Tag: US Supreme Court
The high court will hear cases about the right to trademark offensive names and whether merchants have a right to inform customers that a credit-card surcharge is actually a surcharge.
Two cases involve the free exercise of religion clause of the First Amendment.
The first is about whether Missouri breached that clause by supplying recycled tire material for playgrounds to public and secular schools, but not to religious schools.
The court has already decided to hear the Missouri case, but it has not decided whether it will consider a request to revive a challenge to Utah's law against polygamy.
That lawsuit claims the law is a violation of "religious liberty rights protected by the First Amendment." (PDF) At this stage, however, the justices most likely could decide this case without actually having to weigh in on polygamy or the First Amendment. More on that later. First up on the docket is Expressions Hair Design v.
Schneiderman, which the justices are to argue Tuesday.
A law in 10 states forbids merchants from imposing a surcharge on goods paid for via a credit card.
Surcharges help merchants recover the so-called "interchange" fees banks charge them for accepting credit cards.
Strangely, in those 10 states, merchants may offer "cash" discounts.
Either way, the result is the same: people who use credit cards can be charged more. But how this pricing structure is described to customers is at the heart of the First Amendment battle.
The laws require that merchants inform customers that price differences for cash or credit purchases are cash "discounts" and not credit card surcharges.
This means merchants are not allowed to charge a base price before tacking on a fee to those using credit cards. frankieleon In New York, breaching that law, heavily backed by the banking industry, is punishable by up to a year in jail. Merchants brought a challenge to the Supreme Court contending the measure is a violation of their First Amendment rights of speech because it restricts what they can say about their prices, not how much they can charge. What's more, they say the law does not protect consumers. "Its effect is to criminalize truthful speech conveying price information," they argue. New York maintains the law is designed to minimize profiteering. "... the imposition of a surcharge is not an act of speech that the First Amendment restricts the government from regulating." Meanwhile, the justices are scheduled to hear another First Amendment case, Lee v.
Tam, on January 18.
The case essentially asks whether federal intellectual property regulators can bar people from trademarking an offensive name. A section of trademark law actually forbids the US Patent and Trademark Office (USPTO) from approving a trademark if it "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." The issue reached the justices in a case concerning a Portland-based Asian-American rock band that sought to trademark its name, The Slants. Previously, decisions have come down on both sides regarding trademarking offensive names.
The most notable denial is likely the name of the NFL's Washington franchise, "Redskins." But lesser-known denials include "Stop the Islamization of America," "The Christian Prostitute," "AMISHHOMO," "Mormon Whiskey," "Ride Hard Retard," "Abort the Republicans," and "Democrats Shouldn't Breed." By contrast, other potentially offensive names have been trademarked.
Some of these examples include "Dangerous Negro," "Celebretards," "Stinky Gringo," "Midget-Man," and "Off-White Trash." In the Slants case the justices agreed to review, the US Court of Appeals for the Federal Circuit cited the First Amendment and sided with The Slants and its founder Simon Tam.
The appeals court struck down that entire section of trademark law, ruling that "the First Amendment protects "even hurtful speech." Tam said the band's name is to bring awareness to racial and cultural issues.
In its appeal, the government argued that being denied a trademark is not a "restriction on speech" because trademarks are "federal benefits" to advance intellectual property rights. (PDF) Another First Amendment case the high court has agreed to hear is Trinity Lutheran Church of Columbia v. Pauley.
This case doesn't concern free speech, but instead deals with the First Amendment in the religious context.
The case involves recycled tires and a Missouri grant program that provides shredded recycled tire pieces to soften playgrounds.
The dispute is this: Trinity Lutheran argues that its constitutional rights are being violated by being excluded from the grant program.
The church says its members have a right to exercise religion while at the same time being treated the same as others. Nathan Barry Missouri counters that the state has done nothing to interfere with the church's ability to worship or run its church child daycare program. Missouri's constitution prohibits state funds from going "directly or indirectly, in aid of any church, sect, or denomination of religion." And Missouri also said that the First Amendment prohibits government from making laws that "prohibit" the free exercise of religion.
