Archive for April 2012

US v. Jones and Technology’s Displacement of Values

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Judge Frank Easterbrook and Professor Lawrence Lessig had a famous exchange in the late 1990s regarding cyberspace law.  Easterbrook argued that scholars and judges ought not waste energy developing a body of law specific to cyberspace.  Such law would be as parochial and rapidly obsolete as a “law of the horse,” or a body of law governing behavior on horseback.  The phrase is borrowed from Carl Llewellyn, who used it illustrate his reasons for making the UCC’s contract rules generalizable, rather than specific to particular contexts.  Easterbrook opined that such technology-specific law would not “illuminate the entire law.”

Lessig responded by arguing that values are imbedded in technology itself.  Technological changes can displace values currently expressed by the law, forcing government to choose whether to accept the displacements or use law to reinforce existing values.  In regulating new technology, we must decide whether the technology displaces values so important that “law might respond to reclaim the values displaced.”  Law directed at particular technological areas does in fact “illuminate the entire law,” because it responds to unique technological challenges to our values.

It is worth revisiting Easterbrook and Lessig’s exchange in light of the Supreme Court’s recent ruling on US v. Jones.  (For MTTLR Blog’s previous coverage on US v. Jones, see herehere and here.)  The Court seemed wrong-footed by precisely the phenomenon that Lessig identified: technology had displaced the values in existing law.  The “reasonable expectation of privacy” test, from US v. Katz (1967), has lost its clarity because technological developments have altered those expectations.  Justice Alito competently articulates this point in his concurrence.  He notes that historically, the most important privacy protections have been practical rather than legal.

Extrapolating from Alito’s position, it seems implausible that the “reasonable expectation” test protects privacy interests exclusively because they are reasonably expected.  More likely, it indicates that Fourth Amendment protects privacy interests roughly coextensive with those that a reasonable person expected in 1967.  The Katz court could not have meant that Fourth Amendment protections erode with the progress of monitoring technologies.

Alito is right then, to suggest that the courts need not dumbly wait for legislation.  Courts can respond proactively to new technologies because the law is an expression of values.  When technology challenges or, in Lessig’s words, “displaces” those values, the courts must be ready to use existing law to push back.  The Court thus need not have punted to avoid interpreting the reasonable privacy expectation.

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April 30th, 2012 at 9:14 am

Posted in Commentary

With New USPTO Fees, More is Less?

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Imbued with its new fee setting authority after the America Invents Act (AIA), the USPTO has, unsurprisingly, decided to raise its fees.  Taking a page out of the USPS playbook, the PTO is not promising any better or faster service with its increased fees.   In fact, a recent blog post from USPTO Director David Kappos seems to threaten slowing reduction of the patent backlog (currently around 650,000) for those would-be fee complainers.

The PTO has done a commendable job in increasing transparency surrounding its practices, implementing new procedures to reduce pendency, and devoting resources to reducing the backlog of unexamined applications.  In addition, under the AIA patent applicants have the choice of using “Track One,” which for an increased fee, greatly increases the speed of examination and so far, upped the allowance rates.  Yet all of these improvements Kappos mentions were achieved under the current fee schedule.  So what will the more expensive “normal” track applications get, besides a back seat on examiners’ dockets?

Kappos argues that the proposed fee increases are simply the normal course of business, and refuses to speculate on future efficiency gains.  Understandably, the PTO wants to protect itself after bouts with fee diversion, and its strategic vision should hopefully result in efficiency improvements that may be priced in when they materialize.  Still, some critics look at the proposed increases, including a 47% increase for a large entity utility application and a whopping 123% increase for design applications, and conclude the proposed changes threaten to undermine the goals of the AIA.

Are the proposed fees simply a long overdue adjustment needed to improve examination quality and reduce the backlog, or will they price out innovation?  It seems hard to believe anyone in favor of the enacted version of the AIA would expect the PTO to lower fees upon a grant of addition authority.  Thus, perhaps the enhanced menu of options including Track One, micro entity status, and other changes will push innovation forward despite an increased fee schedule.

