A student-run resource for reliable reports on the latest law and technology news
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Washington State Court of Appeals rejects anti-SLAPP claim of blogging ex-employee

By Jenny Choi – Edited by Jens Frankenreiter

The Court of Appeals rendered a decision in a case involving the interpretation of Washington’s anti-SLAPP statute in the context of a lawsuit brought by the director of a performing arts theatre against a blogging ex-employee. The Court of Appeals reversed the trial court judgment which had dismissed the lawsuit under the anti-SLAPP statute.

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EU Court of Justice Hears Oral Arguments in Facebook Privacy Case

By Sheri Pan – Edited by Anton Ziajka

The Court of Justice of the European Union heard oral arguments in a case challenging the legality of transfers of European data to U.S. companies like Facebook. The complaint alleges that, in light of the Snowden leaks of the NSA’s PRISM surveillance program, the U.S.-EU Safe Harbor agreement does not comply with EU Directive 95/46, which requires EU member states to ensure that data is being transferred to a country that provides an “adequate level of protection” for the data.

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Flash Digest: News in Brief

By Anne Woodworth

UK Court Allows Safari Users to Sue Google over Privacy Settings

FTC Responds to Allegations that it Ignored Staff Recommendations to Sue Google

Citigroup Report Criticizes Law Firms for not Reporting Hacking

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Federal Circuit Rejects En Banc Review of Infringement Willfulness Standard

By Paulius Jurcys – Yaping Zhang

The Federal Circuit rejected a motion for en banc review of a patent infringement case evaluating the willfulness standard and whether the standard should be changed in order to meet the interpretation provided by the Supreme Court in the Octane decision.

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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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Second Circuit Affirms Dismissal of Tiffany’s Trademark Infringement Claim Against eBay
By Dmitriy Tishyevich – Edited by Jad Mills

Tiffany Inc. v. eBay Inc., Case No. 08-3947 (2d Cir., Apr. 1, 2010)
Slip Opinion

On April 1, the Second Circuit largely affirmed the holdings of the district court in the Southern District of New York. The court concluded that despite the evidence that eBay had general knowledge that some of its customers had used its website to sell counterfeit Tiffany merchandise, eBay itself could not be held liable for direct or contributory trademark infringement or for trademark dilution. It remanded the case, however, to determine whether eBay could be held liable for false advertising.

Eric Goldman, who had previously commented on the district court opinion, provides a summary of the Second Circuit’s decision.  Larry Downes for the Stanford Law School Center for Internet and Society views the decision “a matter of economic necessity,” arguing that placing the burden on online marketplaces rather than on manufacturers “would effectively mean the end of eBay and sites like it.” Rebecca Tushnet comments on the opinion, focusing on the false advertising holding. Ron Coleman of the Likelihood of Confusion blog provides some additional commentary and criticism.

(more…)

Posted On Apr - 9 - 2010 1 Comment READ FULL POST

Panel Criticizes Bilski Machine-or-Transformation Test
By Kathryn Freund – Edited by Ryan Ward
Editorial Policy

On Thursday, April 1st, JOLT hosted a panel discussion at Harvard Law School on the impact of In Re Bilski, a 2008 en banc decision by the Court of Appeals for the Federal Circuit holding that the machine-or-transformation test is the proper method for determining patent-eligible subject matter. Digest previously covered the Bilski decision here. The case was appealed to the Supreme Court, which heard oral arguments in November 2009.

The three panelists, Don Steinberg, Professor Kevin Collins of the University of Indiana Maurer School of Law, and Professor Michael Meurur of Boston University School of Law, examined the Bilski holding from different litigation and economic perspectives, and wagered predictions on the forthcoming Supreme Court decision. The panelists agreed that the Bilski machine-or-transformation test rightly excludes software and business method patents, but fails as a useful test. They went on to agree that the Supreme Court will likely strike down the Bilski patent, but is unlikely to provide a concrete new test for courts to follow.

(more…)

Posted On Apr - 6 - 2010 1 Comment READ FULL POST

The JOLT Digest is proud to introduce our newest feature, Digest Reporter!  In addition to our coverage and commentary on the latest law and technology news, the Digest will now periodically report on important technology-related events at Harvard Law School and other events that may be of interest to the law and technology community.  These pieces are written entirely by members of our staff, on topics and events they choose to cover.

