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The Court of Justice of the European Union Finds the Harbor No Longer Safe

Written by: Ann Kristin Glenster - Edited by: David Nathaniel Tan

This fall, the Court of Justice of the European Union delivered a landmark ruling,  holding that the Safe Harbor Agreement on the handling of personal data by U.S. companies in Europe was invalid. This article will give a brief overview of the case, and explore the salient issues to which the European Court took umbrage. Finally, it will attempt to sketch out some possible consequences of the ruling, and the options that now face E.U. and U.S. legislators.

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Flash Digest: News in Brief

By Yiran Zhang – Edited by Olga Slobodyanyuk

Senators Introduce a Bill which Requires Social Media Companies to Report Terrorist Activity

New EU Copyright Rules Left Possibility for Google Tax

COP21 Reached an “Ambitious and Balanced” Deal on Climate Change

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Flash Digest: News in Brief

By David Nathaniel Tan – Edited by Adi Kamdar

Software Pirate Settles Suit Via YouTube

After Paris Attacks, FCC Chairman Calls for Expanded Wiretap Laws

Hoverboards Declared Illegal in New York City

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Belgian Court Demands that Facebook Stop Tracking Non-Members

By Mila Owen – Edited by Kayla Haran

The Belgian Privacy Commission requested a cessation order against Facebook regarding their practice of placing “datr” cookies on devices of non-Facebook users to track activity on other Facebook pages or on pages containing the “like” or “share” button. The court ruled that this tracking violates the Belgian Privacy Act because it amounts to the collection and “processing of personal data.”

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Facebook not liable for discrimination against Sikhs in India

By Ann Kristin Glenster – Edited by Yaping Zhang

By dismissing Sikhs for Justice Inc.’s case against Facebook for discrimination by blocking the group’s page in India, the United District Court of Northern California maintains the neutrality of interactive online providers and exempts them from liability under Title II of the Civil Rights Act.

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By Saukshmya Trichi – Edited by Ashish Bakshi

Advocate General’s Opinion in Case C-146/13 Spain v Parliament and Council and C-147/13 Spain v Council.

Press release No.152/2014: November 18, 2014

European union concept, digital illustration.In an opinion released by the Advocate General (“Opinion”) of the Court of Justice of the European Union (“Court”), it has been urged that Spain’s challenges to two implementing regulations of the Unitary Patent System be dismissed. The Court is still deliberating on the challenges and the Opinion though not binding is likely to be of persuasive value.

In 2012, member states of the European Union (EU) agreed to create a unitary patent system, consisting grant of a Unitary Patent and establishing a Unified Patent Court, which would guarantee supranational protection for inventions in 25 countries across Europe. This system would co-exist with national patents and with classical European patents for states that do not participate in the scheme, such as Spain, Italy, etc. More information on the structure and functioning of the system is available on the website of the European Patent Office (EPO).

On December 17, 2012, Regulation (EU) No. 1257/2012 was adopted, which laid down the procedural framework to implement enhanced cooperation in the area of the creation of unitary patent protection; and Regulation (EU) No. 1260/2012 was adopted to create a framework with regard to translation arrangements.

In March, 2013 Spain challenged these regulations in cases C-146/13 and C-147/13 principally on the ground that the power delegated to the EPO for administering the unitary patent system was improper in view of the genesis of the EPO which functions by virtue of the European Patent Convention (EPC), while the unitary system is formulated under the aegis of legal system of the European Union. Spain also alleges that decisions of the EPO not being subject to judicial review will cause prejudice and further that limiting choice of language to English, French and German was discriminatory against states having different official languages.

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Posted On Dec - 3 - 2014 Comments Off READ FULL POST

By Jesse Goodwin – Edited by Michael Shammas

Doe v. Harris, No. 13-15263, 2014 WL 6435507 (9th Cir. 2014).

