By Craig Henson
On October 7, 2014, social media heavyweight Twitter filed a lawsuit against the federal government seeking the right to publicly disclose data related to secret government surveillance of its users. The company filed the complaint in the U.S. District Court for the Northern District of California, naming as defendants U.S. Attorney General Eric Holder, the Department of Justice, the FBI, and FBI director James Comey. In the complaint, Twitter alleged that the government impermissibly infringes on Twitter’s First Amendment rights by prohibiting Twitter from disclosing information about the number and type of surveillance requests and orders received, even if that number is zero.
Section 2709 of the Stored Communications Act (SCA) permits the FBI to issue national security letters (NSLs) that require a wire or electronic communication service provider to supply the government with subscriber information, toll billing records information, or electronic communication transactional records. The SCA prohibits NSL recipients from disclosing that the FBI either sought or obtained the requested information or records. Similarly, the Foreign Intelligence Surveillance Act (FISA) permits the government to obtain a court order authorizing real-time surveillance or disclosure of stored records from an electronic communication service provider. Numerous authorities prohibit a FISA order recipient from disclosing information about that order, including 50 U.S.C. § 1805 of FISA as well as court-imposed nondisclosure requirements in the FISA orders themselves. (more…)
Comic book characters are more famous now (and more valuable) than they have ever been. For example, Marvel Studio’s “Captain America: The Winter Soldier” grossed over $714 million worldwide. When Marvel launched its “Phase 3” platform of movies (extending “Marvel Universe” through 2020), the Internet exploded with social media craze. Just mentioning Marvel Studio’s slate of movies isn’t enough: this infographic shows every announced comic book movie for all major movie studios through 2020. Some of the comic characters in these billion-dollar movie ideas were originally created over seventy-five years ago and for an entirely different medium: comic strips. When these characters were first created, no one had any idea that they would one day gross billions of dollars, causing legal battles to rage for the copyrights of these characters.
One of the most important copyright legal battles has raged for nearly six decades over one of the most iconic characters of all time: Superman. Around 1938, the creators, Joseph Shuster and Jerry Siegel, sold their rights to the Superman storyline to DC Comics for $130.00 and additional, annual “work for hire” payments for supplying material to DC Comics. Once the character became widely popular, the creators tried to get their rights back. While the creators have since passed on, their estates have found a new means to attack the copyrights of the work: the 1976 Copyright Act’s termination provisions. (more…)
By Max Burke
This past Monday, President Obama formally addressed the ongoing dispute over whether the Internet should be “open” and “neutral.” In a written statement and an accompanying video, the President asked the Federal Communications Commission (FCC) to “ implement the strongest possible rules to protect net neutrality.”
In case you haven’t seen or read any technology-related news this past year, here’s a quick primer on what Neil Irwin of The New York Times described as “one of the most important policy disputes that will determine the future of the Internet.” Net neutrality, or open Internet, is the idea that Internet service providers (ISPs) “should treat all Internet traffic equally” and should not be able control what websites users can or can’t access. This is essentially the system we have been living under since the dawn of the Internet. But ISPs, including Comcast and Verizon, want to be able to manage some of that access by collecting fees from certain content providers (e.g. Netflix) “in exchange for special access to Internet users.” As Irwin noted, this type of paid prioritization is essentially the business model of cable television providers (many of whom are also ISPs). And like the “boom in content for cable television customers,” ISPs believe there would be a similar “explosion of creativity on the Internet” if they were able to prioritize websites and applications. (more…)
The ongoing saga of Robin Thicke, one marked by bizarre admissions, inconsistent statements, and general incredulity, continues. On October 30, Judge John Kronstadt, sitting in the Central District of California, denied Thicke’s motion for summary judgment in a highly publicized case against the heirs of Marvin Gaye.
We first reported on the suit nearly a year ago–-the Gaye family claims that two songs by Robin Thicke, “Blurred Lines” and “Love After War,” infringe on the copyrights of two Gaye compositions, “Got to Give It Up” and “After the Dance,” respectively. Both sides submitted their dueling musicologists, and the conclusion is this: the possibility of substantial similarity between the songs is high enough to go to trial. Given that direct evidence of copying is exceedingly rare in copyright cases, courts allow plaintiffs to show copyright infringement by (1) showing that the defendant had access to the work purportedly copied, and (2) that substantial similarity exists between the works at issue. The first point, access, wasn’t contested, but the dispute over the second, with Kronstadt’s ruling, warrants trial. (more…)
Apple Inc. recently filed a writ of certiorari with the Supreme Court requesting that the Court review the Federal Circuit’s ruling in Ancora Tech., Inc. v. Apple, Inc. in light of recent and pending decisions from the high court. The case underscores the need for clarification of the standard of review for patent construction in light of complex technology.
