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Preview: LexisNexis® Mealey's™ Cyber Tech & E-Commerce Legal News

LexisNexis® Mealey's™ Cyber Tech & E-Commerce Legal News

Headline Cyber Tech & E-Commerce Legal News from LexisNexis®


Panel: Employee Fired For Pro-Trump Tweet Wrongly Denied Unemployment Benefits
HARRISBURG, Pa. - A Pennsylvania appellate panel on Nov. 13 found that an employee's tweet, which led to her dismissal, did not violate her employer's social media policy and, thus, did not constitute willful misconduct to disqualify her from receiving unemployment compensation (UC) benefits (Waverly Heights Ltd. v. Unemployment Compensation Board of Review, No. 312 CD 2017, Pa. Cmwlth.).

Terror Victim's Family's Terror-Aiding Claims Against Google Dismissed Under CDA
OAKLAND, Calif. - Google Inc. saw terror-aiding claims related to the 2015 Paris attack dismissed Oct. 23, with a California federal judge finding that the claims brought by family members of one of the attack victims, who sought to hold Google liable for providing online resources that aided the terrorists, were barred under the immunity provision of the Communications Decency Act (CDA) because they treated Google as the speaker of the YouTube videos at issue (Reynaldo Gonzalez v. Google Inc., No. 4:16-cv-03282, N.D. Calif., 2017 U.S. Dist. LEXIS 175327).

Twitter Users, DOJ Move For Summary Judgment In Trump Account-Blocking Suit
NEW YORK - Responding to a summary judgment motion filed by the U.S. Department of Justice (DOJ), on behalf of President Donald J. Trump and three top aides, a group of people that have been blocked from the president's Twitter account filed a cross-motion on Nov. 3 in New York federal court, defending their claims under the First Amendment to the U.S. Constitution (Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al., No. 1:17-cv-05205, S.D. N.Y.).

Judge Halts Enforcement Of Canadian High Court's Global Injunction Against Google
SAN JOSE, Calif. - On Nov. 2, a California federal judge granted preliminary injunctive relief to stop domestic enforcement of a Canadian Supreme Court requiring Google LLC to remove listings for a trade secret infringing firm from all of its websites globally, with the judge finding that the "order undermines the policy goals of [the Communications Decency Act (CDA)] and threatens free speech on the global internet" (Google LLC v. Equustek Solutions Inc., No. 5:17-cv-04207, N.D. Calif., 2017 U.S. Dist. LEXIS 182194).

Conservative Group Says YouTube's Video Restrictions Violated 1st Amendment
SAN JOSE, Calif. - In a complaint filed Oct. 23 in California federal court, a conservative organization alleges that YouTube LLC and its parent company Google Inc. violate its free speech rights under the California Constitution and the First Amendment to the U.S. Constitution by restricting access to some of its posted videos on the basis of political ideology rather than any objectionable content (Prager University v. Google Inc., et al., No. 5:17-cv-06064, N.D. Calif.).

California Federal Judge Orders New Damages Trial In Apple, Samsung Case
SAN FRANCISCO - In an Oct. 22 ruling, U.S. Judge Lucy Koh of the Northern District of California rejected claims by Apple Inc. that the burden of persuasion in identifying the relevant article of manufacture under Section 289 of the Patent Act rests with a design patent infringement defendant (Apple Inc. v. Samsung Electronics Co. Ltd., et al., No. 5:11-cv-01846, N.D. Calif.).

Federal Circuit Affirms: File Identification Patent Properly Deemed Ineligible
WASHINGTON, D.C. - Allegations of infringement were properly dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), Fed. R. Civ. P. 12(b)(6), because the patent in suit claims ineligible subject matter, the Federal Circuit U.S. Court of Appeals affirmed Nov. 3 (Intellectual Ventures I LLC v. Erie Indemnity Company, et al., No. 17-1147, Fed. Cir., 2017 U.S. App. LEXIS 22060).

Supreme Court Denies Certiorari In Apple, Samsung Patent Dispute
WASHINGTON, D.C. - In its Nov. 6 order list, the U.S. Supreme Court heeded the advice of the U.S. government and denied certiorari in the longstanding dispute between Samsung Electronics Co. Ltd. and Apple Inc. over smartphone technology patents (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 16-1102, U.S. Sup.).

Federal Circuit Affirms: Data Streaming Patents Ineligible For Protection
WASHINGTON, D.C. - A Delaware federal judge did not err in deeming a series of patents stemming from continuation applications ineligible for protection under Section 101 of the Patent Act, 35 U.S.C. 101, because the patents claim the abstract idea of sending and monitoring the delivery of audio/visual information, the Federal Circuit U.S. Court of Appeals ruled Nov. 1 (Two-Way Media Ltd. v. Comcast Cable Communications LLC, et al., No. 16-2531, Fed. Cir., 2017 U.S. App. LEXIS 21706).

Federal Circuit Reverses Indefiniteness Holding, Rules Against Microsoft
WASHINGTON, D.C. - Findings by a Minnesota federal judge that five claims of two patents directed to data mining are indefinite were erroneous, the Federal Circuit U.S. Court of Appeals concluded Oct. 30 (MasterMine Software Inc. v. Microsoft Corp., No. 16-2465, Fed. Cir., 2017 U.S. App. LEXIS 21479).

