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Judge Awards $68,685.23 in Attorneys Fees Against RIAA in Capitol v. Foster. Read the full order here.     "Providers' liability or Web Censorship?" by Avv. Felix Hofer Recently the public opinion in Italy was shaken by an episode of “bullying”, which involved a group of minors who recorded themselves with a mobile phone while harassing and beating a young disabled. The video was then posted on a web portal (in the Section “Funny Videos”!). Vivi Down, a not-for-profit organization, assisting people affected by Down's syndrome, became aware of the existence of the video, felt that the episode resulted in a criminal offence and therefore brought the facts to the attention of the AG in Milan. Read More.     ITechLaw President Quoted in The Journal of New England Technology Legal e-mail driving Valora's growth Mass High Tech: The Journal of New England Technology - July 28, 2006, by Christopher Calnan Valora Technologies has grown in size while growing in a sector changed dramatically by how documents are created and stored. Futhermore, technology has engendered a type of document that didn't even exist little more than a decade ago -- e-mail. When it comes to legal documents, technology giveth and technology taketh away, Valora President and Chief Executive Sandra Serkes said. "It's compounding the problem, but also making it easier," she said. Valora doubled its space (from 5,000 square feet to more than 10,000 square feet) in a move last month from Waltham to Burlington to accommodate its growth. The company, which started with three employees in 2000, now employs 80 -- 20 of them full time, Serkes said. When it was founded, all the documents processed by Valora were paper; today the portion is about 50 percent, according to Serkes. Six years ago, Valora indexed 50,000 pages per week. It's now indexing 1.2 million, and Serkes said she expects the number to rise to 4 million this year. The move to Burlington was important to expansion plans, but its location within the technology-dense region was also crucial to the company, Serkes said. "We really are a tech a company at heart," she said. "We feel very much at home here." The rising number of electronic devices is increasing the possible locations in which information pertinent to lawsuits could be found, said Richard Horning, president of the Wakefield-based International Technology Law Association. That expansion is causing higher costs and making it more difficult to manage the information, he said. Some law firms contract with vendors such as Valora. Others use in-house litigation support specialists, said Meredith Ainbinder, an attorney for Bromberg & Sunstein LLP, a Boston law firm specializing in intellectual property and business litigation. "The ability to keep documents electronically has given rise to the desire to do so," Ainbinder said. "The easier it is to use a tool, the more people want to implement it."   Booming IT sector on lookout for lawyers. Bangalore takes the lead. Featured article with quotes from ITechLaw officials and staff including past president Steve Davidson.     The U.S. Supreme Court declined to take up the "French Yahoo Nazi Memorabilia" case (issue: whether a French censorship order can apply to Yahoo's U.S.-based Web site). They denied the request without comment (see PDF attached at Case number 05-1302).   REFORM OF THE CODE OF CIVIL PROCEDURE OPENS THE DOOR FOR THE ELECTRONIC JUDICIAL PROCESS (PDF) Ricardo Barretto Ferreira da Silva and José Leça "Law 11280, of 02.16.2006, among other subjects, formalized the possibility of the implementation of the virtual judicial proceeding by all Brazilian courts, within the ambit of their respective spheres of jurisdiction..."   New German Court Decision on the Resale of  “used”  Software Licenses: Various companies in Germany have recently offered a new business model: Resale of software licenses which are not used any longer by the licensee. If for instance a company has bought licenses for its ERP software for thousand concurrent users and later realizes that only eight hundred employees need access to such software, it might consider reselling such two hundred spare licenses. However, under European and German Copyright Law such resale is very problematic and in a recent decision of 19 January 2006 the District Court Munich I held in summary proceedings that such resale of licenses which are not incorporated in a physical data carrier such as a CD-ROM is illegal. According to German Copyright Law, if the original work or copies thereof have been distributed through sales thereof with the consent of the owner of the right of distributing the work for the area within the European Union, their further distribution shall be permissible except the rental rights. According to a precedence of the Federal Supreme Court of 6 July 2000 with respect to OEM distribution, software which has been sold in connection with a PC can be separately resold if such software has been delivered on a data carrier. A prohibition of such resale stated in the General Terms and Conditions of the licensor is not enforceable. However, section 17 subsection 2 and section 69c no. 3 German Copyright Act provide that this so-called exhaustion of the distribution right only refers to works incorporated in a tangible medium. Recital 29 of the EU-Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society states: “The question of exhaustion does not arise in the case of services and on-line services in particular. This also applies with regard to a material copy of a work or other subject-matter made by a user of such a service with the consent of the right holder. … Unlike CD-ROM or CD-I, where the intellectual property is incorporated in a material medium, namely on item of goods, every on-line service is in fact an act which should be subject to authorization where the copyright or related right so provides.” Further, section 34 subsection 1 of the German Copyright Act states that a license may only be assigned with the licensor’s consent. Because of these legal provisions, the major opinion in German copyright literature argues that licenses which have only been bought on-line must not be resold by the licensee since the principle of exhaustion is not applicable in such a case. In its recent court decision Oracle v. Usedsoft of 19 January 2006, the District Court Munich I (file reference 7 O 23237/05) followed this approach and held that licensors can prohibit the resale of its licenses if according to its license terms they only grant non-exclusive, non-transferable rights of use. Oracle’s license terms did not allow to transfer the licenses. In the case at hand, the licenses were not provided on a data carrier but the company which resold the licenses asked their customers either to copy the respective software themselves or to download such software from the website of the licensor. The District Court held that this is an impermissible infringement of the copyright of the licensor in its software. The court decision has been appealed by the defendant and it is likely this case will finally go up to the Federal Supreme Court for a lead decision. Even though the relevant copyright law seems to support the court decision, there exist some serious arguments in favor of allowing the resale of licenses which were acquired on-line. According to these voices, it should not make any difference whether software which has been acquired is incorporated in a tangible medium such as a CD-ROM or if it has only been bought on-line provided that no copies remain on the computer system of the original licensee after resale. Taking into account such new court decision, from a licensor’s perspective it is essential that its license terms contain a provision according to which the license is non-exclusive and non-transferable and that the licensee is not entitled to assign any rights under the license agreement without the consent of the licensor. If the licensee intends to resell spare licenses, he must either be able to hand over the data carrier on which the software is incorporated in compliance with the exhaustion principle and to delete all copies on his computer system or he should approach the licensor and ask for consent to such transfer. Dr. Thomas Stögmüller, LL.M. (Berkeley) Rechtsanwalt (German Attorney-at-law) teclegal Habel Rechtsanwälte Nymphenburger Str. 70 80335 Munich Germany Tel. +49 89 139576-60 Fax +49 89 139576-66

