Technically Legal

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Myriad Genetics to Appeal S.D.N.Y. Ruling

Yesterday, Myriad Genetics expressed their disappointment and announced their plans to appeal Monday’s ruling which invalidated seven patents related to BRCA1 and BRCA2 genes and diagnostic testing for breast and ovarian cancer.

Given the highly contentious nature of patents related to human genetic material, it’s not really surprising that Myriad plans to appeal.  I would even expect this litigation to be drawn out over the next several years–potentially to the point of Supreme Court review.

Another thing to keep in mind is that because these patents involve claims over methods of diagnostic processes (which arguably consist of mental steps) and gene isolation techniques, these types of patents may be subject to the Bilski case, which is still pending before the Supreme Court.  The highly anticipated Bilski ruling is expected in the coming months.

Keep in mind we’ll be covering this case on this week’s podcast!

Comments Off on Myriad Genetics to Appeal S.D.N.Y. Ruling Posted in: Commentary on March 31, 2010

SCO v. Novell, Finally Over?

The jury in the SCO v. Novell suit returned a verdict in favor of Novell, saying that SCO does not own relevant copyrights in Linux and Unix. This could hail an end to a case that had dragged on for seven years. We should expect some kind of appeal, but we won’t know on what grounds for some time yet.

Comments Off on SCO v. Novell, Finally Over? Posted in: Links on March 30, 2010

Google Search Broken in China

After just discussing the Google/China spat on our last podcast, this story emerged today.

According to several media stories, Google search results were unavailable on their Chinese website as of today.  Apparently, users could access the Google search page, but were unable to yield results when attempting to search.  This news comes just a week after Google began redirecting their site to their Hong Kong servers at where censorship restrictions are more lax.

Some reports were that China had begun blocking the GOOG through the Great Firewall.  However, it now appears that an internalized error was the cause of the problem.  Somehow an errant text string was inserting itself into the URL of search result pages and caused the search engine to display an error.

For the most current info on the effects of the larger dispute between Google and China dispute, Google has a website which is tracking the status of their online services in mainland China:

Comments Off on Google Search Broken in China Posted in: Links on March 30, 2010

Follow-up on Gene Patents

We still haven’t gotten a chance to read through the 156 page opinion invalidating some patents relating to the Breast Cancer genes (BRCA), but Kevin Noonan has a post which echos my initial thoughts. I think the judge decided the case wrong under existing caselaw. The Supreme Court, recently, has taken a broad view of what is and is not patentable, and isolated, purified, or synthetic versions of naturally occurring substances are patentable.

I’m not passing judgment, here, on whether genes should be patentable, just commenting on the current state of the law. We’ll have more to say on this once we’ve made our way through the lengthy opinion.

Comments Off on Follow-up on Gene Patents Posted in: Links on March 30, 2010

Episode 43: Never Get Involved in an Internet War in Asia

Is ACTA Constitutionality, Google v. China, and Fluff Busting

Please download the podcast, or subscribe to the feed. Feel free to e-mail us with questions, suggestions or comments.

Is ACTA Constitutional?

Full ACTA Leak Online
Is the Anti-Counterfeiting Trade Agreement Unconstitutional?

Google v. China

Google Stops its Chinese Censorship
China issues media rules for stories on Google
Google Faces Fallout as China Reacts to Site Shift
Google China Status Board

Fluff Busting

Facebook Threatens Greasemonkey Script Writer
Fluff Busting Purity News

1 Comment Posted in: Podcast on March 29, 2010

ACLU v. Myriad: S.D.N.Y. Invalidates Human Gene Patents

After nearly three years of litigation in ACLU v. Myriad Genetics, the Southern District of New York issued a landmark ruling today in favor of the ACLU and declared several human gene patents to be invalid.

The patents claimed ownership to methods and materials related to the isolation of BRCA1 and BRCA2, which are part of the tumor suppressor gene family in humans.  The patents further claim ownership over methods of comparing these genes to healthy genes for the purposes of detecting abnormalities or genetic mutations in DNA sequences .  A skilled clinician can then determine the presence of breast and ovarian cancer, or if a person has a strong likelihood of developing those cancers in their lifetime (somewhere around 70%, if memory serves).

Collectively, Myriad owns or has the exclusive rights to seven patents which deal with the DNA sequencing of BRCA1 and BRCA2 genes.  The effect from this ownership, the ACLU argues, is that Myriad Genetics owns a legal monopoly on all diagnostic processes, which hurts women’s public health at large and restricts cancer research and development.

We’ve yet to read the lengthy 152-page court ruling (read it here at the New York Times), but we’ll get through it over the next several days.   In the meantime, you can also find multiple articles on the ruling circulating in the media, including:  TechDirt, LATimes, Newsweek, Wired

Make no mistake, this is a huge case and a highly significant ruling.  Stayed tuned. We’ll cover it on our next podcast with detailed analysis.

