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Trademark Infringement or First Amendment Right of Freedom of Speech?

By Yunnan Jiang – Edited by Paulius Jurcys

On October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint brief in the U.S. Court Of Appeals, urging  that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”. The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression.

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Twitter goes to court over government restrictions limiting reporting on surveillance requests

By Jens Frankenreiter – Edited by Michael Shammas

Twitter on Oct. 7 sued the government, asking a federal district court to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail. Twitter opposes complying with the rules agreed upon by the government and other tech companies in a settlement earlier this year, and argues that the rules violated its rights under the First Amendment.

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Popular Samsung Phones under Investigation for Patent Infringement

By Asher Lowenstein – Edited by Saukshmya Trichi

The US International Trade Commission has instituted an investigation of patent infringement involving some of Samsung’s most popular smartphones. ITC will have to decide whether it is in the public interest to ban a major producer from selling its phones in the US.

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Federal Circuit Flash Digest: News in Brief

By Kathleen McGuinness

Two contested patent terms upheld as means-plus-function

Judgment of damages sufficient to render plaintiff a prevailing party for fee awards

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Google Faces Potential Lawsuit in Connection with Celebrity Photo Leaks

By Amanda Liverzani – Edited by Mengyi Wang

Celebrities impacted by the theft and distribution of personal images stored on Apple’s iCloud service may soon head to court seeking damages from Google for continued copyright infringement and privacy violations. Google is accused of failing to remove the private pictures pursuant to the Digital Millennium Copyright Act (“DMCA”) and threatened with a lawsuit for compensatory and punitive damages that could reach over $100,000,000 unless the offending content is promptly taken down.

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Federal Circuit Affirms Judgment Against Qualcomm, Limits Remedy of Patent Unenforceability
By Aaron Dulles – Edited By Stephanie Weiner
Qualcomm Inc. v. Broadcom Corp., Federal Circuit, December 1, 2008, No. 2007-1545 & 2008-1162
Slip opinion

On December 1, 2008, the Federal Circuit affirmed in part the District Court for the Southern District of California, no. 05-CV-1958, holding that Qualcomm breached its duty to disclose relevant video-compression technology patents during its participation in a standards-setting organization (“SSO”). However the Federal Circuit limited the scope of the remedy; rather than make the patent unenforceable against the world, the court held the patent unenforceable only against products compliant with the standard created by the SSO.

The judgment arises from a patent infringement suit brought against Broadcom in which Qualcomm asserted two patents concerning video compression technology. After a concealment effort that resulted in sanctions for litigation misconduct, it came to light that Qualcomm had participated in an SSO called the Joint Video Team (“JVT”) that was responsible for creating a video compression standard known as H.264. The H.264 standard was intended to be achievable at a baseline by anyone without requiring them to pay royalties. The court found that Qualcomm was required to disclose to the members of JVT any patents it held covering technology that “reasonably might be necessary” to practice the standard. Qualcomm was held to have waived its rights to the two patents by not disclosing those patents to JVT.

The case provides some clarity in a previously murky area: The Wall Street Journal Law Blog notes that this case clarifies the court’s willingness to find a duty to disclose in the SSO context, while Zusha Ellinson of The Recorder observes that it also clarifies the penalties for failing to disclose. The case is also being held up as a demonstration of the disastrous results of withholding evidence. (more…)

Posted On Dec - 6 - 2008 Comments Off READ FULL POST

District Court Enjoins Certain Advertising Practices; Keylogger Software Once Again Available
FTC v. CyberSpy Software, LLC, November 6, 2008, 6:08-cv-1872
Preliminary Injunction

On November 24th, Judge Presnell presided over a hearing regarding the temporary restraining order put in place by the court on November 6th. The preliminary injunction is significanty more limited than the original TRO, which had prevented CyberSpy from selling its “RemoteSpy” keylogger software entirely.

The new order primarily enjoins CyberSpy from

promoting, selling, or distributing RemoteSpy, or its equivalent, by means of informing or suggesting to customers that it may be, or is intended to be, surreptitiously installed on a computer without the knowledge or consent of the computer’s owner including . . . instructions for disguising the name of the executable file that accomplishes the installation and/or recommendation of the use of a stealth email service for sending the executable file to the remote computer.

The ruling focuses on restricting the methods CyberSpy may use to market or sell their product, but does allow the company to sell RemoteSpy once again.

