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Flash Digest: News in Brief

By Olga Slobodyanyuk

ICANN responds to terrorism victims by claiming domain names are not property

D.C. District Court rules that FOIA requests apply to officials’ personal email accounts

Class-action lawsuit brought against ExamSoft  in Illinois

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Federal Circuit Applies Alice to Deny Subject Matter Eligibility of Digital Imaging Patent

By Amanda Liverzani – Edited by Mengyi Wang

In Digitech Image Technologies, the Federal Circuit embraced the opportunity to apply the Supreme Court’s recent decision in Alice to resolve a question of subject matter eligibility under 35 U.S.C. §101. The Federal Circuit affirmed summary judgment on appeal, invalidating Digitech’s patent claims because they were directed to intangible information and abstract ideas.

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Unlocking Cell Phones Made Legal through Unlocking Consumer Choice and Wireless Competition Act

By Kellen Wittkop – Edited by Insue Kim

Unlocking Consumer Choice and Wireless Competition Act allows consumers to unlock their cell phones when changing service providers, but the underlying issue of “circumvention” may have broader implications for other consumer devices and industries that increasingly rely on software.

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SDNY Magistrate Grants Government Search Warrant for Full Access to Suspect’s Gmail Account in Criminal Investigation

By Kellen Wittkop – Edited by Travis West

In an opinion that conflicts with decisions from the DC District Court and the District of Kansas, a SDNY magistrate granted the government’s search warrant for full access to a criminal investigation suspect’s Gmail account.

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Creating full-text searchable database of copyrighted works is “fair use”
By Yixuan Long- Edited by Sarah O’Loughlin

In a unanimous opinion delivered by Judge Parker, the Second Circuit held that under the fair use doctrine universities and research libraries are allowed to create full‐text searchable databases of copyrighted works and provide such works in formats accessible to those with disabilities. The court also decided that the evidence was insufficient to decide whether the plaintiffs had standing to bring a claim regarding storage of digital copies for preservation purposes.

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Supreme Court Holds that FDA Regulation Does Not Preempt State Tort Claim
By Caitlyn Ross – Edited by Miriam Weiler

Wyeth v. Levine
Supreme Court of the United States, March 4, 2009, No. 06-1249
Slip Opinion

On March 4th, the Supreme Court of the United States affirmed the judgment of the Vermont Supreme Court, holding that federal drug labeling regulations do not preempt state failure-to-warn lawsuits.  The Supreme Court held that compliance with FDA labeling requirements did not preempt Levine’s failure-to-warn claim based on what she alleged was defective labeling of Wyeth’s anti-nausea drug Phenergan. In so holding, the Court concluded that Congress did not intend to preempt state-law failure-to-warn actions.  It also rejected Wyeth’s claim that the Court should defer to an FDA statement, made in the preamble to a 2006 regulation, that state tort suits threatened the FDA’s statutory mandate.

Briefs and relevant court documents are available here at the SCOTUS wiki.  The SCOTUS Blog provides an overview of the case. Drug and  Device Law Blog suggests that the decision does not eliminate preemption alcims, but does make them far more difficult to win.  The Wall Street Journal Law Blog features an analysis of the decision.  The Volokh Conspiracy notes a decrease in deference to agencies.

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Posted On Mar - 9 - 2009 Comments Off READ FULL POST

Maryland’s Highest Court Adopts Dendrite Standard for Unmasking Anonymous Forum Posters in Defamation Actions
By Evan Kubota –- Edited by Miriam Weiler

Independent Newspapers, Inc. v. Brodie
Court of Appeals of Maryland, February 27, 2009, No. 63
Opinion

On February 27th, the Court of Appeals of Maryland reversed a lower court’s order compelling discovery of the identities of five anonymous Internet forum posters in a defamation action. The court had granted certiorari on its own initiative.  While the court’s holding required it to consider only a pleading issue, it went on to offer guidance to lower courts in future cases involving anonymous Internet speakers in a defamation action.  In doing so, the court adopted the standard from Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

Nixon Peabody’s Digital Media/Internet Law Blog offers analysis of the opinion, concluding that the Dendrite test is “emerging as the leading test across jurisdictions in anonymous Internet speaker cases.”  Ars Technica compares this case to other unsuccessful attempts to uncover the identities of anonymous Internet posters. The Washington Post quotes Paul Alan Levy, a lawyer for the consumer advocacy group that argued the case for Independent Newspapers, who characterizes the opinion as reaffirming the First Amendment right to speak anonymously.

