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DOJ Indicts Nine for Zeus Malware Theft From Online Bank Accounts
By Emma Winer – Edited by Sheri Pan

United States v. Penchukov

Last week, the Department of Justice released a previously sealed indictment against alleged conspirators in an international scheme that stole millions of dollars from online bank accounts. The conspirators allegedly infected thousands of computers with “Zeus” malware, which captured passwords, bank account numbers, and other online banking information. Two of the defendants were arraigned in Nebraska after being extradited from the United Kingdom.

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European Court of Justice Invalidates Data Retention Directive
By Paul Klein – Edited by Alex Shank

In a preliminary ruling requested by courts in Ireland and Austria, the European Court of Justice found that Directive 2006/24/EC was invalid. The Grand Chamber recognized the legitimacy of retaining telecommunications data as a means to combat serious crime and terrorism, but it ultimately held that the far-reaching scope of the Directive disproportionately affected individual privacy under the Charter of Fundamental Rights of the European Union.

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Google to Supreme Court: Snagging Data from Unsecured Wi-Fi is Perfectly Legal
By Michael Shammas – Edited by Mary Schnoor

Google has filed a petition for a writ of certiorari asking the Supreme Court to label its Street View cars’ collection of unencrypted Wi-Fi traffic legal, appealing the Ninth Circuit’s decision that Google may have violated the federal Wiretap Act. Google believes unencrypted Wi-Fi traffic should be classed as “radio communications” accessible to the public.

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Mozilla Announces Resignation of Recently Appointed CEO Brendan Eich Following Controversy over Gay Marriage Opposition
By Sheri Pan – Edited by Corey Omer

On April 3, Mozilla Corporation (“Mozilla”), a subsidiary of the non-profit Mozilla Foundation most widely known for producing the Firefox browser, announced that its CEO of less than two weeks, Brendan Eich, has resigned, after pressure from Mozilla employees, bloggers, and developers who opposed his appointment in light of a $1000 donation that he made in 2008 in support of Proposition 8, a ballot measure that sought to ban gay marriage in California.

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Flash Digest: News In Brief
By Emma Winer

Third Circuit Vacates Hacker Conviction for Improper Venue

French Unions and Employers Agree to Curb After-Hours Work Email

Limited Sale of Google Glass Slated For April 15

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Federal Circuit Equates Covenants Not to Sue for Patent Infringement with Unconditional Licenses

By Debbie Rosenbaum – Edited by Evan Kubota
TransCore, LP v. Electronic Transaction Consultants Corp., No. 2008-1430, April 8, 2009
Opinion

On April 8, 2009, the United States Court of Appeals for the Federal Circuit affirmed a district court’s grant of summary judgment, which held that an unconditional “covenant not to sue” has the same effect as an unconditional “license” for purposes of patent exhaustion.

In 2000, TransCore settled a patent infringement action against Mark IV.  The settlement agreement required Mark IV to pay $4.5 million in exchange for TransCore signing an unconditional covenant not to sue and releasing all existing claims.

The suit here was initiated several years later.  TransCore sued Electronic Transaction Consultants (ETC) for patent infringement based on ETC’s use of a system sold by Mark IV.  Three of the allegedly infringed patents were subject to the covenant not to sue with Mark IV; the fourth patent was related but had not been issued when the covenant was signed.  The United States District Court for the Northern District of Texas granted summary judgment against TransCore.

On appeal, the Federal Circuit affirmed the grant of summary judgment on the grounds of patent exhaustion (with respect to the three patents listed in the covenant not to sue) and legal estoppel (with respect to the newly-issued patent).  The Federal Circuit agreed with the district court that Quanta Computer, Inc. v. LG Electronics, Inc., 128 S. Ct. 2109 (2008), compelled the conclusion that “an unconditional covenant not to sue authorizes sales by the covenantee for purposes of patent exhaustion.”

(more…)

Posted On Apr - 19 - 2009 Comments Off READ FULL POST

Federal Circuit Holds That Later-Developed Alternative Manufacturing Processes May Be “Patentably Distinct” from Their Related Products

By Tyler Lacey – Edited by Evan Kubota
Takeda Pharmaceutical Co. v. Doll, April 10, 2009, No. 2008-1131
Opinion

On April 10th, the United States Court of Appeals for the Federal Circuit vacated and remanded the decision of the United States District Court for the District of Columbia, holding that manufacturing processes developed after a product is patented may be “patentably distinct” from their related products.

In a non-unanimous opinion written by Circuit Judge Rader, the Federal Circuit held that “the relevant time frame for determining whether a product and process are ‘patentably distinct’ should be at the filing date of the [process] application.”  If there exists only one process to manufacture a product, the process cannot be patented separately from the product because the two are substantially co-extensive.  However, if multiple, materially different processes for making a product existed at the time of the product’s invention, then those processes are distinct from the product and can therefore be patented separately. See Manual of Patent Examining Procedure §806.05.  This decision now allows for processes discovered after the product’s invention to be considered “patentably distinct,” defeating any patent invalidity claim based on the double patent doctrine.  The double patent doctrine prevents a patentee from obtaining extra exclusivity time for a single invention by obtaining two patents for it. 

