Court Affirms Disciplining of Mortuary-Science Student for Threatening Facebook Posts, Relies on Tinker Standard for Censoring Speech in Higher Education
By Matthew Becker – Edited by Abby Lauer

Tatro v. University of Minnesota, 2011 WL 2672220 (Minn. Ct. App. July 11, 2011)
Slip Opinion hosted by the Minnesota State Law Library

The Minnesota Court of Appeals affirmed a decision of the University of Minnesota Provost’s Appeals Committee, which had penalized mortuary-science student Amanda Tatro for off-campus posts to a social networking website.

The Minnesota Court of Appeals held that the evidence supported the university’s finding that Tatro violated its rules. The court also held that the university properly exercised its authority to address Tatro’s off-campus conduct and did not violate her free speech rights because her actions fell under the wording of the university’s Student Conduct Code, which applies to off-campus conduct that “adversely affects a substantial University interest and . . . indicates that the student may present a danger or threat to the health or safety of the student or others.” In so holding, the court applied the Tinker standard, which allows school officials to limit or discipline student behavior if they reasonably conclude that the behavior will “materially and substantially disrupt the work and discipline of the school.”  The court stated that the Tinker standard was more appropriate than the alternative “true-threat” standard (which would have required Tatro to have intentionally communicated an actual threat before the university would be allowed to intervene), given that this was not a criminal case and that this standard typically does not apply to public schools taking appropriate disciplinary action.

Eric Goldman provides an overview of the case. The Volokh Conspiracy criticizes the decision for relying on an overly broad rationale that might encroach on students’ free speech rights, while the Foundation for Individual Rights in Education (FIRE) features a similar criticism and a thorough analysis of the decision.

(more…)

Apple’s Trademark Claim to the Term “App Store” Fails on Preliminary Injunction Motion
By Samantha Kuhn – Edited by Abby Lauer

Apple, Inc. v. Amazon.com Inc., No. C 11–1327 PJH, 2011 WL 2638191 (N.D. Cal. July 6, 2011)
Slip Opinion hosted by Scribd.com

On July 6, the District Court for the Northern District of California denied Apple’s motion for a preliminary injunction to enjoin Amazon.com from using the term “App Store.” The court found that Apple’s claims of trademark infringement and dilution were unlikely to succeed on the merits.

In her decision, Judge Phyllis Hamilton held that Apple failed to show that it was likely to prevail on its trademark infringement claim, based on the weakness of its argument regarding the “likelihood of confusion” element. With regard to the dilution claim, Judge Hamilton was not convinced by Apple’s contentions that the “App Store” mark is distinctive and that it can be diluted by blurring and/or tarnishment. The main issue in this case seemed to be whether the mark “App Store” should be classified as distinctive or descriptive, as the court rejected the idea that the mark is purely generic.

Ars Technica provides background and a brief summary of the dispute. An additional brief summary is available at News Daily. Eric Goldman hones in on particular aspects of the opinion and criticizes the case for the ridiculousness of the claims and the court’s inadequate treatment of the issues.  (more…)

By Michael Hoven

TSA to Revamp Full-Body Scanners Despite Legal Victory

The Transportation Security Administration (TSA) announced that it would upgrade the software on controversial full-body scanners in order to better protect the privacy of travelers, says Wired. Instead of creating a nude image of the traveler, the new Automated Target Recognition software will produce a “generic outline of a person,” according to the TSA. The announcement came shortly after the Court of Appeals for the District of Columbia Circuit held that the use of full-body scanners at security checkpoints in airports did not constitute an unreasonable search barred by the Fourth Amendment, as the Wall Street Journal Law Blog reported. The court held that the government’s interests in security and anti-terrorism outweighed individuals’ privacy concerns, but the TSA rule implementing the scanners had improperly been enacted without going through a notice-and-comment period.

FBI Arrests Sixteen in Connection with “Anonymous,” “LulzSec” Hackers Collectives

An FBI crackdown spanned ten states and led to the arrest of fourteen suspected members of “Anonymous” and two others accused of crimes in connection with “LulzSec,” reports All Things Digital. Anonymous is the name of a loosely affiliated organization of hackers who have claimed responsibility for the distributed denial of service attacks against PayPal and others who Anonymous believed were withdrawing support for Wikileaks. LulzSec has used similar methods to attack Sony and Senate.gov, among others, and may be a spinoff group of Anonymous, as VentureBeat has reported. The fourteen suspected members of Anonymous were indicted by a federal grand jury in San Jose, CA on charges of conspiracy and intentional damage to a protected computer, according to All Things Digital, and the other two face similar charges. Gizmodo reports that Anonymous and LulzSec have since released a joint statement promising to continue their attacks on corporations and government.

