Archive for January 2012

US v. Jones: Fourth Down, One Yard to Go . . . and the Court Decides to Punt

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The latest installment of the US v. Jones saga has just arrived.  In a decision released earlier today, the Supreme Court held that government installation and monitoring of a GPS device on a suspect’s vehicle constitutes a “search” under the Fourth Amendment. (For a recap on MTTLR's previous coverage of the case, see two earlier blog entries posted here and here). For those disinclined to navigate away, the Court decided whether the government can engage in prolonged monitoring of a suspect’s vehicle by installing and using a GPS device without a warrant. The lawyers for Antoine Jones argued that the government needs a warrant for such action because it constitutes a Fourth Amendment “search.” The government countered that a warrant is unnecessary because individuals do not have a “reasonable expectation of privacy” when driving vehicles on public roads. Therefore, using GPS to track a suspect in public places, even for prolonged periods of time, arguably does not constitute a Fourth Amendment “search.” Although the Court ultimately sided with Antoine Jones, a majority of the Justices based their decision on a much narrower and unexpected approach. Rather than addressing the government’s prolonged use of the GPS device, five Justices chose instead to resolve the case solely by analyzing its installation. Resurrecting a “common-law trespassory test” to determine whether a search occurred, the Court held that the government committed a search by trespassing upon Jones’ Jeep Grand Cherokee to install the tracking unit. An exciting victory for Antoine Jones and advocates pursuing heightened protection of possessory interests, the decision was far less eventful for those tracking Supreme Court treatment of Fourth Amendment privacy doctrine in relation to privacy-invading technologies. The Court opted to punt instead of attacking the seemingly more pressing issue of how to reconcile the technological advancement with Fourth Amendment protection of “reasonable expectations of privacy.” Unfortunately, with US v. Jones now at a rest, we’ll just have to wait and see what the next case brings.

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January 25th, 2012 at 1:38 pm

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The Battle Between Facebook and Timelines

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Back in September last year, Facebook was sued by Timelines.com for allegedly infringing the latter’s trademark right over the word “Timeline” in introducing the Facebook Timeline feature. Timelines.com is a website that allows users to record and share events, personal, public or historical. Timelines.com claimed that such infringement would eliminate its business due to consumer confusion. Today, the two companies laid out a schedule of due dates for preliminary legal proceedings, signaling the forthcoming trial or settlement in the near future. Following the filing of the suit, Facebook fought back by claiming that not only is Facebook not infringing on any trademark, but that the Timeline trademark owned by Timeline.com is invalid because it’s too generic. Facebook argued that “Timeline” is a commonly used work, and granting trademark rights to the use of such word is unreasonable. Timelines.com requested a temporary restraining order stopping Facebook from incorporating its Timeline feature. The court denied the motion partly because the trademark is “descriptive”, the lowest level of distinctiveness aside from “generic”, which warrants very little or no protection. Descriptive terms ordinarily are not protectable as trademarks under the Lanham Act.  They may, however, become valid marks by acquiring a secondary meaning in the minds of the consuming public. To succeed in maintaining the validity of the trademark, Timelines.com would have to demonstrate such secondary meaning.  However, it is highly unlikely that Timelines.com will be able to produce enough evidence to show that when consumers think of timelines on the internet, they think of Timelines.com. Although Timelines.com has significant number of monthly visits, for those millions of people out there who are not Timelines.com users, the word “Timeline” simply means timeline that is not associated with any particular commercial entity. Timelines.com is most certainly aware of the weakness of their claims, and is very likely to settle with Facebook prior to the trial.

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January 25th, 2012 at 1:35 pm

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Supreme Court Decides Golan v. Holder

