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District Court Holds that Internet-Based Television Provider, FilmOn X is Entitled to a Compulsory License

By Anne Woodworth – Edited by Henry Thomas

The U.S. District court for the Central District of California ruled that an online streaming service that rebroadcasted network television fit the definition of a cable company, and was entitled to compulsory licensing under § 111 of the Copyright Act.  The order relied on the Supreme Court’s Aereo decision, which held that internet streaming was fundamentally the same as cable. The ruling conflicts with a Second Circuit case decided on similar facts, and is immediately appealable.

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Data Breach Victims, Rejoice: Seventh Circuit Finds that Threat of Injury is Sufficient for Article III Standing in Data Breach Class Actions

By Brittany Doyle – Edited by Ariane Moss

Last Monday, the Seventh Circuit Courto of Appeals ruled that victims of a data breach had standing to pursue a class action even when they had not suffered direct financial harm as a result of the breach or when they had already been compensated for financial harm resulting from the breach. The opinion reversed a contrary district court decision, which the Seventh Circuit said had incorrectly read the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA.

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How Far Can Law Enforcement Go When Gathering Email Evidence? Former Gov. Scott Walker Employee Files Petition for Writ of Certiorari

By Kasey Wang – Edited by Ariane Moss

Kelly Rindfleisch is serving a six-month sentence for misconduct in public office while working for then-County Executive Scott Walker. Rindfleisch appeals to the U.S. Supreme Court, claiming that the government violated her Fourth Amendment rights while searching her emails for evidence for a different case.

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Russia’s “Right To Be Forgotten” and China’s Right To Be Protected: New Privacy and Security Legislation

By Brittany Doyle – Edited by Ken Winterbottom

The legislatures in Russia and China took steps this month to tighten regulations over Internet companies with access to user data. In Russia, President Vladmir Putin signed a law ensuring a “right to be forgotten” reminiscent of the European Court of Justice’s right to be forgotten ruling of May 2014. And in China, the National People’s Congress released a draft cybersecurity bill that would formalize and strengthen the State’s long-standing regulation of websites and network operators.

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Washington Appeals Court Refuses to Compel Unmasking of Anonymous Avvo Critic Absent Evidence of Defamation

By Leonidas Angelakos – Edited by Olga Slobodyanyuk

The Washington Court of Appeals held that—absent evidence of defamation—a third party website is not required to unmask an anonymous defendant. The court adopted an analysis similar to the widely cited Dendrite test for the showing a defamation plaintiff must make on a motion to compel disclosure of an anonymous defendant’s identity.

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By Viviana Ruiz

Converse attempts to protect iconic Chuck Taylor All Star design

The Chuck Taylor All Star sneakers are undoubtedly Converse’s most iconic shoes. However, many retailers and competitors have been employing similar looks for years. Converse has filed suits against 31 retailers on trademark infringement grounds, requesting damages and injunctions, which could prevent competitors from selling similar shoes. Since shoes are not subject to copyright protection in the US, Converse’s claims are limited to the trademark arena. This may be a difficult case for Converse, however, since it needs to show evidence that customers bought the defendant’s shoes thinking they were manufactured by Converse. Moreover, Converse could be jeopardizing his signature trademark if it is not able to demonstrate public opposition against the widespread existence of similar products.

French Court rules that shoe design copyright was not infringed

Can shoe designs be protected under copyright law? Not in the US, but certainly in France. While US shoe designers must protect their creations through “trademarks,” “trade dress” or “design patent,” French law establishes that shoes can be protected as copyrights, provided that they are “original.” The term “original” has not been clearly defined, but French courts have established that a work is considered “original” when it reflects the personality of the author. Recently, the Paris Court had to determine the originality of a shoe in a case of copyright infringement filed by Apple Shoes against Sonia Rykiel. Defendant argued that the Plaintiff had failed to produce evidence on the creative process leading up to the model of shoes. The Court ruled that the shoes were original, but that  the defendant’s shoes were not similar and hence did not infringe on the plaintiff’s copyright.

Oklahoma Court rules that Facebook notifications do not satisfy notice requirement

Oklahoma’s highest civil court ruled that a Facebook message alone does not satisfy the notice requirement, reversing the lower courts’ rulings. Justice Douglas Combs, writing from the majority, expressed that [Facebook] is an unreliable method of communication… This Court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected.” In a dissenting opinion, Justice Winchester considered Facebook notifications as valid, pointing out that even letters or by faxes may not reach the recipient.

Posted On Oct - 21 - 2014 Comments Off READ FULL POST

By Travis West — Edited by Mengyi Wang

Order, United States v. Ulbricht, No. 14-cr-68 (S.D.N.Y. Oct. 10, 2014).

Slip opinion

The alleged Silk Road founder Ross Ulbricht was denied the motion to suppress evidence in his case. Ulbricht argued that the FBI illegally hacked the Silk Road servers to search for evidence to use in search warrants for the server. The judge denied the motion because Ulbricht failed to establish that he had any privacy interest in the server.

The Silk Road was a website accessed through The Onion Router (“Tor”) that was used for the sale of drugs and other illegal goods. Slip op. at 2–3. Ulbricht is alleged to have created the site, using the moniker “Dread Pirate Roberts.” Id. at 1. The US government investigated the site, eventually imaging the server in Iceland and using information found on that server, and received multiple warrants for pen-registers and searches of Ulbricht’s personal email accounts and social network accounts. Id. at 3–4. Ulbricht alleged that the government illegally hacked the Icelandic server, and that all of the evidence that came from that illegal hacking should be suppressed. Id. at 4–5. However, the judge found that since Ulbricht had not established a personal privacy interest in the server, which likely could only be established by admitting he owned or accessed the website, he could not contest the search of the Icelandic server. Id. at 6–7.