Exclusion Order Barring Importation Of Infringing Network Devices Affirmed
WASHINGTON, D.C. - A limited exclusion order entered by the International Trade Commission (ITC) against Arista Networks Inc. based upon findings that Arista infringed three Cisco Systems Inc. patents was upheld Oct. 18 by the Federal Circuit U.S. Court of Appeals, which found no error in the ITC's determination of infringement (Arista Networks Inc. v. International Trade Commission, No. 16-2563, Fed. Cir.).

Federal Circuit Affirms Own Member, Sides With Google In Patent Row
WASHINGTON, D.C. - Judge Timothy B. Dyk of the Federal Circuit U.S. Court of Appeals did not err in denying a motion for judgment as a matter of law (JMOL) by a patent owner following an adverse jury trial in the U.S. District Court for the District of Delaware, the Federal Circuit ruled Oct. 20 (Art+Com Innovationpool GmbH v. Google Inc., No. 17-1016, Fed. Cir.).

Caltech Urges Patent Board To Reconsider Grant Of Apple Motion
ALEXANDRIA, Va. - An October decision by the Patent Trial and Appeal Board to grant Apple Inc.'s motion to file supplemental information in its challenge to a California Institute of Technology (Caltech) patent is "deeply prejudicial in both its timing and its scope," the university told the board on Nov. 13 (Apple Inc. v. California Institute of Technology, No. IPR2017-00728, PTAB).

2nd Circuit Affirms Dismissal Of Suit Over Weight Watchers Site 'Glitches'
NEW YORK - In a Nov. 2 summary order, a Second Circuit U.S. Court of Appeals panel found that a breach of contract claim over problems with the website and app of Weight Watchers International Inc. failed because the site was offered on an "as is" basis, affirming a trial court's dismissal of a putative class action (Raymond M. Roberts v. Weight Watchers International Inc., No. 16-3865, 2nd Cir., 2017 U.S. App. LEXIS 21874).

Yahoo, Promotions Firm Announce Settlement In Remanded NCAA Contest Suit
DALLAS - In a joint filing Nov. 13 in Texas federal court, Yahoo! Inc. and a former promotional partner announced that they had stipulated to settlement of the remaining issues in a remanded case centering on contractual disputes over a 2014 online NCAA contest three months after the Fifth Circuit U.S. Court of Appeals found that Yahoo owed the plaintiff $4.4 million (SCA Promotions Inc. v. Yahoo! Inc., No. 3:14-cv-00957, N.D. Texas).

Internet Posting Bans In 'Comic-Con' Trademark Suit Vacated As Prior Restraint
SAN DIEGO - A California federal judge on Oct. 30 vacated previous protective orders preventing the defendant in a dispute over the "Comic-Con" trademark from posting online about the litigation, issuing the order in compliance with a Ninth Circuit U.S. Court of Appeals ruling that deemed the internet bans prior restraint under the First Amendment to the U.S. Constitution, U.S. Const. amend. I (San Diego Comic Convention v. Dan Farr Productions, et al., No. 3:14-cv-01865, S.D. Calif.).

75 Website Operators Enjoined From Offering Counterfeit Gucci Items
FORT LAUDERDALE - A Florida federal judge on Nov. 8 granted Gucci America Inc.'s motion for a preliminary injunction against 75 website operators that the plaintiff said were selling counterfeit goods bearing the "Gucci" mark, finding Gucci "very likely" to succeed in its trademark infringement claims (Gucci America Inc. v., et al., No.0:17-cv-62068, S.D. Fla.).

4th Circuit Affirms: Computer Fraud Claims Preempted By Copyright Act
RICHMOND, Va. - Allegations that the creator of a cloud computing environment committed computer fraud when it copied and transferred data to former employees of a company it once contracted with are preempted by the Copyright Act, the Fourth Circuit U.S. Court of Appeals ruled Nov. 13 (OpenRisk LLC v. MicroStrategy Services Corp., No. 16-1852, 4th Cir., 2017 U.S. App. LEXIS 22736).

BitTorrent Users Severed, Dismissed In 'Mechanic: Resurrection' Copyright Suit
LAS VEGAS - Adopting a magistrate's recommendation, a California federal judge on Nov. 7 severed all but one defendant accused of infringing a movie's copyright via online file sharing, with the judge deeming the defendants improperly joined (ME2 Productions Inc. v. Mikiyas Bayu, et al., No. 2:17-cv-00724, D. Nev., 2017 U.S. Dist. LEXIS 184021).

Usenet Provider Opposes Adult Site's Certiorari Bid In Vicarious Copyright Suit
WASHINGTON, D.C. - Asserting that an appeals court's ruling in its favor presented no conflicts with copyright law or controlling case law, a usenet provider argues in an Oct. 20 brief in the U.S. Supreme Court that there is no merit to an adult website operator's petition for certiorari appealing a finding that the respondent was not liable for infringing content posted by its users (Perfect 10 Inc. v. Giganews Inc., et al, No. 17-320, U.S. Sup.).

2nd Circuit Affirms Rejection Of DMCA Claim, Denial Of Attorney Fees
NEW YORK - A New York federal judge did not err in rejecting allegations that a licensee violated the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 1201(a), when it modified security measures to prevent two software programs from self-enforcing certain licensing restrictions because the plaintiffs failed to demonstrate the copyrightability of the underlying programs, the Second Circuit U.S. Court of Appeals ruled Nov. 8 (Dynamic Concepts Inc. and Point 4 Data Corp. v. Tri-State Surgical Supply, et al., Nos. 15-0563, -3212, 2nd Cir., 2017 U.S. App. LEXIS 22348).

