A student-run resource for reliable reports on the latest law and technology news
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Following an unfavorable verdict from a second jury and the Court’s denial of the first motion for judgment as a matter of law (“JMOL”), Oracle America, Inc. (“Oracle”) filed a renewed motion for JMOL pursuant to FRCP Rule 50(b). Oracle’s second motion, filed July 6, 2016, claimed that “no reasonable jury” could find that Google’s “verbatim [and] entirely commercial” copying of Oracle’s code, in order to compete with Oracle, was fair use.[1] The motion will be heard on August 18, 2016.

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By Kayla Haran – Edited by Jaehwan Park

Pokémon Go Captures Full Google Account Permissions on iOS

Senate Committee Holds Hearing on FCC’s Proposed Broadband Privacy Rules

Federal Judge Suppresses Evidence Obtained Using Stingray in First Such Decision

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The Federal Circuit, in the closely divided en banc decision of SCA v. First Quality, held that Congress had authorized laches as a defense against legal remedy for patent infringement. This contradicts the Supreme Court’s recent holding that for copyright law, laches only applies to legal remedy when Congress hasn’t established a statute of limitations. The Supreme Court has granted cert to review the Federal Circuit’s holding.

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U.S. and E.U. officials formally approved the “Privacy Shield” this week, a new agreement governing the transfer of data between Europe and the United States. The final adoption of the transatlantic agreement comes after several years of negotiations, which were accelerated last October when the Court of Justice of the European Union (“CJEU”) invalidated a key part of the U.S.-E.U. “Safe Harbor,” an agreement that had previously enabled American companies to transfer data from the European Union without running afoul of its stricter privacy laws.

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Federal Circuit Flash Digest

 

By Frederick Ding — Edited by Jaehwan Park

 

Patent Assertion Entity Not a “Patentee” By Itself

 

Induced Infringement Verdict Not Defeated by Defendant’s Unreasonable Belief in Noninfringement

 

Continuations Can Be Filed on Same Day as Earlier Application’s Issuance

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Justice Department Approves Google/Motorola Merger and Other Patent Acquisitions
By Jacob Rogers – Edited by Jonathan Allred

Investigations of Google Inc.’s Acquisition of Motorola Mobility Holdings Inc. and the Acquisitions of Certain Patents by Apple Inc., Microsoft Corp. and Research in Motion Ltd. (Feb. 13 2012).
Decision

On Monday, February 13, 2012, the Antitrust Division of the U.S. Dept. of Justice approved the merger between Google Inc. and Motorola Mobility Holdings Inc. as well as the acquisition of additional patents by Apple Inc., Microsoft Corp., and Research in Motion Ltd.

The Dept. of Justice’s decision allows the acquisitions, which concentrates technology patents in fewer hands, to go forward. Google, once it completes its merger, will acquire approximately 17,000 patents from Motorola as well as an additional 6,800 pending patents. Microsoft, Apple, RIM and others organized as a group under the name Rockstar Bidco will be able to complete their acquisition of approximately 6,000 patents and patent applications that they purchased from the Nortel bankruptcy auction. In addition, Apple will be able to separately acquire an undisclosed number of patents from CPTN Holdings, LLC, which were formerly owned by Novell.

After the purchases, Microsoft and Apple committed to supporting the existing licensing commitments made by Nortel and Novell. However, Google has not made a similar firm commitment with regard to the Motorola patents.

Steven J. Vaughan-Nichols, blogging for ZDnet, suggests that the Motorola merger is a move by Google to constrain Apple’s ability to initiate future lawsuits without needing to enforce its patents. According to Vaughan-Nicols, by agreeing to license its patents on fair, reasonable and non-discriminatory (“FRAND”) terms, Google is making a gesture of peace that Apple will reciprocate, rather than risk injunctions against its next generation of iPhone and iPad releases. PC Magazine suggests that Google’s purchase of Motorola may have been motivated by its inability to acquire any of the Nortel patents. However, the Antitrust Division Report notes that Google’s commitment to the FRAND standard is less clear than the commitments made by Microsoft and Apple. (more…)

Posted On Feb - 22 - 2012 Comments Off READ FULL POST

Federal Circuit Affirms $371 Million Judgment Against W.L. Gore
By Michael Hoven – Edited by Matt Gelfand

Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., No. 2010-1050 (Fed. Cir. Feb. 10, 2012)
Slip opinion

The Court of Appeals for the Federal Circuit affirmed a decision from the District of Arizona, which upheld a jury verdict that W.L. Gore & Associates’s employee had not jointly invented a vascular graft patented by Bard Peripheral Vascular, and that Gore had willfully infringed Bard’s patent. In addition, the Federal Circuit affirmed the lower court’s award of enhanced damages of $371 million, plus attorneys’ fees, costs, and an ongoing royalty to Bard.

