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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District Court Looks Unfavorably Toward Unilateral Contract Amendments through Web Page Updates
By Katie Booth – Edited by Esther Kang

Roling v. E*Trade Securities, LLC, No. 10-0488  (N.D. Cal. Nov. 11, 2010)
Slip Opinion hosted by Scribd.com

The U.S. District Court for the Northern District of California held that plaintiffs’ claim that E*TRADE’s brokerage agreement was unconscionable was sufficient to survive a motion to dismiss. E*TRADE could change the terms of the brokerage agreement by posting revised terms on its website. According to Judge Marilyn Patel, plaintiffs’ allegations that E*TRADE’s brokerage agreement was both unilateral and did not provide for adequate notice of changes to consumers  were sufficient to allege a claim for unjust enrichment based on unenforceability.

Eric Goldman comments on the decision. He particularly notes that agreements like E*TRADE’s brokerage agreement, which allow companies to make unilateral modifications to contract terms by posting changes on the their websites, pose great risks that courts will find these provisions unconscionable and ultimately invalidate the entire contract. (more…)

Posted On Dec - 7 - 2010 Comments Off READ FULL POST

By Emily Hootkins

FTC Proposes ‘Do Not Track’ System for the Web

CNET reports that the Federal Trade Commission is endorsing a “Do Not Track” mechanism for the web, reminiscent of its popular “Do Not Call” list. David Vladeck, director of the FTC’s Bureau of Consumer Protection, envisions the concept as “a setting similar to a persistent cookie” that would signal whether the consumer is willing to be tracked or receive targeted advertisements. PC Magazine highlights some potential technical difficulties of such a proposal, such as the absence of a persistent, individualized identifier: unlike telephone numbers, a person’s IP address can change, and computers are often operated by multiple users. The FTC is currently asking stakeholders to submit comments on this proposal.

Federal Authorities Drop Charges in Xbox-Modding Suit

PCWorld reports that the first criminal trial for game-console modding has been dismissed. The prosecution dropped the case “based on fairness and justice,” after conceding its error in not disclosing to the defense important facts that would be presented in the first witness’ testimony. As Wired reports, federal authorities charged Matthew Crippen with modifying Xboxes to enable them to play pirated games. Crippen was prosecuted under untested provisions of the Digital Millennium Copyright Act; it remains to be seen whether the government will make another attempt at pursuing criminal charges for game-console modding.

Congress Approves Legislation to Regulate Sound Volume of Television Advertisements

The Wall Street Journal reports that Congress has approved legislation prohibiting television advertisements from being played at volumes louder than regular television programming. The bill, known as the Commercial Advertising Loudness Migration (CALM) Act, will require advertisers to adopt industry technology that modulates sound levels. Ars Technica notes that loud commercials are consistently one of the most common consumer FCC complaints about television. If President Obama signs the bill into law, advertisers will have one year to come into compliance with the Act.

Senate Judiciary Committee Passes Fashion Design Protection Bill

The Wall Street Journal reports that the Senate Judiciary Committee has unanimously passed the Innovative Design Protection and Piracy Prohibition Act. If enacted, this bill will give clothing designers intellectual property rights in their fashion designs. The bill provides a three-year term of protection for designs that demonstrate novelty and originality. According to Reuters, the bill contains important exceptions that address controversial aspects of previous bills providing for fashion copyrights. There is an “independent creation” defense, which a designer can assert if an independently-created design happens to overlap with a copyrighted design. The bill also includes a home sewing exception, and establishes a strict standard that requires designs to be “substantially identical” to support claims of infringement.

Posted On Dec - 5 - 2010 Comments Off READ FULL POST

Federal Appeals Court Affirms the Denial of A123’s Motion to Reopen
By Stuart K. Tubis – Edited by Janet Freilich

A123 Systems, Inc. v. Hydro-Quebec, No. 2010-1059 (Fed. Cir. Nov. 10,  2010)
Slip Opinion

The U.S. Court of Appeals for the Federal Circuit affirmed the judgment of the U.S. District Court for the District of Massachusetts, which had denied A123’s motion to reopen and dismissed the court’s declaratory judgment against Hydro-Quebec (“HQ”).

The Federal Circuit addressed three major issues in its decision. First, it held that “because HQ had acquired less than all substantial rights in the patents in suit, [the University of Texas ("UT")] is a necessary party to A123’s declaratory judgment action.” Second, the court upheld UT’s sovereign immunity rights, despite the fact that UT had waived those rights in a related litigation in Texas. Finally, the court found that UT was both a necessary and an indispensable party to the action under Fed. R. Civ. P. 19, and that the district court properly dismissed the action due to UT’s absence in the litigation.

