Technically Legal

Google Buzz Class Action Lawsuit, Social Media and Burglary, and Searches of your P2P share folders.

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Google Buzz Class Action

Local class action complaint filed over Google Buzz

Social Media and Burglary

Your Rights Online: I Use Twitter, Please Rob Me
http://pleaserobme.com/

Search Warrants and Share Folders

Feds Can Search, Seize P2P Files Without Warrant

Comments Off Posted in: Podcast on February 22, 2010

Are file extensions trademarks, Google Street View suit reinstated, and Amazon pulls Macmillian books.

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Are file extensions trademarks?

File extensions cannot be trademarks

Street View Suit Reinstated

Google Street View: Appeals court revives Pa. couple’s lawsuit
The opinion

Amazon pulls Macmillan Books

Amazon Pulls Macmillan Books Over E-Book Price Disagreement
Amazon conceded to Macmillan hours after we finished recording.

Comments Off Posted in: Podcast on February 1, 2010

Google has come under fire from the estate of Philip K. Dick over the use of name Nexus. Dick wrote Do Androids Dream Electric Sheep, which was turned into the movie Blade Runner. The book and movie feature Nexus-6 model androids. Yesterday, Google released the Nexus One phone, based on the Android operating system.

The Dick estate has a tough case to make for either copyright or trademark infringement. The copyright case is hard to make lagely because it’s just one word at issue. The trademark case is difficult because the only time Nexus was used as a brand was in a book. Nexus was never used by Dick to brand an actual product in real life.

Comments Off Posted in: Links on January 6, 2010

A first decision in the Psystar case, Google Bing and Mark Cuban, and the Google Book Settlement.

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Psystar Decision

Apple Wins Like a Champ – Psystar is Toast — What? You’re Surprised?
The opinion.

Google, Bing and Mark Cuban

Google, Murdoch, Madoff

Google Books Settlement

Google Book Search Settlement Revised: No Reader Privacy Added
Revised Settlement

1 Comment Posted in: Podcast on November 23, 2009

Net Neutrality, ASCAP and BMI want money for iTunes 30-Second Previews, Google Demands Android Modder Take Down Software.

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Net Neutrality

FCC chairman formally proposes net neutrality rules
All Circuits Aren’t Busy

ASCAP and BMI Want Fees

Google Halts Andriod Developer

2 Comments Posted in: Podcast on September 29, 2009

Safe-harbors under the DMCA, limits on the Computer Fraud and Abuse Act, Outing Anonymous Posters in California, Google’s FCC Filing-Unredacted.

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Safe-Harbors under the DMCA

Veoh Gets Yet Another Terrific 512 Defense Win–UMG v. Veoh
UMG v. Veoh: Big Win for Online Video
Judge: Safe Harbor applies to Veoh; UMG lawsuit eviscerated
The Opinion

Limits on the Computer Fraud and Abuse Act

Ninth Circuit Holds Disloyal Computer Use Is Not A Crime
The Opinion

Outing Anonymous Posters in California

Splitting the Digital Baby: California Court Creates New Procedure for Uncovering Anonymous Commenters
The Opinion

Google’s FCC Filing-Unredacted

Google Releases Complete Google Voice App FCC Response

Comments Off Posted in: Podcast on September 21, 2009

Several websites (see here, here and here)  have recently commented on the Google patent search portal, which was granted a patent (D599,372) this last Tuesday.  The application had been pending since 2004 and claims ownership over the design elements of the search page.  As with most Google search portals, the Google Patents page has 28 words or less—total.  Aside from  minimalist design, the patent only lays claim to its iconic  query field along with the two buttons “Search” and “I’m Feeling Lucky” as well as the typical hyperlinked text on a Google page.  In fact, the design claimed is the 2004 Google Patent page, but it differs little from its current state today.  Also, the Google logo is specifically disclaimed from the design.

What is most notable about this patent is not the audacity of the Mountainview company to claim these very basic portions of their webpage.  It’s that the vast majority of patents that are issued today are “utility patents,” which claim inventive ownership to products, processes, machines, compositions of matter, and manufacture.  Instead, this is a design patent, not a utility patent.

