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German Commission Orders Facebook to Allow Fake Names

By Annie Woodworth – Edited by Ariane Moss

Last Tuesday, the Hamburg Data Protection Authority, a German regulatory body, ordered Facebook to lift its policy prohibiting users from choosing pseudonyms. Although there was some dispute over whether the order applied to Facebook, the social media giant agreed to change the policy and issued an apology.

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Nintendo Wins Summary Judgment Based on Doctrine of Prosecution History Estoppel

By Yaping Zhang – Edited by Stacy Ruegilin

On July 17, 2015, the Northern District Court of California granted a summary judgment motion in Nintendo’s favor in a patent suit, construing disputed term in accordance with Nintendo’s interpretation and finding that the patent had not been infringed. The court based its decision on prosecution history estoppel, highlighting differences between the processes of obtaining and enforcing a patent.

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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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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.

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

By Kathleen McGuinness

Two contested patent terms upheld as means-plus-function

The United States Court of Appeals for the Federal Circuit in Robert Bosch, LLC v. Snap-On Inc., 2014-1040 (Fed. Cir. Oct. 14, 2014) affirmed the decision of the United States District Court for the Eastern District of Michigan that two contested patent terms were means-plus-function terms under section 112, paragraph 6. However, the Federal Circuit held that the district court was wrong to apply the presumption of a means-plus-function claim based on the language. Although the contested claim included references to functions performed “by means of the program recognition device,” the court held that the presumption of a means-plus-function claim is limited to situations in which the claim uses the word “means…as a noun in the claim,” and that this presumption did not extend to the phrase “by means of.” However, because each disputed term lacked sufficiently definite structure, this error was harmless; both terms constituted means-plus-function limitations, and were invalid as indefinite.

Judgment of damages sufficient to render plaintiff a prevailing party for fee awards

The United States Court of Appeals for the Federal Circuit affirmed in SSL Services, LLC, v. Citrix Systems, Inc., 2013-1419 (Fed. Cir. Oct. 14, 2014) the United States District Court for the Eastern District of Texas’s denial of various findings of non-infringement. However, the court vacated the district court’s denial of prevailing party status, finding that SSL was the prevailing party. First, the court noted that the general verdict rule—the rule providing that “where one or more of multiple claims is found legally invalid, a reviewing court must reverse and order a new trial if they are unable to determine whether the invalid theory tainted the verdict”—applies “with the same force in patent cases as it does in all other cases.” However, prejudice will not be presumed from the fact that the verdict makes it impossible to determine the specific limitation that the jury found non-infringed; the burden of establishing a threat of a tainted or improper verdict rests on the party challenging the verdict. Second, because one patent was found non-infringed and the second was found willfully infringed, the district court held that neither party was the prevailing party for the purpose of eligibility for fee awards. The Federal Circuit reversed: even where a plaintiff does not prevail on all of its infringement claims, a judgment of damages is sufficient to make the plaintiff the “prevailing party” for the purpose of fee awards, although it does not automatically entitle it to fees.

Posted On Oct - 16 - 2014 Comments Off READ FULL POST

By Amanda Liverzani – Edited by Mengyi Wang

Demand Letter to Google, Inc.

Celebrities impacted by the theft and distribution of personal images stored on Apple’s iCloud service may soon head to court seeking damages from Google for continued copyright infringement and privacy violations.

On October 1st, Martin Singer of California entertainment litigation firm Lavely & Singer issued a demand letter to Google on behalf of “over a dozen female celebrities, actresses, models and athletes,” alleging that the internet giant dragged its feet halting the spread of the stolen images. Demand Letter at 1. In the letter addressed to Google founder Larry Page and other top executives, Google is accused of failing to remove the private pictures pursuant to the requirements of Digital Millennium Copyright Act (“DMCA”) and threatened with a lawsuit for compensatory and punitive damages that could reach over $100,000,000 unless the offending content is promptly taken down. Id

The images at issue are at the center of the 2014 celebrity photo hacking scandal. In late August, over one hundred stolen personal pictures of mostly female celebrities were posted to imageboard 4chan and later circulated through websites like Reddit. The pictures, which depict big name stars like Jennifer Lawrence and Kate Upton, were acquired illegally through suspected attacks on Apple’s iCloud service. 

