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In Response to Ruling by European Court of Justice, Netherlands Bans Unauthorized Downloading of Copyrighted Material
By Andrew Spore – Edited by Travis West

ACI Adam BV v. Stichting de Thuiskopie

In response to an order issued by the European Court of Justice (“ECJ”), the Netherlands has banned the unauthorized downloading of copyrighted material. The Dutch government previously had allowed such downloading for personal use. The ECJ held that, because the law “makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources,” it could not be tolerated.

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Flash Digest: News In Brief
By Olga Slobodyanyuk

Amici urge the Ninth Circuit to reconsider its ruling in the “Innocence of Muslims” case

Record companies sue Pandora for royalties on songs made before 1972

Alleged Heartbleed hacker arrested

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Specific Facts Supporting Indirect Infringement Required for Software Supplier to Obtain Declaratory Judgment Against Patentee Suing End Users
By Geng Chen – Edited by Ashish Bakshi

Microsoft Corp. v. DataTern, Inc., No. 13-1184 (Fed. Cir. Apr. 4, 2014)

The Federal Circuit held that Microsoft and SAP had standing to bring invalidity and noninfringement declaratory judgment actions against DataTern, based on DataTern’s previous lawsuits against those companies’ software customers for direct patent infringement, but only to the extent that those direct infringement claims also established a controversy on issues of contributory and induced infringement.

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DOJ Indicts Nine for Zeus Malware Theft From Online Bank Accounts
By Emma Winer – Edited by Sheri Pan

United States v. Penchukov

Last week, the Department of Justice released a previously sealed indictment against alleged conspirators in an international scheme that stole millions of dollars from online bank accounts. The conspirators allegedly infected thousands of computers with “Zeus” malware, which captured passwords, bank account numbers, and other online banking information. Two of the defendants were arraigned in Nebraska after being extradited from the United Kingdom.

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European Court of Justice Invalidates Data Retention Directive
By Paul Klein – Edited by Alex Shank

In a preliminary ruling requested by courts in Ireland and Austria, the European Court of Justice found that Directive 2006/24/EC was invalid. The Grand Chamber recognized the legitimacy of retaining telecommunications data as a means to combat serious crime and terrorism, but it ultimately held that the far-reaching scope of the Directive disproportionately affected individual privacy under the Charter of Fundamental Rights of the European Union.

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Clapper v. Amnesty Int’l USA
By Samantha Rothberg – Edited by Jacob Rogers

Clapper v. Amnesty Int’l USA, No.  11–1025 (U.S. Feb. 26, 2013)
Slip opinion

The Supreme Court reversed and remanded the U.S. Court of Appeals for the Second Circuit, which had held that a group of attorneys, journalists and human rights organizations had standing to challenge a 2008 law that expands warrantless wiretapping under the Foreign Intelligence Surveillance Act (“FISA Amendments Act”) on the basis of an “objectively reasonable likelihood” that the plaintiffs’ communications would be intercepted under the law. Clapper, slip. op. at 2.

In a 5–4 opinion authored by Justice Samuel Alito, the Court held that the plaintiffs lacked standing to challenge the constitutionality of the statute because they failed to establish that they would suffer an “imminent” injury traceable to the law. Id. The Court found that the plaintiffs’ fear of future injury from surveillance was “highly speculative,” since they offered no evidence that they had actually been subjected to surveillance. Id. at 11. Furthermore, the Court held that the costs the plaintiffs had incurred to avoid surveillance could not be used to “manufacture standing” because the “hypothetical future injury” they sought to avoid was too speculative. Id. at 17. In so holding, the Court emphasized the importance of the standing inquiry when a decision on the merits would implicate the separation of powers by forcing the Court to determine the constitutionality of legislative or executive action.

SCOTUSblog and the New York Times provide overviews of the case. Cato at Liberty criticized the decision’s characterization of the plaintiffs’ fears as speculative, arguing that the breadth of the government’s electronic communications surveillance program makes it “wildly implausible” that none of the plaintiffs’ communications would be intercepted. The American Civil Liberties Union, whose Deputy Legal Director Jameel Jaffer argued the case, warned that the decision “insulates the statute from meaningful judicial review.” Forbes downplayed these concerns, emphasizing that the plaintiffs had “no evidence that they have been subject to surveillance,” and that the court’s holding was consistent with precedent. Lawfare argued the Court’s decision was rooted in a pragmatic concern to prevent terrorists from using the courts strategically to learn whether they are under surveillance. (more…)

Posted On Mar - 9 - 2013 1 Comment READ FULL POST

Written By: Michelle Sohn
Edited By: Laura Fishwick & Gillian Kassner
Editorial Policy

