Packets: Volume 2, No. 4

Court Finds Signals Captured by Keylogger Device are Not “Electronic Communications” where Keystrokes are Not Transmitted to the

by Lauren Gelman, posted on February 15, 2005 - 5:27pm

The defendant attempted to intercept electronic communications in alleged violation of 18 U.S.C § 2511 (1) (a), known as the Wiretap Act. This Act was written to protect the privacy of electronic, oral, and wire communications. The defendant installed a device called a KeyKatcher. This device was placed on the cable that connects the keyboard to the central processing unit (CPU). The KeyKatcher records the electronic impulses that are sent to the CPU when a key is depressed. These impulses can be translated into text so that a transcript of everything that was typed can be obtained. The court addressed the issue of whether Ropp was liable under the Wiretap Act for intercepting “electronic communications”. The Act defined “electronic communications” as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, electromagnetic, photoelectric or photooptical system that affects interstate or foreign commerce”. 18 U.S.C § 2511 (1) (a). Ropp argued that because the intercepted communications only took place on a local system, the communications did not affect “interstate or foreign commerce”.

U.S. District Court Holds that Florida Electronic Voting Procedures Meet Constitutional and Statutory Requirements
by Lauren Gelman, posted on February 15, 2005 - 5:24pm

Florida Congressman Robert Wexler filed an action in Florida circuit court against Palm Beach County Supervisor of Elections Theresa LePore, Florida Secretary of State Glenda Hood, and the Palm Beach County Board of County Commissioners. Wexler was seeking declaratory and injunctive relief to prevent the use of the Sequoia electronic voting system in Palm Beach County, on grounds that this system does not enable manual recounts in compliance with Florida statutes. The suit was dismissed for lack of standing and for lack of a cause of action. The dismissal was affirmed by the Fourth District Court of Appeal, on the basis that the Secretary of State had already adopted rules for recounts on these machines, and that there was no objection made to the rules themselves. This suit is now pending before the Florida Supreme Court. At the same time as the appeal, Wexler et al. filed an action under 42 U.S.C. § 1983 in U.S. District Court in the Southern District of Florida against LePore, Hood, et al., claiming that the non-uniformity of manual recount procedures across voting machine types is a violation of voter rights under the 5th and 14th Amendments. The suit was initially dismissed, as the District Court found that the federal suit would interfere with the simultaneous appeal in state court. The 11th Circuit vacated the judgment and remanded to the District Court.

Claim Term is Defined by Specification and Prosecution History rather than Dictionary Definition
by Lauren Gelman, posted on February 15, 2005 - 5:22pm

This case concerns how patent claim interpretation can be narrowed by the specification and prosecution history. The invention at issue was a surgical mesh plug that is placed on the weakened muscle wall area of a hernia so that muscle cells can grow on the plug and restore the strength of the muscle wall in the affected area. C. R. Bard, Inc. obtained U.S. Patent No. 5,356,432 on the surgical plug. When U.S. Surgical made a similar surgical plug, Bard sued for infringement. Though Bard prevailed at trial on claim 21, the District Court granted summary judgment of non-infringement as to claim 20. Bard appealed the District Court’s claim construction and final judgment on claim 20 to the Federal Circuit Court of Appeals.On appeal, Bard argued that the claimed surgical plug could be either pleated or non-pleated. U.S. Surgical maintained that claim 20 was limited to pleated surgical plugs only. Claim 20 was silent on its face as to whether the surgical plug required pleats or not. The Court said that the specification and prosecution history of a patent are parts of the intrinsic record that are to be primarily used to interpret claim meaning. Bard argued that dictionary definitions of patent claim terms override interpretations found in the intrinsic record. The Court disagreed. It stated that dictionary definitions can be helpful in interpreting ambiguous claim terms but they “do not require, or even allow, the Court to disregard the intrinsic record.” The Court did not find dictionary definitions of Bard’s claim terms governed over the intrinsic record because the specification defined the surgical plug in many places as being pleated.

European Court of Justice defines the scope of Database Directive protection to exclude obtaining, verifying or presenting data
by Lauren Gelman, posted on February 15, 2005 - 5:20pm

The European Court of Justice interpreted and clarified the scope of the sui generis right (a custom-made legislation) in database as provided for in the Directive 96/9/EC – Legal Protection of Databases as excluding football fixture lists or horseracing lists from protection on November 9, 2004 in four similar matters.Fixtures Marketing licenses fixture lists for the top English and Scottish football leagues outside the UK on behalf of the professional football leagues. The organizers of the leagues create the fixture lists at the start of each season store them electronically and print them in booklets. The lists take into account factors like, the need to ensure the alternation of home and away matches, the need to ensure that several clubs from the same town are not playing at home on the same day, the constraints arising in connection with international fixtures, whether other public events are taking place and the availability of policing. Various companies organize pool betting in their countries namely, Finland, Sweden and Greece, by using data relating to matches in the English & Scottish football leagues without obtaining a license from Fixtures Marketing.

District Court Dismisses Internet Archive’s Challenge to Copyright Regime
by Lauren Gelman, posted on February 15, 2005 - 5:18pm

District Judge Maxine M. Chesney of the Northern District of California has granted the government’s motion to dismiss Kahle v. Ashcroft. Judge Chesney rejected the plaintiffs' arguments that changes to copyright law over the past 28 years have so restricted the public's access to thousands of historically valuable works as to violate the First Amendment. Plaintiffs, the Internet Archive and its chairman Brewster Kahle, and the Prelinger Film Archive and its president, Richard Prelinger, sought declaratory judgment that the Copyright Renewal Act of 1992 (“Copyright Renewal Act”), the Sonny Bono Copyright Term Extension Act (“CTEA”), the Copyright Act of 1976 (“1976 Act”), and the Berne Convention Implementation Act (“BCIA”) are unconstitutional as applied to works created between January 1, 1964 and December 31, 1977.

New York State Division of Tax Appeals Holds That Software Deficiency is Reasonable Ground to Avoid Imposition of Penalties for
by Lauren Gelman, posted on February 15, 2005 - 5:15pm

The New York Division of Tax Appeals considered whether a petitioner had demonstrated that a tax software error was a reasonable cause, and not willful neglect, for underestimating its tax liability, which in turn led to penalties for late filing and payment. The Petitioner in the case, RAC for Women, Inc. relied on tax software to prepare its 2000 and 2001 tax returns, and to request an extension for the filing of the 2001 taxes. The company's 2001 tax liability was eventually calculated at $5,235. The previously filed extension request required estimation and payment of this amount. To be valid, the estimation had to be either 90% of the actual 2001 liability or 100% of the previous year's tax liability (which in this case was $225). In its extension request, however, RAC for Women estimated its 2001 liability as $100. The extension was therefore invalidated since the $100 estimate was clearly erroneous (as it was neither 90% of $5235 nor $225). The company was eventually asked to pay $1,513.05 in penalties for underpaying the estimated tax in the extension request, for late filing (because the extension was invalidated), and for late payment.

District Court dismisses Contributory and Vicarious Copyright Infringement suit against credit card companies

by Lauren Gelman, posted on February 15, 2005 - 5:13pm

Plaintiff, Perfect 10, Inc, is a California corporation providing adult entertainment services, including a magazine and website featuring nude models. Perfect 10 owns the copyrights on most of the images displayed, the trademark “perfect 10” and also the right of publicity for many of the models.A group of websites (referred to as the Stolen Content Websites) displayed pornography featuring prominent actresses; and published material that allegedly infringed Plaintiff’s copyright and trademarks. Defendants Visa and Mastercard provide financial services to these websites, allowing them to process those credit cards as a method of payment.Pa