Family law is an area of law that is not typically mentioned in the same breath as technology. However, as internet use becomes increasingly pervasive, the separation between family law and technology is rapidly shrinking. Internet use, and social media use more specifically, is now frequently being introduced as evidence in family law cases. Unfortunately, judges presiding over family law matters—particularly custody disputes—have been inconsistent in their review of social media evidence.

In cases regarding custody and parental rights, trial courts have broad discretion to determine best interests of the child. In all states, there are various factors to be looked at to determine make a best interest determination. It has become apparent that evidence from social media sites like Facebook can be persuasive in the consideration of many different factors. In Lalonde v. Lalonde, a Kentucky Court of Appealsallowed the admission into evidence of Facebook photos of the mother in a custody dispute consuming alcohol. The judge held that the fact that the photos were uploaded by a friend of the mother’s and then tagged—versus being uploaded by the party herself—did not effect the photos admissibility.

Further complicating matters is the fact that the child’s use of social media in custody cases can have an effect on the judgment. Trial courts have held that both parents must be allowed a weekly review of a teenage child’s Facebook and that simply creating a social media profile for a child is not a reason to modify a custody award.

The growing importance of social media evidence is quickly becoming apparent to family law attorneys. Practitioners are now advising their clients to curtail their use of these sites so as not to provide courtroom fodder. In addition to providing practical advice to clients, attorneys will need to understand how social media evidence is being used in order to provide comprehensive representation.

In an interesting twist to the ongoing saga between Apple and Samsung, Judge Lucy Koh cut the damage award to Apple by over four hundred million dollars, reducing total recovery from 1.05 billion to 599 million. As a quick background, Apple sued Samsung for patent infringement over numerous tablet and cell phone designs in the Northern District of California. The jury found for Apple and awarded the company over 1 billion dollars in damages. After the trial, Apple moved for additur, supplemental damages, and prejudgment interest; while Samsung moved to reduce the total damage award because the jury used an impermissible theory to calculate damages.

After denying Apple’s attempts to increase the total damage amount, the court considered Samsung’s argument that damages were based on impermissible theories. Perhaps most strikingly, the jury calculated damages for several asserted patents by apportioning Samsung’s profits from the infringing products, instead of Apple’s lost profits. This, despite limiting instructions specifically prohibiting the jury from calculating damages based on the profits of the infringer. Ultimately, the court agreed with Samsung, and reduced the award accordingly.

One of the themes that pervades the entire Apple-Samsung trial is the problem of using juries in complex patent trials. In Markman v. Westview Instruments, the Supreme Court established that claim construction was a question of law for courts, in part because claim construction required special training and education. The increase in patent litigation over the past few decades, however, has shown that problems with juries in patent trials extend well beyond claim construction. The calculation of damage awards illustrates the problems of jury trials in patent cases. The accepted methods of calculating damages, such as reasonable royalty and lost profits, often depend on a clear understanding of both technology and economics. In Apple v. Samsung, the court could easily infer that the damage award was based on Samsung’s profits; other cases often leave courts and commentators scratching their heads at how juries arrived at damage awards. As technology and law develops, it will be interesting to see how courts grapple with the traditional provinces of judge and jury in patent litigation.

While Facebook has had some recent success in Europe vis-à-vis its policies – this week winning a challenge in Germany against its “real names” policy – the EU currently has several proposals on the table that have the potential to seriously impact Facebook’s data collection and business practices. One particularly interesting proposal is the establishment of a “right to be forgotten.” First proposed by European Commissioner for Justice Viviane Reding last year, and expected to be voted on this summer, the right to be forgotten would require companies that collect or host personal information online to delete such information upon request. While this new right may seem an attractive way to protect online privacy and enables one to escape the past – perhaps memorialized in embarrassing Facebook pictures – it has been hotly debated, and fiercely opposed this side of the Atlantic.