Archive:

US and Canadian Governments Seek Customer Data from Google and Costco

Report Raises Concerns Regarding Nanotech Regulation

Important Question of Availability of Injunctions in Patent Cases will be heard by the US Supreme Court

Ontario Court Calls for Collaboration Regarding Production of Documents in the Information Age

Apple iTunes Ministore Software Modified after Concern Voiced by Privacy Advocate

US Federal Courts Divided Over Cell Phone Surveillance

US and Canadian Governments Seek Customer Data from Google and Costco

In entirely unrelated circumstances, governments on both sides of the US/Canada border have recently attempted to gain access to databases containing customer data in the hands of private companies.

On January 18, the US Department of Justice (DOJ) filed a motion in the US District Court for the Northern District of California to compel Google Inc (Google) to turn over information on millions of its users’ search queries.

Google has refused to comply with a subpoena, issued in August, 2005, requesting the disclosure of Google search records. Specifically, the DOJ has asked Google “to produce a random sample of one million URLs … and copies of the text of each search string entered onto Google’s search engine over a one-week period (absent any information identifying the person who entered such query).”

Although Google’s competitors, America Online, Yahoo and MSN, have agreed to comply, at least in part, with similar subpoenas, Google asserts that the request is “overbroad, unduly burdensome, vague, and intended to harass” and that to comply with the request would jeopardize its trade secret information. Google has also pointed out that “acceding to the request would suggest that it is willing to reveal information about those who use its services.”

The DOJ says that the requested information would not contain personal identifying information and that any trade secrets would fall under a protective order. It further claims that it is merely trying to establish an Internet use profile that will help it revive the Child Online Protection Act, a 1998 statute that was blocked from taking effect two years ago by the Supreme Court, at least until the government can show more precisely how the legislation would work to prevent obscene material reaching children.

Google says that it intends to continue the fight and vigorously resist the motion. A hearing date in the US District Court in San Jose has been set for February 27th.

For a copy of the DOJ motion filed with the US District Court in San Jose, (and the subpoena served on August 25, 2005), visit:

http://news.findlaw.com/hdocs/docs/google/gonzgoog11806m.html

http://makeashorterlink.com/?C12821F8C

For related news stories, see:

http://makeashorterlink.com/?L23861F8C

http://www.nytimes.com/2006/01/20/technology/20google.html and

http://news.com.com/2100-1025_3-6029348.html

Meanwhile, in Canada, the BC government wants retail giant Costco’s arm in Canada, Costco Wholesale Canada Ltd (Costco), to turn over information about purchases made by BC residents at its Alberta stores.