The case has attracted attention due to questions about how the government actually accessed the Icelandic server. The defense tried to have all of the evidence suppressed since it suspected that the government had illegally hacked the Icelandic server. In response, the government offered a declaration from one of the FBI agents who accessed the server. Memorandum of law in opposition to defendant’s motion to suppress evidence, obtain discovery anda bill of particulars, and strike surplusage at 12. The declaration claimed that Ulbricht had improperly configured the front page of the Silk Road, so that it leaked the IP address of the server. Id. Using this information, the agent was able to have the Icelandic police secretly image the server, whose information was then used by the FBI to obtain warrants for Ulbricht’s personal accounts. Id. at 13. However, multiple technical experts and Ulbricht’s attorneys disputed this series of events, arguing that it was technically implausible. The prosecution then responded in a motion by arguing that even if the FBI had hacked the Silk Road’s server, it would be legal since the site was facilitating blatantly illegal activities. Government response tothe declaration of Joshua Horowitz at 1.

Wired provides an overview of Ulbricht’s legal saga to date. Ars Technica explains how Ulbricht is in a legal quandary by being unable to admit that he owned the Silk Road website. Gizmodo summarizes the government’s argument that it could hack the Silk Road’s server without breaking any laws. Krebs on Security provides more information about the technical challenges with the FBI’s story of how it found the Silk Road’s server’s IP address.

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Posted On Oct - 21 - 2014 Comments Off READ FULL POST

By Yunnan Jiang – Edited by Paulius Jurcys

Brief for the Fourth Circuit as Amicus Curiae Supporting Plaintiffs-Appellants, the Radiance Foundation, Inc. et al. v. National Association for the Advancement of Colored People, No. 14-1568 (4th Cir.)

Brief hosted by the Washington Post.

free-speechOn October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint amicus curiae brief in the U.S. Court Of Appeals For The Fourth Circuit for the Radiance Foundation, Inc. et al. v. National Association for the Advancement of Colored People, No. 14-1568. In its brief, the EFF and the ACLU urge that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”.

The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression. They further assert that such use of trademarks is “noncommercial”. By holding the use of a trademark in a blog post title liable for trademark infringe and dilution, the brief argues that the District Court allows trademarks to trump freedom of speech. (more…)

Posted On Oct - 20 - 2014 Comments Off READ FULL POST

By Jens Frankenreiter – Edited by Michael Shammas

Twitter, Inc. vs. Eric Holder et al, No. 14-04480 (N.D. Cal. Oct. 07, 2014)

Complaint hosted by The Washington Post

Twitter.png?t=20130219104123Twitter on October 7 sued the U.S. Department of Justice and the Federal Bureau of Investigation, asking the federal district court for the Northern District of California to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail than currently approved by the government.

The complaint challenges the requirements for the publication of data on surveillance requests set out by the government as violating Twitter’s rights under the First Amendment. The lawsuit is part of the efforts of Twitter and other companies to obtain the government’s approval for the reporting of information on the numbers of surveillance requests received by these companies. These efforts were largely triggered by former intelligence contractor Edward Snowden’s revelations about the existence of large-scale data gathering programs by the government relying, among other things, on surveillance requests to Internet content providers. In its lawsuit, Twitter seeks approval to provide more fine-grained data than the government is willing to consent to. Particularly, it objects to an alleged refusal to allow the reporting that it did not receive any surveillance requests of a particular type.

A summary of the complaint and the preceding events is provided by Reuters, The Washington Post, and Wired. American Civil Liberties Union in a press statement welcomed Twitter’s move and expressed hope that “that other technology companies will now follow Twitter’s lead”. (more…)

Posted On Oct - 20 - 2014 Comments Off READ FULL POST

By Asher Lowenstein – Edited by Saukshmya Trichi

The US International Trade Commission (“ITC”) has initiated an investigation into possible infringement of Nvidia’s graphics processing units (“GPU”) patents by Samsung and Qualcomm. Nvidia claims that Samsung infringes seven of its GPU patents that are purportedly embodied in Samsung products, including Galaxy Note Edge, Galaxy Note 4, Galaxy S4, and Galaxy S5. If ITC finds that the patents were infringed, it could enjoin importation of all such phones into the US. In September, Nvidia also filed an infringement lawsuit in the District of Delaware. Law360 reporting this development lists the patents in question.

Tech firms have been pursuing such claims with the ITC because it is a potentially lucrative alternative to seeking an injunction from courts against the alleged infringer. Since the Supreme Court’s 2006 eBay decision, there has been uncertainty on the firms’ ability to obtain injunctive relief. Such relief is greated in equity, and eBay requires courts to consider “the balance of hardships between the plaintiff and defendant.” See eBay Inc. v. MercExchange L.L.C., 547 U.S. 388, 391 (2006). This imposes a higher standard for a patent holder to establish a case for injunction, especially where the alleged infringing products are already in the market, because an injunction would result in a significant loss of revenue as well as exclude competition. However, the Federal Circuit has held that ITC is not necessarily bound by the eBay injunction test. It observed that the legislative intent appears to offer injunctions as a mandatory statutory remedy under Section 337, and thus that irreparable harm isn’t a relevant factor for determination. See Spansion, Inc. v. ITC, 629 F.3d 1331, 1359 (Fed. Cir. 2010).

The advantage of approaching the ITC in such cases is its faster procedural pace over the courts. This is of great relevance in the smartphone market, where a product might last only a couple of years before it is replaced with upgraded models. An injunction in a civil lawsuit granted after several years of litigation would not be strategically viable.

(more…)

Posted On Oct - 20 - 2014 Comments Off READ FULL POST
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