A student-run resource for reliable reports on the latest law and technology news
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The Court of Justice of the European Union Finds the Harbor No Longer Safe

Written by: Ann Kristin Glenster - Edited by: David Nathaniel Tan

This fall, the Court of Justice of the European Union delivered a landmark ruling,  holding that the Safe Harbor Agreement on the handling of personal data by U.S. companies in Europe was invalid. This article will give a brief overview of the case, and explore the salient issues to which the European Court took umbrage. Finally, it will attempt to sketch out some possible consequences of the ruling, and the options that now face E.U. and U.S. legislators.

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Flash Digest: News in Brief

By Yiran Zhang – Edited by Olga Slobodyanyuk

Senators Introduce a Bill which Requires Social Media Companies to Report Terrorist Activity

New EU Copyright Rules Left Possibility for Google Tax

COP21 Reached an “Ambitious and Balanced” Deal on Climate Change

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Flash Digest: News in Brief

By David Nathaniel Tan – Edited by Adi Kamdar

Software Pirate Settles Suit Via YouTube

After Paris Attacks, FCC Chairman Calls for Expanded Wiretap Laws

Hoverboards Declared Illegal in New York City

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Belgian Court Demands that Facebook Stop Tracking Non-Members

By Mila Owen – Edited by Kayla Haran

The Belgian Privacy Commission requested a cessation order against Facebook regarding their practice of placing “datr” cookies on devices of non-Facebook users to track activity on other Facebook pages or on pages containing the “like” or “share” button. The court ruled that this tracking violates the Belgian Privacy Act because it amounts to the collection and “processing of personal data.”

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Facebook not liable for discrimination against Sikhs in India

By Ann Kristin Glenster – Edited by Yaping Zhang

By dismissing Sikhs for Justice Inc.’s case against Facebook for discrimination by blocking the group’s page in India, the United District Court of Northern California maintains the neutrality of interactive online providers and exempts them from liability under Title II of the Civil Rights Act.

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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

District of Massachusetts reduces jury-awarded damages by 90 percent in copyright infringement lawsuit
By Abby Lauer – Edited by Jad Mills

Sony BMG Music Entertainment et. al. v. Tenenbaum, No. 07cv11446-NG (D. Mass. July 9, 2010)
Slip Opinion

In a decision by Judge Nancy Gertner, the United States District Court for the District of Massachusetts reduced the damages awarded by a jury to members of the recording industry in a copyright infringement lawsuit. After finding defendant Joel Tenenbaum guilty of illegally downloading copyrighted music, the jury awarded statutory damages of $22,500 per song, $675,000 total for 30 songs. Judge Gertner held that the damages award should be reduced to $2,250 per song or $67,500 total. In so holding, Judge Gertner maintained that the jury’s award was far greater than necessary to serve the government’s interest in deterring copyright infringement and compensating copyright owners whose rights have been infringed. She argued that Congress never intended the extraordinary damages provisions of copyright law to apply to situations where a defendant did not receive pecuniary benefit from his infringing activities.

Ars Technica provides an overview of the case. The Electronic Frontier Foundation commends the court’s decision. (more…)

Posted On Jul - 14 - 2010 Comments Off READ FULL POST

Use of Common Words in Trademarks Can Still Dilute
By Harry Zhou – Edited by Jad Mills

Visa Int’l Serv. Ass’n v. JSL Corp., No. 08-15206 (9th Cir. Jun. 28, 2010)
Slip Opinion

On June 28, 2010, the Ninth Circuit affirmed the U.S. District Court for the District of Nevada’s grant of summary judgment for Visa International Service Association (“VISA”) on its trademark dilution claim against JSL Corporation (“JSL”).

Chief Judge Alex Kozinski delivered the opinion, holding that JSL’s “eVisa” mark had diluted VISA’s “Visa” mark under 15 U.S.C. § 1125(c)(2)(B) (2006). The court found that JSL’s “eVisa” brand had created a situation in which two different products, namely VISA credit cards and JSL’s eVisa.com, competed for association with the word “Visa.” The court explained that although the word visa has a common meaning, the Visa mark can still be diluted by a junior user who is not using the word according to that common meaning. And since Orr did not dispute that the “Visa” mark was famous and distinctive before JSL started to use “eVisa,” the court upheld summary judgment.

Reuters provides a summary of the opinion. Seattle Trademark Lawyer briefly analyzes the court’s rationale. Eric Goldman’s Technology and Marketing Law Blog criticizes the decision. (more…)

Posted On Jul - 13 - 2010 Comments Off READ FULL POST
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