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Trademark Infringement or First Amendment Right of Freedom of Speech?

By Yunnan Jiang – Edited by Paulius Jurcys

On October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint brief in the U.S. Court Of Appeals, urging  that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”. The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression.

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Twitter goes to court over government restrictions limiting reporting on surveillance requests

By Jens Frankenreiter – Edited by Michael Shammas

Twitter on Oct. 7 sued the government, asking a federal district court to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail. Twitter opposes complying with the rules agreed upon by the government and other tech companies in a settlement earlier this year, and argues that the rules violated its rights under the First Amendment.

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Popular Samsung Phones under Investigation for Patent Infringement

By Asher Lowenstein – Edited by Saukshmya Trichi

The US International Trade Commission has instituted an investigation of patent infringement involving some of Samsung’s most popular smartphones. ITC will have to decide whether it is in the public interest to ban a major producer from selling its phones in the US.

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Federal Circuit Flash Digest: News in Brief

By Kathleen McGuinness

Two contested patent terms upheld as means-plus-function

Judgment of damages sufficient to render plaintiff a prevailing party for fee awards

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Google Faces Potential Lawsuit in Connection with Celebrity Photo Leaks

By Amanda Liverzani – Edited by Mengyi Wang

Celebrities impacted by the theft and distribution of personal images stored on Apple’s iCloud service may soon head to court seeking damages from Google for continued copyright infringement and privacy violations. Google is accused of failing to remove the private pictures pursuant to the Digital Millennium Copyright Act (“DMCA”) and threatened with a lawsuit for compensatory and punitive damages that could reach over $100,000,000 unless the offending content is promptly taken down.

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District Court Says CAN-SPAM Act Does Not Violate First Amendment
By Samantha Kuhn – Edited by Chinh Vo

U.S. v. Smallwood, 09-CR-00249 (N.D. Tex. July 15, 2011)
Slip Opinion hosted by Scribd.co

The District Court for the Northern District of Texas rejected a First Amendment challenge to the CAN-SPAM criminal statute, which prohibits the computer transmission of “multiple commercial electronic mail messages, with the intent to deceive or mislead recipients . . . . as to the origin of such messages.”

The court first rejected defendant Alicia Smallwood’s motions challenging her indictment for, among other things, electronic mail fraud in violation of 18 U.S.C. §§ 1037(a)(2) and (b)(2)(c) (“CAN-SPAM Act”). The court determined that Smallwood was engaging in “clearly proscribed conduct” and was therefore not entitled to challenge the statute for vagueness. As a result of this finding, the main issue in the case became whether the statute was overly broad in its regulation of protected speech and thus a violation of the First Amendment. The arguments presented by Smallwood for over-breadth centered around the statute’s limitations on commercial speech, and the court rejected them.

Eric Goldman provides commentary on the outcome and implications of the opinion. For a background on the CAN-SPAM Act’s requirements, see Cybertelecom.

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Posted On Aug - 9 - 2011 Comments Off READ FULL POST

Companies provide popular online streaming services but face copyright challenges under the DMCA

By Marina Shvarts – Edited by Chinh Vo

The rising popularity of online music and video streaming is raising questions concerning what exactly is considered copyright infringement under the Digital Millennium Copyright Act (DMCA). Slight variations in business models can lead to distinguishable precedent and unclear case law. As a result, some companies are attempting to negotiate licensing agreements, while others believe that their models are legal and do not require licenses. Below is a summary of some of the major service providers and the legal challenges they face.  (more…)

Posted On Aug - 8 - 2011 Comments Off READ FULL POST

By Andrew Crocker

Activist Arrested for Allegedly Hacking JSTOR

On July 19, police arrested Aaron Swartz, a 24-year-old programmer and Internet activist, in Cambridge, Massachusetts for allegedly committing wire and computer fraud when he downloaded approximately 4.8 million scholarly articles and other files from the JSTOR database, reports the New York Times.  As alleged in the indictment, beginning in September 2010, Swartz used MIT’s network to run an automated script to download the material from JSTOR, and eventually physically jacked into a network closet on the MIT campus after MIT blocked his remote access.  Swartz is known for his work on Really Simple Syndication (“RSS”) and the social news website reddit. He also founded the organization Demand Progress, which advocates for progressive Internet and government transparency policies.  Wired reports that although the indictment alleges Swartz intended to distribute JSTOR’s copyrighted material, he may have been conducting research, having previously worked on a study that analyzed the funding sources for a several hundred thousand law review articles.  According to Ars Technica, Swartz’s arrest has provoked protest by at least one fellow proponent of open access to scholarly works, who responded by posting nearly 19,000 scientific articles on Pirate Bay.