But Missouri also says it is free to enact laws that "frustrate" religion. Many groups watching this case suggest that a ruling in favor of Missouri could jeopardize government funding for a wide array of faith-based social services, including soup kitchens and even battered women's shelters.
The justices have not announced a hearing date. The final First Amendment case before the high court also touches on religion. Brown v.
Buhman concerns a polygamous Mormon family from Utah on TLC's Sister Wives reality TV show.
The family sued Utah over the state's anti-polygamy law, and a federal judge struck down (PDF) portions of the law that made "cohabitat[ing] with another person" illegal if they weren't legally married.
But a federal appeals court ruled that, because the state and local county said they would not prosecute—even after police opened an investigation once the show aired—the case was therefore "moot" and should not have been decided by the lower courts. The family said it moved to Nevada to avoid prosecution. But on appeal to the Supreme Court, the Sister Wives family wants that federal appeals court's decision (PDF) overturned.
They say a lawsuit can't simply go away because the government adopted a non-enforcement policy during the pendency of litigation—a non-enforcement policy that is not even enforceable. "At its core, this case concerns whether a Utah statute that bans married persons from engaging in voluntary cohabitation with other persons is unconstitutional—either as a violation of Petitioners' sexual privacy rights protected by this Court’s decision in Lawrence v.
Texas, 539 U.S. 558 (2003), or their religious liberty rights protected by the First Amendment," according to the family's petition to the justices.
The petition adds that "this constitutional question is currently blocked from continuing on the merits." The justices are to consider whether to hear the case at their January 19 private conference.
The court only has eight members, as we await President-elect Donald Trump's pick to replace Justice Antonin Scalia, who died in February.
This year saw significant changes in the copyright and patent landscapes. "Patent trolls" who sue technologists for fun and profit got smacked down by courts more often—and harder—than ever before.
At the same time, universities were filing patent lawsuits at an increased rate, and often winning.In the copyright realm, the Oracle v.
Google trial dominated the spring.
A jury was left to decide the murky rules about when using an API could be "fair use." That legal uncertainty led to the two tech giants clashing over the ethics of each others' business practices and the history of the smartphone industry. In two very different cases in 2016, copyright issues led to criminal charges being filed. US authorities are seeking to extradite and put on trial a man named Artem Vaulin, who they say made $16 million annually by running a massive online storehouse of pirated films and songs.
And more than three years after they were condemned by a federal judge, lawyers behind a vast array of copyright lawsuits, a firm known as Prenda Law, were arrested and accused of fraud. Here's a look back at 2016's most dramatic IP cases. Graphiq CEO Kevin O'Connor and former director of operations Danny Seigle.
Graphiq (formerly FindTheBest) became the first company to win attorneys' fees in a patent case under the Supreme Court's new Octane Fitness standard.
An appeals court approved the fee award in January 2016. Patent trolls continued to face stiff fines throughout 2016. eDekka, the most litigious patent company just a year ago, collapsed and dropped its appeal after being hit with fees in East Texas. Carnegie Mellon University ended a prolonged patent battle with Marvell Technology in February, with Marvell agreeing to pay a $750 million settlement—the largest payout ever for a patent related to computer science. Pictured here is CMU Professor José Moura, inventor on the two patents in the case. An image explaining one of two patents owned by Carnegie Mellon University, which describe a method of reducing noise when reading data from hard disks.
The patents were used by CMU to sue Marvell Technology. Universities have increasingly been willing to become plaintiffs in high-stakes patent lawsuits, and are sometimes partnering with professional patent enforcement companies to do so.
The Electronic Frontier Foundation launched a "reclaim invention" campaign in June 2016, seeking to pressure universities not to partner with such "patent trolls." Since the US Supreme Court's 2014 Alice v.
CLS Bank decision, it's been easier to get software patents thrown out of court. Until this year, the US Court of Appeals for the Federal Circuit had only upheld software patents in one post-Alice case.
But in 2016, the Federal Circuit gave approval to software patents in three more cases.
The image above is pulled from the McRo v.
Bandai Namco Games opinion.
