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District Court Holds that Internet-Based Television Provider, FilmOn X is Entitled to a Compulsory License

By Anne Woodworth – Edited by Henry Thomas

The U.S. District court for the Central District of California ruled that an online streaming service that rebroadcasted network television fit the definition of a cable company, and was entitled to compulsory licensing under § 111 of the Copyright Act.  The order relied on the Supreme Court’s Aereo decision, which held that internet streaming was fundamentally the same as cable. The ruling conflicts with a Second Circuit case decided on similar facts, and is immediately appealable.

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Data Breach Victims, Rejoice: Seventh Circuit Finds that Threat of Injury is Sufficient for Article III Standing in Data Breach Class Actions

By Brittany Doyle – Edited by Ariane Moss

Last Monday, the Seventh Circuit Courto of Appeals ruled that victims of a data breach had standing to pursue a class action even when they had not suffered direct financial harm as a result of the breach or when they had already been compensated for financial harm resulting from the breach. The opinion reversed a contrary district court decision, which the Seventh Circuit said had incorrectly read the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA.

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How Far Can Law Enforcement Go When Gathering Email Evidence? Former Gov. Scott Walker Employee Files Petition for Writ of Certiorari

By Kasey Wang – Edited by Ariane Moss

Kelly Rindfleisch is serving a six-month sentence for misconduct in public office while working for then-County Executive Scott Walker. Rindfleisch appeals to the U.S. Supreme Court, claiming that the government violated her Fourth Amendment rights while searching her emails for evidence for a different case.

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Russia’s “Right To Be Forgotten” and China’s Right To Be Protected: New Privacy and Security Legislation

By Brittany Doyle – Edited by Ken Winterbottom

The legislatures in Russia and China took steps this month to tighten regulations over Internet companies with access to user data. In Russia, President Vladmir Putin signed a law ensuring a “right to be forgotten” reminiscent of the European Court of Justice’s right to be forgotten ruling of May 2014. And in China, the National People’s Congress released a draft cybersecurity bill that would formalize and strengthen the State’s long-standing regulation of websites and network operators.

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Washington Appeals Court Refuses to Compel Unmasking of Anonymous Avvo Critic Absent Evidence of Defamation

By Leonidas Angelakos – Edited by Olga Slobodyanyuk

The Washington Court of Appeals held that—absent evidence of defamation—a third party website is not required to unmask an anonymous defendant. The court adopted an analysis similar to the widely cited Dendrite test for the showing a defamation plaintiff must make on a motion to compel disclosure of an anonymous defendant’s identity.

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Viacom Int’l Inc. v. YouTube, Inc.
By Pio Szamel – Edited by Laura Fishwick

Viacom Int’l Inc. v. YouTube, Inc., 07 Civ. 2103 (S.D.N.Y. April 18, 2013)
Slip opinion

Hacked By Over-XOn April 18, 2013 the U.S. District Court for the Southern District of New York once again granted summary judgment for YouTube in Viacom Int’l Inc. v. YouTube, Inc., on remand from the Second Circuit Court of Appeals. Judge Louis L. Stanton held that YouTube did not have any actual knowledge of any specific infringements of the Viacom content in suit, nor was it willfully blind to any such specific infringements. He also held that YouTube did not have the “right and ability to control” infringing activity for the purposes of 17 USC §512(c)(1)(B), and that YouTube’s transcoding of clips for viewing on mobile devices is protected by the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”), 17 USC §512(c).

Reuters has further coverage of the decision, which is hailed by the Electronic Frontier Foundation and Eric Goldman. JOLT Digest previously covered the District Court’s prior grant of summary judgment in favor of YouTube, and the Second Circuit’s decision to vacate part of that prior order and remand for further proceedings. (more…)

Posted On May - 2 - 2013 Comments Off READ FULL POST

Bayer Healthcare Pharm., Inc. v. Watson Pharm., Inc.
By Erica Larson – Edited by Suzanne Van Arsdale

Bayer Healthcare Pharm., Inc. v. Watson Pharm., Inc., No. 12-1397 (Fed. Cir. Apr. 16, 2013)
Slip opinion

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The Court of Appeals for the Federal Circuit reversed the judgment of the Nevada District Court, which ruled that claims 13 and 15 of Bayer Healthcare Pharmaceuticals, Inc. and Bayer Schering Pharma AG (“Bayer”) U.S. Patent RE37,564 were not invalid for obviousness. The patent claimed a combination of synthetic hormones and dosing regimens used by Bayer in the Yaz birth control pill. Three generic manufacturers—Watson Pharmaceuticals, Inc., Sandoz, Inc., and Lupin Ltd.—filed Abbreviated New Drug Applications (“ANDAs”) with the FDA, including Paragraph IV certifications, 21 U.S.C. 355(j)(2)(A)(vii)(IV), asserting that the patent was invalid.

The Federal Circuit held, first, that the patented combinations were obvious in view of prior art:  two foreign patent applications and four scholarly articles. Bayer Healthcare Pharm., Inc. at 11. A person of ordinary skill in the art would have been motivated by the knowledge disclosed in the prior art to craft Bayer’s combination and would have had a reasonable expectation of success. Id. at 11–12. Second, the court rejected Bayer’s arguments on secondary indicia of non-obviousness relating to unexpected results, expert skepticism, industry praise, and copying. Id. at 10, 15.

