Archive for September 2011

Let It “Burn”: R&B Artist Usher Sued for Copyright Infringement for #1 Hit Song

leave a comment

R&B hit artist Usher is currently the subject of a copyright infringement suit. Last year, songwriter Ernest Lee Straughter filed suit in the Central District of California alleging that Usher’s number one hit song “Burn,” released in July 2004, infringed on Straughter’s song “Reasons,” a song released under the name “No More Pain” in 1998 by R&B group Reel Tight.

Under current copyright law, a plaintiff prevails in an infringement suit only if he can show that: (1) the author of an allegedly infringing work “copied in fact,” which can be shown through evidence of a defendant’s access to the original work and/or through probative similarity of the two works; and (2) that defendant appropriated a sufficient amount of the protectable elements in the plaintiff’s work as to render the two works substantially similar.

Read the rest of this entry »

Written by

September 28th, 2011 at 8:00 am

Regulating Electronic Health Care Records

leave a comment

In a 2009 Berkeley Technology Law Journal paper, E-Health Hazards: Provider Liability and Electronic Health Record Systems, Sharona Hoffman and Andy Podgurski argued that potential liability arising from the widespread use of electronic health records (EHRs) could end up burdening healthcare systems in a broad-reaching way. Therefore, a set of formal regulations governing EHR use should be implemented by care providers prior to widespread roll out of the technology in the clinical setting.

The core issue the authors anticipated was that “[h]istorically, medical innovations, such as anesthetics and x-rays, have generated increased tort litigation as patients quickly came to expect better care while physicians struggled to perfect their use of challenging technologies,” and that the same phenomenon may occur with EHR systems.

Read the rest of this entry »

Cable Carriage and the Modern Marketplace of Ideas

leave a comment

Supreme Court Justice Oliver Wendell Holmes coined the term “marketplace of ideas” in his 1919 Abrams v. United States dissent.  He compared freedom of information to the economic idea of the “free market,” in which the quality of a product determines consumer demand, and consumer demand determines price.  Applying that logic to the freedom of expression, Holmes concluded that regulating speech is unnecessary, because consumers will be able to determine for themselves which ideas are well grounded and which are not.  “[T]he ultimate good desired is better reached by free trade in ideas . . . . That, at any rate, is the theory of our Constitution,” Holmes wrote.

It was John Milton who first articulated this concept in 1644, when he declared that censorship had a detrimental effect on society.  Members of Parliament had argued that licensing was necessary to stop false or heretical information from entering the public domain.  Milton countered that licensing hindered learning and limited society’s ability to distinguish fact from fiction.  It is preferable to allow heretical ideas into the marketplace, where society can evaluate them, than to risk censoring truthful information, Milton said.

Cable programmers and cable operators “engage in and transmit speech.”  One of the purposes of the 1992 Cable Act was to prevent cable operators from acting as modern-day censors.  Through the Cable Act, Congress sought to mitigate the harms that might flow from a cable operator’s “gatekeeper” or “bottleneck monopoly” status—that is, its ability to “control…most (if not all) of the television programming into the [cable] subscriber’s home” simply because it was the only programming provider in town.

Generally a cable company makes more money when it airs its own programming than when it purchases the rights to carry another company’s content.  But if a cable operator has a local bottleneck monopoly, then denying program carriage denies the programmer the opportunity to speak.   For that reason, federal law prohibits a cable operator from discriminating against unaffiliated programmers for financial reasons.

In December, the FCC and TCR Sports Broadcasting, d/b/a Mid-Atlantic Sports Network (“MASN”) will face off in the Fourth Circuit.  MASN challenges an FCC order upholding Time Warner Cable’s decision not to carry Baltimore Orioles games in North Carolina.  Time Warner maintains it chose not to carry the Orioles’ games on its least expensive tier in North Carolina, because the games were not of interest to a sufficient number of viewers in that area.  The FCC upheld Time Warner’s decision.  MASN sued.

