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Flash Digest: News in Brief

By Olga Slobodyanyuk

ICANN responds to terrorism victims by claiming domain names are not property

D.C. District Court rules that FOIA requests apply to officials’ personal email accounts

Class-action lawsuit brought against ExamSoft  in Illinois

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Federal Circuit Applies Alice to Deny Subject Matter Eligibility of Digital Imaging Patent

By Amanda Liverzani – Edited by Mengyi Wang

In Digitech Image Technologies, the Federal Circuit embraced the opportunity to apply the Supreme Court’s recent decision in Alice to resolve a question of subject matter eligibility under 35 U.S.C. §101. The Federal Circuit affirmed summary judgment on appeal, invalidating Digitech’s patent claims because they were directed to intangible information and abstract ideas.

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Unlocking Cell Phones Made Legal through Unlocking Consumer Choice and Wireless Competition Act

By Kellen Wittkop – Edited by Insue Kim

Unlocking Consumer Choice and Wireless Competition Act allows consumers to unlock their cell phones when changing service providers, but the underlying issue of “circumvention” may have broader implications for other consumer devices and industries that increasingly rely on software.

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SDNY Magistrate Grants Government Search Warrant for Full Access to Suspect’s Gmail Account in Criminal Investigation

By Kellen Wittkop – Edited by Travis West

In an opinion that conflicts with decisions from the DC District Court and the District of Kansas, a SDNY magistrate granted the government’s search warrant for full access to a criminal investigation suspect’s Gmail account.

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Creating full-text searchable database of copyrighted works is “fair use”
By Yixuan Long- Edited by Sarah O’Loughlin

In a unanimous opinion delivered by Judge Parker, the Second Circuit held that under the fair use doctrine universities and research libraries are allowed to create full‐text searchable databases of copyrighted works and provide such works in formats accessible to those with disabilities. The court also decided that the evidence was insufficient to decide whether the plaintiffs had standing to bring a claim regarding storage of digital copies for preservation purposes.

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By Andrew Segna

Google Acquires Motorola Mobility for $12.5 Billion

Google announced on August 15, 2011 that it will acquire Motorola Mobility for $12.5 billion in cash. Ars Technica reports that this purchase was motivated in part by Google’s desire to acquire Motorola’s patents and to protect its Android mobile platform, as this deal will give Google control of more than 17,000 patents in the mobile arena and 7,000 patent applications. This acquisition comes in light of Google accusing Microsoft, Apple, Oracle, and other companies of attacking Google and Android by acquiring Novell and Nortel patents.

Missouri Federal Court Reject LegalZoom’s Motion for Summary Judgment on Whether LegalZoom Violates Unauthorized Practice Law

As reported on Eric Goldman’s Technology and Marketing Law Blog, the District Court for the Western District of Missouri rejected LegalZoom’s motion for summary judgment against accusations that the website dealt in the unauthorized practice of law. LegalZoom offers both blank legal forms and a service in which customers answer a series of questions, which provides LegalZoom’s software with the information necessary to create a completed legal document for the customer. The court did not have an issue with the blank forms. However, the court found that there was a question of whether LegalZoom, through the questionnaire, did more than just allow a customer to pick various wordings of a document.

Activists Protest Bay Area Rapid Transit’s Decision to Cut Mobile Phone Access in Subway Stations

According to the Guardian, a protest occurred in the Civic Center subway station in San Francisco on the night of August 15, 2011 over the decision by Bay Area Rapid Transit (BART) to cut mobile phone access on August 5 in anticipation of a protest against police shootings that threatened to disrupt rush hour commute. Anonymous, the online activist group, broke into BART websites and organized the August 15 protest. BART did not cut off mobile access on August 15 but did temporarily shut down the Civic Center station and three other stations.

