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Observing Mauna Kea’s Conflict

Written by: Aaron Frumkin

Edited by: Anton Ziajka

Believing the machinery desecrates their sacred summit and the scarce natural resources it shelters, native Hawaiians have opposed telescope development on Mauna Kea. While it seems that their beleaguered resistance to telescope development will fail yet again with the proposed Thirty Meter Telescope (TMT), this Note attempts to articulate their best arguments in hopes of properly framing the social costs associated with the great scientific and technological gains that TMT will surely provide.

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Federal Circuit Flash Digest: News In Brief

By Cristina Carapezza

Rosen Wins TV Headrest Patent Suit

Federal Circuit Allows for Declaratory Judgment of Noninfringement for Disclaimed Patent

Federal Circuit Prohibits Third Party Challenges to Patent Application Revivals Under the APA

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Government Agents Indicted for Wire Fraud and Money Laundering in Silk Road Investigation

By Sheri Pan – Edited by Jens Frankenreiter

Two former Drug Enforcement Administration agents have been charged for wire fraud and money laundering in connection with an investigation of Silk Road, a digital black market that allowed people to anonymously buy drugs and other illicit goods using Bitcoin, a digital currency. The two agents were members of the Baltimore Silk Road Task Force and allegedly used their official capacities and resources to steal Bitcoins for their personal gain.

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Mississippi Attorney General’s investigation of Google temporarily halted by federal court

By Lan Du – Edited by Katherine Kwong

On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google’s motion for a temporary restraining order and preliminary injunction. U.S. District Judge Henry T. Wingate issued the opinion. Judge Wingate found a substantial likelihood that Hood’s investigation violated Google’s First Amendment rights by content regulation of speech and placing limits of public access to information.

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Federal Circuit Flash Digest

By Ken Winterbottom

J.P. Morgan Appeal Dismissed for Lack of Jurisdiction

Court Agrees with USPTO: Settlement Agreements Are Not Grounds for Dismissing Patent Validity Challenges

Attorney Misconduct-Based Fee-Shifting Request Revived in Light of Recent Supreme Court Decision

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By Kyle Pietari – Edited by Suzanne Van Arsdale

Photo By: Marc SmithCC BY 2.0

Limelight Networks, Inc. v. Akamai Technologies, Inc., et al., No. 12-786 (U.S. June 2, 2014)

Slip Opinion

A unanimous Supreme Court reversed the en banc United States Court of Appeals for the Federal Circuit, which had found that Limelight Networks, Inc. (“Limelight”) could be liable for inducing infringement of a method patent licensed to Akamai Technologies, Inc. (“Akamai”) by performing several of the method’s claimed steps, and then encouraging its customers to complete a final step.

The Supreme Court held that there can be no liability for induced infringement of a method patent under 35 U.S.C. § 271(b) unless direct infringement has occurred under § 271(a) or another statutory provision. Akamai, slip op. at 1. Under Federal Circuit case law, direct infringement liability under § 271(a) requires that a single party perform all steps of the claimed method. Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318, 1329. In Muniauction, the Federal Circuit clarified that this requirement is satisfied even if multiple parties perform the steps, so long as one defendant  “exercises ‘control or direction’ over the entire process such that every step is attributable to the controlling party.” Id. Limelight argued and the Supreme Court agreed that, because Limelight did not control its customers’ performance of a step in the claimed method, but merely helped them independently perform that step, direct infringement never occurred under § 271(a). Akamai, slip op. at 2, 5–6. The Supreme Court further ruled that, absent direct infringement, there could be no inducement of infringement under § 271(b), and it rejected the Federal Circuit’s reasoning that induced infringement liability could be predicated on a direct infringement that occurred outside of any statutory provisions. Id. at 4–6.

Patent Docs provides a thorough summary of the case. IPcopy provides commentary about the case’s potential relevance for patent attorneys. PatentlyO analyzes the Federal Circuit’s motivations behind its decision, concluding that it has a “fundamental discomfort with strict liability.” (more…)

Posted On Jun - 24 - 2014 Comments Off READ FULL POST

Eleventh Circuit Finds Cell Site Location Data Requires Warrant
By Sheri Pan – Edited by Sarah O’Loughlin

United States v. Quartavious Davis, No. 12-12928 (11th Cir. 2014) Slip Opinion hosted by American Civil Liberties Union

Photo By: Kai Hendry - CC BY 2.0

Photo By: Kai HendryCC BY 2.0

On June 11, 2014, the United States Court of Appeals for the Eleventh Circuit reached a decision in United States v. Quartavious Davis, affirming in part and vacating in part a February 2011 grand jury indictment of Quartavious Davis and five co-defendants for participating and conspiring in several robberies.  During the pre-trial and trial proceedings, Davis moved to suppress cell site information, location data from cellphone service providers that indicate the cell towers near which an individual placed and received phone calls.  The specific cell site data in question showed Davis near the crime scenes of six out of the seven robberies.  Both the pre-trial and trial courts denied his motions, and the jury convicted him on all counts.

On appeal, Davis argued that the court erroneously admitted the cell site location information because the government obtained the data through a court order, not a search warrant. The Stored Communications Act (“SCA”), the statute under which a government entity can obtain subscriber information from electronic communications providers, requires probable cause for a warrant, but only “reasonable grounds to believe that  . . . the records are relevant and material” for a court order.  § 2703(c)–(d).

