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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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.

(more…)

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.

(more…)

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

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
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