair use doctrine.

Seattle Trademark Lawyer features excerpts from the opinion. The E-Commerce and Tech Law Blog summarizes potential impacts of the decision. An in-depth analysis of the opinion is available at Eric Goldman’s Technology and Marketing Law BlogRebecca Tushnet’s 43(B)log offers comments on the opinion. (more…)

Posted On Jul - 22 - 2010 Comments Off READ FULL POST

Federal Circuit Distinguishes Provisional Applications from Foreign Filings for Prior Art Priority under 102(e)
By Ian B. Brooks – Edited by Anthony Kammer

In re Giacomini, No. 2009-1400 (Fed. Cir. July 7, 2010)
Slip Opinion

On July 7, 2010, the Court of Appeals for the Federal Circuit affirmed the Board of Patent Appeals and Interferences’ (“Board”) rejection of claims of U.S. Patent Application No. 09/725,737 as anticipated under 35 U.S.C. § 102(e), the so-called “secret prior art” provision.  The Federal Circuit’s ruling expanded the scope of 102(e) such that prior art U.S. patents and applications under § 102(e) are now to have an effective filing date as of the filing date of the qualifying provisional application.

The Federal Circuit held as a matter of statutory interpretation, that under § 102(e) the effective filing date for patent priority is the filing date of the provisional application, so long as the provisional application contains a written description of the claimed invention.  Thus secret and confidential provisional applications will receive patent priority for a claimed invention against any later filings.  The court based its decision on §§ 111(b) and 119(e), emphasizing that the patent system rewards the person who is first to invent.

Patently-O provides an overview of the case. Matt Osenga at Inventive Step provides an analysis of possible implications of the decision. The Patent Prospector discusses the decision and notes that Americans will continue to receive priority over foreign patent applications. (more…)

Posted On Jul - 21 - 2010 1 Comment READ FULL POST

By Ian B. Brooks

Reality Porn Producers Claim Fair Use in Suit against Record Labels

Ars Technica reports that Warner Bros. Records and ten other record music labels have filed suit against porn companies RK Netmedia and RealityKings.com. The record labels allege copyright infringement for the use of their unlicensed songs in hundreds of hardcore pornographic videos. They are seeking the maximum statutory penalty of $150,000 per video. RK Netmedia says it will defend the suit under the fair use doctrine. They argue that because they shoot their films in reality show style, their equipment captures music played in the background of the nightclubs and venues where they shoot. The complaint is available here.

ACLU Challenges Constitutionality of Massachusetts Law Protecting Minors on the Internet

On July 12, 2010, an updated Massachusetts law went into effect which will extend existing laws to protect minors from obscene materials on the Internet. Citizen Media Law Project and Ars Technica report on the ACLU’s challenge to the law. The “harmful to minors” law has been expanded to cover many online communications, such as electronic mail, instant messaging, and text messaging. The ACLU argues that the updated law will have a chilling effect on Internet communications, affecting even constitutionally protected communications between adults. The law, which was previously restricted to physical locations such as shops within Massachusetts, now has the effect of reaching outside of the state. The ACLU seeks to have the updated language removed from the law.

Louisiana is Latest to Enact Anti-Cyber-Bullying Statute

Lowering the Bar and Citizen Media Law Project report on the latest cyber-bullying statute enacted in Louisiana. The law makes illegal the “transmission of any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of 18.” Violators could face a maximum penalty of a $5,000 fine and three years in jail. The Media Coalition opposed the law on constitutional grounds prior to its enactment because of its vague language. Much of the language remained unchanged, so its constitutionality continues to be a concern for some.

Posted On Jul - 20 - 2010 Comments Off READ FULL POST
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