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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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Federal Circuit Rejects Point of Novelty Test for Design Patent Infringement
By Anna Lamut — Edited by Stephanie Weiner

Egyptian Goddess v. Swisa
CAFC, September 22, 2008,
Slip Opinion

The U.S. Court of Appeals for the Federal Circuit affirmed the decision of the District Court for the Northern District of Texas, which had granted summary judgment in favor of Swisa, Inc, finding that no jury could reasonably find Swisa’s nail-buffer design infringed Egyptian Goddess’s design patent.

A panel of the Federal Circuit had upheld the District Court’s decision on August 29, 2007, applying the “point of novelty” test for design patent infringement. On November 26, the Federal Circuit vacated the panel’s decision, deciding to hear the appeal en banc to determine the proper standard for assessing claims of design patent infringement.

The point of novelty test states that “the accused device must appropriate the novelty in the patented device which distinguishes it from the prior art.” Sears, Roebuck & Co. v. Talge, 140 F.2d 395, 396 (8th Cir.1944). This test requires that in order to find infringement, a court must attribute the similarity of two items to the novelty which distinguishes the patented device from the prior art. By contrast, the “ordinary observer” test, established in 1871 in Gorham Co. v. White looks for substantial similarity between the two designs, as taken from the viewpoint of an ordinary observer familiar with the prior art. The Federal Circuit held that the point of novelty test should no longer be used to assess claims of design patent infringement, favoring the ordinary observer test instead. (more…)

Posted On Sep - 27 - 2008 1 Comment READ FULL POST

Virginia State Supreme Court Holds Anti-Spam Statute Unconstitutionally Overbroad
By Jay Gill — Edited by Nicola Carah

Jaynes v. Commonwealth of Virginia
Supreme Court of Virginia, September 12, 2008, No. 062388
Slip Opinion

The Supreme Court of Virginia overturned the conviction of prolific spammer Jeremy Jaynes, unanimously reversing not only the Virginia state court of appeals, but its own earlier holding in the case. In doing so, the court held that the Virginia anti-spam statute under which Jaynes was convicted was unconstitutionally overbroad, as it did not distinguish between commercial and non-commercial instances of anonymous, unsolicited bulk e-mail. The court ruled that non-commercial anonymous bulk e-mail falls squarely within First Amendment protection and that no reasonable construction of the Virginia statute could remedy the constitutional defect.

In a press release praising the decision, the ACLU, which filed an amicus brief in support of Jaynes, wrote, “[s]peech on the Internet deserves no less First Amendment protection than in any other medium.” Jon Praed of the Internet Law Group took issue with the court’s characterization of the situation, telling the Washington Post: “I guess a burglar can break into your home as long as they are reciting the Gettysburg Address.” John Levine, president of the Coalition Against Unsolicited Commercial E-mail, and an expert for the prosecution in Jayne’s jury trial, argues that IP forgery is a red herring and points out that there are a variety of alternatives to send anonymous emails. Nonetheless, he commented, “I don’t see it as a fatal setback for anti-spam law.” According to Levine, Virginia’s statute was unique in prohibiting noncommercial spam, and other statutes, including the federal CAN-SPAM act (which took effect after Jaynes’s arrest), do not contain the flaw that led to the result in this case.
(more…)

Posted On Sep - 18 - 2008 Comments Off READ FULL POST

Harry Potter Lexicon Found to Infringe J.K. Rowling’s Copyright
By Miriam Weiler – Edited by Evie Breithaupt

Warner Bros. Entertainment v. RDR Books
S.D.N.Y, September 8th 2008, No. 07 Civ. 09667 
Slip Opinion (hosted by Justia.com)  

This week, Judge Robert P.  Patterson of Southern District of New York, granted a permanent injunction against Defendant RDR Books (“RDR”) and awarded statutory damages to Plaintiffs Warner Brothers Entertainment, Inc.  and J.K.  Rowling (“Warner Bros.” and “J.K.  Rowling”) for the infringement of Rowling’s Harry Potter books.  In this long awaited decision, the court ruled that RDR’s plan to publish “The Lexicon,” an A-to-Z reference guide to Harry Potter facts written by Steven Vander Ark, infringed upon Rowling’s famous series and two of her other works, Quidditch Through the Ages (2001) and Fantastic Beasts and Where to Find Them (2001). 