Title II of the DMCA, also known as the Online Copyright Infringement Liability Limitation Act (“OCILLA”), provides “safe harbor” for internet service providers (“ISPs”) like Google against liability for copyright infringing materials shared over their systems or networks if, upon notice of the unlawful content, the ISP “acts expeditiously to remove, or disable access to, the material.” OCCIA, 17 U.S.C 101, § 512 (c)(1)(C) (1998). 

The demand letter alleges that since the private images were first released in late August, websites and ISPs including Google were issued notices demanding the removal of the images pursuant to the requirements of the DMCA. Demand Letter at 12. While the majority of the requests were fulfilled, some within hours, Google has purportedly continued to allow access to the images on Google owned sites like BlogSpot and YouTube, as well as through search results, for more than four weeks. Id. The letter also highlighted that Google’s YouTube counsel and compliance department have refused to remove the images at issue that are uploaded to YouTube through the expedited content verification process that would enable instant removal of such images. Id. at 2. 

The demand letter points to Google’s slogan “Don’t be evil” and its alleged commitment to “doing the right thing . . . following the law, acting honorably and treating each other with respect” as contradictory to the company’s inaction in the face of rampant copyright infringement and privacy violations. Id. Comparing Google’s conduct to another prominent headline from recent months, the letter asserts that “(l)ike the NFL, which turned a blind eye while its players assaulted and victimized women and children, Google has turned a blind eye while its sites repeatedly exploit and victimize these women.” Id. at 3. 

After outlining Google’s alleged misconduct, the letter concludes by demanding that Google remove the stolen images from all of its hosted sites and accounts; suspend or terminate any hosted sites or accounts that uploaded, displayed, linked to, or invited the submission of the stolen images; and remove all Google search results for the images. Id. at 3. If Google fails to comply, it may face a high-profile lawsuit on behalf of the female celebrities.

Additional commentary on the potential litigation against Google is available from Law 360, Ars Technica, and The Wall Street Journal.

Amanda Liverzani is a 2L at the Harvard Law School.

Posted On Oct - 16 - 2014 Comments Off READ FULL POST

By Yixuan Long – Edited by Travis West

Apple announced that it could no longer access information stored on devices with the iOS 8 system. This means that if law enforcement came to Apple with a seized device and a valid warrant, Apple would be technically incapable of accessing the data. According to a statement in Apple’s privacy policy:

“On devices running iOS 8, your personal data such as photos, messages (including attachments), email, contacts, call history, iTunes content, notes, and reminders is placed under the protection of your passcode. Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.”

iOS 8 introduced default encryption and data protection. “By setting up a device passcode, the user automatically enables Data Protection. . . . The passcode is entangled with the device’s UID, so brute-force attempts must be performed on the device under attack. A large iteration count is used to make each attempt slower. The iteration count is calibrated so that one attempt takes approximately 80 milliseconds. This means it would take more than 5½ years to try all combinations of a six-character alphanumeric passcode with lowercase letters and numbers.” iOS Security Guide September 2014, at 11.

Google announced that its next mobile operating system, Android L, will join iOS 8 in offering default encryption.

Ars Technica provides an overview of Apple’s iOS 8 privacy policy and summarizes the favorable views from privacy advocates. According to the report, Nicole Ozer, an attorney with the American Civil Liberties Union of Northern California, called the privacy upgrade “long overdue.” Catherine Crump, a law professor at the University of California, Berkeley, said that it was “heartening to see a major American company conclude that it’s a business advantage to protect its users’ privacy and security.” The Cato Institute also applauds Apple’s new policy, explaining that many concerns over closing the backdoor to law enforcement are unwarranted. For example, encryption has stymied law enforcement investigations less often than people might think.

(more…)

Posted On Oct - 16 - 2014 Comments Off READ FULL POST
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