A student-run resource for reliable reports on the latest law and technology news
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U.S. Marshals Service Uses Airborne “Dirtboxes” to Collect Cell Phone Data

By Katherine Kwong – Edited by Mengyi Wang

The U.S. government has been using “dirtboxes” to collect cell phone data. The program, designed for criminal suspect surveillance, is accused of also collecting cell phone data on numerous Americans not suspected of any crime. While many commentators express concern about the program’s legality, others argue that the program is an effective method of catching criminals.

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Federal Circuit Flash Digest: News In Brief

By Henry Thomas

Ads For Content Scheme Held To Be Abstract Idea, Not Patentable Process

Federal Circuit Limits Application of Collateral Estoppel in Patent Litigation

Electronics Company Avoids Patent Enforcement By Directing Sales Outside U.S.

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Silk Road 2.0 Takedown Indicates Law Enforcement May Have Developed a Method to Trace Hidden Tor Websites

By Steven Wilfong — Edited by Travis West

The complaint filed against Blake Benthall, the alleged operator of Silk Road 2.0, indicates that the FBI identified a server that was used to host the popular drug market website, despite the fact that the website’s location was hidden by the Tor anonymity software.  Law enforcement may have developed a method of compromising Tor anonymity, a possibility that would prove useful in future operations, but that also raises concerns for legitimate users.

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Federal Circuit Flash Digest: News in Brief

By Ken Winterbottom

Motion to Dismiss in Hulu Patent Infringement Suit Affirmed

“Virtual Classroom” Patent Infringement Case Remanded for Further Determination

Attorney Publicly Reprimanded for Circulating Email from Judge

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Spain Passes a “Google Tax,” Analysts Predict it Will be Short-Lived

By Michael Shammas — Edited by Yixuan Long

Spain recently amended its Intellectual Property Law and Code of Civil Procedure to levy fees on aggregators that collect snippets of other webpages. It is at least the third example of a European government fining search aggregators to support traditional print publishing industries, a practice often labeled a “Google tax” because of the disproportionate impact such laws have on the search giant. Some analysts are already predicting that Spain’s new law will fail.

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Seventh Circuit Wrestles with Constitutionality of Warrantless Cell Phone Searches
By Brittany Horth – Edited by Charlie Stiernberg

United States v. Flores-Lopez, No. 10-3803 (7th Cir. 2012)
Slip opinion

The Seventh Circuit affirmed the United States District Court for the Southern District of Indiana, which had held that a warrantless search of a cell phone in order to obtain its phone number is permitted under the Fourth Amendment. Judge Posner acknowledged that the issue had implications for computers and other electronics that hold personal data because the “modern cell phone is a computer.” Slip Op. at 1. He described the extensive capabilities of modern-day cell phones but ultimately refused to define the precise boundaries of cell phone searches beyond the immediate issue of the phone number of the cell phone.

FindLaw and The Wall Street Journal Law Blog provide brief overviews of the case.  Forbes provides a more detailed summary of Judge Posner’s reasoning.  Orin Kerr at The Volokh Conspiracy questions some of Judge Posner’s analogies and finds that Posner’s new approach to the problem may result in Supreme Court review in the future. Westlaw Insider criticizes Judge Posner’s analogies as confusing and incomparable and expresses concern over the continued potential for abuse in cell phone and computer searches. (more…)

Posted On Mar - 6 - 2012 Comments Off READ FULL POST

Federal Circuit Invalidates Real Estate Investment Claims Following Bilski Precedent
By Elettra Bietti – Edited by Charlie Stiernberg

Fort Props., Inc. v. Am. Master Lease LLC, No. 2009-1242 (Fed. Cir. Feb. 27, 2012)
Slip Opinion

The Federal Circuit affirmed the District Court for the Central District of California, which had granted summary judgment in favor of Fort Properties. In a pre-Bilski decision, the district court had invalidated all 41 claims in American Master Lease’s (“AML”) real estate investment patent for failing to meet the subject matter eligibility requirements of 35 U.S.C. § 101 by applying the machine-or-transformation test.

Judge Prost, writing for the court, held that claims 1–31, which describe a real estate investment tool “tied to the physical world,” disclose an unpatentably abstract concept. Slip op. at 10. Following the Supreme Court’s decision in Bilski, Judge Prost held that an “abstract concept cannot be transformed into patentable subject matter merely because of connections to the physical world through deeds, contracts, and real property.” Id. at 10 (citing Bilski v. Kappos, 130 S.Ct. 3218 (2010)). Claims 32–41 contain the same ties, with an additional limitation requiring a computer to “generate a plurality of deedshares.” Id. at 11. Nevertheless, the court held that the added computer limitation did not save claims covering an abstract concept from invalidity, where such a limitation “is simply insignificant post-solution activity.” Id. at 13.

Bloomberg BNA provides a summary of the case and notes that the court identified “intricate and complex computer programming” as a distinguishing characteristic for patent eligibility. Patently-O criticizes the court for not defining “unpatentably abstract” and relying excessively on the similarities between AML’s patent and the invention in Bilski to reach its conclusion. (more…)

Posted On Mar - 6 - 2012 Comments Off READ FULL POST

By Geng Chen

Violent Video Game Fight Ends Not With a Bang, But With an Invoice

The Sacramento Bee had the last word in the California violent video games saga. California taxpayers will end up bearing the $1.8 million bill for legal services related to defending the controversial state statute, struck down by a 7-2 vote in the Supreme Court last year in Brown v. Entertainment Merchants Ass’n. It would have prevented retailers from selling video games depicting killing, maiming, dismembering, or sexual assault to minors. No child was ever prohibited from purchasing these games, however, as lower courts had blocked implementation of the law since the initial preemptive challenge by industry representatives. The $1.8 million includes the legal fees borne by the video game industry, totaling $1.3 million. The remaining $500,000 represents the hours spent by the state attorney general’s office in defending the case.

