Software is Still Patentable. Well, Sort of: Software Patents in a Post-Alice World

By: Anu Kinhal This summer, the Supreme Court decided Alice Corp. v. CLS Bank. The Court decided that although software can be patent eligible subject matter, Alice Corp.'s software was not claimed in a way that could be deemed patent eligible. This begs the question, how do you successfully claim software post-Alice?

Old School v. New School, Disney v. Deadmau5

By: Rachel Bangser At first blush, it doesn’t seem like the worlds of Mickey Mouse and electronic dance music (EDM) have a great deal in common. However, these two seemingly disparate entities have recently come into conflict regarding trademark dilution.

Review of “I Know What You’re Thinking: Brain Imaging and Mental Privacy”

Reviewed by: Jenna Furman Since the 1980s, MRI scanners have been used in medicine to help diagnose various conditions, many of which are found in the brain. The use of such scanners has led to advances in understanding the human mind, both its structure and functions. Such advances have led to greater knowledge of neurological diseases and conditions. This subset of the MRI’s imagining technology is typically referred to as “neuroimaging.” However, recently many academics and doctors have questioned whether MRI technology could be used to one day “read the minds” of those studied. The use of MRI technology in this way raises not only legal issues regarding the right to privacy of the participant but also ethical issues, such as whether it would be appropriate to use this advanced technology to detect cognitive awareness of a person in a vegetative state. This book compiles essays from psychiatrists, neuroscientists, ethicists, anthropologists, philosophizers, and lawyers which address the legal and ethical issues, along with the scientific benefits and social concerns, raised by the possible future use of MRI-imaging technology to “read minds” of patients. This book review will outline certain arguments addressed in these various essays which provide insight into these legal and ethical issues regarding the use of neuroimaging to “read minds.”

Can You Hear Me Now? Spectrum is Shaping the Telecommunication Industry in an Increasingly Connected America

By: James Zino The way in which Americans communicate has changed rapidly over the past decade, and the cellular phone has been at the forefront of this revolution, reaching levels of market maturation faster than any mainstream technology since the television. What started as a tool to place calls while on the go has evolved into a device with the processing power of a small computer, where millions of people call, text, tweet, video chat, and stream hours of content every day right from the palm of their hands. While there is no doubt that consumer technology has made incredible strides since the first iPhone ushered in a new product market in 2007 with estimated opening day sales of up to 1 million units, what has changed even more is the invisible infrastructure that allows consumers to be wirelessly connected from even the most remote parts of the country. Although most Americans are familiar with the country’s “Big Four” national cellular providers, (Verizon Wireless, AT&T, Sprint, and T-Mobile), what actually enables these companies to provide wireless internet and cellular service is less well-known. This capability comes from certain bands of the electromagnetic spectrum, which have become an increasingly indispensable commodity for network providers as demand for cellular service surges. Control and licensing of radio spectrum is controlled by the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA). While the NTIA handles the use of spectrum for federal government purposes, the FCC administers spectrum regulation and licensing for all other uses, including state, local, and commercial functions.

I Need a Lawyer: Establishing Statewide New York Communication Access Fund to Secure Legal Accessibility to Deaf and Hard of Hearing Clients Through Video Remote Interpreting Services in Compliance with the Americans with Disabilities Act

By: YooNa Lim Discrimination by lawyers against individuals who are deaf and hard of hearing is not a rare occurrence. Many lawyers decline to represent deaf and hard of hearing individuals as clients, despite the protection of federal and state laws to prohibit discrimination on the basis of disability. Hearing impairments cover a significant range – from those who may not even be aware they have difficulty hearing to those who are deaf and use sign language. Statistics suggest that approximately more than 37 million people, or 16 percent of the population of age above 18, of the United States, report having some degree of difficulty hearing. Despite the large population of the deaf and hard of hearing community, many attorneys fail to recognize their legal obligation to accommodate individuals who are deaf or hard of hearing. Many private attorneys are unfamiliar with their obligations under the ADA or others are unwilling to incur the costs to provide the necessary communication access services. Consequently, it has become difficult for many deaf and hard of hearing individuals to retain attorneys for common legal counseling that are widely provided, such as criminal law proceedings, family law issues, probate, and employment law matters. Even when a deaf or hard of hearing individual successfully meets an attorney, without effective communication, the attorney cannot provide proper representation, unfulfilling their professional responsibilities. Because of the communication barrier, the client may not understand the nature of their legal issue.