While the Digest provides hosting for Digest Reporter, the opinions expressed in the Reports are those of the Authors or named participants alone, and do not reflect any position of the Harvard Journal of Law & Technology, the JOLT Digest, or the Harvard Law School.

– The Digest Staff Editors

Posted On Apr - 6 - 2010 1 Comment READ FULL POST

District Court Limits the Use of State Secrets Privilege in Warrantless Wiretapping
By Kathryn Freund – Edited by Davis Doherty

Al-Haramain Islamic Found., Inc. v. Obama, No. 07-0109 (N.D. Cal., Mar. 31, 2010)
Memorandum of Decision and Order
(hosted by Electronic Frontier Foundation)

The District Court for the Northern District of California granted summary judgment for the plaintiffs, the defunct Al-Haramain Islamic Foundation and the charity’s two attorneys, finding that they presented sufficient non-classified evidence to hold the government liable for electronic surveillance without a warrant in violation of the Foreign Intelligence Surveillance Act (“FISA”).  50 U.S.C. §§ 1801–71.

Chief Judge Walker rejected the government’s argument that the Executive can invoke the State Secrets Privilege (“SSP”) to conceal the existence of a FISA warrant, and thus preclude a case the Executive believes would compromise national security. Instead, the government bore the burden of proving the existence of a FISA warrant once the plaintiffs established sufficient evidence of electronic surveillance. The court argued that Congress enacted FISA to impose judicial review of surveillance that the Executive cannot avoid by invoking the SSP.  In addition, Congress established a procedure under section 1806(f) allowing the government to show the legality of particular instances of surveillance — a procedure the government did not use in this case.

The San Francisco Examiner and Electronic Frontier Foundation provide an overview of the case and the Terrorist Surveillance Program under which the National Security Agency wiretapped Plaintiffs. The New York Times Editorial page views the court’s holding that FISA preempts the SSP as a step in the right direction in the fight against warrantless wiretapping. Wired questions whether the decision will be upheld if appealed. (more…)

Posted On Apr - 4 - 2010 Comments Off READ FULL POST

By Chinh Vo

Moviemakers Sue Tens of Thousands of BitTorrent Users

A coalition of independent filmmakers has sued more than 20,000 individual movie torrent downloaders for copyright infringement in federal court in Washington D.C., the Hollywood Reporter, Esq. blog reports. The series of lawsuits marks the first major move in the U.S. by the movie industry to target individual torrent downloaders, rather than the torrent sites themselves, and is preceded by similar actions in Germany and the U.K. According to the Hollywood Reporter blog, these suits may signal the beginning of a wave of “massive litigation” against movie torrent downloaders, as 30,000 new lawsuits are allegedly forthcoming.

UK Journalist Wins Libel Appeal

The Guardian and Ars Technica report that on April 1, UK science journalist Simon Singh won an important appeal in a libel suit brought against him by the British Chiropractic Association (“BCA”). Singh is accused of libel based on an article he wrote, which described some of the BCA’s treatment practices as “bogus.” In reversing an earlier decision that had required Singh to meet the difficult standard of showing that the BCA was knowingly engaged in false claims, the court accepted Singh’s statements to be a matter of opinion, noting that it was not in the position to settle scientific claims. Singh no longer has to show that his comments were factual and can instead use a “fair comment” defense.

Major Online Service Providers Push Privacy Law Reforms

Wired reports major online service providers, including Google and Microsoft, have combined forces with internet rights organizations such as the Electronic Frontier Foundation to form Digital Due Process, a coalition pushing for modernization of U.S. privacy laws. The group says that current electronic privacy legislation, particularly the 1986 Electronic Communications Protection Act, needs to be updated to reflect changing technology. Specifically, Digital Due Process advocates the adoption of several principles, such as requiring judicial approval for government access to information about email and phone usage. None of the internet companies that are part of the coalition, however, have announced changes to their own practices.

Posted On Apr - 3 - 2010 Comments Off READ FULL POST
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