Archive for the 'Law' Category

09 FebGoddard v. Google, Inc. (N.D. Cal. Dec. 17, 2008).

A nice review of some of the developments in CDA Section 230 case law: Goddard v. Google, Inc., C 08-2738 JF (PVT), 2008 WL 5245490, 2008 U.S. Dist. LEXIS 101890 (N.D. Cal. Dec. 17, 2008).

06 NovGoogle, Inc. v. American Blind & Wallpaper Factory, Inc., (N.D. Cal. Apr. 18, 2007).

I hate it when I can’t easily find an opinion online: Google, Inc. v. American Blind & Wallpaper Factory, Inc., (N.D. Cal. Apr. 18, 2007).

16 SepThe CONTU Final Report

The Final Report of the National Commission on New Technological Uses of Copyrighted Works (The CONTU Report) was conveniently scanned to pdf by Digital Law Online. However, they provide it as seventeen different pdf downloads, without providing a single pdf containing the entire report with all appendices. I’ve combined them all in one 162-page pdf here: CONTU.pdf

14 SepU.N. agency eyes curbs on Internet anonymity

Interesting CNET article,

A United Nations agency is quietly drafting technical standards, proposed by the Chinese government, to define methods of tracing the original source of Internet communications and potentially curbing the ability of users to remain anonymous.

The U.S. National Security Agency is also participating in the “IP Traceback” drafting group, named Q6/17, which is meeting next week in Geneva to work on the traceback proposal. Members of Q6/17 have declined to release key documents, and meetings are closed to the public…

23 JunCapitol Records v. Multiply, Inc. 07-11357 (SDNY)

07-11357-013-AmendedComplaint
07-11357-029-MemoISOMotToDismiss
07-11357-034-MemoOppMotToDismiss
07-11357-039-ReplyMemoISOMotToDismiss

29 AprThe Trademark Trial and Appeal Board Gets No Respect

Interesting TM decision out from the D.C. Circuit today, Aktieselskabet v. Fame Jeans Inc.

The D.C. Circuit joins the 1st and 7th Circuits who have now all held that a party may introduce new issues in a § 21(b) district court action that were not brought before the TTAB.

The Court also addresses pleading standards under Twombly at length, concluding that the Twombly decision has not altered or heightened traditional notice pleading standards.

Bestseller has sold jeans outside the U.S. since 1990 under its Danish TM for “Jack & Jones” jeans. Fame Jeans filed a U.S. intent-to-use application for that mark in January 2004, with Bestseller applying for the mark in the U.S. in December 2004, but not having any clear sales in the U.S. before January 2004.

Bestseller contested Fame’s application on likelihood of confusion grounds and the Court concluded that under § 2(d), an intent-to-use applicant (e.g., Fame) prevails over any opposer who began using a similar mark (in the U.S.) after the intent-to-use filing date. Bestseller’s confusion claim, however, withstands a motion to dismiss because it adequately alleged use analogous to TM use within the U.S.

Bestseller also adequately alleged a claim that Fame lacked a bona fide intent to use the mark.

However, Bestseller cannot allege common law fraudulent misrepresentation by Fame where it only alleges that the PTO relied on Fame’s misrepresentations and not that Bestseller itself so relied.

First, from this opinion, the TTAB looks like a practice run and one can apparently always call “do over” and try out new arguments before the district court. That seems like an unfortunate waste of time and money for those trying to resolve things before the TTAB. Second, the factual background of this case strongly suggests that Fame knew exactly what they were doing and that it was simply a cheap trick by a competitor. Do they really think anyone believes that they just happened to come up with the name “Jack & Jones” for jeans and had no idea that name was already in use internationally on jeans? What’s a little surprising is how far Fame has gotten with this tactic and how narrow Bestseller’s options are now. The moral may be that if you’ve got a mark outside the U.S. and you think you’ll ever want to move into U.S. sales you should quickly proceed to make a few U.S. sales, document them well, and get your U.S. TM application on file ASAP. Otherwise, any competitor can just adopt your mark for its products in the U.S. and you’ll have a long hard road to stopping them.