Seeing Red: Christian Louboutin’s Protection of His Trademark Through His Battle with Yves St. Laurent

By: Sachpreet Bains Introduction: Let’s start with a simple question. How much are you willing to spend on a pair of shoes? Write three zeros on a piece of paper. Now, place a five in front of the three zeros. Next, place a comma after the five. Lastly, place a dollar sign at the very beginning. You have now written down the “small” amount of “$5,000.” It is very hard to justify spending $5,000 on a pair of stylish shoes. In my twenty-six years, the most I have ever spent on a pair of shoes is about $200.00. The French luxury brand, Christian Louboutin, is most renowned and notorious for the high-end shoes it produces for both genders. The brand caters to the wealthy population throughout the world, as its luxury line of shoes can be sold in retail stores for up to $6,000 a pair.1 Known for its red lacquered sole, Louboutin successfully applied for a trademark in 2008. This trademark dealt strictly with how red paint was used on the sole of the shoe. When Yves St. Laurent (which has now changed its name to Saint Laurent Paris) made high-heeled shoes incorporating red soles in its 2009 collection, Louboutin sued for trademark infringement and unfair competition under the Lanham Act.2 This note focuses primarily on the District Court and Second Circuit Court of Appeals decision and the difficulties of trademarking a single color in today’s legal world, along with the road to Louboutin successfully being able to retain his trademark for the red lacquered soles of his shoes.

Notice and Manifestation of Assent to Browse-Wrap Agreements in the Age of Evolving Crawlers, Bots, Spiders and Scrapers: How Courts Are Tethered to Their Application of Register and Cairo and Why Congress Should Mandate Use of the Robots Exclusion Standard to Prevent Circumvention of Responsibility

By: Michael Laven Introduction:  In 2012, when Internet users browsed the World Wide Web looking for the best price on a new Apple product, Thanksgiving flight or car insurance, they inevitably encountered a brave new world of manifestation of assent to a contract: the world of “click-through” and “browse-wrap” agreements. The click-through agreement probably garners the most awareness from the average Internet user, as satisfactory completion usually involves clicking “agree” or “yes” before the one is allowed to continue – a physical action from the user that is mandatory. However, much more commonplace, as at appears on virtually every website, although much less conspicuous, is the browse-wrap agreement. This type of agreement is found on websites of all varieties, including commercial, educational and personal websites, and allows for acceptance of the website’s “terms of use” simply through the conduct of continued use of the website. The user therefore has notice of the terms, may read them if they desire and may discontinue their use of the website if dissatisfied with the terms offered. Bits and pieces of litigation have arisen involving both click-through and browse-wrap agreements, certain issues have been settled, but, with technology evolving so quickly, the current state of the law leaves many uncertainties for web users and designers alike.

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.

Lawsuit Filed Against Apple Amid Invasion Of Privacy Allegations

By: Justin McHugh

Earlier this month on July 11th, China’s Central Television (CCTV) reported on software in Apple iPhones that allows for users’ locations to be tracked.[1]  The state-run CCTV report warned iPhone users that Apple’s location-tracking software could be a potential security threat.[2]

After the report aired raising security issues concerning the location-tracking functions of the iPhone 4 and newer models, Chen Ma filed a lawsuit for invasion of privacy against Apple.[3]  Ma’s complaint alleged that “She was not asked for and thus has not given her consent, approval and permission nor was she even made aware that her detailed daily whereabouts would be tracked, recorded and transmitted to Apple database[s].”[4]  Ma also referenced the CCTV’s July 11th report in her complaint, stating that it was the report that brought the issue of Apple user location tracking to her attention.[5]  Ma’s complaint further states that “[a]ccording to information and belief, iPhone users are not given any meaningful choice enabling them to turn off the location service without substantially compromising [a] significant number of functionalities of iPhones.”[6]