The BC Ministry of Small Business and Revenue wants Costco’s sales records, dating back as far as 1998, including the names and addresses of BC members who have made the purchases. Because Costco operates on a membership system, customer information, such as names and mailing addresses, is already on file.

The government is trying to track down BC residents who have avoided paying the 7% provincial sales tax on “big-ticket” items by travelling to Alberta to shop at Costco outlets.

Costco is resisting the demand and claims that it violates both the BC and Alberta statutes regarding personal information protection.

The Ministry has faced criticism of its request and has responded by launching a review of its cross-border tax collection policies.

For related news stories, see:

http://makeashorterlink.com/?Q14842F8C

http://www.cbc.ca/story/business/national/2006/01/20/costco-060120.html

Summaries by: Clare McCurley

Report Raises Concerns Regarding Nanotech Regulation

With increased interest in the potential for nanotechnology products – and the fact that some are actually now in production – a newly published report (PEN Report) by the Washington-based Project on Emerging Nanotechnologies discusses the question whether regulation of the field is required in the public interest. The PEN Report, Managing the Effects of Nanotechnology, and authored by Clarence Davies, notes that most statutes or programs do not address the fact that nanomaterials (matter measured by a number of nanometers, or one millionth of a millimeter) behave differently from materials of ordinary size. Says the PEN Report,

"The assumption built into most environmental statutes and the health ones as well is that there is a pretty direct correlation between volume or weight on the one hand and toxicity and exposure on the other hand. That isn't true for nano[materials]."

The US Environmental Protection Agency (EPA) has published a draft white paper on the environmental regulation of nanotechnologies. The white paper echoes some of the concerns raised in the PEN Report. One problem the EPA white paper identifies is that the nomenclature in the existing statutes and regulations do not specifically address nanotechnology, so it would be unclear whether a particular substance would have to be reported to the EPA, or would otherwise be subject to regulation.

For a number of news links, see the following:

http://www.nanotech-now.com/news.cgi?story_id=13343

http://crnano.typepad.com/crnblog/2006/01/debating_nanote.html

http://www.physorg.com/news9983.html

For the EPA White Paper, visit:

http://es.epa.gov/ncer/nano/publications/whitepaper12022005.pdf

For the text of the PEN Report, see:

http://www.nanotechproject.org/index.php?s=file_download&id=30

Summary by: James Kosa

Important Question of Availability of Injunctions in Patent Cases will be heard by the US Supreme Court

The United States Supreme Court has agreed to hear an appeal by eBay Inc (eBay et al v MercExchange LLC, No 05-130) and will consider the issue of the availability of permanent injunctions in patent infringement cases.

The general rule in the US Court of Appeals for the Federal Circuit has been that a permanent injunction will issue once infringement and validity have been adjudged. In only a few rare instances, the Court has recognized an exception to this general rule in order to protect the public interest. In contrast to the position in the United States, in Canada, although injunctions are routinely granted to patentees, they have been refused in special circumstances, which have included the failure on the part of the patentee to make use of the patented invention.

The rationale behind the US position is that the right to exclude unauthorized users recognized in a patent is the essence of the concept of property, despite the Patent Act’s permissive language and reference to “principles of equity” to be applied in motions for injunctions arising from patent infringement. However, the principles underlying “automatic” injunctions were developed in the context of patentees who actively practiced their patents. As a result of the increasing litigation involving so-called “patent trolls” or “submarine patents”, perhaps US courts will adopt a more flexible position.

Much the same general question remains at issue in the now notorious litigation between RIM and NTP, in which Judge Spencer of the United States District Court for the Eastern District of Virginia has scheduled a hearing on injunction relief and damages for February 24, 2006. Judge Spencer may be asked to factor into his analysis the pending eBay appeal. How it will affect his decision remains to be seen.

For a copy of eBay’s Brief, see:

http://patentlaw.typepad.com/patent/eBay_Cert.pdf

For a copy of MercExchange LLC’s Brief, see:

http://patentlaw.typepad.com/patent/Supreme_20Court_20Opposition.pdf

For a copy of an article on the US Supreme Court’s decision to hear the issue of the availability of injunctions, see:

http://news.com.com/2100-1028_3-5973511.html
 
For current reports on the longstanding RIM/NTP litigation, visit these sites:

Paste this title into your search engine: “RIM's and eBay's misadventures in the wacky world of patent law” for a December 14, 2005 article from The Globe and Mail, and also see:
http://makeashorterlink.com/?J4D82409C

Summary by: Katharine McGinnis

Ontario Court Calls for Collaboration Regarding Production of Documents in the Information Age

In a case before the Ontario Superior Court of Justice in which documents to be produced formed part of a larger database and the printing of them would cost $50,000 in copying fees, a Master of the Court has directed the parties to consider electronic discovery.

