' Technology | MTTLR

The Right to be Forgotten

This past May, the Court of Justice of the European Union approved “the right to be forgotten” in a case brought by Mario Costeja against a newspaper and Google, a move which fundamentally changed our notions of Internet privacy. More than a decade earlier, Costeja had posted two notices about an auction of his property to pay off debt, and the links to the notices were still appearing in the search results when Googling his name. Costeja brought suit in an effort to remove the links from the search results. The court said the links could be removed if they were found to be “inadequate, irrelevant or no longer relevant.” Under the right to be forgotten, only searches that include a person’s name will provoke the search result removal, which means that the articles or website can still show up in the results if the search is under a different keyword. The European Union’s right to be forgotten has spurred much concern for free speech campaigners, who claim the ruling unjustly limits what can be published online. Privacy advocates, however, are praising the ruling for allowing people some exercise of power over what content appears about them online. This new right creates a process for people to remove links to embarrassing, outdated, and otherwise unwanted content from Google and other search engines’ results. Courts are directed to balance the public’s interest in access to the information in question and the privacy interests of the person affected by the content. As of now, the ruling applies only to Google’s local European sites, such as Google.de in Germany, Google.fr in France,...

Will federal legislation make consumers’ private information safer?

After JP Morgan’s computers were penetrated in the early summer of 2014 by hackers, exposing the personal information of the firm’s customers, the firm did not disclose the breach until late in the summer.[1] Over 76 million customers’ contact information—phone numbers and email addresses—were stolen.[2] The Connecticut and Illinois Attorney Generals started scrutinizing JP Morgan’s delayed notification to their customers that their contact information was obtained by hackers, taking issue with the fact that JP Morgan “only revealed…limited details” about the extent of the breach.[3] Both attorneys general are assessing whether JP Morgan complied with their state privacy laws—mainly their state’s data breach notification laws. With the size of JP Morgan and with 76 million customer information breached, it is safe to assume that residents of Connecticut and Illinois were not the only ones whose personal information was compromised. Data breach has become a big issue not only for JP Morgan, but for many other companies. The same hackers who breached JP Morgan’s security wall attempted to get customer data from Deutsche Bank, Bank of America, Fidelity and other financial institutions.[4] Hackers breached Target and Home Depot’s customer credit information, taking 40 million of Targets’ customer credit card information and 56 million of Home Depot’s customer credit card information.[5] Data breach and data lost seem to be inevitable, whether it is through someone working internally for an organization—à la Edward Snowden—or through hackers— like in the case of JP Morgan, Home Depot and Target. Regardless of how data is lost, there is a need to evaluate the best approach in notify a consumer when someone else obtain a consumer’s...

CVSG Filed in Commil: Is This Yet Another “Fundamental Misunderstanding” of Patent Law by the Federal Circuit?

On June 2nd, the Supreme Court unanimously reversed the Federal Circuit’s decision in Limelight Networks, Inc. v. Akamai Technologies, Inc. The Court found a defendant could not be held liable for induced infringement of a patent under 35 U.S.C. §271(b) where there has been no infringement under §271(a). In the opinion, the Court had some harsh words for the Federal Circuit. The Court was uncertain why, despite the “simple truth” that liability for inducement must be predicated on direct infringement (to which all parties and the Federal Circuit agreed), the Federal Circuit nonetheless continued its analysis. Ultimately, the Court felt that “the Federal Circuit’s analysis fundamentally misunderstands” method patent infringement.  The amicus brief filed by the Government on October 16th in Cisco Systems, Inc. v. Commil USA, LLC suggests that if and when the Court considers the case, it might reject the Federal Circuit’s decision with comparable vigor. Commil alleged that Cisco both directly infringed and induced infringement of its method patent for hand-offs of mobile devices between base stations in a wireless network system. During the district court trial (the second, the first being reversed after an attempt to unfairly prejudice the jury by counsel for Cisco), the jury found for Commil on both issues and awarded $63.7 million in damages (with an additional $10.3 million awarded by the court for prejudgment interest and costs). On appeal, Cisco argued that the jury instruction on the claim of induced infringement used the language of negligence as opposed to instructing the jury on the higher scienter requirement the Court has adopted for induced infringement cases. Of greater importance, the Federal...

