- Volume 20, Issue #4
- Supreme Court To Hear Apple App Store Antitrust Standing Dispute
WASHINGTON, D.C. - At the federal government's suggestion, the U.S. Supreme Court in its June 18 order list granted certiorari to Apple Inc. to decide a question of when consumers are direct or indirect purchasers related to their standing to sue a manufacturer for monopolization under the Sherman Act in the context of prices for iPhone apps set by app developers (Apple Inc. v. Robert Pepper, et al., No. 17-204, U.S. Sup.).
- IPhone Owners May Appeal Class Certification Denial In Antitrust Suit
SAN FRANCISCO - A Ninth Circuit U.S. Court of Appeals panel on June 1 granted a petition by two iPhone users to appeal a trial court order denying class certification in a six-year-old suit alleging that Apple Inc. sought to monopolize the aftermarket for voice and data services via exclusive service contracts with AT&T Mobility (Zack Ward, et al. v. Apple Inc., No. 18-80027, 9th Cir.).
- Judge Finds Trump's Blocking Of Twitter Users Violates 1st Amendment
NEW YORK - Concluding that the interactive space on President Donald J. Trump's Twitter account qualifies as a public forum, a New York federal judge on May 23 found that the president and a top aide violated the First Amendment to the U.S. Constitution by blocking Twitter users from the account based on opposing political views (Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al., No. 1:17-cv-05205, S.D. N.Y.).
- Buzzfeed's Fair Reporting Defense OK'd In Defamation Suit Over DNC Hack Article
MIAMI - Buzzfeed Inc. may proceed with its affirmative defense of the fair reporting privilege in defamation lawsuit over its online publication of an article on purported Russian attempts to hack the Democratic National Committee (DNC) database, a Florida federal judge ruled June 4, denying in part a motion for judgment on the pleadings by a plaintiff who says he was wrongly implicated in the article (Aleksej Gubarev, et al. v. Buzzfeed Inc., et al., No. 0:17-cv-60426, S.D. Fla.).
- California High Court: Public Social Media Posts Discoverable Under SCA
SAN FRANCISCO - The Stored Communications Act (SCA) prohibits a service provider from disclosing only communications that are private or for restricted audiences, the California Supreme Court held May 24, affirming in part an appeals court's reversal of an order requiring three social media provider to submit users' posts sought by two murder suspects, but remanding for a trial court to make additional findings and complete the record (Facebook Inc., et al. v. The Superior Court of San Francisco City and County, et al., No. S230051, Calif. Sup., 2018 Cal. LEXIS 3635).
- Facebook Instant Messages Deemed Discoverable In Anthem ERISA Class Action
INDIANAOLIS - In light of a defendant's showing of relevance and the plaintiffs' failure to establish privilege, an Indiana federal magistrate judge on June 14 concluded that a Facebook instant message string between two named plaintiffs was not covered by a protective order in a putative class action over pension plan administrative fees, leading him to mostly grant a motion to compel (Mary Bell, et al. v. Pension Committee of ATH Holding Company LLC, et al., No. 1:15-cv-02062, S.D. Ind.).
- DOJ To High Court: Judge's Tweet Doesn't Merit Recusal, Certiorari
WASHINGTON, D.C. - Opposing a forest product company's petition for certiorari, the U.S. Department of Justice on May 22 filed a brief on behalf of the federal government, telling the U.S. Supreme Court that a judge's purported Twitter post pertaining to a wildfire dispute over which he was presiding did not evince any bias or impropriety warranting his recusal or vacatur of an underlying judgment (Sierra Pacific Industries Inc., et al. v. United States, No. 17-1153, U.S. Sup.).
- Washington AG Sues Facebook, Google Over Campaign Finance Disclosure
SEATTLE - Washington Attorney General (AG) Robert W. Ferguson on June 4 filed complaints on behalf of the state against Facebook Inc. and Google Inc. in the King County Superior Court, asserting that both firms failed to comply with record-keeping and reporting requirements of Washington's campaign finance and disclosure law, Rev. Code Wash. 42.17A, related to political advertisements that ran on the companies' respective online platforms (Washington v. Facebook Inc., No. NA, and Washington v. Google Inc., No. NA, Wash. Super., King County).
- Appellants Defend Terror- Aiding Claims Against Social Networks Under JASTA
SAN FRANCISCO - Appealing dismissal of their terror-aiding claims against Twitter Inc., Facebook Inc. and Google LLC to the Ninth Circuit U.S. Court of Appeals, two plaintiffs argue in a May 31 appellant brief that the Justice Against Sponsors of Terrorism Act (JASTA) overrides the immunity conferred to interactive computer service providers under the Communications Decency Act (CDA) (Demetrick Pennie, et al. v. Twitter Inc., et al., No. 17-17536, 9th Cir.).
