A student-run resource for reliable reports on the latest law and technology news
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Observing Mauna Kea’s Conflict

Written by: Aaron Frumkin

Edited by: Anton Ziajka

Believing the machinery desecrates their sacred summit and the scarce natural resources it shelters, native Hawaiians have opposed telescope development on Mauna Kea. While it seems that their beleaguered resistance to telescope development will fail yet again with the proposed Thirty Meter Telescope (TMT), this Note attempts to articulate their best arguments in hopes of properly framing the social costs associated with the great scientific and technological gains that TMT will surely provide.

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Federal Circuit Flash Digest: News In Brief

By Cristina Carapezza

Rosen Wins TV Headrest Patent Suit

Federal Circuit Allows for Declaratory Judgment of Noninfringement for Disclaimed Patent

Federal Circuit Prohibits Third Party Challenges to Patent Application Revivals Under the APA

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Government Agents Indicted for Wire Fraud and Money Laundering in Silk Road Investigation

By Sheri Pan – Edited by Jens Frankenreiter

Two former Drug Enforcement Administration agents have been charged for wire fraud and money laundering in connection with an investigation of Silk Road, a digital black market that allowed people to anonymously buy drugs and other illicit goods using Bitcoin, a digital currency. The two agents were members of the Baltimore Silk Road Task Force and allegedly used their official capacities and resources to steal Bitcoins for their personal gain.

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Mississippi Attorney General’s investigation of Google temporarily halted by federal court

By Lan Du – Edited by Katherine Kwong

On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google’s motion for a temporary restraining order and preliminary injunction. U.S. District Judge Henry T. Wingate issued the opinion. Judge Wingate found a substantial likelihood that Hood’s investigation violated Google’s First Amendment rights by content regulation of speech and placing limits of public access to information.

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Federal Circuit Flash Digest

By Ken Winterbottom

J.P. Morgan Appeal Dismissed for Lack of Jurisdiction

Court Agrees with USPTO: Settlement Agreements Are Not Grounds for Dismissing Patent Validity Challenges

Attorney Misconduct-Based Fee-Shifting Request Revived in Light of Recent Supreme Court Decision

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Fresenius USA, Inc. v. Baxter International, Inc.
By Simon Heimowitz ­– Edited by Jennifer Wong

Fresenius USA, Inc. v. Baxter International, Inc., Nos. 2012- 1334, -1335 (Fed. Cir. July 2, 2013)
Slip Opinion

On July 2, the U.S. Court of Appeals for the Federal Circuit vacated and remanded with instructions to dismiss the judgment of the U.S. District Court for the Northern District of California, which had entered judgment against Fresenius in infringement proceedings brought by Baxter concerning a kidney hemodialysis machine. Fresenius USA, Inc. v. Baxter International, Inc., Nos. 2012- 1334, -1335, slip op. at 31 (Fed. Cir. July 2, 2013)

In a 2-1 opinion, the Federal Circuit held that a U.S. Patent and Trademark Office (“PTO”) reexamination decision, which had invalidated a number of the patent claims in question, had to be given effect in the infringement litigation, effectively leaving Baxter without a cause of action. Id.

Patently-O and PharmaPatents provide overviews of the court’s decision. (more…)

Posted On Jul - 19 - 2013 Comments Off READ FULL POST

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By Natalie Kim – Edited by Mary Grinman

On June 24, Samsung launched a mobile app for the Galaxy S III, S 4, and Note 2 that allowed users to download Jay-Z’s new album, “Magna Carta Holy Grail,” five days before the album was released to the rest of the world. As Pitchfork explains, Samsung “bought” one million copies of the album through a brand partnership with Jay-Z, paying five million dollars for the early distribution rights. Before users could obtain Jay-Z’s music, however, they were required to grant the app certain permissions that Appleinsider calls “unnecessarily invasive.” These permissions included the ability to modify or delete content stored on the phone, to access to the phone’s “precise GPS location,” and to read the phone’s status and identity.

