SOFA Entm’t, Inc. v. Dodger Prods., Inc.
By Erica Larson – Edited by Alex Shank

SOFA Entm’t, Inc. v. Dodger Prods., Inc. No. 2:08-cv-02616 (9th Cir. Mar. 11, 2013)
Slip Opinion

Photo By: bagaball – CC BY 2.0

The Ninth Circuit affirmed the decision of the District Court for the Central District of California to grant summary judgment and award attorneys’ fees to Dodger Productions, Inc. (“Dodger”) in its suit against SOFA Entertainment, Inc. (“SOFA”).

In an opinion by Judge Trott, the court concluded that Dodger’s unlicensed use of a clip from the Ed Sullivan Show fell squarely within the fair use exception. In so holding, the court stated that the use was transformative and the clip used was not at the core of the copyrighted work. In addition, the court awarded attorneys’ fees to Dodger, on the grounds that SOFA should have known that it had little chance of success.

Dan Levine, writing for Thomson Reuters, offers a concise overview of the case. All Media Law provides a more detailed discussion. In her blog, Rebecca Tushnet focuses on the court’s use of fees to send a message about the purposes of copyright. (more…)

By Samantha Rothberg

Reuters Employee Indicted for Conspiring with Anonymous to Hack News Site

A federal grand jury indicted Reuters’ deputy social media editor Matthew Keys for allegedly conspiring with the hacking group Anonymous, Reuters reports. The indictment claims that in 2010, shortly after being fired from his job with a Sacramento television station owned by the Tribune Company, Keys gave Anonymous members a username and password linked to the company’s server. A hacker nicknamed “Sharpie” then used the log-in credentials to hack the Los Angeles Times website, changing the text and headline of a news story. Keys has been charged with three criminal counts, including conspiracy to cause damage to a protected computer, and faces a maximum sentence of up to 25 years in prison and up to $750,000 in fines.

Federal Judge Allows FTC to Serve International Defendants via Facebook

A U.S. District Judge granted the FTC’s request to serve documents via email and Facebook to defendants in India who are accused of scamming U.S. consumers, reports Evan Brown at internetcases. In his opinion granting the request, Judge Paul Engelmayer noted that service by email and Facebook is not prohibited by international agreement. Furthermore, Judge Engelmayer found that service by email and Facebook comports with due process requirements in this case because it is “reasonably calculated” to provide the defendants with notice, particularly given evidence showing that the Facebook and email accounts in question are actually owned and used by the defendants. While Judge Engelmayer noted that courts must be open to the possibility of “service via technological means of then-recent vintage,” he also expressed skepticism that service via Facebook alone would be sufficient to meet due process requirements.

D.C. Circuit Reinstates ACLU Lawsuit Seeking Information on CIA’s Role in Drone Strikes

The U.S. Court of Appeals for the District of Columbia reinstated an American Civil Liberties Union lawsuit seeking CIA documents relating to the agency’s drone program, Bloomberg reports. The ACLU filed a Freedom of Information Act request in 2010 for records disclosing the legal basis for the use of drones to kill civilians abroad, and the CIA argued that to confirm or deny the existence of the drone program would pose a threat to national security. A district court accepted the CIA’s reasoning and dismissed the case in 2011, but the appeals court rejected their argument and sent the case back to the district court for further proceedings. The court ruled that since the drone targeting program had been publicly acknowledged by senior administration officials, including President Barack Obama, former Defense Secretary Leon Panetta, and current CIA Director John Brennan, the agency had waived its right to withhold the information.

Google Settles Street View Lawsuit, Acknowledges Privacy Violations

Google has settled a lawsuit brought by 38 states regarding privacy violations by its Street View team, reports the New York Times. Google acknowledged that its Street View mapping vehicles violated people’s privacy by secretly collecting personal information from millions of unprotected wireless networks across the country. The settlement requires Google to pay a modest $7 million fine and meet several specific privacy benchmarks, including setting up a privacy program within six months, offering privacy certification and training programs for its employees, and launching a comprehensive effort via YouTube, online ads, and newspaper ads to educate consumers about easy ways to encrypt their wireless networks.

United States v. Cotterman
By Casey Holzapfel ­– Edited by Jessica Vosgerchian

United States v. Cotterman, No. 09-10139 (9th Cir. March 8, 2013)
Slip opinion

Photo By: Phillip Capper – CC BY 2.0

In an en banc decision, the United States Court of Appeals for the Ninth Circuit reversed a decision of the District Court of Arizona suppressing evidence found in a laptop seized by border agents.

