The Justice Department Attempts to Increase its Ability to Introduce Warrantless

POSTED BY Edwin Batista

On Friday, October 25, 2013 the Justice Department gave notice that it was going to use information obtained from acquisition of foreign intelligence information authorized under the Foreign Intelligence Surveillance Act against suspected terrorist Jamshid Muhtorov. Muhtorov was charged with providing material support to the Islamic Jihad Union, a known foreign terrorist organization, in 2012. This is the first time since 2008, when the Foreign Intelligence Surveillance Act was signed into law, that the government has admitted to using surveillance obtained from the law in a criminal prosecution.

Muhtorov was arrested in 2012 on suspicion that he was trying to participate in a terrorist attack after the FBI intercepted an email from his accounts allegedly sent to the Islamic Jihad Union.  The Supreme Court has held that if the government intends to use electronic information obtained under the Foreign Intelligence Surveillance Act in a judicial proceeding, it must provide advance notice and the accused may challenge the lawfulness of the acquisition. The Justice department has fulfilled its duty of providing advance notice that it will be using electronic information obtained under the act against Muhtorov and Muhtorov’s lawyers will be allowed to file a motion to suppress the evidence and challenge the validity of the government’s authority to perform surveillance on the international communications of its citizens.

The Justice Department’s filing constitutionality will most likely be challenged.  If the act is upheld, it will give the Justice Department another powerful tool to stop terrorism before it can strike but will likely produce some unintended consequences. Citizens may censure their legitimate conversation with people outside of the United States for fear that such conversation may be misconstrued and may lead to an invasion of their privacy and possible issues with law enforcement.

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The Denial of NCAA’s Motion to Dismiss Student-Athletes Name and Likeness Licensing Litigation

POSTED BY Rajat Bhardwaj

The recent denial of Motion to Dismiss of National Collegiate Athletic Association (NCAA) Student-Athlete Name and Likeness Licensing Litigation by District Judge Claudia Wilken marked a drastic change in thought on compensating student athletes. A group of twenty-five current and former college athletes pursued two claims against the NCAA: four pursued a right of publicity claim for misappropriation of their names, images, and likeness; and twenty-one pursued an antitrust claim for NCAA conspiring with Electronic Arts Inc. (EA) and Collegiate Licensing Company (CLC) to restrain competition in the marker for commercial use of their names, images, and likeness. The most recent dismissal only addressed the latter under the Sherman Antitrust Act, 15 U.S.C. §1.

This action stems from May 2011 when the Plaintiff’s filed the second Consolidated Class Action Complaint (2CAC). They alleged that the NCAA required student athletes to sign forms relinquishing all rights to commercial use of their images, including after they graduated and no longer subject to NCAA regulations. NCAA subsequently relied on these “misleading” forms and sold and licensed the student-athletes names, images, and likeness to third parties such as EA and CLC, who then made profit from these agreements. In September 2012, the Plaintiffs narrowed their claims specifying the class of students to include whose names, images, and likeness were featured in game footage or videogames; emphasizing damages from review generated in live television broadcasts; and identifying specific markets: “Division I college education market where colleges and universities compete to recruit the best student-athlete” and the “market for the acquisition of group licensing rights for the use of student-athletes’ names, images and likenesses in the broadcasts or rebroadcasts of Division I basketball and football games and in videogames featuring Division I basketball and football.”

This was followed by a third Consolidated Class Action Complaint (3CAC) which maintained the Plaintiffs’ price fixing and group boycott claims; added the class specification; and included six current NCAA football players to the complaint. In September 2013, EA and CLC agreed to a settlement with Plaintiffs but the NCAA claim remained affective. The court recently denied the motion to dismiss the complaint on three grounds.

First the court recognized the Plaintiffs’ theory alleges that NCAA’s prohibition of monetary compensation on student athletes hinders competition in the market for Division I student-athletes which would otherwise prevail in a competitive market. Although the court recognized tradition of amateurism in college sport, it asserted that this does not bar students from receiving monetary compensation for commercial use of their names, images, and likeness.

Second, considering the allegations in 3CAC most favorable to the Plaintiff, the court suggested that it is plausible broadcast footage, especially stock footage and broadcast footage sold to advertisers, was used primarily for commercial purposes. Thus, the First Amendment does not dismiss Plaintiffs’ claims related to broadcasting.

Finally, NCAA argued that the Copyright Act preempts the application of right of publicity to broadcast college football and basketball games. However the court noted that the right of publicity claims of the Plaintiff was notably different than those protected by Copyright Law since they do not actually own any game footage described in the complaint. On the contrary, the Plaintiffs’ seek the right to license the commercial use of their names, images, and likeness in certain broadcast footage. Furthermore, federal courts have emphasized, “Intellectual Property rights do not confer a privilege to violate the antitrust laws.” Thus, the Copyright Act does not affect the underlying claims because they are based on injury to competition and not on misappropriation.

