A student-run resource for reliable reports on the latest law and technology news
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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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JOLT Digest would like to thank our summer contributors, editors, and comment authors, whose names can be found on our Summer 2012 staff page, for their hard work over the past two months.

 

Posted On Aug - 15 - 2012 Comments Off READ FULL POST

Written By: Yana Welinder
Edited By: Molly Jennings
Editorial Policy

When Judge Robert Bork was nominated for the U.S. Supreme Court in 1987, a reporter politely asked his local video store assistant for a Xerox copy of handwritten entries of Judge Bork’s 146 prior rentals. Having convinced the editor of the Washington City Paper that this was perfectly legal, the reporter then published these records under the heading “The BORK Tapes.” The issue featured a suggestive cartoon of Judge Bork on the cover—beer in hand, slouching in an armchair in front of the television. You can imagine people flocked to buy copies of the paper hoping for juicy tidbits about the Supreme Court nominee’s secret watching habits. But to their disappointment, Judge Bork’s rental records listed only garden-variety films. This incident nevertheless spurred a privacy outrage. Within months, the Video and Library Privacy Protection Act was debated in Congress and California Congressman McCandless spoke in favor of the bill:

There’s a gut feeling that people ought to be able to read books and watch films without the whole world knowing. Books and films are the intellectual vitamins that fuel the growth of individual thought. The whole process of intellectual growth is one of privacy—of quiet, and reflection. This intimate process should be protected from the disruptive intrusion of a roving public eye. What we’re trying to protect with this legislation are usage records of content-based materials—books, records, videos, and the like.  . . . [T]here is an element of common decency in this legislation. It is really nobody else’s business what people read, watch, or listen to.

But books, records, and other materials were subsequently removed from the scope of this bill.{{1}}  The final version was adopted to regulate only the “rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials” (emphasis added). Given its history, the legislation was dubbed the “Bork Bill.”

This comment argues that recent technological developments warrant an extension of the Bork Bill to protect records of online content consumption. The early view of the Internet as a space where “nobody knows you’re a dog” enabled people to freely browse online content, resulting in more “creativity and innovation.” Professor Eben Moglen has likened this anonymous space to cities as the historic destination for individuals who wanted to “escape the surveillance of the village” and “experiment autonomously in ways of living.” But as online exploration of content is increasingly being logged and those logs are being exposed, the Internet as a source of intellectual vitamins is under threat. More than ever, we now need to prevent the logging of media consumption that is not necessary for making the media available. This applies not only to media that existed in 1988 when the Bork Bill was adopted, such as books and music records, but to any material used for intellectual pursuit of knowledge, including blogs, tweets, podcasts, and other new sources of information. It is further critical that records of our intellectual curiosity not be shared with others without our permission to disclose that particular material.

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Posted On Aug - 14 - 2012 Comments Off READ FULL POST

By Charlie Stiernberg

Proposed SHIELD Act Would Require Non-Practicing Entities to Pay Legal Costs

The Saving High-Tech Innovators from Egregious Legal Disputes Act of 2012 (“SHIELD Act”) aims to deter non-practicing entities (“NPEs”)—patent holders that do not make, use, or sell their claimed invention—from filing lawsuits by requiring such plaintiffs to pay successful defendants’ attorney fees, if a court determines that the suit did not have a reasonable likelihood of succeeding. Congressman Peter Defazio (D-OR) introduced H.R. 6245 on August 1 to supplement 35 U.S.C. § 285, which provides for attorney fees in “exceptional cases,” with a new section 285A.  The SHIELD Act would only apply to computer software and hardware patents, both defined within the act. According to the Wall Street Journal, Rep. DeFazio intends to target companies that “buy the patents solely to sue the American tech startups that created the products.”