The Federal Circuit held that there was substantial evidence to support the jury’s finding of willful infringement and that the district court had not abused its authority in awarding enhanced damages, fees, costs, and a royalty to Bard. Although Gore’s employee had supplied tubes of the substance ePTFE to the inventor behind the Bard patent so that ePTFE could be tested for suitability in vascular grafts, the court reasoned that the inventor of the Bard patent had the key insight into exactly how to fabricate ePTFE into successful vascular grafts, which was not anticipated by the work of Gore or other researchers investigating the use of ePTFE in such grafts. Further, the court rejected Gore’s argument that its employee was a joint inventor, pointing to evidence that the inventor of graft reduced the invention to practice without assistance from Gore. In so holding, the court stated that a researcher, if provided with a material to investigate a possible application, can claim an invention in his or her insight into the precise characteristics that make the material suitable for the application.

Bloomberg provides an overview of the case. The Patent Prospector says the patent at issue and its decades-long legal battle demonstrate that the patent system is broken. IP Biz noted the sharp exchange of words between the majority and the dissent. (more…)

Posted On Feb - 20 - 2012 1 Comment READ FULL POST

By Marsha Sukach

EU Court Says Social Networks Cannot Be Forced to Monitor Users

The European Court of Justice ruled that social networks cannot be required to monitor users solely for the purpose of stopping piracy, reports CNET. The court said that such a requirement created a complicated and costly burden on the sites, and that it might endanger the privacy of user data by forcing sites to identify and analyze information connected to user profiles. According to the Wall Street Journal, the ruling came after a Belgian copyright manager, SABAM, filed a lawsuit against social network Netlog NV for allowing users to access SABAM’s portfolio of music and video.  This ruling is notable because it comes just after two anti-piracy bills—the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA)—became controversial issues in the United States. Critics of these acts argued that enabling law enforcement to erase sites containing allegedly pirated material would also put legitimate sites in danger.

Minnesota Court Denies Restraining Order for Harassing Photos

Olson v. LaBrie, 2012 WL 426585 (Minn. App. February 13, 2012)
Appellant sought a harassment restraining order against his uncle, claiming that his uncle posted embarrassing family photos of appellant on Facebook, with mean commentary. According to the Technology and Marketing Law Blog, the Court of Appeals of Minnesota affirmed the trial court’s denial of the restraining order, saying that photos and comments were mean and disrespectful, but cannot form the basis for liability. According to Internet Cases, the court derived the definition of harassment from the statute, which provides that a restraining order is appropriate to guard against “substantial adverse effects” on the privacy of another. The court refused to consider common law invasion of privacy violations to determine whether the statute called for a restraining order.

Associated Press Sues News Aggregator Over ‘Parasitic Business Model’

The Associated Press is suing Meltwater Group, a paid news subscription company, saying that Meltwater’s subscription service charges a fee for “content created at the expense and through the labor of others.” Ars Technica reports that Meltwater has about 18,000 customers, who pay at least $5,000 annually for searchable content that the company gathers from 162,000 online news sources. According to the International Business Times, the AP is asking a federal judge to block the service from continuation and seeks damages up to $150,000 per infringement. Meltwater has responded that it respects copyright, and merely performs the services of a search engine, customized for paying customers who use it to track stories via keywords. Flash Digest covered a similar suit in 2009, in which the AP defeated All Headline News, a company that repurposed AP content for its subscribers.

Posted On Feb - 20 - 2012 Comments Off READ FULL POST

By Heejin Choi and Dorothy Du – Edited by Julie Dorais

This past August, the Digest summarized some of the legal challenges that major service providers of online music and video streaming faced. Below are updates of select stories:

Grooveshark – All Four Major Record Labels Are Now Suing

Back in August 2011, the Digest reported that Universal Music Group, a major record label, filed a copyright infringement suit against Grooveshark, the popular music streaming service. Universal accused Grooveshark employees of posting more than 100,000 pirated songs, CNET explains. The lawsuit is still pending, and Wired reports that Universal could be seeking the maximum damages of a whopping $150,000 per song. In December 2011, Sony Music Entertainment and Warner Music Group joined the lawsuit through an amended complaint, according to UPI. Most recently, on January 4, 2012, EMI Music Publishing sued Grooveshark’s parent company Escape Media for breach of contract, CNET reports. The New York Times reports that EMI has accused Grooveshark of failing to make a single royalty payment to EMI since signing a music licensing pact with EMI in 2009. CNET says Grooveshark maintains that it is protected under the Digital Millennium Copyright Act’s safe harbor provision, 17 U.S.C. §512(c), which immunizes online service providers from acts of copyright infringement committed by their users under certain conditions. With EMI’s suit, all four major record labels are now suing Grooveshark.

Cloud Music (Amazon, Google and Apple) – MP3tunes Decision Affirms Legality

JOLT Digest reported back in August 2011 that providers of “cloud music” services and apps, such as Amazon, Google, and Apple, may be vulnerable to suits for copyright infringement because the music uploaded by users could have illegal origins. On August 22, the United States District Court for the Southern District of New York handed down its opinion in a lawsuit by EMI against MP3tunes, a cloud-based online music locker service similar to those provided by Amazon, Google, and Apple. See Capitol Records, Inc. v. MP3tunes, LLC, 07 Civ. 9931 (S.D.N.Y. Aug. 22, 2011). Wired explains that rather than requiring every user who wanted the same song to upload it separately, MP3tunes employed a bandwidth-saving strategy in which its software would check the server to see if the song was previously uploaded. If a match existed, the song would be added to the user’s digital music “locker” without requiring an upload. JOLT Digest summarized Judge Pauley’s opinion, which held that MP3tunes met the legal threshold to be protected by the Digital Millennium Copyright Act’s safe harbor provision.

