Technically Legal

The opinion, released last week, largely slipped through the cracks. I can’t imagine why TechCrunch wouldn’t report on this.

To recap, breifly, Mike Arrington wanted to make a sub-$200 internet tablet. He started the CrunchPad project which went a whole lot of nowhere until a company called FusionGarage came in. FusionGarage had a near-finished project that Arrington liked and they agreed to work together to polish it off, and get funding to bring the price down from $500 a unit to the $200 target price. Mere weeks before the supposed launch date, FusionGarage backed out, launched their project on their own, and got sued by Arrington for pretty much everything under the sun. Arrington also asked the judge to freeze the proceeds from the sales of FusionGarage’s tablet, called the joojoo.

The judge denies the injunction, saying that TechCrunch hasn’t shown that, absent the injunction, they would be unable to recover monetary damages should they win the lawsuit.

The judge then goes on to dismiss Arrington’s claim for theft of business ideas, because business ideas aren’t really independently protectable, absent some recognized intellectual property right. A fraud claim was also dismissed because it was not specific enough, this was dismissed with a chance to refile the claim. The judge also dismissed a Federal and state unfair competition claim, also with leave to amend the claims and refile.

So, this isn’t a total loss for Arrington. While he lost the injunction the theft of business practices claims, his breach of fiduciary duty claim stands, and he can amend his complaint to fix everything else.

Comment on this post Posted in: Analysis on August 30, 2010

Facebook is going after Teachbook.com for violating their trademarks. Teachbook is a social networking site for teachers, but you may have already guessed that based on the name, which is precisely why Goliath is going after David in this case. The word “book”, or at least “[something]book.com” has the potential to become synonymous with social networking sites, especially if more somethingbook websites start popping up.

One of Teachbook’s two employees said “We’re trying to understand how Facebook, a multibillion-dollar company, feels this small enterprise in Chicago is any type of threat.” However, that’s not the right defense. Besides the dilution of Facebook’s trademark, Teachbook is a threat because there is the possibility of confusion between the two, and it essentially rides on the coattails of Facebook’s trademark. And despite the claim that books are educational and therefore Teachbook is just two educational words, the most crucial piece is that I doubt they would have named their website Teachbook without Facebook’s trademark already existing.

This follows the amusing trend where portions of words are considered violations of the trademark. Consider the ill-fated Scrabulous, borrowing Scrabble’s first five letters, and the various -opoly games that borrowed too heavily from Monopoly. Each of those is five letters, compared to the four in “book.” I’m curious to see if anyone will be sued for any smaller or more generic portions of trademarks.

2 Comments Posted in: Analysis, Links on August 26, 2010

A Federal Court in Pennsylvania has ruled that the statute of limitations for libel starts running for blogs the same time it starts running for newspapers. In the eight-page opinion, the judge declined to distinguish the mass media from blogs.

The essence of the case is that the plaintiff was allegedly defamed in a 2007 blog post. However, the plaintiff did not learn of the post until 2009, well after the one-year statute of limitations on libel. In other words, once someone has committed libel, the person libeled would have one year to bring the lawsuit before time runs out.

The plaintiff tried to get around this by asking the court to apply the discovery rule. The discovery rule states that the statute of limitations will be tolled, or delayed, until the plaintiff knew or should have known about the injury. In this case the injury is the libelous statement. The discovery rule has typically been applied to complex tort cases, where, for example, someone is exposed to a dangerous chemical and harmed immediately, but the person doesn’t know of the injury, and would have no way of knowing, until much later.

The court ruled that the discovery rule just doesn’t apply to something that was published for the whole internet to see.

2 Comments Posted in: Analysis on August 6, 2010

The F.B.I. has asked Wikipedia to . Citing 18 USC 701 which prohibits “possesses[ion of] any . . . insignia, of the design prescribed by the head of any department or agency of the United States for use by any officer or employee thereof . . . .”

The F.B.I. has a tough argument that the insignia of the F.B.I. was made “for use by any officer or employee” of the F.B.I. Agents go around flashing badges, not the official insignia of the F.B.I. Furthermore, Wikipedia is not making commerical or misleading use of the insignia, which bolsters its First Amendment claim to publish a copy of the insignia.

It’s surprising that the F.B.I. would go after Wikipedia for this, and encouraging that Wikipedia is standing up to the F.B.I. We’ll post any updates as they emerge, but I doubt it will go much further, as the next step would be for the F.B.I. to file criminal charges against Wikipedia for the alleged violations of the statute.

Comments Off Posted in: Analysis on August 3, 2010

The Librarian of Congress has the power to create certain excemptions from the DMCA. Some exemptions were released today, and they are doozies.

Among the things that are no longer violations of the DMCA:

• Circumventing CSS for fair-use, critical, and educational purposes


• Jailbreaking phones to obtain software interoperability for legally obtained software


• Unlocking your phone to work on another network


• Breaking game security for educational or security research purposes


• Getting around obsolete computer dongles


• Reading aloud eBooks for visually impaired people, even if the eBook says that feature is disabled

Now, none of this means that Apple has to make it easier to jailbreak or unlock the phone, it just means that actually jailbreaking or unlocking it is no longer punishable criminally or through a civil lawsuit.

