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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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European Union Court of Justice Holds that Individuals Browsing Websites are not in Violation of Copyright Law
By Kellen Wittkop – Edited by Yixuan Long

The Court of Justice of the European Union (CJEU) agreed with the decision of the Supreme Court of the United Kingdom that webpage viewers do not need license to view copyrighted materials online. With this holding, the CJEU issued a crucial decision for European Union law, balancing the rights of copyright holders and the rights of individuals to browse authorized content without being liable for infringement.

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Georgia Supreme Court Takes Chan v. Ellis Appeal to Redefine First Amendment Right on the Internet
By Yixuan Long – Edited by Emma Winer

The Georgia Court of Appeals ordered the appeal in Ellis v. Chan be transferred to the Georgia Supreme Court. Chan, an interactive website owner, appealed the trial court’s permanent protective order, which commanded him to take down more than 2000 posts on his website, and forbade him from coming within 1000 yards of Ellis. The Court of Appeals decided that the case raised significant and novel constitutional issues regarding the First Amendment right and the internet.

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Federal Circuit Flash Digest: News in Brief

By Kellen Wittkop

Appeal of a contempt order for violation of patent injunction agreement dismissed for lack of jurisdiction

Federal Circuit affirms summary judgment of Apple’s noninfringement on GBT’s CDMA patents

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ITC’s review of an ALJ’s order was not procedurally sound
By Mengyi Wang – Edited by Sarah O’Loughlin

The United States Court of Appeals for the Federal Circuit unanimously vacated and remanded a decision of the International Trade Commission (“ITC”), finding that the ITC exceeded its authority in reviewing an administrative law judge’s (“ALJ”) order denying a motion for termination. In so holding, the Court rejected the ITC’s attempt to characterize the ALJ’s decision as an initial determination, which would be subject to review.

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Icon-newsBy Kellen Wittkop

Dismissal of Suit for Violation of False Marketing Affirmed Due to Lack of Standing after Elimination of qui tam Provision

The United States Court of Appeals for the Federal Circuit in Stauffer v. Brooks Brothers Group, Inc., 13-1180 (Fed. Cir. July 10, 2014) affirmed the United States District Court for the Southern District of New York’s decision to dismiss the suit for lack of standing, holding that after elimination of the qui tam provision of the false-marketing statute by the America Invents Act (“AIA”), the pro se plaintiff-appellant no longer had standing in the pending litigation.  Stauffer at 14.  The AIA “made three significant changes to the false-marketing statute that affected Mr. Stauffer’s claim,” the most influential of which was the elimination of the statute’s qui tam provision making it so that “only a ‘person who has suffered a competitive injury’ may bring a claim.”  Id. at 3 (citing AIA § 16(b)(2)).  Mr. Stauffer argued that, first, the retroactive application of the AIA amendments constituted a mass pardon which Congress could not grant, and, second, that the retroactive amendments violated the common-law principle of prohibiting use of a pardon to negate theaction once it has begun, id. at 7, but the Federal Circuit disagreed on both points, id. at 11–12.  Milbank provides an in-depth discussion of the case.

Summary Judgment Affirmed for Subject Matter Ineligibility of Claims for Infringement of “Device Profile” Generation and Use

The United States Court of Appeals for the Federal Circuit in Digitech Technologies v. Electronics for Imaging, Inc., 13-1600 (Fed. Cir. July 11, 2014) affirmed the United States District Court for the Central District of California’s grant of summary judgment to several defendants, concluding that the device profile in the ’415 patent does not fall within any category of eligible subject matter.  Digitech Technologies at 7.  The patent at issue (U.S. Patent #6,128,415) covers “the generation and use of an ‘improved device profile’ that describes spatial and color properties of a devise within a digital image processing system.”  Id. at 5.  Consistent with the findings of the District Court, the Federal Circuit held that under 35 U.S.C. § 101, a device profile did not fall within any eligible categories of subject matter because it was not tangible or physical.  Id. at 7.  Additionally, the Federal Circuit applied the recent Supreme Court ruling in Alice Corp. v. CLS Bank Int’l, 573 U.S. ___, No. 13-298 (June 19, 2014), which concluded that fundamental concepts are by themselves ineligible abstract ideas. Id. at 10.  Law360 provides coverage of the case.

Posted On Jul - 15 - 2014 Add Comments READ FULL POST

Icon-newsBy Olga Slobodyanyuk

BP Fails to Trademark the Color Green in Australia

British Petroleum (“BP”) lost its 22-year-old legal battle in Australia to trademark the dark green shade that dominates its logo, reports The Guardian. The governmental agency that administers intellectual property rights, IP Australia, found that BP did not show “convincing evidence” that the fuel company was linked in consumers’ minds with the green shade known as Pantone 348C. According to Corporate Council, despite the failure in Australia, BP has trademarked the color in the UK and Europe, and has protected its use in marketing fuel and service stations in the U.S.

The FTC Sues Amazon over Children’s Purchases in Apps

The Federal Trade Commission (FTC) filed a lawsuit against Amazon.com, alleging that the online retailer allowed children to make purchases within apps and online games without their parents’ permission, reports Forbes. The FTC is seeking refunds for consumers for all such purchases, as well as changes to Amazon’s in-app commerce policies, according to The Washington Post. In a public letter to the FTC, Amazon responded that it has consistently improved it’s in-app buying services and has been promptly responding to customer concerns. Forbes reports that Amazon keeps 30% of in-app purchase revenue and keeps all sales final and non-refundable. FTC has investigated similar problems with Apple and had a multimillion dollar settlement with the company earlier this year.