I hate paying my cable bill each month, and it’s hard to imagine we’ve reached an era of truly effective competition in the multichannel video programming market.  Nevertheless, I lived in North Carolina for 24 years and rarely heard anyone talking about the Orioles.  Moreover, the latest statistics strongly suggest that satellite television is giving cable a run for its money.  According to March 2011 data from NTIA, Comcast still leads the country with 22.7 million subscribers, but satellite provider DirecTV is close on its heels with 19.4 million subscribers.  Dish Network is third with 14.2 million subscribers, and Verizon Fios and AT&T U-verse appear to be gaining market share.

Will the courts keep pace with these changes in the modern marketplace of ideas?  Stay tuned.


Written by

September 28th, 2011 at 8:00 am

Idiopathic Short Stature: The FDA and Its High-Stakes Conceptual Quagmires

leave a comment

Lionel Messi is perhaps the world’s most celebrated soccer player.  Despite standing only 5’6”, the Argentinian striker is strong, fast, and impossibly skilled.  However, as a child, doctors predicted he wouldn’t grow any taller than 4’7”.  Diagnosed at age 11 with a growth-hormone deficiency, his parents arranged for him to receive prohibitively expensive human growth hormone (HGH) treatments, which were financed largely by FC Barcelona, still his employer 13 years later.

HGH helped Messi overcome a hormone deficiency.  However, when administered before and during puberty, HGH can also increase the permanent height of children with normal hormone levels.  Although some health concerns have been raised, it appears that the risks of treating healthy children with HGH are low.  In a society where height is explicitly prized, and empirical evidence indicates all-but conclusively that a couple extra inches (especially for men) can help life proceed more swimmingly, what’s holding us back from a child-doping arms race?

The main legal bulwark is the line the FDA draws for marketers.  Eli Lilly markets its version of recombinant human growth hormone, or rHGH (Humatrope®), not only for treatment of hormone deficiencies but also for treatment of “idiopathic short stature.”  The definition of idiopathic short stature that Eli Lilly proposed, and the FDA accepted in 2003, is: children at least 2.25 standard deviations below the mean height for their age and sex.  That corresponds to the shortest 1.2% of children.  To many observers, this definition seems eminently reasonable given the limited contraindications.  The lay-public’s tendency to equate HGH with steroids is probably alarmist.

However, it is worth reflecting on the conceptual arbitrariness of the definition.  The FDA defended itself by noting that associations such as the American Association of Clinical Endocrinologists and the Growth Hormone Research Society have defined short stature as two standard deviations below the mean, which would encompass the lowest 2.3% rather than the lowest 1.2% of the spectrum.  However, those professional associations are not necessarily impartial experts.  Furthermore, independent researchers who have employed the more inclusive definition have generally not done so with HGH prescription in mind; their definitions are therefore scant authority.  Although the FDA weighs new drug indications using a reasonable three-pronged analysis based upon benefits, effectiveness, and safety, the conceptual difficulty of the FDA’s line-drawing exercise is apparent in its deliberation.  Since 2003, HGH usage has spiked not only among children with idiopathic short stature but throughout the population.  A difference of a few tenths of a standard deviation in the FDA’s approval profoundly affects the lives of millions of people—and arguably, the medical norms of the entire society.

Written by

September 21st, 2011 at 8:00 am

Unlikely Competitor Pushing to the Front of the Telecom Wars

leave a comment

The often-overlooked Sprint made two majors moves this week to take center stage in the “battle of the telecoms.”  Sprint began the week by filing a suit on behalf of “consumers and competition” against both AT&T and T-Mobile in response to the potential merger between the two wireless companies and the recent block by the Department of Justice’s civil antitrust lawsuit..

