A student-run resource for reliable reports on the latest law and technology news
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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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Google to Supreme Court: Snagging Data from Unsecured Wi-Fi is Perfectly Legal
By Michael Shammas – Edited by Mary Schnoor

Google has filed a petition for a writ of certiorari asking the Supreme Court to label its Street View cars’ collection of unencrypted Wi-Fi traffic legal, appealing the Ninth Circuit’s decision that Google may have violated the federal Wiretap Act. Google believes unencrypted Wi-Fi traffic should be classed as “radio communications” accessible to the public.

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Mozilla Announces Resignation of Recently Appointed CEO Brendan Eich Following Controversy over Gay Marriage Opposition
By Sheri Pan – Edited by Corey Omer

On April 3, Mozilla Corporation (“Mozilla”), a subsidiary of the non-profit Mozilla Foundation most widely known for producing the Firefox browser, announced that its CEO of less than two weeks, Brendan Eich, has resigned, after pressure from Mozilla employees, bloggers, and developers who opposed his appointment in light of a $1000 donation that he made in 2008 in support of Proposition 8, a ballot measure that sought to ban gay marriage in California.

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Flash Digest: News In Brief
By Emma Winer

Third Circuit Vacates Hacker Conviction for Improper Venue

French Unions and Employers Agree to Curb After-Hours Work Email

Limited Sale of Google Glass Slated For April 15

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Supreme Court Weighs Patent Eligibility of Software
By Mary Schnoor — Edited by Elise Young

The Supreme Court recently heard oral arguments in Alice Corp. v. CLS Bank Int’l, a case with the potential to determine whether, or when, computer-implemented inventions (i.e., software) are patent-eligible subject matter. Many commentators hope the Court will use this case as an opportunity to clarify what makes an invention an “abstract idea” that is ineligible for patenting.

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By Erin Pritchard

New York Legislation Would Ban Anonymous Online Speech

Proposed legislation in New York would require New York-based websites, such as blogs and newspapers, to “remove any comments posted on his or her website by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post” says a report from Wired. The legislation is proposed in both the state Senate and Assembly, but no votes on the measures have been taken. Critics contend that this legislation poses First Amendment problems, and would degrade the Internet experience. Supporters contend that it would improve accountability online and stop “cyberbullies.”

Facebook IPO: Excitement and Disaster

On May 21, 2012, Facebook had their initial public offering, which Vanity Fair called the tech world’s most highly anticipated initial public offering since Google. However, Facebook was overvalued and Facebook’s share price fell below the offering price of $38, and has remained below since, reports Reuters. Now, Bloomberg notes that Facebook and the IPO underwriters face numerous lawsuits legal and serves as an embarrassing example of how not to run an IPO. As a result, there are billions of dollars in losses, investigations by two congressional committees, and the Securities and Exchange Commission.

White House Addressing the Reality of a Networked Nation

On Wednesday, May 23rd, the White House launched the new Digital Government Strategy. In the first Digital Government directive, “Building a 21st Century Platform to Better Serve the American People,” President Obama is pushing all federal agencies to develop mobile applications and thereby make government services more accessible to the public. Steven VanRoekel, the Federal Chief Information Officer, lauds the mandate for government agencies to open up their vaults of valuable data to the public, encouraging enterprising and external development. This release comes on the heels of President Obama’s Consumer Data Privacy Framework in February. The collection, security, and ownership of Americans’ personal online activity data is a lucrative, controversial and ever-growing market that has largely run unchecked since its inception. Adherence to the Consumer Bill of Rights is voluntary, but it is encouraging that the reality of America’s technological shift is beginning to be addressed by the White House.

Oracle v. Google, Patent Wars: Judge Learns to Code

In a move heralded by the technology community, Judge William Alsup of the intellectual property trial between Oracle and Google recently revealed he had learned to code in Java specifically for the case, Wired reports. Oracle is seeking damages from Google for infringing copyrights specifically related to Java APIs. Oracle’s lead counsel, David Boies, is still seeking infringer’s profits, but Judge Alsup is unconvinced that this is not just a “fishing expedition” as even he could write some of the infringing code in five minutes.

