A student-run resource for reliable reports on the latest law and technology news
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On August 14, 2014, the U.S. Food and Drug Administration (FDA) issued Draft Guidelines on the direct de novo classification process, a means of accelerating the approval of new types of medical devices posing only low to moderate health risks.[1]  The FDA created de novo classification in 1997, but after the process failed to achieve its purpose of expediting approval, the FDA introduced an alternative de novo process called “direct” de novo.

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Insuring Patents

By Yaping Zhang – Edited by Jennifer Chung and Ariel Simms

Despite its increasing availability, patent insurance—providing defensive protection against claims of patent infringement and funding offensive actions against patent infringers—continues to be uncommon. This Note aims to provide an overview of the patent insurance landscape.

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Defend Trade Secrets Act of 2016 Seeks to Establish Federal Cause of Action for Trade Secrets Misappropriation

By Suyoung Jang – Edited by Mila Owen

Following the Senate Judiciary Committee’s approval in January of the Defend Trade Secrets Act of 2016, the Committee has released Senate Report 114-220 supporting the bill. The bill seeks to protect trade secret owners by creating a federal cause of action for trade secret misappropriation.

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Federal Circuit Flash Digest

By Evan Tallmadge – Edited by Olga Slobodyanyuk

The Linked Inheritability Between Two Regions of DNA is an Unpatentable Law of Nature

HP Setback in Challenging the Validity of MPHJ’s Distributed Virtual Copying Patent

CardPool Fails to Escape an Invalidity Judgment But Can Still Pursue Amended Claims

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Amicus Brief by EFF and ACLU Urging Illinois State Sex Offender Laws Declared Unconstitutional under First Amendment

By Yaping Zhang – Edited by Mila Owen

With the Illinois Supreme Court gearing up to determine the constitutionality of the state’s sex offender registration statute, two advocacy non-profits have filed amicus briefs in support of striking the law down.

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Eleventh Circuit Finds Cell Site Location Data Requires Warrant
By Sheri Pan – Edited by Sarah O’Loughlin

United States v. Quartavious Davis, No. 12-12928 (11th Cir. 2014) Slip Opinion hosted by American Civil Liberties Union

Photo By: Kai Hendry - CC BY 2.0

Photo By: Kai HendryCC BY 2.0

On June 11, 2014, the United States Court of Appeals for the Eleventh Circuit reached a decision in United States v. Quartavious Davis, affirming in part and vacating in part a February 2011 grand jury indictment of Quartavious Davis and five co-defendants for participating and conspiring in several robberies.  During the pre-trial and trial proceedings, Davis moved to suppress cell site information, location data from cellphone service providers that indicate the cell towers near which an individual placed and received phone calls.  The specific cell site data in question showed Davis near the crime scenes of six out of the seven robberies.  Both the pre-trial and trial courts denied his motions, and the jury convicted him on all counts.

On appeal, Davis argued that the court erroneously admitted the cell site location information because the government obtained the data through a court order, not a search warrant. The Stored Communications Act (“SCA”), the statute under which a government entity can obtain subscriber information from electronic communications providers, requires probable cause for a warrant, but only “reasonable grounds to believe that  . . . the records are relevant and material” for a court order.  § 2703(c)–(d).

The question was one of first impression for the court.  Reviewing past search and seizure cases, the court concluded that the Fourth Amendment protects against unreasonable searches and seizures of electronic communications.  Next, it analyzed the Supreme Court’s opinion in United States v. Jones, where the government had installed a GPS device on the defendant’s vehicle to capture location data.  While Jones involved physical trespass and thus could not conclusively determine the case at hand, the appellate court relied on the Supreme Court’s majority and concurring opinions to determine that the idea that the Fourth Amendment protects a person’s privacy rights regardless of whether a trespass has occurred, is “alive and well.”  Because a person carries his cellphone into private spaces, even one point of cell site information is within a subscriber’s reasonable expectation of privacy.  Further, that expectation does not diminish when a subscriber shares the information with a third party such as a communications provider, because most customers are likely unaware that their providers are collecting such information.  Consequently, the government cannot obtain cell site location data without a search warrant.  Despite the court’s finding, however, it ruled that the district court did not commit reversible error under the Leon Exception because the officers acted in good faith in obtaining the court order.