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A law providing that millions of works created by foreign authors that had been in the public domain qualify for U.S. copyright protection was upheld on Saturday, January 18, 2012, when the Supreme Court decided Golan v. Holder (No.10-545).  The case involved the constitutionality of § 514 of the Uruguay Round Agreements Act (now codified in the U.S. Copyright Act as 17 U.S.C. § 104A), which was passed in 1994.  Section 514 gives copyright protection in the U.S. to a foreign author who is a citizen of any of the member countries of the Berne Convention for the Protection of Literary and Artistic Works.  The effect of § 514 is that it restores the works of authors that are protected by the copyright laws of their own country but have been in the public domain in the U.S. because: (1) the work was published at a time when the U.S. was not protecting works from the author’s country or (2) the author did not comply with a copyright formality required in the U.S.  Restored works will return to the public domain eventually—they are given copyright protection for the length of time that the work would have had protection had it not been placed in the public domain.  Works done by Picasso, Virginia Woolf, Alfred Hitchcock, C.S. Lewis, and Prokofiev are examples of works which have been restored from the public domain due to the effect of § 514. The petitioners in Golan were orchestra members and others who alleged that § 514 violated Article I, Section 8, clause 8 of the U.S. Constitution (also known as the Copyright Clause) by providing works which had previously been in the public domain with copyright protection.  The Copyright Clause states that Congress has the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  Speaking about § 514, the named petitioner in Golan, Lawrence Golan, reported to QuestionCopyright.Org that while Golan will not affect larger orchestras with budgets that enable them to purchase pieces, “it currently prevents many, many smaller orchestras and educational institutions from physically performing these pieces.  It’s not a question of well, they just have to pay more.  If they don’t have more they can’t play the piece.  So they’re simply not playing those pieces.” Justice Ginsburg wrote the majority opinion, in which Justices Scalia, Kennedy, Thomas, Sotomayor, and Chief Justice Roberts joined and held that § 514 does not violate the Copyright Clause.  The Court wrote that the “limited times” language from the Copyright Clause does not restrict Congress from taking works out of the public domain because the works gain copyright protection only for the period which they would have sustained had they not been placed in the public domain.  The Court also wrote that the Copyright Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause” and that the Copyright Clause does not only apply to newly created works, but also to works already existing.  Finally, the Court wrote that testimony heard by Congress suggested that § 514 would serve the goals of the Copyright Clause because it would “expand the foreign markets available to U.S. authors and invigorate protection against piracy of U.S. works abroad, thus benefitting copyright-intensive industries stateside and inducing greater investment in the creative process.”  Justice Breyer filed a dissenting opinion, in which Justice Alito joined, arguing that § 514 did not serve the purpose of the Copyright Clause to create incentives for authors to create new works.

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January 25th, 2012 at 1:34 pm

New Hampshire 4 Paul Had a Bunch of Hits, Chinese Feud Makes Paul Sick

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The campaign for Republican presidential candidate Ron Paul has sued the anonymous creators of a controversial video that was attributed to the campaign, claiming false designation of origin, false advertising, and defamation. The video, which has tallied over 300,000 hits, was posted by YouTube user NHLiberty4Paul prior to the recent New Hampshire primary.  It questions the "American values" of former GOP candidate Jon Huntsman by featuring clips of "China Jon" speaking Mandarin and walking with his Chinese daughter. Although professor Rebecca Tushnet characterizes the campaign's claims as "a bit suspect," Ron Paul may have already benefited from the lawsuit.  His campaign's strong response to the anti-Chinese video may diminish some voters' concerns about Paul's association with "racially charged" newsletters.  Paul may even get the opportunity to test the theory that Huntsman himself was behind the video. The Paul campaign's complaint can be viewed here.  For further reading, Billy Shakespeare wrote a whole buncha sonnets.

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January 25th, 2012 at 1:32 pm

Beijing Requires Real Name Registration for Micro-blog Users

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SINA WEIBO is the most widely used micro-blog in China, which has more than 300 million users by the end of 2011.  WEIBO is like the Chinese version of Twitter.  On December 16th, 2011, “Beijing Micro-blog Development Management Rules” were released by Beijing Municipal Government Information Office and Beijing Police Department, requiring WEIBO users to register with their real identities and micro-blogging service providers must verify their user identifications. This policy represents a continuing effort of government control over the online world in China.  By the end of 2011, China had more than 500 million web users. The rapid growth of the popularity of internet had greatly challenged the government’s control capacity and had put great pressure on it.  Using the internet for educational or business purposes is encouraged by the government, but using the internet to spread pornographic or subversive materials is not permitted. “The government is strengthening its control over microblogs after a bullet train crash in July 2011 that killed 40 people prompted an online outpouring of criticism of the official response.” Currently, Chinese users do not have access to Facebook and YouTube without using a VPN, and have restricted access to Google on concerns that those websites might contain information that is pornographic or subversive due to a less restrictive standard of information filtering. It is unclear how much this policy will hurt the micro-blogging business, especially SINA WEIBO.  SINA’s stock price dropped as much as 11% before closing the day up 5%, and SINA’s stock price is on an upward trend since then.  Despite the real name registration requirement, more and more micro bloggers are using WEIBO as their primary source of news.