The Plaintiffs and NCAA have not yet engaged in settlement talks but this case may carry a risk of tens of millions to even billions of dollars. Where one side of the continuum maintains lack of compensation to be essential to maintain integrity of the amateur culture of college sports, the other asserts fairness in providing athletes with compensation, beyond college scholarship, for using the students’ names, images, and likeness. If settlement talks do not commence soon, we are sure to see an energetic debate where tradition clashes with equity.

It is clear that NCAA is generating significant revenue, $871 million  in revenue for 2011-2012 with 81 percent from television and marketing rights fees, by utilizing the likeness of their athletes. A duty is owed to these athletes to ensure that at least a certain level of consideration is allotted to them for their service beyond a college scholarship. Not all student athletes are able to ensure a decent standard of living after they graduate and some come from fairly unprivileged backgrounds. It is important to look out for their futures, as it is their hard work and dedication that has provided the NCAA with its level of success.

Google Books and Fair Use – Balancing Authors Rights with Innovation

BY Michael Yacubian

Anyone who has conducted research within the last 10 years knows the invaluable resource that Google can provide in finding source material. All one needs is a topic and a few keywords and the information is a click away. One of Google’s distinctive features that separates it from other search engines is its implementation of millions of digital book samples that can be searched word for word. This resource, now known as “Google Books” was implemented in 2004 when Google announced agreements with several major research libraries to digitally copy books in their collections.

Since then Google has scanned more than twenty million books. In its agreement with research libraries, Google has delivered digital copies to participating libraries, created this electronic database of books, and made text available for online searching through the use of “snippets.”

The problem however, is that many of the books scanned by Google were under copyright, and Google did not obtain permission from the copyright holders for these usages of their copyrighted works.

The snippets that Google provides in a search are only samples of the larger work, and in “snippet view” Google divides each page into eighths – each of which is a “snippet,” a verbatim excerpt. This may seem harmless, but authors are still concerned that their market viability will decrease with such technology that does not provide for any fee. In fact, each search by users of Google’s free application generates three snippets and by performing multiple searches using different search terms, a single user may view far more than three snippets, as different searches can return different snippets.

Here in lies the problem, and opponents to the technology believe that in providing users with free samples of these copyrighted works infringes the author’s right of ownership.

The battle between Google Books and the Authors Guild has waged for 8 years, with numerous decisions going each way. However, after almost a decade, Google’s principal defense of fair use under §107 of the Copyright Act, 17 U.S.C. §107 has proven successful. The Judge in the deciding decision, New York U.S. Circuit Judge Denny Chin, said the book scanning amounted to fair use because it was “highly transformative” and did not harm the market for the original work.

The doctrine permits the fair use of copyrighted works “to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” See 17 U.S.C § 107. The courts argue that it does just that.

The ruling has been praised by many, such as the Association of Research Libraries (“ARL”), who intervened in the case to urge the court to declare that Google Books was fair use. They assert that Google’s practice amounts to fair use because it is a “fair” balance between the rights of authors against the broader interests of society.

Despite this expensive and uphill battle, the Author’s Guild intends to appeal. They, along with their constituents assert that the ruling is unlikely to sit well with many authors, who criticize Google’s scanning as an indignity and a money grab that is harmful to research authors’ market viability.

While Google certainly does obtain an advantage over other search providers with the infusion of this technology, it does not seem to profit unreasonably for such advancement at the authors’ expense. William McGrath, intellectual property professor at The John Marshall Law School commented:

“Google Books is not a tool used to read books, so it should not be expected to harm authors by usurping their market. If anything, it will benefit authors because it facilitates the purchase of books that researchers find using Google’s text-searching capabilities. Key to the court’s ruling is its finding that the digitization of the books is ‘transformative’ under the fair use doctrine, turning regular book text into searchable data.”

Read more here.

The truth is Google’s library acts just as such, a giant library where users can browse at their leisure a large database of research books. This new service that Google has provided, converting older works into the digital medium allows for fast and efficient searching unlike anything before. Transforming the printed word into the digital word is something that will benefit not only the reader but the authors as well. As suggested by the citing decision, by providing this service and allowing users to search through this new database it may even breathe life into many forgotten research materials.