Photo By: Rennett StoweCC BY 2.0

At the end of the Civil War, Lambdin P. Milligan, a United States citizen, was arrested in his Indiana home, tried before a military commission, and sentenced to death on a number of charges including “[a]ffording aid and comfort to rebels against the authority of the United States”. Ex parte Milligan, 71 U.S. 2, 6 (1866). Milligan petitioned for a writ of habeas corpus and the case went all the way to the Supreme Court. The Supreme Court held that the military commission had no jurisdiction to try or sentence Milligan. Even in a time of war, Milligan was entitled to his due process rights under the Fifth Amendment of the U.S. Constitution. Nearly 150 years later, the U.S. finds itself embroiled in another time of war. Advances in military technology such as drones have greatly enhanced the government’s ability to conduct lethal operations anywhere in the world without ever having to put a single American soldier on the ground. Paradoxically, it is exactly these new advances in military technology that have dredged up a longstanding, yet important conflict between balancing national security with constitutional protections of due process.

The conflict between national security and due process recently regained national attention with the leaking of a Department of Justice White Paper. The White Paper detailed the legal framework under which the government can lawfully order lethal operations against a United States citizen who is outside a recognized battlefield and believed to be a “senior operational leader” or an “associated force” of al-Qa’ida. It concluded that when an informed high-level U.S. official determines that (1) a U.S. citizen poses an “imminent threat” of violent attack, (2) capture of the citizen is infeasible, and (3) the operation can be conducted consistently with law of war principles, lethal force does not violate international or domestic law. The White Paper expressed the latest of a long series of arguments put forth by the Obama Administration justifying its practice of requiring minimal due process procedures before taking lethal action against U.S. citizens far from the combat zone. In fact, as early as 2010, Harold Koh, Legal Advisor to the U.S. State Department, stated that a nation “engaged in an armed conflict or legitimate self-defense is not required to provide targets with legal process before the state may use lethal force…” In 2012, Attorney General Eric Holder in his address at Northwestern University declared that the President is not required to go through a federal court in order to take action, “The Constitution guarantees due process, not judicial process.” What is most striking about the Obama Administration’s collective arguments is the wide discretion afforded to the Executive Branch and the inchoate analysis of the constitutional expectations due process requires from each branch of government.

There are two components of due process: fair notice and the opportunity to be heard. The fundamental rationale behind due process is to check against arbitrary government action. At its core, due process is an amalgamation of what makes the separation of powers a powerful American ideal. The Legislative branch writes the laws—including the ones that dictate charges available against U.S. citizens—that the Executive branch enforces by bringing citizens in violation of the law to be tried before an impartial Judicial branch that the Constitution itself or the Legislative branch has established. Times of national crisis will necessarily render some procedures of due process more elastic than times of peace. Indeed, the Supreme Court has recognized that in certain cases the procedures for due process must be narrowed in times of national crisis. For example, in Ex Parte Quirin, during World War II, the Court upheld the constitutionality of trying a U.S. citizen for offenses against the laws of war in front of a military commission rather than a jury. See Ex parte Quirin, 317 U.S. 1 modified sub nom. U.S. ex rel. Quirin v. Cox, 63 S. Ct. 22 (U.S. 1942). At the same time, the Court has also recognized that “[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).

The Hamdi opinion, which the DOJ White Paper cited, also recognized the need to balance the constitutional guarantee of due process with the Executive branch’s responsibility to keep the nation secure. Thus, in evaluating the constitutional protections afforded a U.S. citizen captured and deemed an “enemy combatant” by the U.S. military, the Hamdi Court used a balancing test that it had employed 28 years prior in Mathews v. Eldridge. The Mathews Court stated that the proper test for evaluating how much due process is required is the consideration of three factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest…”.Mathews v. Eldridge, 424 U.S. 319 (1976). The DOJ White Paper conceded that “no private interest is more substantial” than the interest in avoiding erroneous deprivation of life. White Paper at 6. However, the DOJ reasoned that the government interest in ensuring national security by using force on those that pose an “imminent threat of violent attack” is compelling. As such, the DOJ concluded that the “realities of combat” justified the force rendered necessary to meet those realities. In fact, the DOJ White Paper quoted the Hamdi decision, “due process analysis need not blink at those realities.” Hamdi, 542 U.S at 531. However, this use of Hamdi is disingenuous. The “realities” the Court referred to were the necessities of detaining enemy combatants rather than the use of force.[1]

The DOJ White Paper’s use of Hamdi to justify drone strikes outside recognized combat zones is increasingly suspect due to the fact that Hamdi emphasized that petitioner Hamdi was captured in a foreign combat zone. In doing so, Hamdi refered to Ex Parte Milligan, the aforementioned Supreme Court case regarding the constitutionality of military commissions during the Civil War. The Milligan Court held that despite being in a time of declared war, the military commission had no jurisdiction to try and sentence Milligan. The Hamdi Court reasoned “[h]ad Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different”. Hamdi, 542 U.S. at 522. Indeed, the Milligan Court pointed to the fact that in Indiana “…there was no hostile foot…[and] so in the case of a foreign invasion, martial rule may become a necessity in one state, when in another, it would be “mere lawless violence.” Milligan, 71 U.S. 2 at 126-27. The Court in both Hamdi and Milligan implicitly acknowledged the importance of recognized combat zones as a potential check on the Executive branch’s expansive war powers.

