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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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By Emily Hoort

New Law in San Francisco Requires Retailers to Post Cell Phone Radiation Levels

Ars Technica reports that San Francisco has passed an ordinance that requires all cell phone retailers to post radiation levels for their mobile devices. The city passed the law despite a lack of conclusive scientific evidence connecting cell phone use to increased health risks. Cell phone retailers will be required to post the specific absorption rate (SAR), which measures the rate of energy absorption by a phone user’s body, next to all sample display phones along with explanatory information regarding SAR values. Failure to post this information will result in fines of increasing severity based on the number of violations.  The Washington Post reports on the backlash from the cell phone industry in response to the San Francisco ordinance.

Government Crackdown on Websites Hosting Pirated Movies and Shows

The Wall Street Journal reports that the U.S. Department of Justice and the U.S. Immigration and Customs Enforcement office have cracked down on popular websites hosting pirated movies and television shows. According to The National Law Journal, the initiative, called “Operation In Our Sites,” targeted nine popular web sites, from which nearly 84 million pirated movies and televisions shows were downloaded each year. This crackdown follows the government’s launch of a joint strategic plan to increase intellectual property enforcement.

Lawsuits Filed Against Apple and AT&T for Defective iPhone 4 Antennas

Ars Technica reports that multiple lawsuits have been filed against Apple and AT&T in response to problems with the iPhone 4 antenna. The iPhone 4 antenna has faced criticism because of the weak signal it receives when held in certain positions, particularly when gripped in the left hand. Using a protective cover to insulate the antenna from direct contact with a user’s hand can alleviate the problem, causing some users to demand that Apple provide all iPhone 4 purchasers with free covers. Wired notes that the lawsuits allege additional charges against Apple and AT&T, including general negligence, deceptive trade practices, fraud, and misrepresentation. According to the New York Times, Apple has responded by casting blame on a software bug that caused iPhones to exaggerate signal strength. The company claims that the lower signals reported on the iPhone 4 are the accurate values.

Posted On Jul - 5 - 2010 1 Comment READ FULL POST

Tenth Circuit Rejects First Amendment Challenge to U.S. Copyright Law
By Abby Lauer – Edited by Gary Pong

Golan v. Holder, Nos. 09-1234 & 09-1261 (10th Cir., June 21, 2010)
Slip Opinion

Section 514 of the Uruguay Round Agreements Act (URAA), codified in 17 U.S.C. § 104A, restored the U.S. copyrights of foreign authors who had lost copyright protection for failing to comply with certain formalities required by U.S. law.  Plaintiffs challenged Section 514 as a violation of the First Amendment.  The U.S. District Court for the District of Colorado upheld plaintiff’s First Amendment challenge by granting their motion for summary judgment. Because the works of these foreign authors had become part of the public domain, the district court reasoned that the First Amendment prohibited the government from restricting public use of the works by reinstating copyright protection.

Reversing the lower court, the Tenth Circuit Court of Appeals held that the URAA does not violate the right to freedom of expression that is protected by the First Amendment. In so holding, the court reasoned that Section 514 of the URAA was narrowly tailored to advance the government’s interest in protecting American copyright holders’ interests abroad. The court deferred to Congress because the legislative body is better equipped to amass data and make important decisions about U.S. copyright law. In addition, the court recognized that the foreign policy implications of the URAA warranted special deference.

For a complete description of the district court’s decision that was handed down in April 2009, see JOLT Digest. Techdirt provides criticism of the recent Tenth Circuit decision. (more…)

Posted On Jul - 1 - 2010 Comments Off READ FULL POST

By Sharona Hakimi

The White House Endorses FCC Plan and Calls for More Broadband Spectrum

Reuters and CNet report that on June 28, President Obama signed a Presidential Memo endorsing the FCC’s goal to free up 500 megahertz of wireless broadband over the next ten years. The memo estimates that the flow of wireless data used in the next five years will increase to as much as 45 times the total bandwidth used in 2009. The memo calls on government agencies to work with the FCC to identify spectrum that could be repurposed or sold, determine the best purposes for the licenses, and explore new ways the spectrum could be used for public safety or deficit reduction. Television broadcasters have resisted previous plans to reclaim their spectrum, but the new White House proposal would instead offer a share of the profits to those that voluntarily share unused spectrum.

Google to Cease Rerouting China Users to Uncensored Portal

Wired and Ars Technica report that on June 29, Google announced plans to stop automatically redirecting Google China users to an uncensored portal in Hong Kong. The announcement came in anticipation of an upcoming renewal deadline for Google’s Internet Conent Provider license in China. In order to keep operating in the Chinese market, Google determined that it needed to accommodate the requests of Beijing officials. Instead of automatically rerouting users to google.hk.com, the new Google China page offers a non-functioning search box: clicking almost anywhere on the page will reroute a user to the Hong Kong site. Although the Hong Kong Google search is uncensored, Chinese firewalls still prevent users from accessing some websites, and access to the website can be periodically unstable.

