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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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European Union Court of Justice Holds that Individuals Browsing Websites are not in Violation of Copyright Law
By Kellen Wittkop – Edited by Yixuan Long

The Court of Justice of the European Union (CJEU) agreed with the decision of the Supreme Court of the United Kingdom that webpage viewers do not need license to view copyrighted materials online. With this holding, the CJEU issued a crucial decision for European Union law, balancing the rights of copyright holders and the rights of individuals to browse authorized content without being liable for infringement.

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Georgia Supreme Court Takes Chan v. Ellis Appeal to Redefine First Amendment Right on the Internet
By Yixuan Long – Edited by Emma Winer

The Georgia Court of Appeals ordered the appeal in Ellis v. Chan be transferred to the Georgia Supreme Court. Chan, an interactive website owner, appealed the trial court’s permanent protective order, which commanded him to take down more than 2000 posts on his website, and forbade him from coming within 1000 yards of Ellis. The Court of Appeals decided that the case raised significant and novel constitutional issues regarding the First Amendment right and the internet.

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Federal Circuit Flash Digest: News in Brief

By Kellen Wittkop

Appeal of a contempt order for violation of patent injunction agreement dismissed for lack of jurisdiction

Federal Circuit affirms summary judgment of Apple’s noninfringement on GBT’s CDMA patents

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ITC’s review of an ALJ’s order was not procedurally sound
By Mengyi Wang – Edited by Sarah O’Loughlin

The United States Court of Appeals for the Federal Circuit unanimously vacated and remanded a decision of the International Trade Commission (“ITC”), finding that the ITC exceeded its authority in reviewing an administrative law judge’s (“ALJ”) order denying a motion for termination. In so holding, the Court rejected the ITC’s attempt to characterize the ALJ’s decision as an initial determination, which would be subject to review.

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1-800 Contacts, Inc. v. Lens.com, Inc.
By Casey Holzapfel – Edited by Michelle Sohn

1-800 Contacts, Inc. v. Lens.com, Inc., No. 11-4114, -4204, -4022 (10th Cir. July 16, 2013)
Slip opinion

The United States Court of Appeals for the Tenth Circuit held that the use of a competitor’s trademark as a keyword that activates sponsored links in Google’s search engine is not trademark infringement. 1-800 Contacts, Inc. v. Lens.com, Inc., No. 11-4114, -4204, -4022 (10th Cir. July 16, 2013). The court affirmed the lower court’s summary judgment to defendant Lens.com with respect to 1-800 Contacts’ claim that Lens.com was directly liable for misdirecting customers to click on links to Lens.com after searching for the phrase “1-800 Contacts.” Id. at 4.

JDSupra provides an overview of the opinion. Techdirt critiques in detail the Tenth Circuit’s reasoning. JOLT notes that U.S. trademark law does not accurately reflect the actual risk of customer confusion in keyword advertising. (more…)

Posted On Jul - 30 - 2013 Comments Off READ FULL POST

United States Marine, Inc. v. United States
By Jonathan Sapp – Edited by Elise Young

United States Marine Inc. v. United States, No. 12-1678 (Fed. Cir. July 15, 2013)
Slip opinion hosted at bloomberglaw.com

Photo By: Blatant WorldCC BY 2.0

The U.S. Court of Appeals for the Federal Circuit affirmed the Fifth Circuit’s ruling, thus transferring the defense contractor’s trade secrets claim to the Court of Federal Claims. In affirming the Fifth Circuit ruling, the court determined that the plaintiff’s case was predicated on a breach of contract — not torts — claim and thus relied on the Tucker Act, which provides the Court of Federal Claims with “exclusive jurisdiction over a claim ‘founded . . . upon any express or implied contract with the United States . . . .’” United States Marine Inc. v. United States (hereinafter “USM”), No. 12-1678 at 11 (Fed. Cir. July 15, 2013) (quoting 28 U.S.C. § 1491(a)(1)).

The Trade Secrets Vault provides an overview of the case. Bloomberg BNA provides a thorough analysis of the Federal Circuit’s rationale. PubKLaw criticized the Fifth Circuit decision and expressed concern over whether it would be affirmed, stating that it “runs counter to a long-standing body of law that allows even parties to a government contract to assert tort claims for misconduct that goes beyond their contractual relationship.” (more…)

Posted On Jul - 29 - 2013 Comments Off READ FULL POST

By Simon Heimowitz

Icon-newsSeventh Circuit Affirms Dismissal of Copyright Infringement Suit Against Elton John

In Hobbs v. John, No. 12-3652  (7th Cir. July 17, 2013), the Court of Appeals for the Seventh Circuit affirmed the U.S. District Court for the Northern District of Illinois’ dismissal of a lawsuit brought against Sir Elton John, alleging that his hit song “Nikita” illegally borrowed numerous themes from “Natasha”, a song copyrighted by Guy Hobbs. Hobbs, slip op. at 15. Both songs describe a relationship between a westerner and a woman in Communist Russia. Id. at 2. In determining that there was no copyright infringement by Elton John, the court looked to “two well-established principles of copyright law.” Id. at 11. First, U.S. copyright law “does not protect general ideas, but only the particular expression of an idea.” Id. The court concluded that the expression of the themes in the two songs were not substantially similar. While both dealt with a romantic relationship during the Cold War, the court parsed the lyrics to determine that each song presented “different stories about impossible romances during the Cold War.” Id. at 12.  Secondly, “even at the level of particular expression, the Copyright Act does not protect ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.’” Id. at 11 (citations omitted). A number of other similarities between the two songs, including the names of the songs, both being Russian and beginning with the letter “N” and ending with the letter “A,” were not enough to establish infringement. Id. at 14. “[T]he United States Copyright Office’s Registered Works Database reveals that numerous works share the titles ‘Natasha’ and ‘Nikita’” Id. (citation omitted). As such, the court considered the songs’ similarities “commonplace in love songs” and not “substantially similar” enough to warrant a finding of infringement. Id. at 15. Hollywood Reporter and Radio.com provide commentary on the case.