Perhaps part of the reason the Hamdi Court emphasized the fact that Hamdi was captured in Afghanistan involves the due process requirement of fair notice. After all, to be in an internationally recognized battle zone such as Afghanistan can constitute sufficient notice as to the hazards and “realities of combat”. As Professor Noah Feldman wrote in his blog post, Obama’s Drone Attack on Your Due Process, “The White Paper should have said that due process doesn’t apply on the battlefield.” However, the DOJ White Paper’s analysis is not focused on the legality of drone strikes on the battlefield. It justifies drone strikes outside an area of active hostilities. White Paper at 1. Under the DOJ’s analysis, U.S. citizens in countries that the President, Congress, or even the United Nations Security Council has not officially authorized military engagements with are open to drone strikes. Of course, one could argue that Congress authorized the use of force against terrorists and thus, being a terrorist against the U.S. is notice enough. However, this is a rather tautological argument. After all, how does the government determine a U.S. citizen is a terrorist without providing the citizen a meaningful opportunity to be heard before issuing a drone strike?

The Obama Administration has consistently justified its broad exercise of military powers by pointing out that it is executing what Congress has authorized it to do. Congress’ 2001 Authorization of Military Force “authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Authorization for Use of Military Force, Pub. L. No. 107-40 (2001). The DOJ White Paper notes that Congress did not put geographical limits on this authorization.

Further, the DOJ White Paper stipulated that once a U.S. citizen is deemed an “imminent threat,” the use of lethal force becomes a legitimate act of self-defense. However, the DOJ White Paper’s definition of “imminent threat” is alarmingly broad. According to the White Paper, imminent threat does not require “clear evidence that a specific attack on U.S. persons…will take place in the immediate future”. White Paper at 7. The DOJ concluded that if the targeted individual is continually involved with planned attacks and there is no evidence suggesting “that he has renounced or abandoned such activities”, the U.S. official could make a determination of “imminent threat.” White Paper at 8. The White Paper leaves unresolved the criteria or timeline as to how and when those assessments are made. It is also unclear which officers of the U.S. military are “informed” and “high-level” enough to make such an assessment. “[W]ithout doubt, our Constitution recognizes that core strategic matters of war belong in the hands of those who are best positioned and most politically accountable for making them.” Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004). However, just how far up or down the chain of command can the assessment of “imminent threat” be made? If the principle behind due process is government accountability, how accountable can we hold those in charge of making the assessment? Are the current Obama Administration practices the ones that properly minimize erroneous risk of deprivation of life?

Certainly, terrorism is a global threat not limited to traditional geographic notions of the battlefield. The DOJ White Paper is a reflection of these modern conditions of warfare. Indeed, the forefathers of the Constitution and the Milligan Court could not have foreseen or fathomed the amorphous, global nature of today’s threats posed to the United States of America. However, as the Hamdi Court plurality wrote, “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens…” The Constitution demands that more than one branch of government balances the scales of due process in its hands. The core of due process requires that our branches of government hold each other accountable precisely to decrease the risk of erroneous deprivation of a U.S. citizen’s life. After all, while Article II of the Constitution names the President “commander in chief”, Article I grants Congress the authority to “declare war…and make rules concerning captures on land and water…” and Article III puts acts of treason within the jurisdiction of the judiciary. Thus, there is still a role for both the courts and Congress to play in the realm of military technology and constitutional guarantees. Congress should seek to more concretely define the concept of “imminent threat”. It should also seek to clarify the protocol on using force against U.S. citizens outside the combat zone. This is not to say that Congress should necessarily limit the Executive’s power to use force outside Afghanistan. However, it should seek to more clearly define the policy concerns for U.S. citizens outside traditional battlefields. For example, if a U.S. citizen is outside Afghanistan, should more efforts be made to capture? The Executive Branch can then execute the law with a more definite strategy that has Congress’ blessing. As for the judiciary, while the courts should not undertake to form military policy, when called upon the courts should evaluate the criteria used through the lens of the Mathews balancing test as well as the measure of Congress’ authorization of power to the Executive.

As more and more information regarding drone use is provided to Congress and the public, all citizens should keep in mind that the entire world is not a combat zone and U.S. military practices toward its citizens should not imply this scenario. On the other hand, the Executive should be enabled to use advances in military technology to secure the nation against the global nature of terrorism. However, due process does require that no one branch maintain unilateral authority over a U.S. citizen’s life, liberty, or property. Due process can and does require the Executive, Congress, and the courts to work in concert toward accountability and the pursuit of a more perfect union.



