STLR Link Roundup – November 2, 2012

Compliance seems to be the hardest word

Last month, Apple suffered a defeat in its global IP-war with Samsung over its Galaxy Tab tablet computer:  the UK Court of Appeal upheld the High Court’s ruling that Samsung’s Galaxy Tab did not infringe Apple’s European Community registered design.  The Court of Appeal also affirmed the High Court’s publicity order, which required Apple to post a link its UK homepage to a statement explaining that the Galaxy Tab does not infringe Apple’s design rights.  A notice soon went up on the Apple homepage, but not without raising some eyebrows.  All of the text required by the order (regarding the High Court and Court of Appeal’s rulings on infringement) appeared, but so did some extra words.  Apple had added to the statement (1) some carefully selected words from the judgment of the High Court (remarking on the qualities of the Apple design and noting that the Samsung design is “not as cool”); and (2) references to rulings in Apple’s favour in the US and Germany.  This week, the parties were back before the Court of Appeal on Samsung’s motion.  The Court was not impressed.  Apple’s edited notice was reportedly described as a ‘clear breach’ of the Court’s order, which the Court was ‘at a loss’ to understand, and the company was given 48 hours to remove and replace the notice.  In a further rebuff, the Court declined Apple’s request for 14 days to amend the notice, disbelieving counsel’s assertion that this period of time was required in the absence of an affidavit from Apple’s senior management.

An additional wrinkle in the Court of Appeal’s judgment revolves around the multi-jurisdictional enforcement of European Community IP rights.  As Bird & Bird point out, a significant factor in the Court’s decision (see [83]) to affirm the High Court’s publicity order was the existence of a contradictory injunction made by the German Oberlandesgericht (Court of Appeal), which purported to prohibit the sale of Galaxy Tabs across Europe.  The German order was made after the UK High Court’s decision, in respect of the identical legal question, and brought the Oberlandesgericht in for some sharp criticism from the Court of Appeal: “[i]f courts around Europe simply say they do not agree with each other and give inconsistent decisions, Europe will be the poorer” (at [63]).  While the reasons for the inconsistency are unknown, the decision points to the complexities associated with administering regional IP rights, in the absence of a regional forum for the settlement of disputes.

Technology v. The Fourth Amendment

Two recent Fourth Amendment decisions provide interesting examples of the difficult questions posed for Fourth Amendment jurisprudence by the expansion of technology-driven law enforcement practices.

The first case comes from rural Wisconsin.  The defendants sought to suppress video evidence obtained by DEA agents, who installed surveillance cameras without a warrant on private land that was being used by the defendants to grow marijuana.  The land was fenced in and said to have been marked with ‘no trespassing’ signs.  The Supreme Court earlier held in Oliver v. United States, 466 U.S. 170 (1984) that the Fourth Amendment does not protect against searches of ‘open fields’, so that officers can lawfully search outside the area immediately surrounding the home (the “curtilage”) without a warrant, regardless of whether they commit a trespass in doing so.  According to media reports, the United States District Court for the Eastern District of Wisconsin this week refused the defendants’ motion to suppress the video, adopting the recommendation of a US Magistrate Judge.  The Magistrate Judge recommended suppression not occur because officers are permitted to enter and observe open fields, so long as they stay out of the curtilage of the home, and video showed only those areas.  Although the agents in this case installed surveillance equipment, which did not occur in Oliver, it should not be distinguished because “the Supreme Court has upheld the use of technology as a substitute for ordinary police surveillance.”  Further, the Magistrate Judge explained, if the privacy-oriented analysis of the Supreme Court in United States v. Jones, 132 S. Ct. 945 (2012) is applied, the result is the same as there is no legitimate expectation of privacy in an open field.  Some commentators reacted negatively to the ruling, with Ars Technica arguing that it is “an absurdity” to determine the legality of electronic surveillance by extrapolating from the legality of a human officer making the same observations.

The second case arose in an application by the Government for access to a ‘cell tower dump’.  The Government sought access to all telephone numbers and all other subscriber information for calls processed at particular cell phone towers during a relevant period of time.  The Magistrate Judge rejected the government’s application, applying authority (currently before the 5th Circuit on appeal) which held that the Fourth Amendment prohibits warrantless searches of cell tower data.  As Orin Kerr noted, the Magistrate Judge also expressed concern about the seeming lack of technological understanding of the Government’s lawyer, and the Government’s lack of any protocol for dealing with the information it obtained about innocent third parties.  But as Techdirt points out, technology is available which allows the Government to obtain cell phone data without accessing the information held by cell phone towers.

MegaUpdate

MegaUpload, the file-sharing site dramatically shut down by the US Attorney’s office earlier this year, is set to return.  The site’s founder, Kim DotCom has announced he will be launching a new cloud storage service, Me.ga, to be hosted on servers in Gabon.  The new service, according to DotCom, will rely on user-held encryption keys, giving users greater control over their content, and protecting the site’s administrators from liability.  A few days earlier, court filings in one user’s application to recover data from MegaUpload’s downed servers indicated that system’s users would not be given access to their data lightly.  In its response to the user’s motion for return of property (i.e., his data), the Government submitted that the user’s ownership of the copyright in his data would not be sufficient to establish a property interest in copies of that data stored on the seized MegaUpload servers.  For this and other reasons, it sought a separate hearing on the issue of whether the user had even a prima facie interest in the property he sought to recover.  The Government’s stance was interpreted as presenting a significant hurdle to data recovery for former MegaUpload users.

Hurricane Sandy

The Columbia Science & Technology Law Review sends its thoughts and best wishes to all those affected by Hurricane Sandy this week.  Many parts of New York City are setting out on what will be a long road to complete recovery.

Meanwhile, Manhattan lawyers discovered during the hurricane that even widespread power outages can’t stop the supply of legal services.  On the science front, our counterparts at the Columbia Earth Institute point to the questions Sandy poses for climate change, infrastructure management, and building design, some of which will likely confront courts and legislators in the years to come.

 

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