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April 27th, 2012 at 9:08 am

Posted in Commentary

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“Hot News” Surviving but Struggling… and maybe Unconstitutional

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The advent of the internet has accelerated the evolution of business models by creating the possibility for countless novel companies with low start-up costs.  One need only look at the fate of newspapers across the country and the pains of the music industry to observe the waning of many formerly successful ways of going about business.  Meanwhile, courts have struggled to balance the interests of those driving progress and those giants, arguably dying but holding significant amounts of capital and threatening each to create their own dent in the economy.

Recently, the Second Circuit decided a case determining a plaintiff’s rights extended beyond copyright protection, granted by the 1976 Copyright Act, and implicating the First Amendment of the U.S. Constitution.  This court has barely kept alive the “hot news” misappropriation claim.  This claim amounts roughly to the use of the product of the plaintiff’s efforts before the plaintiff is able to capitalize on it.  Analysis of this claim has developed to strictly require certain factors in order for federal copyright law not to preempt this state law claim.

It was just the late 90s when the Second Circuit identified the existence of this claim since the 1976 Copyright Act as well as Erie Railroad Co. v. Tompkins, which had abolished federal common law.  Regardless, the court in NBA v. Motorola attempted to strike a fair balance in a copyright case by finding that, even though a copyright had not been infringed upon, a plaintiff may still have claim based on the misappropriation of “hot news.” Originating from the classic property case International News Service v. Associate Press, this claim barely survives even though INS v. AP is actually no longer good law because of the U.S. Supreme Court decision in Erie.

Now, 15 years later, the confusion only continues.  The Court in NBA had created a couple possible tests, which a number of district courts have attempted to apply; a case in the last year from the same court, however, appears to dismiss the tests articulated in NBA as dicta.  Instead, the court in this case, Barclays v., focuses only on the single factor that had the basis for the NBA holding.  Like NBA, the court in Barclays found that the “hot news” claim still existed but had been preempted because this same factor was missing.  According to a strict legal interpretation of the word, the defendant was not “free-riding” on plaintiff’s work.

Although courts continually find for the defendant in these cases, the problem with preserving this claim is that these courts are also preserving a menace to innovators without defining a coherent method for identifying a “hot news” misappropriation of property.  The claim simply creates uncertainty for defendants not in violation of copyright laws and allows potential plaintiffs to threaten with litigation a company that is simply reporting facts gathered.  The claim helps to keep large companies from having to change and improve.  What is more, courts have avoided dealing the potential First Amendment issue.  Restricting any parties from reporting news may not only prevent their business from operating but also be an impediment to free speech.

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April 26th, 2012 at 9:02 am

Stream of Digital Evidence Leads to Conviction

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The death of Tyler Clementi in 2010 stocked the country as it added another example of bullying of LGBT teenagers ending in suicide. Last Friday, Clementi’s roommate, Dharun Ravi, was found guilty of invasion of privacy, bias intimidation, evidence tampering and witness tampering. One of the major reasons for the guilty verdict, according to the jurors, was the long stream of digital evidence.

Twitter, Facebook, text messaging and IMs have all become a staple of the day-to-day lives of American youth. Now, they are also becoming a staple of prosecutorial evidence. In this case, online activity even went so far as to depict the state of mind of the victim, Clementi, even though he could not speak for himself at the trial, something that was critical to a conviction for bias intimidation. New York Times reporters David Halbfinger and Beth Kormanik stated in their article, Jurors Say Digital Evidence Was Crucial, “An important component of the bias intimidation chargers was whether Mr. Clementi felt bullied. Jurors said he left ample evidence that he did: he complained to his resident assistant, he went online to request a room change, he saved screen shots of Mr. Ravi’s more offensive online posts, and he viewed his roommate’s Twitter feed 38 times in the two days before he killed himself by jumping off the George Washington Bridge.”

According to Halbfinger and Kormanik’s article, Ms. Audit, one of the jurors, hoped that her own teenage children would take the verdict as a strong warning of the consequences of online statements: “I hope they use their heads and think before they do this,” she said. “Text messages, tweets, e-mails, iChats are never gone. Be careful. I’ve already told my kids, be careful. If you’re going to put something in writing, be able to back it up.”

Ms. Audit’s warnings should be taken seriously by everyone using online communications. Though online comments may seem harmless and fleeting, this case demonstrates that they “are never gone.” Though criminal law is making slow progress toward adapting to new technologies, smart prosecutorial teams are using these new tools of communication to track the movements and state of minds of victims and defendants alike.