Furthermore, the availability, or more exactly, the free availability of research materials only promotes the wealth of society. The only potential harm is that it may hinder researchers from undergoing long research endeavors if they believe they will not be justly compensated. However, this contention has not been shown to hold any weight. Until such a time when researches can say that the free availability of academic materials does more harm than good, fair use will prevail.

In case, Google Books seems to be doing more good than harm, and that’s exactly what fair use intends to protect. Innovation at its best.

IBM Alleges Twitter Violated Three of Its Patents

BY Nick Hasenfus

Although Twitter is very popular, it has not yet been profitable.  Because of this, Twitter wants to go public to raise money much like Facebook and Google have.  In the first six months of 2013, Twitter has lost over $69 Million although revenue has more than doubled from 2012 to $253 million with a yearly estimated earning of $650 million.  In Twitter’s statement to the SEC they acknowledged another financial problem they may run into, IBM has alleged that Twitter has infringed on three of its patents.

As reported in a recent CNET story, Twitter has revealed that IMB has alleged three patent infringements by Twitter.  The three patents in question are: U.S. Patent No. 6,957,224: Efficient retrieval of uniform resource locators; U.S. Patent No. 7,072,849: Method for presenting advertising in an interactive service; and U.S. Patent No. 7,099,862: Programmatic discovery of common contacts.   IBM has invited Twitter to try and settle these issues out of court before Twitter goes public.

In Twitter’s SEC filing, which can be read here, Twitter reveals that they are, “involved in a number of intellectual property lawsuits” and that they expect they will continue to be involved in more.  Twitter also states that it is hard for them to tell which intellectual property claims they are violating, but any claims, settled or not, may be expensive and will take time, as well as resources, away from managers.  Furthermore, Twitter cannot say what kind of impact any intellectual property lawsuit rulings may have.

It is going to be difficult for Twitter regardless of their decision to settle or go to court with Microsoft.  Twitter does not have as much money to pay attorneys like Microsoft would.  Further, if Twitter decided to settle with Microsoft, they may have to pay a lot of money in licensing agreements.  It may be best for Twitter to try and settle out of court, and if Microsoft still believes they have infringed on their patents taking Microsoft to court may be less expensive in the long run for Twitter than a hefty licensing agreement especially because Twitter claims in their SEC filing that they have defenses to Microsoft’s claim.

Driving with Google Glass

POSTED BY Stephanie Surette

Last week, a California woman received a ticket for wearing Google Glass while driving. Google Glass is a wearable computer that looks like a pair of eyeglasses and the device’s display is above the wearer’s right eye. The driver was originally pulled over for speeding but she ended up with a different ticket – one for having a monitor in the car that is visible to the driver.

The California law that spurred this ticket was California Vehicle Code Section 27602, which states that “a person shall not drive a motor vehicle if a television receiver, a video monitor, or a television or video screen, or any other similar means of visually displaying a television broadcast….is located in the motor vehicle…[and the] display is visible to the driver while driving the motor vehicle.”

The driver claims that her Google Glass was not on when she was pulled over, but California’s law appears to be broad enough to cover Google Glass. One blogger argues that Google Glass is safe to drive with because it’s hands-free, and it doesn’t block your view.  If you’re using it as a navigation tool while driving, it may be safer that using a traditional GPS because you never have to take your eyes off the road.  The screen portion of Google Glass can be turned off and the device can instead give the driver turn by turn voice instructions.

While is it understandable that law enforcement is concerned that Google Glass could be a distraction for drivers, the issue can only be expected to grow.  Currently, the device is available to “explorers” and the price tag hoovers around $1,500. It is rumored that it will be available to the public next year with a price tag in the $300 dollar range. Given the novelty of the item, many more people could be owners of Google Glass around this time next year.  Additionally, a company is currently working on manufacturing prescription lenses for the device, meaning that people could use Google Glass instead of traditional corrective eyewear.

Police departments across the country will be put in a difficult position if Google Glass takes off.  Officers may not be able to tell if a driver is actively using Google Glass, or if they’re being used as prescription lenses.  State driving laws are trying to keep up with technology by prohibiting drivers from watching movies/TV while driving in the name of safety, but this device goes beyond that. Google Glass could also be corrective lenses for some drivers, which is also an important safety concern.  Police officers may have to make judgment calls on the road if state laws do not carve out some exceptions for Google Glass.

The Danger of Online Trading

POSTED BY Jared BIshop

Online trading has been a popular area of business for over a decade. It has in turn created a whole new brand of commerce, known as e-commerce. With websites such as Amazon, eBay, craigslist, and more, consumers are now able to trade amongst each other through the internet. But this has caused an influx of criminal activity, mainly fraudulent trading. In a recent investigation, a group of Eastern European men have been charged for a multimillion-dollar online trading scam.