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January 25th, 2012 at 1:30 pm

DOJ Reverses Stance on Legality of Online Poker?

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For online poker aficionados, April 15, 2011, the so-called “Black Friday” is a date that lives in infamy. For those who are unfamiliar with the event, on Black Friday the owners of the three largest poker sites in the United States (PokerStars, Absolute Poker, and Full Tilt Poker) were arrested and the sites were shut down due to allegations of money laundering and wire fraud used to circumvent U.S. gaming laws. The FBI used the provisions of the Unlawful Internet Gambling Enforcement Act (UIGEA) in order to charge these executives. Enacted in 2006, the UIGEA was enacted to prohibit institutions from accepting payments from any person engaged in the business of betting or wagering with a business in unlawful Internet gambling. Subject to a great deal of controversy, the UIGEA has been criticized by a number of Congressmen and a range of modifications have been suggested. A major point of controversy with the UIGEA is the question of whether the Act applies to online gambling in the form of internet poker. Undoubtedly, the executives of the sites closed on Black Friday felt that the Act could not cover internet poker and thus continued with their business as usual. Now, these executives may have an ally in the form of the United States Department of Justice. While not specifically addressing the UIGEA, the DOJ memorandum released on December 23, 2011 revealed its position that interstate transmissions of wire communications that do not relate to a “sporting event or contest” fall outside the reach of the Wire Act of 1961, another Act previously used to outlaw online poker. Ellen Whittemore, attorney for Nevada web poker applicant International Game Technology, said that the legal opinion “cracks open the door” for the interstate offering of poker. Because the DOJ opinion is so recent, its full effect is still unknown. Nonetheless, the opinion marks a dramatic shift that seems to be moving in the direction of online poker legality. Making the legalization more likely is the dismal state of the United States budget. In an era when increased focus is needed on addressing the growing debt, the country seems to be in need of additional revenue. Online poker could bring that revenue. Over 10 years, legal online gambling could generate $42 billion in tax revenue, according to the Congressional Committee on Taxation. Such a potential source of revenue may prove too large to be ignored and may further grease the wheels toward the return of online poker in the United States.

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January 25th, 2012 at 1:27 pm

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Fleeting Expletives, Partial Nudity, and the First Amendment: What approach will the Supreme Court take in FCC v. Fox Television Stations, Inc?