10th Circuit: Refusal To Allow Amended Source Code Copyright Claim Not Erroneous
DENVER - A Utah federal judge's decision to deny The SCO Group Inc. leave to amend its tortious interference complaint against International Business Machines Corp. (IBM) to add a new claim for copyright infringement was affirmed Oct. 30 by the 10th Circuit U.S. Court of Appeals (The SCO Group Inc. v. International Business Machines Corp., No. 16-4040, 10th Cir., 2017 U.S. App. LEXIS 21487).

Justices Will Not Review Role Of Expert Testimony In Copyright Infringement Cases
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 6 denied a petition for a writ of certiorari in a copyright infringement action over the popular John Madden Football series computer game in which the court was asked to determine the standard for the admissibility of expert testimony in copyright infringement disputes involving computer codes (Robin Antonick v. Electronic Arts Inc., No. 17-168, U.S. Sup.).

Zillow Tells 9th Circuit Use Of Home Photos On Website Was Fair Use
SAN FRANCISCO - In an Oct. 26 brief appealing a $4 million statutory damages award that assigned a per-photo fine for 2,700 real estate photos deemed infringing, Zillow Group Inc. tells the Ninth Circuit U.S. Court of Appeals that its online use of the pictures was transformative and fair use (VHT Inc. v. Zillow Group Inc., et al., No. 17-35587 and 17-35588, 9th Cir.).

McDonald's, Blind Patron Settle ADA Suit Over Website's Purported Inaccessibility
CHICAGO - In light of an announced confidential settlement between the parties in an Americans With Disabilities Act (ADA) lawsuit, an Illinois federal judge on Oct. 30 dismissed a lawsuit against McDonald's Corp., in which a blind patron alleged that the restaurant chain's website was not equally accessible to visually impaired people (Sean Gorecki v. McDonald's Corporation, No. 1:17-cv-03036, N.D. Ill.).

Online Payment Company Accuses Former Employees Of Trade Secret Misappropriation
MIAMI - An online payment and settlement computer-based platform for the shipping and cargo industry sued two former employees and others on Nov. 3 in a Florida federal court, claiming that the defendants misappropriated the company's trade secret information to form a competing company in violation of state and federal trade secrets law (Coihue LLC, et al. v. PayAnyBiz LLC, et al., No. 17-24062, S.D. Fla.).

Arbitration Ordered In Class Suit Over Faulty Live Stream Of Mayweather Fight
NEW YORK - A class complaint alleging that the live stream of an August boxing match suffered from technical failures and caused pay-per-view viewers to miss large portions of the fight was stayed Nov. 7 by a New York federal judge, who ordered the matter to arbitration (Victor Mallh, et al. v. Showtime Networks Inc., No. 17-6549, S.D. N.Y., 2017 U.S. Dist. LEXIS 184471).

Schools And Organizations That Serve Education: Beware OCR Complaints Addressing Online Accessibility
By Vivian Cullipher From Rural School Districts To Prominent Universities: Lack Of Website Accessibility Reaps Tidal Wave Of Complaints The issue of whether or not private sector enterprises must make their online and digital materials accessible to people with disabilities centers around whether Title III of the Americans with Disabilities Act (ADA) applies to websites. Because the ADA does not name websites and electronic content specifically, courts look to precedent and Department of Justice statements, sometimes leading to conflicting decisions.1 More often than not, however, judgments support the idea that inaccessible websites prevent people with disabilities from having similar access to information and function as those without, violating the ADA.2

7 Petitions For Certiorari Filed After D.C. Circuit's Net Neutrality Ruling
WASHINGTON, D.C. - Seven separate petitions for certiorari were filed with the U.S. Supreme Court on Sept. 28 appealing the District of Columbia Circuit U.S. Court of Appeals' ruling upholding the decision of the Federal Communications Commission to reclassify broadband internet service as a telecommunications service, with AT&T Inc. and others questioning the commission's statutory authority to do so (AT&T Inc. v. Federal Communications Commission, et al., No. 17-499, American Cable Association v. Federal Communications Commission, et al., No. 17-500; CTIA-The Wireless Association v. Federal Communications Commission, et al., No. 17-501; NCTA-The Internet and Television Association v. Federal Communications Commission, et al., No. 17-502; TechFreedom, et al. v. Federal Communications Commission, et al., No. 17-503; United States Telecom Association, et al. v. Federal Communications Commission, et al., No. 17-504; Daniel Berninger v. Federal Communications Commission, et al., No. 17-498, U.S. Sup.).

Winn-Dixie Disputes ADA Application To Websites In 11th Circuit
ATLANTA - Appealing a lower court's finding that a visually impaired man sufficiently alleged that its website's purported lack of accessibility violates the Americans with Disabilities Act (ADA), Winn-Dixie Stores Inc. tells the 11th Circuit U.S. Court of Appeals in an Oct. 10 brief that the statute's accessibility requirements apply to physical locations, not websites (Winn-Dixie Stores Inc. v. Juan Carlos Gil, No. 17-13467, 11th Cir.).

Complaint Over CVS Website Accessibility Survives Dismissal Motion
LOS ANGELES - A visually impaired woman sufficiently stated her claims that CVS Pharmacy Inc.'s website is not equally accessible under California civil rights law, a California federal judge ruled in an Oct. 3 in chambers order, denying the drugstore chain's motion to dismiss (Kayla Reed v. CVS Pharmacy Inc., et al., No. 2:17-cv-03877, C.D. Calif.).