2 Comments Posted in: Analysis, Links on July 26, 2010

I’ve finally had an opportunity to sit down a read the opinion in Viacom v. Google. I wanted to share a few thoughts about it.

First, the judge distilled the issue down to one clear question of law: does knowledge of infringing content on the site mean specific, actual, knowledge of each item, or generalized knowledge that there is a lot of infringing activity going on? The judge spent about half the opinion reciting legislative history to inform his answer to the question.

In the end, he came to the same conclusion that many other judges have: that it would ruin DMCA safe harbor, and be contrary to Congress’ intent, if generalized knowledge, or even a duty to investigate files uploaded, could constitute knowledge of infringing works under the DMCA.

All that being said, Viacom has promised to appeal, and this opinion carries no weight on appeal. This opinion is only as useful as it is persuasive to the panel that hears the appeal.

We’ll follow the appeal closely, but these do not move quickly.

Comments Off Posted in: Analysis on June 24, 2010

Gizmodo posted a story about people being prosecuted for recording police encounters. The story beings with this gem:

In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

Those two sentences are almost entirely wrong. One of the states they discuss is Massachusetts. While there have been several high profile cases where people have been arrested for recording police officers, the mere act of recording a police officer is not illegal, nor was any law passed in response to police videos being posted on line.

The law Gizmodo is talking about is the Massachusetts wiretapping act, M. G. L. c. 272, § 99. The act was passed in it’s current form in 1968, and largely mirrors the Federal wiretapping act. The act makes it illegal to secretly intercept an oral communication. The cases were people have been successfully prosecuted for violating the act have been where the defendant concealed or hid their recording device. Massachusetts courts have repeatedly held that any type of obvious recording is not illegal, nor would it be illegal to just record video without sound. And there is certainly no law that prohibits recording police officers specifically.

Comments Off Posted in: Analysis on June 4, 2010

In a case released today, the Massachusetts Supreme Judicical Court, the highest court in the Commonwealth, held that MySpace messages, sent from the account of a criminal defendant’s brother, were not admissible against him because they were not properly authenticated. To view the opinion, click here, then on “Opinions” under the Supreme Judicial Court headline. Finally, click on “Commonwealth v. Williams.” This will be made easier this afternoon.

The defendant’s brother sent a potential witness four messages urging her not to testify against the defendant. The Court said the messages should have been excluded because they were not authenticated, in other words, the jury had no way of knowing who wrote them.

The Court analogized it to authenticating a phone call. It is not enough to merely state that the witness recieved a phone call from a person. The witness must testify that they were familiar with the person’s voice, and that the voice on the other end of the line was consistent with the person’s voice.

Here, neither the witness, nor anyone else, testified to how secure MySpace is, and whether someone else could have sent the messages.

Ultimately, the Court held that the error of allowing the messages into evidence did not require a reversal of convictions.

Comments Off Posted in: Analysis on May 21, 2010

Planet Money, the great NPR podcast about the financial crisis and economics, and whom we’ve covered before, seems to have commited fraud on the United States Patent and Trademark Office.

On their most recent podcast, they talked about applying for the “Money Honey” trademark for use on visors and hats. You can search for “Money Honey” or “85009258″ on the TESS site here.

The problem is that it doesn’t look like they filed an “Intent to Use” application. Rather, they filed an application where they must have represented that they already sold a hat or visor in commerce marked with the Money Honey brand. Since they admitted in the podcast that they haven’t made or sold any yet, they must have lied to the Patent and Trademark Office when they said that they had sold it in commerce.

This is still an application, and the mark hasn’t been registered, but god-forbid Planet Money ever tries to prosecute someone for infringing this mark, the defendant would have a strong case that the registration is invalid for fraud on the PTO.

Please Note: This was done as an intellectual exercise. I harbor no ill will toward Planet Money, and do like their program a great deal.

2 Comments Posted in: Analysis on May 5, 2010

The New York Post, of all news outlets, is reporting that Apple may be facing an anti-trust investigation over its requirement that developers use Apple’s XCode to program apps for the iPhone.

We discussed this briefly on Podcast 46.

There’s a more in depth discussion in the podcast, but the short of it is that a court would be doing a tying analysis. The inquiry there is whether the company is leveraging their market power in one sector to promote sales in another. There are many ways you could frame the quesion, but in the end it’s unlikely that Apple would be found to be violating antitrust laws. Yes, Apple is has control over the market for installable iPhone apps, but the competition to installable applications on the iPhone includes HTML5 web apps and installable applications on other platforms, like Window Mobile, Android, Symbian, WebOS or BlackBerry.

In short, a court would be unlikely to find that Apple had enough power over the market to drive sales of Macs, which run XCode, when you can develop for the iPhone (by making a web app) or other platforms with a PC.

Comments Off Posted in: Analysis on May 3, 2010