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Flash Digest: News in Brief

By Olga Slobodyanyuk

ICANN responds to terrorism victims by claiming domain names are not property

D.C. District Court rules that FOIA requests apply to officials’ personal email accounts

Class-action lawsuit brought against ExamSoft  in Illinois

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Federal Circuit Applies Alice to Deny Subject Matter Eligibility of Digital Imaging Patent

By Amanda Liverzani – Edited by Mengyi Wang

In Digitech Image Technologies, the Federal Circuit embraced the opportunity to apply the Supreme Court’s recent decision in Alice to resolve a question of subject matter eligibility under 35 U.S.C. §101. The Federal Circuit affirmed summary judgment on appeal, invalidating Digitech’s patent claims because they were directed to intangible information and abstract ideas.

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Unlocking Cell Phones Made Legal through Unlocking Consumer Choice and Wireless Competition Act

By Kellen Wittkop – Edited by Insue Kim

Unlocking Consumer Choice and Wireless Competition Act allows consumers to unlock their cell phones when changing service providers, but the underlying issue of “circumvention” may have broader implications for other consumer devices and industries that increasingly rely on software.

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SDNY Magistrate Grants Government Search Warrant for Full Access to Suspect’s Gmail Account in Criminal Investigation

By Kellen Wittkop – Edited by Travis West

In an opinion that conflicts with decisions from the DC District Court and the District of Kansas, a SDNY magistrate granted the government’s search warrant for full access to a criminal investigation suspect’s Gmail account.

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Creating full-text searchable database of copyrighted works is “fair use”
By Yixuan Long- Edited by Sarah O’Loughlin

In a unanimous opinion delivered by Judge Parker, the Second Circuit held that under the fair use doctrine universities and research libraries are allowed to create full‐text searchable databases of copyrighted works and provide such works in formats accessible to those with disabilities. The court also decided that the evidence was insufficient to decide whether the plaintiffs had standing to bring a claim regarding storage of digital copies for preservation purposes.

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Delfi AS v. Estonia
By Jennifer Garnett – Edited by Elise Young

Delfi AS v. Estonia, no. 64569/09, Eur. Ct. H.R. (October 10, 2013)
Judgment

Photo By: Eugene RegisCC BY 2.0

The European Court of Human Rights  (“ECHR”) upheld Estonian court rulings that Delfi, an online news portal in Estonia, was liable for defamatory comments posted by its users. Delfi AS v. Estonia, no. 64569/09, ¶¶7, 94, Eur. Ct. H.R. (October 10, 2013). Delfi was fined 5,000 kroons (approximately $426) in damages. Id. at ¶23. The ECHR affirmed the finding that Delfi could be held liable as a “publisher” of the work, id. at ¶50, and held that the decisions represented a “justified and proportionate” restriction on Delfi’s freedom of expression under Article 10 of the European Convention on Human Rights (“Convention”). Id. at ¶94. In so holding, the ECHR noted that Delfi was “expected to exercise a degree of caution” in monitoring comments on predictably controversial articles. Id. at ¶86. The ECHR further held that it was both practical and reasonable to hold Delfi liable, as the actual authors of the comments were anonymous and Delfi derived a commercial benefit from allowing its users to comment. Id. at ¶¶91, 93. The decision, however, may still be appealed.

Index, Forbes, and the International Business Times, strongly criticize the case, arguing that the decision departs from the traditional approach to liability for anonymous comments, and that the result could have far-reaching implications for Internet liability and the freedom of anonymity. Inforrm’s Blog features a thorough and critical analysis of the Court’s decision. The ECHR’s press release may be found here. (more…)

Posted On Oct - 19 - 2013 Comments Off READ FULL POST

By Mark Verstraete

Icon-newsMassachusetts District Court Denies Motion For Preliminary Injunction against Aereo

