A student-run resource for reliable reports on the latest law and technology news
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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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Google to Supreme Court: Snagging Data from Unsecured Wi-Fi is Perfectly Legal
By Michael Shammas – Edited by Mary Schnoor

Google has filed a petition for a writ of certiorari asking the Supreme Court to label its Street View cars’ collection of unencrypted Wi-Fi traffic legal, appealing the Ninth Circuit’s decision that Google may have violated the federal Wiretap Act. Google believes unencrypted Wi-Fi traffic should be classed as “radio communications” accessible to the public.

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Mozilla Announces Resignation of Recently Appointed CEO Brendan Eich Following Controversy over Gay Marriage Opposition
By Sheri Pan – Edited by Corey Omer

On April 3, Mozilla Corporation (“Mozilla”), a subsidiary of the non-profit Mozilla Foundation most widely known for producing the Firefox browser, announced that its CEO of less than two weeks, Brendan Eich, has resigned, after pressure from Mozilla employees, bloggers, and developers who opposed his appointment in light of a $1000 donation that he made in 2008 in support of Proposition 8, a ballot measure that sought to ban gay marriage in California.

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By Paul Klein – Edited by Geng Chen

Energy Recovery, Inc. v. Hauge, No. 2013-1515 (Fed. Cir. Mar. 20, 2014)
Slip Opinion

On March 20, 2014, the United States Court of Appeals for the Federal Circuit reversed and vacated a ruling by the United States District Court for the Eastern District of Virginia that had found Leif J. Hauge in contempt of a court order enforcing a previous settlement agreement (the “2001 Order”) and that had enjoined him from manufacturing and selling any pressure exchangers in competition with his former employer, Energy Recovery, Inc. (“ERI”). See Energy Recovery, Inc., slip op. at 2, 4.

The Federal Circuit held that “Mr. Hauge did not violate any provision of the 2001 Order . . . .” Id. at 12. Judge Wallach, writing for the panel, found that “[t]he Agreement only required Mr. Hauge to transfer ownership of the pre-Agreement pressure exchanger intellectual property . . . .” Id. at 8. Even if Hague was using his former employer’s manufacturing processes and the knowledge of its employees to create a pressure exchanger in a manner that infringed ERI’s patents or violated trade secrecy laws, these issues were not before the court. See id. at 9, 11. As “[n]othing in the 2001 Order expressly preclude[d] Mr. Hauge from using any manufacturing process,” the court did not find that Hague’s actions constituted a failure to assign “all other intellectual property and other rights relating to pressure exchanger technology predating [the] Order” to ERI. Id. at 8.

Schwabe, Williamson & Wyatt provides an overview of the case and notes that “[w]hat is most interesting in the case is the fact that the [Federal] Circuit didn’t examine more closely the relationship between ‘all other intellectual property and other rights’ and the trade secrets involved in ERI’s manufacturing processes.” PatentlyO agrees with the Federal Circuit’s treatment of intellectual property as “the rights over that technology,” rather than “the technology itself,” and warns that the latter definition would “lead[] to chaos, confusion, and erroneous views about the law[].” (more…)

Posted On Apr - 3 - 2014 Add Comments READ FULL POST

By Kim Meyer – Edited by Andrew Spore

Photo By: Rob BoudonCC BY 2.0

Apple is in talks with Comcast to enter an agreement that would allow Apple’s set-top television streaming boxes to bypass congestion on the Internet, the Wall Street Journal reports. The agreement, which is presently only in its early stages, would grant Apple “special treatment on Comcast’s cables” and has raised net neutrality concerns.

Apple has been developing the next generation of its set-top box with an eye toward integrating gaming capabilities, a router, and a “TV tuner component” that will allow users to control their existing cable boxes and TV stations through their Apple TV boxes, The Verge reported in January. The boxes would effectively replace the traditional cable set-top box, allowing users to stream live and on-demand programming.

The potential agreement between Apple and Comcast would separate traffic to and from Apple’s set-top boxes from public Internet traffic on the “last mile” — those cables that connect to customers’ homes. This would allow users to avoid the “clogging” problem “that occurs when too many users in the same area try to access too much bandwidth at the same time,” the Wall Street Journal explains. The Verge reports that Apple was engaged in similar talks with Time Warner Cable before Time Warner agreed to merge with Comcast. (more…)

Posted On Apr - 2 - 2014 Add Comments READ FULL POST

By Olga Slobodyanyuk

Icon-newsMicrosoft changes its policy for accessing user data in investigating leaks

Microsoft announced its new policy in a press release on March 28: “Effective immediately, if we receive information indicating that someone is using our services to traffic in stolen intellectual or physical property from Microsoft, we will not inspect a customer’s private content ourselves. Instead, we will refer the matter to law enforcement if further action is required.” The policy change followed criticism of Microsoft’s 2012 trade secret theft investigation in which Microsoft accessed a user’s private Hotmail email without a warrant.