[1] Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004)  (“. . .[T]he law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities.”).

 

Posted On Mar - 6 - 2013 1 Comment READ FULL POST

Interior Minister Ögmundur Jónason Proposes Pornography Ban
By Charlie Stiernberg – Edited by Sarah Jeong

The Associated Press reports that authorities in Iceland are considering a proposal by Interior Minister Ögmundur Jónason to ban pornography on the Internet. Pornography has been illegal in the country for decades, but the law is vague and therefore seldom enforced. The new proposal would not create any new restrictions, but it would reinforce existing law by expressly defining “pornography” as material with violent or degrading content.

Supporters argue the measure would shelter children from violent sexual imagery and serious psychological harm. Opponents claim the move will unduly censor Internet content, undermine Iceland’s international reputation for free speech, and encourage authoritarian regimes abroad.

The Guardian provides an account of the history and research behind the new measure. The Atlantic Wire argues that an effective Internet pornography ban is technologically impossible. The Daily Mail suggests that David Cameron, an outspoken critic of pornography, will be closely monitoring the outcome of the debate, along with others in the U.K. government. (more…)

Posted On Mar - 5 - 2013 Comments Off READ FULL POST

By Michael Hoven

Flash DigestApple v. Samsung Damages Award Cut by $450 Million

Judge Lucy Koh of the Northern District of California, who oversaw last summer’s Apple v. Samsung trial, lowered the jury’s $1.05 billion damages award to apple by $450 million, reports Reuters. According to Koh, the jury used an “impermissible legal theory” to calculate damages. To fix the error, Koh ordered a new damages trial on fourteen of Samsung’s twenty-eight infringing products, to be postponed while the case is in appeal in the Federal Circuit. The decision is the latest of several post-trial victories for Samsung, notes Ars Technica, but the award still stands at $599 million and a new damages trial could add to that figure.

Yelp Review Can Help Show Consumer Confusion

The Middle District of Florida entered a preliminary injunction against the health club Fit U in a trademark infringement suit brought by the gym You Fit, according to the Wall Street Journal Law Blog. In considering You Fit’s claim, the court considered an anonymous Yelp review claiming the reviewer’s own confusion regarding the distinction between You Fit and Fit U. As Internet Cases reports, the court noted that, for a preliminary injunction, it could consider material not admissible for a permanent injunction, but the Yelp review did not constitute hearsay in any case.

ISPs Announce “Copyright Alert System” to Combat Infringement

Several Internet service providers (ISP)—including AT&T, Cablevision Systems, Comcast, Time Warner Cable, and Verizon—stated that they would initiate a new monitoring and notification program designed to curb copyright infringement, Wired reports. The “Copyright Alert System” will monitor peer-to-peer file-sharing services and, as NBC News reports, implement a six-strike scheme of alerts culminating in service slowdowns or redirects. Record labels and movie studios have lobbied for the plan, which also has the support of the Obama administration.

Drug Testing of Welfare Recipients Likely Violates Fourth Amendment, Says 11th Circuit

The 11th Circuit upheld an injunction against the enforcement of a Florida law requiring drug testing of beneficiaries of Temporary Assistance for Needy Families (TANF), reported Fox News and Courthouse News Service. Such drug testing was likely to be an unconstitutional search and Florida showed no “substantial special need” for the testing, according to the court, making an injunction appropriate. Despite this, bills that would require random drug testing of TANF beneficiaries were recently introduced in Maine and the United States House of Representatives.

Posted On Mar - 5 - 2013 Comments Off READ FULL POST

Maryland v. King
By Kathleen McGuinness – Edited by Pio Szamel

Maryland v. King, No. 12-207 (U.S. Feb. 26, 2013)
Transcript of Oral Argument

On Tuesday, the Supreme Court heard oral arguments in Maryland v. King, a challenge to the constitutionality of warrantless DNA sampling of persons arrested for serious crimes. Throughout the hour-long argument, the justices repeatedly jumped in with probing questions over the government’s motivations, the expectations of privacy in DNA, and the future of DNA analysis in law enforcement. If the policy is found to be unconstitutional, twenty-eight other states and the federal government face potential invalidation of similar laws.

SCOTUSBlog, Bloomberg, and ABC News have further coverage. SCOTUSblog also has information about the case’s background and pre-argument predictions. A more detailed analysis of the case is available from the Legal Information Institute. (more…)

Posted On Mar - 4 - 2013 Comments Off READ FULL POST
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In Response to Rulin

By Andrew Spore – Edited by Travis West [caption id="attachment_4410" align="alignleft" ...

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Flash Digest: News I

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Specific Facts Suppo

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DOJ Indicts Nine for

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