The United States District Court for the District of Massachusetts denied a motion for preliminary injunction against Aereo, Inc. (“Aereo”), a company that captures television broadcast signals with individualized antennas and streams the broadcasts to paying subscribers. Hearst Stations Inc. v. Aereo, Inc., No. 13-cv-11649, at 3 (D. Mass. October 8, 2013). Hearst Stations Inc. (“Hearst”) claimed that use of Aereo’s technology directly infringes on exclusive rights guaranteed to Hearst as copyright holder under 17 U.S.C §106. In denying the motion, the court assessed the likelihood of Hearst succeeding on the merits and the likelihood of Hearst suffering irreparable damage without injunctive relief (Hearst, No. 13-cv-11649 at 8). The analysis of Hearst’s success on the merits focused predominately on whether Aereo “perform[ed] the copyrighted [audiovisual] work publicly,” a right exclusively reserved for the copyright holder. Id. at 9. The court reasoned that Aereo’s activities did not constitute a “public performance” because Aereo’s manner of transmitting TV signals creates “copies unique to each user and only at the user’s request.” Id. at 11. The court conceded that it was possible that Hearst could experience irreparable harm but concluded that the harm, if it did occur, would most likely materialize after the litigation and that demonstrating the potential for harm does not outweigh Hearst’s failure to show likelihood of success on the merits. Id. at 18. JOLT Digest covered earlier disputes involving Aereo, including the United States Court of Appeals for the Second Circuit’s affirming the denial of a preliminary injunction against Aereo brought by several broadcast TV networks. ArsTechnica provides further coverage.

Airbnb Responds to Subpoena from New York Attorney General

Airbnb, Inc. (“Airbnb”), a company that provides an online platform for connecting “Hosts” that seek to rent their accommodations to “Guests” seeking accommodations, responded to a subpoena demanding information about 15,000 of its New York Hosts to determine if the Hosts’ practices violated New York laws regulating rental agreements and taxes. Airbnb, Inc. v. Schneiderman, Memorandum of Law in Support of the Verified Petition, at 1 (N.Y. Sup. Ct. October 9, 2013) (Hosted by ArsTechnica).  Airbnb contends that the subpoena implicates serious privacy concerns because it is overly broad. Id. at 4. That is, Hosts that are “not subject to the laws” or “are exempt from the tax scheme” may fall within the scope of the requested information. Id. at 2. Airbnb also pushed back on the New York housing laws themselves by claiming that they are inherently vague and thus fail to give fair notice. Id. at 6.

Delaware District Court Dismisses Class Action Suit Against Google Regarding Personally Identifiable Information

A federal judge dismissed a class action suit against Google because the plaintiffs had failed to show “an injury in fact” and thus lacked standing to bring the suit. In Re: Google Inc. Cookie Placement Consumer Privacy Litigation, No. 12-md-02358-SLR (D. Del. October 9, 2013) (Hosted by The Am Law Daily). The claim against Google arose from its practice of embedding advertisements with code that deceives Apple Safari and Internet Explorer into accepting third-party cookies. Id. at 1. The plaintiffs claim that the manipulation of an Internet browser into accepting cookies infringes on their economic interests – constituting an injury in fact – because it provides the defendants with the plaintiffs’ valuable information without paying for it. Id. at 4. The plaintiffs supported the idea that their personal information is economically valuable because it can be sold directly to advertisers. Id. at 5. The court reasoned that, although the plaintiffs demonstrated that personal data has value, they failed to show that their ability to monetize their data “has been diminished or lost by virtue of Google’s previous collection of it.” Id. at 6-7. Thus, the plaintiffs failed to allege an injury-in-fact and lacked Article III standing. TechCrunch contextualizes the decision within the larger Federal Trade Commission investigation.

Posted On Oct - 15 - 2013 Comments Off READ FULL POST

By Travis West – Edited by Ashish Bakshi

Photo By: Robson#CC BY 2.0

The National Security Agency (“NSA”) has developed techniques to circumvent the anonymity offered by the Tor network. Tor is a service that anonymizes users’ Internet traffic by routing requests to websites and other services through multiple servers, making it extremely difficult to track. While the NSA can track some Tor users, the agency has been unable to crack the underlying technology and instead relies on tools like browser exploits and its direct access to the Internet backbone to intercept website requests.

