A student-run resource for reliable reports on the latest law and technology news
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DRIP Bill Expands UK’s Data Surveillance Power

By Yixuan Long – Edited by Insue Kim

House of Lords passed the Data Retention and Investigatory Powers Bill (“DRIP”) on July 17, 2014. DRIP empowers the UK government to require all companies providing internet-based services to UK customers to retain customer metadata for 12 months. It also expands the government’s ability to directly intercept phone calls and digital communications from any remote storage. Critics claim the bill goes far beyond what is necessary and its fast-track timeframe prevents meaningful discussion.

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Federal Circuit Grants Stay of Patent Infringement Litigation Until PTAB Can Complete a Post-Grant Review

By Kyle Pietari – Edited by Insue Kim

Reversing the district court’s decision, the Federal Circuit granted a stay of patent infringement litigation proceedings until the PTAB can complete a post-grant patent validity review. This was the court’s first ruling on a stay when the suit and review process were happening concurrently.

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Ninth Circuit Rejects Fox’s Request to Shut Down Dish Services, Despite Aereo Decision

By Sheri Pan – Edited by Insue Kim

United States Court of Appeals for the Ninth Circuit affirmed the district court’s denial of Fox’s motion for a preliminary injunction.  Fox argued that the technologies would irreparably harm Fox because they violate copyright laws, but the Ninth Circuit ruled that the district court did not err in finding that the harm alleged by Fox was speculative, noting that Fox had failed to present evidence documenting such harm.

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Flash Digest: News in Brief

By Patrick Gutierrez

Senate passes bill to make cell phone unlocking legal

ABA urges lawyers to stop pursuing file sharing lawsuits

FBI cautions that driverless cars may be used to assist criminal behavior

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Federal Circuit Flash Digest: News in Brief 

By Amanda Liverzani

Dismissal of Trademark Registration Opposition Affirmed Despite Pronunciation Error

Non-Infringement of Cellular Network Patents Affirmed

Federal Circuit Finds it Lacks Subject-Matter Appellate Jurisdiction Over Patent Infringement Case
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By Ken Winterbottom

Aereo shut down by Supreme Court ruling

In Wednesday’s 6-3 decision in American Broadcasting Cos. v. Aereo, Inc., the U.S. Supreme Court ruled against Aereo, a startup company offering streams of TV shows over the internet shortly after the programs are originally broadcast, holding that the company’s business practices violate the Copyright Act of 1976. The majority opinion, written by Justice Breyer, ruled that Aereo’s services constituted a “public performance” within the meaning of the Act.

Justice Scalia, in an opinion joined by Justices Thomas and Alito, dissented, calling the majority’s “looks-like-cable-TV” rule ad hoc and confusing.

The defeat has been heralded as the end for Aereo, which did not have a “plan B” in the event of an unfavorable decision, according to CEO Chet Kanojia. Some commentators have also warned that it may prove to be a death knell for cloud storage services, though Justice Breyer made it clear that that was a question for another day, expressly limiting the decision’s applicability to broadcast television.

Obama administration promises privacy rights to the EU

In the wake of the 2013 Edward Snowden scandal, members of the European Union expressed widespread concern that their privacy rights were being violated.  On Wednesday, the Guardian reports, the Obama administration pledged to pass legislation granting EU citizens many of the same privacy rights enjoyed by U.S. citizens.

The pledge arguably goes a step further than previous attempts to smooth over damaged post-Snowden U.S.-EU relations, of which European governments were skeptical, calling for concrete action rather than vague promises. However, commentators have already expressed doubt about this most recent move, noting that it will be difficult for the Obama administration to push this “undoubtedly controversial” legislation through Congress.

Massachusetts Supreme Court upholds decryption order

On Wednesday, the Massachusetts Supreme Judicial Court ruled that a criminal suspect may constitutionally be forced to type in a decryption password, in spite of the Fifth Amendment’s right to protect against self-incrimination.

In a 5-2 decision, the court noted that the government already had knowledge of what was on the defendant’s computer, and even what his encryption key was, and limited its holding to that context, stating that the prosecution’s “motion to compel decryption does not violate the defendant’s rights under the Fifth Amendment because the defendant is only telling the government what it already knows.”

Despite the fact-specific nature of the holding, some commentators, such as ACLU attorney Jessie Rossman, expressed disappointment with the decision, which has been called a step back for privacy.