Peter Zura of the 271 Patent Blog summarizes the opinion. The Patent Prospector criticizes the decision arguing that the double patent issue was “resolved badly” and asserting that the court did not “[think] through the implications of its ruling.”  Patently-O provides a summary of the original district court opinion. (more…)

Posted On Apr - 18 - 2009 Comments Off READ FULL POST

By Caity Ross

British Web Tracking Tool Violates European Union Privacy Laws

This Tuesday, the European Union issued a legal warning against Britain for not applying EU data privacy rules to Phorm, a new advertising technology that tracks the Web movements of internet users. BT, Britain’s largest service provider, used Phorm without its customers’ consent during 2006 and 2007. As reported in the New York Times, the European telecommunications commissioner stated that the “European privacy rules are crystal clear: a person’s information can only be used with their prior consent.” The Associated Press describes further actions the European Commission may take if Britain does not adequately enforce European privacy laws.

Proposed Bill Would Remove Sales Tax “Loophole” for Online Purchases

CNET News reports that a congressional bill expected to be introduced early next week “would rewrite the ground rules for mail order and Internet sales.” Under existing law, consumers are responsible for reporting and paying the amount owed for online and mail order purchases under their home state’s sales tax. According to CNET, “California’s Board of Equalization estimates the state lost $1.34 billion in 2003 because residents aren’t paying use taxes–and attributes $208 million of that to online purchases.” The proposed bill could incorporate the Streamlined Sales Tax Agreement, which encourages states to simplify their sales tax codes in order to help online retailers collect sales taxes more easily.

Swedish Anti-File Sharing Law Decreases Traffic, Increases Legal Downloads

Enforcement of Sweden’s Intellectual Property Rights Enforcement Directive (IPRED) law began on April 1, 2009. The Local notes that the law resulted in a 30% decrease in online traffic, as well as a doubling of legal music downloads. T3 reports that the in response to the IPRED enforcement, The Pirate Bay plans to offer a Virtual Private Network service that will make internet users more anonymous.

Posted On Apr - 17 - 2009 Comments Off READ FULL POST

District Court Upholds First Amendment Challenge to the URAA
By Caitlyn Ross – Edited by Stephanie Weiner

Golan v. Holder
D. of Colorado, April 3, 2009, No. 01-cv-01854-LTB
Memorandum Opinion (hosted by the Stanford Fair Use Project)

On April 3rd, the United States District Court for the District of Colorado granted plaintiff’s motion for summary judgment, upholding the First Amendment challenge to Section 514 of the Uruguay Round Agreements Act (URAA), codified in 17 U.S.C. §104A. The case was on remand from Golan v. Gonzales (10th Cir.), which instructed the District Court to evaluate the First Amendment implications of restoration.  Judge Lewis T. Babcock held that §104A, which restored copyright in certain foreign works that had previously fallen into the public domain, cannot survive First Amendment scrutiny.

The URAA restored the US copyrights of foreign authors whose works entered the public domain for any reason other than the expiration of a copyright term in the work’s country of origin. The Tenth Circuit determined that the law “altered the traditional contours of copyright protection” by restoring copyrights in works of foreign origin that were previously in the public domain in the United States and therefore the law was subject to First Amendment scrutiny. The court held that once the works entered the public domain, the plaintiffs acquired a vested interest in the speech. On remand, the District Court – which had previously upheld § 104A – held that this provision of the URAA violates the First Amendment insofar as it suppresses parties’ rights to continue using works they had exploited when those works were in the public domain.

According to Anthony Falzone of the Stanford Fair Use Project, which is litigating the dispute, this is “the first time a court has held any part of the Copyright Act violates the First Amendment.” The Technology & Marketing Law Blog provides an overview of the case. (more…)

Posted On Apr - 13 - 2009 Comments Off READ FULL POST

Second Circuit Reverses Dismissal of Trademark Infringement Suit Against Google
By Debbie Rosenbaum – Edited by Stephanie Weiner

Rescuecom v. Google
Second Circuit, April 3, 2009, 06-4881-cv
Opinion
(hosted by EFF)

On April 3, 2009, the Court of Appeals for the Second Circuit vacated the District Court for the Northern District of New York’s dismissal of a trademark infringement suit against Google by Rescuecom, Corp., a computer repair firm.

At issue was Google’s AdWords program, which allows advertisers to purchase ads based on the appearance of another (often competing) company’s name in search terms, thus allowing the purchaser’s ads to appear in the search results alongside links to the searched-for company. Also in dispute was Google’s Keyword Suggestion Tool, which recommends potential keywords to advertisers for use in the AdWords program. The key issue was whether Google’s use of Rescuecom’s trademark in both programs constitutes a “use in commerce” under § 1127 of the Lanham Act.

Ars Technica explains that, having distinguished away precedent, the court determined that Google was appropriating trademarked terms. Google’s claim – that it was only using these terms internally as part of its ad-placing algorithm – was dismissed as disingenuous because its Keyword Suggestion Tool was specifically suggesting trademarks to potential ad buyers. The Wall Street Journal Law Blog notes that this may add some clarity to the jumbled law on the use of keywords. (more…)

Posted On Apr - 11 - 2009 Comments Off READ FULL POST
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DOJ Indicts Nine for

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European Court of Ju

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Google to Supreme Co

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Mozilla Announces Re

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By Emma Winer Third Circuit Vacates Hacker Conviction for Improper Venue The ...