Apple’s petition, filed on October 20, presents the following issues: (1) Whether review of Ancora should wait until after the Court’s ruling in Teva Pharm. USA, Inc. v. Sandoz, Inc., which will determine whether review of patent claim construction should be done de novo, because the Federal Circuit applied de novo review in rejecting the district court’s claim construction of a key term in the case; and (2) Whether the Court should grant, vacate, and remand Ancora for reconsideration after the Court’s June 2, 2014 rejection of the Federal Circuit’s patent indefiniteness standard in Nautilus, Inc. v. Biosig Instruments, Inc.
Ancora holds a patent on an anti-piracy process that checks software and determines whether it is operating within the scope of a license. Unlicensed software is prevented from operating. Ancora filed suit against Apple, alleging that Apple’s iOS mobile operating system infringes on this patent. A key issue in the case is the scope of the term “program” within the patent claim. The district court held that the claim construction of the term “program” described “a set of instructions for software application that can be executed by a computer.” Applying this definition, the district court dismissed the claim on summary judgment. Ancora appealed and the Federal Circuit applied de novo review of the claim construction. It rejected the district court’s construction of “program” as limited to application programs and ruled that Apple’s iOS program violates Ancora’s anti-piracy patent. (more…)
By Talia Loucks
It all began when aerospace consultant, Gregory Nemitz, claimed he owned an asteroid. In 2003, Nemitz sent NASA an invoice, demanding $0.20 a year for storage of a NASA probe on his asteroid. When NASA refused to pay, Nemitz filed suit against the United States, alleging it had taken his property without just compensation. A federal district court dismissed Nemitz’s suit, ruling that he had failed to prove he had any property rights. The Ninth Circuit affirmed the district court’s dismissal. The Supreme Court has yet to rule on whether a general right to own property exists in space, but this case makes one certain: A property in space right cannot come from simply creating a website and claiming ownership.
Move ahead 13 years and it is no longer solely NASA and other sovereign nations’ space programs parking their spacecraft outside of the earth’s atmosphere. There is a growing space economy being developed through private companies. This new economy includes tourism, exploration and now asteroid mining.
Asteroid mining, if successful, could be extremely lucrative. Valuable minerals such as platinum, palladium and gold could be mined. One of the most valuable resources believed to be available for mining from asteroids, however, is water. Additionally, asteroids may hold all of the components for life and could be a window into the history of the universe while helping to continue to advance science. (more…)
A year ago, the Third Circuit in United States v. Katzin issued an opinion on GPS tracking, stating unequivocally and for the first time that a warrant is required before police can place a GPS tracking device on someone’s vehicle. Nine months ago, the Third Circuit agreed to rehear Katzin en banc. (We previously covered this case and discussed the uncertainty this rehearing created as to the warrant requirement.) About a month ago, the Third Circuit published its en banc decision. In contrast to the resounding endorsement of the warrant requirement by the panel, the en banc court focused on the good-faith exception to the exclusionary rule. The court ultimately allowed the GPS tracking data to be admitted at the trial even though it was obtained without a warrant.
The uncertainty as to whether a warrant is required stems from the Supreme Court’s decision in United States v. Jones. In Jones, the Supreme Court for the first time stated that placing a GPS tracker on a vehicle is a “search” within the meaning of the Fourth Amendment. The Court, however, did not state specifically whether a warrant would be required for such searches in the future, or, in the alternative, whether some lesser standard such as reasonable suspicion would suffice. (Check out our blog post following the Jones decision.) (more…)
FBI Created Fake Seattle Times News Story in Scheme to Implant Spyware on Bomb-Threat Suspect’s Computer
Should the FBI be permitted to impersonate the news media in order to nab criminals?
That is the question being raised after an American Civil Liberties Union analyst reviewed documents showing that the FBI created a fictitious online news story in 2007 under the guise of The Seattle Times. The FBI hoped that the story would entice a teen bomb-threat suspect to click on the link, and as a result implant spyware (known as CIPAV software) on his computer.
The tactic worked––the story appeared in the suspect’s MySpace feed, which lead to the arrest and conviction of a 15-year-old who had been sending bomb threats to Timberline High School in Lacey, Washington. However, The Seattle Times was unaware that the FBI created the counterfeit URL, or that it was using the Times’ brand to implant spyware on the suspect’s computer. (more…)
This month, the streaming television service provider Aereo suffered a second major legal defeat. The first came last spring, when the Supreme Court held that the live streaming of television content over the Internet, Aereo’s core business model, violated the Copyright Act. (We previously covered that case here and here.) Now a federal district court has granted the broadcasters relief in that case: a nationwide preliminary injunction against Aereo’s live streaming of content. Does this pair of decisions effectively spell the end of the company? Or can Aereo redefine its business model and live on?
Aero operated by establishing a system of small antennas that capture broadcast television. A subscriber to the company would pay for the use of such an antenna, which would transmit the signal over the Internet to a device for viewing. The content streamed by Aereo was only slightly delayed, allowing for the near simultaneous viewing of live television broadcasts. Aereo did not pay fees to the broadcasters, and from its inception was the object of their ire. Aereo was initially successful in court battles, but the company’s luck ran out at the Supreme Court. (more…)