Technically Legal

Remember Mr. and Mrs. Boring?  The Pennsylvanian couple making headlines? … no?

In 2008, they found out that Google Street View allowed users to see into their property from a private drive next to their home.  In response, they sued Google for invasion of privacy and trespass.  This week, they’re back in the news again.

For the last two and half years, the case has crawled through the legal system.  In February 2009, the District Court for the Western District of Pennsylvania granted a 12(b)(6) motion to dismiss  in favor of Google (read the order here), for failure to state a claim.  The Boring’s invasion of privacy claims were rather dubious from the start.  A plaintiff generally needs to establish that the invasive act caused “mental shame, suffering, or humiliation” that a person of “ordinary sensibilities” would have suffered in the same instance.  Without this, a mere photograph of a residential structure, even when taken from private property, without any visible persons, is not likely to pass the threshold motion to dismiss stage of a lawsuit.

The Borings appealed the dismissal to the 3rd Circuit, which partially reversed the District Court’s ruling in February 2010.  However, the only claim reversed was the trespass claim.  Common law trespass is a tort that governs interference with rights associated with real property,  personal property, and certain personal rights.  The Borings’ best claim here is that the Google car with the mounted camera committed trespass to land when it snapped the photographs.  In fact, the photographs appear to offer strong evidence in support of this theory since it would have been difficult for the photographs to have been taken by the vehicle from any area other than the private drive.  As I noted last February at the Citizen Media Law Blog, trespass to land claims aren’t much of a risk to the longevity of Google Street View, so long as Google cars aren’t driving across everyone’s front yard.

Trespass to land is simple to understand; it only requires that a person voluntarily enter the property of another without consent.  But, just because the Borings might have a “good case” on a trespass to land theory, it doesn’t mean they are entitled to millions of dollars.  The trespass by the Google car didn’t appear to have caused any actual harm to the property, structures or items on the property, or persons.  Also, since the Borings couldn’t establish that they any suffered mental shame, suffering, and humiliation, the fact that the Google car may have been trespassing on private property while capturing images doesn’t revive the invasion of privacy claims.

In these cases, if you really feel strongly about the “principle of the matter” as the Borings seem to, it’s possible to be awarded “nominal damages,” which is akin to saying: “yes, you’re technically correct, but you haven’t suffered any harm worthy of compensation, so here’s a token for the violation of your right.”  Considering how expensive it is to obtain a lawyer, file a lawsuit, and pay the associated costs of the filing the suit, it’s not very surprising that you don’t often hear about nominal damages being awarded these days.

One last thing.  The award of $1 in this case was actually a “consent judgment” which is procedurally distinct from the damage awards issued by juries that you probably hear about on the news.  Consent judgments are usually negotiated settlements between the parties that are adopted by the judge and recorded as part of the case.  One purpose of doing this is to bind the parties to the judgment and invoke res judicata on the claims — which prevents the Borings from suing Google again with identical legal claims based on the same facts.

On that note … I should get back to scanning for more sidewalk baby births caught by Google cameras while I finish lunch.  Happy Friday.

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

On Tuesday, November 30, 2010, the Apple v. Psystar case was argued before the 9th Circuit.  Groklaw continued its excellent coverage with another post which includes a link to an audio recording (file hosted by 9th Circuit) of the arguments by Kiwi Camara (on behalf of Psystar) and George Riley (on behalf of Apple).

In case you’ve forgotten, Apple filed this suit against Psystar for copyright infringement and breach of contract (among several other claims) after Psystar began marketing hackintosh PCs with OS X pre-installed on the hardware in 2008.  Apple’s EULA expressly prohibits using OS X  on any non-Apple hardware.

This is one of 3 Psystar cases going on across the nation.  The case at hand was originally filed in the N.D. California District court, another case was filed in the S.D. Florida District court by Psystar against Apple, and Psystar also filed for bankruptcy in the U.S. Bankruptcy court in Florida.  Groklaw has neatly organized documents from all the cases here.

It will be some time before the 9th Circuit issues an opinion on the case.  It’s worth noting that the arguments before the 9th Circuit are limited only to whether the District Court was correct to reject Psystar’s affirmative defense of copyright misuse.   Psystar’s opening brief was filed under seal, but Apple’s answering brief, and a reply from Psystar are available to catch you up on some of the arguments.

Here’s an interesting factoid to chew on while listening to the recording.  According to info on their respective bio pages, Apple’s attorney graduated law school prior to the year Psystar’s attorney was born.  Yikes!

Comments Off Posted in: Links on December 2, 2010

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

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

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

According to Ars Technica, a letter signed by a large number of technology and IP law professors from institutions across the country was sent to the Obama Administration yesterday, October 28, 2010.

The letter raises substantive questions regarding provisions in the current draft proposal of the controversial Anti-counterfeiting Trade Agreement (or “ACTA”).  The letter also questions the Administration’s reasons for negotiating ACTA behind closed doors without public participation and treating ACTA as an Executive Agreement (signed only by the President) opposed to a Treaty (executed by President and ratified by 2/3 vote in the US Senate).

Comments Off Posted in: Links on October 29, 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

As we reported back in Episode 53, there’s been a three-way battle over the iconic Obama/Hope poster, with Shepard Fairey battling the Associated Press over whether his use of an AP photograph is fair use, and Manny Garcia battling the AP over whether they had rights to the photograph he took in the first place. However, today, Garcia dropped his suit, claiming a personal and professional toll.

The trial date for the Fairey/AP case has been set for March. (AP reports)

Comments Off Posted in: Links on August 23, 2010

According to Groklaw, Psystar has filed their appeal to the Ninth Circuit via mail under seal.

I have to admit, I’m starting to feel a bit lethargic when it comes to the progression of the Apple v. Psystar case(s).   If you’re lost, check out the full docket at Groklaw.  This all relates back to the Psystar’s 2008 sale of non-Apple-labeled computers, fully loaded with Apple’s OS X.  This was brazenly done in (apparent) violation of Apple’s End-User License Agreement (“EULA”) which prohibits third-party installations to non-Apple hardware.  Apple wasn’t as excited as the rest of the technology blogosphere and filed suit in the Northern District of California.

Psystar brought up a number of interesting legal arguments about the enforceability of EULAs, in spite of well established case law contrary to their theories, and took some heavy damage in the District Court.  The result was a partial settlement (for $2.7M), a permanent injunction, and a summary judgment granted in favor of Apple.

Now enters the appeal.  Since the opening brief is filed under seal, we don’t know what they are planning on arguing, and we won’t have any idea if the Ninth Circuit will even hear the case for some period of time.

Hat tips (and belated birthday wishes) go to Groklaw for their extensive coverage on all things Psystar.

Comments Off Posted in: Links on May 18, 2010

Reports are floating around today on Mercury News.com, CNET, and other sites that Judge Cretan, from the San Mateo County Superior court, has unsealed affidavits related to the issuance of the search warrant executed on Gizmodo Journalist, Jason Chen, in late April.   According to CNET’s read on the affidavits, Apple CEO, Steve Jobs, was (apparently) personally involved in efforts to the return of the (alleged) iPhone 4G.  Other interesting tidbits were also revealed through the newly released documents (check out the above-linked articles).

Questions still remain about the validity of the search warrant execution on Chen’s personal residence.  As of this post, no charges have been filed against Chen in relation to the investigation.

Comments Off Posted in: Links on May 14, 2010