A student-run resource for reliable reports on the latest law and technology news
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Aereo Struggles as Supreme Court Finds It Violated Copyright Law
By Jenny Choi – Edited by Sarah O’Loughlin

On June 25, 2014, in its 6-3 decision, the Supreme Court of the United States ruled against Aereo, Inc.  The U.S. Supreme Court held that Aereo violated the Copyright Act of 1976 for streaming TV shows shortly after they were broadcast without paying for the copyrighted works.  As a result, Aereo suspended its service and has struggled to find a way to re-operate its business. This decision has not come without criticism, however, as some warn this ad hoc decision could lead to uncertainty in the courts.

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DRIP Bill Expands UK’s Data Surveillance Power

By Yixuan Long – Edited by Insue Kim

House of Lords passed the Data Retention and Investigatory Powers Bill (“DRIP”) on July 17, 2014. DRIP empowers the UK government to require all companies providing internet-based services to UK customers to retain customer metadata for 12 months. It also expands the government’s ability to directly intercept phone calls and digital communications from any remote storage. Critics claim the bill goes far beyond what is necessary and its fast-track timeframe prevents meaningful discussion.

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Federal Circuit Grants Stay of Patent Infringement Litigation Until PTAB Can Complete a Post-Grant Review

By Kyle Pietari – Edited by Insue Kim

Reversing the district court’s decision, the Federal Circuit granted a stay of patent infringement litigation proceedings until the PTAB can complete a post-grant patent validity review. This was the court’s first ruling on a stay when the suit and review process were happening concurrently.

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Ninth Circuit Rejects Fox’s Request to Shut Down Dish Services, Despite Aereo Decision

By Sheri Pan – Edited by Insue Kim

United States Court of Appeals for the Ninth Circuit affirmed the district court’s denial of Fox’s motion for a preliminary injunction.  Fox argued that the technologies would irreparably harm Fox because they violate copyright laws, but the Ninth Circuit ruled that the district court did not err in finding that the harm alleged by Fox was speculative, noting that Fox had failed to present evidence documenting such harm.

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Flash Digest: News in Brief

By Patrick Gutierrez

Senate passes bill to make cell phone unlocking legal

ABA urges lawyers to stop pursuing file sharing lawsuits

FBI cautions that driverless cars may be used to assist criminal behavior

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Supreme Court Holds That Federal Courts Have Jurisdiction over Unregistered Copyright Claims
By Debbie Rosenbaum – Edited by Gary Pong

Reed Elsevier v. Muchnick, No. 08–103 (U.S. Mar. 2, 2010)
Slip Opinion

In a unanimous 8-0 decision, the United States Supreme Court overturned a Second Circuit Court of Appeals decision which held that the district court lacked jurisdiction to certify either the class or the settlement in a case involving holders of unregistered copyrights. The Court of Appeals for the Second Circuit had held in a sua sponte decision that a copyright holder’s failure to comply with § 411(a)‘s registration requirement deprives a federal court of subject-matter jurisdiction to adjudicate his copyright infringement claim. The Supreme Court disagreed.

Justice Sotomayor did not take part in the decision, perhaps because she was a member of the Second Circuit Court that decided not to rehear the case en banc.  The Supreme Court decision revived a possible $18 million settlement between freelance writers, publishers and electronic database owners, involving payment to freelance writers for online use of their work — even when some writers have not registered their copyright.

The New York Times and TechDirt both provide overviews of the decision.  The Legal Information Institute at the Cornell University Law School provides a detailed analysis of the issues underlying this case. (more…)

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

By Tyler Lacey

RealNetworks Won’t Appeal Decision Declaring Its DVD Copying Software in Violation of DMCA

On March 4, Wired reported that RealNetworks plans to cease litigation of a lawsuit filed by the Motion Picture Association of America (“MPAA”) alleging that its DVD copying software, RealDVD, violates the Digital Millennium Copyright Act (“DMCA”).  RealNetworks had initially planned to appeal a California district court’s decision that the software illegally circumvented the DVD encryption technology, Content Scramble System. However, after two years of litigation, RealNetworks has decided not to appeal in an effort to cut its losses, which according to Wired amount to “millions of dollars, including $4.5 million to reimburse the MPAA for its legal costs.”  Wired argues that “RealNetworks’ admitted defeat solidifies the DMCA’s power.”