Marvel Exempt from Paying Royalties for Spiderman Web Blaster after Patent Expiration

The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the District of Arizona’s summary judgment that Marvel was no longer required to pay royalties to Stephen Kimble for his patented Spiderman web (foam)-shooting toy, a design that Kimble claimed he had created and pitched to Marvel in 1990. Kimble v. Marvel Enterprises, Inc., No. 11-15605 at 23 (9th Cir. July 16, 2013). In 2001, after a district court had found that Marvel had not infringed Kimble’s patent but had breached their contract, the parties had agreed to a settlement. Id. at 5–6.  Disagreement between the two parties concerning royalties instigated the current suit, with Marvel claiming that since the patent had expired, the settlement agreement was no longer enforceable. Id. at 8. The circuit court determined that, based on Brulotte v. Thys Co., 379 U.S. 29 (1964), “a license for inseparable patent and non-patent rights involving royalty payments that extends beyond a patent term is unenforceable for the post-expiration period unless the agreement provides a discount for the non-patent rights from the patent-protected rate.” Id. at 16. In this case, the court found that no discount was provided, and thus Marvel was no longer required to pay royalty fees to Kimble for its Spiderman Web Blaster. Id. at 17. Patently-O describes the holding of the case and its implications, and azstarnet.com provides commentary.

Senator Leahy Suggests that the NIH “March-In” on Myriad’s Patent Rights

As reported by JDSupra, Senator Patrick Leahy wrote a letter earlier this month to the NIH, requesting that the agency exercise its right to “march-in” and demand that Myriad license its patented diagnostic testing kits. Letter from Patrick Leahy, Senator (D-VT), to Francis Collins, Director, NIH (July 12, 2013) (“Letter”). The Supreme Court recently ruled unpatentable Myriad’s claims to isolated DNA encoding the BRCA genes, mutations of which correlate strongly with the development of breast and ovarian cancer. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 at 1 (569 U.S. ___ June 13, 2013). However, the court found patentable Myriad’s claims to complementary DNA (“cDNA”) encoding the same genes. Id. Under the Bayh-Dole Act, 35 U.S.C. § 203(a)(2) (2006), a federal agency may require a “small business firm or nonprofit organization” that received funding from the agency to license its patent rights if “action is necessary to alleviate health or safety needs which are not reasonably satisfied by the [patent] contractor, assignee, or their licensees . . . .” Myriad received federal funding in developing its diagnostic tests, which it now markets for between $3,000 and $4,000. In his letter, Senator Leahy expressed concern “that the health needs of the public are not reasonably satisfied by the patentee in this situation because . . . many women are not able to afford the testing,” Letter at 2, which would justify the NIH’s use of march-in rights to force Myriad to license the patents.

Posted On Jul - 24 - 2013 Comments Off READ FULL POST

Microsoft Corp. v. Dep’t of Homeland Sec.
By Katherine Walecka – Edited by Kathleen McGuinness

Complaint, Microsoft Corp. v. Dep’t of Homeland Sec., No. 1:13-cv-01063-RWR (D.D.C. July 12, 2013)
Complaint hosted by PriorSmart.com

Microsoft filed a complaint against Customs and Border Protection (“CBP”) and the Department of Homeland Security (“DHS”), among others, alleging that CBP failed to implement a May 2012 International Trade Commission (“ITC”) exclusion order blocking the importation of Motorola cell phones and other mobile devices that were found to infringe Microsoft’s patent rights. Complaint, Microsoft Corp. v. Dep’t of Homeland Sec., No. 1:13-cv-01063-RWR at 2–3 (D.D.C. July 12, 2013).

Reuters provides a summary of the case. Bloomberg discusses the DHS’s possible motivations in the case. Wall St. Cheat Sheet has information about the business implications of the CBP’s policies. (more…)

Posted On Jul - 22 - 2013 Comments Off READ FULL POST

By Michelle Sohn – Edited by Katie Mullen

Photo By: mkhmarketingCC BY 2.0

Last week, Twitter, traditionally a stalwart opponent of government surveillance requests, released to French prosecutors the identities of users who had tweeted anti-Semitic comments in violation of France’s hate speech laws. The social media giant’s capitulation follows a series of legal battles over the issue, including a $50 million lawsuit for failing to provide the information.

Boing Boing provides a brief overview of the controversy. The New York Times offers a more thorough analysis, noting that Twitter’s legal battles and its final acquiescence to the French government reveal the balancing act Silicon Valley companies must often perform in championing free speech while complying with various countries’ laws. Ars Technica summarizes the hate speech incident and legal arguments both sides made. (more…)

Posted On Jul - 21 - 2013 1 Comment READ FULL POST
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European Union Court

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