Lauren Gelman's blog

FCC May Allow Unlicensed use of 'White Space' Spectrum

Techdirt reports that the Federal Communications Commission may start to allow unlicensed uses in so- called "white space spectrum." WSS is the buffer zone that used to be necessary around broadcast analog spectrum to make sure there was no interference. Finally, the FCC is starting to recognize that technology has made (and will continue to make) interference less of a problem. Therefore, locking up all the best spectrum so that your analog TV channels will work is not the best use of a valuable public resource.

This is a dangerous road for the FCC so you can understand their reluctance. In fact it might just put them out of business. If interference disappears they lose their constitutional justification for selling spectrum at all. In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) the Supreme Court found that it did not violate the First Amendment for the FCC to choose speech winners and losers when they sold exclusive rights to use spectrum at auctions because having some people able to speak was better than allowing everyone to speak at the same time and noone be heard because of the interference. (upholding a FCC rule that required broadcasters to provide a right of reply under certain circumstances.) As technology drops the interference factor to zero, the FCC's spectrum auctions continue to lose their First Amendment bona fides.

We had a conference on this issue 4 years ago. It is nice to finally see some concrete movement from the FCC. Read more about FCC May Allow Unlicensed use of 'White Space' Spectrum

District Court Finds Plaintiff Satisfies “Case or Controversy” Requirement and Sufficiently Alleges Copyright Misuse in Declarat

Plaintiff Carol Loeb Shloss (“Plaintiff”) is the author of Lucia Joyce: To Dance in the Wake, a book describing the creative impact of Lucia Joyce on the literary works of her father, author James Joyce. Defendants Seán Sweeney and the Estate of James Joyce (“Defendants”) own and control copyrights in some of the works of James Joyce and his relatives. When Plaintiff contacted the grandson of James Joyce to request help in writing her book, Joyce’s grandson refused. Read more about District Court Finds Plaintiff Satisfies “Case or Controversy” Requirement and Sufficiently Alleges Copyright Misuse in Declarat

Court Rules on Copyright Preemption of Trade Dress Infringement and State Law Claims

Plaintiff Blue Nile, Inc. and Defendant Ice.com both own and operate online diamond and fine jewelry retail sales businesses. Plaintiff alleged that Defendant copied both certain elements of Plaintiff’s website in violation of the Copyright Act and the “overall look and feel” of Plaintiff’s diamond search webpages. Under Fed. R. Civ. P. Read more about Court Rules on Copyright Preemption of Trade Dress Infringement and State Law Claims

Applying “Expected Norms of Intended Use,” Court Upholds Conviction for Accessing Protected Computer Without Authorization

Rejecting several challenges, the Fifth Circuit recently upheld the conviction of a University of Texas at Austin student violating the Computer Fraud and Abuse Act by intentionally accessing a protected computer without authorization.

I. Facts Read more about Applying “Expected Norms of Intended Use,” Court Upholds Conviction for Accessing Protected Computer Without Authorization

Court Upholds Copyright Infringement and Unauthorized Access Claims Where A Single User License Was Shared By Multiple People

Plaintiff Therapeutic Research Faculty sued defendants – NBTY, Rexall Sundown, and Le Naturiste J.M.B. – for violating the terms of a single user license by allowing access and use by multiple individuals. Therapeutic Research Faculty maintains a database of pharmacist-prepared monographs on drug therapy information. The database is available in print annually and through subscription on a password-protected website. Site licenses for access to the website are sold for thousands of dollars. Read more about Court Upholds Copyright Infringement and Unauthorized Access Claims Where A Single User License Was Shared By Multiple People

MySpace Is Not Liable for Third Party Content and Has No Duty to Protect Users from Sexual Assault

Plaintiffs, Jane Doe and her daughter, Julie Doe, filed suit against Defendants, MySpace, Inc. and its parent company, News Corporation, for the role MySpace played in the alleged sexual assault of Julie Doe. MySpace is a social networking web site that allows members to create online profiles, to create an online community through “friend invitations,” and to communicate with friends through e-mail, instant messaging, and blogs. Julie Doe created a MySpace profile, and 19-year-old Pete Solis contacted Julie Doe (then 14 years old) through MySpace. Read more about MySpace Is Not Liable for Third Party Content and Has No Duty to Protect Users from Sexual Assault

Court Holds Actual Viewing or Recording Unnecessary to Establish a Cause of Action for Invasion of Privacy

Plaintiffs were employed in clerical positions on campus of defendants' residential facility for abused and neglected children. In response to a tip by their computer technician that some of their computers, including the one in plaintiffs' office, were being used to access pornographic websites at night, defendants installed a motion-activated camera in plaintiffs' office without their knowledge or consent. On one occasion, the camera was installed after plaintiffs left for the day and then removed before they arrived the next morning. Read more about Court Holds Actual Viewing or Recording Unnecessary to Establish a Cause of Action for Invasion of Privacy