Leaked Code Reveals that NSA is Targeting Users of Privacy Services

An analysis of leaked code used to conduct internet surveillance reveals that users who visit privacy and anonymity websites are targeted by the NSA, reports the Electronic Frontier Foundation (EFF). The code, a tool called Xkeyscore, “fingerprints,” or marks for further investigation, users who access privacy services such as Tor, Tails, HotSpotShield, FreeNet, Centurian, and Linux Journal, a monthly magazine about the open-source operating system (which the NSA labeled as an “extremist forum” for advocating for privacy services use), reports Wired. Privacy services are used by journals, human rights advocates, and political dissidents, among others. According to the general deputy council of the EFF, visiting privacy websites and reading Linux Journal are protected First Amendment activities, essential to freedom of expression, which cannot be targeted under the Foreign Intelligence Surveillance Act.

Posted On Jul - 15 - 2014 Add Comments READ FULL POST

The PCLOB’s Recommendations for a More Reasonable Surveillance Program
By Max Kwon – Edited by Sarah O’Loughlin

Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act

Report

Security CameraOn July 2, 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) issued a report analyzing the legal and policy implications of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”). Section 702 was introduced by Congress through the FISA Amendments Act of 2008 and allows the Attorney General and the Director of National Intelligence to “jointly authorize surveillance targeting persons who are not U.S. persons, and who are reasonably believed to be located outside the United State, with the compelled assistance of electronic communication service providers, in order to acquire foreign intelligence information.”  Report at 6. The PCLOB concluded that “the core Section 702 program is clearly authorized by Congress, reasonable under the Fourth Amendment, and an extremely valuable and effective intelligence tool,” Id. at 15, but noted that “the applicable rules potentially allow a great deal of private information about U.S. persons to be acquired by the government.” Id. at 11. In order to “ensure that the program remains tied to its constitutionally legitimate core,” the PCLOB outlined a set of ten policy proposals aimed at increasing accountability, transparency, and efficacy of the surveillance program. Id. at 9.

Pursuant to Section 702, the Attorney General and Director of National Intelligence can make annual certifications that identify categories of information to be collected without specifying the particular non-U.S. persons who will be targeted. Id. Although Section 702 requires the government to develop targeting and “minimization” procedures in order minimize “incidental” or “inadvertent” surveillance of U.S. persons, the PCLOB stated that “certain features of the [Section 702] program implicate privacy concerns” regarding the scope and usage of U.S. person communications that are collected. Id. at 6–10.

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Posted On Jul - 14 - 2014 Add Comments READ FULL POST

By Max Kwon – Edited by Sarah O’Loughlin
USPTO Memo on Alice Corporation Pty. Ltd. V. CLS Bank International, et al. (June 25, 2014).

Memorandum.

IdeaIn response to the Supreme Court’s recent decision to invalidate four software patents in Alice Corp. Pty. Ltd. v. CLS Bank Int’l et al., No. 13-298 (783 U.S. ____ June 19, 2014) (“Alice”), Andrew H. Hirshfeld, Deputy Commissioner for Patent Examination Policy for the U.S. Patent and Trademark Office (USPTO), issued a memorandum to the Patent Examining Corps “to provide preliminary instructions…relating to subject matter eligibility of claims involving abstract ideas, particularly computer-implemented abstract ideas, under 35 U.S.C. § 101.”

In the memorandum, Hirshfeld stated that in accordance with Alice, the USPTO will now require “all claims directed to laws of nature, natural phenomena, and abstract ideas for subject matter eligibility under 35 U.S.C. § 101” to be analyzed under the framework outlined in  Mayo Collaborative Services v. Prometheus Laboratories Inc., 566 U.S. ____ (2012) (“Mayo”). Id. at 1.

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Posted On Jul - 7 - 2014 Add Comments READ FULL POST

Supreme Court: Police Officers Need a Warrant to Search an Arrestee’s Cell Phone
By Anton Ziajka – Edited by Sarah O’Loughlin
Riley v. California, 573 U.S. __ (2014)

Slip Opinion

On June 25, 2014, the Supreme Court decided that police officers “must generally secure a warrant before conducting . . . a search of the information on a cell phone” seized from an individual who has been arrested. Slip op., at 10. Writing for a unanimous Court, Chief Justice Roberts balanced, on the one hand, “the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 9.

The Court found only minimal governmental interest, noting that, unlike physical objects on an arrestee, “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.” Id. at 10. The Court acknowledged governmental concerns that digital evidence may be lost through remote wiping or data encryption, but found these concerns insufficiently compelling. See id. at 12–15.

On the other side of the equation, the Court found that the information contained on a cell phone is both quantitatively greater and qualitatively more sensitive than physical records likely to be present on an individual’s person at the time of his arrest. Id. at 17–21. A search of such digital information “would typically expose to the government far more than the most exhaustive search of a house,” the Court concluded. Id. at 20. See the Washington Post and New York Times for further reporting on the decision.

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Posted On Jul - 7 - 2014 Add Comments READ FULL POST
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Creating full-text searchable database of copyrighted works is “fair use” By ...

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European Union Court

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Federal Circuit Flas

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