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.
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.
Another busy week has already passed us by! Here’s what’s been on our radar in the last seven days.
Pirated Android Apps and Freeloaders. [via Slashdot]
Google to buy Nortel IP? [via Google Blog]
Judge in Chicago does not like the mass p2p lawsuits. [via Ars Technica]
Court denies request to subpoena information from Twitter and Facebook. [via the Technology and Marketing Law Blog]
Tracking using data from a cell phone in Germany. [via Zeit.de]
Zediva’s clever DVD-streaming business model to be challenged in court. [via Ars Technica]
Google sues France over data retention laws. [via Google]
Yahoo! found liable for searchable content in Italy. [via Slashdot]
9th Circuit (re)affirms ruling on laptop searches at the US borders. [via Tech Dirt]
Time Warner and Viacom go to court over iPad streaming issues. [via The Guardian (UK)]
Welcome to our new “Weekly Links” feature! In this new feature, we share “what’s on our radar” in a blog post each Saturday or Sunday with links to the stories in our podcast e-mail thread. If we missed any stories, please feel free to note them in the comments.
Righthaven sues, then dismisses case against Eriq Gardner over Ars Technica article. [via Ars Technica and Technically Legal]
Sprint officially opposes AT&T&T-Mobile merger. [via LA Times]
Groupion sues Groupon over trademark issues. [via Technology & Marketing Law]
Amazon launches cloud media player; do they need licenses? [via Ars Technica]
Parents sue Facebook over photos of deceased daughter. [via ZDNet blog]
Massachusetts fines company $110k under new data breach law. [via Slashdot]
Massachusetts tries to close obscentiy loophole that implicates obscene electronic messages. [via The Boston Globe]
Google launches “+1″ service — social results ranking. [via TechCrunch]
Microsoft files antitrust complaint against Google in the European Commission. [via The Guardian]
Facebook sued for $1B over offensive page removal. [via TechCrunch]
The story begins last December, when Gardner wrote an article for Ars Technica that Described Righthaven’s copyright claims in a lawsuit against the DrudgeReport. In that case, Righthaven alleged that the DrudgeReport had reposted a photograph of a TSA Agent giving an airport traveler a pat down without authorization. In Gardner’s Ars Technica article about the DrudgeReport lawsuit, he reposted the photograph as it had appeared in the court filing: as a black and white, grainy image that (probably) had been printed out and attached to the complaint as an exhibit and then rescanned for the Ars Technica article.
Last Friday, Righthaven filed a complaint against Gardner claiming that his use of the photograph from the court filing in the Ars Technica article was an infringement of copyright(!). According to Ars Technica, which has a detailed post about the incident, Righthaven voluntarily dismissed the suit this morning, stating to Ars that the filing was the result of a “clerical error.”
It’s hard to imagine a set of facts that is a better candidate for a fair use defense. Aside from the fact that the image in question wasn’t even the original photograph, Gardner’s Ars Technica piece is a news article, with commentary on the DrudgeReport lawsuit. News reporting and commentary about ongoing cases has a long history of public policy support in the courts. Moreover, those activities are among the few explicitly mentioned as examples of fair use in the Copyright Act (use of a work “for purposes such as criticism, comment, news reporting … is not an infringement of copyright”). This lawsuit looks bad for other reasons too, as one could seemingly perceive it as an attempt by Righthaven to quell commentary about its litigious activities.
Even more confounding, however, is that the majority of Righthaven’s lawsuits (that I am aware of, at least) come from its newspaper clientele. If we take a momentary trip to upside down world, where this lawsuit wasn’t dismissed and the fair use argument failed in court, Righthaven would have obtained a ruling that is rather antithetical to the same principle that its client-newspapers rely on for commentary and reporting in their own publications.
Every week, Ben, Dominik, David Lu, and I share technology, law, and policy news stories in an e-mail thread. Then, we select 2 or 3 stories for discussion on our weekly podcast and, time permitting, stories worthy of a blog post. More often than not, there are more stories in our e-mail thread than we have time to cover on the podcast or in blog posts. And, this was the busiest week we’ve seen in awhile!
This is the first post in a new weekly series where we will share “what’s on our radar” in a blog post each Saturday or Sunday with links to the stories in our e-mail thread. If we missed any stories, please feel free to note them in the comments.
AT&T / T-Mobile agree on acquisition deal for $39B. [via New York Times]
Apple sues Amazon over “AppStore” trademark. [via technically legal and Bloomberg]
Microsoft sues Barnes & Noble over Nook/Android. [via GrokLaw]
Appeals court Revives FISA lawsuit from 1983. [via Ars Technica]
Google was fined for collecting wifi data in France. [via Mac World]
Court orders Steve Jobs to answer questions in an antitrust case. [via The Loop]
The USPTO granted Google a patent (# 7,912,915) for doodling. [via Slashdot] [the patent]
NY Federal District Court rejects Google Book Settlement. [SDNY Opinion]
The New York Times tells Twitter to shutdown a retweeting stream. [via Slashdot]
After hacker posts his crime to YouTube, goes to jail. [via Slashdot]
Senators ask Apple to remove DUI checkpoint mapping App. [via The Loop]
Record companies sue Limewire for trillions. [via law.com]
Updates in the GeoHot/Sony case. [via Ars Technica]
HDD search and seizure: should there be more limits? [via Ars Technica]
A victory for plaintiffs (copyright) in class action P2P lawsuits? [via Ars Technica] [D.C. District Court Opinion]
Bloomberg is reporting that Apple has filed a compliant against Amazon for using “App Store” in the context of the “Amazon Appstore Developer Program,” (as of 10:42 EDT, Amazon still hasn’t taken down the reference) which will apparently be some kind of Android app
stor… err, online market for, well, “apps.”