Megaupload Executives Denied Certiorari In Fugitive Disentitlement Dispute
WASHINGTON, D.C. - A group of former executives of the now-defunct file-sharing service Megaupload who were convicted for criminal copyright convictions won't have their questions about fugitive disentitlement of assets heard by the U.S. Supreme Court, as their petition for certiorari was denied in the high court's Oct. 2 order list (Finn Batato, et al. v. United States, No. 16-1206, U.S. Sup.).

1st Circuit Affirms: Copyrights Conveyed To Gripe Website
BOSTON - The First Circuit U.S. Court of Appeals on Oct. 11 upheld findings by a Massachusetts federal judge that a disgruntled civil litigant conveyed a nonexclusive license to the "Ripoff Report" website when he clicked a box acknowledging that a user who posts on the site agrees to give the site's owner an "irrevocable right" to display the posting (Small Justice LLC, et al. v. Xcentric Ventures LLC, Nos. 15-1506, 16-1085, 1st Cir., 2017 U.S. App. LEXIS 19866).

3 Studio Plaintiffs Added In Amended Copyright Complaint Against VidAngel
LOS ANGELES - After receiving adverse rulings for sanctions, contempt and a preliminary injunction, video-streaming service provider VidAngel Inc. saw three more movie studios join a copyright infringement lawsuit against it, with the Oct. 6 filing of a first amended complaint (FAC) (Disney Enterprises Inc., et al. v. VidAngel Inc., No. 2:16-cv-004109, C.D. Calif.).

Oracle's False Advertising Counterclaims Survive Motion To Dismiss
LAS VEGAS - A Nevada federal judge on Sept. 21 found that Lanham Act claims based upon a former copyright infringement defendant's alleged false representation that its revised software maintenance program was no longer infringing are not preempted by the Copyright Act, 17 U.S.C. 101 et seq. (Rimini Street Inc. v. Oracle America Inc., No. 14-1699, D. Nev., 2017 U.S. Dist. LEXIS 154930).

California Anti-Spam Law Applies To Advertiser, Not Sender, Judge Rules
SAN FRANCISCO - A California law that prohibits the sending of fraudulent, unsolicited emails provides for liability only against the advertisers whose ads are contained in the messages, not the entity that sent them, a California federal judge ruled Sept. 22, granting a Nevada firm's motion to dismiss a spam claim against it (Mira Blanchard, et al. v. Fluent Inc., et al., No. 3:17-cv-04497, N.D. Calif., 2017 U.S. Dist. LEXIS 155535).

High Court Seeks Solicitor General's Input In Apple App Store Antitrust Suit
WASHINGTON, D.C. - After being fully briefed in a putative class action over alleged anti-competitive behavior by Apple Inc. related to its App Store, the U.S. Supreme Court in its Oct. 10 order list invited the U.S. solicitor general to file a brief expressing the government's views on antitrust standing of direct and indirect purchasers, seeking input in considering Apple's petition for certiorari (Apple Inc. v. Robert Pepper, et al., No. 17-204, U.S. Sup.).

Judge Finds Reputation Management Firm Did Not Agree To Settle Fraud Action
SAN JOSE, Calif. - After finding that a company never agreed to settle claims for violation of California's unfair competition law (UCL) and conspiracy in relation to allegations that it participated in a scheme to create fake news, a California federal judge on Sept. 27 refused to grant approval of the agreement (Consumer Opinion LLC v. Frankfort News Corp., et al., No. 16-cv-05100, N.D. Calif., 2017 U.S. Dist. LEXIS 159251).

Ex-Employee Denied Bid To Argue Computer Fraud Case In Supreme Court
WASHINGTON, D.C. - A man convicted for computer fraud and misappropriation of his former employer's trade secrets saw his petition for certiorari denied Oct. 10, as the U.S. Supreme Court declined to consider his question about what constitutes access to a computer "without authorization" under the Computer Fraud and Abuse Act (CFAA) (David Nosal v. United States, No. 16-1344, U.S. Sup.).

Supreme Court Denies Social Media Aggregator's Petition Challenging CFAA Ruling
WASHINGTON, D.C. - In its Oct. 10 order list, the U.S. Supreme Court denied a petition for certiorari by an online social media aggregator, which insisted that it had accessed users' data on Facebook Inc.'s social network with their consent and, thus, did not exceed authorization under the Computer Fraud and Abuse Act (CFAA) (Power Ventures Inc., et al. v. Facebook Inc., No. 16-1105, U.S. Sup.).

LinkedIn Tells 9th Circuit Analytics Firm's Bot Scraping Violates The CFAA
SAN FRANCISCO - In an Oct. 3 brief in the Ninth Circuit U.S. Court of Appeals, LinkedIn Corp. seeks reversal of a preliminary injunction preventing it from blocking a data analytics company from collecting and reusing its information, contending that it did not violate California's unfair competition law (UCL), while maintaining that the firm's bot-scraping activities violated the Computer Fraud and Abuse Act (CFAA) (hiQ Labs Inc. v. LinkedIn Corp., No. 17-16783, 9th Cir.).

