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District Court Holds that Internet-Based Television Provider, FilmOn X is Entitled to a Compulsory License

By Anne Woodworth – Edited by Henry Thomas

The U.S. District court for the Central District of California ruled that an online streaming service that rebroadcasted network television fit the definition of a cable company, and was entitled to compulsory licensing under § 111 of the Copyright Act.  The order relied on the Supreme Court’s Aereo decision, which held that internet streaming was fundamentally the same as cable. The ruling conflicts with a Second Circuit case decided on similar facts, and is immediately appealable.

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Data Breach Victims, Rejoice: Seventh Circuit Finds that Threat of Injury is Sufficient for Article III Standing in Data Breach Class Actions

By Brittany Doyle – Edited by Ariane Moss

Last Monday, the Seventh Circuit Courto of Appeals ruled that victims of a data breach had standing to pursue a class action even when they had not suffered direct financial harm as a result of the breach or when they had already been compensated for financial harm resulting from the breach. The opinion reversed a contrary district court decision, which the Seventh Circuit said had incorrectly read the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA.

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How Far Can Law Enforcement Go When Gathering Email Evidence? Former Gov. Scott Walker Employee Files Petition for Writ of Certiorari

By Kasey Wang – Edited by Ariane Moss

Kelly Rindfleisch is serving a six-month sentence for misconduct in public office while working for then-County Executive Scott Walker. Rindfleisch appeals to the U.S. Supreme Court, claiming that the government violated her Fourth Amendment rights while searching her emails for evidence for a different case.

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Russia’s “Right To Be Forgotten” and China’s Right To Be Protected: New Privacy and Security Legislation

By Brittany Doyle – Edited by Ken Winterbottom

The legislatures in Russia and China took steps this month to tighten regulations over Internet companies with access to user data. In Russia, President Vladmir Putin signed a law ensuring a “right to be forgotten” reminiscent of the European Court of Justice’s right to be forgotten ruling of May 2014. And in China, the National People’s Congress released a draft cybersecurity bill that would formalize and strengthen the State’s long-standing regulation of websites and network operators.

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Washington Appeals Court Refuses to Compel Unmasking of Anonymous Avvo Critic Absent Evidence of Defamation

By Leonidas Angelakos – Edited by Olga Slobodyanyuk

The Washington Court of Appeals held that—absent evidence of defamation—a third party website is not required to unmask an anonymous defendant. The court adopted an analysis similar to the widely cited Dendrite test for the showing a defamation plaintiff must make on a motion to compel disclosure of an anonymous defendant’s identity.

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By Harry Zhou
Edited by Gary Pong
Editorial Policy

Libel litigation against bloggers has intensified in recent years as the blogosphere continues to experience rapid growth. The threats database of the Citizen Media Law Project (“CMLP”) shows that since 2000, there have been more than 310 lawsuits accusing blog and forum owners of defamation in U.S. courts. Often central to these disputes is the tension between the right to free speech and the need to restrict the rapid spread of defamatory materials on the Internet. The balance is particularly hard to strike when a plaintiff seeks a prior restraint, an extraordinary remedy that immediately enjoins the defendant’s speech at the onset of a lawsuit.

In December 2009, a New Jersey court issued such a prior restraint that compelled the complete shutdown of three blogs in Apex Tech. Group, Inc. v. Doe(s) 1-10. The order evoked keen debate among media law experts regarding the proper scope of prior restraints on Internet media such as blogs and forums. Kurt Opsahl, a senior attorney with the Electronic Frontier Foundation (“EFF”), criticized the prior restraint for being “dangerously overreaching” in an EFF blog post. Vivek Wadhwa, a senior research associate at Harvard Law School, voiced his support for the takedown on TechCrunch, claiming that the EFF was “a tad overzealous” in defending the websites involved. Taken together, the two articles serve as an appropriate starting point for determining how much of a blog can be properly censored by a prior restraint under a defamation claim. (more…)

Posted On May - 11 - 2010 4 Comments READ FULL POST

It’s once again that time of year: The Digest will be taking a short break from our regular coverage over the coming weeks as our Staff Writers take their spring examinations.

While we take our hiatus from regular coverage, we have the pleasure of re-introducing our Comments feature. Comments are longer opinion pieces on especially significant issues. These pieces are written entirely by members of our staff, on topics they believe warrant closer examination and study. From now until May 16th, we will publish one or two Comments every week. We have some especially interesting pieces this May and we hope you enjoy them!

We’ll be back the week of May 16th with our usual coverage.

We sincerely hope you’ve enjoyed our work this year!

- The Digest Staff

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

Court Orders District Court to Reconsider Preliminary Injunction on “Catcher in the Rye” Sequel
By Katy Yang – Edited by Kassity Liu

Salinger v. Colting, No. 09-2878-cv (2d Cir. April 30, 2010)
Slip Opinion

The United States Court of Appeals for the Second Circuit vacated and remanded the judgment of the United States District Court for the Southern District of New York, which had granted Salinger’s motion for a preliminary injunction for copyright infringement and unfair competition.

The Second Circuit unanimously held that the Circuit standard for granting preliminary injunctions in copyright cases, applied by the District Court, was inconsistent with the four-factor test “historically employed by courts of equity,” set out in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 390 (2006), which now replaces the original standard. Although eBay was about a permanent injunction for patent infringement, the Second Circuit also held that it “applies with equal force (a) to preliminary injunctions (b) that are issued for alleged copyright infringement.” In so holding, the court explained that eBay strongly suggests that its scope presumptively extends to injunctions in any context. The court also affirmed the district court’s conclusion that Salinger is likely to prevail on the merits due to substantial similarity between the two works and the likely failure of Colting’s fair use defense. Finally, because the Circuit’s original standard for granting preliminary injunctions in copyright cases has been changed to the eBay standard, the court found it unnecessary to reach the constitutional issue of whether the Circuit’s original standard is an unconstitutional prior restraint on speech.