A Federal Circuit panel said McRo's digital animation patents could survive, rejecting arguments from public interest groups like EFF that McRo was being allowed to essentially patent mathematics. In May, a second jury trial between Oracle and Google over whether the Android operating system violated Java copyrights ended with a second resounding win for Google.
The testimony of Jonathan Schwartz, former president of Sun MicroSystems, loomed large in the case.
Schwartz testified that he had no problem with Android, since Google had followed the rules around Java intellectual property that Sun had established. Noah Berger/Bloomberg via Getty Images Oracle attorneys tried to sway the jury by painting former Sun Microsystems president Jonathan Schwartz as a hypocrite, who praised Google in public but privately decried its licensing practices.
It didn't work.
Above is a slide from Oracle's closing argument. In June, a Los Angeles federal jury considered whether or not Led Zeppelin's "Stairway to Heaven" was ripped off from a song by psychedelic rock band Spirit.
The jury found in Led Zeppelin's favor, quelling some fears that the music industry may continue to be plagued with copyright lawsuits over similar-sounding songs.
The case followed a high-profile 2015 trial in which a jury found that the hit song "Blurred Lines" infringed the copyright of Marvin Gaye's "Got to Give it Up." In July, US prosecutors charged Artem Vaulin, a 30-year-old Ukrainian man, with criminal copyright infringement for running the popular website KickAssTorrents.
Vaulin was arrested and is being held in Poland awaiting extradition.
It's the highest profile criminal copyright case since the US charged Kim Dotcom—who's still living in New Zealand, where he's desperately hoping to avoid extradition.
Above is a screenshot of the now-shuttered torrent website. On July 21, the Electronic Frontier Foundation filed a lawsuit that's been a long time coming.
EFF claims that the DMCA's ban on circumventing digital locks violates the First Amendment.
Digital locks may need to be sidestepped "in order to create a running critical commentary on... a political debate, sporting event, or movie," all legitimate activities that should be protected by fair use, EFF argues.
The government has asked for the case to be dismissed, and the matter is awaiting a judge's decision. Pictured above is EFF client Andrew "bunnie" Huang, who wants to market a product for editing HD television signals, but is hampered by copyright limitations he believes are unconstitutional. Record label EMI sued MP3tunes, an early music locker service, in 2007, along with its founder Michael Robertson, pictured above in a 2006 photo.
The litigation caused MP3tunes to go bankrupt in 2012, but Robertson kept fighting his battle in court.
In October 2016, the 2nd Circuit appeals court upheld and even expanded EMI's court win—a disastrous result for Robertson and MP3tunes.
Today, cloud music services are thriving.
But the MP3tunes precedent shows that innovators who cross the music industry still must risk paying a heavy price. In an opinion published December 6, the US Supreme Court stopped Apple from collecting $399 million in patent infringement damages from Samsung over iPhone-related design patents.
The high court held that the lower court erred when it allowed Apple to automatically collect "lost profits" damages based on the entire value of a phone.
It was the first time in more than a century that the Supreme Court took a case involving design patents. Pictured above is one of the infringed patents, D618,677, describing a black rectangle with rounded corners. The lawyers behind Prenda Law were denounced in 2013 by a federal judge who called them a "porno-trolling collective" that had abused federal courts.
In December 2016, two of those lawyers, John Steele and Paul Hansmeier, were arrested and charged with fraud and perjury. Pictured above is John Steele's banner advertisement from his old firm, which practiced family law. Two band members of 60's rock band The Turtles, pictured above, have turned the once-obscure issue of pre-1972 songs into a hot copyright issue.
The Turtles sued Sirius XM and Pandora, demanding royalties for their old sound recordings, which are not protected by federal law.
Sirius and Pandora lost key legal battles in 2015, and Sirius paid out a $210 million settlement to record labels.
But the Turtles case went on, and on Dec. 21, 2016 the New York Court of Appeals handed a big victory to Sirius, saying that the state's common law offered no copyright protection for pre-1972 recordings.