State Farm Defends Motion To Compel Discovery For Computer Fraud Claims
GULFPORT, Miss. - In an Oct. 2 rebuttal brief supporting its motion to compel discovery related to its computer fraud counterclaims in a decade-old false claims suit related to Hurricane Katrina claims, State Farm Fire and Casualty Co. calls its discovery requests "straightforward," while arguing that the counterdefendants failed to show that the requests are burdensome or cover privileged material (United States, ex rel. Cori Rigsby, et al. v. State Farm Fire & Casualty Co., No. 1:06-cv-00433, S.D. Miss.).

U.S. Government Opposes Certiorari In Samsung, Apple Smartphone Patent Suit
WASHINGTON, D.C. - In an Oct. 4 amicus curiae brief, the U.S. government recommended that the U.S. Supreme Court deny Samsung Electronics Co. Ltd.'s petition for certiorari in its dispute over smartphone technology patents with Apple Inc., arguing that an appeals court judgment affirming a verdict and judgment were properly reached and present no questions of law meriting high court review (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 16-1102, U.S. Sup.).

California Contract Lawsuit Won't Be Dismissed Because Of Texas Patent Case
SAN FRANCISCO - In an Oct. 5 order, a California federal judge denied a motion to dismiss breach of contract allegations levied by Yahoo! Inc. in favor of an earlier-filed patent infringement action pending in Texas federal court (Yahoo! Inc. v. MyMail Ltd., No. 16-7044, N.D. Calif., 2017 U.S. Dist. LEXIS 165642).

High Court Won't Hear Suit Over Whether 'Google' Trademark Is Generic
WASHINGTON, D.C. - In its Oct. 16 order list, the U.S. Supreme Court denied a petition for certiorari in which two men asserted that the term "google" has become generic and, thus, is no longer entitled to trademark protection (David Elliott, et al. v. Google Inc., No. 17-258, U.S. Sup.).

Tech Firm Appeals Fees Award, Judgment In 'Dropbox' Trademark Suit
SAN FRANCISCO - In an Oct. 6 reply brief in the Ninth Circuit U.S. Court of Appeals, a small tech company argues that a $2 million attorney fee award against it was inappropriate and "create[s] a terrible precedent" because it was merely defending its "Dropbox" trademark against a larger company (Dropbox Inc. v. Thru Inc., No. 17-15078, 9th Cir.).

Supreme Court Denies 2nd Certiorari Petition In Case Over Online Threats
WASHINGTON, D.C. - A Pennsylvania man convicted for making threats against co-workers and others on social media saw his second bid at a petition for certiorari denied Oct. 2 when the U.S. Supreme Court declined to consider his questions related to a reasonableness standard and mens rea in reaching such a conviction (Anthony D. Elonis v. United States of America, No. 16-1231, U.S. Sup.).

Supreme Court Won't Hear Suit Over Liability For Online Sale Of Infringing Goods
WASHINGTON, D.C. - In its Oct. 10 order list, the U.S. Supreme denied a petition for certiorari in a children's pillowcase maker's suit against Inc., declining to consider questions regarding an online retailer's liability for the sale of a third party's goods that infringe another's patents or copyrights (Milo & Gabby LLC, et al. v. Inc., No. 17-287, U.S. Sup.).

Nice, France, Attack Survivor Sues Twitter, Facebook Google For Terror Aiding
SAN FRANCISCO - A woman whose husband and son were killed in the July 2016 terror attack in Nice, France, filed a complaint in California federal court on Oct. 12 against Twitter Inc., Facebook Inc. and Google Inc., alleging that the three social network operators violated the Antiterrorism Act (ATA) by permitting terrorists, including the Nice attacker, to use their online platforms to carry out their terrorist activities (Kimberly Copeland v. Twitter Inc., et al., No. 3:17-cv-05851, N.D. Calif.).

Judge: Right Of Publicity Act Class Suit Fails Due To Express Consent
CHICAGO - The user of a photo mobile application who consented to sending invitations to all of his contacts in exchange for free storage space cannot now sue the app creator for using his name when contacting his contacts, an Illinois federal judge ruled Sept. 20, finding that the class complaint fails due to the user's express consent (Danny Pratt v. Everalbum, Inc., No. 17-1600, N.D. Ill., 2017 U.S. Dist. LEXIS 152763).

Trial Date In Uber Trade Secrets Suit Moved To Early December
SAN FRANCISCO - In an Oct. 4 order, the federal judge overseeing the trade secrets and patent infringement lawsuit against Uber Technologies Inc. granted plaintiff Waymo LLC's motion for a continuance and delayed the start of trial until early December (Waymo LLC v. Uber Technologies Inc., et al., No. 17-0939, N.D. Calif.).

Investors Found To Have Pleaded Control-Person Liability In Securities Suit
HARTFORD, Conn. - Investors have properly pleaded each of their state and federal securities laws claims against the co-founder of a virtual currency mining company, a federal judge in Connecticut ruled Oct. 11 in denying the defendant's motion to dismiss all claims against him (Denis M. Audet, et al. v. Stuart A. Fraser, et al., No. 16-0940, D. Conn., 2017 U.S. Dist. LEXIS 167830).

9th Circuit Finds VidAngel's Filtering Service Infringing, Affirms Injunction
SAN FRANCISCO - Four movie studio plaintiffs are likely to succeed on the merits of their copyright infringement claims against a video-streaming service that provides filtered, family-friendly copies of movies, a Ninth Circuit U.S. Circuit Court of Appeals panel ruled Aug. 24, affirming a preliminary injunction preventing any filtering of the plaintiffs' works (Disney Enterprises Inc., et al. v. VidAngel Inc., No. 16-56843, 9th Cir., 2017 U.S. App. LEXIS 16188).