Ninth Circuit Reverses Conviction for Online Threat Against Obama

In a split opinion, the Ninth Circuit Court of Appeals has reversed the conviction of a California man who posted an online comment in October 2008 that appeared to call for then-Senator Barack Obama’s assassination, reports Wired.  Walter Bagdasarian was convicted under a federal law that makes it a felony to threaten to kill a major presidential candidate, but Judge Reinhardt, writing for the majority, found that Bagdasarian’s post did not rise to the level of a “true threat,” because there was insufficient evidence that “a reasonable person who read the postings within or without the relevant context would have understood either to mean that Bagdasarian threatened to injure or kill the Presidential candidate.”  In addition to failing this objective test for a true threat, the postings would also not support a subjective test for Bagdasarian’s intent to threaten Obama, and according to the court, either failure would be sufficient grounds for overturning the conviction.  Furthermore, although the post could be read as “an imperative intended to encourage others to take violent action,” the relevant statute does not criminalize exhortations to others, so Bagdasarian could not be convicted on this basis.  However, Eugene Volokh suggests that given the uncertainty in constitutional precedent on true threats and protected speech, this case is likely not settled and will either be reheard by the Ninth Circuit en banc or by the Supreme Court.

Controversial Data Retention Bill Clears House Committee

H.R. 1981, a bill that would require Internet providers to retain users’ IP addresses and other personal information for one year, has cleared the House Judiciary Committee by a vote of 19-10.  The bill, which CNET reports has received support from the Justice Department, is intended to make it easier for law enforcement officials to investigate crimes committed over the Internet.  According to the National Journal, critics of the bill have pointed to what they see as its politically opportunistic name, the Protecting Children From Internet Pornographers Act of 2011, as an attempt to hide its broad scope and lack of privacy protections.   In addition to lawmakers from both parties, civil liberties organizations, such as the Center for Democracy & Technology, have criticized the bill, arguing that its data retention provisions are invasive, confusing in scope, and burdensome to small Internet providers.

Posted On Aug - 2 - 2011 Comments Off READ FULL POST

Court Affirms Disciplining of Mortuary-Science Student for Threatening Facebook Posts, Relies on Tinker Standard for Censoring Speech in Higher Education
By Matthew Becker – Edited by Abby Lauer

Tatro v. University of Minnesota, 2011 WL 2672220 (Minn. Ct. App. July 11, 2011)
Slip Opinion hosted by the Minnesota State Law Library

The Minnesota Court of Appeals affirmed a decision of the University of Minnesota Provost’s Appeals Committee, which had penalized mortuary-science student Amanda Tatro for off-campus posts to a social networking website.

The Minnesota Court of Appeals held that the evidence supported the university’s finding that Tatro violated its rules. The court also held that the university properly exercised its authority to address Tatro’s off-campus conduct and did not violate her free speech rights because her actions fell under the wording of the university’s Student Conduct Code, which applies to off-campus conduct that “adversely affects a substantial University interest and . . . indicates that the student may present a danger or threat to the health or safety of the student or others.” In so holding, the court applied the Tinker standard, which allows school officials to limit or discipline student behavior if they reasonably conclude that the behavior will “materially and substantially disrupt the work and discipline of the school.”  The court stated that the Tinker standard was more appropriate than the alternative “true-threat” standard (which would have required Tatro to have intentionally communicated an actual threat before the university would be allowed to intervene), given that this was not a criminal case and that this standard typically does not apply to public schools taking appropriate disciplinary action.

Eric Goldman provides an overview of the case. The Volokh Conspiracy criticizes the decision for relying on an overly broad rationale that might encroach on students’ free speech rights, while the Foundation for Individual Rights in Education (FIRE) features a similar criticism and a thorough analysis of the decision.

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Posted On Jul - 25 - 2011 Comments Off READ FULL POST

Apple’s Trademark Claim to the Term “App Store” Fails on Preliminary Injunction Motion
By Samantha Kuhn – Edited by Abby Lauer

Apple, Inc. v. Amazon.com Inc., No. C 11–1327 PJH, 2011 WL 2638191 (N.D. Cal. July 6, 2011)
Slip Opinion
hosted by Scribd.com

On July 6, the District Court for the Northern District of California denied Apple’s motion for a preliminary injunction to enjoin Amazon.com from using the term “App Store.” The court found that Apple’s claims of trademark infringement and dilution were unlikely to succeed on the merits.

In her decision, Judge Phyllis Hamilton held that Apple failed to show that it was likely to prevail on its trademark infringement claim, based on the weakness of its argument regarding the “likelihood of confusion” element. With regard to the dilution claim, Judge Hamilton was not convinced by Apple’s contentions that the “App Store” mark is distinctive and that it can be diluted by blurring and/or tarnishment. The main issue in this case seemed to be whether the mark “App Store” should be classified as distinctive or descriptive, as the court rejected the idea that the mark is purely generic.

Ars Technica provides background and a brief summary of the dispute. An additional brief summary is available at News Daily. Eric Goldman hones in on particular aspects of the opinion and criticizes the case for the ridiculousness of the claims and the court’s inadequate treatment of the issues.  (more…)

Posted On Jul - 25 - 2011 Comments Off READ FULL POST
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Trademark Infringeme

By Yunnan Jiang – Edited by Paulius Jurcys Brief for the ...

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Twitter goes to cour

By Jens Frankenreiter – Edited by Michael Shammas Twitter, Inc. vs. ...

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Popular Samsung Phon

By Asher Lowenstein – Edited by Saukshmya Trichi The US International ...

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Federal Circuit Flas

By Kathleen McGuinness Two contested patent terms upheld as means-plus-function The United ...

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Google Faces Potenti

By Amanda Liverzani – Edited by Mengyi Wang Demand Letter to ...