Reuters and Bloomberg put this ruling into context by describing Bayer’s continuing legal troubles with Yasmin, the precursor to Yaz; the company faces thousands of legal claims that Yasmin increases the risk of blood clots. (more…)

Posted On Apr - 30 - 2013 Comments Off READ FULL POST

Ass’n for Molecular Pathology v. Myriad Genetics, Inc.
By Alex Shank – Edited by David LeRay

Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (U.S. Apr. 15, 2013)
Transcript of Oral Argument

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On Monday, April 15, the Supreme Court heard oral arguments to determine the validity of a patent encompassing the use of the BRCA1 and BRCA2 genes. Mutations in these genes correlate strongly with the development of breast and ovarian cancers. As the patent owner, Myriad Genetics, Inc. (“Myriad”) possesses and exercises the exclusive right to sell diagnostic testing kits based on these genes.

The ACLU first challenged the constitutionality of the Myriad patent in the District Court of the Southern District of New York (“SDNY”), claiming that the patent violated the First Amendment. The SDNY invalidated the patent on other grounds, holding that the genes were “products of nature” and thus not patentable subject matter. On appeal, the Court of Appeals for the Federal Circuit (“CAFC”) affirmed that “comparing” gene sequences was unpatentable as an “abstract mental step” but reversed the SDNY by holding that Myriad’s “screening” claims were patentable. After deciding Mayo Collaborative Servs. v. Prometheus Labs., Inc., the Supreme Court vacated the CAFC’s earlier decision and remanded the case to be decided in light of Mayo. The CAFC reaffirmed that isolated genes were patentable as “markedly different” from genes in the human body and reaffirmed its earlier position on the various method patents. The ACLU appealed to the Supreme Court.

SCOTUSblog comments on the Supreme Court’s skepticism regarding the validity of the Myriad patents. The New York Times offers a summary of the oral argument and background on the case. Nature newsblog and Patently-O predict how the Supreme Court may narrow the scope of its holding to a particular class of genetic material. JOLT Digest previously commented on the implications of a ban on gene patents. (more…)

Posted On Apr - 29 - 2013 Comments Off READ FULL POST

By Charlie Stiernberg

Digital Public Library of America Goes Live, Sans Fanfare

The Digital Public Library of America (“DPLA”) website went live late last week; however, the celebration was postponed in the wake of the Boston Marathon bombing, reports the Harvard Crimson. After more than two years of planning, the DPLA became the first national digital library in the world—with about two million books, pictures, manuscripts, and other materials. The staff is working to overcome copyright obstacles to add more works. A ceremony was to take place on April 18 and 19 at the Boston Public Library, the first public library in the country. But given its proximity to the site of the bombings, organizers decided to reschedule the event for the fall.

ITC Rules Apple iPhone did not Violate Motorola Patents

The International Trade Commission (“ITC”) terminated its investigation into Apple’s alleged infringement of Motorola U.S. Patent No. 6,246,862 (“the ‘862 patent”), “Sensor controlled user interface for portable communication device,” finding no violation of section 337, reports Ars Technica. The ‘862 patent was the last patent remaining of the six included in the original complaint filed by Motorola in 2010. In a notice issued April 22, the ITC found that the ‘862 patent is obvious in view of U.S. Patent Nos. 6,052,464 and 5,894,298. The case is one piece of a larger patent battle between Apple and Motorola, being waged in courts worldwide.

Parties Race to Register “Boston Strong” Trademark with USPTO

Less than a week after the Boston Marathon bombing, two Massachusetts parties have applied to trademark the phrase “Boston Strong” with the U.S. Patent and Trademark Office (“USPTO”), reports the Huffington Post. The first application, filed by Born Into It, Inc., is a standard character mark for “clothing and accessories.” The second application, filed by an individual, is also a standard character mark for “[i]mprinting messages on T-shirts.” The hashtag #BostonStrong has garnered a strong following on Twitter over the last week. The Huffington Post notes that similar applications following the Sept. 11, 2001 attacks were denied by the USPTO.

Posted On Apr - 29 - 2013 Comments Off READ FULL POST

By Ron Gonski

Flash DigestHouse Passes CISPA

Last week, the U.S. House of Representatives passed the Cyber Intelligence Sharing and Protection Act, reports Ars Technica. The proposed bill aims to facilitate the sharing of data between Internet companies and the government for cybersecurity purposes. The bill faces an uphill battle in the Senate, as a previous version of the bill died there last year, notes NBC News. President Obama has threatened to veto the bill, under fears that the bill does not do enough for user privacy, according to the New York Times.


Federal Circuit Renews K-Tech Communications Lawsuit Against DirecTV

The U.S. Court of Appeals for the Federal Circuit renewed a lawsuit filed by K-Tech Communications against DirecTV for alleged patent infringement, Bloomberg reports. The court ruled that a complaint for patent infringement does not have to identify the infringing device to satisfy the requirements of Form 18 (the sample complaint for patent infringement in the Appendix of Forms to the Federal Rules of Civil Procedure). K-Tech Telecommunications Inc. v. Time Warner Cable Inc., No. 12-1425, slip op. at 17 (Fed. Cir. Apr. 18, 2013). Interestingly, the court also stated that, should there be a conflict between Form 18 and the plausibility standard for pleading requirements set forth in Iqbal and Twombly, Form 18 would control. Id. at 11.

Government Squashes Dozens of Patents a Year for National Security Reasons

Government “secrecy orders” have prevented more than 5,000 inventions from being patented, reports Wired. If the Department of Defense believes that an invention could be a national security threat, it can issue a secrecy order to prevent the inventor from discussing the technology with anyone. Patent applicants can appeal a secrecy order, but that process can often take years. The applicable law is based on a vague standard of “detrimental to national security,” according to Wired.

Posted On Apr - 22 - 2013 Comments Off READ FULL POST
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