The requirements were met with a substantial amount of backlash in social media outlets and elsewhere, most notably from rapper Killer Mike, who posted a screenshot of the app’s permission page along with the tweet, “I read this and……..‘Naw I’m cool.’”  Politico notes that Jay-Z reacted to the controversy with a frank “sux must do better.” ArsTechnica reports that privacy advocacy group Electronic Privacy Information Center filed a complaint asking the Federal Trade Commission to investigate potential FTC Act violations from Samsung with its overbroad data collection. Complaint, In the Matter of Samsung Electronics Co., Ltd. (F.T.C. July 12, 2013) Complaint hosted by Electronic Privacy Information Center, epic.org.

Ars Technica provides an overview of the controversy and critiques the app as “a play for user data and social media attention.” Jon Pareles of the New York Times notes the irony of the controversy, given Jay-Z’s previous “indigna[tion] about phone surveillance.” Pitchfork notes Jay-Z’s disappointment upon finding out that the one million “sales”  to Samsung will not count towards the Billboard 200 chart. Disregarding the privacy concerns, Joshua Steimle of Forbes discusses the app’s many other technical failures. (more…)

Posted On Jul - 16 - 2013 Comments Off READ FULL POST

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By Katherine Walecka

First Amendment Protects Peer-Reviewed Publication Regarding Competitor’s Product

In ONY, Inc. v. Cornerstone Therapeutics, Inc., No. 12-2414-cv, (2d Cir. June 26, 2013), the Second Circuit affirmed the District Court for the Western District of New York’s ruling that publishing a scientific article was not tortious. ONY, Inc.  (“ONY”) produces Infasurf, a replacement surfactant or lung lining designed to aid breathing in some premature infants. ONY, slip op. at 4. Cornerstone produces a rival product, Curosurf. Id. Cornerstone and its partners paid for a study comparing Infasurf and Curosurf, and researchers found worse mortality outcomes for Infasurf users. Id. at 5. After the findings were published in a peer-reviewed pediatric journal, ONY brought suit alleging that the article was misleading and violated the Lanham Act, which prohibits fraud in advertising. Id. at 9. The Second Circuit ruled in favor of the defendants, finding that the article was not actionable because its conclusions were not misleading. Id. at 17–18. Furthermore, Cornerstone’s right to publish the article was protected by the First Amendment, since the article was academic research, pertained to ongoing scientific debate, and was closer to opinion than fact. Id. at 14. The Second Circuit noted that New York free speech law is particularly protective and added that if researchers had not disclosed their funding or their potential methodological flaws, a different outcome might have been reached. Reuters provides commentary on the case.

Second Circuit Affirms Finding of No Material Mistake in Wiretap Application Against Raj Rajaratnam

The Second Circuit’s recent disposition of the wiretapping issue in United States v. Rajaratnam, No. 11-4416-cr (2d Cir. June 24, 2013), represents a win for federal prosecutors. Wiretap applications submitted by government prosecutors to judges must show probable cause and necessity. Rajaratnam, slip op. at 6. At the district court level, defendant Raj Rajaratnam moved to suppress evidence from the wiretap of his cellular telephone, claiming that the wiretap application had factual mistakes and omissions. Id. at 7. To warrant suppression, a wiretap application must evince disregard for truth and must have material mistakes. Id. at 8. The district court agreed with Rajaratnam that the wiretap application might not adequately show necessity and held a Franks hearing to determine whether to suppress the wiretap evidence. Id. at 9–13. However, Rajaratnam’s suppression arguments ultimately failed. Although the district court found that the application evidenced reckless disregard for the truth by omitting the ongoing SEC investigation of the defendant, this omission and other mistakes were not found to be material. Id. at 14–15. The Second Circuit affirmed the district court’s conclusion but found that the government’s mistakes did not constitute reckless disregard for the truth. Id. at 23. Rajaratnam suggests that legal wiretap applications can contain omissions and that prosecutors can leave out softening phrases by defendants and conceal ongoing investigations without jeopardizing the instant case. The Wall Street Journal provides comments on the decision, and Bloomberg covers its television interview with the lead prosecutor. The SEC filed a press release regarding Rajaratnam’s charges in March 2013. In a July 2011 article, the New Yorker provided background information on the investigation and prosecution of the case.