Critics worry that the proposed right will essentially be a right to rewrite history, and furthermore, will pose a serious threat to freedom of speech. As currently formulated, the right-to-be-forgotten proposal defines the personal data one may request taken down as “any information relating to a data subject.” Law professor Jeffrey Rosen worries that the proposed right may allow a person to demand deletion of not only Facebook photos that person posted herself, but also photos others post that include the person, and also more generally (and problematically), information others post to the internet about the person, whether it is true or not. Thus, Google’s Peter Fleischer wonders if, under the proposed regime, “someone else posts something about me, do I have a right to delete it?” If the final formulation of the right to be forgotten allows an individual to demand a takedown of truthful information posted by another, obviously there are major freedom of expression concerns, and as Rosen points out, the freedom and openness of the internet will be seriously inhibited.

While the scope of the proposed right to be forgotten may very well be too broad, it should be noted that the proposal will continue to be debated in the coming months before enactment, and it is possible the EU may in practice interpret the right narrowly. Imperfections aside, the EU’s proposed policy illuminates the notable trend of Europe taking online privacy seriously and engaging with the difficult issues of this arena more substantively than has the United States. With a few exceptions, the online privacy policies of American companies are voluntary and no major progress has been made toward federal legislation and regulation in this area. While the current administration advocates the creation of voluntary industry privacy standards, Silicon Valley’s vigorous lobbying in Brussels shows how much is at stake when it comes to privacy policies and practices and suggests that like the EU and US companies, the US government should more seriously engage these topics.

It will be interesting to see how the debate in Europe affects the final formulation of the right to be forgotten. It will also be interesting to see how this debate affects US tech titans who generate a considerable amount of revenue in the EU, not to mention how it influences the US government’s approach to privacy issues. Here’s hoping this strong focus on privacy makes its way to our shores.

As more of our lives, and more of our work move into the digital realm, a Legal IT Professional’s survey indicates a split in the profession over whether firms should move key technology functions into “the cloud”. The survey’s sample size was fairly small (there were 438 respondents), yet 45% of lawyers and paralegals were in favor of the shift, with the slightly larger 46% opposing it (the remaining 9% very diplomatically had no opinion on the issue). Small to mid-size firms were more likely to be in favor, with 57% of firms boasting over 1,000 fee earners opposing the move. This is unsurprising, as larger firms tend to have in-house IT departments that might suffer from the move.

What is surprising is that such a high level of the profession seems so willing to embrace what would doubtlessly be a huge change for the field. On one hand, it would certainly make remote access easier, which may explain the high number of lawyers in favor of the move. Yet increasing the technological complexity of day-to-day legal work will involve training staff in the new processes, taking risks with a lot of the firm’s documentation, and ultimately, opening up a large amount of confidential information to the risk of hacking.

It is likely that none of these problems will ultimately prevent the shift from occurring, and 81% of those responding indicated they thought it would likely happen in the next decade. The willingness of such a large swath of a generally conservative, risk-averse profession to make the leap already is still worth noting however. In a profession that tends to eschew development for stability and to prefer precedent over novelty, the fact that these numbers are so high already may tell us a lot about the way all of society has embraced technology over the past few decades, and how much larger a role it is likely to play in our lives in years to come.

A mere four days after U.S. District Judge Robert Jonker issued a claim construction memorandum and order in the case of Stryker Corp. v. Zimmer Inc., Zimmer Holdings was told to pay $70 million to Stryker Corp. for infringing patents related to a device that removes damaged tissue and cleans bones during joint-replacement surgery.

Stryker sued Zimmer in December 2010, claiming its patents were infringed by Zimmer’s Pulsavac Plus wound debridement system. Zimmer’s Pulsavac Plus and Stryker’s competing Surgilav and InterPulse machines are devices that use pulsing liquid to loosen debris from a surgical site and remove it by suction. The process allows doctors to see better during orthopedic surgery.

Yesterday, a federal jury in Stryker’s hometown of Kalamazoo, Michigan, said Zimmer willfully infringed three of Stryker’s patents. The jury also found that a 25 percent royalty rate should apply to sales of infringing Zimmer products. In light of the jury’s finding that Zimmer’s infringement was willful, Judge Jonker can increase the award.

A spokesman for Zimmer, Garry Clark, said that “Zimmer is disappointed with the verdict and plans to pursue all available post-trial relief including an appeal in due course.”

