Technically Legal

Technology and the law. Done right.

Episode 78: Turkey Shoot

US Shuts Down Pirate Site, Court Strikes Down Anti-Data-Mining Law, and Patenting FLOSS

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US Shuts Down Pirate Sites


U.S. Shuts Down Web Sites in Piracy Crackdown

Court Strikes Down Anti-Data-Mining Law


The Opinions
IMS Health Wins Court Attack on Vermont Marketing Law

Patenting FLOSS


Tandberg Attempts To Patent Open Source Code

Comments Off Posted in: Podcast on November 29, 2010

Episode 77: Another Google Sandwich

Google spars with facebook, New York Teen sells White iPhones, and Google Hard Coding Bias.

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Google Spars with Facebook

Google To Facebook: You Can’t Import Our User Data Without Reciprocity

Teen Sells White iPhones

Ballsy Teen Who Sold His Own Authentic White iPhones Earns $130,000 (And Possible Jail Time)

Goole Hard Coding Bias

Hard-Coding Bias in Google “Algorithmic” Search Results

Comments Off Posted in: Podcast on November 23, 2010

Episode 76: Freshly Pressed Tanooki Suit

Facebook and the NLRB, Fox Blocks Google TV, Nintendo Tries a Trademark

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Facebook and the NLRB

Facebook Posts by Employees are Legally Protected Free Speech, Federal Ruling Finds

Fox Blocks Google TV

Fox.com now blocking Google TV devices

Nintendo Tries to Trademark

Nintendo Is Attempting To Trademark “It’s On Like Donkey Kong”

Comments Off Posted in: Podcast on November 15, 2010

Episode 75: Biotechnically Legal

James Madison’s thoughts on video games, DOJ weighs in on gene patents, and Google sues the Department of the Interior

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California Video Games Law Goes to The Supreme Court

Videogames Take Their Star Turn at the Supreme Court

DOJ Weighs In on Gene Patents

U.S. Says Genes Should Not Be Eligible for Patents

Google Sues Department of the Interior

Google suing US Department of the Interior for Google Apps snub

Comments Off Posted in: Podcast on November 9, 2010

Capitol Records v. Jammie Thomas-Rasset, verdict is out!

The verdict came out this afternoon.   The jury awarded Capitol Records $64,000 per instance of infringement, $1.5 million overall.

Ben Sheffner (Copyrights & Campaigns blog) posted some interesting comments and the verdict form as well.

The next moves in this case will certainly be interesting!  More thoughts on this later.

1 Comment Posted in: Links on November 3, 2010

Capitol Records, RIAA v. Jammie Thomas-Rasset: Take-3

Yesterday, the third installment in the Jammie Thomas-Rasset case began in the district court of Minnesota.  As has been noted by several others, this case only involves the issue of damages, not liability.

Recall back in 2009, a jury found Ms. Thomas-Rasset liable for infringing the copyrights on 24 songs and awarded the record company $1.92 million dollars in statutory damages.   On granting a motion for remittitur, Judge Michael Davis reduced the damages to $54,000 noting that the statutory damages must bear some relation to the actual damages incurred by the plaintiffs.

When a judge reduces damages on remittitur, the plaintiff then has two immediate procedural options:  accept the reduction or have a new trial on the issue of damages.  In this case, Capitol Records opted for the new trial.

Since the previous trial already resolved the issue of liability, the only issue before the jury in this case is the amount of damages that should apply. At the heart of this issue are the “statutory damages” provisions in the Copyright Act, which lay out a spectrum of damages per instance of infringement.  If the infringement is proved to be “willful,” as was the case in the Thomas-Rasset trial, the spectrum is $750 – $150,000 per instance of infringement.  Since there were 24 songs at issue, that’s 24 instances of infringement.  For Ms. Thomas-Rasset, this means the jury can award Capitol Records somewhere between $18,000 – $3.6 million.

