A student-run resource for reliable reports on the latest law and technology news

Federal Circuit Flash Digest

By Kayla Haran – Edited by Ken Winterbottom

Court Finds Negative Claim Limitation Meets Written Description Requirements

International Trade Commission’s Expansion of its Jurisdiction to Include Electronic Transmissions of Digital Data Ruled Improper

Court Holds That Patent Trial and Appeal Board Did Not Deny Procedural Rights in Review



Federal Circuit Flash Digest

By Patrick Gallagher – Edited by Ken Winterbottom

TOR Project Head Alleges FBI Paid Carnegie Mellon for Hack in Connection with Silk Road 2.0 Investigation

DOJ Decides Not to Support FCC in Efforts to Preempt States Laws Limiting Municipal Broadband Projects

D.C. Court of Appeals Permits Continuation of Bulk Domestic Phone Data Collection



Senate passes Cybersecurity Information Sharing Act

By Frederick Ding — Edited by Yunnan Jiang

On October 27, 2015, the Senate passed the Cybersecurity Information Sharing Act (CISA), which enables companies to share cyber threat indicators with each other and the federal government, and immunizes them from liability for sharing under the act. Tech companies and journalists have vocally expressed opposition to the act, which may enable companies to share users’ personal information.



Senators push bill protecting interstate trade secrets amidst concerns over trolling

By Bhargav Srinivasan – Edited by Olga Slobodyanyuk

The Senate Judiciary Committee is deliberating a bill to provide US companies with extra legal protections for trade secrets for products or services used in interstate commerce. However, some legal scholars believe the bill creates strong potential for companies to engage in “trade secret trolling” by falsely accusing rivals of stealing trade secrets in order to stall their business. The ensuing debate now weighs the intent of the bill with the potential for legal bullying.



Federal Circuit Flash Digest

By Keke Wu – Edited by Yunnan Jiang

Federal Circuit Rejects-in-part the District Court’s Claim Construction

No Jurisdiction to Claim Reputational Harm after Settlement

Federal Circuit Affirms-in-part PTAB in Belden vs. Berk-Tek


Court Excludes Litigation Fees from Calculation of Damages under DMCA § 512(f).
By Debbie Rosenbaum – Edited by Gary Pong

Lenz v. Universal Music Corp., Case No. 5:07-cv-03783-JF (N.D. Cal., Feb. 25, 2010)
Slip Opinion
(Hosted by the Citizen Media Law Project)

On February 25, 2010, Judge Fogel for the Northern District of California held that a plaintiff suing over a wrongful Digital Millennium Copyright Act (“DMCA”) takedown notice can only recover for damages that were proximately caused by said notice.  This effectively limits the plaintiff’s recovery to attorney’s fees for pre-litigation activities such as the filing of the DMCA counter-notification.  To recover for attorney’s fees incurred in the actual § 512(f) suit, the plaintiff’s only recourse is in 17 U.S.C. § 505 of the Copyright Act – providing that “the court in its discretion may allow the recovery of full costs … [or] reasonable attorney’s fee to the prevailing party.”  In so holding, the court  may actually be discouraging 512(f) plaintiffs from bringing suit by limiting their compensable damages.

Ars Technica and Copyrights & Campaigns provide a general overview of the decision.  The Citizen Media Law Project offers briefs of all portions of the case. (more…)

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

For in rem Jurisdiction, Ninth Circuit Holds That Domain Names Are Located Where the Registry is Located
By Elizabeth Akerman – Edited by Gary Pong

Office Depot, Inc. v. Zuccarini, Case No. 07-16788 (9th Cir., Feb. 26, 2010)
Slip Opinion

The U.S. Court of Appeals for the Ninth Circuit affirmed the decision by the District Court for the Northern District of California to grant DS Holdings’ motion to appoint a receiver to auction off Zuccarini’s domain names and use the proceeds to satisfy an earlier judgment against him.