Minecraft Developer Vows to Oppose Trademark Infringement Suit

Markus “Notch” Persson, the creator of the popular PC game Minecraft, asserted that he would oppose video game publisher Besthesda Softworks’ claim of trademark infringement, as reported by Ars Technica. Besthesda claims that the title of Persson’s new game, Scrolls, infringes its trademark on its own video games series, The Elder Scrolls. Persson initially responded to the allegations, which he called “bogus,” by challenging Bethesda to a match of the video game Quake III to determine who was right.

Posted On Aug - 22 - 2011 Comments Off READ FULL POST

Sixth Circuit Rules that High-Volume Phone and Email Campaign Violates Computer Fraud and Abuse Act

By Michael Hoven – Edited by Abby Lauer

Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am., Nos. 09-2245; 10-1673 (6th Cir. Aug. 2, 2011)
Slip opinion

The Sixth Circuit affirmed in part and reversed in part the United States District Court for the Eastern District of Michigan, which had granted the Laborers’ International Union of North America’s (“LIUNA”) motion to dismiss Pulte Homes’ claim that LIUNA had violated the Computer Fraud and Abuse Act (“CFAA”) by carrying out a phone and email campaign against Pulte. The district court held that Pulte failed to show that LIUNA intentionally caused damage to Pulte’s phone and email systems.

The Sixth Circuit held that Pulte had successfully stated a “transmission” claim under the CFAA but agreed with the district court that it had not stated an “access” claim. The Sixth Circuit concluded that Pulte alleged sufficient facts to state a transmission claim, which requires showing that the defendant intentionally caused damage. The court reasoned that LIUNA’s phone and email bombardment had caused damage to Pulte’s computer system by diminishing Pulte’s ability to send and receive calls and emails. Such damage was also intentional, the court found, because LIUNA likely knew it was causing damage even if it acted without actual knowledge of the consequences of its phone and email barrage. The Sixth Circuit agreed with the lower court that Pulte failed to state an access claim but articulated different reasoning, holding that LIUNA’s actions were not “without authorization” because Pulte allowed members of the public to contact its offices and executives by phone or email. In so holding, the court adopted a “diminished-ability” standard for assessing damage, which may broaden liability under the CFAA.

The Computer Fraud/Data Protection blog provides an overview of the case. Techdirt criticizes the decision for expanding the CFAA beyond its original purpose of combating computer hacking to cover emails sent as part of a labor protest. The Technology & Marketing Law Blog questions whether Pulte had suffered significant damage and whether the allegations were sufficient to demonstrate intent on the part of LIUNA. (more…)

Posted On Aug - 18 - 2011 Comments Off READ FULL POST

Written by Katie Booth
Edited by Vivian Tao
Editorial Policy

I. Introduction: Not all data uses are created equal.

Google recently introduced a new social networking tool called the Google+ project, which capitalizes on the fact that consumers want more control over whom they share their personal information with online. Google+ allows users to set up separate groups—such as a group for friends, a group for family, and a group for coworkers—and then share different information with each group. This recognizes a simple fact of life: As Google puts it, “[n]ot all relationships are created equal.” The popularity of the national Do Not Call Registry, which prohibits telemarketers from calling phone numbers listed in the registry, is another example of consumers’ desire to keep particular groups of people, such as telemarketers, from using their personal data.

In Sorrell v. IMS Health, however, the Supreme Court held that the First Amendment did not allow the government to regulate speech on the basis of the types of categorical distinctions between speakers that consumers make all the time. Invalidating a Vermont statute that prohibited data mining companies from using physician prescription data for marketing purposes, the Court held that the government could not engage in “content” or “viewpoint” discrimination against marketers by prohibiting the commercial use of this data while permitting its non-commercial use. Sorrell at 2659, 2663-64.[1] This ruling, which seemingly has its roots in the Court’s Citizens United decision, eviscerates the commercial speech doctrine—the First Amendment doctrine governing speech with a commercial viewpoint and content—by effectively holding that the government cannot regulate commercial speech, such as marketing, differently than other types of speech just because the speaker is a corporation or the content of the speech is commercial.