Previously: District Court Halts Sales of Keylogger Software

Posted On Dec - 5 - 2008 1 Comment READ FULL POST

Lori Drew Convicted on Three Misdemeanor Counts of Violating MySpace Terms of Service in “Cyberbullying” Case
By Brian Kozlowski – Edited By Stephanie Weiner
United States v. Drew, 08-CR-582

A federal jury convicted Lori Drew on November 26th on three of four misdemeanor counts of unauthorized computer access under the Computer Fraud and Abuse Act (”CFAA”), 18 U.S.C. § 1030, for violating the MySpace terms of service. Drew was acquitted of three felony counts of accessing computers without authorization to inflict emotional harm under the same act. The case has raised widespread objection to the use of criminal liability for violating website terms of service.

The case revolves around the 2006 suicide of 13-year-old Megan Meier following an argument she had on MySpace with “Josh Evans,” a fictional 16-year-old boy whose profile was created under the supervision of Lori Drew. During the 28 days that the account was active, “Josh” established an online relationship with Meier that ended with harsh words and the involvement of other MySpace users. Creation of the fictional account using false information was a violation of the MySpace terms of service, which served as the basis for the computer fraud charges. The prosecution argued, and the jury found, that Drew’s subsequent visits to the MySpace site, in violation of the terms of service, were “unauthorized access” under the terms of the CFAA. Critics point out that this is a very creative use of the CFAA, which is typically used to target hacking and trademark theft. This is the first time it has been used in this fashion.

The New York Times describes the trial outcome, building on an earlier piece from 2007 that gives more factual background on the events. Court documents for the case are hosted on Citizen Media Law Project. (more…)

Posted On Dec - 4 - 2008 1 Comment READ FULL POST

Judge Quashes Recording Industry Subpoena Seeking the Identities of Three Boston University “John Does”
By Jamie Wicks – Edited by Jon Choate

London-Sire Records, Inc. v. Does 1-4
D. Mass., No. 1:04-cv-12434
Court Order (hosted by Ray Beckerman)

On November 24th, Judge Nancy Gertner of the U.S. District Court for the District of Massachusetts rebuffed an attempt by major recording industry companies to force a university to reveal the identity of individuals who shared music through online peer-to-peer networks. Judge Gertner quashed a subpoena in London-Sire Records v. Does 1-4, a copyright infringement case in which the plaintiffs had served subpoenas on a number of internet service providers, largely colleges and universities, requiring them to divulge individual users’ identities based on their IP addresses.

Boston University wrote a letter to the court on September 23, 2008, stating that it could not positively identify three of the IP address users.  Judge Gertner treated the letter as a motion to quash the subpoena, and found that “the University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty.”  In quashing the subpoena, she expressed concern that “compliance with the subpoena . . . would expose innocent parties to intrusive discovery.”

The court’s order to quash the subpoena is available here.  Jacqui Cheng of Ars Technica provides background on the case. One Slashdot contributor notes that the order will provide a lesson to University IT departments served with similar subpoenas: if they are simply honest about the difficulty of identifying IP address users, the subpoenas may be quashed.  A P2PNet commenter suggests the order may “represent a death knell” to the music industry’s attempt to use universities as “copyright cops.”  A Chronicle of Higher Education writer wonders if the holding signifies that IP addresses might no longer be legally synonymous with personal identities.
(more…)

Posted On Nov - 29 - 2008 Comments Off READ FULL POST

Alleged “Coupon Hacker” and Coupons, Inc. Settle DMCA Suit [UPDATED]

By Chris Kulawik — Edited by Jon Choate

Coupons, Inc. v. Stottlemire
N.D. Cal., No. CV 07-03457 HRL
Court Documents (hosted by Justia)

Last week, Coupons, Inc. (“Coupons”), settled its DMCA suit against John Stottlemire, who had defended himself pro se. The parties have not fully disclosed the details of the settlement, but Stottlemire indicates that the case was dismissed with prejudice. The agreement follows a year’s worth of litigation in the United States District Court for the Northern District of California.

Note:
Since the writing of this post, Coupons, claiming that Stottlemire breached material terms of the parties’ settlement agreement, has resumed litigation.  Stottlemire, in a motion filed with the court, claims that Coupons is mistaken in its belief that he has breached the confidentiality term of the settlement.

(more…)

Posted On Nov - 28 - 2008 1 Comment READ FULL POST
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