Digital Discourse / Court Cases

Facebook, Cyber Security and Small Businesses Dominate the Hill

November 30, 2011 By

Headlining the day, the FTC announced that Facebook agreed to settle the Commission’s charges that it deceived consumers. The proposed settlement requires Facebook to take several steps to enhance its privacy practices, including the terms for which it provides notice to consumers and provides for consent for information sharing, and it would require the Company to undergo privacy audits over the next two decades. The settlement underscores the need for broad privacy legislation, this is further confirmation that the FTC’s long-standing authority over unfair or deceptive trade practices is sufficient for providing thorough enforcement in the privacy arena.

Keeping the cybersecurity train moving forward in the House, and keeping consistent with the House Cybersecurity Task Force goal to address cyber on an individual basis within the committees of jurisdiction, there are two cyber developments scheduled for this week. First Intelligence Committee Chairman Mike Rogers (R-MI) and Ranking Member Dutch Ruppersberger (D-MD) will unveil new bipartisan cybersecurity legislation on Wednesday to provide the government “the authority to share classified cyber threat information on potential attacks with approved American companies.”

And on Thursday, the House Small Business Committee will hold a cyber hearing on protecting small businesses, where Phyllis Schneck, Vice President for McAfee, Inc., will be testifying on behalf of SIIA. The hearing will also include testimony from Task Force leader Rep. Mac Thornberry (R-TX), highlighting the recent recommendations of the House Task Force.

David LeDuc is Senior Director, Public Policy at SIIA. He focuses on e-commerce, privacy, cyber security, cloud computing, open standards, e-government and information policy.

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Filed Under: Court Cases, Digital Policy Roundup, Policy, Security, Software Tagged With: , ,

Copyright protected through ISPs, media, and law this week

July 13, 2011 By

Internet Providers to Help Thwart Online Piracy (New York Times)
Internet providers have reached a deal with major entertainment media companies that creates a uniform procedure for notifying customers about repeated instances of digital copyright infringement on their accounts. The system provides for a graduated response of six warnings that start at simple emails and escalate to slowed connections or a block from web surfing.

Judge Rules “Locker” Site is Not Direct Copyright Infringer (Ars Technica)
A federal judge in Miami has dismissed direct copyright infringement charges against online locker service Hotfile, but is allowing the case to proceed over the secondary liability charge to determine whether Hotfile is guilty of inducing its users to infringe copyrights.

Entertainment Companies Create New Website to Promote Anti-Piracy Effort (Los Angeles Times)
A coalition of major media companies and entertainment labor unions has launched a new website called Creative America to educate the public about content theft and promote anti-piracy legislation.

SAP to Argue for New Trial in Oracle Lawsuit (Computerworld)
SAP is seeking a new trial and a reduction of the $1.3 billion jury award it was ordered to pay.

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Filed Under: Copyright, Court Cases, Enforcement Actions, Internet Piracy, Patent

Patent Reform makes tracks, Cybersecurity and Privacy

June 28, 2011 By

The patent reform train continued moving down the tracks last week, as the House passed the America Invents Act (H.R. 1249) by a vote of 304-117. As passed, the bill differs in several respects from the Senate version that passed several months ago, including how it deals with fee diversion, tax strategy patents, prior user rights, prior art, and some other issues. Despite the differences and a heavy debate about the fee diversion issue, discussions are ongoing about a strategy to reconcile the two versions or perhaps seek Senate passage of the House bill. Regardless, the strong bipartisan support for the legislation in both chambers make for good odds on enactment of patent reform.

On the cybersecurity front, last week House Speaker John Boehner appointed a 12-member Republican task force to assess the state of cybersecurity, including the Administration’s proposal, and provide recommendations by October. Rep. Mac Thornberry (R-TX), who was appointed to lead on this issue earlier this year, will lead the task force, joined by Reps. Aderholt (R-AL), Chaffetz (R-UT), Coffman (R-CO), Goodlatte (R-VA), Hurt (R-VA), Latta (R-OH), Lungren (R-CA), McCaul (R-TX), Murphy (R-PA), Stivers (R-OH) and Terry (R-NE).

