Packets: Thursday, February 2, 2007, Volume 4, No. 2

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.

Packets are online at:

Second Circuit Upholds Finding of Fair Use in “Appropriation Art” Piece
The Second Circuit upheld a summary judgment finding of fair use by the U.S. District Court for the Southern District of New York in a case involving “appropriation art,” art that incorporates objects and images taken from popular media and consumer advertising. Plaintiff Andrea Blanch, a fashion photographer, sued Jeff Koons, a visual artist, for unlicensed use of one of her photographs in his piece called “Niagara.” Analyzing the case under the four statutory fair use factors in 17 U.S.C. § 107, the court found that Koons’ use was transformative, allowing the court to discount the commercial nature of the new work and the creative nature of the original. The court also found that the extent of Koons’ copying was reasonable in light of his justification, and he did not copy the aspects of the photograph that were a result of Blanch’s artistic direction. Finally, Blanch’s own testimony established that no market existed for her photographs and Koons’ copying had not resulted in any economic harm to Blanch’s career or works. Thus, the factors weighed in favor of a finding of fair use.
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006).

In Propat v. RPost, a case addressing standing to file in a patent suit, the Federal Circuit Court of Appeals affirmed the district court’s decision stating that the plaintiff-licensee did not have substantial rights to file a patent infringement suit in its own name. Propat International Corporation (“Propat”) was a licensee of Authenticational Technologies Ltd. (“Authentix”), the patent owner. The two parties entered into an agreement authorizing Propat to license and litigate one of Authentix’ patents. Propat filed an infringement suit against RPost, Inc.; RPost US, Inc.; RPost International Limited; and three individuals (collectively, “RPost”). The district court dismissed Propat’s action for lack of standing, because Propat was not the patent owner and the agreement between Authentix and Propat did not transfer “all the substantial patent rights.” Therefore, Propat did not have a proprietary interest to sue infringers even if the patent owner joined the suit. Propat v. RPost.

Government May Retain Intermingled Evidence Seized from MLB Drug Testing Labs

In the federal government investigation of steroid use by Major League Baseball players, the United States Court of Appeals for the Ninth District reversed two orders requiring the return of property seized from two laboratories, Consolidated Drug Testing, Inc. and Quest Diagnostics, as well as an order to quash a grand jury subpoena. The government had obtained warrants authorizing seizure of test results and records for ten named Major League Baseball players, which resulted in the seizure of data intermingled with the results of other players. In addition, an entire computer directory of files was copied and searched. The Major League Baseball Player’s Association objected to the overbreadth of the search and obtained orders to return seized property unrelated to the ten specified players. After reviewing the three orders, a divided Court of Appeals held that the seizure of intermingled data was legal and did not constitute “wholesale seizure.” Moreover, the intermingled evidence need only be sealed and presented to a neutral magistrate for review upon proper objection by the aggrieved party. Thus, all three orders were reversed, although the cases of seized property were remanded for magistrate review of the evidence.
United States. v. Comprehensive Drug Testing, (9th Cir. Dec. 27, 2006).

Supreme Court Holds Licensees in Good Standing May Seek Declaratory Judgment on Patent Validity, Enforceability, or Infringement

Petitioner, a patent licensee in good standing, appealed dismissal of its declaratory judgment claims for lack of subject matter jurisdiction. The Supreme Court held that petitioner had established an Article III case or controversy as required by the Declaratory Judgment Act, 28 U.S.C. §2201(a), and thus, that dismissal was inappropriate. Because the threat of a patent infringement suit served to coerce petitioner into making royalty payments, the payments did not constitute a resolution to the controversy.
MedImmune, Inc. v. Genentech, Inc., 549 U.S. ___ (2007).

Providing Unauthorized Link to Live Audio Webcast Likely Constitutes Copyright Infringement

Plaintiff, SFX Motor Sports, Inc. (now Live Nation Motor Sports, Inc.), sued Robert Davis for providing a link to audio webcasts of its motorcycle racing events on his website, alleging trademark infringement, copyright infringement, and unfair competition. The Court analogized Davis’s unauthorized website link for audio webcasts to the unauthorized satellite transmission of live television broadcasts in National Football League v. PrimeTime 24 Joint Venture, 211 F.3d 10 (2d Cir. 2000). As a step in the process by which copyrighted works made their way to an unintended audience, either unauthorized act should be considered a public display or performance for the purposes of a copyright claim. Accordingly, the Court held that Davis’s unauthorized website link likely constituted copyright infringement and granted Plaintiff’s motion for preliminary injunction.
Live Nation Motor Sports, Inc. v. Davis, No. 3:06-CV-276-L (N.D. Tex. 2006).

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

Plaintiff Auto Inspection Services, Inc. (“AIS”) sought a preliminary injunction against Defendants Flint Auto Auction, Inc., Inviso, Inc., and Priority Inspections, Inc. (collectively “FAA”) for copyright infringement and violation of the Digital Millennium Copyright Act (“DCMA”) with respect to an automotive inspection program. In the copyright infringement action, the Court found that AIS failed to demonstrate substantial similarity of their program with FAA’s program. In the DMCA claim, the Court found that AIS failed to demonstrate that FAA circumvented a technological measure that controls access to AIS’s source code. The Court therefore dissolved a TRO against FAA and denied AIS’s motion for a preliminary injunction.

Court Declines to Follow Other Circuits on Use of Trademarks in Metadata

Declining to follow similar cases in other circuits, a federal district court for the Eastern District of Pennsylvania ruled that a website’s attempt to increase its ranking in search engine listings through invisible use of a competitor’s trademarks, either through hidden meta tags or as a keyword to trigger its own paid advertisements, does not violate federal trademark law under the Lanham Act. The court’s decision rests on its determination that consumers who enter a trademarked term into a search engine should be aware that the search results contain sites which are related to the trademark, but may not be about the subject of that trademark or belong to the trademark owner. Because of this, the court concluded that consumers should investigate any site listed in the search results before concluding that it belongs to the trademark owner, avoiding any likelihood of confusion and any violation of the Lanham Act.
J.G. Wentworth, S.S.C. v. Settlement Funding LLC

An Ohio District Court Rejects a Constitutional Claim for Privacy in Personal Information When the Only Identifiable Risk is Fin

An Ohio district court held that a party fails to state a federal privacy claim in personal information when the only risk identified is that of financial harm. Plaintiff Lambert’s personal information, including her driver’s license and social security numbers, were published on a county government’s website, resulting in identity theft and financial loss. The court held that Lambert’s alleged privacy interest in her personal information did not implicate “a fundamental right” or “a right implicit in the concept of ordered liberty” since she only identified a risk of financial harm rather than a risk to personal or bodily integrity. The court also dismissed state law privacy claims taken under supplementary jurisdiction.
Lambert v. Hartmann, No. 1:04CV837, 2006 WL 3833529 (S.D. Ohio Dec. 29, 2006)