The question was one of first impression for the court.  Reviewing past search and seizure cases, the court concluded that the Fourth Amendment protects against unreasonable searches and seizures of electronic communications.  Next, it analyzed the Supreme Court’s opinion in United States v. Jones, where the government had installed a GPS device on the defendant’s vehicle to capture location data.  While Jones involved physical trespass and thus could not conclusively determine the case at hand, the appellate court relied on the Supreme Court’s majority and concurring opinions to determine that the idea that the Fourth Amendment protects a person’s privacy rights regardless of whether a trespass has occurred, is “alive and well.”  Because a person carries his cellphone into private spaces, even one point of cell site information is within a subscriber’s reasonable expectation of privacy.  Further, that expectation does not diminish when a subscriber shares the information with a third party such as a communications provider, because most customers are likely unaware that their providers are collecting such information.  Consequently, the government cannot obtain cell site location data without a search warrant.  Despite the court’s finding, however, it ruled that the district court did not commit reversible error under the Leon Exception because the officers acted in good faith in obtaining the court order.

Jennifer Granick, a Director of Civil Liberties at the Stanford Center for Internet and Society, in a blog post for Just Security argued that Davis may help undermine legal support for the NSA’s bulk metadata collection by asserting that people have a reasonable expectation of privacy to records kept by a third party communications provider.  On the other hand, Orin Kerr, writing for the Washington Post, critiqued the decision, arguing that a reasonable expectation of privacy is based not on the information involved, but the means through which the government obtains the information.  He also questioned the court’s conclusion that most people are unaware that they are sending their information to the provider of their services.

Just Security and Washington Post provide commentary.

Posted On Jun - 24 - 2014 Comments Off READ FULL POST

Icon-newsBy Patrick Gutierrez

6th Circuit holds TheDirty.com immune to suit for defamatory comments made on its website

Earlier this week the Sixth Circuit held that a gossip site, www.TheDirty.com, was not responsible for a defamatory post made by a third party on its website, reversing the lower court’s decision. Jones v. Dirty World Entm’t Recordings, LLP, No. 13-5946 (6th Cir. June 16, 2014). Although an editorial note made by the defendant was appended to the posting on the website, the appeals court ruled that the defendant’s actions were immune to suit under the Communications Decency Act (“CDA”), 47 U.S. Code § 230, which provides that no “provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The Sixth Circuit reasoned that plaintiff’s claims were barred by the CDA since the website “did not author” or “materially contribute to the illegality” of the third party postings. Jones at 22. Evan Brown provides commentary. (more…)

Posted On Jun - 23 - 2014 Comments Off READ FULL POST

Written by: Christopher A. Crawford 

Edited by: Loly Sosa

INTRODUCTION

Since 9/11, Congress has expanded the Foreign Intelligence Surveillance Act of 1978 (“FISA”) several times in order to meet the needs of agencies tasked with defending the U.S. against terrorist attacks. Notable expansions include the PATRIOT Act of 2001, but much of the recent controversy surrounds the FISA Amendments Act of 2008 (“FAA”). In 2008, Congress passed the FAA to expand the legal foundation for more systematic surveillance, “establish[ing] a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” Title VII, § 702 of the FAA is cited by the government as permitting so-called “warrantless wiretaps” on foreign citizens for intelligence-gathering purposes. According to the American Civil Liberties Union (“ACLU”), however, this law allows the National Security Agency (“NSA”) “access to [American citizens’] international communications without warrants, without any suspicion of wrongdoing, and without ever identifying the targets of its surveillance to a court.”

However, the ACLU’s challenge to the FAA last year in Clapper v. Amnesty International failed because plaintiffs, who were American citizens, had no standing; in other words, they could not prove that they had been injured by the law. Plaintiffs had alleged that the FAA’s § 702 surveillance powers were too broad and too vulnerable to abuse against people like themselves who might communicate with a targeted foreign citizen. Justice Alito, writing for the majority, found that the plaintiffs were being overly paranoid and that there was no evidence of the law’s misuse—in other words, plaintiffs needed a “smoking gun” that their privacy had been violated before they could gain standing. (more…)

Posted On Jun - 14 - 2014 Comments Off READ FULL POST

By Andrew Spore – Edited by Travis West

Case C-435/12, ACI Adam BV v. Stichting de Thuiskopie (E.C.J. Apr. 10, 2014)
Slip Opinion

In response to an order issued by the European Court of Justice (“ECJ”) on April 10, 2014, the Netherlands has banned the unauthorized downloading of copyrighted material, effective immediately. According to Techdirt, the Dutch government previously had allowed such downloading for personal use because it believed that such a policy was consistent with European Union copyright law. The ECJ held that the Dutch legislation, “which makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources cannot be tolerated.” ACI, slip op. at ¶ 37. (more…)

Posted On Apr - 20 - 2014 1 Comment READ FULL POST
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Photo By: Jeff Ruane - CC BY 2.0

Observing Mauna Kea'

Written by: Aaron Frumkin Edited by: Anton Ziajka I.     Introduction Perched quietly atop ...

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Federal Circuit Flas

By Cristina Carapezza Rosen Wins TV Headrest Patent Suit The Federal Circuit ...

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Government Agents In

By Sheri Pan - Edited by Jens Frankenreiter United States v. ...

Photo By: Robert Scoble - CC BY 2.0

Mississippi Attorney

[caption id="attachment_3907" align="alignleft" width="150"] Photo By: Robert Scoble - CC ...

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Federal Circuit Flas

By Ken Winterbottom J.P. Morgan Appeal Dismissed for Lack of Jurisdiction In ...