“We Don’t Care”? Maybe Kanye should…

140 characters may not seem like enough room to really say something of value. But if Kanye West is saying something, it can be worth a lot more than one may expect. Etsy seller “supervelma” has hand-stitched popular tweets from the rapper Kanye West onto fabric, framed them, and is currently selling them for $45 each on the online craft retailer Etsy. Understandably, West may be upset that someone else is profiting off of his hard-earned Twitter notoriety, but does he have a remedy? Copyright is the traditional form of protection for works of art. Having a registered copyright can prevent others from reproducing the work, making a derivative piece of art based on your original work, or further diluting the value of your work by displaying it. West could argue a claim of copyright infringement, however he may encounter difficulty proving that a tweet can actually receive copyright protection. Many tweets simply state facts—which cannot be protected by copyrights—or link to news articles, whose headlines are generally found to be insufficiently creative to warrant copyright protection. It is also debatable whether a tweet like, “Fur pillows are hard to actually sleep on” meets the de minimis requirement of creativity that a copyrighted work must have. Most copyright experts agree that there is not a bright line rule about whether tweets can gain copyright protection; a copyrightable tweet would certainly be the exception rather than the norm because of the observational nature of Twitter. West—a professional wordsmith—might be able to make a stronger argument than most that his tweets go beyond mere observations, and are artistic expressions that might...

Appellate Review of Markman Hearings

In Markman, the Supreme Court declared that determining the meaning of patent claims, i.e. “claim construction,” is a question to be decided by the court; the Seventh Amendment right to a jury trial does not apply. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996). Shortly thereafter, in Cybor, the Court of Appeals for the Federal Circuit held that de novo review applied when results from these newly-created ‘Markman hearings’ are appealed. Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1451 (Fed. Cir. 1998) (en banc).   Earlier this year, the Federal Circuit granted a rehearing en banc to determine if Cybor should be overruled, and what, if any, deference should be given to a District Court’s claim construction. Lighting Ballast Control LLC v. Philips Electronics N. Am. Corp., ___F.3d___, WL 667499 (Fed. Cir. Feb. 21, 2014) (en banc). The court considered three options: (1) reaffirm Cybor and maintain de novo review, (2) overrule Cybor and declare claim construction a question of fact, or (3) adopt a “hybrid” standard of review that affords deference to the District Court’s factual determinations but preserves de novo review of the “ultimate” conclusion. Amici from industrial and technological companies advocated reaffirming Cybor. Academics and practitioners generally favored either the hybrid approach or the overruling of Cybor. Relying on stare decisis, a 6-4 majority reaffirmed Cybor.   The majority pointed out that since Cybor was decided, Congress has not acted to overturn it while enacting other patent legislation during that time. They further explained that predictability and consistency favor maintaining the status quo. Consistency is a concern particularly relevant in patent law...

IRS Ruling Declares Bitcoin Will Be Taxed As Property

On March 25, 2014, the Internal Revenue Service issued a ruling declaring that it will tax virtual currencies, such as Bitcoin, as property. This ruling could have significant effects on the way that consumers use Bitcoin. The implication of the ruling is that Bitcoin can no longer operate as an alternative form of currency because any transaction using Bitcoin as consideration will lead to a capital gain or loss for the person paying with Bitcoin. Bitcoin fluctuates drastically in value, which means that almost every transaction using Bitcoin will result in some sort of gain or loss which will now be taxable at capital gains rates. So, for example, if a person buys a Bitcoin for $10 and uses it to purchase an item for $15, he or she will be required to pay capital gains tax on the $5 increase in value. The extreme value fluctuation, however, also explains why the IRS’s ruling may not be as extreme as some commentators suggest. It is, in fact, this value fluctuation which has led consumers to use Bitcoin primarily as an investment medium, like gold, silver, and other commodities, rather than as actual currency. The rapidly changing value of Bitcoin provides plenty of room for investors to try to maximize value by betting on the increase or decrease of the technological commodity. There are also significant administrative restrictions which will make the IRS’s ruling difficult, if not impossible, to enforce, at least with respect to the average individual. In order to determine the amount of capital gains tax an individual owes to the U.S. government, he or she will have...