The decision may be influential in other states. Nokia and Apple fought each other over smartphone patents between 2009 and 2011, but settled their case. Nokia has backed out out of the smartphone business, but is still licensing its patents, so the two companies are back at war. Nokia has sued Apple over patents in 11 different countries. Meanwhile, Apple has filed an antitrust lawsuit against Nokia, accusing the Finnish firm of working together with "patent-assertion entities"—a.k.a. patent trolls—to "maximize the royalties that can be extracted from product companies."
Avitabile wants to purchase a Taser for self-defense.
But New York Penal Law § 265.01 says, "A person is guilty of criminal possession of a weapon in the fourth degree when:(1) He or she possesses any firearm, electronic dart gun, electronic stun gun..." The suit claims the New York law is unconstitutional, saying: Defendants’ laws, customs, practices and policies generally banning the acquisition, possession, carrying and use of Tasers and other electronic arms violates the Second Amendment to the United States Constitution, facially and as applied against the Plaintiffs in this action, damaging Plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to preliminary and permanent injunctive relief against such laws, customs, policies, and practices. New Jersey is also facing a similar lawsuit in an era when all manner of weapons are being constructed at home with 3D printers. The New York suit, meanwhile, comes nine months after the US Supreme Court questioned the rationale behind a Massachusetts law outlawing stun guns and a Massachusetts state top court ruling supporting that law. The decision set aside a 2015 ruling from the Judicial Court of Massachusetts, which upheld the law that carries up to 2.5 years in prison.
The state's top court had ruled that the US Constitution's framers never envisioned the modern stun-gun device, first patented in 1972.
The state court also said that stun guns are not suitable for military use and that it did not matter that state lawmakers had approved the possession of handguns outside the home. The Supreme Court, however, didn't hold that the Massachusetts law was unconstitutional.
Instead, the Supreme Court sent the case back to the Massachusetts high court to reconsider its analysis because the reasoning of the lower court's ruling violated US Supreme Court precedent. But Massachusetts subsequently dropped its prosecution of a woman at the center of the case who brought a legal challenge against the stun-gun possession charges levied against her.
That, in essence, ended the case and left the Massachusetts law on the books, "though with a cloud over it as a result of the Supreme Court's decision," as the Washington Post wrote. The Supreme Court precedent the Post was referencing was a 2008 decision known as Heller (PDF).
The ruling overturned a District of Columbia firearms law and concluded that a "ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." In the wake of Heller, every state allows people to carry weapons of sorts, some with or without permits.
But a handful of states view stun guns differently and bar civilians from having them. Heller rejected the proposition that "only those weapons useful in warfare are protected." The Supreme Court, in its stun-gun ruling earlier this year, said the Massachusetts high court's reasoning was flawed because the Second Amendment extends to weapons "not in existence at the time of the founding." The New York suit cites Heller and claims that New York "may not completely ban the keeping and bearing of arms for self-defense that are not unusually dangerous, deny individuals the right to carry arms in non-sensitive places, deprive individuals of the right to keep or carry arms in an arbitrary and capricious manner, or impose regulations on the right to keep and carry arms that are inconsistent with the Second Amendment." The suit added that stun guns are less lethal than firearms and that 18,000 law enforcement agencies deploy them worldwide.
The answer: not nearly as much as Apple thinks. The 8-0 opinion (PDF) is a rebuke to the US Court of Appeals for the Federal Circuit, which held that the relevant "article of manufacture" for calculating damages was—in fact, had to be—the entire smartphone.
That meant even though Apple's patents covered only certain design elements, it was entitled to $399 million in lost profits damages. In an opinion authored by Justice Sonia Sotomayor, the Supreme Court rejected that approach, finding that the statutory term "article of manufacture" could mean either a whole product or just one component of a product. "Reading 'article of manufacture' in §289 to cover only an end product sold to a consumer gives too narrow a meaning to the phrase," writes Sotomayor. The damage numbers in this case, the first of two mammoth Apple v.
Samsung trials, have shifted over time.
In 2012, the first Apple v.
Samsung trial ended with a jury slapping Samsung with a $1.05 billion verdict for infringing Apple patents and trademarks.