The University of Michigan just recently won a lawsuit in which the University was alleged of copyright infringement in its effort to digitize its library contents. On September 12, 2011, the Authors Guild, the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ), and eight individual authors filed a lawsuit against HathiTrust, the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University for copyright infringement. On October 10, 2012, a Federal District Court in the Southern District of New York dismissed the suit finding that the University of Michigan’s use of books fit within “fair use” of the Copyright Act.

HathiTrust was created through a collaboration of universities in order to establish a repository for those universities to archive and share their digitized collections. The Authors Guild argued that the access HathiTrust provided to the scanned materials was in violation of their members’ copyrights, claiming that the universities had pooled the unauthorized scans of an estimated 7 million copyright-protected books. The Authors Guild also claimed that while many U.S. universities had allowed the scanning of books that were in the public domain, only the defendant universities had allowed copyright-protected books to be scanned.

One of the major issues with the HathiTrust digitalization plan was a project called Orphan Works. Orphan Works are books that are subject to copyright but whose copyright holders cannot be identified or located. As a consequence, users cannot seek permission to use these works in ways that might involve copying or distributing the work. The Authors Guild claimed that the procedures for determining whether a work should be deemed an “orphan” were deficient, as “within days of the suit’s filing on September 12^th, the Authors Guild, its members, and others commenting on its blog had developed strong leads to dozens of authors and estates,” while in other cases “simple Google searches turned up most of the leads in minutes.”

HathiTrust has repeatedly claimed that the primary motive driving the digitalization effort was preservation for a scholarly purpose, as the sharing was limited to online reading by faculty and students of participating universities. The scholarly purpose of the digitalization would make the sharing legal under Section 107 of U.S. copyright law, which allows for fair use of a copyrighted work without infringing the copyright. HathiTrust argued that educational, non-profit uses of copyrighted works, falls within previous interpretations of what qualifies as “fair use.”

Federal District Judge Harold Baer Jr. of the Southern District of New York ruled in favor of HathiTrust, stating, “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use … I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ [Mass Digitalization Project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts.” With this ruling, Judge Baer has “reaffirmed the role of libraries as promoting knowledge creation and equality of access.”

Certainly, most of you are familiar with Yelp, a website that provides user reviews on various companies, organizations, etc. I, for one, use this website religiously as a guidance for which restaurants to try out and which to avoid (since I am a student on a tight budget with a love for new foods, I don’t want to waste time or money on restaurants that a large majority of my peers would disapprove of or dislike). Obviously, those rating a company or group with five stars are not going to get into trouble with that company or group for doing so (who would actually complain about getting too much praise, right?). But what happens to those who don’t write happy reviews or don’t give five stars? What exactly happens to those who write unfavorable reviews? Perhaps even pushing the envelope and giving only one star?

The questions are answered in Dietz Development, LLC and Christopher Dietz v. Jane Perez. Last October, a contractor filed a complaint against a former customer who wrote a negative review about him and his company on Yelp, alleging, among other things, defamation. In December, the trial court ruled that the defendant, a homeowner who used the plaintiff’s services, had to revise her unfavorable comments against the plaintiff on Yelp. Shortly thereafter, however, the plaintiff, along with the American Civil Liberties Union and Public Citizen, filed a petition for review to the Supreme Court of Virginia, and had the preliminary injunction overturned a few days later.

What a victory for free speech! Now I can read reviews (assuming it’s not breaking Yelp’s user agreement) for my next restaurant-to-try without having to worry about reading a bunch of sugarcoated posts. Seems to be a win-win for all, except for the plaintiff in the abovementioned case, right? Well, not necessarily. As always, the answer is: it depends. As reminded in the Washington Post, not all reviews on Yelp are accurate and, unfortunately for those entities affected with such false reviews, such companies can have their reputation destroyed.

My take-home point: always remember that there are two sides of a story!

