A student-run resource for reliable reports on the latest law and technology news
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Federal Circuit Flash Digest: News in Brief

By Steven Wilfong

Multimedia car system patents ruled as unenforceable based on inequitable conduct

ITC’s ruling that uPI violated Consent Order affirmed

Court rules that VeriFone devices did not infringe on payment terminal software patents

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Flash Digest: News in Brief

By Marcela Martinez

Converse attempts to protect iconic Chuck Taylor All Star design

French Court rules that shoe design copyright was not infringed

Oklahoma Court rules that Facebook notifications do not satisfy notice requirement

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Silk Road Founder Loses Argument That the FBI Illegally Hacked Servers to Find Evidence against Him

By Travis West  — Edited by Mengyi Wang

The alleged Silk Road founder Ross Ulbricht was denied the motion to suppress evidence in his case. Ulbricht argued that the FBI illegally hacked the Silk Road servers to search for evidence to use in search warrants for the server. The judge denied the motion because Ulbricht failed to establish he had any privacy interest in the server.

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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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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.

(more…)

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

By Michael Hoven

TSA to Revamp Full-Body Scanners Despite Legal Victory

The Transportation Security Administration (TSA) announced that it would upgrade the software on controversial full-body scanners in order to better protect the privacy of travelers, says Wired. Instead of creating a nude image of the traveler, the new Automated Target Recognition software will produce a “generic outline of a person,” according to the TSA. The announcement came shortly after the Court of Appeals for the District of Columbia Circuit held that the use of full-body scanners at security checkpoints in airports did not constitute an unreasonable search barred by the Fourth Amendment, as the Wall Street Journal Law Blog reported. The court held that the government’s interests in security and anti-terrorism outweighed individuals’ privacy concerns, but the TSA rule implementing the scanners had improperly been enacted without going through a notice-and-comment period.

FBI Arrests Sixteen in Connection with “Anonymous,” “LulzSec” Hackers Collectives

An FBI crackdown spanned ten states and led to the arrest of fourteen suspected members of “Anonymous” and two others accused of crimes in connection with “LulzSec,” reports All Things Digital. Anonymous is the name of a loosely affiliated organization of hackers who have claimed responsibility for the distributed denial of service attacks against PayPal and others who Anonymous believed were withdrawing support for Wikileaks. LulzSec has used similar methods to attack Sony and Senate.gov, among others, and may be a spinoff group of Anonymous, as VentureBeat has reported. The fourteen suspected members of Anonymous were indicted by a federal grand jury in San Jose, CA on charges of conspiracy and intentional damage to a protected computer, according to All Things Digital, and the other two face similar charges. Gizmodo reports that Anonymous and LulzSec have since released a joint statement promising to continue their attacks on corporations and government.

Court Rules Facebook Posts Sufficient for Disciplining College Student

The Minnesota Court of Appeals (via Leagle) rejected a student’s argument that the University of Minnesota could not discipline her for statements made on Facebook because such statements were off campus, reports Eric Goldman at the Technology and Marketing Law Blog. In a series of posts, the mortuary sciences student discussed taking out aggression on a cadaver being dissected in class and threatened to stab an unidentified person, which she later admitted referred to an ex-boyfriend. The court held that the university was allowed to take disciplinary action (namely a failing grade and academic probation) because the student’s posts were threatening and disruptive to the university. At The Volokh Conspiracy, Eugene Volokh criticized the court’s reasoning for its potential to restrict student speech.

Direct Infringement Claims Against Cyberlocker Site Dismissed

Hotfile, a “cyberlocker site,” was held not to be a direct copyright infringer by the Southern District of Florida, Ars Technica reports, but the claims of secondary liability for copyright infringement can proceed. Cyberlocker sites are a recent target of MPAA’s anti-piracy efforts. Hotfile users can upload and share files, and affiliate accounts allow for payment based on the popularity of files that are shared. The Motion Picture Association of America (MPAA) alleges that the majority of files uploaded to Hotfile are pirated. Direct infringement claims failed because users, not Hotfile, uploaded the files, failing the “volitional act” requirement. However, Hotfile still faces secondary infringement claims on a theory of inducement (among other things), which Techdirt says is the MPAA’s best case.

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

by Michael Adelman

Major US Internet Service Providers and Media Organizations Agree to “Six Strikes” Copyright Enforcement Plan

Last week, major ISP’s such as AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable voluntarily agreed to help copyright owners by implementing a series of warnings and penalties for users suspected of downloading copyright infringing material, Ars Technica reports. When copyright holders detect alleged illegal file sharing, they will notify the ISP’s, who have committed to forward these notices to subscribers (but will not turn over subscriber names or addresses to content providers without a court order). Eventually, the plan calls for ISP’s to impose punishments on repeat offenders, including redirection to an educational landing page on copyright infringement and temporary reductions of internet speeds. The Obama administration applauded the measure, and Wired reports industry groups like the Motion Picture Association of America and the Recording Industry Association of America were similarly enthusiastic.

NJ Appellate Court Rules That Wife Tracking Spouse’s Car Movements Via GPS Not A Privacy Violation

A New Jersey Appellate Court (via Scribd) recently dismissed an ex-husband’s claim against a private investigator who recommended his ex-wife place a GPS tracker in their shared vehicle. The ex-wife used the GPS data to investigate if her spouse was having an affair. The Technology and Marketing Law Blog comments on several small but important details the court focused on, including that the vehicle was jointly owned and the GPS only tracked the ex-husband in public places. The Wall Street Journal notes this case is a forerunner to United States v. Jones, a warrantless GPS tracking case headed to the Supreme Court next year.

ITC Finds That HTC Phones Violate Two Apple Patents

ZDNet reports that the ITC found HTC is infringing two Apple patents. According to Engadget, one of the patents at issue is asserted against Motorola in a separate legal battle, and both seem to cover core features of Google’s Android mobile operating system. TechCrunch reports that Eric Schmidt, Google’s executive chairman and former CEO, said the ruling doesn’t worry him, but that Google will assist HTC in appealing the ruling. The Economic Times perceives an increasing amount of litigation between Apple and HTC, as well as fellow smartphone and tablet competitors Nokia and Samsung resulting from more Android-powered devices being released to challenge Apple’s popular iPhone and iPad.

Posted On Jul - 19 - 2011 Comments Off READ FULL POST
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Federal Circuit Flas

By Steven Wilfong Multimedia car system patents ruled as unenforceable based ...

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Twitter goes to cour

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