The MP3tunes decision was good news for Google and Amazon because it affirmed the legality of cloud music services. Moreover, it cleared the way for them to take advantage of similar space-saving techniques. Up to then, both had required users to upload every song, regardless of whether it had previously been uploaded by another user, Wired reports. In November 2011, Apple launched a $25-a-year iTunes Match service, which, similar to MP3tunes, scans users’ iTunes music collection and cross-references the songs with its servers, according to Time Techland. That same week, Google Music launched. Mashable reports that the two services would compete with Amazon’s Cloud Player, which had been launched earlier. Amazon’s Cloud Player was removed from Apple’s App Store in November, however, because of “legal complications with the music industry,” Apple Insider states.

Although currently free of legal troubles, Google requested permission from the United States District Court for the Southern District of New York on February 1 to file an amicus brief in support of ReDigi. In its letter to the court on behalf of Google, Fenwick & West expressed concern over the case’s threat to the cloud computing industry. The court, however, denied Google’s request.

Zediva – Movie Streaming Service Closes Operations in Settlement Agreement

In October, 2011, the online movie streaming service Zediva and the Motion Picture Association of America (MPAA) reached a settlement to resolve a lawsuit filed by Hollywood last April, as covered by The Hollywood Reporter. In August, 2011, the MPAA won a preliminary injunction to effectively shut down Zediva, which operated with no licensing agreements with the studios, Wired reports. The Digest covered the legal debate this past August. Zediva originally appealed this decision to the Ninth Circuit, according to The Hollywood Reporter, but has now agreed to permanently discontinue its services and resolve all claims for $1.8 million.

ReDigi – Court Denies Preliminary Injunction Against Used Music Dealer

On February 6, 2012, a federal district court judge denied Capitol Records’ request for a preliminary injunction against ReDigi, ExtremeTech reports. ReDigi sells “used” digital tracks using a software that it claims can identify files that have been legally purchased and restrict a user’s access to such files once the user sells them through its marketplace. This past January, Capitol Records sued ReDigi for copyright infringement in the U.S. District Court for the Southern District of New York (complaint available at Copyright’em) seeking both a preliminary injunction to shut down the website and $150,000 per track in damages. Capitol Records alleged that “ReDigi makes and assists its users in making systemic, repeated, and unauthorized reproductions and distributions of Plaintiff’s copyrighted sound recordings” and that it acts as a “clearinghouse for copyright infringement.” Judge Sullivan denied the request for the preliminary injunction on the basis that Capitol Records could not show irreparable harm, and the parties now await further proceedings, Intellectual Property Magazine reports. Wired.com hosts the brief order, and attorney Ray Beckerman’s website provides an excerpt of the court transcript. According to ExtremeTech, this suit could have important implications regarding the application of the “first sale doctrine” under the Copyright Act of 1976, by which the purchaser and owner of a product has the legal right to resell that product.

Heejin Choi is a 1L at Harvard Law School, and Dorothy Du is a 2L at Harvard Law School.

Posted On Feb - 18 - 2012 Comments Off READ FULL POST

Written by Raquel Acosta
Edited by Adam Lewin
Editorial Policy

I. Introduction

Artificial intelligence (“AI”) is, simply put, “the science and engineering of making intelligent machines.”[1] Quintessential examples of artificially intelligent machines include Hal from 2001 Space Odyssey or the robots from Isaac Asimov’s I, Robot series of short stories. Many of the things we think of when we think of true artificial intelligence — such as understanding nuanced language, solving novel problems, or learning through experience — are just starting to be real phenomena.[2] While self-aware robots remain within the realm of fiction, developments in the field of artificial intelligence are advancing our understanding of what computers are and what they are capable of being.

Increasingly, sophisticated computer programs call into question some of the foundational assumptions within the intellectual property (“IP”) regime by autonomically producing works which, if executed by a human author, would qualify for copyright protection. Copyright is intended to “promote the progress of Science and the useful Arts”[3] and grants a limited monopoly to authors over the production and dissemination over their creative expression with the aim of incentivizing more creative work than it inhibits by locking down creative capital.[4] Machines have no intention of creating novel works, nor do they consider incentives as such. With our current technology, only humans can make genuinely creative choices. It remains an open question as to whom, if anyone, would get the rights if all the innovative or novel contributions were the work of a machine.[5] This Comment discusses innovations in AI technology that possess a high enough degree of autonomous computational creativity to require re-examination of copyright standards.  (more…)

Posted On Feb - 17 - 2012 Comments Off READ FULL POST
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