Adult Website Operator Tells High Court Usenet Provider Vicariously Infringed
WASHINGTON, D.C. - In an Aug. 30 petition for certiorari, the operator of an adult website asks the U.S. Supreme Court to consider the standards for determining vicarious copyright infringement liability, arguing that in finding a usenet provider not vicariously liable for displaying the copyrighted images of Perfect 10 Inc., the Ninth Circuit U.S. Court of Appeals relied on incorrect guidelines for infringers' profits and automated processes (Perfect 10 Inc. v. Giganews Inc., et al, No. 17-320, U.S. Sup.).

Amazon Wins Dismissal Of Copyright Claims In Pennsylvania Federal Court
PHILADELPHIA - A Pennsylvania federal judge on Aug. 16 agreed with Inc. and Amazon Web Services Inc. (moving defendants, collectively) that a pro se plaintiff's claims of copyright infringement and unfair competition under the Lanham Act should be dismissed (Gordon Roy Parker v. PayPal Inc., et al., No. 16-4786, E.D. Pa., 2017 U.S. Dist. LEXIS 130800).

California Federal Judge Denies Dismissal Of Criminal Copyright Claim
SAN FRANCISCO - Allegations that a defendant gained access to copyrighted electronic design automation (EDA) software through fraud in violation of the Copyright Act are adequately pleaded, a California federal judge ruled Aug. 15 in denying a motion to dismiss (Synopsys Inc. v. Ubiquiti Network Inc., et al., No. 17-561, N.D. Calif., 2017 U.S. Dist. LEXIS 130070).

Pro Se Plaintiff Defeats Request For Dismissal Of Florida DMCA Claim
ORLANDO, Fla. - Allegations that a ministry and its minister made knowingly false representations of copyright infringement to YouTube in an effort to take down a plaintiff's YouTube channel will proceed, a Florida federal judge ruled Aug. 25 (Shirley Johnson v. New Destiny Christian Center Church Inc., et al., No. 17-710, M.D. Fla.).

Fairness Hearing Ordered In ADA Class Action Over Art Supply Chain's Website
BROOKLYN, N.Y. - A New York federal judge on Sept. 13 stopped short of granting judgment in a lawsuit over alleged Americans with Disabilities Act (ADA) violations associated with a retailer's website, ordering a fairness hearing to discern whether the parties' settlement agreement serves the proposed class of visually impaired individuals and complies with industry accessibility guidelines (Victor Andrews v. Blick Art Materials LLC, No. 1:17-cv-00767, E.D. N.Y.).

Blind Woman Files ADA Suits Over Websites Of Kmart, Ace Hardware, Empire Today
CHICAGO - Three retailers were hit by lawsuits in Illinois federal court Sept. 8 when a blind woman filed three similar lawsuits alleging violations of the Americans with Disabilities Act (ADA), claiming that the companies' websites do not provide full and equal access to visually impaired customers (Kayla Reed v. Kmart Corp., No. 1:17-cv-06495, N.D. Ill.).

5th Circuit Finds Yahoo Owes $4.4 Million In NCAA Contest Dispute
NEW ORLEANS - Reversing a $550,000 judgment in favor of Yahoo! Inc., a Fifth Circuit U.S. Court of Appeals panel on Aug. 21 found instead that Yahoo owed $4.4 million for breaching the cancellation terms of its contract with a promotions firm related to an online NCAA contest (SCA Promotions Inc. v. Yahoo! Inc., No. 15-11254, 5th Cir., 2017 U.S. App. LEXIS 15845).

Google AdWords User Opposes Dismissal Of Unfair Competition Claims
SAN JOSE, Calif. - In a Sept. 15 brief in California federal court, a customer of Google Inc.'s AdWords program argues that he sufficiently alleged unfair competition and false advertising claims based on click fraud charges he incurred due to Google's misrepresentations about the frequency of and protection against fraudulent clicks (Gurminder Singh v. Google Inc., No. 5:16-cv-03734, N.D. Calif.).

Web Host Ordered To Comply With DOJ Warrant For Anti-Trump Site User Info
WASHINGTON, D.C. - In an Aug. 24 blog posting, web-hosting firm DreamHost LLC reported that a District of Columbia judge that day ordered it to comply with a U.S. Department of Justice (DOJ) warrant seeking information connected with users of a website that was used to organize protests against President Donald Trump (In re: the Search of that Is Stored at Premises Owned, Maintained, Controlled,, or Operated by DreamHost, No. 17 CSW 3438, D.C. Super.).

6th Circuit Finds No Unjust Enrichment In Online Purchase Of $27 Speakers
CINCINNATI - An Ohio man who paid for and received a pair of $27 speakers from an online marketplace failed to establish that the site's juxtaposition of a higher, crossed-out price constituted unjust enrichment, a Sixth Circuit U.S. Court of Appeals panel ruled Aug. 16, also affirming dismissal of a putative consumer sales practice claim for failure to allege actual damages (Max Gerboc v. ContextLogic Inc., No. 16-4734, 6th Cir., 2017 U.S. App. LEXIS 15378).

Amazon Asserts No Infringement Of Artificial Turf Trademark To 9th Circuit
SAN FRANCISCO - In an Aug. 25 appellee brief, Inc. tells the Ninth Circuit U.S. Court of Appeals that its automated purchasing of keyword advertising using an artificial turf firm's trademark did not constitute direct infringement under the Lanham Act, arguing that any infringement was attributable to third-party sellers of counterfeit products (Steven Lasoff v. Inc., No. 17-35173, 9th Cir.).