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This past Tuesday, the Supreme Court heard lively oral arguments in FCC v. Fox Television Stations, Inc. (No. 10-1293) addressing the constitutionality of the Federal Communications Commission’s (FCC) authority to regulate “indecency” on broadcast television.  Specifically, the Court heard Fifth Amendment Due Process arguments over the vagueness of the FCC’s particular indecency-enforcement regime as well as First Amendment arguments as to the constitutionality of the FCC’s general ability to regulate speech on broadcast media. Since 2001, the FCC has applied a two prong, “context-based” approach for determining indecency on broadcast networks. First, the FCC examines whether the material broadcast describes sexual or excretory organs or activities. If the broadcast includes such subject-material, the FCC then considers whether the broadcast is “patently offensive” as measured by contemporary community standards for the broadcast medium. Factors relevant for a “patently offensive” determination include “(i) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities, (ii) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities, and (iii) whether the material appears to pander, is used to titillate, or to have been presented for its shock value.” See Brief for Petitioners at 8-9, FCC v. Fox Television Stations, Inc, No. 10-1293 (U.S. argued Jan 10, 2012). Applying this approach, the FCC found three television broadcasts in violation of its indecency policy. Id. at 10-16. The first two broadcasts dealt with fleeting expletives while the third pertained to partial nudity.  Fox aired the fleeting expletives during its annual Billboard Music Awards broadcast. In 2002, Cher received an "Artist Achievement Award" and declared “f*** em” in reference to her critics during her acceptance speech.  One year later, Nicole Ritchie and Paris Hilton, hosts of the Billboard Music Awards, engaged in live dialogue about their Fox show “The Simple Life.” During this conversation, Ms. Ritchie commented “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.” ABC Inc. later aired the partial nudity scene during its 2008 broadcast of NYPD Blue: Nude Awakening. The opening scene involved the showing of a woman’s buttocks for seven seconds from various viewpoints including that of a young boy.  The television networks aired all three of the broadcasts before 10pm. (Note: The FCC does not regulate network television for indecency from the time period of 10pm till 6am. The FCC also does not regulate cable television stations.) Although the Supreme Court previously recognized the FCC’s authority to censor indecency in both broadcast television and radio, see FCC v. Pacifica Foundation, 438 U.S. 726 (1978),  network television studios mounted a joint offensive directly challenging the court’s earlier decision. Notable Supreme Court litigators Carter Phillips and Seth Waxman led the charge during the oral arguments Tuesday as representatives for Fox and ABC respectively. (The Supreme Court consolidated Fox and ABC’s separate actions against the FCC.) Solicitor General Donald B. Verrilli represented the government. Mr. Phillips and Mr. Waxman raised two main arguments including: (1) that under the First Amendment the FCC lacks any authority to regulate indecency on broadcast television as the factual underpinnings of Pacifica no longer exist, and alternatively (2) that the FCC’s “context-based,” indecency enforcement regime is facially invalid under the Fifth Amendment because of unconstitutional vagueness. As much as one can glean from oral arguments, it appears that the majority of Justices will most likely avoid taking the network stations’ first recommended approach of overruling Pacifica and eliminating the FCC’s authority to regulate “indecency.” Whereas Justices Kagan, Alito, and Kennedy provided slight hints about their inclinations, four of the other Justices appeared to give strong impressions on what issues they will tackle in their upcoming opinion. Justice Ginsburg, for example,  highlighted the vagueness approach from the beginning as she noted to Solicitor General Verrilli that "“from the briefs and what the FCC has been doing [she took it] that the major objection is that one cannot tell what’s indecent and what isn’t” and reiterating that “that is the major objection.” Justice Breyer seemed similarly more receptive to unconstitutional vagueness as opposed to the nuclear option of completely eliminating FCC regulation. Stating that removing FCC authority would be “very, very broad,” he pushed Mr. Phillips to acknowledge that “it’s absolutely clear . . . that if this Court wants to say we decided the outer limits of the First Amendment in Pacifica . . . the Court can clearly hold that way.” Justice Scalia further suggested that removing FCC regulation would probably not change much as “[television networks] have their [own] guidelines that generally prohibit [nudity].” Moreover, he reflected on the symbolic value of imposing decency standards on broadcast media. “[J]ust as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts,” “the government is entitled to insist upon a certain modicum of decency [on public airwaves].” Finally, as Adam Liptak reported for the NY Times, Chief Justice Roberts, the only member of the court currently with young children, appeared to make a Freudian slip when he commented that “[a]ll we are asking for, what the government is asking for, is a few channels where you can say I’m not going to - - - they are not going to hear the S word, the F word. They are not going to see nudity.” Although a noted defender of First Amendment rights, Justice Roberts here did not give any impression that he would vote for dismantling the FCC’s enforcement authority. With the Court now in final deliberations, it will certainly be interesting to see what positions the Justices ultimately take regarding expletives, nudity , and the FCC’s role in broadcast media. Until then, please see below for more resources on this subject. Relevant Sources: Cornell’s Legal Information Institute provides a detailed, yet succinct summary of the relevant history, facts, and issues of the case.  For a one-stop shop of the amicus curiae and parties’ briefs, see the American Bar Association's Supreme Court Preview page.  The Second Circuit’s opinions and orders for Fox Television and ABC can be retrieved by clicking on the embedded links.  (The Second Circuit’s oral arguments in Fox Television Stations are also available on YouTube). Stay Tuned!

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January 25th, 2012 at 1:24 pm

When in Doubt, Force Someone Else to do it: A Quick Look at Spain’s New Sinde Law.

