“Mobile Justice”? or Risky Vigilante Journalism?

camera+phone By Andrew H. Fuller

The American Civil Liberties Union’s (ACLU) Oregon chapter and four other state chapters offer a smartphone app called Mobile Justice, which allows users to easily record interactions with the police. In addition to recording and transmitting footage, the app has a “Witness” button that sends out a user’s location to alert other Mobile Justice users in the area when they have been approached by the police. Once other Mobile Justice users have a user’s location, they can find that user and record their interaction with the police.

While this sort of Sousveillance activity is not unheard of—indeed, there are other apps that provide smartphone users with similar features—there are some serious concerns about these apps. Perhaps the most obvious concern is that a police officer may think that a user pulling out their phone to record is reaching for a weapon. In response to this concern, the ACLU of Oregon’s website for Mobile Justice has a portion of the page warning users on how to safely use the app. Continue reading ““Mobile Justice”? or Risky Vigilante Journalism?”

Telecoms’ Latest Attempt to Kill Net Neutrality

unnamed By Brennen Johnson

Last month, the Federal Communications Commission published its new net neutrality rules in the Federal Register. In response to the new rules, there has been an onslaught of legal challenges brought by telecom companies to defeat the rules before they go into effect mid-June. Within several days of publication, seven companies filed suit against the FCC over the rules. Rather than attacking the substance of the rules outright, the companies are instead seeking to block procedural aspects of the rules. The companies challenge both the FCC’s reclassification of the internet as a “public utility” as well as the legal standards and mechanisms that would allow the FCC to enforce the new rules.

By classifying broadband internet as a public utility, the FCC gains broader regulatory powers over internet providers under Title II of the Communications Act of 1934. The reclassification addresses the FCC’s January 2014 failed attempt to enforce net neutrality. The FCC’s rules at that time were struck down in large part because broadband internet was not classified as a public utility, implying that the FCC could not regulate internet providers in the same broad manner as other utility providers. Speaking for the Court in that case, D.C. Circuit U.S. Court of Appeals Judge David Tatel wrote: “[g]iven that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such.” These broader powers significantly fortify the FCC’s position to protect its net neutrality rules from legal attack. However, if telecoms can successfully challenge the FCC’s reclassification of the internet as a public utility, then it seems a near certainty that the FCC’s current attempt at ensuring net neutrality will fail for the same reason it did in 2014.  Continue reading “Telecoms’ Latest Attempt to Kill Net Neutrality”

Faking it by Omission? The FTC Targets Undisclosed Compensation for Online Reviews

Illustration for fake website testimonials By Julie Liu

When we sift through reviews for products and services, one of our top considerations is whether the words genuinely come from the customer’s experience and not a company’s imagination. There is no way, however, to determine a reviewer’s honesty beyond relying upon whatever disclaimers he or she provides. We have previously discussed the state of the law on fake business reviews. But what about “real” reviews incentivized by the reward of a good deal? If there was any question on the matter, the Federal Trade Commission (FTC) has now provided a real-life example of how to abide by the rules.

In a recent chapter in the battle against unfair competition online, the FTC zeroed in on automobile shipment broker AmeriFreight for its persuasive approach to seeking customer feedback. The FTC alleged in its complaint that AmeriFreight offered $50 discounts to customers in exchange for writing reviews on an independent review website and advertised its services to consumers as being “top rated” based on those reviews. In addition to the discount, reviewers automatically became eligible for a $100 “Best Monthly Review Award,” further incentivizing customers to write reviews. The complaint indicated that the issue was not the encouragement of reviews; the complaint alleged that AmeriFreight portrayed the reviews as unbiased and failed to disclose that the reviewers were compensated—a violation of Section 5 of the FTC Act. The case concluded late last month with the FTC’s approval of a final consent order which requires AmeriFreight to clearly disclose any “material connection” it has with an endorser and to not misrepresent customer reviews or product ratings. Continue reading “Faking it by Omission? The FTC Targets Undisclosed Compensation for Online Reviews”

Again? VMWare Accused of Violating Linux Kernel’s GPL license

penguinBy Chike Eze

Can’t we all just get along? At its core, an open source software license encourages software developers to share software with their community (i.e., the community of software developers). A software author grants a software copyright license to the public in exchange for requesting or requiring recipients to share their modifications with the public. Some open source licenses are permissive (i.e., the recipient may or may not share modifications), while others are restrictive (i.e., the recipient must share modifications).

