Law Note

Mass Copyright Infringement Litigation: Of Trolls, Pornography, Settlement and Joinder

By: Christopher Civil Introduction: Recently, a staggering number of copyright lawsuits have been filed by producers of  pornographic videos against individuals who have allegedly illegally downloaded the videos via the BitTorrent Protocol. While the law should respect the legitimate protection of a producer’s  copyright interest, there is significant reason to question the legitimacy of these lawsuits. Mass  copyright infringement lawsuits such as these present significant problems relating to IP address sufficiency, personal jurisdiction, and joinder. This paper presents a comprehensive analysis of mass copyright infringement lawsuits. It first provides an overview of the BitTorrent protocol and the typical proceedings in mass copyright infringement lawsuits. The paper then addresses the myriad of problems that have been identified with such lawsuits. The second half of the paper examines how courts have dealt with mass copyright infringement, and presents results from a comprehensive analysis of jurisdictions and judges that have decided the question of whether joinder is proper in such cases. Amongst other things, this examination reveals that denial of joinder is the prevailing trend. When considered in conjunction with the identified problems associated with such lawsuits, judges that deny joinder thus appear to have solid foundational support.

Use of Patented Inventions after FDA Approval: How to Define the Hatch-Waxman Safe Harbor in Light of Momenta and Classen

By: Madeline Schiesser Abstract: This paper will discuss the apparent inconsistencies in the recent Classen v. Biogen and Momenta v. Amphastar decisions by the Court of Appeals for the Federal Circuit regarding the Hatch-Waxman Safe Harbor. Although it is well settled that the Drug Price Competition and Patent Term Restoration (Hatch-Waxman) Act permits a generic drug company to use the patented invention of another party to develop a generic drug for approval by the United States Food and Drug Administration (“FDA”), the court’s recent decisions have raised a question as to whether the safe harbor may protect activity subsequent to FDA approval of the generic drug. Clarification is needed on this issue and should to be provided forthwith by the judiciary. Without judicial guidance, the institutions responsible for the development and financial support of new and generic pharmaceuticals will be plagued by both legal and business uncertainty, which will adversely affect all stakeholders, including patentees, generic drug companies, and consumers.

Sending Servers to the Sky: Can Bit Torrent Piracy be Perpetuated by the Use of Unmanned Drones?

By: David Hutchinson Introduction: On March 18th 2012 “the galaxy’s most resilient Bit Torrent site,” The Pirate Bay declared war on copyright laws around the world. It threatened to take its Bit Torrent piracy programs to the sky in order to avoid jurisdiction. Bit Torrent is a system by which Internet users can connect to one another’s computers to share files. Users visit a website, such as the aforementioned The Pirate Bay, and can then access torrent files from the website’s network of users. One user must create a Torrent file of the content he or she wishes to share. That file then serves as a guide for other users on a given network to access and download the content. Each time a file is downloaded from the user, a copy is made which increases access for the next user seeking to download the same content. A user can then download a number of fragments of each file from a number of different users until the download is completed, making the process rather quick. The more users in a given network, the more access a user has to fragments of a desired file, and the faster that user is able to download that particular file. Due to the quick nature of the downloading process, as well as the user driven content stream, Bit Torrent has become the most popular type of peer-to-peer downloading system for copyright protected files.

The Usefulness of the International Trade Commission as a Patent Forum in the Wake of Certain Personal Data and Mobile Communications Devices and Related Software (Apple v. HTC)

By: Stephen Burke Introduction:  The United States International Trade Commission (hereinafter the “ITC”) is a government agency with statutory power to control matters of trade. As a part of this power, the ITC may investigate claims of patent infringement and ban infringing products from being imported into and/or sold in the country. The patent investigation power of the ITC was seldom utilized by litigants before the turn of the 21st century, who instead preferred to file complaints in federal court. With the technology boom of the 1990s and the mounting international competition into the new millennium, the ITC has seen a steadily increasing volume of patent claims.

Artificial Intelligence and the Patent System: Can a New Tool Render a Once Patentable Idea Obvious?

By: William Samore Introduction: In the summer of 1956, leaders in the field of computer science met at Dartmouth College and founded the field of Artificial Intelligence. Since then, one branch of Artificial Intelligence—Genetic Programming—has progressed to the point where it could drastically change the way that inventors design and create. Genetic programs (described in more detail in section III.B of this paper) operate by mimicking the biological evolutionary process and have a wide variety of applications. Antenna design, for example, is a field where genetic programming could radically change the nature and pace of innovation. The first antennas were built in the late 1800's by Heinrich Hertz, and an antenna with a specific shape can be designed to emit a desired radiation pattern. As technology progressed, computer programs were designed where an antenna's characteristics could be inputted to the computer program, and the radiation pattern would be calculated and displayed to the user. Now, computer programs have gone one step further, making it possible to do the reverse: input a desired radiation pattern and have the computer program itself design the antenna. The question that this note asks is, can changes in the tools available to inventors render previously patentable ideas obvious and therefore unpatentable? In other words, should an antenna, which could only have been designed by a human at one point but now can be designed by a computer, be patentable?

