Technically Legal

Former Illinois governor Rod Blagojevich has been forbidden from tweeting from his @governorrod account during his trial. He’s free to do whatever he wants once he leaves the courtroom for the day, but Judge Zagel, who is presiding over the criminal trial, said that there would be no tweeting during the day.

In the end this is probably well within the judge’s right to control the courtroom, but all it will do is get the former governor an extra couple of thousand followers on twitter, and several more stories.

Comments Off Posted in: Links on June 8, 2010

Twitter to Sell Trademarked Ad Terms, Senators Call to End Privacy Of Pre-Paid Phones, Apple v. GPL

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Twitter to Sell Trademarked Ad Terms

Twitter May Allow Competitors to Purchase Trademarks as Keywords for Sponsored Tweets

Senators Call to End Privacy of Pre-Paid Phones

Senators call for end to anonymous, prepaid cell phones

Apple v. GPL

GPL Enforcement in Apple’s App Store
More about the App Store GPL Enforcement

Comments Off Posted in: Podcast on May 31, 2010

Sorry for the repeats and the mistakes with this week’s podcast. This should be all fixed now.

Google WebM v. H.264, Twitter Subpoena, and MySpace Authentication

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Google WebM, Royalty Free, but Patent Suit Free?

Google’s WebM video format might not be so free after all, says MPEG-LA
The first in-depth technical analysis of VP8

PA Atty. Gen. Sends Twitter a Subpoena

Pennsylvania Attorney General Tries to Unmask Twitter Critics
Pennsylvania AG Dropping Twitter Subpoena

MySpace Authentication Evidence

Opinions

Comments Off Posted in: Podcast on May 25, 2010

Twitter’s Promoted Tweets program is still in the planning stages, but they haven’t ruled out selling the search term “Nike” to Reebok. Court after court have found that this isn’t trademark infringement, but Google gets sued regularly for selling trademarked terms to competitors. Twitter, if they go down this path, could expect a similar torrent of litigation.

Comments Off Posted in: Links on May 24, 2010

Activision Scuffle, Adobe Squares Off with Apple, Are Tweets Copyrightable

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Activision Scuffle

Activision: West, Zampella wanted to steal Infinity Ward
The Ides of Harsh

Apple v. Adobe

Adobe vs. Apple is going to get uglier

Are Tweets Copyrightable

You Cannot Copyright a Tweet
Are Tweets Copyright-Protected?
Copyright Protection Not Available for Names,
Titles, or Short Phrases

1 Comment Posted in: Podcast on April 19, 2010

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

A Federal Court has found that live tweeting courtroom events violates Rule 53 of the Federal Rules of Criminal Procedure, which prohibits simultaneous broadcast of federal criminal proceedings.

Essentially, the court said that a twitter stream is equivalent to a broadcast. This doesn’t say anything about civil cases, but it’s a fair bet that judges just don’t want this going on in the courtroom.

Update: Dave O’Brien pointed out a few things on the civil-proceeding side of this…

Live tweeting and blogging from either state or federal court is potentially covered under the local court rules in each jurisdiction–regardless of whether it is a civil or criminal case.  The usage of electronic devices is typically either prohibited or limited under these rules and is often left up to the discretion of the presiding Judge.

For instance, Local Rule 83(b) in the 8th Circuit notes:

“In the Northern District, computers, cell phones, and other portable communication devices are not permitted in courtrooms or their environs unless specifically authorized by an administrative order or other order of the court.  If a computer, cell phone, or other portable communication device is permitted in a courtroom or its environs by an administrative order or other order of the court, it must be disabled from making an audible sound while in the courtroom or its environs.”

So, even though Fed. R. Crim. P. 53 was found to prohibit tweeting from court in federal criminal proceedings, tweeting during civil proceedings is still subject to some level of judicial scrutiny.  There have been numerous instances since 2004 where journalists and bloggers have been permitted to cover both civil and criminal proceedings over a live blog or tweet stream in both federal and state courts.  Still, the concept has yet to gain mainstream acceptance.

