District Judge Seems to Pilot Test SOPA in a Temporary Restraining Order
By Julie Dorais – Edited by Matt Gelfand

Chanel, Inc. v. Does, et al., 11-cv-01508-KJD-PAL (D. Nev. 2011)
Order

On November 14, 2011, the U.S. District Court for the District of Nevada issued a far-reaching temporary restraining order (TRO) in response to luxury goods company Chanel’s allegations that 288 defendants were selling counterfeit goods online. In addition to ordering the seizure of the defendants’ domain names, the ruling requires that domain registries transfer the domain names to GoDaddy.com, that GoDaddy.com redirect incoming traffic to a separate website, and that search engines and social networks remove the domain names from search results.

Commentators note that the remedy bears an uncanny resemblance to the remedies available under the recently proposed Stop Online Piracy Act (SOPA). As explained by Information Today, SOPA would give the government the expanded ability to obtain injunctions to seize domains that appear to be hosting infringing material. The injunctions may also direct certain actions by third parties, such as service providers and search engines. JOLT Digest has covered the proposed bill and the surrounding controversy.

CBS News summarizes the Nevada judge’s ruling and comments on its comparison to SOPA. Technology and Marketing Law Blog, Ars Technica, TechNewsWorld and TechDirt offer critical commentary. In particular, Technology and Marketing Law Blog argues that the ruling raises issues about due process, and questions the enforceability of the broad order. (more…)

By Ivar Hartmann

European Commission VP demands more revenue for artists

Neelie Kroes, Vice President of the European Commission responsible for Digital Agenda, publicly supported changes to the current copyright system in Europe. In a speech entitled “Who feeds the artist?” at the Forum D’Avignon on Nov. 19th, Kroes criticized the scarcity of revenue that copyright legislation and other areas of law reserve for artists. “Speaking of economic reward: if that is the aim of our current copyright system, we’re failing here”, stated Kroes. She cited examples of artists in the UK and Germany, the majority of which earn a “paltry payment” often lower than the minimum wage in those countries. She proposed a number of solutions including the use of information and communications technology and Cloud computing to find better ways to distribute creative content and connect artists with their consumers. She also supported adopting improved legislation that would better “feed art, and feed artists.”

ECJ rules against forced surveillance by ISPs

On Nov. 24th, the Court of Justice of the European Union announced in a press release that EU law precludes an injunction imposed by the Brussels First Instance Court, which ordered Scarlet Extended SA, an internet service provider (ISP) to install a system for monitoring its electronic communications to prevent illegal file-sharing. The Belgian Society of Authors, Composers and Publishers (SABAM) had sued Scarlet, alleging that some of its users were using the ISP’s services to illegally download SABAM’s protected catalogs from the internet. After weighing the “right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other,” the Court of Justice held that forcing the ISP to monitor users in order to protect intellectual property was an unfair balance of the rights involved.

No Safe Harbor for Grooveshark

CNET reports that the Universal Music Group (UMG) filed a copyright infringement lawsuit against Grooveshark, a music streaming website, on Nov. 18th. According to The Hollywood Reporter, the grounds for the lawsuit “go[]further than most copyright complaints.” UMG alleges that Grooveshark’s own CEO and employees have committed the infringing activity. TIME reports that at least 1,791 songs were illicitly uploaded by Grooveshark. Despite accounts that the proof of such wrongdoing is somewhat shady, UMG is seeking the maximum compensation for each illegal upload ($150,000) and an injunction to shut down Grooveshark.

Two Wins for Net Neutrality

Within one week of each other, the U.S. Senate and the European Parliament voted in favor of adopting net neutrality regulations. CNET reports that the U.S. Senate voted in favor of the Federal Communication Commission’s (FCC) net neutrality regulations in a 52-46 vote. Similarly, Computing reports that the European Parliament adopted a resolution that promotes a broad concept of net neutrality. Unlike the FCC’s regulations, the EU’s resolution does not distinguish between mobile and fixed internet service providers (ISPs). But in line with the FCC’s open Internet rules, the EU’s resolution also calls on regulatory bodies to monitor the way ISP manage their traffic on the Internet.

By Geng Chen

DOJ Defends Expansive Interpretation of Computer Fraud and Abuse Act

NPR reports that Richard Downing, deputy chief of the Computer Crime and Intellectual Property Section at the Department of Justice, testified before a House Judiciary subcommittee on the DOJ’s proposal to broaden its reading of the Computer Fraud and Abuse Act (“CFAA”). An advance copy of Downing’s written statement, obtained by CNET, advocated for criminal prosecutions based on violations of Web sites’ “terms of service” policies or any “similar contractual agreement with an employer or provider.” As reported by the WSJ, at the hearing, Professor Orin Kerr of George Washington Law School criticized the vague and broad statutory language of the CFAA that would permit such prosecutions and expressed concern that the DOJ’s new interpretation would criminalize routine violations such as lying about one’s physical attributes on Internet dating sites. Though Downing verbally reassured lawmakers that these were “unsubstantiated fears”, given the government’s limited time and resources, he did not repudiate the government’s authority to pursue such cases.

Rambus Loses Antitrust Case Against Micron and Hynix

The Washington Post reports that after five months of deliberations, a California jury has found against Rambus in its antitrust case against Micron and Hynix for conspiracy to fix memory chip prices and interference with its business relationship with Intel. As reported by Bloomberg, though Intel initially collaborated with Rambus to implement its proprietary RDRAM technology, Rambus alleged that Micron and Hynix conspired to artificially raise prices of chips incorporating RDRAM and drove Intel away from adopting RDRAM as an industry standard. A Reuters article, relying on an anonymous source within the jury, indicates that the jury was not convinced that a lone Micron email adequately proved conspiracy and was swayed by the testimony of a former Intel executive that described the souring of the Rambus-Intel relationship as unrelated to pricing. Rambus is considering an appeal, based on grounds that the judge disallowed from evidence certain facts from a Department of Justice price-fixing investigation in 2005.

PhoneDog Sues Former Employee for His Twitter Account

Ars Technica reports developments in the case of a former employee of PhoneDog, an “interactive mobile news and reviews web resource,” who was sued for misappropriation of trade secrets, interference with economic advantage, and conversion over his Twitter account. Noah Kravitz amassed 17,000 followers as “@PhoneDog_Noah” but changed his handle to “@noahkravitz” after leaving the company. The trial judge dismissed PhoneDog’s interference claim but allowed the trade secrets and conversion claims to go forward. According to Forbes, Kravitz says that his employer never asked him to create the account and that he always used it for personal as well as business purposes. The damages of $2.50 per follower claimed by PhoneDog may be complicated by the additional 4,000 followers that Kravitz has accumulated since his resignation. An official statement by PhoneDog, as reported by Computerworld, argues that the company’s Twitter account naming convention establishes company ownership of the account, but does not mention any implied or express contract with Kravitz specifically regarding this particular account.

Federal Circuit Holds that Typhoon’s Patents Are Valid, but Not Infringed
By Marsha Sukach – Edited by Andrew Crocker

Typhoon Touch Techs. v. Dell, Inc., No. 2009-1589 (Fed. Cir. Nov. 4, 2011)
Slip Opinion

The Federal Circuit affirmed in part and reversed in part the ruling of the U. S.District Court for the Eastern District of Texas, which held that Typhoon’s patents that cover its “keyboardless” touch-screen computing system are invalid and not infringed.