The General Public License version 2 (“GPLv2”), a restrictive open source license, requires recipients of GPLv2 licensed software to share any modifications they make to the software with the community. This licensing model allows highly creative and intelligent software developers from all over the world to collectively author great solutions for the community. Sounds great, right? Well, in the real world, not everybody believes in sharing!  Continue reading “Again? VMWare Accused of Violating Linux Kernel’s GPL license”

Have a Break, Have a KitKat!


By Yayi Ding

Many of us grew up indulging in the famous four-fingered chocolate wafer known as the KitKat. Such glorious memories! However, KitKat may no longer have exclusive rights to its four-fingered design, because of ongoing lawsuits with its competitors.

KitKat is a product of the Swiss Nestle Company, and is produced by the Hershey Company in the United States. Needless to say, Nestle has had disputes with a fair share of its competitors, including British candy-maker Cadbury. In 2012, Nestle opposed Cadbury’s trademark application for its “purple packaging,” arguing that the mark lacked any distinctive character. Nestle won that battle, which allowed Nestle and other confectioners to sell candy with the same purple-colored wrapping. Continue reading “Have a Break, Have a KitKat!”

CAFC Invigorates the Already Popular Inter Partes Review Proceedings


By Vijay Kumar

The United States Court of Appeals for the Federal Circuit (“CAFC”) recently handed down its first decision regarding an appeal from an inter partes review (“IPR”) at the Patent Trial and Appeal Board (“PTAB”). The majority decision resulted in a win on all fronts for the Patent and Trademark Office (“PTO”), as well as those parties challenging patents.

The case, Garmin International v. Cuozzo Speed Technologies, concerned an IPR that was requested the first day that IPRs were made available under the America Invents Act (“AIA”). In its petition, the patent’s challenger, Garmin, sought to invalidate four claims from Cuozzo’s patent no. 6,778,074 (“the ‘074 patent”) based on the obviousness of combining the prior art. The PTAB took up arguments on three of the claims and, following a trial, ruled in Garmin’s favor, deeming the claims obvious and thus unpatentable. The PTAB also denied Cuozzo’s motion to amend its claims. Cuozzo appealed both decisions to the CAFC. Continue reading “CAFC Invigorates the Already Popular Inter Partes Review Proceedings”

The Supreme Court May Widen its Stance on Standing in Spokeo, Inc. v. Robins


By Kelsey O’Neal

Admit it. You’ve Googled yourself at least once; though you probably did not do it just to stroke your ego. It’s important to know if your personal information is on the Internet so that you can control your message and personal brand. Social media, from LinkedIn to Facebook to Twitter, can truly define an individual. Your Facebook page or LinkedIn profile can offer an accurate or inaccurate impression of you. For one man, Thomas Robins, his online presence did not accurately reflect him. When Robins checked his online footprint on Spokeo.com, he discovered that the website had promulgated false information about him. The search engine stated that Robins, a single man, was married; it claimed he had received a degree that he had not gained; and it claimed he was worth more than his actual net worth. Robins believes that the false information made his job search more difficult.

Robins filed a class action suit against Spokeo.com under the 1970 Fair Credit Reporting Act (FCRA) alleging that the online database had published false personal information about him. Even though Spokeo.com published more positive information about him, Robins claims that the website caused him actual harm. The FCRA provides statutory damages from $100 – $1000, even if the plaintiff cannot show actual harm. As a general rule courts will only hear a case if the plaintiff alleges actual harm. In other words, a court must first ensure that the plaintiff has standing to allege an Article III injury-in-fact. But, The FCRA gives plaintiffs a cause of action without a showing actual harm. In choosing to hear Spokeo, the Supreme Court will decide if statutory damages provisions give plaintiffs Article III standing. In a reconsideration of the case, the District Court for the Central District of California ruled that Robins could not show that the false information was actually harmful, and so it dismissed his case. Robins appealed. The Ninth Circuit, siding with the Sixth Circuit in its decision in Beaudry v. TeleCheck Services, Inc and with the support of President Obama’s Administration, held that Robins did have standing to sue because Congress’ creation of a private cause of action created a statutory right, and the violation of a statutory right is a sufficient injury-in-fact to create standing. Spokeo.com appealed, and on April 27th, 2015, the Supreme Court decided that it should hear Robins’ case in its next session.  Continue reading “The Supreme Court May Widen its Stance on Standing in Spokeo, Inc. v. Robins”