Meanwhile, judicial consensus on the question is lacking, with the Eleventh Circuit having come out the other way in 2012. In 2013, federal judges in Wisconsin disagreed as to whether or not the Fifth Amendment applies in such cases. Wednesday’s Massachusetts decision is only the next case in a growing jurisdictional split, which may eventually be left for the U.S. Supreme Court to resolve.

Posted On Jun - 29 - 2014 Add Comments READ FULL POST

By Amanda Liverzani – Edited by Insue Kim

Alice Corp. Pty. Ltd. v. CLS Bank Int’l et al., No. 13-298 (783 U.S. ____ June 19, 2014)

Slip Opinion

Intellectual property practitioners and technology companies anxiously awaiting clarification on the patentability of software will find little guidance in the Supreme Court’s recent decision in Alice. In the highly anticipated decision, the Court declined to articulate a definitive test for when software may be patented, instead relying on the precedent established in Mayo Collaborative Services v. Prometheus Laboratories Inc., 566 U.S. ____ (2012) and Bilski v. Kappos, 561 U.S. 593 (2010) to invalidate the software patents at issue.

The dispute involved four patents held by Alice Corporation (“Alice”) related to a computer-implemented method for reducing “settlement risk” in financial transactions (U.S. Patent #5,970,479, #6,912,510, #7,149,720, and #7,725,375). Alice, slip op. at 1. CLS Bank, operator of a global currency transaction network, brought suit in the District Court for the District of Columbia, arguing that Alice’s patent claims were invalid and unenforceable. Id. at 3. Following Bilski, the District Court held that the claims were ineligible for patent protection because they were drawn to a patent-ineligible abstract idea. Id. at 34. On appeal, the Federal Circuit sitting en banc affirmed the District Court’s decision. Alice filed for certiorari. Id. at 45.

The question before the Supreme Court was whether Alice’s claims were patentable under §101 of the U.S. Patent Act, or whether they were directed to a patent-ineligible abstract idea. Id. at 1. The Court unanimously affirmed the Federal Circuit’s decision, holding that Alice’s claims were directed to an abstract idea and contained no inventive concept, thereby rendering them patent-ineligible. (more…)

Posted On Jun - 28 - 2014 Add Comments READ FULL POST

By Kyle Pietari – Edited by Suzanne Van Arsdale

Photo By: Marc SmithCC BY 2.0

Limelight Networks, Inc. v. Akamai Technologies, Inc., et al., No. 12-786 (U.S. June 2, 2014)

Slip Opinion

A unanimous Supreme Court reversed the en banc United States Court of Appeals for the Federal Circuit, which had found that Limelight Networks, Inc. (“Limelight”) could be liable for inducing infringement of a method patent licensed to Akamai Technologies, Inc. (“Akamai”) by performing several of the method’s claimed steps, and then encouraging its customers to complete a final step.

The Supreme Court held that there can be no liability for induced infringement of a method patent under 35 U.S.C. § 271(b) unless direct infringement has occurred under § 271(a) or another statutory provision. Akamai, slip op. at 1. Under Federal Circuit case law, direct infringement liability under § 271(a) requires that a single party perform all steps of the claimed method. Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318, 1329. In Muniauction, the Federal Circuit clarified that this requirement is satisfied even if multiple parties perform the steps, so long as one defendant  “exercises ‘control or direction’ over the entire process such that every step is attributable to the controlling party.” Id. Limelight argued and the Supreme Court agreed that, because Limelight did not control its customers’ performance of a step in the claimed method, but merely helped them independently perform that step, direct infringement never occurred under § 271(a). Akamai, slip op. at 2, 5–6. The Supreme Court further ruled that, absent direct infringement, there could be no inducement of infringement under § 271(b), and it rejected the Federal Circuit’s reasoning that induced infringement liability could be predicated on a direct infringement that occurred outside of any statutory provisions. Id. at 4–6.

Patent Docs provides a thorough summary of the case. IPcopy provides commentary about the case’s potential relevance for patent attorneys. PatentlyO analyzes the Federal Circuit’s motivations behind its decision, concluding that it has a “fundamental discomfort with strict liability.” (more…)

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

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 Add Comments 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 Add Comments READ FULL POST
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