Sprint’s filing is hardly surprising since they petitioned the Federal Communications Commission to block the merger and had no interest in potential deal sweeteners. Sprint likens the potential AT&T and Verizon control of the market to “Twin Bells.”  The T-Mobile merger would give AT&T and Verizon “more than 78% of revenue and 88% of profits” and leave Sprint, the third and only remaining national carrier, in the dust. While Sprint’s push to block the merger may initially have seemed like an act of desperation, with the move of the Department of Justice to block the merger already in place, Sprint’s lawsuit can only add another level of concern for AT&T and T-Mobile as they are now forced to defend their proposed merger on multiple fronts.

However, AT&T may have more to worry about from Sprint than just a lawsuit. A rumor leaked on Friday that Sprint would not only soon be offering the coveted iPhone 5, but unlike AT&T and Verizon, Sprint would continue offering an unlimited data plan with the phone rather than moving to a tiered data option. Sprint’s possible activities concerning its own iPhone release may indicate that the AT&T/T-Mobile merger is actually good for innovation and competition as a few commentators have indicated. However, Sprint’s actions this week at least indicate the company is prepared to go down fighting in both the legal and market share arenas.

Written by

September 17th, 2011 at 11:00 pm

CLE for Patent Attorneys and Agents

leave a comment

Most states and territories in the United States require attorneys to meet continuing legal education (CLE) requirements in order to practice law before their courts.  Only Maryland, Connecticut, Massachusetts, South Dakota, Washington D.C., and Michigan do not require continuing education requirements.  Despite the fact that the United States Patent and Trademark Office (USPTO) requires lawyers and agents to pass the patent bar prior to practicing before the Office (in addition to the state bar attorneys must pass in order to practice within their respective state), the USPTO does not require CLEs.

The United States Patent and Trademark Office should require agents and attorneys who have passed the USPTO bar exam to attend continuing legal education in order to practice before the USPTO.  CLE requirements exist to keep lawyers up to date with a changing legal landscape and to improve the public’s perception of lawyers.  The USPTO should hold its practitioners to the same standard.

Continuing education in the practice of patent law benefits not only the practitioner, but also the client.  The up-to-date practitioner is able to provide clients with the best possible outcome with few procedural impediments along the way.  Simultaneously, the educated practitioner is also more likely to avoid liability that could result from failure to monitor recent legal reforms.

The need for continuing education with respect to patent bar registration is highlighted in the wake of the recently passed America Invents Act, which substantively changes patent law and practice.  As part of this legislation, the United States will now conform to the first-to-file system for awarding patents, as opposed to the previous first-to-invent system.  While this change may have made headlines in the news sufficient to inform most practitioners, other substantive, but less publicized changes have also occurred as a result of this legislation.  These changes include a broadened timeframe for pre-issuance submissions by third parties and the establishment of post-grant review proceedings.

Since continuing education is not currently required to maintain patent bar registration, there is no guarantee that practitioners will be equipped to handle these changes when they become effective.  Mandatory continuing education would aid in solving this problem.



Written by

September 17th, 2011 at 10:52 pm

Extraterritoriality Got Run Over by Grandma Got Run Over by a Reindeer

leave a comment

In its recent ruling in Shropshire v. Canning, the Northern District of California denied defendant Aubrey Canning’s motions to dismiss plaintiff Elmo Shropshire’s claims against him for copyright infringement.  Yes, that Elmo Shropshire—also known as Dr. Elmo, the singer of “Grandma Got Run Over by a Reindeer,” which was the subject of the good doctor’s litigation with Canning.  Canning, a citizen of Canada, had created a video synchronizing still images of reindeer to a recording of the Grandma song made by the Irish Rovers (with proper licensing from Shropshire, which also gave Shropshire an interest in that recording).  Canning then attempted to upload this video to YouTube’s Canadian website,; however, his video, which clearly constituted an infringement of Shropshire’s copyright in the US, went to a YouTube server in Mountainview, California.

