Tech Law Prof Blog

Google Hit With Trade Secret Lawsuit Over email Tool

Another lawsuit is filed against Google, this time for misappropriating trade secrets.  LimitNone worked with Google to create and market a tool that helped Outlook users migrate email, calendar, and contact information to Gmail.  Google worked with LimitNone as part of the Google Enterprise Professional Program and helped market the tool.  Google allegedly told LimitNone that is wasn't developing a competing tool.  Well, it seems that Google did develop a competing tool, and it is said to look a lot like LimitNone's product.  Other claims raised in the suit are that Google violated Illinois Consumer Fraud laws.

More here. [MG]

Novell Gets $2.5 Million From SCO

SCO owes Novell $2.5 million in licensing fees for Unix, which is less than the $20 million or so that Novell sought.  Federal Judge Dale Kimball ruled that SCO was entitled to make some licensing deals, but one to Sun was not authorized, hence the award.

More in the Deseret News.  Judge Kimball's opinion is here. [MG]

Another Mac Cloner With a Twist

Another company will potentially fall on Apple's bad list by creating a Mac clone.  The last company, Psystar, got hit with a lawsuit that demanded that all machines sold by the company be recalled.  The latest attempt to clone the Mac comes with a twist:  the company, OpenTech, will sell consumers the hardware without an operating system.  The consumer purchases that from Apple.  The Apple EULA forbids a consumer from installing a copy OS X on anything from Apple branded hardware, but who knows.  OpenTech is prepared to defend itself, probably by saying Apple should attack customers for violating the end-user agreement.  That sets up one of those vicarious liability arguments.  Apple will likely push this one as soon as offending machines hit the market.

More on this from ComputerWorld. [MG]

New York governor signs law designed to restrict video games

Building on the 2007 initiative of former New York Governor Eliot Spitzer, current Governor David Paterson signed into law New York Senate bill s.6401-A.  The bill's stated purpose is to "take steps to crack down on video game violence and combat and reduce children's exposure to violent and inappropriate materials within these games.  Excerpt quoted from the bill's sponsor Andrew Lanza's (R-Staten Island) website here.

The law establishes an advisory council to study the effects of violent video games on children, requires a prominent rating system and parental controls.

Some New York citizens are not happy with the bill..."New Yorkers do not need the state judging which video games are appropriate and which aren't," said New York Civil Liberties Union Executive Director Donna Lieberman. "Parents, not government committees, should be responsible for making those judgments." Quoted from last paragraph here. 

The bill text of New York Senate Bill S.6401-A can be found here. [MD]

At the COPA, No Constitutional Hope-A

The Third Circuit Court of Appeals has upheld the District Court's determination that the Child Online Protection Act, COPA, is impermissibly overbroad in attempting to limit a child's access to commercial pornography.  This is the third time the Appellate Court has reached this conclusion.  Following the mandate from the U.S. Supreme Court, the District Court examined later developments in technology and concluded that filters are a lesser restrictive alternative to COPA.  Moreover, COPA does not apply to foreign web sites, where filters can block that as well as domestic content.  Filters are effective given that a parent can take a flexible approach to what their child can and cannot view, while the law is static (and, did we mention, overly broad?). 

From the Court's opinion:

Unlike COPA, filters permit adults to determine if and when they want to use them and do not subject speakers to criminal or civil penalties.

Indeed.  Other conclusions from the prior litigation, such as COPA is overbroad and vague in some of its definitions and applications have not changed based on the new fact finding.

The full 57 page opinion is here.  Legal documents in the case courtesy of EPIC are here. [MG]

Viacom and Google Settle Discovery Request

In an update to Viacom's YouTube discovery request, and subsequent whirlwind of publicity regarding the private information of YouTube viewer's usernames and IP addressses, Viacom and other parties to the copyright infringement lawsuit, have formally agreed to allow Google to strip YouTube viewer's identifying information before complying with a judge's order for the records.

