In a revised en banc opinion (PDF), the Ninth Circuit overturned guidelines promulgated last year involving seizure of computer records from a company allegedly providing steroids to professional baseball players. The en banc opinion relaxes the previously issued federal procedures governing issuance and execution of search warrants and subpoenas for electronically stored information. Federal prosecutors, many of whom were being denied “any new warrants to search computers” under these stringent standards (as alleged in a brief in support of rehearing en banc (PDF)), will benefit from the relaxed guidelines. However, some privacy advocates (including the Electronic Frontier Foundation and the Electronic Privacy Information Center) worry the relaxed standard for electronic search, which now includes only unbinding privacy protections, will significantly lessen computer users’ Fourth Amendment rights against unreasonable searches of their data.
This case involves a 2002 federal investigation into the Bay Area Lab Cooperative (“Balco”). The federal government suspected Balco of supplying professional baseball players with steroids. A collective bargaining agreement between the Major League Baseball Players Association (“MLBPA”) and Major League Baseball (“MLB”) subjected players to suspicionless, but strictly anonymous and confidential, drug testing for banned substances over the course of one year. Comprehensive Drug Testing, Inc. (“CDT”), an independent business , administered the program and maintained lists of the results. Quest Lab Diagnostics, Inc. (“Quest”) performed the actual testing. In the course of the Balco investigation, federal authorities learned of ten players who tested positive. The government first secured a subpoena in the Northern District of California for all “drug testing records and specimens” pertaining to MLP players in CDT’s databases (CDT and MLB moved to quash the subpoena; the government issued new subpoenas in response). The government also obtained a warrant, in the Central District of California, which was more limited in scope than the subpoena. This warrant was limited to the ten players about whom the government had probable cause regarding their illegal drug use. However, in executing the warrant, the government “seized and promptly reviewed the drug testing records for hundreds of players in Major League Baseball (and a many other people).” The government obtained this information by seizing a directory of testing data called the Tracey directory. Finally, the government also obtained a warrant, from the District of Nevada, for the urine samples in Quest’s drug-testing facilities.
On Friday, the Ninth Circuit clarified its test for determining whether a software purchaser is a licensee or an owner of the purchased copy in Vernor v. Autodesk, Inc. The result affirms the ability of software publishers to restrain licensees’ ability to sell, rent, or otherwise transfer their copies, but has left some concerned about the implications for customers buying movies, music, and other media.
Vernor resulted from a dispute over the sale of used software. Caldwell/Thomas & Associates, Inc. (CTA) purchased copies of Autodesk’s AutoCAD Release 14 software. The terms of Autodesk’s license agreement for Release 14 stated that Autodesk retained title to all copies and granted the licensee a nontransferable license to use the software. In addition, it contained provisions that forbade licensees from “renting, leasing, or transferring the software” and requiring that licensees who choose to upgrade to a newer version destroy their older copies of the software. CTA later purchased copies of a later version of AutoCAD for a reduced upgrade price, but sold their copies of the older software at an office sale instead of destroying them.
Vernor purchased four copies of Release 14 from CTA and listed them for sale on eBay. Although he was aware that the software was sold under a license agreement, he did not believe that he was bound by its terms since he did not personally open the software, install it, or otherwise indicate acceptance. Over the course of several years, Autodesk filed notices that Vernor was infringing its copyright by attempting to auction copies of Release 14 on eBay. The first several times his auctions were delisted, Vernor fought back and had them relisted, but eventually eBay suspended Vernor’s account. Shortly thereafter, Vernor sought a declaratory judgment supporting his claim that his actions did not infringe Autodesk’s copyrights. The parties’ primary disagreement involved whether CTA owned its copies of Release 14 or merely licensed them from Autodesk. The answer could determine whether Vernor’s auctions infringed Autodesk’s copyrights or not.
Hello, and welcome to The Bolt, BTLJ’s new student-run technology law blog!
As the 25th anniversary of our Journal’s first issue draws near, we decided that it was time to turn a new page in our history. From the beginning, we’ve worked to be a leading source of technology law scholarship. More journal articles have cited BTLJ than any other technology law journal since Washington and Lee University School of Law has been compiling its journal statistics—more than twice as many citations as our closest competitor. What’s more, we’ve been cited in over twice as many legal opinions as any other technology law journal, including the Supreme Court’s recent decision in Bilski v. Kappos. We organize annual symposia with the Berkeley Center for Law and Technology (BCLT) on topics such as spyware, stem cell research, and the third party doctrine. Most recently, we brought together scholars from around the world on the 300th anniversary of the Statute of Anne to discuss the past and future of copyright law.
But BTLJ is dedicated to the promotion of technology law scholarship from within the walls of Boalt Hall as well. Our editors work with BCLT to run a Law and Technology Writing Workshop that guides Berkeley Law students through the process of researching, writing, and editing case notes on recent developments in technology law. The Journal publishes the resulting notes in our Annual Review issue. In addition, we hold a student writing competition each spring, open to J.D. candidates from any school. We feature the winning submission in the following fall issue.
Even with more than a hundred students working hard all year long, the BTLJ editing cycle takes several months. Meanwhile, technology law continues advancing at a rapid pace. That’s why, starting this semester, we’ll be using our online presence to discuss new developments in technology law as they take place. The Journal’s paper editions will still offer superior long-form scholarship, but our goal with this blog is to bring you news and analysis in a flash—like a bolt of lightning from our office in Boalt Hall.
We’ve assembled our inaugural team and we’ll begin our work shortly. So bookmark us, add us to your RSS reader, and stay tuned!