Technically Legal

Technology and the law. Done right.

Weekly Links: June 12-18, 2011

Sorry for the lapse in “weekly links” posting, it’s busy time of the year (with vacations, among other things)!  A few interesting legal developments last week in the technology world.  Here’s what we have been thinking about:

Two 3d circuit decisions on school punishment cases involving MySpace. [Layshock v. Hermitage School (2011)] [JS v. Blue Mountain School District (2011)]

1st circuit hears a case on the right to record in public (and a MA law). [via ACLU]

A DHS-seized domain name owner fights back.  [via EFF]

NYT and OpinionLab seek declaratory judgment in Lodsys patent dispute. [via Engadget]

EFF and Fenwick win dismissal in Righthaven v. Democratic underground, for lack of standing, judge orders Righthaven to explain why they shouldn’t be sanctioned.  (ouch) [via EFF]

Is Sears offering a Android-based iPhone clone?  Or just interested in a lawsuit? [via CrunchGear]

Lawsuit filed against Apple over “iBooks” trademark by New York publisher.  [via Bloomberg]

Comments Off Posted in: Weekly Links on June 21, 2011

Second circuit reverses hot news misappropriation case

The second circuit issued an opinion in Barclays v. TheFlyOnTheWall.com today, reversing the district court’s previous ruling in favor of the plaintiffs.  The case has been closely watched by content-owners and copyright attorneys since 2010, after the district court enjoined the defendants from publishing the plaintiffs’ financial recommendations to clients until 30 minutes after the securities market opened.

I’ve only had a chance to skim the opinion, but it appears that the court found that the misappropriation claim was federally preempted by the Copyright Act (see 17 USC § 301).  It’s worth noting that while this case is important, the facts seem to play a decisive role and the court (unsurprisingly) didn’t opine on the first amendment issues.

For background:  The claim in the lawsuit was that TheFlyOnTheWall.com had misappropriated “hot news”– which may be (loosely) described as free-riding off news that was “gathered at the cost of enterprise, organization, skill, labor, and money” of another.  The hot news doctrine has a long history that dates back to the early 20th Century as a state common law distinct from copyright infringement.  This is important to most content owners because:  (1) copyright law protects expression, and generally affords little, if any, protection to factual information (though it still protects the expression of factual information), (2) even when expression is unlawfully reproduced,  the fair use doctrine may protect certain uses of the expression.  In other words: where copyright law doesn’t provide a legal relief, a state-recognized exclusive property right to news might.  The right to hot news was widely recognized until the enactment of the “Copyright Act of 1976″ (the last major overhaul of the Act) in which Congress added an express preemption provision (under 17 USC § 301) that severely limits the ability of state law to mimic rights granted by the Copyright Act.  It’s still recognized, but under limited circumstances.

[Opinion]

Comments Off Posted in: Commentary on June 20, 2011

Apple files motion to intervene in Lodsys patent suits against iOS developers

Today, Apple filed a motion to intervene under FRCP 24 in the Lodsys patent suits which have been threaten/filed against seven iOS developers who refused to pay licensing fees for Lodsys’ patent no.’s 7,222,078 and 7,620,565.

Over the  past several weeks, Lodsys has been criticized in the tech media for claiming that the developers are required to obtain licenses from Lodsys for utilizing in-app purchasing technologies.  This claim was widely covered by the tech media because the seven developers at issue were, for the most part, very small players in the appdev world, and because Apple already licenses this technology for iOS.  Lodsys, on the other hand, believes that licenses must be obtained from both Apple and the developers.  On June 1, Lodsys sued the developers after Apple sent a letter to Lodsys asking them to play nice.

[Apple's motion to intervene]

1 Comment Posted in: Links on June 10, 2011

Supreme Court rejects Microsoft’s arguments in i4i case

In case you haven’t already heard…

Yesterday, the Supreme Court issued an opinion in the Microsoft v. i4i case which has been one of the most closely watched cases on the Supreme Court’s docket during this term.  The result was a unanimous 8-0 victory (Justice Roberts recused himself, because he owns Microsoft stock) for i4i.  This means that the burden a challenger must meet to successfully defend an allegation of patent infringement under § 282 (on grounds that the patent is invalid) will remain the same: the Court affirmed the “clear and convincing evidence” standard, which the Federal Circuit has used since 1982, rather than the lower  “preponderance of the evidence”  (in plain English: “more likely invalid than not”) standard Microsoft argued for  — and Microsoft will still be on the hook for that ~$300M verdict they owe.

Patently-O has an excellent post describing the ruling.  There is also a strong likelihood we will talk about the opinion during this week’s podcast as well.

1 Comment Posted in: Links on June 10, 2011

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