By Kassity Liu

Third Circuit Dismisses “Sexting” Charges Against Minor

On March 18, the WSJ Law Blog reported that the Court of Appeals for the Third Circuit dismissed charges against a teenage girl for distributing sexually explicit images of herself. The court had originally stated that they would address whether the First Amendment protects minors from sending these types of images of themselves through their cells phones, but the court refused to consider this issue in the case. Instead, the three-judge panel concluded that the prosecutor could not charge her for appearing in a sexually explicit photo without evidence that she had helped to distribute it. The court’s ruling appears to protect minors from liability for “sexting,” the act of “sending or posting sexually suggestive text messages and images . . . via cellular telephones or over the internet,” so long as there is “no evidence as to whether that person possessed or transmitted the photo.” The case name is Miller v. Mitchell, No. 09-2144 (3d. Cir. Mar. 17, 2010).

California Appeals Court Holds Threatening Online Speech is not Protected

On March 18, Wired reported that a California appeals court held that hateful and threatening online speech was not protected by the First Amendment. The father of the student who was targeted by the online postings had sued six students and their parents after hearing from the police that the threatening comments posted to his son’s website were protected forms of speech and could not be criminally prosecuted. One of the defendant students claimed that he had made the comments jokingly and did not seriously intend them to be harmful. However, the appellate court refused to accept this defense and instead upheld a lower court’s finding that the defendant had failed to “demonstrate that the posted message is free speech.” The majority judges felt that the defendant’s posting was “a serious expression of intent to inflict bodily harm” both because the posting contained a clear threat and the defendant student spent ample time writing it. The case name is D.C. v. R.R., No. BC332406 (Cal. Sup. Ct. Mar. 15, 2010).

Science Journalist fights libel suit in effort to campaign for British libel law reform

On March 15, the Citizen Media Law Project reported that science journalist Simon Singh has given up his Guardian column to fight a libel lawsuit that the British Chiropractic Association (“BCA”) brought against him for writing an article that denounced some of the BCA’s medical claims. Singh plans on using his case to campaign for British libel law reform, which currently places the entire burden of proving the truth of an allegedly libelous statement on the defendant. The lawsuit, which has been ongoing for two years, has garnered a significant amount of public attention and generated some talks of reform within the British Parliament. Last May, an English court had ruled that Singh would have to prove that the BCA was being “consciously dishonest” when it made the medical claims that Singh had called “bogus” in his article. Singh has appealed this ruling and foresees that his case could “easily continue for another two years.”

By Jyoti Uppuluri

Public Battle Between Google and China Continues

On March 12, Wired reported that the friction between Google and China over the censorship of search results and issues of cybersecurity is ongoing as Google keeps pushing for greater Internet freedom for users. China’s Minister of Information and Technology, Li Yizhong, told the press “Google has made its case, both publicly and privately,” and explained “[i]f you don’t respect Chinese laws, you are unfriendly and irresponsible, and the consequences will be on you.” Eric Schmidt, CEO of Google, stated that he hopes that talks with the Chinese government will yield a result soon.

Netflix Cancels Prize Contest Over Privacy Concerns

On March 12, Ars Technica reported that Netflix has cancelled its second Netflix Prize contest in order settle a lawsuit and alleviate concerns by the Federal Trade Commission. In December, a user sued Netflix, alleging that the data provided by the company to contest participants was insufficiently anonymized. According to Ars Technica, the suit claims that Netflix “violated fair-trade laws and a federal privacy law designed to protect video rental records.” Neil Hunt, Netflix’s chief product officer, stated that company has “reached an understanding with the FTC and ha[s] settled the lawsuit with plaintiffs,” noting that the agreement “involves certain parameters for how [the company] use[s] Netflix data in any future research programs.”

More Freedom for Social Media Services to Operate in Iran, Cuba, and Sudan

On March 10, the Electronic Frontier Foundation reported that the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) has announced “key amendments” regarding export controls on social media software. The new rules clarify that the export of certain personal communication services and software over the Internet, including “instant messaging, chat and email, [and] social networking,” is now permitted in Iran, Cuba, and Sudan. Prior to these amendments, OFAC’s regulations had been a source of legal ambiguity for companies such as Google and Microsoft, causing them to block some personal communication services in these nations.