Relevant articles:

http://arstechnica.com/tech-policy/2013/01/judge-cant-order-yelp-user-to-edit-negative-review/

http://www.washingtonpost.com/blogs/crime-scene/post/aclu-public-citizen-to-fight-lawsuit-over-negative-yelp-review/2012/12/20/9242b430-4ab8-11e2-b709-667035ff9029_blog.html

http://blogs.wsj.com/law/2013/01/03/court-negative-yelp-reviews-shouldnt-be-censored/

http://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=794

http://www.yelp.com/filtered_reviews/8tCNUqQyCV3ePikYsWIqwQ/

In this age of social media and social networking, Twitter has become a resource that continues to grow in importance. While still less than seven years old, Twitter is one of the 10 most popular websites in the world and has over 500 million registered users. Authors use Twitter to publish messages up to 140 characters in length to their followers—messages that can also be accessed by the rest of the internet. While Twitter is simple in its design, some complex issues have begun to arise as a result of the exposure these messages receive. One of these issues is who owns a particular Twitter handle.

A Twitter handle is the username users select to publish their messages. Who owns a Twitter handle is probably not something that most people have given much thought to when registering an account to stay connected with friends or for other similar uses. However, when an employee uses a Twitter account in connection with his or her job, who owns the Twitter handle is a very important question.

A leading case on this issue is PhoneDog v. Kravitz, No. C 11-03474 MEJ., 2011 WL 5415612, (N.D. Cal. Nov. 8, 2011). Noah Kravitz was employed by PhoneDog and one of his duties was to tweet about the company and its products. When Kravitz left the company, he simply changed his Twitter handle from @Phonedog_Noah to @NoahKravitz and kept all of his followers under the new Twitter handle. PhoneDog claimed that Kravitz was supposed to be using the Twitter account only to further the goals of the employer and thus the company should own the account. As employees were asked to maintain Twitter accounts to drive traffic to PhoneDog’s website, PhoneDog claimed that Kravitz’s followers were tantamount to a business customer list, and thus should be considered property of PhoneDog.

Using a Twitter account in connection with one’s job can give an author exposure he would not otherwise be able to attain on his own. For instance, by the time Kravitz left PhoneDog, he had amassed over 17,000 followers under his Twitter handle. While it is impossible to know for sure, it is highly unlikely Kravitz would have been able to amass such a following without his connection to PhoneDog. Yet, as the influential technology and business publication The Next Web argues, “Just because your job affords you certain amenities certainly doesn’t mean that once you leave that job, forced or otherwise, you have to give all of that back.”

Precedent certainly exists for this very argument—and we only have to look back to 2012 to find three high profile examples. Michelle Beadle, a popular sports commentator, changed her Twitter handle (from @ESPN_Michelle to @MichelleDBeadle) to keep all of her over 600,000 followers after moving from ESPN to NBC this past summer. Pat Forde, a national sports columnist, changed his Twitter handle (from @espn4d to @YahooForde) to keep all of his over 100,000 followers after moving from ESPN to Yahoo! Sports. And Darren Rovell (@DarrenRovell), a popular and influential sports business reporter, took his over 200,000 followers with him after moving from CNBC to ESPN.

Beadle and Forde even had the name of their former employer (ESPN) as part of their former Twitter handles, so a simple examination as to the purpose of the account may not provide as much clarity about ownership as one may think. Besides, as ESPN’s former ombudsman notes, “Reporters and analysts increasingly see their accounts as personal assets they’ve worked hard to build, simultaneously a clip file and a portable audience for their work.” This translates into a very valuable asset and is something “they will be loath to surrender.”

While many interested parties were keeping an eye on the outcome in PhoneDog v. Kravitz, hoping that it would establish some clear legal boundaries between employees’ personal use of social media and employers’ claim to those channels of communication, they will now have to look elsewhere for such a holding. In December 2012, PhoneDog and Kravitz settled out of court, allowing Kravitz to maintain sole ownership of the @NoahKravitz Twitter account. Alas, we must now wait for another lawsuit for precedent-setting answers.

Since the establishment of the Federal Circuit three decades ago, the Supreme Court has tended to distance itself from the development of patent law. As the Federal Circuit holds exclusive jurisdictions over appeals arising from disputes involving patents, circuit splits are unlikely to arise, and its judges are deeply familiar with the subject area. Thus it is not entirely surprising that as a general matter it is rare for the Supreme Court to review its judgments.