You may recall that we discussed the issues associated with Apple’s application for the “appstore” trademark in some detail on Podcast 92. In sum, Microsoft thinks this mark is generic (and is separately challenging it before the Trademark Trial and Appeal Board). I think there is a better argument that this mark is merely descriptive, without a strong secondary meaning. On the other hand, there are only so many ways to describe a online marketplace (a “store”) of software applications (“apps”) without implicating those two words together. So, it’s quite possible that a judge may hold Apple’s claimed mark to fail both for genericide and descriptiveness. Either way, it seems like a tough claim for Apple to defend.
Just about every major tech blog and news site is now carrying this story; but, I’ve yet to see the actual compliant. Once I find that I will post it back here.
3/22 update: Apple v. Amazon compliant added.
Yesterday, Verizon filed a notice of appeal in the DC Circuit Court of Appeals (filing @ Scrib’d), challenging the legality of the FCC’s December 2010 Report and Order on “Preserving the Free and Open Internet” (aka the “net neutrality lite” rules).
In case you’re feeling like you missed a beat somewhere — no, there have not been any district court case filings since the FCC adopted the December 2010 order. This appeal is the first filing in the case. As is noted in Verizon’s filing, the DC. circuit court of appeal has some original jurisdictional-like powers in some cases related to final orders of the FCC. According to 47 U.S.C. § 402, there are a few overlapping statutory authorities which this jurisdiction (apparently) relies on — though, please take my analysis with a grain of salt, since I am far from an expert in administrative jurisdiction and procedure.
First, there is § 402(a), which defers jurisdiction to 28 U.S.C. §§ 2342 and 2344, noting that “any aggrieved party” can file a notice of appeal to a circuit court within a certain time period and satisfy other limitations. An “aggrieved party” turns out to be a nuanced term of art which some courts have struggled with defining. Generally though, courts have held that an “aggrieved party” is one that participated in the agency proceedings that gave rise to the final order. However, there have been a few exceptions to that rule within particular circuits. Also important is the venue provision under this chapter (§ 2343) which states that venue can be the “judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit.” In other words, a petitioner appears to have options on venue location.
Second, § 402(b) states that “decisions and orders of the [FCC]” can be brought directly to the DC Circuit in one of several enumerated cases. This is the authority that Verizon uses in their appellate filing. In particular, Verizon points to 402(b)(5), claiming that jurisdiction arises because Verizon is a holder of licenses granted by the FCC, and, the authority the FCC used in adopting new “net neutrality rules” was the agency’s ability to modify licenses (Verizon cites pages 93-106 and 133-135 of the FCC order in support of this claim).
The last time the FCC appeared before the DC Circuit, it didn’t go too hot. In that case, which involved Comcast, the judges declared that the FCC did not have the appropriate Congressional authority to impose net neutrality regulations on broadband service providers like Comcast (who was interfering with bit torrent traffic). No doubt, that ruling directly contributed to the FCC’s framework in the newly minted “net neutrality” rule making from December. I suspect that the Comcast case (DC Cir opinion, April 2010) is the primary reason Verizon selected the D.C. Circuit as its venue of choice to hear the appeal in this case, since I’m sure it will still be fresh in the minds of the DC Circuit judges — if you get my meaning. On top of that, Verizon has selected the same attorney that Comcast used in their April 2010 case.
My best guess is that this is the first of several challenges to the new net neutrality rules that we’ll see in the coming weeks. I’m not sure what the DC Circuit will do on the jurisdictional question — while it does look a bit like venue shopping, I don’t know whether the DC Circuit will see it the same way or if the cases cited by Verizon are on all fours. Stay tuned, we’ll probably chat about this case on this weekend’s podcast.
Comments Off Posted in: Links on January 21, 2011
Today, the FCC announced their approval [CNET article] of the Comcast/NBC merger, after a 4 to 1 vote in favor of the merger. According to the announcement [via FCC.gov], the FCC only approved the merger after NBC/Comcast agreed to a number of restrictions, which will be enforced for a period of seven years following the merger.
The FCC’s 3-page announcement provides an overview of the conditions in bullet point form. Here’s a few interesting points (that I noted after a quick skim) which pertain to “Protecting the Development of Online Competition”:
- that Comcast/NBC provide “any affiliated content that Comcast makes available online” to its own subscribers at “fair market value and non-discriminatory prices and conditions” to customers of other online video service.
- that Comcast/NBC offers a broadband service at “reasonable prices and of sufficient bandwidth” so that customers do not need a cable television subscription through Comcast/NBC to view online videos and the like.
- that Comcast/NBC does not enter into agreements that unreasonably restrict online distribution of video programming
- that Comcast/NBC does not “disadvantage rival online video distribution through its broadband Internet access services and/or set-top boxes”
- that Comcast/NBC does not “unreasonably withhold programming from Hulu”
Read the announcement for the rest.
There is a lot of information to digest related to this deal and it’s still early in the process. So, I would expect to hear a lot more about it in the coming weeks. In the meantime, check out Commissioner Michael J. Copps dissenting statement on the vote. Copps was the only commissioner to vote against the combination.
Comcast’s Blog Post on the FCC announcement.
Jonathan Zittrain and Molly Sauter posted a great “Wikileaks FAQ” on JZ’s Future of the Internet blog. A portion of the FAQ was also published in MIT’s Technology Review earlier today. Both are interesting reads.
Also circulating in the tech news sphere is that Wikileaks’ payment company, Datacell, is planning on suing Visa and Mastercard after cutting off Wikileaks’ ability to make payments. Of course, this news comes after a number of US-based tech companies terminated or denied various services for Wikileaks after citing terms of service violations. More details available from Mike Masnick at TechDirt.
Comments Off Posted in: Links on December 9, 2010