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Flash Digest: News in Brief

By Olga Slobodyanyuk

ICANN responds to terrorism victims by claiming domain names are not property

D.C. District Court rules that FOIA requests apply to officials’ personal email accounts

Class-action lawsuit brought against ExamSoft  in Illinois

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Federal Circuit Applies Alice to Deny Subject Matter Eligibility of Digital Imaging Patent

By Amanda Liverzani – Edited by Mengyi Wang

In Digitech Image Technologies, the Federal Circuit embraced the opportunity to apply the Supreme Court’s recent decision in Alice to resolve a question of subject matter eligibility under 35 U.S.C. §101. The Federal Circuit affirmed summary judgment on appeal, invalidating Digitech’s patent claims because they were directed to intangible information and abstract ideas.

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Unlocking Cell Phones Made Legal through Unlocking Consumer Choice and Wireless Competition Act

By Kellen Wittkop – Edited by Insue Kim

Unlocking Consumer Choice and Wireless Competition Act allows consumers to unlock their cell phones when changing service providers, but the underlying issue of “circumvention” may have broader implications for other consumer devices and industries that increasingly rely on software.

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SDNY Magistrate Grants Government Search Warrant for Full Access to Suspect’s Gmail Account in Criminal Investigation

By Kellen Wittkop – Edited by Travis West

In an opinion that conflicts with decisions from the DC District Court and the District of Kansas, a SDNY magistrate granted the government’s search warrant for full access to a criminal investigation suspect’s Gmail account.

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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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By Olga Slobodyanyuk

Icon-newsAmici urge the Ninth Circuit to reconsider its ruling in the “Innocence of Muslims” case

Numerous news organizations, academics and Internet companies have filed briefs in support of Google’s petition for a rehearing of Garcia v. Google, No. 12-57302 (9th Cir. Feb. 26, 2014), reports Reuters. The Ninth Circuit ruled that Garcia, an actress tricked into appearing for five seconds in an inflammatory anti-Muslim film, was entitled to a preliminary injunction, and it ordered Youtube to take down all copies of “Innocence of Muslims” with Garcia’s performance. Garcia, slip op, at 2. One group of amici support Google’s petition for a rehearing based on the ruling’s unworkability with established business practices and copyright doctrine. This group includes the International Documentary Association; Netflix; technology companies such as Facebook, eBay and Yahoo!; and IP professors, reports Techdirt. According to Reuters, another group of amici focus on Garcia’s exploitation of a copyright “loophole” in the liability shield for online intermediaries. The EFF’s brief, joined by the ACLU, the American Library Association and others, urges for a rehearing “in order to protect free speech in the debate over the film and also to safeguard the future of free expression online.” News organizations such as the Washington Post and NPR raise similar First Amendment concerns in their brief, reports Eric Goldman from The Technology and Marketing Law Blog. He also notes the absence of big entertainment companies from Google’s list of amici and the lack of discussion among the briefs of the fixation issue, “the most obvious legal defect in the panel’s majority opinion.” JOLT Digest and The Washington Post have analyzed the original opinion.

Record companies sue Pandora for royalties on songs made before 1972

In a complaint filed in the New York State Supreme Court last week, major record companies, including Sony, Universal and ABKCO, have alleged that Pandora violated state common law copyright by playing old songs without permission, reports The New York Times. Songs made before 1972 are covered by “a patchwork of state laws,” not by federal copyright law. The lawsuit is similar to the suit filed last year against Sirius XM, another listening service. Songs made after 1972 are covered by federal copyright law – together with Sirius XM, Pandora paid around $656 million in royalties for these songs last year. According to Ars Technica, payment for pre-1972 recordings would earn record companies about $60 million more per year. Pandora acknowledged the possibility of this lawsuit in its annual report to the Securities and Exchange Commission, noting that the company would be significantly liable if it was found to be infringing. However, Pandora told The New York Times that it “was confident in its legal position and looked forward to a quick resolution of the matter.” State copyright laws typically cover misappropriation and unfair competition. These common-law concepts would not traditionally cover Pandora’s performance of the songs, analyzes Techdirt.

Alleged Heartbleed hacker arrested

Stephen Arthuro Solis-Reyes, a 19 year-old Canadian student, was arrested on April 16 for allegedly stealing 900 social security numbers from the Canada Revenue Agency (“CRA”) using the Heartbleed vulnerability, reports The Washington Post. Solis-Reyes is charged with  one count of “Unauthorized Use of Computer” and one count of “Mischief in Relation to Data” per the Canadian criminal code and is scheduled to appear in court in July, according to the Royal Canadian Mounted Police press release. The CRA discovered the cyber theft of social security numbers on April 11 and has delayed the tax collection deadline from April 30 to May 5 in response, reports the DailyTech. Heartbleed is an OpenSSL flaw which “allows a connected Web client or application that sends messages to keep a connection active during a transfer of data,” explains Ars Technica. According to Top Tech News, the bug has been present for over two years in over 500,000 websites. The attack on the CRA is the first to be recorded since Heartbleed’s discovery, but it was soon followed by an attack at Mumsnet, a British website with around 1.5 million users. Although most websites have upgraded to a secure version of OpenSSL, 50 million Android users may still be vulnerable to a Heartbleed attack.

