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European Union Court of Justice Holds that Individuals Browsing Websites are not in Violation of Copyright Law
By Kellen Wittkop – Edited by Yixuan Long

The Court of Justice of the European Union (CJEU) agreed with the decision of the Supreme Court of the United Kingdom that webpage viewers do not need license to view copyrighted materials online. With this holding, the CJEU issued a crucial decision for European Union law, balancing the rights of copyright holders and the rights of individuals to browse authorized content without being liable for infringement.

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Georgia Supreme Court Takes Chan v. Ellis Appeal to Redefine First Amendment Right on the Internet
By Yixuan Long – Edited by Emma Winer

The Georgia Court of Appeals ordered the appeal in Ellis v. Chan be transferred to the Georgia Supreme Court. Chan, an interactive website owner, appealed the trial court’s permanent protective order, which commanded him to take down more than 2000 posts on his website, and forbade him from coming within 1000 yards of Ellis. The Court of Appeals decided that the case raised significant and novel constitutional issues regarding the First Amendment right and the internet.

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Federal Circuit Flash Digest: News in Brief

By Kellen Wittkop

Appeal of a contempt order for violation of patent injunction agreement dismissed for lack of jurisdiction

Federal Circuit affirms summary judgment of Apple’s noninfringement on GBT’s CDMA patents

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ITC’s review of an ALJ’s order was not procedurally sound
By Mengyi Wang – Edited by Sarah O’Loughlin

The United States Court of Appeals for the Federal Circuit unanimously vacated and remanded a decision of the International Trade Commission (“ITC”), finding that the ITC exceeded its authority in reviewing an administrative law judge’s (“ALJ”) order denying a motion for termination. In so holding, the Court rejected the ITC’s attempt to characterize the ALJ’s decision as an initial determination, which would be subject to review.

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Facebook’s experiment of emotional contagion raises concerns
By Jenny Choi – Edited by Sarah O’Loughlin

On June 17, 2014, Proceedings of the National Academy of Sciences released a study in which Facebook reduced positive and negative posts on News Feeds to observe any changes in the participants’ posts to test whether emotional states are contagious through verbal expressions. Many have criticized Facebook for the experiment,  finding that Facebook has deceived its users, violated past Consent Orders, and stretched the users’ terms of service agreements too far.

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District Court Extends TRO Against RealDVD Until Nov. 17th
By Andrew Ungberg –- Edited by Jon Choate

RealNetworks, Inc. v. DVD Copy Control Ass’n
N.D. Cal., October 7, 2008, No. C 08 04548 HRL
Court Docket provided by Justia

On Tuesday, October 7th, Judge Marilyn Hall Patel announced she would not disturb a temporary restraining order in place against RealNetworks (“Real”), pending a preliminary injunction hearing in mid-November.  The order blocks Real from selling RealDVD, a software program that allows users to copy DVDs to a computer or portable hard drive and watch them later without the physical disk.

The DVD Copy Control Association (“CCA”), filed a motion ex parte for the order just hours after Real began selling the program.  The CCA claimed that RealDVD violates the Digital Copyright Millennium Act (“DMCA”) by circumventing DRM protections on DVDs, and that Real’s development of the program violates a licensing agreement the companies had signed.  With regards to the TRO, the CCA stated, “Real’s conduct is causing and unless restrained will continue to cause immediate and irreparable harm to [a number of Hollywood] Studios, including to their DVD rental and sale markets . . . .”

Real responded in opposition, claiming that any harm the Studios may suffer is “compensable or illusory.” Real argued that the widespread availability of illegal DVD pirating programs undercuts the CCA’s claims, and urged the court that a TRO would irreparably harm the company by depriving Real of positive publicity and other market advantages.  In the filing, Real maintained that its product conforms to the requirements of its license with CCA, and therefore does not violate the DMCA.

Tuesday’s hearing was the second regarding the restraining order.  According to Wired.com, Judge Patel originally put the order in place on Friday, October 3rd, warning both parties not to disclose details to the public.

CNET.com provides a summary of the hearing.  As result of Judge Patel’s concern that RealDVD may result in copyright violations, the software will remain unavailable pending further hearings in November.

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Posted On Oct - 14 - 2008 Comments Off READ FULL POST

Palin E-mail Hacker Indicted on Federal Charges by Tennessee Grand Jury
By Andrew Ungberg –- Edited by Jon Choate

United States v. Kernell
E.D. Tenn., October 7, 2008, No. 3:08-CR-142
Indictment

On October 7, 2008 a Tennessee grand jury charged David C. Kernell with violating 18 U.S.C. § 2701 (part of the Stored Communications Act) and 18 U.S.C § 1030(a)(2) (a subsection of the Computer Fraud and Abuse Act) for allegedly accessing the Yahoo e-mail account of Alaska Governor Sarah Palin, the Republican vice-presidential nominee, without authorization. Images and information from Gov. Palin’s e-mail account first hit the Internet on September 17th, and began making headlines shortly thereafter. Several websites, including Wikileaks.org and popular blog network Gawker.com, posted screen shots and content from the hacked e-mail account.

