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ITC’s review of an ALJ’s order was not procedurally sound
By Mengyi Wang – Edited by Sarah O’Loughlin

The United States Court of Appeals for the Federal Circuit unanimously vacated and remanded a decision of the International Trade Commission (“ITC”), finding that the ITC exceeded its authority in reviewing an administrative law judge’s (“ALJ”) order denying a motion for termination. In so holding, the Court rejected the ITC’s attempt to characterize the ALJ’s decision as an initial determination, which would be subject to review.

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Facebook’s experiment of emotional contagion raises concerns
By Jenny Choi – Edited by Sarah O’Loughlin

On June 17, 2014, Proceedings of the National Academy of Sciences released a study in which Facebook reduced positive and negative posts on News Feeds to observe any changes in the participants’ posts to test whether emotional states are contagious through verbal expressions. Many have criticized Facebook for the experiment,  finding that Facebook has deceived its users, violated past Consent Orders, and stretched the users’ terms of service agreements too far.

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Flash Digest: News in Brief

By Ken Winterbottom

Access to nude photos is a ‘perk’ of working at the NSA, Snowden says

Record label slams YouTube star with copyright infringement suit

Study shows women are still underrepresented among technology leaders

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SDNY Holds Bitcoins Fall Under Purview of Federal Money Laundering Statute

By Amanda Liverzani  Edited by Mengyi Wang

The debate surrounding the legal status of Bitcoins continued to heat up, as the Southern District of New York weighed in on whether the virtual currency could be used to launder money under 18 U.S.C. §1956(h). In a July 9, 2014 opinion penned by Judge Forrest in United States v. Ulbricht, the court held that exchanges involving Bitcoins constitute “financial transactions” for purposes of the money laundering statute, noting that “[a]ny other reading would—in light of Bitcoins’ sole raison d’etre—be nonsensical.”

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Aereo Struggles as Supreme Court Finds It Violated Copyright Law
By Jenny Choi – Edited by Sarah O’Loughlin

On June 25, 2014, in its 6-3 decision, the Supreme Court of the United States ruled against Aereo, Inc.  The U.S. Supreme Court held that Aereo violated the Copyright Act of 1976 for streaming TV shows shortly after they were broadcast without paying for the copyrighted works.  As a result, Aereo suspended its service and has struggled to find a way to re-operate its business. This decision has not come without criticism, however, as some warn this ad hoc decision could lead to uncertainty in the courts.

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Following Bilski, court upholds validity of patents that meet a “meaningful limits” test
By Irina Oberman – Edited by Avis Bohlen

H&R Block Tax Services, Inc. v. Jackson Hewitt Tax Service, Inc., No. 608cv37 (E.D. Tex. Feb. 2, 2011)
Slip Opinion hosted by 271 Patent Blog

Magistrate Judge Love, sitting in the United States District Court for the Eastern District of Texas, reconsidered a previous Report and Recommendation in this case, which recommended invalidating two of the plaintiff’s three asserted patents (the ‘862 and ‘425 patents). Applying the machine-or-transformation test as well as a new “meaningful limits” test, Judge Love modified the recommendation and upheld the validity of the ‘862 patent because the claims applied a “meaningful limit” on the scope of the claims.

JOLT Digest previously reported on the revised recommendation271 Patent Blog offers an overview of the decision highlighting the discussion of the ‘862 patent. Additionally, FreePatentsOnline and Patent Storm provide a helpful overview of the ‘862 patent. (more…)

Posted On Feb - 20 - 2011 Comments Off READ FULL POST

By A. Gavin Fishman

Marketing Executive Proposes Controversial “.gay” Top-Level Internet Domain

CNET reports that Scott Seitz, chief executive of dotGAY and founder of SPI Marketing, plans to apply to the Internet Corporation for Assigned Names and Numbers (ICANN) for approval of the proposed top-level Internet domain “.gay.” Seitz states that “.gay will be a venue for enhancing [the LGBT community’s] ability to interact with each other as a community.” Past efforts to register controversial top-level domains, such as the 2004 application for the rights to run .xxx, have stalled indefinitely in the application process. The Huffington Post reports that the largest obstacle to the application may be the U.S. Government, who “recently proposed that they have the power to veto domains that they believe to be objectionable.” CNET quotes Seitz as stating that this proposal is “problematic, and it’s discrimination on a terrible level. It’s not even appropriate for countries (to have the ability to veto) because of freedom of expression. Anything beyond (restricting speech that) incites violence is discrimination.”

Obama Administration Issues First Annual Report on Intellectual Property Enforcement

This month, the U.S. Intellectual Property Enforcement Coordinator (“IPEC”) released the 2010 Annual Report on Intellectual Property Enforcement. The report states that “[c]ombating online infringement, protecting health and safety and preventing theft of trade secrets for innovative technology will continue to be a priority,” and that “[o]ne new area of focus for 2011 will be patent enforcement in China and determining what the U.S. Government can do to improve the situation in China for U.S. innovators.”  CNET characterizes the report as “read[ing] a lot like a report that could have been prepared by lobbyists for the recording or movie industry,” noting that it includes various statistics and “proposals to curb internet piracy and other forms of intellectual property infringement.” On the White House Blog, Victoria Espinel, the first person to hold the office of the IPEC, highlights the report’s support of the Anti-Counterfeiting Trade Agreement, as well as the increased law enforcement actions which have taken place over the past year in the sphere of intellectual property.