Posted On Apr - 20 - 2014 Comments Off READ FULL POST

By Geng Chen – Edited by Ashish Bakshi

Photo By: Robert Scoble - CC BY 2.0

Photo By: Robert ScobleCC BY 2.0

Microsoft Corp. v. DataTern, Inc., No. 13-1184 (Fed. Cir. Apr. 4, 2014)
Slip Opinion

The United States Court of Appeals for the Federal Circuit affirmed in part and reversed in part the United States District Court for the Southern District of New York’s rulings in a consolidated declaratory judgment action brought by Microsoft and SAP. Slip op. at 3. The two companies sought a judgment of noninfringement and invalidity for two of DataTern’s patents (the ‘402 and ‘502 patents). See id. at 4. DataTern challenged the district court’s finding that it possessed subject matter jurisdiction over the action because there existed a “substantial controversy . . . of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. at 5 (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)). The Federal Circuit affirmed with respect to most of Microsoft’s and SAP’s claims, as DataTern’s previous infringement suits against those companies’ customers impliedly asserted contributory and induced infringement claims against the companies themselves. See id. at 9–10.

PatentlyO features a thorough analysis of the decision. Mondaq provides additional analysis. (more…)

Posted On Apr - 19 - 2014 Comments Off READ FULL POST

By Emma Winer – Edited by Sheri Pan

Photo By: Images MoneyCC BY 2.0

United States v. Penchukov, No. 11-03074 (D. Neb. July 13, 2012)
First Superseding Indictment
Complaint

On April 11, 2014, the Department of Justice (“DOJ”) released a previously sealed indictment against nine alleged conspirators in an international malware scheme that stole millions of dollars from online bank accounts. First Superseding Indictment at 6, United States v. Penchukov, No. 11-03074 (D. Neb. Aug. 22, 2012). The indictment alleged that the conspirators infected thousands of business computers with the “Zeus” malware, which captured passwords, bank account numbers, and other information required to log into online banking systems. Two of the defendants, Yuriy Konovalenko and Yevhen Kulibaba, were arraigned in Nebraska federal court on Friday, after being extradited from the United Kingdom.

Ars Technica provides an overview of the case. PC Magazine, The Register, and Reuters offer additional commentary. (more…)

Posted On Apr - 18 - 2014 Comments Off READ FULL POST

By Paul Klein – Edited by Alex Shank

Photo By: archie4ozCC BY 2.0

Joined Cases C-292/12 and C-594/12, Digital Rights Ireland Ltd v. Minister for Commc’ns, Marine, and Natural Res., (E.C.J. Apr. 8, 2014)
Slip Opinion hosted by Scribd

In a preliminary ruling last week, the European Court of Justice (“ECJ”) found to be invalid Directive 2006/24/EC (the “Directive”), which the European Parliament and of the Council had previously adopted. Slip op., at I-26. The Directive required EU members to enact laws mandating that electronic communications service providers retain user data for as long as two years. Id. at I-13. EU lawmakers created the Directive to facilitate the “investigation, detection and prosecution of serious crime,” id. at I-8, particularly organized crime and terrorism. Id. at I-7. The High Court (Ireland) and the Verfassungsgerichtshof (Austria) requested that the ECJ preliminarily rule on the Directive’s validity. Id. at I-3. Both courts have actions before them challenging the legality of national proceedings that accord with the Directive. Id.

The ECJ held that “by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter [of Fundamental Rights of the European Union].” Id. at I-26. In so holding, the court stated that Directive 2006/24 clashes “with the rights guaranteed by Articles 7 and 8 of the Charter,” and that “the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance” Id. at I-20. The court identified three major problems with the Directive: 1) the extensive scope of data it would cause to be retained, 2) its failure to sufficiently limit authorities’ access to retained data, and 3) its failure to categorize the retained data in order to distinguish its usefulness and relevance. Id. at I-23–25. Accordingly, the Grand Chamber stated, “Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary.” Id. at I-25.

Bloomberg provides an overview of and contextualizes the case, noting that the Directive was “drafted in the wake of terrorist attacks in London and Madrid . . . .” Voice of America reports that “some observers consider [the ruling] a nod to the Snowden leaks . . . .” It further notes that the court’s decision could affect trans-Atlantic commerce, as well as “the future of President Barack Obama’s proposed [National Security Agency] reforms on surveillance and data collection.” (more…)

Posted On Apr - 16 - 2014 Comments Off READ FULL POST

By Michael Shammas – Edited by Mary Schnoor

Photo By: Kyle NishiokaCC BY 2.0

Petition for Certiorari, Google Inc. v. Joffe, 2013 WL 6905957 (9th Cir. 2013), petition for cert. filed (No. 13-)
Petition for Certiorari hosted by Santa Clara Law Digital Commons

Disagreeing with the Ninth Circuit’s decision that Google, Inc. (“Google”) possibly violated the Wiretap Act, 18 U.S.C. § 2510 et seq., when its Street View cars collected unencrypted Wi-Fi traffic, Google has filed a petition for a writ of certiorari petitioning the Supreme Court to label its activities legal. Google believes unencrypted Wi-Fi networks should be classified as “radio communications” accessible to the public, akin to AM/FM radio, and that as such its actions were exempt under federal wiretapping law. Petition for Writ of Certiorari, Google, at 2. The case is important not only because of the liability Google could face if its petition is denied, but also because of its implications for future interpretations of the Wiretap Act.

PCWorld and Lexology review the petition. Wired provides background on Google’s Street View program, and Ars Technica recaps the regulatory and legal response. (more…)

Posted On Apr - 14 - 2014 Comments Off READ FULL POST
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Flash Digest: News i

By Olga Slobodyanyuk ICANN responds to terrorism victims by claiming domain ...

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Federal Circuit Appl

By Amanda Liverzani – Edited by Mengyi Wang Digitech Image Technologies, ...

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Unlocking Cell Phone

By Kellen Wittkop – Edited by Insue Kim On July 25, ...

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SDNY Magistrate Gran

By Kellen Wittkop – Edited by Travis West In the Matter ...

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Creating full-text s

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