The District Court stated that if Shropshire had never uploaded his video to YouTube, the creation of his video alone would not have violated US copyright law.  Even if Shropshire had given copies of the video to his Canadian co-workers at their office Christmas party, or if he had sold copies of the video on the streets of a town in north Ontario, Shropshire could not have stated a claim against Canning in a US federal court.  In its opinion, the District Court goes to some length in analyzing whether the extraterritorial aspect of the case should be understood as a jurisdictional issue or an issue of merits of the claim.  On the strength of the Supreme Court’s ruling in Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), the District Court ruled that limitations on the applicability of federal laws, such as the Copyright Act’s limitation to activities in the United States, are matters of fact, not jurisdiction.  Thus, federal courts always have jurisdiction to hear cases arising under normal federal law such as the Copyright Act, but if the claim doesn’t meet a factual requirement, such having occurred in the US, it will be dismissed.  Another way of thinking about this is that such requirements are matters for a 12(b)(6) motion, not a 12(b)(1) motion.

But it’s unclear whether the issue involved here really was extraterritorial.  The Court states that infringing activity that occurs at least in part within the US will constitute a basis for a claim under the Copyright Act.  The Court then cites two aspects of the case that indicate that infringing activity occurred within the US.  First, Canning caused a copy of his video to be uploaded onto a server that was physically within the US.  Second, once it was uploaded to YouTube’s server, Canning’s video could then be viewed by “potentially thousands” within the US.  It is no great stretch of the jurisdictional imagination to arrive at the conclusion that a federal court should be able to adjudicate a claim involving a person from a foreign country who directly violated US law by uploading a file onto a US server.  The user agreement Canning accepted when he uploaded his video actually stated that the server was in California.  But what if the server he uploaded his video to was in Canada, even though the video would still have been available for viewing in the US?  Can simply making a file accessible on the Internet that would violate US law if it were accessed in the US subject a person to full blown litigation in federal court?  Any open website on the Internet can be accessed by “potentially thousands” in the US — that’s the point of the Internet.  When combined with the Court’s reasoning on the jurisdiction matter, this would seem to indicate that not only do federal courts have jurisdiction to hear any claim arising from activity on the Internet, but they also cannot dismiss a claim involving an copyright infringement for reasons of extraterritoriality because the infringing work will always be accessible in the US.  Because the District Court also lists the physical location of the infringing work as a reason for not dismissing the claim, it is unclear whether there still are any extraterritorial limitations on copyright claims.  But after Arbaugh, courts may be moving in that direction.  If that is the case, US federal courts may become the go-to forum for copyright enforcement on the Internet.

Written by

September 17th, 2011 at 10:40 pm

Amazon’s New Kindle Will Be Competitive Against the iPad

leave a comment

Ever since the iPad’s release in April 2010, Apple’s competitors have been scrambling to release a credible competitor. When announcing the iPad 2, Apple’s then CEO Steve Jobs bragged that the original iPad achieved above 90% market share, and he was right. After such a successful launch of not only a new product, but a new product category, other consumer electronics manufacturers recognized that the space was ripe for competition. After all, one product cannot serve the needs of all consumers. In technology, one size rarely fits all.

So far, the competition has attempted to copy the iPad’s success by copying the iPad itself. Tablets like the Motorola Xoom and the RIM’s Blackberry PlayBook resembled the iPad’s minimalist design and launched with their own competing apps or app stores. Largely, these competing tablets flopped (as in 2% of inventory sold), barely touching the iPad’s prominent position. Many of these competitors were priced similarly to the iPad ($500-800), but retailers have been forced to reduce the prices of iPad competitors—in some cases, dramatically—simply to move them off the shelves. Most of these tablets have shipped with similar features, in some cases more than the iPad, yet none has stolen the crown; they’re not even close.