In a YouTube blog post, the Google subsidiary noted that they had formally reached an agreement with Viacom and they even posted a link to "the legalese!"

You may all breathe easier now.  Your potentially embarrassing YouTube viewing habits are private...for the moment. [MD]

TiVo and Amazon Team Up to Pump Impulse Shopping

TiVo in partnership with Amazon has announced a "feature" where customers can use their remote controls to purchase items featured on selected television shows.  Unlike past interactive television efforts, a viewer can buy something on the fly without missing any of the show that is being recorded.  This is TiVo's way of making nice with advertisers who are annoyed that TiVo users can fast forward through commercials.  This announcement comes with great fanfare as if it were the next great innovation in television viewing.  Maybe, but it's not as if it hasn't happened before.

Wink Communications, among others, tried that with DirecTV and other media providers to create interactive shopping opportunities for viewers.  A little signal would appear over the picture and with a click of a button you could buy that coat Brad Pitt was wearing in the movie you were viewing.  That lasted a little over two years before the partnership ended.  The feature is common in Europe, but never made it big here.  There were a few concerns, such as having a credit card on file somewhere, having purchases and viewing habits tracked and matched with demographics already on file somewhere else.  How different things are today.

Unlike then, this may work now that people are used to shopping on the web, and may already have accounts with Amazon.  The technology has certainly changed as well.  Analog television has its limitations in interactivity.  Digital television offers multiple streams that can serve as marketing conduits in ways that advertisers could only dream of 5 years ago.  Implementation is everything.  The question is whether the consumer can opt in or out of something like this beyond mere self control (don't push that buy button).  An economic slowdown or recession may have more impact on the viability of this service.  We'll know that promoters are on to something when Congress decides to hold hearings on the practice. [MG]

Third Circuit Sends Janet Jackson Nipple Case Back to the FCC

The Third Circuit Court of Appeals has struck down the FCC's $550,000 fine against CBS for displaying Janet Jackson's nipple for nine-sixteenths of a second during the Superbowl broadcast of February 1, 2004.  The commercials didn't cost that much.

From the opinion:

At the time the Halftime Show was broadcasted by CBS, the FCC’s policy on fleeting material was still in effect. The FCC contends its restrained policy applied only to fleeting utterances – specifically, fleeting expletives – and did not extend to fleeting images. But a review of the Commission’s enforcement history reveals that its policy on fleeting material was never so limited. The FCC’s present distinction between words and images for purposes of determining indecency represents a departure from its prior policy.

Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.

The Court follows this with a pointed history of Commission enforcement actions that did not impose forfeiture on a respondent in similar circumstances.  The full 102 page opinion is here. [MG]

Yahoo! and Icahn Settle Proxy Fight, Questions Linger

Carl Icahn has settled his proxy fight with the Yahoo! board.  The settlement calls for the board to expand from nine to eleven members, and Icahn to get three seats.  Eight of the existing nine members will run for re-election with Icahn voting his shares for their retention.  The proxy fight may have turned in Yahoo!'s favor when institutional investor Legg Mason decided to vote for the current board.  The fear was that absent an iffy sale to Microsoft, there was no plan B for running the company.  Even if the search part of Yahoo! was sold off, what would happen to the rest of the company? 

Ending the proxy fight solves one problem, but it doesn't answer others.  Microsoft has said that it couldn't cut a deal with the current board in place.  Does a three seat Icahn led faction change anything?  Has Steve Ballmer locked himself into a position on this?  And, absent a sale, how will Yahoo! actually come up with a plan to enhance shareholder value?  Icahn and Jerry Yang are not exactly best buddies, so managing the company with the new board structure should be endlessly entertaining for the rest of us.  Then there is Google.  Yahoo! stands to make money from their collaboration in ad sales on Yahoo! properties, though Google missed its analyst targets for financials in the last reporting period.  Will that affect any scrutiny by the DOJ and Congress?  Stay tuned for developments. [MG]