MPAA sues Hotfile.com for its “staggering” P2P Copyright Infringement

Time, Ars Technica and CNET report that the Motion Picture Association of America (“MPAA”) has filed a complaint against the operators of the “cyberlocker” service Hotfile. CNET explains that “cyberlockers are an alternative to BitTorrent file-sharing services” where “[a] user logs on to a locker service and watches whatever films or TV shows are stored there.” In its press release, the MPAA claims that “Hotfile facilitates the theft of copyrighted motion picture and television properties on a staggering scale and profits handsomely from encouraging and providing the means for massive copyright infringement.” The Hollywood Reporter reports MPAA general counsel and chief content protection officer Daniel Mandil as stating: “The theft taking place on Hotfile is unmistakable. The files are indeed ‘hot’ as in ‘stolen.’ It’s wrong and it must stop.” Ars Technica notes that the Digital Millennium Copyright Act’s safe harbor provisions would ordinarily protect the operators of a site like Hotfile from liability for content uploaded by users, but that the MPAA claims that the site encourages infringement and therefore falls outside the safe harbor protections.

Posted On Feb - 19 - 2011 1 Comment READ FULL POST

The Harvard Journal of Law & Technology recently released its Fall 2010 issue, now available online.  Aaron Perzanowski, author of “Unbranding, Confusion, and Deception” has written an abstract of his article for the Digest, presented below.

- The Digest Staff

JOLT Print Preview: Unbranding, Confusion & Deception
Aaron Perzanowski

Unbranding is the practice of eliminating or selectively reducing the use of a brand in response to unfavorable consumer opinion. Faced with the reality of a deeply damaged brand, many firms seek a fresh start. Rather than take steps to repair their public image, they create a new one. Although unbranding threatens to confuse and mislead consumers about the source and characteristics of goods and services, the legal remedies available to consumers to address these harms are limited.

When a brand suffers from strong negative consumer perceptions, it transforms from a valuable asset to a major liability. Just as brands can function as repositories of consumer goodwill, reflecting favorable public sentiment, they can also represent badwill, negative associations in the minds of consumers. Given the expense of jettisoning an established brand and launching a new one, unbranding is generally a rational strategy only when an existing brand is deeply and widely unpopular, perhaps because the firm has produced dangerous products or engaged in illegal activities. Tellingly, BlackwaterPhilip Morris, and WorldComm have all employed unbranding strategies in recent years. (more…)

Posted On Feb - 18 - 2011 Comments Off READ FULL POST

Kwan v. Schlein
By Raquel Acosta – Edited by Jonathan Allred

Kwan v. Schlein, No. 09-5205-cv (2nd Cir. Jan. 25, 2011)
Opinion hosted by Scribd.com

The Court of Appeals for the Second Circuit affirmed the District Court for the Southern District of New York, which denied summary judgment on plaintiff’s claim for copyright infringement because it was time-barred, and granted defendants’ motion for summary judgment to dismiss the claims. [Editorial note: the Second Circuit opinion incorrectly records that the district court granted appellant’s motion for summary judgment]. The circuit court also affirmed the district court’s order to dismiss defendants’ counterclaims without prejudice.

The Second Circuit held that where there is a genuine dispute regarding plaintiff’s ownership of copyright and the statute of limitations has run, plaintiff cannot then claim copyright infringement. In so holding, the court noted that whereas an infringement action may be commenced within three years of any infringing act, an action based on an ownership claim must be commenced within three years of the point in time plaintiff became aware of the dispute in ownership. A disputed claim to ownership cannot be repackaged as an infringement claim – the statute of limitations runs on the underlying issue.

Property, intangible questions whether the case was properly decided. PlagiarismToday presents an overview of copyright infringement and the statute of limitations. (more…)

Posted On Feb - 17 - 2011 Comments Off READ FULL POST

Federal District Court Denies Motion to Dismiss Contributory Cybersquatting and Contributory Dilution Claims
By Elina Saviharju – Edited by Jonathan Allred

Microsoft Corp. v. Shah, et al., No. C10-0653 (W.D. Wash. Jan. 12, 2011)
Slip opinion hosted by WSJ.com

The U.S. District Court for the Western District of Washington denied defendants’ motion to dismiss plaintiff Microsoft’s claims for contributory cybersquatting and contributory dilution as unrecognized by law.

Cybersquatting is the practice of registering a domain name similar to a well-known trademark in order to profit from confusion with the mark, or by holding the domain name out for sale to the trademark owner, and is prohibited by the Anti-Cybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d). In this case, the District Court held that ACPA should be interpreted so as to allow claims for contributory cybersquatting in addition to direct cybersquatting, although the cause of action has not been explicitly permitted by an appellate court or by statute. The court noted that the defendants’ conduct runs counter to the purpose of ACPA and that “it is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute.” Microsoft at 7 (quoting Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983)).

The Trademark Dilution Act prohibits dilution by blurring or by tarnishment of a famous mark. 15 U.S.C. § 1125(c). As with contributory cybersquatting, contributory trademark dilution had never been directly addressed by a court or by statute. Even so, the District Court held that prohibiting such cause of action would be inconsistent with the Trademark Dilution Act, which seeks to protect against exactly the kind of harm allegedly caused by the defendants.

Eric Goldman provides an overview and critique of the case. The Wall Street Journal Law Blog and Seattle Trademark Lawyer also comment on the District Court’s order. (more…)

Posted On Feb - 14 - 2011 1 Comment READ FULL POST
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ITC’s review of an

ITC’s review of an ALJ’s order was not procedurally sound By ...

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Facebook’s experim

Facebook’s experiment of emotional contagion raises concerns By Jenny Choi – ...

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Flash Digest: News i

By Ken Winterbottom Access to nude photos is a ‘perk’ of ...

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SDNY Holds Bitcoins

By Amanda Liverzani – Edited by Mengyi Wang United States v. Ulbricht, ...

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Aereo Struggles as S

Aereo Struggles as Supreme Court Finds It Violated Copyright Law By ...