But if TechCrunch’s MG Siegler is to be believed, there will soon be a new Amazon Kindle, one with a full-color, 7″ capacitive touchscreen. It will run a version of Google’s Android operating system that has been entirely rejiggered for Amazon, but you won’t see any Google-branded apps on it. Why might it succeed where the others have failed? Because it will hook in so nicely with Amazon’s existing services and comes with a free subscription to Amazon Prime. Want to read e-books? It will have the Amazon’s Kindle bookstore. Want to access all your music on the go? It will have Amazon’s Cloud Player. Want to watch movies on your tablet? It will have Amazon’s Instant Video. This deep connection with Amazon’s cloud-based services is key. As anyone who regularly uses a tablet without a lot of disk space can tell you, transferring content onto the device (and managing it once it is loaded) can be a hassle, particularly for large files like videos.

Consider the price – $250. That’s half the price of the cheapest iPad, and the same price as Barnes & Noble’s color Nook e-reader. Now that Amazon sells more Kindle books than paper books, advancing its position in the tablet market with this new Kindle will be an important piece of its market strategy. You can bet this new Kindle will be heavily promoted on, one of the most heavily visited sites on the web, and the Kindle is already a wildly popular device and service.

For a newcomer to take on the iPad, it will need to sell its product along with a story, a reason for a typical consumer to choose it over an iPad. This new Kindle can offer compelling features the iPad lacks (streaming music, better e-bookstore), for half the price. Fighting against the wildly successful iPad, Amazon will have an uphill battle, but at least this new Kindle will start out with the full momentum of Amazon’s popular services. Although it is unlikely anything can slow down Apple in the short term, expect Amazon to set a new standard for second place.

Written by

September 10th, 2011 at 11:50 am

An Apple Engineer Walks into a Bar…

leave a comment

It’s been a big year for Apple. After passing Microsoft as the largest tech company by market capitalization last year, in August it leap-frogged Exxon to become the world’s largest company, period. Later in the month, Steve Jobs announced his retirement as CEO, and former COO Tim Cook took up the reins.

Buried beneath these mega-headlines is a continuing oddity: for the second time in as many generations of iPhones, an Apple engineer was reported to have lost an unreleased prototype of the popular smartphone at a bar.

In late July, an Apple engineer misplaced a device suspected to be a prototype of the iPhone 5 at a Mexican bar in San Francisco. Describing the prototype as “invaluable,” Apple enlisted the support of the San Francisco Police Department to help locate it. (Bizarrely, neither Apple nor the San Francisco Police Department has been willing to confirm that the missing item was an iPhone even though the SFPD’s press release entitled “iphone5.doc” makes that fairly obvious.) Apple claims to have traced a GPS signal to a private home in San Francisco’s Mission neighborhood. The SFPD escorted two of Apple’s in-house investigators to the home and waited outside as the Apple employees searched the residence. Scattered reports of what happened inside the home include claims that Apple investigators identified themselves as police officers and questioned their suspected family’s immigration status.

If this ordeal sounds familiar, that’s because a strikingly similar incident occurred last year, when an Apple engineer lost an iPhone 4 prototype in a bar in Redwood City. The key differences: that one was lost in a German beer garden rather than a Mexican bar, and the missing iPhone 4 was allegedly sold for $5,000 to Gawker Media’s tech blog, Gizmodo. Prototype in hand, Gizmodo editor Jason Chen scooped some of the iPhone 4’s newest features well in advance of Apple’s planned unveiling.

The responses to the two incidents highlight Apple’s notoriously low tolerance for leaks of their intellectual property. The lost iPhone 4 has resulted in criminal prosecution against those alleged to have lifted and sold the prototype. Discerning readers will have already noted that the investigation into the lost iPhone 5 has begun to smack of overkill; the story is one of corporate investigators entering private homes and questioning private individuals.

