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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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Trailblazing Email Privacy Bill Proposed in Texas
Mary Grinman – Edited by Natalie Kim

H.B. No. 2268

Photo By: André NattaCC BY 2.0

On May 27, 2013, the Texas State Senate and House both signed H.B. 2268. The legislation requires state law enforcement agents to secure a warrant before accessing emails and other “electronic customer data” in “electronic storage.” H.B. 2268 at 3–4. It also permits state courts to serve warrants on out-of-state service providers as long as they do “business in [Texas] under a contract . . . with a resident of [Texas], if any part of that contract . . . is to be performed in [Texas].” Id. at 9. With this requirement, the bill closes the loophole of the 1986 Electronic Communications Privacy Act (ECPA), which allows warrantless access to emails opened or older than 180 days. Unless Governor Rick Perry vetoes the bill by June 16, 2013, the bill will pass and go into effect on September 1.

Texas Rep. John Frullo originally authored the bill, with support from civil liberties organizations such as the Texas Electronic Privacy Coalition. Prior to the bill’s passage, the Senate amended it to allow “an authorized peace officer” to “require a provider . . . to disclose . . . information revealing the identity of customers . . . [and] information about a customer’s use of the applicable service[,] without giving subscriber or customer notice” as long as he obtained an administrative subpoena, a grand jury subpoena, a warrant, a court order, or the consent of the customer. See Senate Amendments Printing Analysis, at 5–6. The legislation is designed to “extend[] the jurisdiction of district judges by granting them privileges to issue data search warrants beyond the physical boundaries of the state for computer data searches only.” Senate Committee Report at 1.

Texas Legislature Online provides a summary of the history surrounding the bill. Ars Technica calls the bill “unprecedented,” and describes it as “the nation’s strongest email privacy bill.” RT states that the bill could be “a roadmap to updating the [federal] 1986 Electronic Communications Privacy Act (ECPA),” which only requires a warrant for recent and unopened emails. Pub. L. No. 99-508, 100 Stat. 1848 (Oct. 21, 1986),codified at 18 U.S.C. §§2510-22, 2701-11, 3121-26. However, Bloomberg BNA reminds its readers that the federal government will retain the authority to “access older emails without a warrant.” (more…)

Posted On Jun - 8 - 2013 Comments Off READ FULL POST

Flash DigestBy Katie Mullen

ITC Ruling May Bar Sales of Some Apple Products in the US

This week, the International Trade Commission found that Apple infringed a Samsung patent relating to 3G wireless technology and the capacity to transmit various services correctly at the same time, the BBC reports. This ruling may mean that some older models of the iPad and iPhone can no longer be sold in the United States. However, a spokesperson for Apple said, “Today’s decision has no impact on the availability of Apple products in the United States.” The company plans to appeal.

Child Pornography Suspect Granted Temporary Reprieve from Decrypting Hard Drive

This Tuesday, a federal judge in Wisconsin lifted a court order requiring child pornography suspect Jeffrey Feldman to decrypt his hard drives for the FBI, writes CNET. The judge gave the reprieve in response to an emergency motion by Feldman’s attorney for additional time to prove that the order would violate Feldman’s Fifth Amendment right against self-incrimination. Judge Rudolph Randa temporarily lifted threats of contempt of court and jail time and asked for additional briefs on the matter from the attorneys in the case. A hearing is likely to take place in the fall.

White House Calls for Curbing Patent Troll Litigation

President Obama announced plans this week to take action against businesses that buy up patents with the sole aim of suing entities for infringement, often called “patent trolls,” the New York Times reports. The administration has called for Congress to limit lawsuits against consumers and businesses that use technology. Further, the White House proposed that judges should award attorneys’ fees to defendants who win unwarranted patent cases and would like to make it more difficult for businesses to convince the government to ban the importation of products that potentially rely on patented technology. Finally, the president plans to issue an executive order to improve training for patent examiners.

Apple and Patent Troll Suing Apple Potentially Represented by the Same Lawyer

Apple has essentially been sued by its own law firm. The company discovered that one of the lawyers for Flatworld Interactive LLC, an alleged patent troll who filed a lawsuit claiming that Apple’s touchscreen swipe technology had infringed its patent, was in fact a lawyer for one of its own preferred law firms as well, writes Ars Technica. As a partner at Morgan, Lewis & Bockius, John McAleese had access to a huge amount of Apple’s confidential data, though he was not involved in any cases involving Apple and claims not to have accessed it. At time same time, his wife was an owner of Flatworld, and he helped her draft several documents outlining and implementing the plan to file suit against Apple, or to sell the patent so others could do so.