In the reasons for judgment (Sycor Technology Inc v Kiaer et al, 2005 CanLII 46736), Master MacLeod took a most pragmatic view of the situation:

“Dealing with databases or other electronic documents requires procedural collaboration and a healthy dose of pragmatism and common sense. The volume of information now available electronically may well be the greatest challenge to face civil litigators in the coming years. If thousands of documents exist and must be reviewed by counsel on both sides, the cost of litigation will be driven to astronomical proportions. At the very least there should be consideration given to electronic production of documents that are required and perhaps the use of computer experts to identify what exists and what is truly relevant to the issues that are actually in dispute.”

Master MacLeod directed counsel to the Ontario Bar Association’s guidelines on electronic discovery, and decided to adjourn the motion while counsel sorted out exactly what needed to be produced, and how it was going to be done.

For the full text of Master Macleod’s endorsement, see:

http://www.canlii.org/on/cas/onsc/2005/2005onsc15208.html

For the OBA Guidelines on E-Discovery, visit this site:

http://www.oba.org/en/main/ediscovery_en/default.aspx  and follow the link “Electronic Discovery Guidelines”.

Summary by: James Kosa

Apple iTunes Ministore Software Modified after Concern Voiced by Privacy Advocates

A new version of iTunes, released in mid-January, raised concern from privacy advocates when it was found that the software was sending information about computer users’ playlists back to its supplier, Apple Computer Inc (Apple).

The new software contains a “MiniStore” window which recommends music to iTunes users based on the songs currently in the software’s active playlist. In providing the recommendations, the software sends information about those songs back to Apple, but software experts have found that the iTunes software also transmits to Apple a string of data that is linked to a computer user’s unique iTunes account ID. Apple expert Kirk McElhearn has been quoted as saying that because iTunes users typically sign up for the music store with an e-mail address and a credit card number, the account ID number could, in theory, be linked to that information, as well as a user’s purchase history.

In an attempt to address privacy concerns, Apple has now updated the iTunes software so that a notification is added inside the iTunes software itself when the MiniStore is turned on for the first time. The notification states that “As you select items in your library, information about that item is sent to Apple, and the MiniStore will show you related songs or videos. Apple does not keep any information related to the contents of your music library.” In addition, the notification also informs the user that the MiniStore feature can be turned off, thereby preventing the exchange of information.

For online news stories on this item, visit:

http://news.com.com/2102-1029_3-6026542.html  and

http://makeashorterlink.com/?O27842F8C

Summary by: Katharine McGinnis

US Federal Courts Divided Over Cell Phone Surveillance

After successive failures by the US government in New York, Texas and Maryland courts to obtain cell phone tracking without judicial warrant, the government has prevailed. In late December, for the first time the Department of Justice (DOJ) obtained an order from Judge Gabriel Gorenstein, a magistrate in the Southern District of New York, permitting the tracking of cell phone use without the necessity of first showing probable cause of criminal activity.

As noted in an earlier issue of e-tips®, (November 9, 2005, Vol 4, No 10, “US Courts Reject Applications For Cell Phone Surveillance: The Cell Phone As Tracking Device”), the concern expressed by other lower level courts was that, unlike the situation with land line calls, the tracking of cell phone conversations could lead to the pinpointing of the exact locations of callers, even when the phone was not in use.

However, in the most recent case decided on December 20, 2005 (In re Application of the United States for an Order of Disclosure of Telecommunication etc, No 05 Mag 1763, SDNY), Judge Gorenstein distinguished the earlier cases on the basis that in the fact situation before him the DOJ was seeking only to tap cell phone activity when the subject phone was actually in use and that because only activity from one cell tower was being monitored, this made triangulation (and therefore, locating the geographic source of the call) impossible.

Given an element of conflict and uncertainty arising from the several decisions, privacy advocates are hoping that an appellate court may introduce further clarity to the issues.

For the full text of the most recent decision, see:

http://makeashorterlink.com/?L28812F8C


(These articles were reposted with Permission from ITechLaw Member Firm Deeth Williams Wall, LLP)

January 2006

 - Perspective: Can Video iPod lead do DMCA Reform? (CNET.com)

 - Court Won't Hear Blackberry Case (CNN.com)