Slip opinion.

computer-typing1The 9th Circuit Court of Appeals affirmed a district court ruling granting a preliminary injunction prohibiting enforcement of Proposition 35, the Californians Against Sexual Exploitation (“CASE”) Act. In a unanimous holding, a three-judge panel found that, although California “has long required registered sex offenders to report identifying information,” requiring that they provide written notice of “any and all Internet identifiers,” slip op. at 5–6, within 24 hours to the police likely imposed an unconstitutional burden on protected speech. In so holding, the court noted that the plaintiffs were not “prisoners, parolees, or probationers,” and enjoyed full First Amendment protections. Id. at 13–14.

The Los Angeles Times and American Civil Liberties Union provide an overview of the case and analysis of the law.

According to the Electronic Frontier Foundation (“EFF”), the CASE Act’s requirements provide that all sex offenders, irrespective of the level of their offense, must notify in writing law enforcement a list of all Internet user names and Internet service providers. Plaintiffs filed suit against the CASE Act the day of its passage, representing a class of registered sex offenders who used the Internet as a platform for anonymous advocacy for sex offender rights.  Slip op. at 7–8. After moving for a preliminary injunction, the official proponents of the CASE Act, Chris Kelly and Daphne Phung, intervened. Id. at 8. The district court, concluding that the Act was content neutral, applied intermediate scrutiny, and found that it was not “narrowly tailored [enough] to serve the government’s important interest in combating … human trafficking and sexual exploitation,” and produced a “chilling effect” on speech Id. at 9.  (more…)

Posted On Dec - 3 - 2014 Comments Off READ FULL POST

By Henry Thomas – Edited by Paulius Jurcys

USA FREEDOM Act (2013-2014)

U.S. Bill

On October 29th, 2013, the 113th Congress introduced the USA FREEDOM Act. On November 18th, 2014, a vote for cloture failed in the Senate and the bill was effectively dead.

The bill was designed to amend the Patriot Act, especially Section 215, which has been used to justify broad collection of phone “metadata.” The government’s collection of metadata (information about whom a call was placed to, but not the content of the call) came to the attention of the American public at large after the Snowden leaks revealed the practice. The Freedom Act would allow phone companies to keep control over their own metadata, and delete it at their discretion – typically after eighteen months. The federal government could still access and analyze certain metadata, but only after obtaining court approval. A somewhat watered-down version of the bill had already been approved by the House.

Introduced by Sen. Patrick Leahy (D-VT), the bill was met with broad support. President Obama, technology companies such as Google and Microsoft, and civil liberties groups like the ACLU were on board. Even the director of the NSA lent his support to the bill. However, this backing was not enough to overcome a Senate filibuster; a motion for cloture fell two votes short of the sixty needed.

The 58-42 vote mostly followed party lines. Only four Republicans voted for the bill, and only a single Democrat voted against. Sen. Marco Rubio (R-FL) explained his hesitation toward the bill by raising the specter of an ISIL cell inside America. With America’s current metadata collection policy, “[w]e can disrupt that cell, before they can carry out a horrifying attack,” argued Rubio. Senator Leahy labeled such rhetoric as “scare tactics.”

Interestingly, more libertarian elements of the Republican Party voted against cloture as well, though for a different reason. Sen. Rand Paul (R-KY) cast his no vote because he felt that the act didn’t go far enough. The Freedom Act would extend, albeit in modified form, the Patriot Act for another three years. Paul opposes the Patriot Act, which is set to expire in June of 2015.

The Verge suggested that this impending deadline will result in congressional action, boldly claiming that “Congress will need to act by next June.” However, the New York Times offered a more reserved view, noting the myriad viewpoints and difficulties in obtaining broader congressional support.

Lawfare, in a detailed analysis of the Patriot Act sunset provision, raised a different hypothesis. The sunset provision allows ongoing investigations-those started before the June 1st expiry date of the Patriot Act-to continue using the tools made available by Section 215 of that act. Since virtually the entirety of the metadata corpus can be collected during a given investigation, all it would take is a single open investigation to allow the government access to the metadata. If this analysis is correct, the June 1st deadline is barely a deadline at all and “the government’s negotiating hand seems a lot stronger because its timeframe is potentially a lot longer.”