The Green Patent Blog provides an overview of the case. Patent Prospector also discusses the case, with some commentary below. (more…)

Posted On Dec - 2 - 2010 Comments Off READ FULL POST

By Greg Tang

TSA Offends Travelers with Body Scanners, Fails to be Accountable

The Electronic Frontier Foundation (EFF) commented on the TSA’s use of body scanners in airports across the country, which has raised serious public concerns over the indignity and invasiveness of the body scanners and pat-down searches. The EFF expressed skepticism over the effectiveness of the body scanners in detecting terrorist attacks like the Christmas Day Bomb of 2009, citing various sources, including a TSA document, that have shown materials such as liquid, powder, and thin plastic — as well as passenger clothing — to be undetectable by the scanners. The EFF also reported on the Government Accountability Office’s criticisms of the TSA. The TSA has routinely refused to release test results to the public or perform cost-benefit analyses before adopting new technologies, despite estimated direct costs of $2.4 billion over a 7-year life cycle for the body scanners.

FCC Commissioner Casts Doubt Over Net Neutrality Rules

Ars Technica reported on comments that FCC Commissioner Robert McDowell made regarding the likelihood of FCC-issued net neutrality rules in a talk to the Federalist Society last Monday. The Commissioner expressed uncertainty regarding the substance and timing of any potential rules. The comments came just one week after FCC Chair Julius Genachowski spoke at the Web 2.0 summit in San Francisco, promising to make the rules happen and lambasting Google and Verizon for proposing their own version of open Internet rules back in August. McDowell cautioned against “taking a giant leap into a potentially dark and dangerous regulatory abyss,” and instead advocated cooperation with the FTC, trade associations, consumer groups, and Internet engineers to use existing consumer protection and antitrust laws to punish bad actors and help consumers — a proposal similar to the self-regulatory approach suggested by Comcast last week.

Novell Acquired by Attachmate; IP Goes to Microsoft

Enterprise Linux provider Novell announced last Monday that it would merge with Attachmate, with some intellectual property assets going to a consortium organized by Microsoft. InfoWorld reported on speculations that Microsoft would acquire core Unix IP from the deal, but ComputerWorld confirmed that Attachmate retains control over Novell’s copyrights for the Unix operating system. Since SCO Group launched its attack on Linux in 2003, claiming ownership of Unix intellectual property and copyright infringement by the open-source Linux operating system, Novell has defended the Linux community by defeating SCO in court and declining to pursue copyright action against Linux users. However, Novell has been subjected to criticism from the open-source community in 2006 for reaching a patent agreement with Microsoft over claims that Linux infringed upon Microsoft’s patents.

Jury Awards $1.3 billion in Copyright Damages from SAP to Oracle

Ars Technica reported on the record $1.3 billion that German software maker SAP was ordered to pay rival Oracle in their copyright infringement lawsuit in the Northern District of California. Oracle sued SAP in March 2007 for allegedly using customers’ login credentials to download software and technical support materials from Oracle’s servers. Despite admitting to the inappropriate downloads, SAP had hoped for damages of $41 million from the jury. Several jurors have stated that the award was determined by focusing on how much SAP would have paid if it simply licensed the rights from Oracle, a common method for determining losses in piracy cases.

US Government Cracks Down on Piracy by Seizing Over 70 Domain Names

The New York Times reported that the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) division seized over 70 websites suspected to be involved in file-sharing and counterfeiting goods early Friday morning. The popular file-sharing blog TorrentFreak explained that the websites were shut down by ordering ICANN, the non-profit corporation responsible for mapping human-understandable domain names into numeric IP addresses, to redirect traffic from the seized domains to ICE’s takedown notice. OSNews raised concerns that the method used by the ICE could escalate to censorship of websites outside the US (such as whistleblower site WikiLeaks), as ICANN operates the root domain name servers for the entire Internet. The domain name seizures resemble actions authorized under the Combating Online Infringement and Counterfeits Act, which just passed the Senate Judiciary Committee last week.

Posted On Nov - 28 - 2010 Comments Off READ FULL POST

New York Appellate Court Rejects Demand for Facebook Records
By Irina Oberman – Edited by Ian C. Wildgoose Brown

McCann v. Harleysville Ins. Co. of N.Y., No. 10-00612, 1179 (N.Y.A.D. 4 Dept. Nov. 12, 2010)
Slip Opinion

The Appellate Division of the Supreme Court of the State of New York affirmed the Supreme Court’s denial of defendant’s motion to compel disclosure of photographs on Facebook and defendant’s motion for authorizedaccess to plaintiff’s Facebook account. The Supreme Court had ruled that defendant’s first request was “overly broad,” and that the amended request had failed to establish a factual predicate that the Facebook account was relevant. The Appellate Division agreed with the Supreme Court, noting that defendant was simply engaging in a “fishing expedition” to find relevant evidence. The Appellate Division modified the Supreme Court’s order, however, allowing defendant to file future discovery requests relating to plaintiff’s Facebook account.

The New York Personal Injury Law Blog provides an overview of the case and contrasts it with the Romano v. Steelcase ruling in September. Internet Cases blog warns that although the ruling is significant, it merely addresses overly-broad discovery requests and should not be construed as a decision to protect private personal information per se. (more…)

Posted On Nov - 28 - 2010 Comments Off 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 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 ...