Also last week, the Supreme Court decided a case that looks to be a major victory for data publishers. In the case Sorrell vs. IMS Health the Court confirmed an appeals court decision that a Vermont law prohibiting the use of physician prescribing data for marketing purposes. While Justice Kennedy’s majority opinion expressed concerns about the “serious and unresolved” issues with respect to personal privacy, the ruling confirmed that the law unfairly imposed a first Amendment burden “based on the content of speech and the identity” of pharmaceutical manufacturing companies. In short, the ruling holds that such commercial speech is equally entitled to the protections of the First Amendment.

For SIIA policy updates including upcoming events, news and analysis, subscribe to SIIA’s weekly policy email newsletter, Digital Policy Roundup.

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Filed Under: Copyright, Court Cases, Digital Policy Roundup, Government, Patent, Policy Tagged With: , , , , , ,

ICANN and Top IP Headlines

June 22, 2011 By

As expected, Monday the Board of Directors of ICANN approved a proposal to add hundreds and possibly thousands of new generic top level domains (gTLDs) to the Internet. The proposal has been years in the making, and the 400-page Draft Applicant Guidebook that describes it has undergone seven major revisions. SIIA believes that the decision to approve the Guidebook represents a significant threat to copyright owners. Intellectual property owners will need to familiarize themselves quickly with the Rights Protection Mechanisms in the gTLD Applicant Guidebook, and expend even more resources and time in enforcing their rights against cybersquatters and infringers.

 

Top Headlines:

1.) Video Head-to-Head: Newspapers vs. PRs & Meltwater (paidContent.org)
In November, a UK High Court held that operators and customers of paid digital news monitor services should pay newspapers for crawling their stories. Months later, the parties gathered at a debate to discuss the future of content.

2.) John Steinbeck Heirs Lose Bid for Supreme Court to Hear Copyright Dispute (Fox News)
The Supreme Court denied further review of a legal dispute over publication rights to many of Steinbeck’s legendary works in a case brought by Steinbeck’s only surviving son and sole grandchild.

3.) Barclay, BofA Can’t Block Flyonthewall.com Reports on Stocks, Court Rules (Bloomberg)
A federal appeals court in a ruling Monday clarified the law governing the publication of hot news, overturning a lower court ruling that blocked Theflyonthewall.com from reporting the upgrades or downgrades of stocks for two hours or until half an hour after the opening of the NYSE.

4.) Oracle Seeking Billions in Damages From Google in Android Patent Infringement Suit (paidContent.org)
Oracle announced it is seeking billions in damages from Google in a suit over whether the Android operating system infringes patents Oracle bought from Sun Microsystems.

5.) Bloggers Mull Legal Action Against Righthaven (Wired)
Former Righthaven defendants who settled with them are now mulling their legal options after a judge ruled that Righthaven did not have legal standing to bring such lawsuits.

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Filed Under: Copyright, Court Cases, Enforcement Actions, Patent

DOC Calls on Congress to Pass Patent Reform, ICANN

May 31, 2011 By

Today, U.S. Commerce Secretary Gary Locke sent a letter to House Judiciary Committee Leaders urging quick enactment of patent reform legislation (H.R. 1249). In the letter, Secretary Locke reiterated his support for the Senate passed legislation (S. 23) and outlining the administrations views on certain key provisions of H.R. 1249 that are “important to our goals of an appropriately funded and well-functioning USPTO and successful passage of a balanced bill.” Key areas of the bill addressed by the Secretary include First Inventor to File, USPTO Fee Setting and Funding, Post-Grant Review Proceedings, Pre-issuance Submissions and Prior User Defense.

Also today, in Global-Tech v. SEB, the Supreme Court appeared to raise the bar for proving claims of induced patent infringement. The Court held (8-1) that inducement requires knowledge that the induced conduct itself infringes, and that “deliberate indifference” is not enough to satisfy that standard. Rather, the knowledge element can be met by a showing of “willful blindness.”