Still, even the Lawfare article concedes that the government will likely need to pass a bill in the near future. While the exact nature of an extension to the Patriot Act cannot be determined, it is all but certain that the 114th congress will be in charge of determining it.

Posted On Dec - 1 - 2014 Comments Off READ FULL POST

By Lan Du – Edited by Asher Lowenstein

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., et al, No. 13 Civ. 5784 (S.D.N.Y. Nov. 14, 2014) Slip Opinion hosted by plainsite.org.

The Southern District of New York ruled against Sirius XM Radio, Inc. (“Sirius”) in a lawsuit brought by Flo & Eddie, Inc. (“Flo and Eddie”), a company owned by founding members of the legendary 1960s rock band The Turtles. The court recognized the common law copyright under New York State law in the public performance rights of The Turtles’ pre-1972 sound recordings. Sirius has until December 5 to submit factual defenses, or else the court will enter summary judgment in favor of Flo and Eddie and proceed to determine damages.

Flo and Eddie currently own all ownership interests in the recordings of The Turtles, all of which are made before 1972. Sirius, a national broadcaster of radio programs and provider of digital audio content through satellite and internet, has been performing The Turtles’ pre-1972 compositions and also reproduced the sound recordings. Sirius did not pay any royalties for the sound recordings nor did it obtain any authorization. Flo and Eddie therefore filed a $100 million class action against Sirius for copyright infringement.

This is the second case Sirius XM has lost in companion suits filed in three states. In an earlier ruling, hosted by AmLawDaily, at the U. S. District Court for the Central District of California on September 22, 2014, Sirius was held liable under California law for copyright infringement. The suit in Florida is still pending. (more…)

Posted On Nov - 30 - 2014 Comments Off READ FULL POST

By Amanda Liverzani – Edited by Yunnan Jiang

Ultramercial, Inc. v. Hulu, LLC, No. 09-CV-6918, slip op. (Fed. Cir. Nov. 14, 2014)

Applying the Supreme Court’s recent Alice Corp. v. CLS Bank decision that clarified the abstract idea exception to subject matter patent-eligibility, the Federal Circuit invalidated a patent for a method of accessing online content after viewing advertisements in Ultramercial, Inc. v. Hulu, LLC.

U.S. Patent 7,346,545, (“the ‘545 patent”), owned by advertising company Ultramerical, claimed “a method for distributing copyrighted media products over the Internet where the consumer receives a copyrighted media product as no cost in exchange for viewing an advertisement, and the advertiser pays for the copyrighted content.” Ultramercial, Inc. v. Hulu, LLC, No. 09-CV-6918, slip op. (Fed. Cir. Nov. 14, 2014), at 3. Ultramercial brought suit against WildTangent, Youtube, and Hulu in the United States District Court for the Central District of California alleging infringement of the ‘545 patent. Id. Youtube and Hulu were dismissed from the case and WildTangent filed a motion to dismiss for failure to state a claim on the grounds that the subject matter of the ‘545 patent was not patent-eligible. Id. at 5. Following the District Court’s grant of WildTangent’s motion, the Federal Circuit twice reversed. Id. at 5–6 . On both occasions the Supreme Court vacated the Federal Circuit’s decisions and remanded the case for further consideration, first in light of its decision in Mayo, and again following its decision in Alice. Id. at 6. On November 14, 2014 the Federal Circuit, applying the Supreme Court’s Alice test, changed its previous position and found the ‘545 patent invalid. Id. at 3.

Under the Patent Act, 35 U.S.C. §101, the scope of patent-eligible subject matter is limited to “processes, machines, manufacturers, and compositions of matter,” while “laws of nature, natural phenomena, and abstract ideas” are excepted from patentability. Id. at 7. In Alice, the Supreme Court outlined a two-step test to distinguish “patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Id. The first step requires courts to determine whether the patent is directed at a patent-ineligible concept. If it is, the court proceeds to step two, which asks “whether the claims contain an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Id. at 7–8 (internal quotations omitted). If the claim contains no such transformative or inventive element, it is not patent-eligible. Id. at 10. (more…)

Posted On Nov - 30 - 2014 Comments Off READ FULL POST
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