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Newegg Wins Patent Troll Case After Court Delays

By Kasey Wang – Edited by Yunnan Jiang and Travis West

The District Court for the Eastern District of Texas recently issued a final judgement for online retailer Newegg, twenty months after trial, vacating a $2.3 million jury award for TQP. TQP, a patent assertion entity commonly known as a “patent troll,” collected $45 million in settlements for the patent in question before Newegg’s trial.

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The Evolution of Internet Service Providers from Partners to Adversaries: Tracking Shifts in Interconnection Goals and Strategies in the Internet’s Fifth Generation

By Robert Frieden – Edited by Marcela Viviana Ruiz Martinez, Olga Slobodyanyuk and Yaping Zhang

In respone to increasing attempts by Internet Service Providers to target customers who trigger higher costs for rate increases, the FCC and other regulatory agencies worldwide have stepped in to prevent market failure and anticompetitive practices. This paper will examine new models for the carriage of Internet traffic that have arisen in the wake of these changes.

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The Global Corporate Citizen:  Responding to International Law Enforcement Requests for Online User Data 

By Kate Westmoreland – Edited by Yunnan Jiang

This paper analyses the law controlling when U.S.-based providers can provide online user data to foreign governments. The focus is on U.S. law because U.S. dominance of internet providers means that U.S. laws affect a large number of global users. The first half of this paper outlines the legal framework governing these requests. The second half highlights the gaps in the law and how individual companies’ policies fill these gaps.

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3D Printing, Net Neutrality, and the Internet: Symposium Introduction

By Deborah Beth Medows – Edited by Yaping Zhang

Jurists must widely examine the pervasive challenges among the advents in Internet and computer technology in order to ensure that legal systems protect individuals while  encouraging innovation.  It is precisely due to the legal and societal quagmires that 3D printing and net neutrality pose that ideally position them as springboards from which to delve into broader discussions on technology law.

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A Victory for Compatibility: the Ninth Circuit Gives Teeth to RAND Terms

By Stacy Ruegilin – Edited by Ken Winterbottom

Microsoft won a victory in the Ninth Circuit last Thursday after the court found that Motorola, a former Google subsidiary, had breached its obligation to offer licenses for standards-essential technologies at reasonable and non-discriminatory rates. The court affirmed a $14.52 million jury verdict against Motorola for the breach.

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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

Written By: Gillian Kassner
Edited By: Matt Gelfand
Editorial Policy

In a 2009 Los Angeles Times article, “Beijing Loves IKEA – But Not for Shopping,” reporter David Pierson offered a humorous account of the weekend excursions of Beijing families to their local IKEA where they enjoyed free soda and Swedish meatballs, snapped family photographs, surveyed the merchandise, and went home. Pierson noted that purchasing anything at the Beijing IKEA “can seem like an afterthought.” What Pierson failed to include was an epilogue: chances are most of these Chinese consumers would later purchase knockoff IKEA furniture online or at a local store.

A combination of cultural and economic factors underlies the current attitude of the Chinese towards the protection of intellectual property. As China has propelled itself onto the global stage by its fast-paced economic growth, external pressures from the United States and other nations and internal tensions between traditional Chinese values and the desire for economic prosperity have earmarked intellectual property as a key issue that will determine China’s economic and political trajectory. The Chinese Communist Party’s recent focus on IP protection signals that while China may continue to condone certain levels of infringement in the interim, in the long term, China’s continued economic growth and the survival of the CCP will require the serious reform of China’s IP enforcement. To be effective rather than cursory, it is evident from China’s history and political structure that such reform must be the natural product of China’s internal weighing of incentives rather than a response to external pressures.  (more…)

Posted On Apr - 24 - 2012 Comments Off READ FULL POST

Supreme Court Expands Generic Drug Manufacturers’  Right to Challenge Scope of Patents
By Elettra Bietti – Edited by Lauren Henry

Caraco Pharmaceutical Laboratories, Ltd. v Novo Nordisk A/S, No. 10–844 (U.S. April 17, 2012)
Slip opinion

The Supreme Court reversed the Federal Circuit Court of Appeals’ ruling that denied a generic manufacturer the right to compel a brand manufacturer to correct misstatements regarding uses covered by a patent when those corrections would have allowed the generic manufacturer to market their generic drug.

The Court held that a generic manufacturer may rely on 21 U.S.C. § 355(j)(5)(C)(ii)(I), which grants a statutory counterclaim to generic manufacturers sued for patent infringement, to compel a brand manufacturer to modify a use code if it wrongly describes a patent as covering uses which it does not in fact cover. In so holding, the court slightly shifts balance of power in the pharmaceutical industry away from patentees and toward generic manufacturers.

Patently-O provides an overview and describes it as an example of a “nuanced” Supreme Court case. Alison Frankel, writing for Reuters, notes that the decision represents a slight victory for generic manufacturers over the brands. (more…)

Posted On Apr - 23 - 2012 Comments Off READ FULL POST
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