Gab App Maker Sues Google For Antitrust After Removal From Play Store
PHILADELPHIA - The operator of the conservative-leaning Gab social network claims that Google LLC removed its app from the Google Play Store under false "hate speech" pretenses, asserting in a Sept. 14 complaint that it was purely a move to squelch a potential rival, bringing antitrust claims against the tech giant in Pennsylvania federal court (Gab AI Inc. v. Google LLC, No. 2:17-cv-04115, E.D. Pa.).

Dismissal Of TCPA Suit Over Facebook Text Messages Appealed To 9th Circuit
SAN FRANCISCO - Arguing that he sufficiently alleged that repeated, unwanted text messages from Facebook Inc. were sent using an automatic telephone dialing system (ATDS), a Montana man tells the Ninth Circuit U.S. Court of Appeals in a Sept. 1 brief that a trial court erred in dismissing his putative class action against the social network under the Telephone Consumer Protection Act (TCPA) (Noah Duguid v. Facebook Inc., No. 17-15320, 9th Cir.).

Illinois Federal Judge Tosses Class Suit Over Zillow Housing Values
CHICAGO - An Illinois federal judge on Aug. 23 dismissed a class suit filed by the owners of a Shaumburg, Ill., property who claimed that a real estate website underestimated the value of their property in violation of Illinois state laws, finding that the plaintiff's claims failed under Illinois statutory law (Vipul P. Patel, et al. v. Zillow, Inc., et al., No. 17-4008, N.D. Ill., 2017 U.S. Dist. LEXIS 134785).

Government: Ex-Employee's Database Access Exceeded Authority Under CFAA
WASHINGTON, D.C. - The Ninth Circuit U.S. Court of Appeals correctly found that a man's acquisition of his former employer's trade secrets occurred via unauthorized access of the firm's computer system in violation of the Computer Fraud and Abuse Act (CFAA), the U.S. government tells the U.S. Supreme Court in a Sept. 5 brief opposing the ex-employee's petition for certiorari, arguing that the ruling created no split among the federal appeals courts (David Nosal v. United States, No. 16-1344, U.S. Sup.).

Chit Fraud Loss Occurred Via Computer, Card Firm Argues To 11th Circuit
ATLANTA - Contrary to the views expressed by its insurer and a trial court, a card management firm argues in a July 27 reply brief to the 11th Circuit U.S. Court of Appeals that an $11 million loss it experienced due to fraudulent activity involved a computer and thus triggered coverage under the computer fraud provision in its insurance policy (Hi Technology Corp., et al. v. Great American Insurance Co., No. 17-11712, 11th Cir.).

6th Circuit Affirms Dismissal Of Accused File Sharer's Declaratory Judgment Claim
CINCINNATI - An Ohio federal magistrate judge did not err in dismissing, as redundant, a declaratory judgment counterclaim of noninfringement filed by an alleged downloader of various copyrighted films, the Sixth Circuit U.S. Court of Appeals ruled Aug. 28 (Malibu Media LLC v. David Ricupero, No. 16-3628, 6th Cir., 2017 U.S. App. LEXIS 16586).

ISP, Music Publisher Debate Dismissal Of Copyright Declaratory Suit In 2nd Circuit
NEW YORK - In briefs filed in the Second Circuit U.S. Court of Appeals, an internet service provider (ISP) and a music-publishing firm argue over whether a trial court properly dismissed the ISP's declaratory judgment action related to claims of online infringement of the firm's copyrighted songs by the ISP's customers (Windstream Services LLC v. BMG Rights Management [US] LLC, et al., No. 17-1515, 2nd Cir.).

Judge Grants Discovery Request Related To Illegal Amazon, EBay Sales
SAN FRANCISCO - A California federal judge on Sept. 1 granted a motion filed by a distributor of trademarked and copyrighted products and designs that alleges that a retailer violated trademark law and California's unfair competition law (UCL) by selling counterfeited items online, granting its request for limited discovery from online retailers regarding the defendant's sales and aliases (Jessie Steel, Inc. v. Linda Ann Henderson, No. 17-cv-02179, N.D. Calif., 2017 U.S. Dist. LEXIS 142167).

Pillowcase Maker Tells High Court Amazon Is Liable For Selling Infringing Goods
WASHINGTON, D.C. - Appealing rulings in favor of Inc. by both a trial court and an appeals court, the maker of a line of children's pillowcases filed a petition for certiorari with the U.S. Supreme Court on Aug. 21, seeking review of the standards for determining when an online retailer is liable for copyright or patent infringement from the sale of third parties' counterfeit goods (Milo & Gabby LLC, et al. v. Inc., No. 17-287, U.S. Sup.).

Dropbox Asks 9th Circuit To Affirm Senior User, Laches Findings In Trademark Suit
SAN FRANCISCO - In an Aug. 16 appellee brief, Dropbox Inc. (DBI) tells the Ninth Circuit U.S. Court of Appeals that a trial court correctly found that it had priority of use of the "Dropbox" trademark and that a smaller rival's claims also failed under the doctrine of laches because it intentionally delayed filing infringement claims (Dropbox Inc. v. Thru Inc., No. 17-15078, 9th Cir.).