Raytheon Plans to Pursue Trade Secret Misappropriation Claims against Indigo Systems and FLIR

Following a favorable reversal in the Federal Circuit, Raytheon Co. plans to pursue its trade secret misappropriation claims against Indigo Systems Corp. and FLIR Systems Inc., the New York Times reports. In a unanimous opinion by Judge Linn, the Federal Circuit overturned a decision by the United States District Court for the Eastern District of Texas that had dismissed claims involving infrared camera technology because of the statute of limitations. In so holding, the Federal Circuit reasoned that Raytheon had reasonably relied on Indigo/FLIR’s repeated false assurances that Raytheon’s trade secrets were adequately protected.

Proposed Amendments to ECPA Would Require Warrants for Cloud Data

New legislation proposed by Rep. Jerrold Nadler (D-NY) and Rep. John Conyers Jr. (D-MI) would amend the Electronic Communications Privacy Act (ECPA) to require the government to obtain a probable-cause warrant to access data stored in the cloud. The proposal would protect files in Dropbox, Facebook, and Google storage accounts, among others. Under the current ECPA, largely unchanged since the Reagan administration, the government can acquire such content as long as it has been stored on a third-party server for 180 days or more. Senator Patrick Leahy (D-VT) proposed similar legislation last year, but it never got a hearing in the Judiciary Committee. Wired predicts a similar fate for this new proposal.

Posted On Aug - 13 - 2012 Comments Off READ FULL POST

Illinois Prohibits Employers from Requiring Employees to Provide Social Networking Passwords
By Andrew Crocker – Edited by Michael Hoven

H.B. 3782, 97th Gen. Assemb. (Ill. 2012)
Bill

On August 1, Illinois Governor Pat Quinn signed H.B. 3782, which amends Illinois’ Right to Privacy in the Workplace law to prohibit employers from “request[ing] or requir[ing] any employee or prospective employee to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking website or to demand access in any manner to an employee’s or prospective employee’s account or profile on a social networking website.” H.B. 3782, 97th Gen. Assemb. (Ill. 2012) (to be codified at 820 Ill. Comp. Stat 55/10(b)(1)). Illinois is the second state to enact such a provision, following Maryland’s passage of a similar bill in April, according to the ACLU.

The governor’s office issued a press release that describes the legislature’s intent in passing the bill.

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Posted On Aug - 11 - 2012 Comments Off READ FULL POST

Third Circuit Subjects Reverse Payments to Strict Antitrust Scrutiny

By Jie Zhang – Edited by Charlie Stiernberg

In Re: K-Dur Antitrust Litigation, No. 10-2077 (3d Cir. July 16, 2012)

Slip opinion

The Third Circuit Court of Appeals reversed the summary judgment of the United States District Court for the District of New Jersey, which had rejected an antitrust challenge to a reverse payment agreement between the K-Dur patent holder Schering-Plough Corporation (“Schering”) and the generic drug manufacturer Upsher-Smith Laboratories (“Upsher”) to delay Upsher’s market entry.

The Third Circuit held that the rule of reason analysis should be applied in antitrust claims involving reverse payments and remanded the case to the district court for further proceedings.  The rule of reason analysis requires the court to treat reverse payments as prima facie evidence of unreasonable restraint of trade, with the possibility of rebuttal by showing that the payment was not for delayed market entry or had pro-competitive effects.  In so holding, the Third Circuit emphasized Congress’ intent in passing the Hatch-Waxman Act — to provide incentive for competition in the pharmaceutical industry and increase availability of generic drugs.

Bloomberg Businessweek provides an overview of the case.  The Washington Post provides additional background information and reports on the reaction of the FTC and pharmaceutical companies.

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Posted On Aug - 7 - 2012 Comments Off READ FULL POST
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In Response to Rulin

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Flash Digest: News I

By Olga Slobodyanyuk Amici urge the Ninth Circuit to reconsider its ...

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Specific Facts Suppo

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DOJ Indicts Nine for

By Emma Winer – Edited by Sheri Pan [caption id="attachment_4373" align="alignleft" ...

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European Court of Ju

By Paul Klein – Edited by Alex Shank [caption id="attachment_4363" align="alignleft" ...