Microsoft’s initial response to the controversy was to guarantee the privacy safeguards of its own internal investigation. The new change to the company’s privacy policy was in part influenced by the understanding that Microsoft’s internal policy should mirror its position on government investigations. Microsoft advocates “that governments should rely on formal legal processes and the rule of law for surveillance activities.” Ars Technica and the Electronic Frontier Foundation comment on and commend the policy change.

Supreme Court affirms Static Control’s standing in its false advertising suit against Lexmark

A unanimous Supreme Court affirmed the United States Court of Appeals for the Sixth Circuit’s holding that Static Control Components, Inc. (“Static Control”) has standing to sue Lexmark International, Inc. (“Lexmark”) for false advertising under the Lanham Act. Lexmark Int’l, Inc. v. Static Control Components, Inc., No. 12-873 (U.S. March 25, 2014), slip op. hosted by Legal Information Institute.

Lexmark sold toner cartridges with a microchip that prevented re-use of the cartridges by non-Lexmark manufacturers. Lexmark, slip op. at 2. Static Control developed a different microchip which circumvented Lexmark’s chip and allowed re-manufacturers to refill the cartridges. Id. “In 2002, [Lexmark] sued Static Control, alleging that Static Control’s microchips violated both the Copyright Act of 1976 . . . and the Digital Millennium Copyright Act.” Id. Additionally, Lexmark sent letters to all of Static Control’s customers, stating that Static Control was violating copyright law and that the customers had to return the cartridges. Id. at 3. Static Control responded with counterclaims, which included false advertising allegations under § 43(a) of the Lanham Act. Id. at 2. Lexmark challenged Static Control’s standing to pursue the false advertising claims. Id. at 4–5. The Supreme Court ruled for Static Control by applying the “zone of interests” test combined with a proximate cause analysis, rejecting Lexmark’s proposed “direct-competitor” test for whether a party has standing to bring a false advertising suit under the Lanham Act. Id. at 10.

SCOTUSblog describes this ruling as “reject[ing] out of hand everything that either the parties or the courts of appeals have said with regard to the topic at hand, and most of what the Court itself previously has said.” Ars Technica commented that this decision is “a somewhat unusual ruling considering that the conservative-leaning court isn’t often inclined to open the door to more lawsuits.”

Consumers receive e-book conspiracy settlement payout while Apple’s litigation continues

On March 25, consumers received Amazon account credits for Kindle e-book purchases made between April 1, 2010 and May 21, 2012. Ars Technica reports that e-book buyers from Barnes and Noble, Kobo, and Apple will also receive account credits, and Sony e-book consumers will receive checks. The settlement is the result of a civil antitrust lawsuit alleging that five book publishers and Apple colluded to raise the prices of e-books. The publishers, which include Simon & Schuster and HarperCollins, settled for $166 million, reports The Wall Street Journal.

Apple did not to settle and was found to be “facilitating and executing [a] conspiracy.” United States v. Apple, No. 1:12-cv-2826 (DLC) (S.D.N.Y. July 10, 2013). According to Ars Technica, Apple is appealing the decision at the United States Court of Appeals for the Second Circuit. In addition, Apple may face a class-action lawsuit from a group of consumers not included in the original suit, reports Reuters. The consumers allege that Apple violated antitrust law by conspiring with publishers to raise e-book prices, and the class seeks more than $800 million in damages. Plaintiffs’ Consolidated Opposition to Defendants’ Motions to Dismiss, In Re: Electronic Books Antitrust Litigation, No. 11-md-02293 (DLC) (S.D.N.Y. March 30, 2012) hosted by Hagens Berman. The plaintiffs’ class was certified on March 28.

Posted On Apr - 1 - 2014 Add Comments READ FULL POST

By Sarah O’Loughlin – Edited by Ken Winterbottom

Order Denying Plaintiffs’ Motion for Class Certification, In re Google Inc. Gmail Litigation, Case No. 13-MD-02430-LHK (N.D. Cal. Mar. 18, 2014)
Order hosted by InsidePrivacy

Photo By: rovllsCC BY 2.0

Google, Inc. scored a victory last week when a U.S. judge denied class certification to Gmail users attempting to sue the company for violating the privacy rights of hundreds of millions of email users. On March 18, 2014, District Judge Lucy Koh issued an opinion, finding that the issue of consent is too fundamental to the case and too different among the parties seeking class action status together.