Spyware Suit Plaintiffs Oppose Magistrate's Report Against Class Certification
ERIE, Pa. - In an Aug. 18 brief, a Wyoming couple argue that their Electronic Communications Privacy Act (ECPA) claims against a retailer that installed spyware on their computer merit class treatment, objecting to a Pennsylvania federal magistrate judge's recommendation that class certification be denied "on grounds that individualized issues predominate over common issues to the putative class" (Crystal Byrd, et al. v. Aaron's Inc., et al., No. 1:11-cv-00101, W.D. Pa.).

New York Federal Judge Grants Request For Dismissal Of Software Copyright Case
NEW YORK - Allegations that a law firm specializing in real estate and four of its partners infringed copyrighted software were dismissed, with leave to amend, by a New York federal judge on Aug. 30 on grounds that the complaint lacks requisite specificity (Automated Management Systems Inc. v. Rappaport Hertz Cherson Rosenthal, et al., No. 16-4762, S.D. N.Y., 2017 U.S. Dist. LEXIS 139728).

Oracle To Federal Circuit: Google's Java Code Copying For Android Wasn't Fair Use
WASHINGTON, D.C. - In an Aug. 4 reply brief, Oracle America Inc. calls a fair-use ruling in favor of Google Inc. "an aberration," telling the Federal Circuit U.S. Court of Appeals that Google copied a substantial amount of its Java code in creating the Android operating system (OP), which competes directly with its Java-based products (Oracle America Inc. v. Google Inc., No. 17-1118 and 17-1202, Fed. Cir.).

Domain Registrar Tells 4th Circuit False Advertising Suit Was Not Exceptional
RICHMOND, Va. - An internet domain registry firm, whose Lanham Act false advertising claims against a competitor failed, argues in an Aug. 30 brief in the Fourth Circuit U.S. Court of Appeals that a trial court properly declined to award attorney fees to the prevailing defendant because the claims were reasonable and supported by evidence (Verisign Inc. v. LLC, et al., No. 17-1704, 4th Cir.).

Federal Circuit Affirms: Remote Ordering System Patent Not Infringed
WASHINGTON, D.C. - Allegations that Expedia Inc. and other travel websites infringed a patented system for creating and updating order lists were properly rejected on summary judgment, the Federal Circuit U.S. Court of Appeals ruled Aug. 17 (Cronos Technologies LLC v. Expedia Inc., et al., No. 16-2528, Fed. Cir., 2017 U.S. App. LEXIS 15490).

Federal Circuit Affirms: Oracle Did Not Infringe Middleware Patent
WASHINGTON, D.C. - A California federal judge did not err in deeming Oracle Corp. a non-infringer of a patented system and method of accessing data in a relational database, the Federal Circuit U.S. Court of Appeals ruled Aug. 21 (Thought Inc. v. Oracle Corporation, No. 16-2369, Fed. Cir., 2017 U.S. App. LEXIS 15812).

T-Mobile Gets Divided Ruling In Bid To Exclude Patentee's Expert Opinions
MARSHALL, Texas - An expert can opine that accused patent infringer T-Mobile "made" a product, rather than just "used" it, but cannot testify that the company never enabled a restoration feature because it was advised against doing so by counsel, a Texas federal magistrate judge ruled Sept. 4 (Huawei Technologies Co. Ltd. v. T-Mobile US, Inc., et al., No. 2:16-cv-00052, E.D. Texas, 2017 U.S. Dist. LEXIS 142606).

California Federal Judge: 4 Asserted Patents Claim Ineligible Subject Matter
SAN FRANCISCO - A California federal judge on Sept. 1 granted Yahoo! Inc. dismissal of allegations that the search engine infringed four patents, after determining that each of the patents runs afoul of Section 101 of the Patent Act, 35 U.S.C. 101 (TS Patents LLC v. Yahoo! Inc., No. 17-1721, N.D. Calif., 2017 U.S. Dist. LEXIS 142573).

Volatile Memory System Patent Singled Out For Inter Partes Review
ALEXANDRIA, Va. - A patent claiming a volatile memory system with data-retention capabilities during low-power situations would have been obvious to a person of skill in the art, as well as anticipated by prior art, Samsung Electronics America Inc. alleges in an Aug. 28 petition for inter partes view by the Patent Trial and Appeal Board (Samsung Electronics America Inc. v. James B. Goodman, No. IPR2017-02021, PTAB).

Facebook Challenges Denial Of Inter Partes Review By Patent Board
ALEXANDRIA, Va. - A decision by the Patent Trial and Appeal Board to deny inter partes review of a digital streaming patent was "a manifest error," Facebook Inc. alleges in a Sept. 1 request for rehearing (Facebook Inc. v. Skyy LLC, No. IPR2017-00691, PTAB).

Don't Forget The Documents: Minimizing ADA Accessibility Liability In Online PDFs
By Leslie Janek In Website Accessibility, Documents Count, Too According to U.S. Census Bureau, more than 56 million Americans live with a disability.1 Meanwhile, an increasing number of fundamental services are moving to websites and applications, sometimes at the expense of brick and mortar options. And, while the Americans with Disabilities Act was written before the internet became a household word, the court system and the Department of Justice have repeatedly affirmed, through enforcement if not by regulation, that Title III requirements for non-discriminatory access apply to online environments as well as physical ones.2 It's more important than ever to create online content that is accessible to people with disabilities, not only for inclusion, but to mitigate your risks of legal action.