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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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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

Written By: Michael Hoven
Edited By: Albert Wang
Editorial Policy

Introduction

When the European Commission recently proposed a “right to be forgotten,” U.S. commentators sprang to criticize it. “More Crap from the EU,” said Jane Yakowitz at the Info/Law blog. At Techdirt, Mike Masnick called it a “ridiculous idea.” Granting people the right to erase information about themselves would give them the power to stamp on the speech rights of others. Allowing this in the aggregate could produce profound social costs: increased costs of doing business could stunt innovation; research data could be lost; history could be erased.

This comment takes a different position. I argue that the right to be forgotten attempts to solve a privacy problem that is serious and deserves our attention. However, the social costs of establishing such erasure rights in data are nonetheless real. Individual privacy rights should not be allowed to decimate our networked information environment, or our ability to study the data within it and learn about ourselves. The right to be forgotten, and analogous privacy frameworks, contain exceptions — for example, for journalism or free expression — but additional measures should be taken to provide sufficient protection for expression and research.

In any privacy regime that incorporates erasure rights, there are two partial solutions that should be instituted to preserve some (if not all) of the social value of personal information. The first partial solution, data anonymization, has many skeptics in the law review literature, but has already reaped many benefits and imposes less of a privacy cost than many other privacy risks that we already tolerate. The second partial solution, eventual opening of suppressed information, is inspired by archival practice and rests on the premise that remembering, not forgetting, is crucial to the democratic process.[i] As a remedy for privacy harms, forgetting is overbroad. Information that was once available but was removed should not permanently vanish, but rather should be restored once the potential for harm is no longer substantial enough to justify the suppression of information.  (more…)

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