A student-run resource for reliable reports on the latest law and technology news
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Creating full-text searchable database of copyrighted works is “fair use”
By Yixuan Long- Edited by Sarah O’Loughlin

In a unanimous opinion delivered by Judge Parker, the Second Circuit held that under the fair use doctrine universities and research libraries are allowed to create full‐text searchable databases of copyrighted works and provide such works in formats accessible to those with disabilities. The court also decided that the evidence was insufficient to decide whether the plaintiffs had standing to bring a claim regarding storage of digital copies for preservation purposes.

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European Union Court of Justice Holds that Individuals Browsing Websites are not in Violation of Copyright Law
By Kellen Wittkop – Edited by Yixuan Long

The Court of Justice of the European Union (CJEU) agreed with the decision of the Supreme Court of the United Kingdom that webpage viewers do not need license to view copyrighted materials online. With this holding, the CJEU issued a crucial decision for European Union law, balancing the rights of copyright holders and the rights of individuals to browse authorized content without being liable for infringement.

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Georgia Supreme Court Takes Chan v. Ellis Appeal to Redefine First Amendment Right on the Internet
By Yixuan Long – Edited by Emma Winer

The Georgia Court of Appeals ordered the appeal in Ellis v. Chan be transferred to the Georgia Supreme Court. Chan, an interactive website owner, appealed the trial court’s permanent protective order, which commanded him to take down more than 2000 posts on his website, and forbade him from coming within 1000 yards of Ellis. The Court of Appeals decided that the case raised significant and novel constitutional issues regarding the First Amendment right and the internet.

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Federal Circuit Flash Digest: News in Brief

By Kellen Wittkop

Appeal of a contempt order for violation of patent injunction agreement dismissed for lack of jurisdiction

Federal Circuit affirms summary judgment of Apple’s noninfringement on GBT’s CDMA patents

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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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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

Greg Tang passed away suddenly on February 7, 2011.  He will be greatly missed by everyone at Harvard Law School.  In his memory, we are republishing his Digest Comment from last semester.

- The Digest Staff

Intel and the x86 Architecture: A Legal Perspective
Written by Greg Tang
Edited by Ian Wildgoose Brown
Editorial Policy

Intel, the world’s largest semiconductor manufacturer, owes its global leadership position to its x86 microprocessors. Intel and its main competitor, Advanced Micro Devices (AMD), command 80.4% and 11.5% of the microprocessor market, respectively. In other words, over 90% of the world’s computers have brains that only understand the x86 instruction set for translating software instructions into computer functioning. Consequently, most computer programs support, if not exclusively, x86 microprocessors. The fact that AMD is their sole surviving competitor in the x86 microprocessor industry is testament to the success of Intel’s aggressive business and legal tactics: the market for almost any other computer hardware component is certain to have a multitude of competitors from around the globe.

Throughout its history, Intel constantly has explored the outer frontiers of the high-tech industry’s legal landscape as it asserted its market dominance, particularly when threatened by competition, and repeatedly has been forced to adjust its strategy when the courts found that it pushed too far. By zealously pursuing this strategy against AMD, Intel has kept AMD at a distant second place in the microprocessor market, despite AMD often offering superior products at lower prices. But Intel occasionally gets in trouble for its liberal use of business and legal force towards AMD. In the last two years, Intel saw the end to several high-profile antitrust cases that it had been tangled up in for years. In May 2009, the European Commission fined Intel a record 1.06 billion Euros for abusing its dominant market position. On November 12, 2009, Intel settled all outstanding antitrust and patent cross-licensing disputes with rival AMD for $1.25 billion. And more recently in August 2010, Intel settled its antitrust case with the FTC by agreeing to several broad restrictions on its relationship with computer manufacturers and its competitors. But Intel’s legal strategy of “trial and error” stems from the company’s formative years, which coincided with the advent of the personal computer. (more…)

Posted On Feb - 13 - 2011 1 Comment READ FULL POST
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Creating full-text s

Creating full-text searchable database of copyrighted works is “fair use” By ...

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European Union Court

European Union Court of Justice Holds that Individuals Browsing Websites ...

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Georgia Supreme Cour

Georgia Supreme Court Takes Chan v. Ellis Appeal to Redefine ...

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Federal Circuit Flas

By Kellen Wittkop Appeal of a contempt order for violation of ...

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ITC’s review of an

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