03 Mar2d Cir. on Personal Jurisdiction

Interesting opinion out from the Second Circuit today, Ehrenfeld v. Mahfouz, No. 06-2228-cv (2d Cir. Mar. 3, 2008). The Court had certified to the New York Court of Appeals

whether New York’s long-arm statute confers personal jurisdiction over a person (1) who sued a New York resident in a non-U.S. jurisdiction; and (2) whose contacts with New York stemmed entirely from the foreign lawsuit and whose success in the foreign suit resulted in acts that must be performed by the subject of the suit in New York.

The New York Court of Appeals answered the certified question in the negative and so the Second Circuit affirmed the district court, which had dismissed the case for lack of personal jurisdiction.

Query whether there is now a circuit split between the Second and Ninth Circuits when one also considers Yahoo! Inc. v. La Ligue Contre Le Racisme et L’antisemitisme (9th Cir. 2006)?

01 MarNinth Circuit Breaks Copyright Law

They’re at it again. On Feb. 27, 2008 the Ninth Circuit issued its opinion in Sybersound Records, Inc. v. UAV Corp., No. 06-55221 (9th Cir. 2008). The court considered:

whether the transfer of an interest in a divisible copyright interest from a copyright co-owner to Sybersound, unaccompanied by a like transfer from the other copyright co-owners, can be an assignment or exclusive license that gives the transferee a co-ownership interest in the copyright. We hold that it cannot.

Bzzzzzt. Try again. See William Patry’s blog post about this entitled, The Death of Divisibility, where he writes

This isn’t what Congress intended: it intended that co-owners be able to grant non-exclusive licenses without the others’ permission and that they be able to transfer their proportional share in the whole without the others’ permission, in which case the transferee would indeed stand in the shoes of the transferor. It is truly remarkable that such simple, but commercially important points have been destroyed.

Patry thinks Congress is our only hope. I’m placing my hope in rehearing or rehearing en banc.

02 FebSony Laptop Locks Out non-Sony Battery

Yesterday I received a generic replacement battery that I had ordered for my Sony VGN-FS840/W laptop. When placed in the laptop the battery indicator flashes rapidly. The laptop will not turn on with the battery inserted, even if the AC cord is also used. The battery shows no charge and does not charge. Reading online I learned that Sony apparently uses a hardware lock in certain of its laptop models to prevent the use of non-Sony replacement batteries. See, for example, these blog posts.

Some people, using Windows, are able to avoid this problem by using msconfig to delete the Sony program, ISBMgr.exe, that monitors for non-Sony batteries, but I am running GNU/Linux and not Windows. Some others using Windows also find that deleting the program doesn’t help because Sony has some hardware or BIOS method of disallowing any non-Sony battery. I think this must be the case for my model laptop.

I’m pondering who can be sued over this. Post your ideas on who the plaintiff(s) should be and what the claims should be in the comments. I’d also be happy with a technical fix, if anyone has one.

18 DecShould Copyright Owners Have to Give Notice About Their Use of Technical Protection Measures?

One good DRM paper deserves another. Former EFF Staff Attorney, Jason Schultz, has taken a position at UC Berkeley’s School of Law and has just posted a pre-publication paper he co-wrote with Berkeley Law Professor Pamela Samuelson entitled: Should Copyright Owners Have to Give Notice About Their Use of Technical Protection Measures? From the abstract:

Consumers expect to be able to do at least as much with digital content as they have been able to do with analog content, and more. Yet, some copyright owners are using technical protection measures to thwart certain consumer uses of digital content, and rarely do they give effective notice to consumers about these technical restrictions. This article identifies six types of consumer harms that have occurred from inadequate notice, including lack of expected interoperability, privacy invasions, security vulnerabilities, anti-competitive lock-out as to compatible systems, risks of inadvertent anti-circumvention liability, and unanticipated changing terms and discontinued service. It discusses a range of options for responding to the notice inadequacy problem, from trusting the market to substantive regulation that would forbid use of certain kinds of TPM restrictions (such as those that invade user privacy). Because the market has yet to yield effective notice to consumers of TPM restrictions, the article recommends that the Federal Trade Commission investigate the deployment of TPMs in digital content and make recommendations for standard notices that should be provided to consumers about the TPM restrictions.

Berkeley Law seems to be gathering together a think-tank of talent focused on getting technology law right.