Jennifer Granick, a Director of Civil Liberties at the Stanford Center for Internet and Society, in a blog post for Just Security argued that Davis may help undermine legal support for the NSA’s bulk metadata collection by asserting that people have a reasonable expectation of privacy to records kept by a third party communications provider.  On the other hand, Orin Kerr, writing for the Washington Post, critiqued the decision, arguing that a reasonable expectation of privacy is based not on the information involved, but the means through which the government obtains the information.  He also questioned the court’s conclusion that most people are unaware that they are sending their information to the provider of their services.

Just Security and Washington Post provide commentary.

Posted On Jun - 24 - 2014 Comments Off READ FULL POST

Icon-newsBy Patrick Gutierrez

6th Circuit holds TheDirty.com immune to suit for defamatory comments made on its website

Earlier this week the Sixth Circuit held that a gossip site, www.TheDirty.com, was not responsible for a defamatory post made by a third party on its website, reversing the lower court’s decision. Jones v. Dirty World Entm’t Recordings, LLP, No. 13-5946 (6th Cir. June 16, 2014). Although an editorial note made by the defendant was appended to the posting on the website, the appeals court ruled that the defendant’s actions were immune to suit under the Communications Decency Act (“CDA”), 47 U.S. Code § 230, which provides that no “provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The Sixth Circuit reasoned that plaintiff’s claims were barred by the CDA since the website “did not author” or “materially contribute to the illegality” of the third party postings. Jones at 22. Evan Brown provides commentary. (more…)

Posted On Jun - 23 - 2014 Comments Off READ FULL POST

Written by: Christopher A. Crawford 

Edited by: Loly Sosa

INTRODUCTION

Since 9/11, Congress has expanded the Foreign Intelligence Surveillance Act of 1978 (“FISA”) several times in order to meet the needs of agencies tasked with defending the U.S. against terrorist attacks. Notable expansions include the PATRIOT Act of 2001, but much of the recent controversy surrounds the FISA Amendments Act of 2008 (“FAA”). In 2008, Congress passed the FAA to expand the legal foundation for more systematic surveillance, “establish[ing] a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” Title VII, § 702 of the FAA is cited by the government as permitting so-called “warrantless wiretaps” on foreign citizens for intelligence-gathering purposes. According to the American Civil Liberties Union (“ACLU”), however, this law allows the National Security Agency (“NSA”) “access to [American citizens’] international communications without warrants, without any suspicion of wrongdoing, and without ever identifying the targets of its surveillance to a court.”

However, the ACLU’s challenge to the FAA last year in Clapper v. Amnesty International failed because plaintiffs, who were American citizens, had no standing; in other words, they could not prove that they had been injured by the law. Plaintiffs had alleged that the FAA’s § 702 surveillance powers were too broad and too vulnerable to abuse against people like themselves who might communicate with a targeted foreign citizen. Justice Alito, writing for the majority, found that the plaintiffs were being overly paranoid and that there was no evidence of the law’s misuse—in other words, plaintiffs needed a “smoking gun” that their privacy had been violated before they could gain standing. (more…)

Posted On Jun - 14 - 2014 Comments Off READ FULL POST

By Andrew Spore – Edited by Travis West

Case C-435/12, ACI Adam BV v. Stichting de Thuiskopie (E.C.J. Apr. 10, 2014)
Slip Opinion

In response to an order issued by the European Court of Justice (“ECJ”) on April 10, 2014, the Netherlands has banned the unauthorized downloading of copyrighted material, effective immediately. According to Techdirt, the Dutch government previously had allowed such downloading for personal use because it believed that such a policy was consistent with European Union copyright law. The ECJ held that the Dutch legislation, “which makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources cannot be tolerated.” ACI, slip op. at ¶ 37. (more…)