The lawsuit alleges that Google’s data-mining practices used in its Gmail electronic-messaging service violate federal and state wiretap and privacy laws. Plaintiffs argue that Google has been improperly intercepting, reading, and mining the content of e-mails for targeted advertising in an attempt to build user profiles. The suit covers several different groups, including people who send e-mails to Gmail users as well as non-Gmail accounts users who pay to use the Google Apps service. Bloomberg and Ars Technica provide further commentary on the allegations, and HuffingtonPost provides further context to the student privacy aspect of the lawsuit. (more…)

Posted On Mar - 27 - 2014 Add Comments READ FULL POST

By Travis West

Icon-newsNSA responds to ABA demand for clarification regarding surveillance of privileged communications

After revelations that intelligence agencies may be spying on privileged communications between lawyers and their clients, the American Bar Association (“ABA”) wrote a letter to the National Security Agency (“NSA”) demanding that the agency clarify its policies regarding the collection of potentially confidential information. The ABA expressed concern that the NSA may be infringing on “the bedrock legal principle” of attorney-client privilege. The NSA responded that it “has afforded, and will continue to afford, appropriate protection to privileged attorney-client communications,” pointing, as an example, to its Section 702 Minimization Procedures for collecting data in a criminal proceeding under the Foreign Intelligence Surveillance Act of 1978. 50 U.S.C. § 1881a.

In response, ABA President James Silkenat voiced the organization’s appreciation for “the NSA’s expression of respect for the attorney-client privilege” and indicated that the ABA “looks forward to continuing a constructive dialogue” with the agency. At the same time, as reported by Lawfare Blog, the ABA now offers a course for lawyers on how to prevent spying on their communications – both “abroad and at home.” The Electronic Frontier Foundation (“EFF”) expressed disappointment with the NSA’s lack of clarity in its response to the ABA and with the ABA’s quiet acceptance of that response. With respect to government surveillance of privileged communications, the EFF predicts that the “only real dialogue now can be in courtrooms and in Congress.”

United States to turn over control of Domain Name System

In a surprising move, the United States National Telecommunications and Information Administration (“NTIA”) announced that it would be turning over control of the root Domain Name System (“DNS”) to international control in 2015. Currently, the DNS is run by the International Corporation for Assigned Names and Numbers (“ICANN”), who received the contract to run the system from the NTIA, a subsidiary of the U.S. Department of Commerce. The DNS comprises technology that translates a human-readable website name, such as “www.google.com” to a device-readable IP address, like 66.233.160.0. The controller of the DNS possesses great power, since it could remove a domain name and thus make it impossible for people to find the associated website. While the United States has not exercised that power, many countries have feared the possibility.

The United States has planned to relinquish control of the root DNS to the international community since the 1990s, originally hoping for the transition to take place in 2000. The recent announcement comes shortly before the April 2014 ICANN meeting, at which Brazil was expected to propose its own DNS, which would have lead to a fracturing of the Internet. The United States’ relinquishing control of the DNS should scuttle those efforts. However, the United States did not announce what form of governance will now oversee the DNS, raising questions about which companies or international organizations have the technical expertise required to administer the the system.

Turkey bans Twitter with limited success

Within hours of Turkish Prime Minister Tayyip Erdogan’s promise to “wipe out” Twitter, Turkey’s courts ordered Twitter blocked nationwide. The court order arrived shortly after recordings allegedly showing corruption in Erdogan’s inner circle appeared on social media. The ban – accomplished by a change in the Domain Name Service (“DNS”) hosted by Turkish network providers – initially proved ineffective. Almost 3 million tweets were posted in Turkey in the first 24 hours following the ban, and Twitter itself posted workarounds to the DNS ban. However, the Turkish government has now extended the block to the IP addresses of Twitter in Turkey, which has forced users to install Tor or a VPN client to get around the ban.

Posted On Mar - 26 - 2014 Add Comments READ FULL POST
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Specific Facts Suppo

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DOJ Indicts Nine for

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European Court of Ju

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Google to Supreme Co

By Michael Shammas – Edited by Mary Schnoor [caption id="attachment_4353" align="alignleft" ...

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Mozilla Announces Re

By Sheri Pan – Edited by Corey Omer [caption id="attachment_4341" align="alignleft" ...