After appeals, the trademark damages were thrown out, with $548 million in damages remaining, based entirely on patent infringement. With this Supreme Court case, Samsung was looking to get back most of that money—the $399 million that's based on three design patents. The patents at issue are D618,677 (a black rectangle with rounded corners, shown above), D593,087 (with bezel on surrounding rim), and D604,305 (a colorful grid of 16 icons.) The Supreme Court declined to rule on exactly what should be the "article of manufacture" in the case, saying that issue wasn't sufficiently briefed—a suggestion made by the US Solicitor General during oral arguments. The case will go back down to the Federal Circuit, which will recalculate the damages using the Supreme Court's criteria. However, today's ruling is narrow enough that the appeals court could still come up with a high number—or even the same number.
The Supreme Court said only that they can't assume the whole product is the damages base, but Sotomayor's opinion acknowledges that it could be appropriate in some cases. That seems unlikely to happen, however. Even though it's a narrow opinion, it's a sign that the Supreme Court is seeing overreach here, and it is going to expect a smaller number.
The Federal Circuit will not want another high court rebuke to add to its growing list.
Today, the US Supreme Court takes up a case that will determine how much help an overseas manufacturer can get from the US without running afoul of US patent laws. The case originates in a dispute between two competitors in the field of genetic testing.
Both Promega Corporation and Life Technologies (selling through its Applied Biosciences brand) make DNA testing kits that can be used in a variety of fields, including forensic identification, paternity testing, medical treatment, and research. Promega licensed several patents to Applied Biosystems that allowed its competitor to sell kits for use in "Forensics and Human Identity Applications." The license forbade sales for clinical or research uses.
In 2010, Promega filed a lawsuit in federal court, saying that Life Technologies had "engaged in a concerted effort to sell its kits into unlicensed fields," thus infringing its patents. A Wisconsin federal jury found that Life Tech had willfully infringed and should pay $52 million in damages.
But the district judge overseeing the case set aside that verdict after trial, ruling that since nearly all of the Life Tech product had been assembled and shipped from outside the US, the product wasn't subject to US patent laws. The Life Tech testing kits had five parts, four of which were made in a manufacturing facility based in the United Kingdom.
The fifth component, called a Taq polymerase, was supplied from the United States. US patent law can apply to products assembled abroad, but only in situations in which "all or a substantial portion" of a product are supplied from the US. In the judge's view, the generic polymerase that Life Tech was shipping from the US to the UK didn't meet that standard. Promega appealed the decision to the nation's top patent court, the US Court of Appeals for the Federal Circuit.
A split panel of judges at that court held that the polymerase shipments were, in fact, enough to get Life Technologies in trouble. The appeals court held that in this context, "substantial" should be seen as meaning "important" or "essential," and thus shipping "a single important or essential component" from the US is enough to show patent infringement. Life Technologies pointed out that Taq polymerase is "only one commodity component out of five in the kit," but the appeals court focused on the fact that "[w]ithout Taq polymerase, the genetic testing kit... would be inoperable." Reaching too far? Life Technologies took its case to the US Supreme Court and argued (PDF) that the Federal Circuit had inappropriately extended US law to reach overseas, violating both the text of the law and the "presumption against extraterritoriality." Promega countered (PDF) that Life Tech was looking for a "rigid, bright-line rule with no foundation in the statutory text." The high court agreed to take the case in June, and Promega will probably have an uphill battle.
First, in recent years, the Supreme Court has been more interested in reeling in patent rights rather than expanding them.
Second, there's the simple argument that if the Supreme Court had been satisfied with the outcome after the Federal Circuit, they could have simply done nothing and let the ruling stand. The opinion of the US Solicitor General, who has been asked to weigh in on the case, may be the most influential.
The Solicitor General's brief (PDF) favors Life Tech, saying that the statute's use of the word "substantial portion" means "a quantitatively substantial percentage of those components." In a five-part invention, one part "cannot constitute a substantial portion of the components." The US government also argues that the "presumption against extraterritoriality" favors Life Tech.
That's the presumption that foreign conduct is, generally, governed by foreign law.
