A student-run resource for reliable reports on the latest law and technology news
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U.S. Marshals Service Uses Airborne “Dirtboxes” to Collect Cell Phone Data

By Katherine Kwong – Edited by Mengyi Wang

The U.S. government has been using “dirtboxes” to collect cell phone data. The program, designed for criminal suspect surveillance, is accused of also collecting cell phone data on numerous Americans not suspected of any crime. While many commentators express concern about the program’s legality, others argue that the program is an effective method of catching criminals.

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Federal Circuit Flash Digest: News In Brief

By Henry Thomas

Ads For Content Scheme Held To Be Abstract Idea, Not Patentable Process

Federal Circuit Limits Application of Collateral Estoppel in Patent Litigation

Electronics Company Avoids Patent Enforcement By Directing Sales Outside U.S.

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Silk Road 2.0 Takedown Indicates Law Enforcement May Have Developed a Method to Trace Hidden Tor Websites

By Steven Wilfong — Edited by Travis West

The complaint filed against Blake Benthall, the alleged operator of Silk Road 2.0, indicates that the FBI identified a server that was used to host the popular drug market website, despite the fact that the website’s location was hidden by the Tor anonymity software.  Law enforcement may have developed a method of compromising Tor anonymity, a possibility that would prove useful in future operations, but that also raises concerns for legitimate users.

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Federal Circuit Flash Digest: News in Brief

By Ken Winterbottom

Motion to Dismiss in Hulu Patent Infringement Suit Affirmed

“Virtual Classroom” Patent Infringement Case Remanded for Further Determination

Attorney Publicly Reprimanded for Circulating Email from Judge

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Spain Passes a “Google Tax,” Analysts Predict it Will be Short-Lived

By Michael Shammas — Edited by Yixuan Long

Spain recently amended its Intellectual Property Law and Code of Civil Procedure to levy fees on aggregators that collect snippets of other webpages. It is at least the third example of a European government fining search aggregators to support traditional print publishing industries, a practice often labeled a “Google tax” because of the disproportionate impact such laws have on the search giant. Some analysts are already predicting that Spain’s new law will fail.

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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

Ninth Circuit Denies Rehearing En Banc in Quon v. Arch Wireless Text Message Privacy Case
By Debbie Rosenbaum — Edited by Christina Hayes

Quon v. Arch Wireless Operating Co.
Ninth Circuit, No. 07-55282
Order denying rehearing en banc
Opinion concurring in denial of rehearing en banc
Opinion dissenting from denial of rehearing en banc

On January 27, 2009, the Ninth Circuit denied rehearing en banc in Quon v. Arch Wireless, a case decided by a Ninth Circuit panel in June of 2008.  The Ninth Circuit panel held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials audited text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

Shaun Martin of the California Appellate Report investigates the politics of the concurring and dissenting opinions.  Martin points out that despite the similarities between Judges Wardlaw and Ikuta (both judges are UCLA Law School graduates, well-recognized women in Southern California, and both practiced for the firm of O’Melveny & Myers), the conflict evident in their opinions amounts to a series of “dueling bench slaps extraordinarie.”

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Posted On Jan - 31 - 2009 Comments Off READ FULL POST

Kentucky Appeals Court Overturns Domain Name Seizure 
By Anthony Kammer – Edited by Stephanie Weiner

Vicsbingo.com v. Commonwealth of Kentucky, No 08-CI-01409
Court of Appeals Ruling (Hosted by EFF)
Commonwealth of Kentucky v. 141 Internet Domain Names (original ruling) 

On January 20, 2009, the Kentucky Court of Appeals overturned a lower court’s order to seize 141 Internet domain names that could potentially be used as illegal “gambling devices” within the state. The appeals court granted a stay back in November, but Tuesday’s decision makes it look increasingly unlikely that the state can seize domains in this fashion. According to John Pappas of the Poker Players Alliance, this decision is “a tremendous victory for Internet freedom.” 

On January 21, 2009, a day after this decision was entered, the Commonwealth of Kentucky filed a notice of appeal to the Kentucky Supreme Court.

The three judge panel of the Court of Appeals did not provide a majority opinion, but in a 2-1 decision, Judges Keller and Taylor granted a Writ of Prohibition against the Franklin Circuit Court and successfully blocked the domain name seizure. In his opinion, Judge Keller concluded that domain names did not fall within the statutory definition of “gambling devices” and consequently that the lower court lacked jurisdiction over them. 

The appeals court focused its decision on the language of Kentucky’s gambling statutes, declining to address many of the jurisdictional and constitutional issues posed by the state’s attempt to seize out-of-state interests. Judge Taylor agreed, but in a concurring opinion said that even if the domain names had qualified as “gambling devices,” the statute still did not authorize civil in rem forfeitures and that absent criminal charges, the domain names could not be seized.

Jeremiah Johnston of the Internet Commerce Association told the Associated Press that he approved of the Court of Appeals decision to return the 141 websites but noted that the court had not resolved the important question of whether or not Kentucky has the authority to seize the domain names of overseas companies.

The Court of Appeals emphasized that the Kentucky legislature could redraft the gambling law and provide courts with the authority to seize Internet domain names. However, the Electronic Frontier Foundation points out that even if the Kentucky legislature amended its gambling laws in accordance with the court’s decision, several constitutional problems would still be likely render any attempt at seizure unenforceable. The Amicus Curiae brief filed by the EFF, the Center for Democracy and Technology, and the ACLU of Kentucky, addresses many of these problems.

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