District Court Declines to Exercise Personal Jurisdiction over Foreign Corporation Hosting Interactive but Non-Service Website

In a suit filed by investors in an apparent pyramid scheme, a district court for the District of Columbia held an interactive but non-service website, attracting a single identified customer, insufficient to establish continuous and systemic contacts for general personal jurisdiction over a United Kingdom corporation. The Court further found insufficient minimum contacts relating to the investment scheme for either specific jurisdiction, conspiracy jurisdiction, or RICO jurisdiction. Read more about District Court Declines to Exercise Personal Jurisdiction over Foreign Corporation Hosting Interactive but Non-Service Website

Record Rental Exception to First Sale Doctrine Only Applies to Musical Works

In Brilliance Audio, Inc. v. Haights Cross Communications, Inc., the Court confronted the question of whether the record rental exception to copyright’s first sale doctrine, codified at 17 U.S.C. § 109(b)(1)(A), applies to all sound recordings, or only sound recordings of musical works. Specifically, this case asks whether the exception applies to sound recordings of literary works such as the audiobooks produced by Brilliance Audio (“Brilliance”). Read more about Record Rental Exception to First Sale Doctrine Only Applies to Musical Works

Proposal would require Tracking Numbers for FOIA requests

According to National Journal's Technology Daily:

The House Oversight and Government Reform Information Policy Subcommittee on Tuesday approved legislation that aims to speed the government's response to Freedom of Information Act requests. CongressDaily reports that the legislation would uphold an existing requirement that government agencies respond to information requests within 20 days but would apply pressure to that deadline by imposing consequences on federal agencies for missing it. The bill also would mandate that agencies provide information requesters with a tracking number to follow the progress of their request either by phone or on the Internet. "Requesters are being forced to wait much longer than necessary for responses from agency FOIA offices," said bill co-sponsor and Missouri Democrat William Lacy Clay.

One of the big problems the journalist in Poulsen v. USCBP had was that the agency never gave him a tracking number and then claimed they lost his FOIA request. Hopefully this could solve that problem. Read more about Proposal would require Tracking Numbers for FOIA requests

Fair Use Project Helps Launch Breakthrough Initiative For Documentary Filmmakers

STANFORD, Calif., February 27, 2007—The Fair Use Project of the Center for Internet & Society at Stanford Law School announced that it has teamed with Media/Professional Insurance and leading intellectual property attorney Michael Donaldson to provide critical support for documentary filmmakers who rely on the “fair use” of copyrighted material in their films. The initiative was announced at the International Documentary Association’s 25th Annual Celebration of Academy Award Documentary Nominees in Beverly Hills February 22, 2007.

“Documentary filmmakers who use copyrighted materials in their work under the ‘fair use’ doctrine of copyright law have come under tremendous pressure in the face of demands for huge licensing fees from copyright holders and overly-aggressive enforcement of copyrights,” explained Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School. Read more about Fair Use Project Helps Launch Breakthrough Initiative For Documentary Filmmakers

Packets 4.2 now available

Packets is production of the Stanford Center for Internet & Society (CIS). It is written by members of the Stanford Law and Technology Association (SLATA), and edited by CIS staff, fellows and volunteer attorneys.

Our purpose is to provide the legal community with a concise description of recently decided cyberlaw-related cases, and where possible, to point to the original decisions. We urge you to forward Packets wherever you please, and to take from it any content you would like.

The writers on the Packets Editorial Board are: Sarah Craven, Elisabeth Derby, Shannon Kenealy, Julia Kripke, Leslie Liang, Charlin Lu, Scott Noveck, Lillian Pan, and Olga Shishkova.

Subscribe and/or read Packets online here. Read more about Packets 4.2 now available

District Court Finds Failure to Demonstrate Circumvention of a Technological Measure in DMCA Claim Involving User Detection Feat

Plaintiff Auto Inspection Services, Inc. (“AIS”) owns the copyright to an automotive inspection program (“AIS’s Program”) that contains a quality control feature designed to track unauthorized use of the program. Defendants Flint Auto Auction, Inc., Inviso, Inc., and Priority Inspections, Inc. (collectively “FAA”) are in the automotive inspection business. FAA obtained a non-exclusive license of AIS’s Program to perform inspection of cars for GMAC in 2003. When an alleged unauthorized user attempted to use FAA’s license for AIS’s Program in 2004, AIS terminated FAA’s license. Read more about District Court Finds Failure to Demonstrate Circumvention of a Technological Measure in DMCA Claim Involving User Detection Feat

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