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April 25th, 2012 at 9:05 am

Posted in Cases,Commentary

Paramount Pictures Speaks to Michigan Law Students about Online Piracy, Cyberlockers

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Last month, copyright students at Michigan Law were able to engage in a Q&A after a presentation from Alfred Perry, the VP of Worldwide Content Protection at Paramount Pictures. The topic? SOPA, PIPA, and the legal issues that surround file-sharing websites, like the recently indicted Megaupload.

Many students were eager to engage in a discussion with a representative of the movie industry, especially given the current debate over the Stop Online Piracy Act, and the possibility of future copyright legislation that would address online infringement. As a copyright student myself, I was anxious to hear what a representative of a company that advocates and supports these recent legislative initiatives had to say.

During the presentation, I was most impressed by the emphasis that was put on the problem with cyberlockers- online file storage providers. While they have completely legitimate uses such as storing documents, and sharing files, some users post pirated content of movies or TV shows. It seems that major media companies are targeting these sites- Mr. Perry said that “We continue to make criminal referrals.” Paramount Pictures stated that their content is not being protected adequately by the current laws. However, these cyberlockers are bound by the Digital Millennium Copyright Act, and are obligated to take down infringing content when given notice that it has been posted.

During the presentation, five cyberlockers were identified as “rogue” sites- Fileserve, MediaFire, Wupload, Putlocker, and Depositfiles. In a later email, Mr. Perry explained that “My use of the term ‘rogue’ was meant to designate those cyberlockers which would fall within the definition of a foreign infringing site.” However, MediaFire is a cyberlocker that is located in Texas.  They recently released a press release that addressed these claims. The owner, Tom Landridge said  “MediaFire continues to cooperate fully with the MPAA, RIAA, and various other organizations who work to identify and prohibit the distribution of copyrighted content. We have a variety of advanced automated systems designed to detect violations of our Terms of Service and automatically warn and terminate users.”

It appears that the war between media companies and cyberlockers is only just beginning. Although it is apparent that studios do not like these companies, there doesn’t seem to be a ready solution. Cyberlockers provide a legitimate service, used by many for legitimate purposes. The recent firestorm has caused two sites- Wupload and FireServe to become backup sites, disabling all fire-sharing to avoid the risk of criminal prosecution. While media companies might rejoice, I believe this points to a bigger problem- the media industry business model. Mr. Perry in an e-mail to me, stated “Looking forward, why would anyone invest in an innovative new distribution service if they believed that there would be no legal protection for their fantastic new platform, forcing it to compete with rogue sites that pirate all of their product?”. However, this belies the point that these cyberlockers are innovative- it is the reason they receive 41 billion page views a year. While there is no easy solution, and stolen content is a problem, it might be in the best interest of both cyberlockers and the entertainment industry to work together moving forward- sparing cyberlockers the fear of criminal prosecution, and innovating the media distribution business model.

MTTLR Publishes Volume 18 Issue 2

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On behalf of the Michigan Telecommunications and Technology Law Review, I am pleased to announce the publication of our Spring 2012 issue. It has been a pleasure serving as Editor-in-Chief, and I look forward to reading the great pieces that Cliff Helm and the Volume 19 Editorial Board will publish next year.

Printed copies of the Spring 2012 issue will be delivered to subscribers in May. Many thanks to our authors, and congratulations to our hard-working editors who graduate this semester!

All the best,

Nathan J. Francis


Property as Control: The Case of Information
Jane B. Baron
Patents vs. Statutory Exclusivities in Biological Pharmaceuticals—Do We Really Need Both?
Yaniv Heled
Res or Rules? Patents and the (Uncertain) Rules of the Game
Emily Michiko Morris


Improving Patent Notice and Remedies: A Critique of the FTC’s 2011 Report
Alan Devlin


No Cause of Action: Video Surveillance in New York City
Olivia J. Greer
Viewer Discretion Is Advised: Disconnects Between the Marketplace of Ideas and Social Media Used to Communicate Information During Emergencies and Public Health Crises
Peter Maggiore
Fighting the First Sale Doctrine: Strategies for a Struggling Film Industry
Sage Vanden Heuvel


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April 20th, 2012 at 10:48 am

Posted in MTTLR Journal