- 9th Circuit Extends Stay In 2 TCPA Appeals Pending Related Ruling
SAN FRANCISCO - In light of a pending ruling in an appeal pertaining to the Telephone Consumer Protection Act (TCPA), a Ninth Circuit U.S. Court of Appeals panel on May 22 granted a motion by Facebook Inc. to extend the existing stay in two other appeals related to the statute and its definition of an automatic telephone dialing system (ATDS) (Colin R. Brickman v. Facebook Inc., No. 17-80080, and Christine Holt v. Facebook Inc., No. 17-80086, 9th Cir.).
- 9th Circuit Upholds Damages, Fee Award In BitTorrent 'Swarm' Cases
SAN FRANCISCO - In a June 18 ruling, the Ninth Circuit U.S. Court of Appeals affirmed a Washington federal judge's decision to award a single statutory damage award in each of five cases involving the same BitTorrent "swarm" upload of the film "London Has Fallen" (LHF Production Inc. v. Doe 1, et al., No. 17-35237, 9th Cir., 2018 U.S. App. LEXIS 16360).
- Settlement In Principle Reached In Long-Running YouTube Fair Use Case
OAKLAND, Calif. - One year after a YouTube user was denied certiorari on questions of fair use and good faith surrounding the takedown provisions of the Digital Millennium Copyright Act (DMCA), a California federal magistrate judge announced in a June 6 minute entry that the parties in the 11-year old case had "reached in principle" a settlement of the remaining issues (Stephanie Lenz v. Universal Music Corp., et al., No. 4:07-cv-03783, N.D. Calif.).
- California Federal Judge Denies Dismissal Of Copyright Dispute Over Bots
LOS ANGELES - In a 39-page order issued May 29, a California federal judge rejected efforts by the operators of alleged "bots" to obtain dismissal of copyright infringement allegations levied in connection with their mass purchase of tickets for live entertainment events (Ticketmaster L.L.C. v. Prestige Entertainment West Inc., et al., No. 17-7232, C.D. Calif., 2018 U.S. Dist. LEXIS 89347).
- High Court Asked To Decide If Nontaxable Costs Can Be Awarded Under Copyright Act
WASHINGTON, D.C. - In a May 31 petition for certiorari, a software support firm argues that a prevailing party can be awarded only taxable, not nontaxable costs, under the Copyright, asking the U.S. Supreme Court to resolve a difference of opinions among the circuit courts of appeal on the issue (Rimini Street Inc., et al. v. Oracle USA Inc., et al.., No. 17-1625, U.S. Sup.).
- Google Seeks Rehearing Of Fair Use Ruling In Java Copyright Dispute With Oracle
WASHINGTON, D.C. - In a May 29 petition in the Federal Circuit U.S. Court of Appeals, Google LLC says "novel questions of exceptional importance" over the fair use of existing software interfaces merit en banc rehearing of a panel's finding that Google's use of certain Java code in its Android operating system infringed the copyrights of Oracle America Inc. (Oracle America Inc. v. Google LLC, Nos. 17-1118, -1202, Fed. Cir.).
- VidAngel To 9th Circuit: Studios' Conspiracy Against Filterers Plausibly Alleged
SAN FRANCISCO - Online video-filtering service provider VidAngel Inc. argues in a June 1 reply brief to the Ninth Circuit U.S. Court of Appeals that its antitrust counterclaims in a copyright dispute were wrongly dismissed because it plausibly alleged a conspiracy by the plaintiff movie studios to boycott filtering services despite public demand for such services (Disney Enterprises Inc., et al. v. VidAngel Inc., No. 17-56665, 9th Cir.).
- U.S. Senate Passes Joint Resolution Disapproving FCC's Net Neutrality Repeal
WASHINGTON, D.C. - In a 52-47 vote, the U.S. Senate on May 16 passed Senate Joint Resolution 52, which expressed congressional disapproval of a February 2018 Federal Communications Commission rule that repealed the principle known as "net neutrality."
- Apple's Award Increased To $538 Million Following Smartphone Patent Retrial
SAN FRANCISCO - Following five days of deliberation, jurors empaneled before U.S. Judge Lucy Koh of the Northern District of California on May 24 returned a verdict in favor of Apple Inc., awarding the software giant $538,641,616 in connection with infringement of three design and two utility patents (Apple Inc. v. Samsung Electronics Co. Ltd., No. 11-1846, N.D. Calif.).
- Apple Wins Stay, But Dismissal Motion Denied, In California Patent Case
SAN FRANCISCO - Allegations by Apple Inc. that a patent owner failed to undertake an adequate pre-suit investigation - thereby justifying an award of sanctions - were turned away May 26 by a California federal judge, who found that the software giant failed to prove by clear and convincing evidence that the underlying complaint is not "well-founded" (Uniloc United States of America Inc. v. Apple Inc., No. 18-362, N.D. Calif., 2018 U.S. Dist. LEXIS 88534.).