Since this is an abbreviated trial, I would expect arguments and witness examinations by the attorneys to conclude quickly–probably either today or tomorrow. Then the Judge Michael Davis will issue jury instructions and send the jury off to deliberate over the award of damages.   Updates will be posted as soon as they are known.

Huge thanks to Ars Technica for their endless coverage.

Comments Off Posted in: Commentary, Links on November 3, 2010

Episode 74: Google-Centric (Repost)

Paul Allen Sues Everyone, Google Tries to Buy ITA, CS Student Gets a C&D

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Paul Allen Sues Everyone

Google Strikes Back at Paul Allen, Calling Complaint ‘Scattershot’
The Complaint
Google’s Motion to Dismiss

Google Tries to Buy ITA

Travel Sites Ally to Block Google Deal
FairSearch.org

CS Student Gets A C&D

Cease and desist…

Comments Off Posted in: Podcast on November 2, 2010

US argues that genetic material is not patentable in ACLU v. Myriad

The New York Times reported last Friday, October 29, 2010, that the United States has filed a brief, as an amicus curiae, in ACLU v. Myriad Genetics case which is currently on appeal before the Federal Circuit.  This follows the March 2010 landmark ruling by a federal district court in New York (see our related posts here and here) which invalidated several patents claims over isolated and purified genetic material and certain diagnostic processes related to BRCA 1 and BRCA 2 (tumor suppressor gene and protein linked to breast and ovarian cancers).

The brief was filed on behalf of the United States by the Department of Justice’s Antitrust Division. As noted by the NYT, the most surprising takeaway is the brief argues that isolated but otherwise unmodified or untransformed human genetic material is not “patentable subject matter” because it is a product of nature. This argument is a rather sharp contrast to the prior policies of the USPTO which routinely granted patents for isolated genetic material after the famous Diamond v. Chakrabarty Supreme Court decision issued in 1980. The brief also argues in tandem that certain types of genetic material, such as cDNA, vectors, recombinant plasmids, and chimeric proteins, that do not otherwise exist but for human ingenuity and intervention, are patent eligible subject matter. More importantly, the brief uses this logic to argue that several claims in the Myriad patents related to cDNA were incorrectly invalidated by the SDNY in March.

Overall, the brief seems to be well reasoned. In particular, I think the DOJ is correct in that many of the points of law on appeal could be easily addressed by Diamond v. Chakrabarty and by some dicta from the recent Bilski v. Kappos decision.  I wouldn’t be surprised if the Federal Circuit resolves the case on very similar grounds to those argued in the brief. However, I suspect that the case will continue to play out as a major courtroom and media drama and continue its route on appeal to SCOTUS who, by the way, will eventually remind us that this is a legislative problem that needs to be addressed by Congress and not by legislation from the bench.

Also, in case you are unfamiliar with the concept of amicus briefs, here’s a little background on amici curiae. Amicus curiae (or amici in the plural) is a latin legal term which means “friend of the court.” Amici are people or organizations who interject information, which usually highlights or raises awareness of a certain legal, factual, or policy issues that might otherwise go unnoticed on appeal. More often than not, these briefs are filed at the appellate level—I have been told some courts accept amicus curiae briefs at the district or trial court level too, but I think it’s rare.

Amicus curiae briefs can argue partisan issues of interest to the litigants (i.e., take a side) or help a party by simply supplementing legal points from an neutral outsider’s perspective.  Regardless of what is argued, these briefs usually help the presiding judges consider multiple legal viewpoints that are affected by the case but not necessarily at issue between the litigating parties immediately bound the decision. Before filing a brief, the amicus curiae must have the consent from all litigating parties or have been granted permission from the court, directly, to file a brief.  There are also circumstances in which a court may solicit amicus submissions on particularly complicated or controversial issues. After a brief has been filed, there aren’t any specific rules that require the judges take the substantive points into consideration in their final opinion, but arguments on significant policy issues tend to be acknowledged in final opinions. (More rules/background on these amicus curiae briefs available in Fed. R. App. P. 29).

1 Comment Posted in: Commentary, Links on November 1, 2010

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