Posted On Jun - 7 - 2013 Comments Off READ FULL POST

Written by: Susanna Lichter
Edited by: Suzanne Van Arsdale

Security CameraHollie Toups, the first named plaintiff in Toups v. GoDaddy, was harassed for weeks after nude pictures of her appeared on the website Texxxan.com alongside her real name and a link to her Facebook profile. When Toups requested that Texxxan.com remove the pictures, she was told by the website that they could help in exchange for her credit card information.[i] Texxxan.com is a “revenge porn” or “involuntary porn” website.[ii] The website and others like it act as repositories for nude photos of individuals submitted by their former boyfriends, embittered friends, or malicious hackers. On January 18, 2013 Toups and 22 other female plaintiffs whose nude photographs appeared on the website filed a lawsuit in the District Court of Orange County, Texas against Texxxan.com, Texxxan.com’s uploaders and subscribers, and the web hosting and the Internet domain registrar giant GoDaddy.com for invasion of privacy and intentional infliction of emotional distress.[iii] They are seeking temporary and permanent injunctions shutting down Texxxan.com, damages,[iv] and class action certification.

Texxxan.com is one of a number of websites that have emerged in recent years seeking to capitalize on the proliferation of amateur porn facilitated by the digital age, and the humiliation it causes. Some, like Texxxan.com, insert pornographic photos into dating-site-style profiles that include screenshots of or links to the person’s social media pages and real name. Others, like IsAnybodyDown?, include more invasive details such as the person’s phone number, address, school, place of work, and children’s names. Some allow people who submit content to assign the person to categories based on their age, weight, or alleged STD status, such as Your Mom’s Nudes for older women. Underscoring the fact that the postings are malicious and intend to embarrass the victim, websites like You Got Posted feature nude photos in which the person’s face is cropped out or obscured—likely the person taking or sending the image was attempting to preserve some privacy—alongside their name and pictures of their face taken from Facebook, revealing their identity. Websites like MyEx include a space for visitors to anonymously post harassing comments. Because of the breadth of information aggregated on the profiles, revenge porn pages are commonly at the top of Google search results[v] of the person’s name. (more…)

Posted On May - 28 - 2013 2 Comments READ FULL POST

Written by: Evelyn Y. Chang
Edited by: Jessica Vosgerchian

Photo By: Horia VarlanCC BY 2.0

In March of 2012, British Petroleum sought court enforcement of a subpoena for “any conversation or discussion” made by researchers from the Woods Hole Oceanographic Institution (“WHOI”) regarding their studies on the Deepwater Horizon oil spill. WHOI and its researchers were neither parties nor witnesses in the ongoing lawsuits related to the Deepwater spill, but they had contributed data to a government report on the spill, and results of their studies had been cited in the lawsuits. WHOI argued that they had already provided all the information needed to test the study’s veracity, but BP asserted that additional materials, including records of internal deliberations made by the researchers before they published the studies, were necessary for them to challenge the studies’ results. The court applied a balancing test that weighed BP’s need for the requested information against the burden placed on WHOI, and required the WHOI researchers disclose internal pre-publication materials relating to the studies cited in the government report.[i]

Last fall, Science published an editorial by several WHOI researchers whose materials were among those requested by the subpoena. The WHOI researchers argued that BP’s subpoena request amounted to an attack on the independence of scientific inquiry, and advocated for federal legislation to protect researchers from legal harassment when their results contradict entrenched interests. While legislation is the most straightforward method by which the government can protect scientific independence, common law already provides some protection for researchers who may find themselves in a situation similar to that of WHOI.

Discovery of evidence from third parties is nothing new, and many courts hold that the right to obtain evidence from non-parties is sometimes necessary to ensure a fair trial. While the Supreme Court has not directly addressed scientific privilege, lower federal courts have applied a balancing test that weighs the requesting party’s need for the information against the burden that would be placed on the receiving party.[ii] When determining what information must be disclosed, courts have considered several factors, including the completeness of the information, confidentiality of sources, and chilling effects on research.[iii] (more…)

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

Viacom Int’l Inc. v. YouTube, Inc.
By Pio Szamel – Edited by Laura Fishwick

Viacom Int’l Inc. v. YouTube, Inc., 07 Civ. 2103 (S.D.N.Y. April 18, 2013)
Slip opinion

Hacked By Over-XOn April 18, 2013 the U.S. District Court for the Southern District of New York once again granted summary judgment for YouTube in Viacom Int’l Inc. v. YouTube, Inc., on remand from the Second Circuit Court of Appeals. Judge Louis L. Stanton held that YouTube did not have any actual knowledge of any specific infringements of the Viacom content in suit, nor was it willfully blind to any such specific infringements. He also held that YouTube did not have the “right and ability to control” infringing activity for the purposes of 17 USC §512(c)(1)(B), and that YouTube’s transcoding of clips for viewing on mobile devices is protected by the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”), 17 USC §512(c).

Reuters has further coverage of the decision, which is hailed by the Electronic Frontier Foundation and Eric Goldman. JOLT Digest previously covered the District Court’s prior grant of summary judgment in favor of YouTube, and the Second Circuit’s decision to vacate part of that prior order and remand for further proceedings. (more…)

Posted On May - 2 - 2013 Comments Off READ FULL POST
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Flash Digest: News i

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