Comments Off Posted in: Links on November 9, 2009

PublicResource and Law.gov, EMI v. Michael Robertson, and AutoAdmit case finally ends.

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PublicResource.Org and Law.Gov

PublicResource.org
Law.Gov Proposal
Law.Gov: America’s Operating System, Open Source

EMI v. Michael Roberston

Judge allows EMI to personally sue Robertson

Auto Admit

AutoAdmit Case Ends Not With a Bang, But With a Whimper

2 Comments Posted in: Podcast on October 26, 2009

Twitter Changes their Terms of Service, a new challenge to statutory damages, Glen Beck and online defamation.

You can download the podcast here. Please e-mail us with comments, suggestions, or requests at podcast@technicallylegal.org.

Twitter Changes their Terms of Service

The New TOS
The Older TOS
Twitter Says Your Tweets Belong To You

Challenge to Statutory Damages

Court rejects due process challenge to statutory damages award
The opinion

Glen Beck and Online Defamation

Can a mere domain name be defamation? Glenn Beck says yes
The allegedly defamatory website.

1 Comment Posted in: Podcast on September 14, 2009

This week Twitter was sued for patent infringement. The gist of the law suit is that the plaintiff, TechRadium Inc. owns three patents on a system to have a message from one author be sent to many people, in different forms (including e-mail, SMS, and in plain text).

The Complaint

You can read the complaint here. The first thing I noticed is that there is arguably a claim to have the lawsuit dismissed. Under two recent precedents, Iqbal and Twombly, the Supreme Court has heightened the requirement for properly bringing a lawsuit. It used to be sufficient for the plaintiff to state that it owned the patents, and that the defendant infringed the patents. Under the recent cases, the plaintiff may have to be more specific about what activities are infringing the patent and how, when, and by whom they are being infringed.

Now, some very high profile lawyers (including Judge Posner, whom we’ve mentioned before) question the reach of these decisions, so it’s by no means open and shut. Also, the Federal Circuit, the court that hears all patent appeals, said that Twombly doesn’t apply to patent cases. But the validity of that ruling is in questions after the Supreme Court extended the Twombly standard to other cases in Iqbal.

The First Patent

TechRadium sued for infringement of three patents.

The first patent, number 7,130,389 (The ’389 Patent) claims “[a] digital notification and response system.” This system has two parts: (1) “an administrator interface for preparing and transmitting a message to at least one user contact device” and (2) “a dynamic information database for storing the message.”

Where this claim will succeed or fail is in the dynamic information database. The patent defines that database as comprising of: (1) user contact data, with contact device information and priority order for contacting them, (2) user selected grouping information, with at least one group associated with each user contact device, and a priority order for contact each user contact device within a group, and (3) response data that indicates the individual user has gotten the message, and whether there was insufficient contact data to reach the consumer.

On the face of it, it seems like this patent applies to Twitter. However, without knowing how Twitter’s e-mail and SMS notifications are performed, it’s hard to know for sure. There is the additional problem that Twitter doesn’t quite seem like what they patented. This patent is for a one to many system, not a many to many system. That may not have much bearing in the end.

There are also a series of claims that are dependent on the claim above. However, for the sake of brevity we won’t go into them.

The Second Patent

The last patent (7,519,165, or the ’165 Patent) covers sending messages simultaneously to several user groups. Otherwise it is very similar to the previous patents. As such it doesn’t require much more analysis.

This patent also has the “response” limitation, where the reponse indicates that the device got the message. To the best of my knowledge twitter doesn’t implement this feature, and may not infringe.

Conclusions

It’s hard to come to any firm conclusion one way or the other. But on their face, the patents are neither slam dunks, nor clearly inapplicable. In addition to the fact that there are strong arguments that the patents don’t cover Twitter, there are a host of other defenses: patent invalidity, and inequitable conduct (lying or concealing information from the Patent Office) being two of the most common.

We will be watching this story closely.

2 Comments Posted in: Analysis on August 10, 2009