Bloomberg Businessweek provides an overview of the case and features a thorough analysis of the decision. The Am Law Daily and the New York Times summarize some of the legal issues in the decision. Stanford Law School’s Center for Internet and Society submitted an amicus brief arguing that courts should consider more factors before granting injunctions, which can be found here. (more…)

Posted On May - 2 - 2010 Comments Off READ FULL POST

By Chinh Vo

Supreme Court to Decide on Law Regulating Sale of Violent Video Games to Kids

Wired reports that the Supreme Court has agreed to decide whether states may forbid the sale or rental of violent video games to children. The Court will review a ruling by the Ninth Circuit that struck down a California law, imposing fines for selling “patently offensive” or “morbid” games to people under the age of 18, on First Amendment grounds. Similar laws have been overturned in other states, including Illinois, Michigan, Minnesota and Oklahoma. According to the New York Times, the decision to hear the case — despite general agreement among lower courts — suggests that some justices intend to reexamine how the First Amendment applies to depictions of violence.

Senators Attack New Facebook Features on Privacy Grounds

TechCrunch and Ars Technica report that a group of four U.S. senators is calling on Facebook to change its privacy policies following the popular social networking site’s launch of major new features last week. Democrats Al Franken, Charles Schumer, Michael Bennet, and Mark Begich, in an open letter to Facebook, warned that the Federal Trade Commission may get involved if the company does not take “swift and productive steps” to protect the privacy of user information. Their primary concerns were the “expansion of publicly available data” that users must opt out of sharing and third-party advertisers’ ability to store user profile data indefinitely. These features, according to the senators, create a “potential gold mine of data for unsolicited advertisements.” The senators also asked the FTC to provide guidelines for the use of private information by social networking sites.

Court Orders Aspiring News Blogger to Reveal Sources

A New Jersey appellate court ruled that a blogger must disclose the sources behind online statements she posted, Wired reports. Shellee Hale was sued for defamation after accusing software company Too Much Media of fraudulent acts against its customers. The statements at issue were not posted on Hale’s own blog, but rather in the comments section of a message board. The appellate court was not convinced by Hale’s defense utilizing a New Jersey shield law, protecting reporters from being forced to reveal their sources, because Hale is not a journalist. The court stated there was no evidence demonstrating conduct consistent with professional news reporting that would warrant application of the newsperson’s privilege. Hale produced no records of her interviews and did not identify herself as a journalist to sources. The court emphasized that “new media should not be confused with news media.”

Posted On Apr - 30 - 2010 Comments Off READ FULL POST

By Kassity Liu

Amazon Files Lawsuit to Protect Consumer Privacy

On April 19, 2010, online retailer Amazon.com filed a lawsuit against the North Carolina Department of Revenue (DOR), asking a federal judge to preempt the DOR’s request for detailed information on consumers’ purchases from the company’s website. CNET and Ars Technica reported that Amazon is pushing back because it believes the DOR’s request violates consumers’ rights under the First Amendment and the Video Privacy Protection Act. In its complaint, Amazon argues that there is “no discernible need” for state tax collectors to know the specific items consumers purchase on its website, stating that the information that Amazon has already handed over — a list of items and “the ZIP code to which the item[s] were shipped” — is sufficient to determine whether the company is in compliance with the state’s tax laws. Amazon fears that full disclosure of consumers’ purchase options would “chill the exercise of customers’ expressive choices” and reduce the company’s overall sales. However, the DOR may consider this information necessary for identifying “residents [who] are skirting paying their sales taxes” on Amazon items, which are subject to state use taxes.

Google Introduces the Government Requests Tool, Paving the Way for Increased Transparency

On April 20, 2010, Wired and the Electronic Frontier Foundation reported the launch of Google’s new feature, the Government Requests Tool. The tool discloses the number of times that individual governments around the world have asked Google to remove content from its websites for reasons other than copyright violations, as well as the number of user information requests. Though far from complete — it does not report some user information requests such as those tied to national security investigations and lacks information on “the number of people named in the requests, whether Google fought the request, or which products the requests apply to” — Google suggests the tool “will add to the long-running debate about how much power law enforcement and governments should have to see what citizens do online.”

First Draft of ACTA Released, Revealing Measures Intended to Curb Online Piracy

On April 21, 2010, Ars Technica reported the release of the first official draft of the Anti-Counterfeiting Trade Agreement (ACTA). The Electronic Frontier Foundation notes that ACTA, which originally had been portrayed as an effort to prevent the circulation of physical counterfeit goods, now extends more broadly to cover copyright and the Internet. The ACTA draft contains a number of provisions that extend “beyond those agreed in the 1994 Agreement on Trade Related Aspects of Intellectual Property and the 1996 WIPO Copyright Treaty and Performances and Phonograms Treaty.” First, Internet service providers or Internet intermediaries around the world would be obligated to adopt policies that “address the unauthorized storage or transmission of materials protected by copyright.” This would encourage countries to require that ISPs engage in measures such as Internet disconnection and website blocking to address piracy. Second, the United States’ DMCA technical protection measures (TPM) legal framework would apply globally. This would impose a ban on TPM circumvention and circumvention devices, criminalizing even some otherwise fair uses. Third, criminal sanctions may extend to cover a wide range of non-commercial activities under the ACTA’s “broad definition of ‘commercial scale’.” Previous leaks of the ACTA and bracketed areas in the draft indicate that a number of disagreements still exist between the negotiating countries, thus the treaty terms are likely to change in the upcoming months.

Posted On Apr - 25 - 2010 Comments Off READ FULL POST
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