Citizens for Greater Centreville links to the oral arguments and appellate brief in the case.

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Posted On Mar - 6 - 2009 Comments Off READ FULL POST

Eli Lilly Granted Stay Extension, Prevents Teva’s Generic Alternative Until March 9th
By Brian Kozlowski – Edited by Anna Lamut

Eli Lilly & Co. v. Teva Pharma
Federal Circuit, February 24, 2009, No. 2009-1071
Opinion

On February 24th, the Federal Circuit affirmed two to one an order by the United States District Court for the Southern District of Indiana extending the 30-month statutory stay on FDA approval of Teva Pharmaceuticals‘ generic version of Eli Lilly‘s postmenopausal osteoporosis drug, Evista®. The stay was extended until March 9, 2009, when trial was set to begin for Lilly’s suit against Teva, in which Lilly alleged that Teva infringed four method patents.  Teva filed for and received an expedited appeal.  Judge Rader, writing for the two-judge majority with Chief Judge Michel, found that Teva “fail[ed] to ‘reasonably cooperate’” in expediting the lawsuit by altering its product last minute and because of multiple delays in producing critical discovery. Controversially, the court based its decision also on allowing Eli Lilly the time to prepare, rather then solely on the factors mandated by the statute.

Patent Docs offers a description of the case’s history, and Patently-O provides a summary of the case.

Patent Baristas notes the importance of even a short stay: Evista accounted for $1.075 billion in sales in 2008, meaning that a two-week extension could mean revenues of $41 million.

Patent Hawk’s Patent Prospector notes surprise at Judge Prost’s dissent, stating that “[f]or a court that regularly takes liberties interpreting the law, Prost strikes a pose as a religious constructionist to statute.”
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Posted On Mar - 2 - 2009 Comments Off READ FULL POST

Public Trials Should Be Made Available Via Internet
By: Debbie Rosenbaum*
Editorial Policy

File-Sharing Cases in Courts Around the World
In February, the four men behind the popular file-sharing site The Pirate Bay went to trial in Stockholm, Sweden.  They stand accused of helping millions of Internet users illegally download protected movies, music, and computer games. The defendants – Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi, and Carl Lundström – face up to two years in prison and a fine of 1.2 million kronor (US $143,529) if convicted of being accessories and conspiracy to break Swedish copyright law.  The case has made headlines not only because of the substantive legal issues, but also because Defendant Peter Sunde, co-founder of The Pirate Bay, has called for the court’s proceedings to be as open as possible. The Swedish court granted Sunde’s motion to allow coverage of the proceedings without much resistance, and SVT, a public broadcaster in Sweden, has provided streaming audio webcasts webcasts of trial.

A similar situation is unfolding in the United States in a high-profile case involving issues very similar to those of The Pirate Bay case, although here there has been significant resistance for the defendant’s calls to open the proceedings to the public.  Joel Tenenbaum is one of the tens of thousands of defendants being sued by the RIAA for allegedly violating their members’ copyrights by distributing files through P2P file sharing software. However, unlike the vast majority of the defendants in these cases, he chose to litigate rather than settle his case rather than settle, with the help of Harvard Law School Professor Charles Nesson and a team of his students. With Professor Nesson’s assistance, Tenenebaum filed a motion similar to Sunde’s, requesting his trial be broadcast live via the Internet. Tenenbaum’s motion asked the Court to exercise its discretion under the Court’s local rules to allow Internet access to the courtroom by authorizing the Courtroom View Network (“CVN“) to provide audio visual coverage of the proceedings in this case over the Internet.

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

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
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