By Sharona Hakimi

Amazon Threatened with Class Action for Remotely Deleting Orwell E-books on Kindles

On July 20, MediaPost News reported that the law firm KamberEdelson is readying a class action lawsuit on behalf of consumers against Amazon for removing George Orwell books on owners’ Kindles. Amazon remotely deleted the e-books from users after discovering that the company that added them to the online catalog did not have rights to the books. Amazon did issue refunds to the owners, but representatives of KamberEdelson argue that the action infringes on consumer’s property rights and violates Amazon’s user agreement. On Boing Boing, Cory Doctorow discusses the problems that remote deletion poses to Digital Rights Media as a whole.

British Judge Rules that Google is Not Liable for Defamatory Search Results

On July 20, the New York Times reported that a High Court judge in Britain ruled that Google cannot be held liable for defamatory material appearing in its search results. The case arose when Metropolitan International Schools, which runs Internet-based training courses, sued Google over negative comments posted on a third party web site that appeared as text blurbs in Google search results. The judge held that Google “has merely, by the provision of its search service, played the role of a facilitator.” While this decision is consistent with America and other European countries’ libel laws, this case is seen as a significant win for search engines because of England’s reputation as being sympathetic to libel claimants.

USPTO Places Its “Peer-to-Patent” Pilot Program on Hold

In 2007, the United States Patent and Trade Office partnered with New York Law School’s Center for Patent Innovation to create an online collaborative patent review program. After two years, the program has been suspended in order to evaluate its effectiveness, InformationWeek reports. The Center for Patent Innovation also cited the poor economy as a reason for the suspension. Hoping to decrease the backlog in the USPTO, the pilot program encouraged patent applicants to volunteer their submissions to undergo peer review. Peer-to-Patent issued its second anniversary report this July and announced it will stop accepting new applicants. Despite the hiatus, there is hope that the program will be re-launched in the future as David Kappos, Obama’s nominee for director of USPTO, has indicated his support of the program, calling it “the Patent Office of the 21st century.”

Class Action Complaint Alleges Facebook Click Fraud

By Brian Kozlowski – Edited by Jad Mills
RootZoo, Inc. v. Facebook, Inc., 5:09-cv-03043-HRL (N.D Cal. July 7, 2009)

In a federal court complaint filed in the Northern District of California on July 7th, sports discussion board and social networking site RootZoo alleged that Facebook charged them for advertising referrals that never occurred and that Facebook failed to “properly guard” against click fraud, the practice of third-party individuals or computer programs repeatedly clicking on the advertisement to inflate the number of referrals.

RootZoo’s complaint accuses Facebook of both breach of the “implied covenant of good faith and fair dealing” in their advertising contract and unfair business practices. RootZoo was one of many advertisers who paid Facebook for each click referring a Facebook user to their site. RootZoo claims that Facebook consistently charged them for more outgoing referrals than the RootZoo servers logged as incoming during the period they advertised on Facebook. According to the complaint, when RootZoo submitted server log documentation to Facebook and asked to be refunded for the discrepancy, Facebook refused to provide any refund and would not release any documentation to back up their refusal. The complaint contrasted Facebook’s unwillingness to release data with the more transparent practices of Yahoo! and Google. RootZoo’s filing came only weeks after TechCrunch wrote a series of well-publicized articles on Facebook click fraud prompted by outraged advertiser posts on the marketing discussion board WickedFire. Following the TechCrunch articles, Facebook representatives claimed to have “developed a series of sophisticated systems” to detect click fraud and to have refunded any advertisers that were affected. However, RootZoo is seeking class action status and an unspecified amount of damages..

MediaPost and The Register offer overviews of the filing and a response from Facebook, while TechCrunch summarizes some of the preceding controversy and WickedFire discussion board postings.

(more…)

Federal Circuit Holds Yellow Bean Patent Obvious and Invalid

By Dmitriy Tishyevich – Edited by Jad Mills
In re POD-NERS, L.L.C., July 10, 2009, No. 2008-1492 (nonprecedential)
Slip Opinion

On July 10, 2009 in a per curium decision, the Court of Appeals for the Federal Circuit affirmed the United States Patent and Trademark Office’s Board of Patent Appeals and Interferences (“Board”) decision invalidating the patent claims for a yellow bean of Mexican origin. The court held that the applicant failed to rebut the examiner’s prima facie determination that all of the claims were obvious.

Patent law blogs PatentlyO and The Patent Prospector summarize the opinion. The ETC Group and the Central Advisory Service on Intellectual Property provide background information about the history of the patent and some reactions to the decision.

(more…)

By Andrew Jacobs

Cyberattack on U.S. and South Korean Governments Stymies Investigators

Law enforcement officials are still investigating the cyberattacks that hobbled some U.S. and South Korean government websites for five days beginning July 4, the New York Times reports. The distributed denial of service attack caused 50,000 to 65,000 infected computers to jam websites of government agencies such as the Federal Trade Commission and the Secret Service with an extraordinary amount of traffic. Although independent and government investigations have led to computers in Miami, Florida, and the U.K., some experts think finding the ultimate source of the “amateurish” attack may prove to be impossible.

Microsoft Convinces Court IP Addresses Are Not Personally Identifiable Information

MediaPost News reports that in a recent class action case against Microsoft, a federal district court in Seattle held that IP addresses do not count as “personally identifiable information” (PII), a term regularly used in user agreements and online privacy policies. The June 23 opinion granted Microsoft’s motion for summary judgment on charges that it had violated its user agreement by collecting IP addresses during automatic software updates. Judge Richard Jones held that in order to be PII, a piece of data must directly identify “a person,” rather than “a computer,” as an IP address does. The decision is in tension with recent E.U. regulatory findings and a 2008 opinion from the New Jersey Supreme Court, according to MediaPost.

New Zealand Takes Second Swing at “Three Strikes”

On July 14, New Zealand’s Ministry of Economic Development introduced a revised version of its “three strikes” copyright provision aimed at curbing online infringement, Ars Technica and Billboard report. The original bill, which provided for the termination of internet service provider subscribers’ accounts as a penalty for repeat copyright infringement, was scrapped in March after public outcry and industry disagreement. The new version addresses due process concerns by allowing alleged infringers to respond to notices of infringement and to have their cases mediated before trial. Termination of infringers’ internet accounts remains a possible penalty under the revised law.

Blogger Status Fails to Provide Journalistic Protection under N.J. Shield Law

By Ian B. Brooks – Edited by Amanda Rice
Too Much Media, LLC v. Hale, Case No. MON-L-2736-08, (N.J. Super. Ct. Law Div. June 30, 2009) Slip Opinion

The Monmouth County Superior Court of New Jersey held that the Defendant, blogger Shellee Hale, was not entitled to the protections of a newsperson under New Jersey’s Shield Law. Although Hale claimed that her posts on an Internet message board were intended to inform the public and spur debate on Too Much Media’s alleged activities, Judge Locascio focused on Hale’s credibility and whether her posting resembled traditional news media. The court noted that although the Shield Law in New Jersey was “one of the nation’s broadest,” Hale “presented no credible evidence . . . that she ever worked for any ‘newspapers, magazines, press associations, news agencies or wire services, radio or television.’” In reaching this conclusion, Judge Locascio gave no weight to Hale’s being a blogger or her claims of having published articles in a newspaper and trade journal because she failed to name the publications and lied in her certification to the court, which Judge Locasio labeled a “sham affidavit.”

The Citizen Media Law Project provides an overview of the case. The New Jersey Law Journal also summarizes the case and includes comments from Too Much Media attorney, Joel Kreizman. (more…)