Court Rules Facebook Posts Sufficient for Disciplining College Student

The Minnesota Court of Appeals (via Leagle) rejected a student’s argument that the University of Minnesota could not discipline her for statements made on Facebook because such statements were off campus, reports Eric Goldman at the Technology and Marketing Law Blog. In a series of posts, the mortuary sciences student discussed taking out aggression on a cadaver being dissected in class and threatened to stab an unidentified person, which she later admitted referred to an ex-boyfriend. The court held that the university was allowed to take disciplinary action (namely a failing grade and academic probation) because the student’s posts were threatening and disruptive to the university. At The Volokh Conspiracy, Eugene Volokh criticized the court’s reasoning for its potential to restrict student speech.

Direct Infringement Claims Against Cyberlocker Site Dismissed

Hotfile, a “cyberlocker site,” was held not to be a direct copyright infringer by the Southern District of Florida, Ars Technica reports, but the claims of secondary liability for copyright infringement can proceed. Cyberlocker sites are a recent target of MPAA’s anti-piracy efforts. Hotfile users can upload and share files, and affiliate accounts allow for payment based on the popularity of files that are shared. The Motion Picture Association of America (MPAA) alleges that the majority of files uploaded to Hotfile are pirated. Direct infringement claims failed because users, not Hotfile, uploaded the files, failing the “volitional act” requirement. However, Hotfile still faces secondary infringement claims on a theory of inducement (among other things), which Techdirt says is the MPAA’s best case.

by Michael Adelman

Major US Internet Service Providers and Media Organizations Agree to “Six Strikes” Copyright Enforcement Plan

Last week, major ISP’s such as AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable voluntarily agreed to help copyright owners by implementing a series of warnings and penalties for users suspected of downloading copyright infringing material, Ars Technica reports. When copyright holders detect alleged illegal file sharing, they will notify the ISP’s, who have committed to forward these notices to subscribers (but will not turn over subscriber names or addresses to content providers without a court order). Eventually, the plan calls for ISP’s to impose punishments on repeat offenders, including redirection to an educational landing page on copyright infringement and temporary reductions of internet speeds. The Obama administration applauded the measure, and Wired reports industry groups like the Motion Picture Association of America and the Recording Industry Association of America were similarly enthusiastic.

NJ Appellate Court Rules That Wife Tracking Spouse’s Car Movements Via GPS Not A Privacy Violation

A New Jersey Appellate Court (via Scribd) recently dismissed an ex-husband’s claim against a private investigator who recommended his ex-wife place a GPS tracker in their shared vehicle. The ex-wife used the GPS data to investigate if her spouse was having an affair. The Technology and Marketing Law Blog comments on several small but important details the court focused on, including that the vehicle was jointly owned and the GPS only tracked the ex-husband in public places. The Wall Street Journal notes this case is a forerunner to United States v. Jones, a warrantless GPS tracking case headed to the Supreme Court next year.

ITC Finds That HTC Phones Violate Two Apple Patents

ZDNet reports that the ITC found HTC is infringing two Apple patents. According to Engadget, one of the patents at issue is asserted against Motorola in a separate legal battle, and both seem to cover core features of Google’s Android mobile operating system. TechCrunch reports that Eric Schmidt, Google’s executive chairman and former CEO, said the ruling doesn’t worry him, but that Google will assist HTC in appealing the ruling. The Economic Times perceives an increasing amount of litigation between Apple and HTC, as well as fellow smartphone and tablet competitors Nokia and Samsung resulting from more Android-powered devices being released to challenge Apple’s popular iPhone and iPad.

By Heather Whitney – Edited by Esther Kang

On June 28th, Google launched Google+, what appears to be its first major attempt to combat Facebook in the social networking space. While it has been said that Google+ shares more than a little in common with Facebook’s UI, from a policy perspective Google+ has attempted to distinguish itself from Facebook on two main fronts: first, more granular user control of content sharing (i.e. privacy), and second, increased data portability, giving users the ability to easily take their data out of Google+ and go elsewhere. While the introduction of a feasible Facebook competitor has been hailed as a win for users, the possibility of robust competition, resulting in innovation and user-sensitivity, will remain out of reach until users, and not the dominant social networking site, have primary control over their data. In other words, although Google+ has raised the user control and privacy ante, online social networking will never reach its full potential until the costs of switching social networks are drastically lowered.

This article will touch on a few Google+ highlights; for a detailed comparison between Google+ and Facebook, see this Digital Trends piece. (more…)