Google Obtains Patent on Location-Targeted Advertising Method

Mashable reports that Google obtained a patent for “determining and/or using location information in an ad system” on February 23. The patent, which Mashable characterizes as “broad,” was filed on April 12, 2004.  Mashable also reports that since the patent’s filing date, several companies have started practicing a method of targeting advertisements based on an individual’s location, with AdMob and Quattro Wireless “leading the charge.”  Quattro Wireless has been acquired by Apple, which Mashable notes is “quickly becoming [Google’s] primary rival” in mobile advertising.  The patent abstract states in part that the patented method “may be used in a relevancy determination of an ad” and that “[a]d performance information may be tracked on the basis of location information.”

Canadian Government to Allow Increased Foreign Investment in Telecommunications Industry

On March 4, CBC News reported that the Canadian government is planning to loosen foreign ownership restrictions on telecommunications companies as a part of its new budget proposal.  The new rules will initially allow foreign startups and acquisitions of small companies, and will allow foreign takeovers of larger companies within five years. According to the article, there are currently restrictions in place designed to ensure Canadians are in control of any telecommunications carriers that operate in Canada, including minimum levels of Canadian board membership and ownership of voting shares. Industry experts argue that the old rules are “archaic and anti-competitive,” and are the reason “prices have been high and service levels low.” According to Canada’s Governor General Michaëlle Jean, the new rules will give “Canadian firms access to the funds and expertise they need.”

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

Court Excludes Litigation Fees from Calculation of Damages under DMCA § 512(f).
By Debbie Rosenbaum – Edited by Gary Pong

Lenz v. Universal Music Corp., Case No. 5:07-cv-03783-JF (N.D. Cal., Feb. 25, 2010)
Slip Opinion
(Hosted by the Citizen Media Law Project)

On February 25, 2010, Judge Fogel for the Northern District of California held that a plaintiff suing over a wrongful Digital Millennium Copyright Act (“DMCA”) takedown notice can only recover for damages that were proximately caused by said notice.  This effectively limits the plaintiff’s recovery to attorney’s fees for pre-litigation activities such as the filing of the DMCA counter-notification.  To recover for attorney’s fees incurred in the actual § 512(f) suit, the plaintiff’s only recourse is in 17 U.S.C. § 505 of the Copyright Act – providing that “the court in its discretion may allow the recovery of full costs … [or] reasonable attorney’s fee to the prevailing party.”  In so holding, the court  may actually be discouraging 512(f) plaintiffs from bringing suit by limiting their compensable damages.

Ars Technica and Copyrights & Campaigns provide a general overview of the decision.  The Citizen Media Law Project offers briefs of all portions of the case. (more…)

Posted On Mar - 4 - 2010 Comments Off READ FULL POST

For in rem Jurisdiction, Ninth Circuit Holds That Domain Names Are Located Where the Registry is Located
By Elizabeth Akerman – Edited by Gary Pong

Office Depot, Inc. v. Zuccarini, Case No. 07-16788 (9th Cir., Feb. 26, 2010)
Slip Opinion

The U.S. Court of Appeals for the Ninth Circuit affirmed the decision by the District Court for the Northern District of California to grant DS Holdings’ motion to appoint a receiver to auction off Zuccarini’s domain names and use the proceeds to satisfy an earlier judgment against him.

To arrive at its conclusion, the court held that under California law “domain names are intangible property subject to a writ of execution” and that “domain names are located where the registry is located for the purpose of asserting quasi in rem jurisdiction.” The court also noted in dicta that for in rem jurisdiction, domain names are located where the relevant registrar is located.