1 Comment Posted in: Commentary, Links on March 29, 2010

Episode 42: Two-For Tuesday

Just two stories this week: Summary Judgment motions in Viacom v. YouTube, and Netflix shuts down it’s second challenge.

Please download the podcast, or subscribe to the feed. Feel free to e-mail us with questions, suggestions or comments.

Motion Filed in Viacom v. YouTube

Read The Just-Unsealed Documents From The YouTube/Viacom Case Here
Broadcast Yourself

Netflix Cancels Second Challenge

FTC’s Privacy Worries Prompt Netflix to Cancel Contest

Comments Off on Episode 42: Two-For Tuesday Posted in: Podcast on March 22, 2010

YouTube, Google, and Viacom–a brief overview of secondary liability

Yesterday, we recorded a special edition of our podcast and devoted approximately 2/3 of the show to discussing the Viacom v. YouTube/Google arguments which were presented in their respective cross-motions for summary judgment. One of the most important pieces of the litigation is whether the DMCA section 512(c) safeharbor will apply to Google and whether Google might be secondarily liable for copyright infringement.  I felt it would be helpful to provide a quick and dirty guide to some of the liability principles at stake in the case.

Secondary liability, or “indirect liability,” attaches liability to certain intermediary entities and other persons who are not participating in an infringing act, but are somehow contributing, profiting, or inducing another person’s act of infringement. For example, this might apply to a person who owns and operates a website for the sole purpose of facilitating copyright infringement of song recordings–that operator is not downloading or uploading the sound recordings herself, and therefore is not directly infringing any copyrights, but is providing a medium for others to participate in infringing activities.  For you legal history afficionados, secondary liability dates has been recognized in various forms by courts at least as far back as the late 19th century (see e.g., Fishel v. Lueckel, 53 F. 499 (S.D.N.Y. 1892) (recognizing liability for profiting from infringement as a joint tortfeasor)).  Despite this, secondary liability has still not been codified in the Copyright Act.  Consequently, across federal jurisdictions the standards of secondary liability vary a little from court-to-court.  Nonetheless, secondary liability can be parsed into two categories: (1) contributory liability and (2) vicarious liability.

Scholars and practitioners devote hundreds of pages to discussing contributory and vicarious infringement.  I’m not here to make your eyes bleed.  So, please consider the following points a very broad overview:

Contributory Infringement: When a person, who has knowledge of a direct instance of infringement (e.g., another person uploading a unauthorized video), materially contributes to, *or*, actively induces the infringing conduct.

By a Materially Contribution: The contribution generally needs to add something to the original act of infringement.  For example, some courts have ruled that adding either software, hardware, and webspace, to provide a conduit to unlawfully exchange copyrighted works is enough.  In another case, the Ninth Circuit held the operators of a swap meet where independent vendors sold unauthorized copies of copyrighted works was sufficient to survive a motion to dismiss. Note, however, that under a contributory liability theory, a defendant must have knowledge that an act of infringement is occurring to be liable.

Or, by Inducement:  In 2005, the Supreme Court held in MGM v. Grokster that a person is liable for contributory infringement when she “distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.”

Vicarious Infringement: When a person has the right and ability to supervise an infringing activity and derives a direct financial interest from the infringing activity.  Some courts have interpreted that this does not necessarily mean earned revenue, merely deriving some form of financial interest or financial incentives for tolerating unlawful from the infringing activity may suffice.   For example, check out the Napster litigation from 2001: A&M v. Napster, 239 F.3d 1004 (9th Cir. 2001).

As a final note, it’s important to remember that both the contributory and vicarious liability theories require there to be an original act of direct infringement.  In other words, there has to be another individual who violates the Copyright Act by directly misappropriating the exclusive rights of a copyright owner.

Enter Google, YouTube, and Viacom. Among the most interesting factoids which have surfaced from the summary judgment motions in the Viacom v. YouTube case, is that prior to Google’s acquisition, the founders and executives at YouTube were aware that the website was being used to upload unauthorized copyrighted content. Viacom’s motion quotes email excerpts from the executives who discuss the importance of allowing users to upload arguably infringing content because it was driving up website traffic, making the site an attractive acquisition target based on traffic metrics. Along one line of reasoning, the executives were inducing users to upload infringing content and may have actually participated in some of this. This would be the “smoking gun” argument. See, once YouTube was acquired by Google, Google has arguably assumed liability from actions which took place before the closing date–this is a very common occurrence in any corporate acquisition, but is often subject to the language in the agreement (buyer and seller can negotiate for certain terms and indemnity of liabilities).

What remains unclear, to some extent, is the amount of knowledge needed by the operators to impute secondary liability beyond the DMCA safeharbor. For instance, just because the YouTube executives knew that some videos were likely to have been uploaded without authorization that doesn’t mean they *actually* knew they were unauthorized. Consider this theory plausible deniability. Unless the executives took the time to check with the actual copyright owners, or unless they received a takedown notice or cease and desist notice, they arguably didn’t know with certainty that a particular upload was expressly unauthorized.

