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In Response to Ruling by European Court of Justice, Netherlands Bans Unauthorized Downloading of Copyrighted Material
By Andrew Spore – Edited by Travis West

ACI Adam BV v. Stichting de Thuiskopie

In response to an order issued by the European Court of Justice (“ECJ”), the Netherlands has banned the unauthorized downloading of copyrighted material. The Dutch government previously had allowed such downloading for personal use. The ECJ held that, because the law “makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources,” it could not be tolerated.

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Flash Digest: News In Brief
By Olga Slobodyanyuk

Amici urge the Ninth Circuit to reconsider its ruling in the “Innocence of Muslims” case

Record companies sue Pandora for royalties on songs made before 1972

Alleged Heartbleed hacker arrested

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Specific Facts Supporting Indirect Infringement Required for Software Supplier to Obtain Declaratory Judgment Against Patentee Suing End Users
By Geng Chen – Edited by Ashish Bakshi

Microsoft Corp. v. DataTern, Inc., No. 13-1184 (Fed. Cir. Apr. 4, 2014)

The Federal Circuit held that Microsoft and SAP had standing to bring invalidity and noninfringement declaratory judgment actions against DataTern, based on DataTern’s previous lawsuits against those companies’ software customers for direct patent infringement, but only to the extent that those direct infringement claims also established a controversy on issues of contributory and induced infringement.

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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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Governor Schwarzenegger’s Video Game Act Terminated by the Ninth Circuit
By Brittany Blueitt- Edited by Anna Lamut

Video Software Dealers Assoc. v. Schwarzenegger
February 20, 2009, Case No. 07-16620
Opinion

The United States Court of Appeals for the Ninth Circuit affirmed the order of the United States District Court for the Northern District of California, enjoining the enforcement of an Act that imposed a mandatory labeling requirement for all “violent” video games and prohibited the sale of such games to minors. 

The Ninth Circuit held that the Act posed a presumptively invalid content-based restriction on speech in violation of the First Amendment of the United States Constitution. The Ninth Circuit also held that the Act’s labeling requirement constituted unconstitutionally compelled speech because it did not require disclosure of purely factual information, but required the carrying of the State’s opinion as to the nature of the video game.  In so holding, the Court noted that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”

Briefs are available here. 

The Wall Street Journal highlights that the state, in defending the law, argued that violence and sex should be governed by analogous prohibitions: the government can prohibit the sale of explicit pornography to minors, and so it should also be able to limit the sale of ultra-violent video games.

Ars Technica notes that should this case reach the Supreme Court, it is unlikely that the Court will discover anything that the court of appeals failed to notice. 

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Posted On Feb - 28 - 2009 Comments Off READ FULL POST

Pennsylvania District Court Dismisses Boring v. Google, Inc.
By Aaron Dulles – Edited by Jay Gill

Boring v. Google, Inc.
Western District of Pennsylvania, February 17, 2009, No. 08-694
District Court Memorandum Opinion

A magistrate judge in the Western District of Pennsylvania dismissed all claims by Aaron and Christine Boring against Google for photographs taken of the Borings’ house and pool for use in the Street View feature of Google Maps. The Borings had filed suit in April 2008 after discovering pictures of their house on Google’s Street View. They noticed that the pictures were taken from their unpaved driveway, which had allegedly been marked with signs reading “Private Road” and “No Trespassing.”

Law.com cites EFF lawyer Kevin Bankston as stating that Google might, in some cases, be held liable for the actions of their Street View photographers. Calling the lawsuit silly, blogger Eric Goldman was nonetheless concerned that the magistrate judge appeared to punish the Borings for bringing increased attention to themselves by filing suit publicly. InformationWeek discussed the judge’s reasoning, reporting that the Borings had not used Google’s own opt-out procedure before filing suit. PlexLex notes that a side effect of the lawsuit is that news agencies’ use of the photos of the Borings’ property has been rendered more permissible as fair use of copyrighted material.

The Pittsburgh Metblogs raises the question of why Google is under fire in light of the amount of publicly available information on the Allegheny County website, and CNET News notes that Google has been under criticized for their Street View photography before.

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Posted On Feb - 25 - 2009 Comments Off READ FULL POST

Motion to Keep Secret the Identities of Alleged Copyright Infringers Denied: State University of New York at Albany Forced to Reveal Students’ Identities
By Tyler Lacey – Edited by Jay Gill

Arista Records LLC v. Does 1-16
N.D.N.Y., February 18, 2009,
No. 1:08-CV-765
Order

On February 18, 2009, United States Magistrate Judge Randolph F. Treece of the Northern District of New York denied a motion to quash a subpoena that would force the State University of New York at Albany (SUNYA) to reveal the identities of 16 students (“Doe Defendants”) alleged to have illegally shared music files.

