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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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Popular Samsung Phones under Investigation for Patent Infringement

By Asher Lowenstein – Edited by Saukshmya Trichi

The US International Trade Commission has instituted an investigation of patent infringement involving some of Samsung’s most popular smartphones. ITC will have to decide whether it is in the public interest to ban a major producer from selling its phones in the US.

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Federal Circuit Flash Digest: News in Brief

By Kathleen McGuinness

Two contested patent terms upheld as means-plus-function

Judgment of damages sufficient to render plaintiff a prevailing party for fee awards

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Google Faces Potential Lawsuit in Connection with Celebrity Photo Leaks

By Amanda Liverzani – Edited by Mengyi Wang

Celebrities impacted by the theft and distribution of personal images stored on Apple’s iCloud service may soon head to court seeking damages from Google for continued copyright infringement and privacy violations. Google is accused of failing to remove the private pictures pursuant to the Digital Millennium Copyright Act (“DMCA”) and threatened with a lawsuit for compensatory and punitive damages that could reach over $100,000,000 unless the offending content is promptly taken down.

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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

By Esther Kang

AOL Buys Huffington Post for $315 Million

TIME reports that on Monday, AOL announced its plans to acquire The Huffington Post, a progressive Internet news site.  This move follows AOL’s acquisition of TechCrunch in September 2010.  The New York Times reports that The Huffington Post’s founder Arianna Huffington will become president and editor-in-chief of the new Huffington Post Media Group, giving her control of AOL’s news content.  AOL CEO Tim Armstrong says that “the reason AOL is acquiring The Huffington Post is because we are absolutely passionate, big believers in the future of the Internet, big believers in the future of content.”  According to MarketWatch, the acquisition will result in combined base of 117 million unique visitors in the U.S. and 270 million worldwide.

FCC Announces Plans to Expand Broadband Access

Reuters reports that the FCC plans to overhaul the $8 billion Universal Service Fund, a subsidy program for rural phone service, by redirecting the funds to support Internet access.  FCC Chairman Julius Genachowski says that the current system is “unsustainable” because “it was designed for a world with separate local and long-distance telephone companies; a world of traditional, landline telephones before cell phones or Skype; a world without the Internet — a world that no longer exists.”  The Washington Post reports that President Obama also unveiled plans to expand broadband networks, pledging to spend $18 billion to bring 4G access to 98% of Americans within the next five years.  According to CNET Obama anticipates raising $27.8 billion from auctions of spectrum currently licensed to TV broadcasters.  However, as The New York Times reports, this estimate depends on whether broadcasters will voluntarily relinquish spectrum to the FCC.

In-flight Internet Provider Aircell Raises $35 Million

Bloomberg reports that Aircell, the largest in-flight wi-fi service provider, has raised $35 million in new funding, bringing its total capital to almost $600 million.  Aircell first introduced its Gogo service in 2008, and the service is now available on flights for nine of the top eleven airlines, as VentureBeat reports.  Aircell also currently provides wi-fi services for about 6,000 private aircraft.  According to the San Francisco Chronicle, Aircell’s CEO thinks the company is a “viable IPO candidate,” though the company has not yet made any decisions regarding an offering.

Posted On Feb - 12 - 2011 Comments Off READ FULL POST

This week the JOLT Digest site was attacked, causing it to go down for a few days.  We have resolved these problems and will resume our regular update schedule immediately.  Sorry for any inconvenience this may have caused.

– The Digest Staff

Posted On Feb - 12 - 2011 Comments Off READ FULL POST
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