This case typifies the problems the tech industry is having with the patent system in the U.S. Visual.ly published a flowchart illustrating the convoluted nature of the patent wars being waged between large technology companies. Timothy Lee of Ars Technica criticizes solutions proposed by former Federal Circuit judges in an article specifically about software patent issues. Although the debate continues, the need for patent reform is recognized by both the innovators and the courts.

Posted On May - 27 - 2012 Comments Off READ FULL POST

Federal Circuit Holds that Apple May Have the Right to a Preliminary Injunction Against Samsung’s Tablet Computers
By Jacob L. Rogers – Edited by Charlie Stiernberg

Apple, Inc. v. Samsung Elecs. Co., No. 2012-1105 (Fed. Cir. May 14, 2012)
Slip opinion

The Federal Circuit affirmed in part, reversed in part, and remanded a decision by the Northern District of California, which had denied Apple a preliminary injunction against Samsung’s smartphones and tablet computers.

The Federal Circuit held that the district court did not abuse its discretion in denying a preliminary injunction on three of the four patents in suit—two design patents related to the iPhone and one utility patent related to the “bounce back” feature when scrolling through documents on both iPhone and iPad. However, with respect to the fourth patent (the “D’889 patent”) related to the design of the iPad, the court held that the district court erred by using a 1994 prototype design as a primary reference to find that Apple was unlikely to succeed on the merits. The district court had already found that there would be irreparable harm to Apple without an injunction, so the court remanded for a determination on the balance of the equities and the public interest in order to make a final determination as to whether a preliminary injunction should issue against Samsung’s tablet computers.

Rebecca Tushnet’s 43(B)log provides an overview of the case. Sarah Burstein expressed surprise at the decision in a guest post on Patently-O. Burstein expressed concern at the court’s unqualified acceptance of Apple’s theory of brand dilution from design patent infringement, which is normally reserved for Trademark. Ars Technica provides an overview of the stakes for each company, including graphs depicting worldwide share in the mobile and smartphone markets. Ars Technica also reports that following this decision Apple and Samsung attempted to return to the negotiation table per the judge’s orders, but were again unable to reach an agreement. (more…)

Posted On May - 26 - 2012 Comments Off READ FULL POST

Written By: Sally Wang
Edited By: Charlie Stiernberg
Editorial Policy

Introduction:

Drug marketing faces the problem of an arms race — competitors attempt to out-compete each other by boosting their marketing efforts, at great expense, only to find that the baseline level of marketing needed to maintain the status quo has increased accordingly. These inefficiencies are costly and often harmful to the stakeholders — drug companies, patients, payors (e.g., Medicare/Medicaid or health insurance companies) and physicians. The Food and Drug Administration (“FDA”) is in the most strategic position to correct these inefficiencies, not only because it is currently tasked to monitor drug marketing, but more importantly because it oversees drug approval and labeling that creates the right to market in the first place. The FDA is also intimately familiar with the workings of the industry, allowing it to tailor its regulatory measures to achieve the most optimum results both for the public and the industry.  However, several First Amendment cases on drug marketing have severely curtailed the FDA’s ability to regulate in this area. Using the First Amendment to limit the FDA’s regulation of drug marketing creates a legal paradox: if a pharmaceutical company were able to sell a drug the same way as a consumer electronics company sells a TV, then the entire approval process would be undermined.  Selling a TV does not require complex regulatory pre-approval that then limits the advertising to the contents of a governmentally or scientifically-proscribed label. Therefore, drug marketing is a very unique space that requires a unique solution to its arms race problem.  Because intellectual property (“IP”) law provides the basis upon which drugs may be approved and marketed, as in the market exclusivity that is granted upon approval and the close tethering of patents to regulatory scheme, it serves as a better framework for determining the appropriate level of regulation for drug marketing as the resulting legal landscape provides for more flexibility that can address the current inefficiencies. This IP “carve-out” to the standard First Amendment rule of commercial speech is comparable to existing exceptions, such as spectrum regulation by Federal Trade Commission (“FTC”) and censorship by the National Endowment of the Arts (“NEA”), where there is a government conferred benefit and a strong public interest for such regulation. This comment argues that the FDA approval process has essentially carved out a similar exception to the standard First Amendment commercial speech doctrine, whereby the ability to market drugs stems from the IP rights generated through the regulatory process (e.g., market exclusivity and regulatory patent extensions) and that is inherent in the products (e.g., original patents issued by US Patent and Trademark Office).  Therefore, pharmaceutical marketing regulation should be considered in a legal framework that respects that IP origin. (more…)