The Ninth Circuit held that comprehensive searches of electronic devices must meet a standard of reasonable suspicion of criminal activity, extending the standard for searches conducted away from the point of entry to forensic examinations of computers carried out as part of a border search. The Ninth Circuit reversed the district court after finding that the agents did meet that standard.

Wired comments on the authorization of “blank check” search rules for electronics by the executive branch. Ars Technica and Politico provide a comprehensive overview of the dissenting opinions. (more…)

Gunn v. Minton
By Laura Fishwick – Edited by Charlie Stiernberg

Gunn v. Minton, No. 11-1118, 2013 WL 610193 (U.S. Feb. 20, 2013)
Slip Opinion

Photo By: TexasGOPVote.com – CC BY 2.0

In a unanimous decision, the Supreme Court of the United States reversed and remanded a decision of the Supreme Court of Texas, Minton v. Gunn, 355 S.W.3d 634 (Tex. 2011), by finding that state courts can have jurisdiction over a legal malpractice claim based on an underlying patent matter. The Supreme Court of Texas had held that the case involved a substantial federal issue sufficient to trigger 28 U.S.C. § 1338(a)—which provides that “[f]ederal courts have exclusive jurisdiction over cases ‘arising under any Act of Congress relating to patent’”—because the resolution of the case turned on evaluation of an “experimental use” defense to anticipation under the on-sale bar of 35 U.S.C. § 102(b).

In the 1990s, Vernon Minton developed and patented a computer program and telecommunications network used for securities trading. Minton filed an infringement suit in federal district court against the National Association of Securities Dealers, Inc. (NASD) and the NASDAQ Stock Market, Inc. The district court declared Minton’s patent invalid on the basis of § 102(b)’s on-sale bar, because Minton had leased his patented program more than one year before filing his application. The district court further denied Minton’s motion for reconsideration, which argued for the first time that the lease agreement was part of ongoing testing qualifying under the “experimental use” exception to anticipation. The Federal Circuit affirmed, reasoning that Minton had waived this defense by not bringing it earlier. Minton then brought suit against his attorneys in Texas state court for failure to raise the experimental use argument. The state court rejected Minton’s argument, finding “less than a scintilla of proof” in his favor. Gunn, slip op. at 3. Minton appealed, arguing inter alia that the state trial court’s order should be vacated and the case dismissed because federal courts had exclusive jurisdiction over his patent law claim under § 1338(a).

Patently-O provides an overview of the case, and PatentDocs gives more detailed descriptions of the Court’s arguments. SCOTUSblog discusses the major holdings and impact for the Federal Circuit. (more…)

By Ron Gonski

Smartphone Unlockers May Soon Rejoice (Possibly)

Smartphone unlockers have reason to be optimistic despite the January 26 change, reported by ABC News, to the Digital Millennium Copyright Act banning the practice. This week, the Obama administration questioned the logic of the new ban and has pledged to support legislation to make cell phone unlocking legal, according to the Los Angeles Times. The White House has already been taken up on its offer, as Senator Amy Klobuchar (D-MN) introduced a bill in the Senate this week.

U.K. High Court Blacklists Piracy Websites, Raises Possibility of Active Monitoring

The difference in approaches to stopping copyright infringement between the United States and the United Kingdom was highlighted again last week when a U.K. high court ordered the country’s Internet service providers to block user access to three music file-sharing websites, Bloomberg reports. Common U.S. approaches are domain seizures and the new “Copyright Alert System,” as opposed to outright blacklisting. This was only the third time in the last two years that the U.K. high court has issued a ruling against alleged piracy websites, and the decision is significant because in his ruling Judge Arnold implied that having an effective notice and takedown policy may not be sufficient to avoid liability and some active monitoring may be required, notes the Guardian.

Effect of the Supreme Court’s Decision in Clapper Already Being Felt

In Clapper v. Amnesty Int’l USA (previously reported on by the Digest), the Court held that the ACLU, journalists, and other human rights groups had no standing to sue for nullification of the FISA Amendments Act, which allows the government to monitor emails and phone calls without a warrant as long as one of the parties to the conversation is outside the United States. Last week, the government relied on that weeks-old opinion to demand that the U.S. District Court in San Francisco dismiss a lawsuit brought by the Electronic Frontier Foundation for Fourth Amendment unreasonable search violations under the National Security Agency’s dragnet surveillance program, reports Wired.