The Guardian and The Washington Post published the original stories based on documents leaked by Edward Snowden. Bruce Schneier of The Guardian provided a technical analysis of the NSA’s techniques. Ars Technica and Time Techland provided additional coverage. (more…)

Posted On Oct - 12 - 2013 Comments Off READ FULL POST

Société des Produits Nestlé S.A. v. Cadbury UK Ltd.
By Anton Ziajka – Edited by Abhilasha Nautiyal

Société des Produits Nestlé S.A. v. Cadbury UK Ltd., [2013] EWCA (Civ) 1174 (October 04, 2013)
Judgment hosted by BAILII

Britain’s Court of Appeal (Civil Division) reversed an order of the High Court of Justice (Chancery Division) that had approved for registration Cadbury UK Ltd.’s (“Cadbury”) Trade Mark application No. 2 376 879 (“the ‘879 application”) for a specific shade of purple to be used on the packaging of its chocolate products. The Court of Appeal held that Cadbury’s color mark did not qualify as a trade mark under the Trade Marks Directive 2008/95 (“the Directive”). 2008 O.J. (L 299) 25, 26 (EC). The Court held that “an application to register a trade mark must satisfy three conditions …: (i) there must be a sign; (ii) it must be capable of graphical representation; [and] (iii) it must be capable of distinguishing the goods or services of one undertaking from those of other undertakings.” Société des Produits Nestlé S.A. v. Cadbury UK Ltd., [2013] EWCA (Civ) 1174 at ¶15. The Court concluded that Cadbury’s impugned mark did not constitute “a sign” that is “graphically represented” and thus failed to satisfy conditions (i) and (ii) of Article 2 of the Directive. Id. at ¶51. To allow registration of a trademark with such vagueness, the Court noted, would offend both “the principle[s] of certainty…[and] of fairness,” in part because “competitors… would not be able to tell from inspecting the register the full scope and extent of the registration.” Id. at ¶52.

The Guardian and World Intellectual Property Review provide coverage of the decision. The Washington Post compares the decision with several prominent United States cases involving color trade marks. The IPKat provides further analysis and commentary on the case and related decisions. (more…)

Posted On Oct - 11 - 2013 Comments Off READ FULL POST

By Simon Heimowitz – Edited by Kathleen McGuinness

Photo By: Sean MacEnteeCC BY 2.0

On August 3, the Obama administration issued a veto on an International Trade Commission (“ITC”) exclusion order that had effectively banned the importation of some older models of the iPhone and iPad. Letter from Michael B. G. Froman, U.S. Trade Representative, to Irving A. Williamson, Chairman, ITC (Aug. 3, 2013). The ITC had ordered the ban on older Apple devices — the iPhone 3GS, iPhone 4, iPad 3G and iPad 2 3G distributed with cellular service by AT&T — after agreeing with Samsung that Apple had infringed one of Samsung’s standard-essential patents (“SEPs”). The ban would have gone into effect on August 5. Ambassador Froman expressed the administration’s decision to veto the exclusion order as the result of “extensive consultations with the agencies of the Trade Policy Staff Committee and the Trade Policy Review Group, as well as other interested agencies and persons,” after which he “decided to disapprove the USITC’s determination to issue an exclusion order and cease and desist order in this investigation.” Letter at 3. As reported by Forbes.com, Froman noted the administration’s decision was made after taking into account the “effect on competitive conditions in the U.S. economy and the effect on U.S. consumers.” Id.

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Posted On Sep - 14 - 2013 Comments Off READ FULL POST
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Flash Digest: News i

By Olga Slobodyanyuk ICANN responds to terrorism victims by claiming domain ...

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Federal Circuit Appl

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SDNY Magistrate Gran

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Creating full-text s

Creating full-text searchable database of copyrighted works is “fair use” By ...