After the CCTV’s report aired, Apple responded by stating that it does not actually track iPhone users’ locations.[7]  Apple further stated that its iPhone’s tracking capabilities are merely there to provide directions or to assist users in finding their current whereabouts.[8]  However, these comments seem to contradict other statements made by Apple where the company stressed that it will not disclose any information that they have collected on iPhone users’ daily whereabouts to any third party members.[9] 

This is not the first time that a lawsuit has been filed against Apple concerning data privacy issues.  In 2011, four iPhone users claimed that Apple had violated its own privacy policy by allowing for third party app developers to have access to users’ personal information and locations.[10]  The iPhone users stated that they were unaware that third party app developers could collect their personal information and alleged that Apple had specifically designed its software to allow for this to happen despite a privacy policy that claimed it would protect users.[11]  Additionally, the iPhone users alleged that their phones were transmitting their locations despite the fact that they had specifically turned that feature off on their phones.[12]  According to Apple, the reason that location information was still being sent was due to a “software bug” that was fixed when a new software update, iOS version 4.3.3, was released.[13]

Although Judge Lucy Koh recognized that there may have been harm done to the iPhone users, she stated that they had failed to show any evidence that they had relied on anything in the company’s policies before they bought their iPhones.[14]  In Judge Koh’s decision, she stated “[t]o survive a standing challenge at summary judgment, plaintiffs must be able to provide some evidence that they saw one or more of Apple’s alleged misrepresentations, that they actually relied on those misrepresentations, and that they were harmed thereby…In a case founded on the premise that Apple’s misrepresentations caused plaintiffs substantial harm, this evidentiary burden is far from unreasonable, yet plaintiffs have failed to meet it.”[15]  The case was more or less dismissed because the iPhone users had failed to read Apple’s privacy policy before buying their phones.

It remains to be seen whether or not Chen Ma’s lawsuit will be dismissed for similar reasons cited in the aforementioned 2011 lawsuit against Apple.  However, Ma is undeterred by this prior ruling and is currently seeking class certification for her lawsuit.[16]  Ma is seeking class certification for the roughly 100 million iPhone users who Ma says Apple has violated their privacy.[17]  Additionally, Ma is seeking an injunction that would prevent Apple from collecting and storing iPhone users’ private information without first giving them notice, and from sending their data to a third party without their prior permission.[18]  Along with the court ordered injunction, Ma is pursuing compensatory and punitive damages for Apple’s alleged invasion of iPhone users’ privacy.[19]


[1] Michael Kan, Apple face privacy suit following Chinese TV report, PCWorld (July 25, 2014, 12:00 AM), http://www.pcworld.com/article/2458320/apple-faces-privacy-suit-following-chinese-tv-report.html.

[2] Id.

[3] Id.

[4] Juan Rodriquez, Apple Illegally Tracks Customer Location, Class Action Says, Law 360 (July 24, 2014, 1:59 PM), http://www.law360.com/articles/560697/apple-illegally-tracks-customer-location-class-action-says.

[5] Id.

[6] Id.

[7] Rodriquez, supra note 4.

[8] Id.

[9] Id.

[10] Brid-Aine Parnell, Apple dodges data privacy sueball: Fanbois didn’t RTFM, says judge, The Register (Nov. 28, 2013), http://www.theregister.co.uk/2013/11/28/apple_data_privacy_lawsuit_thrown_out/.

[11] Id.

[12] Id.

[13] Id.

[14] Parnell, supra note 10.

[15] Id.

[16] Rebekah Kearn, Class Claims Apple iPhones Invade Privacy and Pass Along the Info, Courthouse News Service (July 28, 2014), http://www.courthousenews.com/2014/07/28/69879.htm.

[17] Id.

[18] Id.

[19] Id.