Neutrality in the Digital Battle Space: Applications of the Principle of Neutrality in Information Warfare

By: Allison Gaul Abstract:  As technology develops, the spectrum of potential uses for information warfare will broaden. Creation of new applications for weaponized bits and bytes will inevitably result in the generation of new legal questions. The information warfare scenarios discussed in this article are a sample of the possible uses for digital attacks. It does not address every potential legal factor but instead examines the basis for applying the Law of Armed Conflict to information warfare that involves neutral states. Specifically, the article examines whether the Hague Convention of 1907 and subsequent Hague Rules Regarding Aerial Warfare, as pillars of the LoAC, can be reasonably applied to information warfare involving neutral states.

The Inevitable Television Revolution: The Technology Is Ready, The Business Is Lagging, and The Law Can Help

By: Blaine Bassett Introduction: SPOILER ALERT: A revolution is transpiring that will leave television so changed twenty years in the future as to make it unrecognizable to viewers from twenty years in the past. What is more, this proposition is hardly controversial. The ubiquity of the phrase “SPOILER ALERT” itself—now commonly applied in reference to scripted television shows, reality shows, sports contests, and other television programs to warn those who have not yet watched  the referenced program that possibly unwanted plot disclosures are to follow—illustrates the reality of the television revolution as well as anything. When people limited their television viewing to live television programs on the days and times scheduled by television stations, there was no need for such a phrase in the television context. But “SPOILER ALERT" is seen everywhere today because, to exaggerate only slightly, “the nation’s greatest secrets no longer are housed in military installations. They exist in the last seven minutes of . . . television shows. The country’s greatest fear is . . . accidentally hearing what happened 20 minutes into your third favorite television show on Wednesday nights, the ending everyone else watched two days ago.”

The Evolution of E-Discovery Model Orders

By: Daniel B. Garrie and Candice M. Lang Abtract: This article analyzes the Federal Circuit’s Model Order regarding E-Discovery in patent cases (the “Model Order”). The article (i) briefly describes the purpose behind the Model Order, (ii) describes its key provisions, and then (iii) analyzes the Model Order to identify some areas of continuing concern. The authors conclude that, while it is beyond refute that the Model Order is a step in the right direction in the courts’ efforts to control and manage e-discovery, the Model Order is only a first step. In this regard, several problems, as set forth below, can potentially arise when counsel or the courts use the Model Order. It is hoped that this article will encourage judges, litigants, and other interested parties to continue trying to solve some of the still troubling aspects of e-discovery and e-discovery abuse.

The Quasi-Autonomous Car as an Assistive Device for Blind Drivers: Overcoming Liability and Regulatory Barriers

By: Dana M. Mele Introduction: The concept of a self-driving car is no longer the stuff of science fiction. From as early as the 1960s, engineers have worked on designs for autonomous vehicles. However, in 2004, two challenges were extended that catapulted the race into hyper-drive. The Department of Defense (“DoD”) Defense Advanced Research Projects Agency (“DARPA”) issued the first DARPA Challenge, asking engineers to compete to create an autonomous vehicle that would contribute to research and development of autonomous vehicles for military purposes. In the same year, the National Federation for the Blind (“NFB”) announced a challenge to create another type of vehicle using cutting edge intelligent technology—a car designed for blind drivers.

U.S. Export Controls Over Cloud Computing: The Forecast Calls for Change

By: Ryan M. Murphy Introduction:  Are you violating United States export law when you click “save” on that document? Exactly where does that file go? For some, it may travel to a server within their company’s building, but for an increasing population, that file goes “into the clouds” and out of the country. If you use a service provider to host e-mail or store data, it’s important to understand the type of data you are storing and where that information is located. Many cloud providers utilize a vast array of servers, referred to commonly as “clouds”, located all over the world.  These servers are connected and work together to provide a seamless hosting environment for users.  A significant export control issue arises when the data stored on a cloud falls within the type regulated by the Export Administration Regulations (“EAR”), and it’s sent to a server in another country. If so, you may have just unknowingly exported your data and become subject to government regulation.