In the government's view, the Federal Circuit's decision that the Life Tech kits infringe US patents could adversely affect "legitimate... sovereign interests." Life Tech also asked the Supreme Court to review another part of the Federal Circuit decision, but the justices declined to do so. The Federal Circuit found that Life Technologies can be liable for "inducing" infringement of a patent, even though no third party was involved.
In other words, the judges held that Life Technologies was inducing itself to infringe. Whether or not it's possible to be "inducing with yourself" is what Patently-O writer Dennis Crouch called the "Billy Idol question" of patent litigation.
But the Solicitor General didn't find that question compelling enough to warrant review, and the Supreme Court justices agreed. The original Promega lawsuit accused Life Tech of infringing five patents that it either owned or licensed.
The Federal Circuit found that four of those patents were invalid, leaving just one remaining patent in the litigation, US Patent No. RE 37,984, which describes a method of "analyzing length polymorphism in DNA regions."
Rule 41 goes into action today, despite congressional efforts to block the changes.
New rules that expand the US government's hacking powers take effect today.
Multiple efforts in Congress to block the changes—which some worry will threaten basic privacy rights—were intercepted by Sen. John Cornyn (R-Texas), Reuters reported.
Sen. Ron Wyden (D-Ore.), with bipartisan support from fellow lawmakers, made a trio of attempts to prevent the implementation of a federal court procedure known as Rule 41.
.@RonWyden: We have more Senate debate over the tax treatment of race horses than massive expansions of surveillance authority #Rule41— WydenPress (@WydenPress) November 30, 2016
Approved in May, the guideline makes it easier for the Justice Department to obtain warrants for remote electronic searches. It also allows judges to issue a single warrant authorizing government hacking of numerous devices around the world.
"This is a dramatic expansion of the government's hacking and surveillance authority," Wyden said earlier this year. "Such a substantive change with an enormous impact on Americans' constitutional rights should be debated by Congress, not maneuvered through an obscure bureaucratic process."
.@RonWyden: Law-abiding Americans will ask "what were you guys thinking?" when the FBI starts hacking victims of a botnet hack #Rule41— WydenPress (@WydenPress) November 30, 2016
Rule 41, recommended by the Justice Department, comes from a government advisory committee and updates the Federal Rules of Criminal Procedure. It was adopted by the US Supreme Court and submitted to Congress, which sat on the initiative until Dec. 1, at which point it goes into effect.
With great power, however, comes great fear: Many people are concerned about a loss of privacy, especially at the hands of the incoming administration. President-elect Donald Trump, "openly said he wants the power to hack his political opponents the same way Russia does," Wyden said during a speech in the Senate.
In an effort to ease citizens' minds, US Assistant Attorney General Leslie Caldwell this week penned a blog post touting the benefits of Rule 41, arguing that the amendments "do not create unintended consequences."
"The possibility of such harm must be balanced against the very real and ongoing harms perpetrated by criminals—such as hackers who continue to harm the security and invade the privacy of Americans through an ongoing botnet, or pedophiles who openly and brazenly discuss their plans to sexually assault children," she wrote.
"No one familiar with the harm caused by anonymized child sexual abuse, anonymized firearms trafficking or overseas malware can seriously contend that it makes more sense for Americans to fear federal investigators seeking search warrants from independent federal courts," Caldwell added.
Not everyone agrees: The Electronic Frontier Foundation (EFF) earlier this year asserted that the risks associated with Rule 41 are two-fold.
"The first part of this change would grant authority to practically any judge to issue a search warrant to remotely access, seize, or copy data relevant to a crime when a computer was using privacy-protective tools to safeguard one's location," the organization said.
That includes those using the Tor VPN service, or even folks who declined to share their location with a smartphone app.
The second part allows the feds access to a PC compromised by a botnet.
"This means victims of malware could find themselves doubly infiltrated: their computers infected with malware and used to contribute to a botnet, and then government agents given free rein to remotely access their computers as part of the investigation," EFF continued.
The Justice Department, meanwhile, argued that the move updates federal rules for the digital age. Previously, magistrate judges can only grant requests that cover their jurisdictions, which can hamper efforts to go after bad actors online, who are not limited to one area.