In the Ninth Circuit decision of Omega, S.A. v. Costco Wholesale Corp., the court ruled that the first sale doctrine does not apply to imported works manufactured abroad. Costco appealed, and oral arguments before the United States Supreme Court took place in early November. The case was based on the following activity: Costco resold Omega watches, sold by Omega outside the United States at a relatively low price, without authorization. These watches featured a small etching of a copyrighted image, so Omega argued that Costco’s acts constituted infringing importation.
The first sale doctrine, codified in 17 U.S.C. § 109(a), provides: “. . . the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” The function of this statutory provision is to limit the copyright holder’s exclusive right to distribution. Without the first sale doctrine, a copyright holder would have an actionable claim, for instance, against a consumer selling a book or CD at a garage sale.
This month, our team members have been consumed with outlines, papers, and finals, and now the holidays are upon us. Although we won’t be able to write full posts on all of the recent developments in technology law, we wanted to offer some quick updates on some of the biggest and most interesting stories in recent weeks. Below the fold are summaries of cases and other developments in patent, copyright, and trademark law, as well as several proposed laws and regulations.
Tagged 2nd Circuit, anticircumvention, COICA, contributory infringement, copyright, DMCA, fair use, Federal Circuit, FTC, innocent infringer, patent, patentability, privacy, re-examination, SHIELD Act, statutory damages, trademark
On December 14, 2010, the Sixth Circuit held that a search warrant is required before the government can engage in search and seizure of emails stored by an internet service provider (ISP).
The government directed—without a warrant for probable cause—an ISP, NuVox, to “preserve” all Steven Warshak’s future emails without Warshak’s knowledge. NuVox secretly archived months’ worth of Warshak’s emails. In January 2005, under the Stored Communications Act (SCA), enacted in 1986 as part of the Electronic Communications Privacy Act, 18 U.S.C. § 2701-2712, the government subpoenaed NuVox to obtain Warshak’s emails. Similarly, the government sought more emails in May of that year under 18 U.S.C. § 2703(d). In total, NuVox disclosed 27,740 of Warshak’s “preserved” emails. Steven and Harriet Warshak were convicted for mail, wire and bank fraud, defrauding consumers, and money laundering activity related to an herbal supplement “auto-ship” business that Steven owned and operated. United States v. Warshak (PDF) at 9, 12.
In the recent Finjan v. Secure Computing decision, the Federal Circuit affirmed that software that is sold in locked or inactivated form can directly infringe apparatus claims even before the customer unlocks or activates the software in separate subsequent steps.
The patents at issue in Finjan concern software for computer security (anti-virus, anti-spyware, etc.). Finjan, a computer security software company, asserted three patents against its competitors Secure Computing Corp., Cyberguard Corp., and Webwasher AG. Each asserted patent contains both method claims and apparatus claims. Among various other issues related to damages and infringement of method claims, the defendants also appealed the district court’s finding of direct infringement of apparatus claims.
In May 2007, at the Where 2.0 conference in San Jose, Google launched Street View, a program allowing users to navigate panoramic images of thousands of street level locations. Advocating for mapping efficiency via technological innovation, Google aspired to “provide users with a rich, immersive browsing experience in Google Maps, allowing a greater understanding of a specific area.” This new product enabled any individual to type a particular address, click on a Street View link, and experience a clear and detailed panoramic view of almost any location of their choosing, as though they were actually standing on the street and viewing in real time.
In order to gather the images for panoramic display, Google equipped thousands of cars with mounted cameras that collected photographs, 3D imagery, and local WiFi network data. The photographs and the 3D building imagery were obtained to improve directional clarity on Google Maps through detailed depictions of objects like street and traffic signs. The cameras were not selective in the photographing and any individual within range of the camera could be photographed. Google further collected WiFi network information including publicly broadcasted SSID information (i.e., network names) and MAC addresses (the unique number given to WiFi routers) to further improve location-based services like searching indexes and maps.