TiVo Wins Five Year Battle Over Patent Infringement with EchoStar
By Katy Yang – Edited by Kassity Liu

TiVo Inc. v. EchoStar Corp., No. 2009-1374 (E.D. Tex., March 4, 2010)
Slip Opinion

The United States Court of Appeals for the Federal Circuit affirmed a decision by the United States District Court for the Eastern District of Texas, which had found EchoStar in contempt of a permanent injunction order that was issued by the court in an earlier judgment in which two types of EchoStar receivers were found to infringe on TiVo’s time-shift technology patent. The order had required EchoStar “to stop making, using, offering to sell, and selling the receivers”  and “to disable the DVR functionality in existing receivers, with the exception of select receivers that had already been placed with its subscribers.”

The Federal Circuit held that the district court did not abuse its discretion in holding contempt proceedings for adjudicating the continued infringement of EchoStar’s redesigned receivers, nor did it commit clear error in finding continued infringement by these receivers. It also held that the district court’s injunction was clear enough to provide reasonable notice of the order to disable the DVR function in all infringing receivers, and upheld the provision of the injunction requiring EchoStar to notify the court of additional redesign attempts and to seek approval before executing a design-around.

Bloomberg and the Associated Press provide overviews of the case.  Gordon Patent Cases summarizes some of the legal issues in the decision, and Beta News provides a detailed comparison of the majority and dissenting opinions. (more…)

Supreme Court Holds That Federal Courts Have Jurisdiction over Unregistered Copyright Claims
By Debbie Rosenbaum – Edited by Gary Pong

Reed Elsevier v. Muchnick, No. 08–103 (U.S. Mar. 2, 2010)
Slip Opinion

In a unanimous 8-0 decision, the United States Supreme Court overturned a Second Circuit Court of Appeals decision which held that the district court lacked jurisdiction to certify either the class or the settlement in a case involving holders of unregistered copyrights. The Court of Appeals for the Second Circuit had held in a sua sponte decision that a copyright holder’s failure to comply with § 411(a)‘s registration requirement deprives a federal court of subject-matter jurisdiction to adjudicate his copyright infringement claim. The Supreme Court disagreed.

Justice Sotomayor did not take part in the decision, perhaps because she was a member of the Second Circuit Court that decided not to rehear the case en banc.  The Supreme Court decision revived a possible $18 million settlement between freelance writers, publishers and electronic database owners, involving payment to freelance writers for online use of their work — even when some writers have not registered their copyright.

The New York Times and TechDirt both provide overviews of the decision.  The Legal Information Institute at the Cornell University Law School provides a detailed analysis of the issues underlying this case. (more…)

By Tyler Lacey

RealNetworks Won’t Appeal Decision Declaring Its DVD Copying Software in Violation of DMCA

On March 4, Wired reported that RealNetworks plans to cease litigation of a lawsuit filed by the Motion Picture Association of America (“MPAA”) alleging that its DVD copying software, RealDVD, violates the Digital Millennium Copyright Act (“DMCA”).  RealNetworks had initially planned to appeal a California district court’s decision that the software illegally circumvented the DVD encryption technology, Content Scramble System. However, after two years of litigation, RealNetworks has decided not to appeal in an effort to cut its losses, which according to Wired amount to “millions of dollars, including $4.5 million to reimburse the MPAA for its legal costs.”  Wired argues that “RealNetworks’ admitted defeat solidifies the DMCA’s power.”

Google Obtains Patent on Location-Targeted Advertising Method

Mashable reports that Google obtained a patent for “determining and/or using location information in an ad system” on February 23. The patent, which Mashable characterizes as “broad,” was filed on April 12, 2004.  Mashable also reports that since the patent’s filing date, several companies have started practicing a method of targeting advertisements based on an individual’s location, with AdMob and Quattro Wireless “leading the charge.”  Quattro Wireless has been acquired by Apple, which Mashable notes is “quickly becoming [Google’s] primary rival” in mobile advertising.  The patent abstract states in part that the patented method “may be used in a relevancy determination of an ad” and that “[a]d performance information may be tracked on the basis of location information.”

Canadian Government to Allow Increased Foreign Investment in Telecommunications Industry

On March 4, CBC News reported that the Canadian government is planning to loosen foreign ownership restrictions on telecommunications companies as a part of its new budget proposal.  The new rules will initially allow foreign startups and acquisitions of small companies, and will allow foreign takeovers of larger companies within five years. According to the article, there are currently restrictions in place designed to ensure Canadians are in control of any telecommunications carriers that operate in Canada, including minimum levels of Canadian board membership and ownership of voting shares. Industry experts argue that the old rules are “archaic and anti-competitive,” and are the reason “prices have been high and service levels low.” According to Canada’s Governor General Michaëlle Jean, the new rules will give “Canadian firms access to the funds and expertise they need.”