The defendants raised four claims: “(1) the Subpoena is an infringement of their First Amendment Rights, (2) the Court lacks personal jurisdiction over them, (3) the Complaint fails to state a cause of action; and, (4) the joinder of all Doe Defendants into this single action is improper.” The court ruled against the students on all four of these arguments. The court dismissed the students’ First Amendment claim to the right to privacy by declaring that the “modest First Amendment right to remain anonymous when there is an allegation of copyright infringement” must be balanced against a “copyright owner’s right to disclosure of the identity of a possible trespasser of its intellectual property interest,” and found that in this case the balance weighed on the side of disclosure. The court found the students’ personal jurisdiction and joinder challenges unpersuasive, as their merits cannot be properly determined while identities of the defendants had not yet been disclosed. It similarly denied the claim that the complaint failed to state a cause of action, holding that this claim is essentially a 12(b)(6) motion. Such a motion, the court reasoned, is procedurally improper at this point, as no complaint has been officially served on the Doe Defendants.

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Posted On Feb - 23 - 2009 Comments Off READ FULL POST

Non-Precedential ‘Win’ for Record Labels: 9th Circuit Denies Attorney’s Fees for Voluntarily Dismisse Defendant
By Sharona Hakimi – Edited by Aaron Dulles

Interscope Records v. Leadbetter, February 6, 2009,  No. 07-3582
Court of Appeals Ruling
District Court Ruling

On February 6, 2009, the Ninth Circuit Court of Appeals affirmed the decision of a W.D. Washington District Court denying defendant Dawnell Leadbetter’s motion for attorney’s fees and costs. In December of 2006 a group of recording companies voluntarily dismissed their claims against Leadbetter in an online file-sharing copyright infringement suit. Leadbetter subsequently sought attorney’s fees, which the court denied on the grounds that Leadbetter was not a “prevailing party.”

The Copyright Act, 17 U.S.C. § 505, provides that a prevailing party may be entitled to reasonable attorney’s fees in a copyright action. However, because the claims against Leadbetter were voluntarily dismissed without prejudice, the Court of Appeals found that she was not entitled to attorney’s fees. The district court and appellate court both looked to the standard established in Buckhannon Board & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001), that a “prevailing party” is one who has received judgment on the merits or “settlement agreements enforced through a consent decree.” The district court reasoned that because the record companies claims were dismissed without prejudice, Leadbetter could not be considered a “prevailing party.”

The EFF filed an amicus curiae brief in support of Leadbetter’s motion for attorney’s fees. In their brief, they argued that these record labels, which are all members of the RIAA, are participants to a larger campaign that has “entangled innocent internet users in its litigation dragnet.” By awarding attorney’s fees in this case, the EEF stated the court would help “balance the overall equities in the RIAA’s nationwide campaign.”  The EEF contends that if individuals like Dawnell Leadbetter have to pay out of pocket for her fees, future innocent litigants will not stand up to the recording industry.  Instead, the EEF believes the public will “suffer under the misperception that such misguided theories are, in fact, the law.”

Though triggering a flurry of postings by anti-RIAA bloggers, this case is in fact non-precedential and unpublished. It is unclear if this decision will play any role of actual significance in future online copyright infringement actions. Even so, according to Ben Schaffer of Copyright and Campaigns, this case gave a “significant procedural victory to the recording industry,” sending a “message to defendants in such p2p cases that they should be forthcoming with information about infringing activity on their ISP accounts early in litigation.”
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Posted On Feb - 14 - 2009 Comments Off READ FULL POST

Federal Circuit, in a 2-1 Decision, Affirms Nonobviousness Determination in Medical Supply Case; Split Highlights Difficulty of Claim Construction
By Chris Kulawik –- Edited by Stephanie Weiner

Kinetic Concepts, Inc. v. Blue Sky Medical Group, Inc.
Federal Circuit, February 2, 2009, Nos. 07-1340, 07-1341, & 07-1342
Slip Opinion

In a 2-1 split, the Federal Circuit affirmed a nonobviousness determination in a contentious dispute between medical technology companies. The case turned on the construction of the claim term “treating a wound” – specifically, the meaning and scope of “wound.”  The majority adopted the Plaintiff-Cross Appellants’ definition of “wound” as meaning only surface tissue damage, rejecting the Defendant-Appellants’ argument that the “plain and ordinary meaning” of the term would include some kinds of internal damage.  Judge Dyk dissented because he would have interpreted the term more broadly.

PatentlyO provides a brief recap, noting that this case highlights how unpredictable claim construction, which is required in nearly every patent case, can be.

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Posted On Feb - 8 - 2009 Comments Off READ FULL POST
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In Response to Rulin

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Flash Digest: News I

By Olga Slobodyanyuk Amici urge the Ninth Circuit to reconsider its ...

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Specific Facts Suppo

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DOJ Indicts Nine for

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European Court of Ju

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