New Documents in Dell Suit Reveal Knowledge of Faulty Computers

According the New York Times, new documents were recently unsealed in a three-year-old civil case against Dell regarding millions of faulty computers with components that leaked chemicals and caused electrical malfunctions. Dell shipped close to 12 million defective desktop computers to business and government customers between May 2003 to July 2005. Internal memos and other documents unearthed during discovery have recently revealed  that Dell was aware of the flaws and made concerted efforts to conceal the problems from the public. Dell has recently been the subject of an SEC investigation, as well as an external audit that revealed manipulation of financial reports.

Posted On Jul - 1 - 2010 Comments Off READ FULL POST

Determination of Patentable Subject Matter Not Limited to Machine-or-Transformation Test; Some Business Method Patents Survive
By Davis Doherty – Edited by Matt Gelfand

Bilski v. Kappos, No. 08-964 (U.S. June 28, 2010)
Slip Opinion

In a 9-0 decision, the Supreme Court affirmed an en banc ruling by the Court of Appeals for the Federal Circuit, which held that the petitioners’ claimed invention, a commodities risk-hedging method, was unpatentable. At the same time, a 4-1-4 split on the broader issue of patentable subject matter resulted in a narrow opinion that  leaves open the possibility that some business method patents may be appropriate.

In an opinion penned by Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito, and in part by Justice Scalia, the Supreme Court held the petitioners’ claimed invention was unpatentable under the Patent Act because it was an abstract idea. See 35 U.S.C. § 101 (2006). While the Court affirmed the Federal Circuit’s en banc ruling, its decision overturned the appellate court’s holding that a “process” is patent eligible under § 101 only if: “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” In re Bilski, 545 F. 3d 943, 954 (Fed. Cir. 2008) (en banc opinion). The Court noted that while this “machine-or-transformation” test may be a useful indicator of patentability in most cases, the text of the Patent Act is incompatible with the use of the test as an exclusive standard. Justice Stevens wrote a concurrence, joined only by Justices Ginsburg, Breyer, and Sotomayor, that would have struck down business method patents as categorically patent-ineligible subject matter.

Briefs and relevant court documents are available at SCOTUSwiki. SCOTUSblog provides an overview of the case. Inventive Step criticizes the decision for its failure to provide guidance on patent eligibility. Patently-O provides analysis regarding the import of the Court’s concurring opinions.

(more…)

Posted On Jun - 29 - 2010 Comments Off READ FULL POST

Supreme Court Holds That a Government Employer’s Search of an Employee’s Messages on a Work-Related Pager Was Reasonable and Not a Violation of the Fourth Amendment
By Andrew Segna – Edited by Helen He

Ontario v. Quon, No. 08-1332 (U.S. Jun. 17, 2010)
Slip Opinion

The United States Supreme Court reversed a Ninth Circuit Court of Appeals decision that held that the Petitioner City of Ontario’s (“Ontario”) search of the Respondent Jeff Quon’s text messages was unreasonable and, therefore, a violation of Quan’s reasonable expectation of privacy under the Fourth Amendment.

The Supreme Court held that the search administered by the Petitioner was reasonable and did not violate the Respondent’s Fourth Amendment rights regarding government employers. To reach this conclusion, Justice Kennedy assumed that Quon did have a reasonable expectation of privacy. Under the standards outlined by the plurality and Justice Scalia’s concurrence in O’Connor v. Ortega, the Supreme Court held that the legitimacy of the City’s reasoning behind the search and the nonexcessive measures utilized demonstrated reasonableness. In so holding, Justice Kennedy recognized  this decision’s potential to determine the larger question surrounding employees’ expectation of privacy with regards to government employers and the rapid growth of information and communication technology today. Kennedy mentioned the changing privacy expectations of employees and arguments for and against increased privacy but asserted that he wanted to avoid the volatile and far-reaching consequence of addressing such an issue. Therefore, he concluded that there was a reasonable expectation of privacy in this case in order to narrow the holding.

The New York Times has an overview of the Supreme Court’s decision. SCOTUSBlog analyzed the majority opinion and Justice Scalia’s concurrence in the case and their implications for the question of privacy in the realm of technology. The Electronic Frontier Foundation, who filed an amicus brief in favor of a narrow holding, elaborated upon its support for and concerns about the holding. (more…)

Posted On Jun - 23 - 2010 1 Comment 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 Cour

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 ...