Leaked intellectual property is a persistent concern for all innovators, especially tech companies looking to prevent infringement and manage their products’ marketing and PR. But where traditional leaks (disgruntled employees, economic espionage, unsecured data) are not at play, intellectual property owners need to take care not to let unorthodox leak-plugging create more harm than good. Sending private investigators to conduct searches creates a whole host of problems that might prove damning in the prosecution of these cases. Though evidence obtained in private searches is admissible in court under the Burdeau rule (Burdeau v. McDowell, 256 U.S.465 (1921)), that rule becomes blurred when police participate in the search, as one could argue they did here. The allegation that the Apple investigators impersonated police officers is a serious one, which carries criminal implications (Cal. Penal Code § 146a (2011)), not to mention that it might demonstrate that they received permission to search under false pretenses. And the legal repercussions may yet be overshadowed by the steady stream of bad press Apple has received.

Written by

September 7th, 2011 at 3:38 pm

Posted in Legal/Tech News

Tagged with , ,

Hollywood Under Fire for a Movie About Soldiers who are Actually Under Fire


Hollywood’s Leading Lady Kathryn Bigelow has had an impressive few years. She became the first woman in Oscar history to win the Best Director award in 2010 for her film The Hurt Locker (2008). This feat was made even sweeter given the fact that she beat out the favored-to-win Avatar (2009), which was produced, directed, and written by her ex-husband, James Cameron (whose current wife at times looks a bit like one of his CGI-creatures, I should add). Then, Bigelow embarked on the filmmaking opportunity of a lifetime: creating a film focused on the Navy SEAL’s mission to find, capture, and kill Osama Bin Laden. Along with screenwriter Mark Boal (who also won an Oscar for Original Screenplay for The Hurt Locker), Bigelow has been developing the film since 2008.

However, after the heroic efforts by SEAL Team 6 resulted in the killing of Bin Laden on May 2nd, 2011, Bigelow and her (still) untitled production have come under fire by the House Homeland Security Committee, chaired by Peter King (R-NY). King recently called for an investigation into what he claims to be unprecedented access and continuing leaks of sensitive military operational information to Bigelow and her filmmaking team.

In his August 9th, 2011 letter to Defense Department Inspector General Gordon Heddell and CIA Inspector General David Buckley, King rebuked the Obama Administration and vented that the “Administration’s first duty in declassifying material is to provide full reporting to Congress and the American people in an effort to build public trust through transparency of government. In contrast, this alleged collaboration belies a desire of transparency in favor of a cinematographic view of history.” The White House denies these allegations of wrongdoing.

This is not the first time that a Hollywood film has taken legal heat of this sort. I am reminded of the infamous legal controversy surrounding the making of Alpha Dog (2006) and California Deputy DA Ron Zonen, who was taken off the case by a 2nd appellate district of California court ruling, which cited his multiple consultations with the filmmakers that often manifested in the sharing of confidential case files on the kidnapping and murder of Nicholas Markowitz in his personal attempt to raise publicity about the case in order to catch then-fugitive Jesse James Hollywood.

Nevertheless, the distinguishing characteristic in the present Hollywood-D.C showdown is, of course, its feuding political undertones. The film has a slotted release of October 12, 2012 and has been the subject of Republican criticism due to its supposedly purposeful proximity to the 2012 Presidential Elections as an alleged propaganda attempt to sway swing-voters towards voting for Obama. Whether or not Sony Pictures (the distributor of the film) is guilty of taking advantage of the American public by dazzling them with yet another resplendent movie-magic production in an effort to accrue Democratic votes, the more important question deals with King’s concerns. Did the White House compromise America’s national security interests in exchange for an enhanced cinematic portrayal of the covert SEAL Team 6 mission?

I love movies as much—or even more—than the average American, but above everything else our national security must remain the number one priority. It is not clear at this time if King’s request for a Pentagon Investigation will be fulfilled, but I personally have continued faith in Hollywood’s integrity and in the Obama Administration’s discretion in these matters. Perhaps, much like what occurred after the Alpha Dog movie release, this will beneficially contribute to a more wide-spread dissemination of such an important national event. In any case, the most realistic possibility ensuing from the drama is another nomination—and win—for Bigelow at the 2013 Academy Awards.