In other IP news, the PROTECT IP Act was passed unanimously by the House Judiciary Committee last week, making this the second piece of major IP legislation ripe for full House consideration. SIIA submitted a statement congratulating the committee and urging quick enactment of the legislation.

And on the ICANN front, following further consultation with its Government Advisory Committee (GAC) and written comments by stakeholders including SIIA, ICANN published a revised Applicant Guidebook on May 30. While the ICANN Board and GAC have one more meeting scheduled prior to the June 20 vote on the gTLD roll-out, it is believed that the May 30 version is unlikely to change materially prior to that scheduled vote. SIIA is reviewing the May 30 draft, and next week SIIA and other content organizations are tentatively scheduled to meet with U.S. government representatives to the GAC to discuss concerns. In light of the recent Congressional hearing, other avenues also are being considered.

For SIIA policy updates including upcoming events, news and analysis, subscribe to SIIA’s weekly policy email newsletter, Digital Policy Roundup.

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Filed Under: Court Cases, Legislation, Patent, Policy, Policy - Intellectual Property, Uncategorized

Software Industry Scores Major Victory in Vernor v. Autodesk Case: Ninth Circuit Clarifies that eBay Software Auctions Were Illegal

September 10, 2010 By

Today, the U.S. Court of Appeals for the Ninth Circuit handed down a major victory for the software and information industry on the issue of licensing and the “resale” of software on sites like eBay.

The issue in the Vernor v. Autodesk case addresses what it means to be an “owner of a copy” under the copyright law and the way courts distinguish between ownership and licenses. The court’s conclusion supports the software and information industries’ long tradition of licensing as the primary means for distributing its products and services to its customers.

In the case, Autodesk licensed its software to a third party.  The district court looked at the license and found that the transaction was a sale, not a license, primarily because the Autodesk license did not require the software to be returned and specified a lump sum payment, as opposed to royalty payments over time.

As a result, the district court concluded that Vernor was the “owner of a particular copy” and not a licensee and therefore he was lawfully allowed to sell his copy of the software under the copyright law’s first sale doctrine despite terms in the license prohibiting such transfer.  [Read more...]

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Filed Under: Anti-Piracy, Court Cases

Software Industry Awaits Supreme Court Ruling In Bilski Case

June 4, 2010 By

With approximately one month left in the current Supreme Court term, it is likely that the highly anticipated decision in Bilski v. Kappos (formerly Bilski v. Doll) will be issued soon.  This may occur as soon as Monday June 7, when the next round of opinions is scheduled to be released, and almost certainly will occur by the end of the month, when the Court recesses for the summer.

The decision may be one of the most important intellectual property law opinions in years, and could have far reaching ramifications for the software, IT, and financial services industries among others.  Indeed, more than forty companies and organizations filed amicus briefs to advance their respective positions – including a brief I filed on behalf of SIIA and the software industry. At issue in the case is perhaps the most fundamental of questions in IP law:  what things and activities are eligible to be patented.

The SIIA’s brief argued that software should remain eligible for patent protection, as it has for the past several decades.  The industry has grown, thrived, and matured during that time, and patent protection and eligibility has played a role in that success.  While problems with the patent system remain, those problems relate to other aspects of the law, and/or its application, such as weeding out purported inventions that are obvious in light of the prior art.  Problems also exist in the examination system itself, including the fact that the Patent & Trademark Office is widely believed to be underfunded, resulting in long delays in examination, and limited time and expertise that can be spent on any single application.  An ongoing concern of the patent law community is that Congress annually diverts a substantial portion of PTO user fees for unrelated purposes.  Patent Reform debate and proposed legislation have occupied Congress for the past several years. [Read more...]

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Filed Under: Anti-Piracy, Content, Court Cases, Education, Policy, Software Tagged With: , , , ,
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