- Amazon, Hulu, Netflix Team Up In New Inter Partes Review Petition
ALEXANDRIA, Va. - A patent covering data compression claims "known compression concepts," Amazon.com Inc., Hulu LLC and Netflix Inc. assert in a June 4 petition for inter partes review (IPR) by the Patent Trial and Appeal Board (Amazon.com Inc., et al., v. Realtime Adaptive Streaming LLC, No. IPR2018-01187, PTAB).
- Dismissal Sought Of Fraud, Trade Secret Claims Over $11.4 Billion In Bitcoin
WEST PALM BEACH, Fla. - A man accused of misappropriating and converting more than $11 billion in assets of a deceased bitcoin miner filed a motion to dismiss in Florida federal court June 15, asserting a lack of jurisdiction and claim preclusion due to Australian judgments in his favor (Ira Kleiman, et al. v. Craig Wright, No. 9:18-cv-80176, S.D. Fla.).
- Blind Man Lacks Standing In Credit Union Website Accessibility Case, Judge Says
ROANOKE, Va. - A visually impaired man failed to allege an injury-in-fact to establish standing under Article III of the U.S. Constitution to sue a credit union for violating the Americans with Disabilities Act (ADA), a Virginia federal judge ruled June 11, dismissing the suit for lack of subject matter jurisdiction (Keith Carroll v. Roanoke Valley Community Credit Union, No. 7:17-cv-00469, W.D. Va., 2018 U.S. Dist. LEXIS 98284).
- Data Analytics Firm Says Ticketmaster Ruling Does Not Affect CFAA Case
SAN FRANCISCO - In a June 6 response brief, a data analytics firm tells the Ninth Circuit U.S. Court of Appeals that a recent California federal court ruling in favor of Ticketmaster LLC is not applicable to the present appeal regarding access under the Computer Fraud and Abuse Act (CFAA) (hiQ Labs Inc. v. LinkedIn Corp., No. 17-16783, 9th Cir.).
- RICO Claims Dismissed In Trade Secret Lawsuit Against Google, Others
SAN JOSE, Calif. - A federal judge in California on June 13 ruled that an architect and his firm have not shown that they have standing to bring claims for violation of the Racketeer Influenced and Corrupt Organizations Act in a trade secret misappropriation and RICO lawsuit by failing to provide sufficient evidence that they were victims of any predicate act (Eli Attia, et al. v. Google LLC, et al., No. 17-6037, N.D. Calif., 2018 U.S. Dist. LEXIS 99400).
- 4th Circuit Adopts Octane Evidence Standard For Fee Awards In Lanham Act Cases
RICHMOND, Va. - In a May 29 ruling, the Fourth Circuit U.S. Court of Appeals held that a prevailing party under the Lanham Act, 15 U.S.C. 1117(a), is entitled to an award of attorney fees upon establishing exceptionality by a preponderance of the evidence (Verisign Inc. v. XYZ.com LLC, et al., No. 17-1704, 4th Cir.).
- California Federal Judge Won't Disqualify Counsel In 'Twit' Trademark Case
SAN FRANCISCO - Efforts by a trademark infringement plaintiff to disqualify counsel for Twitter Inc. on the basis of a prior relationship with the plaintiff surrounding patent litigation which never materialized were rejected June 1 by a California federal judge (TWiT LLC v. Twitter Inc., No. 18-341, N.D. Calif., 2018 U.S. Dist. LEXIS 92321).
- Louisiana Federal Judge Dismisses Copyright, Trademark Claims
NEW ORLEANS - A copyright and trademark infringement plaintiff's effort to establish jurisdiction in Louisiana based upon a defendant's access of a computer server there was unsuccessful May 29, when a Louisiana federal judge found that it is unclear whether the access was without permission (Future World Electronics LLC v. Results HQ LLC, No. 17-17982, E.D. La., 2018 U.S. Dist. LEXIS 88979).
- Zillow Housing Values Class Suit Is Dismissed For 2nd Time
CHICAGO - An Illinois federal judge on May 7 dismissed for a second time a class complaint filed by the owners of a Shaumburg, Ill., property who claimed that Zillow Inc. and Zillow Group Inc. (collectively, Zillow) underestimated the value of their property in violation of two Illinois laws (Vipul P. Patel, et al. v. Zillow, Inc., et al., No. 17-4008, N.D. Ill., 2018 U.S. Dist. LEXIS 76245).
- An Overview Of Digital Accessibility Terms And Today's Legal Landscape
By Vivian Cullipher A Primer For Legal Teams On ADA And Section 508 Issues Affecting Websites, Mobile Apps, And Other Digital Platforms And Content This July will mark 28 years since President George H.W. Bush signed the Americans with Disabilities Act into law. According to the Computer History Museum, five months after the ADA was enacted, Tim Berners-Lee prototyped the "WorldWideWeb" featuring a server, HTML, URLs, and the first browser.1