High Damages in Peer-to-Peer Distribution Suit Affirmed as Statutory, Not Punitive

For some consumers, illegally downloading music carries a stiff price. In Sony BMG Music Entertainment v. Tenenbaum, No. 12-2146, (1st Cir. June 25, 2013), the First Circuit affirmed the trial court jury’s awarding Sony and other recording companies $675,000 for the unlawful downloading and peer-to-peer distribution of thirty songs. Sony, slip op. at 10. The court insisted that these were statutory damages under the Copyright Act rather than punitive damages, id. at 7, and rejected Tenenbaum’s due process claim that the damages’ severity was unconstitutional, id. at 2. Ars Technica comments on the decision. Boston University’s Daily Free Press covers its interview with Tenenbaum and his attorney, Harvard Law School Professor Charles Nesson. JOLT Digest previously commented on the district court case. The Recording Industry Association of America provides a factual background.

Posted On Jul - 15 - 2013 Comments Off READ FULL POST

Authors Guild, Inc., et al. v. Google Inc.
By Jonathan Sapp – Edited by Michelle Sohn

Photo By: Ian WilsonCC BY 2.0

Authors Guild, Inc., et al. v. Google Inc., 12-3200-cv, (2d Cir. July 1, 2013)
Slip Opinion

The United States Court of Appeals for the Second Circuit vacated and remanded the lower court’s certification of the plaintiff class. The Second Circuit held that class certification should not precede a determination of Google’s fair use defense. The determination of the defense will “necessarily inform and perhaps moot” the Second Circuit’s analysis of class certification issues. Author’s Guild, Inc. v. Google Inc., No. 12-3200-cv, slip op. at 4 (2d Cir. July 1, 2013). In so ruling, the court cited the Supreme Court’s decision in Dukes, which held that a “class cannot be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011).

NBC News and Reuters provide overviews of the case. Lathrop & Gage, LLP’s “Media, Privacy & Beyond” blog speculates that the court’s ruling may place fair use as “an insurmountable hurdle to copyright class plaintiffs.” Paid Content notes that the ruling may create tension in the Circuit since it vacated the decision of Judge Denny Chin, who now sits on the Second Circuit. (more…)

Posted On Jul - 12 - 2013 Comments Off READ FULL POST

Agency for International Development v. Alliance for Open Society International, Inc.
By Andrew Spore – Edited by Samantha Rothberg 

Photo By: Dominic AlvesCC BY 2.0

Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., No. 12-10 (570 U. S. ___ June 20, 2013)
Slip Opinion

In a 6-2 opinion written by Chief Justice John Roberts, the Supreme Court ruled that requiring as a condition of funding that recipients of federal HIV/AIDS prevention funds have “a policy explicitly opposing prostitution” constituted an impermissible restriction on speech in violation of the First Amendment. Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., No. 12-10, slip op. at 15 (U. S. June 20, 2013). In doing so, the Court affirmed a 2011 decision by the U.S. Court of Appeals for the Second Circuit. Id.

SCOTUSblog and the New York Times provide overviews of the case. Reuters discusses the schismatic response in the legal and non-profit worlds. Harvard Law School Professor Noah Feldman, writing for Bloomberg, sees conservative political maneuvering behind the decision. In contrast, the Health Law Prof Blog speculates that the decision could lead to liberal outcomes in the battle over Planned Parenthood funding.

(more…)

Posted On Jul - 8 - 2013 Comments Off READ FULL POST
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Observing Mauna Kea'

Written by: Aaron Frumkin Edited by: Anton Ziajka I.     Introduction Perched quietly atop ...

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Federal Circuit Flas

By Cristina Carapezza Rosen Wins TV Headrest Patent Suit The Federal Circuit ...

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Government Agents In

By Sheri Pan - Edited by Jens Frankenreiter United States v. ...

Photo By: Robert Scoble - CC BY 2.0

Mississippi Attorney

[caption id="attachment_3907" align="alignleft" width="150"] Photo By: Robert Scoble - CC ...

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Federal Circuit Flas

By Ken Winterbottom J.P. Morgan Appeal Dismissed for Lack of Jurisdiction In ...