To arrive at its conclusion, the court held that under California law “domain names are intangible property subject to a writ of execution” and that “domain names are located where the registry is located for the purpose of asserting quasi in rem jurisdiction.” The court also noted in dicta that for in rem jurisdiction, domain names are located where the relevant registrar is located.

The Seattle Trademark Lawyer provides an overview of the case and the Technology & Marketing Law Blog provides an analysis of the decision. (more…)

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

By Conor H. Kennedy
Editorial Policy

In Citizens United v. Federal Election Commission (“Citizens United”), the Supreme Court nullified a major provision of campaign finance legislation.  The Federal Election Commission (“FEC”) can no longer regulate the mandated disclosure, allowable sources, or contribution limits of corporations’ independent political advocacy.

Prominent legal scholar Lucian Bebchuk argues that the “insiders” who manage companies are now empowered to use direct expenditures to legally entrench themselves atop publicly traded companies, their shareholders’ objections notwithstanding.  From such a powerful vantage, these “insiders” have strong incentives to spend their general treasury funds on political advertising to help candidates who favor legislation benefiting them as a class.

Whether and how “insiders” respond to these incentives is currently up for debate.  Still, increasingly weak shareholder rights or abstract reputational costs are now the sole disciplining factors preventing corporations from deluging our political speech channels with direct expenditures.  It therefore seems more likely than not that business insiders will take full advantage of the emerging legal landscape by significantly increasing political expenditures through the general treasury funds they control.

Accordingly, reform advocacy groups have redoubled their calls to bolster the FEC’s approach to offline coordination standards.  The offline coordination standards govern the degree to which corporations can orchestrate their political spending on television and radio advertising with specific candidates or parties.  The courts have rejected the FEC’s prior offline coordination standards, but not because of empirical evidence that specific advertisements have been actually coordinated.  As noted in the latest court opinion overturning the FEC’s offline coordination regulations, “no such evidence has yet been identified[, but that] is far from a guarantee that no such evidence will develop in the future.”

Advocacy groups like the Campaign Legal Center are picking up where court oversight left off, both by testifying in front of the FEC to stave off the prospect of substantial coordination and by urging Congress to write its own, stronger coordination standards to compel the FEC to act. This Comment hopes to contribute to the advocacy effort by suggesting that Congress and the FEC should consider altering online coordination standards as well.

The FEC’s online coordination standards were not challenged or overturned in the latest round of court review, even though they exempted any expenditures on political messaging distributed through free online services like YouTube.[i] A 2009 Columbia Law Review student comment highlighted the potential for abuse of virtually unregulated online political expenditures.

In the next few election cycles, the loci of political news and commentary will continue to migrate online.  The groups influencing that process are likely to allocate their investments toward ventures which have worked in the past.  The “Yes We Can” web video, commonly known as one of the most successful and innovative online expenditures in the 2008 campaign, bares the trappings of the political advertising we can anticipate in the near future: an unregulated third party funded the production of a web video which a candidate then spread to millions of supporters.

There is no reason to believe that the “Yes We Can” video was coordinated with the Democratic Party or the Obama campaign. However, one might expect that a prolonged, systematic effort to emulate its production and distribution model would foreseeably lead corporate spenders to take advantage of the non-regulation of coordinated online expenditures.  After all, when a corporation can coordinate one type of expenditure (i.e., expenditures distributed on free internet services) guaranteed to mesh with its preferred candidate or party’s dynamic efforts to shape the 24-hour news cycle, but cannot coordinate other expenditures (i.e., offline expenditures), the corporation has an incentive to move its money toward the coordinated expenditure.  Now that Citizens United has provided additional incentives for professional managers to invest their general treasury money on campaign expenditures, they also have additional incentives to research the most effective legal ways in which to do so.  We are therefore likely to witness a growing effort to exploit the online coordination standard.

