A student-run resource for reliable reports on the latest law and technology news
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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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D.C. Circuit Denies FCC Jurisdiction to Mandate Net Neutrality
By Tyler Lacey – Edited by Jad Mills

Comcast Corp. v FCC, No. 08-1291 (D.C. Cir., Apr. 6, 2010)
Slip Opinion

The United States Court of Appeals for the District of Columbia Circuit vacated an order issued by the Federal Communications Commission (FCC), which had asserted jurisdiction over Comcast’s network management policies and had ordered Comcast to cease discriminating against peer-to-peer network traffic.

The D.C. Circuit held that the FCC does not have ancillary jurisdiction over Comcast’s Internet service under the language of the Communications Act of 1934, which grants the FCC the power to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with [the Act], as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i). The Court did not find a sufficient statutory basis in the FCC’s mandate to provide “rapid, efficient” communications services to authorize it to regulate the behavior of Internet service providers.

Internet Evolution describes the Court as having “managed to completely destroy the very foundation upon which the FCC has based its net neutrality rules” and questions the necessity of any internet regulation at all. The Wall Street Journal argues that this decision “deal[s] a blow to big Web commerce companies and other proponents of ‘net neutrality.’” However, Wired reports that the FCC remains optimistic that it can still achieve its goal of “preserving an open internet” because the “court in no way disagreed with the importance of preserving a free and open internet [n]or did it close the door to other methods for achieving this important end.” Comcast responded to the Court’s decision by declaring that it “remains committed to the FCC’s existing open Internet principles, and . . . will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.” (more…)

Posted On Apr - 11 - 2010 Comments Off READ FULL POST

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
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