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Whack-a-troll Legislation

Written by Asher Lowenstein     —   Edited by Yaping Zhang

Patent assertion entities’ extensive litigation activities in different states enables to assess the efficacy of the proposed bills against legal strategies these trolls, such as MPHJ Technology, have engaged in. The legal battles confirm some of the concerns about the usefulness of proposed regulatory measures.

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3D Systems and Formlabs Settled Two-Year Patent Dispute

By Yixuan Long – Edited by Yaping Zhang

On December 1, 3D Systems and Formlabs settled their two-year legal dispute over the 520 Patent infringement. Terms of the settlement are undisclosed. The patent covered different parts of the stereolithographic three-dimensional printing process, which uses a laser to cure liquid plastic. 3D Systems was granted the ‘520 Patent in 1997. Formlabs views the settlement as enabling it to continue its expansion and keep developing new products.

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Privacy Concerns in the Sharing Economy: The Case of Uber 

By Sabreena Khalid – Edited by Insue Kim

Recent revelations about Uber’s disconcerting use of personal user information have exposed the numerous weaknesses in Uber’s Privacy Policy. The lack of regulation in the area, coupled with the sensitive nature of personal information gathered by Uber, makes the issue one requiring immediate attention of policy makers.

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San Francisco Court Considers Google’s Search and Ad Services Free Speech

By Jens Frankenreiter – Edited by Henry Thomas

A San Francisco court dismissed a lawsuit against Google, treating Google’s search and advertisement services as constitutionally protected free speech. The lawsuit alleged an antitrust violation based on unfavorable treatment of a website in Google’s search results, and on the withdrawal of third-party advertisement from the website. In throwing out the lawsuit, the court applied California’s “anti-SLAPP” law, which allows quick dismissal of lawsuits against acts protected as free speech.

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EU Unitary Patent System Challenge Unsustainable: Advocate General

By Saukshmya Trichi – Edited by Ashish Bakshi

The Advocate General of the Court of Justice of the European Union has rendered an opinion on Spain’s challenges to regulations implementing the European Unitary Patent System. The Advocate General opines that the challenges must be dismissed as the system is intended to provide genuine benefit in terms of uniformity and integration, and safeguard the principle of legal certainty, while the choice of languages reduces translation costs considerably.

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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

Amazon’s Constitutional Challenge to NY Tax Law Dismissed
By Andrew Ungberg – Edited by Sarah Sorscher
Amazon.com LLC v. New York Dept. of Tax and Finance, No. 601247/08
New York State Supreme Court, First Judicial District, January 12th 2008
Order

On January 12th, 2008, Judge Bransten dismissed Amazon’s lawsuit challenging a recently enacted New York State tax law.  The law requires certain sellers, who have no physical presence within the state, to collect sales tax if the seller has commissions-based independent contractors in-state that generate more than $10,000 worth of business in a given year.  Among other things, Amazon alleged the law violated the Commerce Clause because it imposes tax obligations on out-of-state sellers who lack a “substantial nexus” with New York. Judge Bransten rejected all of Amazon’s claims, noting that the statute was “carefully crafted to ensure that there is a sufficient basis for requiring collection of New York taxes . . . .” 

Law.com and Ars Technica provide an overview of the order and litigation thus far.

Erick Schonfeld of Tech Crunch comments, agreeing with New York’s motive but objecting to the means state legislators used to achieve them.  He writes that the law creates “bad precedent” insofar as it overstates the connection between Amazon and its “affiliates.”

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Posted On Jan - 19 - 2009 Comments Off READ FULL POST
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