Judge Allows Aereo to Continue Providing Broadcast Television over the Internet
By Brittany Horth – Edited by Charlie Stiernberg

American Broadcasting Companies, Inc. v. Aereo, Inc., 12 Civ. 1540 (AJN) (S.D.N.Y. July 11, 2012)
Slip opinion

Judge Alison J. Nathan of the United States District Court for the Southern District of New York denied a request for a preliminary injunction made by a group of broadcast television companies against Barry Diller’s Aereo, a system exclusively available in New York City that allows subscribers to watch and record live broadcast television over the Internet.

Judge Nathan held that the plaintiffs did not show a likelihood of success on the merits in their claim that Aereo is liable for copyright infringement for publicly performing the plaintiffs’ copyrighted works but did show that they would suffer irreparable harm. Am. Broad. Co., slip op. at 36, 44. She explained that the plaintiffs likely would have been granted a preliminary injunction “but for” the Second Circuit’s reading of “the transmit clause” in 17 U.S.C. § 101 in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”). Id. at 1. (JOLT Digest has previously reported on Cablevision and its continuing significance.) Instead, she rejected all of the plaintiffs’ attempts to distinguish Aereo from the service at issue in Cablevision and concluded that the Second Circuit’s analysis in Cablevision was equally applicable to the present case. Id. at 21, 52.

A brief summary of the continuing situation is available at the New York Times. The Los Angeles Times features an analysis of the denial as well as the relevant precedent, including Cablevision and Sony Corp. of Am.  v. Universal City Studios, Inc., 464 U.S. 417 (1984) (“Sony Betamax”). CNNMoney provides a more detailed overview of Judge Nathan’s reasoning. CNBC offers Aereo CEO Chet Kanojia’s thoughts on the future of Aereo now that they have received this favorable ruling.

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Federal Circuit Revisits Patentable Subject Matter Following Prometheus
By Jeffery Habenicht – Edited by Dorothy Du

CLS Bank Int’l v. Alice Corp. Pty. Ltd, No. 2011-1301 (Fed. Cir. July 9, 2012)
Slip opinion

The Federal Circuit reversed the D.C. District Court’s decision to grant summary judgment against Alice Corporation (“Alice”). CLS Bank Int’l v. Alice Corp. Pty. Ltd, No. 2011-1301, slip op. at 2, 6–7 (Fed. Cir. July 9, 2012). The district court had held that Alice’s patents were invalid for failure to claim patentable subject matter. CLS Bank Int’l v. Alice Corp., 768 F. Supp. 2d 221 (D.D.C. 2011).

The Federal Circuit held that Alice’s patents were patentable under § 101 because they were directed to “practical applications of invention.” Slip op. at 2. The court found that the “abstractness of the ‘abstract ideas’ test” set forth in Bilski II rendered the test overly “elusive.” Id. at 13–15 (citing Bilski v. Kappos, 130 S. Ct. 3218 (2010)). The court grappled with the difficulty of ensuring that overly broad patents do not unduly foreclose subsequent innovation, while taking care not to improperly ignore “meaningful limit[s]” on patent scope. Id. at 18–20 (quoting SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1333 (Fed. Cir. 2010)). In order to address this difficulty, the Federal Circuit set forth a new test—perhaps better described as a presumption—for patentability: So long as “it is not manifestly evident that a claim is directed to a patent ineligible abstract idea,” that claim should survive a § 101 inquiry. Id. at 20.

In so holding, the Federal Circuit introduced another jigsaw-piece to the puzzle that is patentable subject matter. Given the Supreme Court’s recent interest in the topic, this opinion could serve as a vehicle for further clarification regarding the theoretical limits of § 101.