Posted On Apr - 20 - 2014 1 Comment READ FULL POST

By Olga Slobodyanyuk

Icon-newsAmici urge the Ninth Circuit to reconsider its ruling in the “Innocence of Muslims” case

Numerous news organizations, academics and Internet companies have filed briefs in support of Google’s petition for a rehearing of Garcia v. Google, No. 12-57302 (9th Cir. Feb. 26, 2014), reports Reuters. The Ninth Circuit ruled that Garcia, an actress tricked into appearing for five seconds in an inflammatory anti-Muslim film, was entitled to a preliminary injunction, and it ordered Youtube to take down all copies of “Innocence of Muslims” with Garcia’s performance. Garcia, slip op, at 2. One group of amici support Google’s petition for a rehearing based on the ruling’s unworkability with established business practices and copyright doctrine. This group includes the International Documentary Association; Netflix; technology companies such as Facebook, eBay and Yahoo!; and IP professors, reports Techdirt. According to Reuters, another group of amici focus on Garcia’s exploitation of a copyright “loophole” in the liability shield for online intermediaries. The EFF’s brief, joined by the ACLU, the American Library Association and others, urges for a rehearing “in order to protect free speech in the debate over the film and also to safeguard the future of free expression online.” News organizations such as the Washington Post and NPR raise similar First Amendment concerns in their brief, reports Eric Goldman from The Technology and Marketing Law Blog. He also notes the absence of big entertainment companies from Google’s list of amici and the lack of discussion among the briefs of the fixation issue, “the most obvious legal defect in the panel’s majority opinion.” JOLT Digest and The Washington Post have analyzed the original opinion.

Record companies sue Pandora for royalties on songs made before 1972

In a complaint filed in the New York State Supreme Court last week, major record companies, including Sony, Universal and ABKCO, have alleged that Pandora violated state common law copyright by playing old songs without permission, reports The New York Times. Songs made before 1972 are covered by “a patchwork of state laws,” not by federal copyright law. The lawsuit is similar to the suit filed last year against Sirius XM, another listening service. Songs made after 1972 are covered by federal copyright law – together with Sirius XM, Pandora paid around $656 million in royalties for these songs last year. According to Ars Technica, payment for pre-1972 recordings would earn record companies about $60 million more per year. Pandora acknowledged the possibility of this lawsuit in its annual report to the Securities and Exchange Commission, noting that the company would be significantly liable if it was found to be infringing. However, Pandora told The New York Times that it “was confident in its legal position and looked forward to a quick resolution of the matter.” State copyright laws typically cover misappropriation and unfair competition. These common-law concepts would not traditionally cover Pandora’s performance of the songs, analyzes Techdirt.

Alleged Heartbleed hacker arrested

Stephen Arthuro Solis-Reyes, a 19 year-old Canadian student, was arrested on April 16 for allegedly stealing 900 social security numbers from the Canada Revenue Agency (“CRA”) using the Heartbleed vulnerability, reports The Washington Post. Solis-Reyes is charged with  one count of “Unauthorized Use of Computer” and one count of “Mischief in Relation to Data” per the Canadian criminal code and is scheduled to appear in court in July, according to the Royal Canadian Mounted Police press release. The CRA discovered the cyber theft of social security numbers on April 11 and has delayed the tax collection deadline from April 30 to May 5 in response, reports the DailyTech. Heartbleed is an OpenSSL flaw which “allows a connected Web client or application that sends messages to keep a connection active during a transfer of data,” explains Ars Technica. According to Top Tech News, the bug has been present for over two years in over 500,000 websites. The attack on the CRA is the first to be recorded since Heartbleed’s discovery, but it was soon followed by an attack at Mumsnet, a British website with around 1.5 million users. Although most websites have upgraded to a secure version of OpenSSL, 50 million Android users may still be vulnerable to a Heartbleed attack.

Posted On Apr - 20 - 2014 Comments Off READ FULL POST
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