If Sorrell applies to the world of online data, then the Court leaves legislatures with difficult choices when it comes to regulating data privacy. Under Sorrell, legislatures cannot regulate the commercial use of data any differently than its non-commercial use. This means that proposed legislation such as the Commercial Privacy Bill of Rights Act of 2011 (“Commercial Privacy Bill”), which aims to do precisely the opposite, would likely not pass constitutional muster. Instead, legislatures may have to consider universal opt-in or opt-out schemes, under which consumers could individually opt in or out of the use of their personal data for any purpose, not just commercial use. In its opinion, the Sorrell Court mentioned HIPAA, the Health Insurance Portability and Accountability Act of 1996, which requires all consumers to receive and acknowledge notice of the ways in which health care providers may use their personal data, approvingly in this context. However, both opt-in and opt-out data privacy schemes may negatively affect innovation, research, and even privacy. If legislatures choose to pass consumer data privacy laws in the wake of Sorrell, they will face difficult choices between competing values and may ultimately leave consumer data privacy up to the market.  (more…)

Posted On Aug - 17 - 2011 Comments Off READ FULL POST

Court Shuts Down DVD Streaming Service Zediva
By Daniel Robinson – Edited by Kassity Liu

Warner Bros. Entertainment Inc., et al. v. WTV Systems, Inc., No. CV 11-2817-JFW (C.D. Cal. August 1, 2011)
Slip Opinion

On August 1st, the District Court for the Central District of California granted a preliminary injunction ordering Zediva, an online video service, to shut down.

The order, by Judge John Walker, held that the Plaintiffs Warner Bros. and other movie studios were likely to succeed on the merits of their copyright claim, and that the potential harm the service posed to the plaintiffs outweighed the burden of an injunction on the defendants. In so holding, the court held that the defendants’ service violated the plaintiffs’ public performance right by transmitting content from DVDs to its subscribers.

Reuters provides an overview of the case. Techdirt criticizes the decision, arguing that streaming a DVD to one customer is not a “public performance.” Ars Technica provides a detailed description of the holding. (more…)

Posted On Aug - 12 - 2011 Comments Off READ FULL POST

Federal Circuit Upholds Patentability Of Isolated Genes
By Albert Wang – Edited by Kassity Liu

Ass’n for Molecular Pathology v. USPTO, No. 2010-1406 (Fed. Cir. July 29, 2011)
Slip Opinion

The Federal Circuit reversed the United States District Court for the Southern District of New York on the issues of whether Myriad’s patent claims regarding the BRCA gene and BRCA screening were valid. The Circuit affirmed on the issues of standing and patentability of Myriad’s method of comparing DNA sequences.

Judge Lourie, writing for the Circuit, reasoned that the isolated BRCA gene was chemically different from the gene in its naturally occurring state. Similarly, Myriad’s patient-screening included enough transformation to be patent-eligible.

PatentlyO provides an overview of the case. Genomics Law Report provides further analysis and predicts further uncertainty to come with regard to gene patents, noting that the decision only curtails attacks based on patentability of the subject matter. PharmaPatents criticizes the court’s distinction between isolated DNA and other products extracted from nature. The Digest previously covered the district court’s decision(more…)

Posted On Aug - 12 - 2011 Comments Off READ FULL POST
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Flash Digest: News i

By Olga Slobodyanyuk ICANN responds to terrorism victims by claiming domain ...

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Federal Circuit Appl

By Amanda Liverzani – Edited by Mengyi Wang Digitech Image Technologies, ...

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Unlocking Cell Phone

By Kellen Wittkop – Edited by Insue Kim On July 25, ...

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SDNY Magistrate Gran

By Kellen Wittkop – Edited by Travis West In the Matter ...

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Creating full-text s

Creating full-text searchable database of copyrighted works is “fair use” By ...