Design patents differ significantly from their cousins in the patent world.  As noted above, the utility patent covers a range of inventions that are encompassed in Section 101 under the Patent Act.  A utility patent protects the functional features of an invention, including use of the invention and method of functionality.  Design patents can be found under Section 171 of the Act and are described as “any new, original, and ornamental design for an article of manufacture.”  The most significant difference is that a design patent will only protect the ornamental features of a design, not any of its functional aspects.  Note, however, that a single invention can be the subject of both separate design and utility patents.

Unlike utility patents—which can have several claims—a design patent has only one claim: the drawings.  The protection afford focuses on the “visual appearance as a whole” claimed within the design patent with emphasis on “the visual impression it creates.” See Elmer v. ICC Fabricating, Inc. 67 F.3d 1571, 1577 (Fed. Cir. 1995), Durling v. Spectrum Furniture Co., 191 F.3d 100, 104-05 (Fed. Cir. 1996).  If an owner of a design patent were to enforce her rights via an infringement lawsuit, the court generally applies two tests to compare the two designs: the ordinary observer test and the point of novelty test.  In order to succeed, a plaintiff bears the burden of showing that both tests are satisfied.

The Supreme Court has explained the novelty test as the following:  “[I]if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.”  Gorham v. White, 81 U.S. (14 Wall.) 511, 528 (1871).  The more modern point of novelty test requires that the “accused design appropriates the novelty which distinguishes the patented design from the prior art.”  See Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984).

Typically,  it is challenging to win design patent infringement cases because of the difficulty to meet the above tests.  The designs must be very similar to one another.  Hence, this is why people shouldn’t jump to the conclusion that search engines with similar interfaces are in immediate trouble just because the Google patent was issued this week.

Design patents do play an important role in the intellectual property world.  They pick up where copyright law might leave off.  Since copyright can be used to cover certain design features (any original expression fixed in a tangible medium) it would be a likely source of protection for elements on webpages.   However, copyright does not protect the “functional aspects” of a work.  Since certain elements on a webpage are arguably functional (think nearly any of the code or click feature design), there would be parts of a search engine interface that are not protected.  Design patents allow for the ornamental features of these functional designs to be protected.  So, maybe it’s not such a surprise, nor audacious, that Google opted to protect these elements by way of patent.

1 Comment Posted in: Commentary on September 4, 2009

Apple and the FCC, Cyber Harassment, and the Redbox Suit.

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Apple, AT&T, Google and the FCC

Apple Answers the FCC’s Questions
AT&Ts and Google’s Responses

Cyber Harassment

Woman charged with harassment over suggestive post.

Redbox v. The Movie Industry

Redbox sues Warner Home Video over DVD Rentals
Automated Retail LLC v. Universal Studios
August 17th Opinion

Comments Off Posted in: Podcast on August 26, 2009

Apple and the FCC, Student Arrested for Hacking XBOXs for Fun and Profit, Iran getting better at web filtering.

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Apple, AT&T, Google Voice and the FCC

FCC barks at Apple for silencing Google Voice
More of A Non-Denial Denia if You Ask Me
FCC to Scrutinize Exclusive Wireless Contracts
Ending Exclusive Handset Agreements

Student Arrested for Hacking XBOXs

OC man charged with modifying video game consoles
Student Arrested for Jailbreaking Game Consoles — Update
Indictment
DMCA–Anti-Circumvention Provision

Iran Getting Better At Web Filtering

Iran Getting Better at Filtering Web Traffic

Book and Blog Announcement

Moral Panics and the Copyright Wars (Blog)
Moral Panics and the Copyright Wars (Book) by Willian Patrhy

Comments Off Posted in: Podcast on August 10, 2009

Malware Blockers get protection under the CDA, Amazon kills an iPhone App, and Eric Schmidt and Apple

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Ad-Blockers Immune under 230

Amazon Kills an iPhone App

Amazon Killing Mobile Apps that Use It’s Data
Affiliate Program API Agreement

Schmidt, Chrome, Conflicts and Clayton

Google Plans PC Operating System
15 USC § 19, Clayton Anti-Trust Act
Mr. Schmidt, step down from that board

1 Comment Posted in: Podcast on July 13, 2009