This week, the FEC is hearing testimony about proposed post-Citizens United coordination standards.  Once the FEC sets a baseline by promulgating new standards, Congress is prepared to readjust that baseline to its own liking.  I argue that both entities should make preemptive efforts to regulate now instead of sweeping up after an election cycle of substantial online coordination. (more…)

Posted On Mar - 3 - 2010 5 Comments READ FULL POST

Federal Circuit Rules for Crocs on Appeal in ITC Patent Dispute
By Sharona Hakimi – Edited by Steven Primeaux

Crocs, Inc. v. ITC, Appeal 2008-1596 (Fed. Cir. Feb. 24, 2010)
Slip Opinion

On February 24, 2010, the U.S. Court of Appeals for the Federal Circuit reversed and remanded a patent decision by the U.S. International Trade Commission concerning Crocs shoes. In what has become a trend in high-profile design patent cases, Judge Rader provided guidance on claim construction and the application of the ordinary observer test. Rader held that Crocs’ utility patent No. 6,993,858 (“the ’858 patent”) was not obvious and that the three other companies remaining in the litigation did in fact infringe Croc’s design patent No. D517,789 (“the ’789 patent”). The Federal Circuit remanded the case to the ITC to determine appropriate remedies.

The case arose in 2006 when Crocs, the maker of colorful plastic clog footwear, sued eleven companies for allegedly copying its shoe designs. Three companies remain in the litigation: Double Diamond Distribution, Ltd., the maker of Dawg shoes; Holey Soles Holdings, Inc.; and Effervescent, Inc., which makes Waldies Comfy Clogs. The ITC had held that Crocs’ ’858 patent for “breathable footwear pieces” was invalid for obviousness and that the companies did not infringe the ’789 patent because there were only “minor differences.” On appeal, the Federal Circuit reversed.

Inventive Step blog provides a legal analysis of the court’s decision, Law.com provides a summary of the case, and David Musker of Class99.com offers a brief overview of Judge Rader’s decision. (more…)

Posted On Mar - 1 - 2010 Comments Off READ FULL POST

By Davis Doherty

Google Executives Answer for the Sins of Their Users in Italy

PCWorld reports that on Feburary 24, an Italian court convicted three Google executives for violating privacy laws, handing down six-month suspended sentences to each. The ruling arose after a video depicting the bullying of a boy with Down Syndrome was posted to Google Video Italia; Google removed the clip within hours of receiving a complaint from the Italian police, two months after it was first uploaded. Under Italian law, Internet content providers, but not Internet service providers, may be held liable as publishers of user-generated content.

Ars Technica reports on criticism that the decision strikes a blow to Internet freedom. As the New York Times explains, some observers connect the conviction to Italian Prime Minister Silvio Berlusconi’s interest in seeing a potential competitor to his media monopoly hindered. The executives plan on appealing the decision.

Businesses Give Yelp a Negative Review, File Class Action

Two class action law firms filed a lawsuit against Yelp Inc. on February 23 on behalf of a nationwide class of small businesses. The plaintiffs allege that Yelp, whose website allows users to post reviews of local businesses, “runs an extortion scheme in which the company’s employees call businesses demanding monthly payments, in the guise of ’advertising contracts,’ in exchange for removing or modifying negative reviews appearing on the website.” The WSJ Law Blog discusses the complaint, and the Bits Blog at the New York Times provides a response from Yelp. The case, Cats and Dogs Animal Hospital Inc. v. Yelp Inc., is currently pending in the U.S. District Court for the Central District of California.

Strike One for ACTA?

On February 21, BoingBoing and Computerworld reported on the alleged leak of a draft chapter from the secretive negotiations surrounding the Anti-Counterfeiting Trade Agreement (“ACTA”). Included in the alleged draft is a call for ACTA signatories to establish third party liability for infringement of intellectual property rights, which would allow rights-holders to bring suit against an Internet service provider who “knowingly and materially” aids infringement. The document calls for a requirement that ISPs implement user policies along the lines of a “three strikes rule,” which allows a provider to terminate a user’s Internet access after sending two warning letters. The European Commission expressed opposition to any agreement that would create an obligation to disconnect users.

Posted On Feb - 28 - 2010 Comments Off READ FULL POST
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