 However, in recent years the Supreme Court has reviewed several high profile Federal Circuit high-profile decisions, perhaps most notably in the area of the scope of patentable subject matter under 35 U.S.C. § 101. In Bilski v. Kappos, the Court agreed that an investment strategy was unpatentable subject matter, but indicated ambivalence towards the Federal Circuit’s chosen analysis. This year, in Mayo Collaborative Services v. Prometheus Laboratories, Inc, the Court held that claims over a medical diagnostic test were unpatentable “products of nature,” reversing the Federal Circuit.

On November 30, 2012, the Supreme Court granted review in Assoc. for Molecular Pathology v. Myriad Genetics, a case involving the patentability of human genes. The case has had a long journey through the federal courts. In 2011, the Federal Circuit found that claims over “isolated” DNA molecules are patentable subject matter, as well as certain associated method claims. This judgment was vacated and remanded to the Federal Circuit for further consideration in light of Mayo. On remand, the Federal Circuit once again held these patents to be directed towards patentable subject matter. Now before the Supreme Court again, it is likely that the Court will be directly addressing the question of whether human genes are patentable.

Petitioner argues that the patents at issue are invalid because they claim subject matter directed to a law or product of nature. They claim that these patents, which cover “isolated” forms of the BRCA1 and BRCA2 genes linked hereditary breast and ovarian cancer, have prohibited clinical testing, scientific research, and patients’ access to their genetic information. The respondent, Myriad Genetics, claims that the patents cover subject matter that was human-made and does not occur in nature. Myriad stresses the “enormous amount of human judgment” involved in their research and development of this area, and the importance of patent protection to support their industry.

This case is likely to be closely followed by many. Patentable subject matter is an area that the Supreme Court has shown a close interest in recently, lending much uncertainty to the state of the doctrine. Patent lawyers and scholars will wait to see whether the Supreme Court clarifies this area of law. The decision is likely to have a major impact on the biotechnology industry, who for many years has successfully obtained patents such as the ones at issue here with relatively little questioning of their validity. The public will be watching as well, as the question of whether human genes are patentable is a topic likely to generate excitement and intrigue from many.

On September 24, the FTC filed six federal cases against companies, mostly based in India, that have allegedly been scamming consumers by posing as computer tech support. The FTC describes the move as a “major international crackdown” against tech support scams. The agency has expressed appreciation for the help of agencies in Australia, Canada, and the United Kingdom. On October 3, the judge issued an order to halt the scams and freezing their assets in the United States.

These scammers allegedly operate by calling consumers and claiming that they have detected some form of threatening malware on that person’s computer. Notably, they often make a claim implying that they are affiliated with a major and reputable computer or antivirus software company. In an interesting example, a staff member at tech news site ArsTechnica received a call, the very day of the injunction announcement, from a man claiming “I am calling you from Windows.” Once the supposed tech support employee has a consumer on the line, they proceed to direct them to Windows Event Viewer in order to “prove” the existence of the claimed malware. They then offer to rid the computer of the malware for a fee, reportedly “ranging from $49 to $450” according to the FTC. The consumer is then directed to download a program allowing the scammer to take control of their computer and delete the alleged malware.

These scams are particularly interesting because, unlike many consumer fraud scam situations, they don’t quite target the lowest common denominator. This isn’t a Nigerian prince asking you to help him get his money out of the country. Instead, these scammers make a claim that to many is quite believable: a computer company knows what is going on on your personal computer. After all, as the New York Times notes, if anyone is going to be able to tell what’s going on with your computer from a distance, it would be Microsoft, right? Most tech savvy users aren’t going to hand over control of their computer to someone who calls them unsolicited even if they claim to be from a reputable company, but I worked in tech support and I’ve seen how many people are, in fact, clueless about this kind of risk. We regularly reminded users “we will never ask you for your password,” but our users still got tricked into handing it over to scammers claiming to be us. Microsoft has apparently reported that out of 1,045 people who “had told the company they believed they had been contacted by a fake tech support caller. More than 400 of those either fell victim to such operations, with losses averaging $875, or had to pay an average of $1,700 to repair damage to their computer.”

The FTC’s action is based upon the Federal Trade Commission Act and the Telemarketing and Consumer Fraud and Abuse Prevention Act. Section 5(a) of the FTC Act grants the FTC power to pursue action against “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.” The charges also cover violations of the Telemarketing Sales Rule, which deals with the Do Not Call list.