Posted On May - 25 - 2012 Comments Off READ FULL POST

Written By: Laura Fishwick
Edited By: Lauren Henry
Editorial Policy

The exclusive right to distribute copies is among the bundle of rights that Congress has bestowed onto owners of United States copyrights.[i] Copies of copyrighted works may include books, DVDs, CDs, and copyrighted labels and logos for other consumer products from shampoo to fashion items. The right to distribute copies is limited by the first sale doctrine,[ii] as codified in Title 17 by the Copyright Act of 1976 (“Act”), which entitles the owner of a copy “lawfully made under [Title 17]” to sell or otherwise dispose of the copy without the authorization of the copyright owner.[iii] The first sale doctrine balances the interests of copyright holders in obtaining fair returns on their products with the interests of consumers in accessing goods at low cost and in reselling goods in the marketplace. Concerning rights holders’ importation rights for their copies, § 602(a) of the Act provides that a copyright owner’s exclusive right to distribute copies under § 106(3) is infringed when someone acquires a copy outside of the United States and imports the copy into the United States without the copyright owner’s authority.[iv]

More than a decade ago in Quality King Distributors v. L’anza Research International, the Supreme Court addressed the circumstances in which the first sale doctrine limits copyright owners’ exclusive rights to import copies under § 602(a).[v] In Quality King, the plaintiff manufactured high-end hair care products in the United States and price-discriminated between United States and foreign consumers — selling them for a high price in the United States but discounting them for foreign retailers. Id. at 139. The plaintiff then sued a foreign retailer farther down the resale chain that had purchased the products abroad and resold them in the U.S., claiming a violation of its right to distribute copies under § 602(a). Id. at 138-39. The Court unanimously found that because § 602(a) expressly applies to “infringement of the exclusive right to distribute copies … under section 106,” and section 106 subjects these exclusive rights to “sections 107 through 122,” the importation rights given by § 602(a) are subject to the first sale doctrine in § 109(a). See id. at 143-46. Since Quality King, the general applicability of the first sale doctrine to the § 602(a) bar on importing copies has not been challenged.

Quality King left unresolved the question of whether the first sale doctrine would provide a defense to infringement by importation of copies manufactured abroad, because Quality King only involved products that were manufactured in the U.S. See id. at 154 (Ginsburg, J., concurring). Answering this question will depend on how the first sale doctrine’s statutory requirement that copies be “lawfully made under [Title 17]” is interpreted. See id. This comment will explore the three major circuit court decisions on this topic and suggest an alternative resolution in the aftermath of Quality King. (more…)

Posted On May - 20 - 2012 Comments Off READ FULL POST

Masthead
Executive Editors: Andrew Segna and Kassity Liu
Technical Editor: Esther Kang
Submissions Editor: Dorothy Du
Content Editor: Jonathan Allred

Staff
Elettra Bietti
Geng Chen
Heejin Choi
Andrew Crocker
Julie Dorais
Laura Fishwick
Matt Gelfand
Lauren Henry
Brittany Horth
Mike Hoven
Gillian Kassner
Abby Lauer
Sounghun Lee
Adam Lewin
Susanna Lichter
Sonal Mittal
Jacob Rogers
Charlie Stiernberg
Marsha Sukach
Albert Wang
Sally Wang
Yana Welinder
Yunan Yuan

Posted On May - 10 - 2012 Comments Off READ FULL POST
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European Court of Ju

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Google to Supreme Co

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Mozilla Announces Re

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Flash Digest: News I

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Supreme Court Weighs

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