Here’s where the DMCA section 512 safeharbor comes into play.  In the past on our podcast and blog (here’s a more thorough overview I wrote), we’ve beaten to death the 17 U.S.C. 512(c) language, but it’s helpful to take a fresh look to see how the precise wording of the statute comes into play:

(c) Information Residing on Systems or Networks At Direction of Users.—

(1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—


(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Note 512(c)(1)(A)(i)-(iii), in bold above.  That’s the statutory language concerning the level of knowledge that potentially implicates a service provider with infringement by a user.   Of particular interest to me is (ii), which states that if a service provider is aware of “facts or circumstances from which infringing activity is apparent,” the service provider cannot take advantage of the safehabor.   Depending on how the court applies this language, Google might find themselves in hot water based on the email exchanges of the previous YouTube executives.   However, it’s not black and white.  Just last year, we saw the UMG v. Veoh case, in which a California Federal Court ruled that a “blanket notice” for the purposes of DMCA takedowns was insufficient to shift the burden of copyright policing to Veoh.  This is important, because if the Viacom and YouTube court decides to follow this reasoning,  it gives YouTube some of the aforementioned plausible deniability– if there were no notices specifically indicating the exact uploads which were infringing, it might be insufficient to impute actual knowledge on YouTube.

Google has separately argued in their motion that Viacom participated in stealth marketing tactics which would have made it very difficult to determine whether an upload was in fact authorized by Viacom but uploaded by another person.  Additionally, Google points to evidence that Viacom had disparate internal policies under which they allowed certain unauthorized videos to remain on YouTube, without flagging or sending any notices to YouTube.  This obviously would make it much more difficult for the YouTube executives to independently determine an upload to be infringing without notice.  You simply can’t act as a filter if you don’t actually know who is responsible for a particular file.

I do think this is a factually fascinating case and it’s too close to speculate what the court is likely to do.  There’s also more detail worthy of  discussion on this case that would make this post pages and pages long.  Check out the plethora of commentary from the legal blogosphere  for additional takes on this case.  It’s also worth listening to our show (which will post tonight, around 12AM EST) and hearing myself, Ben, and Dominik debate the merits from different points of view.  We dove into much deeper detail on the specifics.

Other Bloggers’ takes:

Ben Sheffner (Copyrights & Campaigns)

Eric Goldman (Technology Law and Marketing)

EFF (Deeplinks)

Mike Masnick (TechDirt)

Nate Anderson (Ars Technica)

Comments Off on YouTube, Google, and Viacom–a brief overview of secondary liability Posted in: Analysis, Commentary on March 22, 2010

Summary Judgment Filings in Viacom v. YouTube/Google Case Unsealed

As of today, summary judgment filings in the Viacom v. YouTube/Google case have been made public. Both Google and Viacom have cross filed for summary judgment–meaning both the defendant and the plaintiff believe the law should be interpreted in their favor.

These motions have been highly anticipated since the litigation began nearly three years ago. Google disputed the time frame of making these documents public, claiming it would have been a logistical nightmare in terms of making the necessary redactions for confidential information and trade secret information. Judge Stanton disagreed with Google, and ordered the filings to be made public this week.

TechCrunch has the filings on their site. After I get a chance to comb through them, more thoughts on the arguments of each side will be posted. Stay tuned.

Thanks to Ben Sheffner and TechCrunch for helpful posts.

Comments Off on Summary Judgment Filings in Viacom v. YouTube/Google Case Unsealed Posted in: Links on March 18, 2010

Sexting Injunction Upheld

We covered the first threatened sexting prosecutions, nearly a year ago. The principal case was a Pennsylvannia DA threating to prosecute teen-aged girls for sending provocative, though not pornographic, photos of themselves to friends, via MMS. (Side note: What’s up with Pennsylvannia and students rights? First this, then the MySpace punishments, and most recently, spying on their students).

The district court stopped the DA from prosecuting the students, saying that it probably wasn’t illegal for girls to take and distribute provocative, or even nude pictures of themselves. Child pornography laws are based on the fact that minors are victimized, and it is difficult to victimize yourself.

The Third Circuit Court of Appeals upheld the injunction, but on different grounds. The Court of Appeals thought that the ultimatum the DA gave, which was that the students had to participate in an “education program,” or face prosecution, was unconstitutional.

There were two problems. First, the program interfered with parents rights to raise their kids, as the DA was dictating to the children what he thought was appropriate, not what was legal or illegal. Second, the program required the students to write essays about what they did, and why it was wrong. That violates the First Amendment’s prohibition against compelled speech.

This doesn’t resolve many key issues about sexting, but it did stop the DA from ruining several young girls lives with frivolous felony prosecutions.

Comments Off on Sexting Injunction Upheld Posted in: Analysis on March 18, 2010

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