The Seattle Trademark Lawyer provides an overview of the case and the Technology & Marketing Law Blog provides an analysis of the decision. (more…)

Posted On Mar - 4 - 2010 Comments Off READ FULL POST

By Conor H. Kennedy
Editorial Policy

In Citizens United v. Federal Election Commission (“Citizens United”), the Supreme Court nullified a major provision of campaign finance legislation.  The Federal Election Commission (“FEC”) can no longer regulate the mandated disclosure, allowable sources, or contribution limits of corporations’ independent political advocacy.

Prominent legal scholar Lucian Bebchuk argues that the “insiders” who manage companies are now empowered to use direct expenditures to legally entrench themselves atop publicly traded companies, their shareholders’ objections notwithstanding.  From such a powerful vantage, these “insiders” have strong incentives to spend their general treasury funds on political advertising to help candidates who favor legislation benefiting them as a class.

Whether and how “insiders” respond to these incentives is currently up for debate.  Still, increasingly weak shareholder rights or abstract reputational costs are now the sole disciplining factors preventing corporations from deluging our political speech channels with direct expenditures.  It therefore seems more likely than not that business insiders will take full advantage of the emerging legal landscape by significantly increasing political expenditures through the general treasury funds they control.

Accordingly, reform advocacy groups have redoubled their calls to bolster the FEC’s approach to offline coordination standards.  The offline coordination standards govern the degree to which corporations can orchestrate their political spending on television and radio advertising with specific candidates or parties.  The courts have rejected the FEC’s prior offline coordination standards, but not because of empirical evidence that specific advertisements have been actually coordinated.  As noted in the latest court opinion overturning the FEC’s offline coordination regulations, “no such evidence has yet been identified[, but that] is far from a guarantee that no such evidence will develop in the future.”

Advocacy groups like the Campaign Legal Center are picking up where court oversight left off, both by testifying in front of the FEC to stave off the prospect of substantial coordination and by urging Congress to write its own, stronger coordination standards to compel the FEC to act. This Comment hopes to contribute to the advocacy effort by suggesting that Congress and the FEC should consider altering online coordination standards as well.

The FEC’s online coordination standards were not challenged or overturned in the latest round of court review, even though they exempted any expenditures on political messaging distributed through free online services like YouTube.[i] A 2009 Columbia Law Review student comment highlighted the potential for abuse of virtually unregulated online political expenditures.

In the next few election cycles, the loci of political news and commentary will continue to migrate online.  The groups influencing that process are likely to allocate their investments toward ventures which have worked in the past.  The “Yes We Can” web video, commonly known as one of the most successful and innovative online expenditures in the 2008 campaign, bares the trappings of the political advertising we can anticipate in the near future: an unregulated third party funded the production of a web video which a candidate then spread to millions of supporters.

There is no reason to believe that the “Yes We Can” video was coordinated with the Democratic Party or the Obama campaign. However, one might expect that a prolonged, systematic effort to emulate its production and distribution model would foreseeably lead corporate spenders to take advantage of the non-regulation of coordinated online expenditures.  After all, when a corporation can coordinate one type of expenditure (i.e., expenditures distributed on free internet services) guaranteed to mesh with its preferred candidate or party’s dynamic efforts to shape the 24-hour news cycle, but cannot coordinate other expenditures (i.e., offline expenditures), the corporation has an incentive to move its money toward the coordinated expenditure.  Now that Citizens United has provided additional incentives for professional managers to invest their general treasury money on campaign expenditures, they also have additional incentives to research the most effective legal ways in which to do so.  We are therefore likely to witness a growing effort to exploit the online coordination standard.

This week, the FEC is hearing testimony about proposed post-Citizens United coordination standards.  Once the FEC sets a baseline by promulgating new standards, Congress is prepared to readjust that baseline to its own liking.  I argue that both entities should make preemptive efforts to regulate now instead of sweeping up after an election cycle of substantial online coordination. (more…)

Posted On Mar - 3 - 2010 5 Comments READ FULL POST
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Aereo Struggles as S

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