Return the Empty Cartridges! — Federal Circuit to Hear Patent Exhaustion Case En Banc


By Don Wang

All you patent law nerds out there, grab your popcorn! The next blockbuster case you have been waiting for is about to hit the courts. On April 14, 2015, the Federal Circuit, on its own motion, ordered an en banc hearing of Lexmark International v. Impression Products, Inc.. In this patent infringement case, the Federal Circuit will decide whether it will overturn two of its own precedents on the patent exhaustion doctrine.

The plaintiff-patentee in this case is the printer manufacturer Lexmark, and the products-in-suit are Lexmark’s patent-protected toner cartridges. Lexmark offers the same cartridges through two separate programs: “Regular Program” cartridges at full price and “Return Program” cartridges at a discount. Customers of the Return Program must agree to use the cartridges only once and return them after use. Lexmark contractually imposes such restrictions on both the end-user consumers and the authorized resellers. In the current suit, Lexmark alleged that Impression Products, among other cartridges resellers, infringed its patents by acquiring, refilling, and selling refurbished cartridges under Lexmark’s Return Program. Continue reading “Return the Empty Cartridges! — Federal Circuit to Hear Patent Exhaustion Case En Banc”

Despite Statute of Limitations Issues, Cosby’s Accusers are Finding Ways to Litigate

gavelBy Joe Davison

In November 2014, allegations that Bill Cosby had sexually assaulted women several decades ago were widespread. Barbara Bowman wrote a first-person article in The Washington Post, claiming that Cosby had drugged and raped her in the mid-1980s. These allegations came years after Andrea Constand, another alleged victim, filed a civil suit against Mr. Cosby in 2005. In total, more than two dozen women have come forth claiming that they were sexually abused by Cosby. Bill Cosby’s fallout has been swift; Netflix pulled his comedy special, NBC dropped plans for a new Cosby sitcom, and TV Land pulled their reruns of The Cosby Show. No criminal charges have been brought against Cosby, though various investigations have been reopened.

Cosby’s actions since the allegations became public have lead to a variety of civil lawsuits, including one for defamation. In 2005, Tamara Green told the Today Show that Bill Cosby drugged and sexually assaulted her in the early 1970s. Cosby’s lawyers vehemently denied the allegations and allegedly approached a newspaper with “damaging information” about her. Tamara Green, and two others have since filed suit against Cosby for defamation.  In response, Cosby has claimed he has a right to make “privileged utterances of self defense.” Continue reading “Despite Statute of Limitations Issues, Cosby’s Accusers are Finding Ways to Litigate”

Wireless Trumps Television: FCC Incentive Auctions of the TV Spectrum


By Sam Hampton

Responding to novel technological needs and market forces, the FCC has developed a program of incentive auctions. The agency is working to allocate more spectrum to wireless broadband services. The 2010 National Broadband Plan introduced the incentive auction as a voluntary, market-driven system to efficiently allocate the spectrum in a new technological climate; the plan was given congressional authorization in 2012. The FCC issued a notice of proposed rulemaking in September 2012, detailing proposed procedures for these incentive auctions; rules were adopted in May 2014.

The first auction under the new rule regime was Auction 97, which concluded in late January 2015. The auctioned licenses were for the Advanced Wireless Services (AWS-3) spectrum, covering the 1700MHz and 2100MHz blocks. Auction 97 set revenue records; gross bids for the auction totaled nearly $44.9 billion on over 1600 licenses. Furthermore, just 31 bidders purchased these licenses, principally wireless carriers such as AT&T, which alone bid nearly $18.2 billion. The resulting revenue was more than double the previous auction of the 700MHz auction, which took place in 2008. Continue reading “Wireless Trumps Television: FCC Incentive Auctions of the TV Spectrum”