Professor Orin S. Kerr, of the George Washington University Law School and the Volokh Conspiracy blog, sees a potential problem with the indictment. He notes that in order to charge the case as a felony, the government must claim Kernell accessed the account “to further criminal or tortuous activity.” According to Kerr, however,

[T]he indictment doesn’t exactly state what the crime or tort is that the intrusion was designed to further. It just states that the intrusion was “in furtherance of the commission of a criminal act in violation of the laws of the United States, including 18 U.S.C. Section 2701 and 18 U.S.C. Section 1030(a)(2) But Section 2701 and Section 1030 are the intrusion statutes themselves! It makes no sense to allow a felony enhancement for a crime committed in furtherance of the crime itself . . . .

Info/Law draws parallels between this case and the Lori Drew MySpace case.

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Posted On Oct - 12 - 2008 Comments Off READ FULL POST

Supreme Court Denies Echostar’s Appeal; TiVO Awarded $104 million in Damages
Docket Page

On Monday, October 6, 2008, the Supreme Court denied Dish’s (formerly EchoStar) appeal of TiVO, Inc. v. EchoStar, 516 F.3d 1290 (Fed. Cir. 2008), bringing the long patent infringement suit to a close.  By refusing to hear argument, the Court upheld both the district and Federal Circuit decisions, which found Dish had infringed TiVO’s patented DVR software and awarded TiVO $74 million in damages. Dish will be forced to pay TiVO $104 million – the amount of the 2006 judgment plus interest.

Dish Network had successfully argued for a stay of the district court injunction pending appeal; the Court’s actions this week would restore the order against operating or selling the infringing DVRs. Earlier this year, Dish claimed to have developed a non-infringing workaround which would allow the company to continue providing DVR service to customers.

Jacqui Cheng of ars technica provides commentary, noting that litigation is likely to continue as TiVO has a pending motion for contempt which will effectively subject the workaround to a noninfringement test.

Previously: Federal Circuit Upholds Damages Award Against EchoStar

Posted On Oct - 9 - 2008 1 Comment READ FULL POST

Expelled Lawsuit Dropped

Lennon v. Premise Media Corp. (S.D.N.Y.)

The suit filed by Yoko Ono and the children of John Lennon against the producers of Expelled, a motion picture that used a clip of the song “Imagine” without permission, was withdrawn and dismissed last month.  However, Anthony Falzone, Executive Director of Stanford’s Fair Use Project and counsel for defendants, notes:

[T]he right result came far too late. The mere pendency of these cases caused the film’s DVD distributor to shy away from releasing the full film — the version that includes the Imagine segment. So the film goes out on DVD on October 21 in censored form, illustrating the damage that even an unproved and unsupported infringement claim can do.

Previously: District Court Denies Yoko Ono Lennon’s Motion for Injunctive Relief

Posted On Oct - 7 - 2008 Comments Off READ FULL POST

District Court Vacates Verdict and Damages in File-Sharing Copyright Infringement Case, Grants New Trial
By Dmitriy Tishyevich - Edited by Bradley Hamburger

Capitol Records Inc. v. Thomas
D. Minn., September 24, 2008, No. 06‐1497
Order (provided by EFF)

On September 24, 2008, Chief Judge Michael Davis of the United States. District Court, District of Minnesota, issued an order in Capitol Records Inc. v. Thomas (formerly Virgin Records America, Inc. v. Thomas) vacating a jury’s October 2007 copyright infringement verdict and award of $222,000 in damages to members of the Recording Industry Association of America (“RIAA”) and granting the defendant, Jammie Thomas, a new trial. The vacated award was the first jury trial victory for the RIAA in a federal copyright infringement case against an individual since it began litigation against alleged peer-to-peer users in 2003.

In the original trial, plaintiff recording companies alleged that defendant Jammie Thomas had infringed twenty-four of their copyrighted sound recordings by downloading and making them available via the Kazaa peer-to-peer file sharing network. Judge Davis instructed the jury that the “act of making copyrighted sound recordings available for electronic distribution on a peertopeer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.” The jury found that Thomas had willfully infringed on all twenty-four of the plaintiff’s sound recordings, and awarded statutory damages of $9,520 per violation ($220,000 in total damages). On May 15, 2008, however, Judge Davis issued an order stating that he was contemplating granting a new trial due to the possibility that the jury instruction at issue constituted a manifest error of law. Both parties briefed the issue, and Judge Davis allowed submission of five amicus briefs.

Eric Bangeman at ArsTechnica provides a summary of the order.

Corryne McSherry of the Electronic Frontier Foundation applauds Judge Davis’ call to lower the Copyright Act’s statutory damages.

David Kravets of the Wired “Threat Level” blog notes that the decision “nullified an almost foolproof method for the RIAA,” but suggests that it simultaneously “replaced it with another” by holding that the music files downloaded by RIAA investigators can form the basis for an infringement claim.

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Posted On Oct - 1 - 2008 Comments Off READ FULL POST
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