There was no dispute that J.K. Rowling owned the copyright to the Harry Potter series, the film rights of which had been licensed to Warner Bros., and that Steven Vander Ark had originally copied from the books to create an online reference source called “The Harry Potter Lexicon.” The court applied the Ringgold test for substantial similarity, finding that Vander Ark copied a quantity and quality of material sufficient for infringement when he developed the website into a book to be published by RDR. 

Briefs and relevant court documents are available here.

The Wall Street Jounal provides an overview of the case, and the Vanderbilt Journal of Entertainment & Technology Law features a thorough analysis of the decision.

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Posted On Sep - 15 - 2008 1 Comment READ FULL POST

Website Finds Safe Harbor from Copyright Infringement Damages for User-Provided Videos
By Debbie Rosenbaum – Edited by Andrew Ungberg

Io Group, Inc. v. Veoh Networks, Inc.
N.D. Cal., August 27, 2008, No. C06-03926 HRL
Slip Opinion
(hosted by Electronic Frontier Foundation)

Last week, a federal judge in San Jose, U.S. District Judge Howard Lloyd, ruled that Veoh Networks, Inc. (“Veoh”), is not liable for copyright infringement for material that was uploaded to its site. Veho provides software and a website that enables the sharing of user-provided video content over the Internet.

The case arises from a complaint filed by Io Group, Inc. (“Io”), a company that holds and owns a number of registered copyrights for a variety of adult entertainment products. Between June 1 and June 22, 2006, Io alleged that it discovered clips from ten of its copyrighted films had been uploaded and viewed on veoh.com without its authorization. None of the clips contained copyright notices, except one work that displayed a “Titan Media” trademark several minutes into the clip; Io conducts business under that name.

Veoh’s first notice of the claimed infringement was Io’s filing of the instant lawsuit on June 23, 2006. Independently, Veoh had already decided that it would no longer permit adult content on its website. By the time this suit was filed, access to all adult content on Veoh’s website – including any content allegedly infringing Io’s copyrights – had been terminated.

Io sought summary judgment on liability for direct, contributory and vicarious copyright infringement. The court ruled that, even assuming that plaintiff’s infringement claims pass summary judgment muster, Veoh was eligible for safe harbor protection from damages; furthermore the court found the limited injunctive relief provided under the DMCA was moot.

Commentators have noted the potentially far-reaching effects of this decision, especially for the ongoing YouTube-Viacom infringement litigation. See the L.A. Times, CNet, Wired, Silicon Alley Insider, Techdirt, TechCrunch.

Bruce Boyden of Prawfsblawg notes, most commentators have focused the holding that Veoh’s automated reformatting of uploaded materials does not create copies for which Veoh is responsible. Boyden also notes the similarities to the Second Circuit’s recent Cablevision case, calling the cases “good precedent for ISPs who process uploaded content. . . . .”

(more…)

Posted On Sep - 3 - 2008 Comments Off READ FULL POST

District Court Rules Virginia Law Protecting Social Security Numbers Unconstitutional As Applied to Watchdog Website
By Jon Choate — Edited by Daniel Ray

Ostergren v. McDonnell
E.D. Va. No. 3:08cv362
Slip Opinion (hosted by the ACLU)

On August 22, 2008, Judge Robert E. Payne of the U.S. District Court for the Eastern District of Virginia found § 59.1-443.2 of the Virginia Code to violate the First Amendment as applied to Betty J. Ostergren’s website The Virginia Watchdog. The court granted plaintiff Ostergren limited injunctive relief against the State of Virginia as represented by its Attorney General, Robert F. McDonnell.

Ostergren is a privacy advocate who has lobbied the General Assembly of Virginia to stop publicly posting land records containing Social Security Numbers (“SSNs”) online without redacting the SSNs. On her own site, she has posted a number of these land records, including those of former Secretary of State Colin Powell, former House Majority Leader Tom Delay, and members of the Virginia legislature and judiciary. She has also posted examples of publicly available records from other states containing SSNs.

Section 59.1-443.2 of the Virginia Code is a provision of Virginia’s Personal Information Privacy Act (“PIPA”). In part it provides that “a personal shall not . . . [i]ntentionally communicate another individual’s social security number to the general public.” Until July 1, 2008, PIPA excepted “records required by law to be open to the public.”
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Posted On Sep - 2 - 2008 Comments Off READ FULL POST
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Flash Digest: News i

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