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While the Stop Online Piracy Act (SOPA) lumbers its way through the American legislature, a remarkably similar act has found its way into legitimate law on the other side of the pond. Just in case no little chickens have been by to tell you that the internet's sky-high potential for the free expression of ideas is about to come crashing down, SOPA is an anti-internet piracy bill. Introduced in late October of last year, the bill would allow the US Department of Justice (DOJ) and copyright holders to seek injunctions against sites containing allegedly infringing material. As law, the bill would empower courts to halt services essential to website survival. Infringing sites could be cut off from advertising payoffs, links on search engines, and internet service providers could even be ordered block users from accessing the site. Familiar internet goliaths such as Google, YouTube, Twitter, and others are crying out that passing the SOPA will destroy the internet as we know it. Pretty soon there will be solid evidence of whether or not these claims hold water. Spain recently passed the Sinde law which is, while not an exact replica, essentially a Spanish SOPA. What makes the Sinde law interesting, however, is not just its similarity to the SOPA, it's also that America appears to have bullied Spain into passing the law. According to Spanish newspaper El Pais (you'll need a translator if you don't speak the native tongue - or you can just read The Guardian's account), a letter from US Ambassador Alan Solomont to the Spanish Prime Minister indicated that the US would frown upon a Spanish failure to pass the piracy law. Reminding Spain of its status on the Special 301 Report - a list of countries deemed to have sub-par internet piracy protections - the ambassador warned that a "downgrade" from there could be disastrous. Joining that group, in the ambassador's words, of "the worst violators of global intellectual property rights" would subject Spain to "retaliation actions" including disintegration of tariff agreements and a WTO referral. Regardless of any nefarious behind-the-scenes letters, it will be interesting to see how the Sinde Law changes the face of the internet in Spain. Given the speed at which the American Congress moves, we might get to see some of the long-term effects of SOPA-like censorship before we have to worry about the any sky shattering legislation passing stateside.

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January 25th, 2012 at 1:21 pm

Not Just China and India: ITU Reports Growing Access to Telecom in Developing World

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The International Telecommunications Union (ITU) has released a snapshot of worldwide access to telecommunications in 2011.  A full third of the global population now has internet access, up from only eighteen percent five years ago.  Furthermore, the developing world now houses the majority of internet users, with broadband access increasing as well.  More remarkably, a majority of developing world internet users now reside outside of India and China. This growth in access has profound consequences.  Much of the international focus on internet piracy and intellectual property issues has centered on countries like China and India.  While these states remain important players in piracy, the growth in other developing country access multiplies opportunities for internet piracy. While Congress debates SOPA, and while country specific efforts in India and China attempt to limit internet piracy, the global proliferation of internet access at broadband speeds may necessitate a multilateral approach to combat internet piracy.  Whether or not the international community can reach consensus on a unified approach to internet piracy, however, remains to be seen.

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January 11th, 2012 at 12:33 pm

When does a website give jurisdiction?

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A Massachusetts state court recently held that when a company has a website which directs consumers to in-state retailers that sell the company's products, it is sufficient for the court to take personal jurisdiction. In this specific case, the defendant, Salomon S.A., is a French company that sells ski products. Although Salomon has not visited Massachusetts to market, promote, or solicit sales of its products, the company does maintain a website which allows the user to search for nearby retailers. The court held that by providing this feature, the website is no longer a passive instrument that only presents information about the products, and instead is explicitly soliciting business from Massachusetts residents. It might be difficult understand how providing information on where to purchase a product crosses the line from being a passive information provider to an active solicitor. After all, information on where to purchase is still just information. What is enlightening about this decision is the fact that Salomon's website lists 56 retailers in the state that sell the company's products. However, this seems to be more of a statement on the actions of the company rather than the content of the website. The fact that the company's products are sold at more than 50 different retailers in the state would make it difficult for any judge to rule that the court has no personal jurisdiction over the company. Thus, when analyzing whether a website is sufficient to provide personal jurisdiction, it is important to remember that the website itself is just another tool at the company's disposal, and it is the actions of the company in the forum state that is the central issue.

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January 11th, 2012 at 12:31 pm

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