FCC Tightens Regulations on Telemarketing Robocalls

The LA Times describes the Federal Communications Commission’s newly revised telemarketing regulations on robo-calls. These automated, pre-recorded marketing messages will be prohibited unless the telemarketer obtains prior written consent. The exemption for companies with an “established business relationship” with consumers will be eliminated. According to the FCC, such a relationship can form when the consumer contacts the business to ask a question or makes a purchase. Furthermore, ABC News reports that a consumer will also have the power to opt out from future calls within the first two seconds of the message. According to the Wall Street Journal, the telemarketer would then have to hang up and add that number to the company’s do-not-call list. However, certain organizations, including nonprofits such as local schools and churches, or political groups and pollsters, may still make these calls. The new rules are expected to take effect after review by the Office of Management and Budget.

European Right to Be Forgotten Raises Questions About Free Speech

The European Commission’s proposed online privacy rules create a new “right to be forgotten,” reports Time. An individual would be able to demand that online companies delete information about him or her, unless the company can demonstrate a legitimate reason not to. The stated intent behind the new rules is to protect the future employment prospects of young people from the consequences of damaging photos or information on social network sites. However, some commentators have expressed concern over the potential impacts on free speech. In the Stanford Law Review Online, George Washington Law Professor Jeffrey Rosen cautioned against a broad application of the new rules, in particular applying the right to be forgotten to truthful information posted by third parties. Even though the new regulations allow companies to retain the information if the need to do so is legitimate, shifting this legal burden of proof to the company may cause it to take a conservative approach and comply with all complaints. Although the European Commissioner Viviane Reding has made reassurances that the right to be forgotten will not “take precedence over freedom of expression or freedom of the media” (as reported by the Wall Street Journal), Rosen contends that the law, currently written to include “any information related to a data subject,” is uncomfortably broad.

 

Posted On Mar - 2 - 2012 Comments Off READ FULL POST

A book launch at the MIT Media Lab on February 2, 2012

By Elettra Bietti – Edited by Andrew Segna

On the sixth floor of the MIT Media Lab, Rebecca MacKinnon started the presentation of her new book Consent of the Networked: The World Struggle for Internet Freedom by warning us about the threats around the Internet’s future. Are we going toward democracy or toward its opposite? How do we make sure that the Internet evolves in a democratic way? The Internet, according to Ms. MacKinnon, must not be taken for granted.

Ms. MacKinnon argued that state laws will never provide sufficient protection for the Internet as foreign laws systematically undermine their effects. After mentioning multi-jurisdictional issues, she went on to discuss the more abstract relationship between citizens and government. Companies are increasingly crucial in the Internet’s eco-system. She asked the audience how we can make sure that government actually represents the people when it regulates companies and whether it should regulate at all. The relationship between the State and its citizens appears to have eroded, and its erosion begs the question of what new form regulation of the online realm should take. The Magna Carta and John Locke’s ideas about government and property are no longer a persuasive guide for regulators, who must find inspiration elsewhere.

If the pre-Internet period can be metaphorically represented as a time of scarcity, a desert of ideas, the Internet revolution can instead be represented as a tropical storm, the implications of which we, as inhabitants of the desert, are still unequipped to face and fully understand. According to Ms. MacKinnon, although we are far from knowing the values we will need to promote or the ways in which we will want to promote them, we are aware that something important has changed in our current social structure. She mentioned a few ideas and solutions discussed in her book for implementing openness online: open digital commons, multi-stakeholder Internet governance, development of declarations of the rights of Netizens, the Global Network Initiative which promotes online accountability for businesses, and other efforts of transparency including the Google Transparency Report, as well as forms of dialogue and consultation with users. The ultimate goal, Ms. MacKinnon pointed out, is to preserve liberty online. As the fight for the Internet’s ecology becomes fiercer, we are increasingly responsible for the preservation of our online liberties. Given the number of players and the interests at stake, maintaining the Internet as a free space for online public discussions is and will be a challenge, as the SOPA legislation showed.

Overall, the event was greatly inspirational and reminded us that the Internet is not a given and that we need to act to make sure the Internet becomes what we want it to be.

The event is available online on the Berkman Center’s YouTube channel on the following link: http://www.youtube.com/watch?v=FpUQDeSgp8A.

Elettra Bietti is a LL.M. student at Harvard Law School.

Posted On Mar - 1 - 2012 Comments Off READ FULL POST

Federal Circuit Clarifies the Fame Standard for Trade Dilution
By Sonal Mittal – Edited by Laura Fishwick

Coach Servs., Inc., v. Triumph Learning L.L.C., No. 2011-1129 (Fed. Cir. Feb. 21, 2012)
Slip Opinion

The Court of Appeals for the Federal Circuit affirmed-in-part the decision of the Trademark Trial and Appeal Board (“Board”), which had dismissed the notice of  opposition filed by Coach Services, Inc. (“CSI”) opposing the registration of the COACH mark by Triumph Learning L.L.C. (“Triumph”). The Federal Circuit upheld the Board’s holding that CSI failed to prove that Triumph’s educational materials were likely to dilute CSI’s luxury travel brand. In so holding, the court provided an example of a level of fame that is insufficient to qualify for protection from brand dilution under the Lanham Act.

PatentlyO provides an overview of the case. TrademarkAttorneys praises the decision as a just response to major luxury label’s attempt to enforce a trademark without any legitimate economic need to do so. The TTABlog concurs that the case provides an interesting benchmark for the level of fame required to achieve trade dilution in the context of two disparate market sectors—luxury travel goods and educational services.  (more…)

Posted On Feb - 28 - 2012 Comments Off READ FULL POST
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