Thompson Reuters provides an overview and analysis of the case. Patently-O explores the differences between the majority opinion and the dissent, and suggests that the dissent may hew closer to Supreme Court precedent.
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Confrontation Clause: When Forensic Reports Are Testimonial Remains Unclear
By Heather Whitney – Edited by Charlie Stiernberg

Williams v. Illinois, No. 10-8505, 2012 WL 2202981 (U.S. June 18, 2012)
Slip opinion

In a fractured decision, the Supreme Court held that an expert witness could testify about a DNA test not entered into evidence and performed by a non-testifying analyst without violating the Confrontation Clause. However, with five Justices expressly rejecting the entirety of the plurality’s analysis, no majority agreed on the reasoning underlying the decision. Thus, lower courts continue to lack clear guidance as to when a forensic report is testimonal for Confrontation Clause purposes and, in cases where a forensic report is considered testimonial, which and how many analysts must testify. (more…)

By Erin Pritchard

Facebook and Yahoo Settle & Share

Facebook and Yahoo announced last Friday, June 6^, that they have settled all patent disputes between the two companies and are entering into an advertising partnership, according to CNN. The companies came to a no-cash exchange settlement agreement by entering into a cross-license deal which allows access to one another’s patent portfolios as well as a new advertising partnership. Yahoo filed a complaint against Facebook in March 2012 in the U.S. District Court in the San Jose Division of the Northern District of California, alleging that Facebook infringed ten of Yahoo’s patents in methods of advertising, privacy controls, and social networking. Just a few weeks later, Facebook then hit back at Yahoo with its own lawsuit the following month. Facebook denied Yahoo’s claims of patent infringement and said that Yahoo had infringed ten Facebook patents.

The Tech IPO Boom Isn’t Over

After the troublesome Facebook IPO last May, market analysts began questioning whether the tech IPO market would die out for at least the near future. But the success of the ServiceNow IPO from two weeks ago has encouraged analysts about the tech IPO market, according to CBSnews. ServiceNow, a provider of cloud-based information technology services, was one of the first technology IPOs since Facebook. ServiceNow’s IPO price was $18 per share and and it closed on the New York Stock Exchange up 37 percent at $24.60, giving the company a valuation of over $2 billion, reported Bloomberg.  After ServiceNow, tech companies may shake off the Facebook IPO scare and jump back into the IPO market.

Kim Dotcom’s Offer to Surrender

Last January, the United States Department of Justice indicted Megaupload for copyright infringement, and then seized and shut down the domain names and the sites associated with Megaupload, as JOLT Digest previously reported. After an arrest in New Zealand last January, there have been efforts to extradite Dotcom and other accused Megaupload employees.  Now, Kim Dotcom and his Megaupload associates are offering to turn themselves in and fly to the United States without an extradition hearing in New Zealand upon the condition that Dotcom receives a fair trial guarantee and return of money to support their families and to pay legal fees, reports Wired.  Last Wednesday, Dotcom tweeted “Hey DOJ, we will go to the US. No need for extradition.  We want bail, funds unfrozen for lawyers & living expenses.”  However, Dotcom claims that the FBI will never take his offer as it can’t win the case against him and Megaupload.

Erin Pritchard is a 3L at Harvard Law School.

Twitter Must Produce Occupy Wall Street Protestor’s Data
By Sarah Jeong – Edited by Michael Hoven

People of the State of New York v. Malcolm Harris, Docket No. 2011NY080152 (N.Y. Crim. Ct. June 30, 2012)
Decision and Order (hosted by the ACLU)

The Criminal Court of the City of New York denied Twitter’s motion to quash a subpoena, thereby allowing discovery of defendant Malcolm Harris’s tweets and other non-content information collected by Twitter.

On January 26, 2012, the New York County District Attorney subpoenaed Twitter to produce user information and tweets posted from September 15, 2011 to December 31, 2011 from the Twitter account @destructuremal, belonging to Occupy Wall Street protestor Malcolm Harris. Harris filed a motion to quash the subpoena, which was denied by the court on April 20, 2012. Twitter then filed its own motion to quash the April 20 order. After the court’s most recent reply on June 30, Twitter must surrender the data in question. The court described its decision as granting the motion in part and denying it in part, but it only modified its April 20 order to the extent that a search warrant was required for data less than 180 days old—that is, only for anything posted on December 31, a single day out of the three-and-a-half month period specified by the District Attorney.

Ars Technica provides an overview of the case. Digital Journal provides additional background information. Electronic Discovery Law discusses the court order with in-depth commentary.

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