Nicolae Popescu is alleged to be the leader of the group, and has allegedly placed false advertisements on eBay, cars.com, autotrader.com, and cycletrader.com. The alleged scheme went on for about a year between 2011 and 2012 and the group allegedly made over $3 million. By offering fake cars, motorcycles, and boats, the alleged defendants were able to capitalize on the arguably unsecured online trading websites. The men are not believed to be in the United States and if found, the United States would need them to be extradited to the United States in order for prosecution.

Online trading is available worldwide; therefore various charlatans can be anywhere. This has become a more profound issue as six people were arrested last December for the same violation. These men were from Romania, the U.K., Canada, and the Czech Republic. The men were extradited to the U.S for charges.

Clearly online trading fraud is an issue that needs to be addressed internationally. People across the world are taking advantage of unsecured websites at the expense of other online traders. The problem lies in the ability to strengthen security on online trading websites to avoid these million dollar scams, and other smaller scale scams. Ideally, an international policy should be established to somehow strengthen the securities and background checks of online trading, especially such high valued goods, such as cars. Without an international policy, the online trading scams will continue to rise and it will be more difficult to mandate online trading websites to become more secure.

Consumers need to be more cautious of online trading, especially in this day and age. Until an international policy is developed, traders will continue to scam other traders, and because the websites are international, it is becoming more and more difficult to track these conartists.

What to Expect with “Minority Report” Technology

POSTED BY Bridget Sarpu

Industrial Technology Research Institute (ITRI) is a nonprofit research and development organization located in Taiwan engaged in applied research and technical services.  Globally, ITRI has 23 international collaborations with major companies like IBM, Nokia, Microsoft, and Motorola.  ITRI has played a vital role in transforming Taiwan’s economy from a labor-intensive industry to a high-tech industry.  ITRI has developed numerous technologies including WIMAX wireless broadband, solar cells, and light electric vehicles.   ITRI has also had extensive involvement with the intellectual property business and is devoted to making Taiwan manufacturing a competitor internationally.  Currently, ITRI holds more than 19,709 patents that they have licensed to companies.  Their newest technological advancement is a floating augmented-reality touch-screen system and ITRI is ready to license the technology to an interested buyer.

The product called i-Air Touch (iAT) Technology is a floating augmented-reality touch-screen system.  Very similar to the computer screens seen in the movie “Minority Report,” the technology basically “projects a virtual touch-based interface outward and within the user’s field of vision.”  Not only does this screen appear to float in the air, but the software can accurately measure the placement of your hands and fingers so it can respond to being “touched.”  Watch a video here: Video of technology in use for a better understanding of how the technology would work.

iAT was officially introduced last week and will receive a 2013 R&D 100 Award in November.  ITRI says the technology is available now          for licensing by mobile companies and anyone else.  Google might have a real interest in trying to acquire a license for the patent considering it could potentially be added software to Google’s upcoming technology of Glass.  Instead of controlling the wearable computer with head movements, voice commands, touching the glasses or entering commands into the app on a smartphone, i-Air Touch users can type on the “floating” keypad, keyboard, mouse or touch panel allowing for flexibility, privacy, and convenience as the user wears them.  So what if Google or any other company wanted to use the technology? What does it take for them to use the invention?  The companies would need to seek to license the patent from ITRI.

Licensing occurs when the owner of a patent grants exploitation rights over a patent to an interested third party.  A license is a legal contract, and so it contains terms the licensee must comply with.  Because ITRI wants to license their iAT Technology, they are looking to form a contract, seeking royalties as a repayment.     With Google Glass ready to be released in Spring 2014, with users directing the wearable computer with head nods and vocal commands, Google might be interested in a license agreement with ITRI.  If Glass could work with the ITRI technology, they debatably would revolutionize the wearable computer and continue to change how society will function.  ITRI could benefit off the license because although the technology is amazing in its own right, the glasses they advertise with are too big and bulky, unlike Google Glass sleek and trim glass model.  Google Glass is ready to be worn for every day use.

What we can expect within the month is the iAT floating augmented-reality touch-screen system to make a statement in the intellectual property world.  With the R&D 100 Award and the company ready to license, who knows what major technological company will try to use ITRI’s software for the latest industry.  Within the IP world, in the near future, I am sure we will see valid licensing of the ITRI patent, along with some intense patent infringement litigation.  With this advancement in technology, like the reaction with Google Glass, legislatures and lawmakers will want founded policy on all issues relating to the technology: privacy law, bans in certain places, driving safety, etc.  We can also assume to see this technology sooner rather than later and then we all may be living  “Minority Report.”