The General Data Protection Regulation is designed to support the individual’s interest in informational privacy, which the EU recognizes as a fundamental right.  Under that law, the collection, use and transfer of personal information is prohibited unless done with consent of the individual.  It has a de minimis legitimating role for social or business purposes but generally, if the individual revokes consent, processing of information must stop and often the information itself must be deleted. The US works from a different paradigm.  We certainly value privacy as necessary and valuable to ensure both personal dignity and a free and functioning society.  But we focus privacy laws on the prevention and remediation of harm, not on consent.  United States privacy law grew out of the common-law privacy torts: defamation, intrusion on seclusion, disclosure of private facts, false light and the right of publicity.  Thus, for example, the tort of disclo ...

The Internet of Things (IOT) is another ongoing transformational technology that is changing and will continue to change our lives.  Gartner calculates that there were roughly 8.4 billion IOT connected devices in 2017 and there will be about 20.4 billion in 2020.   This SIIA White Paper describes the benefits for consumers, energy, agriculture, manufacturing, and healthcare.    The United States, among other countries (including China) is taking advantage of the opportunities presented by IOT.  The important thing in this context is to maintain and, if possible, expand the American IOT adoption rate.  Why is this important?  First, it matters because the United States has a comparative advantage over China in this space.  Second, manufacturing, a sector prioritized by the Trump Administration, will be one of the biggest beneficiaries of IOT.  Third, consumers benefit economically from IOT, but the technology is also a matter of conve ...

In their landmark decision on May 22nd, the Supreme Court decided 8-0 in favor of TC Heartland over Kraft Foods Group, changing the dynamics of patent litigation across the country. In the case itself, Kraft sued TC Heartland, claiming that TC Heartland had infringed on Kraft’s patent for the low-calorie water sweetener, MiO.  The Court held that the defendant could only be sued in the state in which it was incorporated.  Earlier this week, the House Judiciary Committee’s Subcommittee on Courts and Intellectual Property held a hearing on the impact of the TC Heartland decision, and heard testimony that although the TC Heartland decision is helpful, it is not a panacea for litigation abuse.

Earlier this week, SIIA filed a brief in the U.S. Supreme Court on patent venue, urging it to reverse the Federal Circuit’s interpretation of the existing patent venue statute, 28 U.S.C. 1400(b).  Although the argument is a technical one, the resolution of this case has important implications for the technology industry.  The misinterpretation of that statute has concentrated patent litigation in a single district that has encouraged the growth of the patent assertion business model.

Yesterday, the Supreme Court unanimously reversed a decision of the Federal Circuit in the long-running iPhone litigation between Apple and Samsung and we, the Software & Information Industry Association (SIIA), welcomed it.  The Federal Circuit had held that when a design patent is infringed, the plaintiff is entitled to the total profits from the infringing product—even where the infringing product has many components.  The lower court had permitted Apple to recover all of the profits from the sale of infringing Samsung Galaxy phones, despite the fact that the allegedly infringed elements were minor ornamental components of the overall product. 

Yesterday, the Supreme Court heard arguments in the long-running Samsung v. Apple design patent litigation and took special note of the technology industry’s concerns.  The Court was reviewing a decision from the United States Court of Appeals for the Federal Circuit holding that someone found to infringe a design patent could be liable for all of the profits made from the infringing product, even if the reason that consumers bought the product was in substantial part because of its functionality.   (We wrote previously about that here. The reason for the lower court’s holding stemmed from the language of 35 U.S.C. 279, which says, in relevant part (emphasis added):

For the past several years, SIIA has been trying to persuade Congress to change patent law to make it more difficult for non-practicing entities (e.g., trolls) to shake down technology businesses.   What we don’t need is additional court decisions that make matters worse.   To that end, SIIA, along with several leading tech companies, filed an amicus brief in the Supreme Court urging it to reverse the Federal Circuit’s decision in Apple v. Samsung.  (For those of you that are curious, the Federal Circuit decision is here). Apple and Samsung have been battling in court for the past several years over design patents, which cover only non-functional aesthetic elements of a particular product.   A person who uses that design without an authorization is an infringer, in the same way that someone who used Apple’s “slide to unlock” feature without a license would owe them a royalty.   Where the two kinds of patents ...

Menendez Wants FCC to Clarify Set-Top Box Plan’s Copyright Protections (Morning Consult Tech) Senator Bob Menendez (D-NJ) asked FCC Chairman Tom Wheeler to address concerns that third-party companies will not be able to abide by contracts which govern content, advertising, and channel placing when they enter the cable marketplace.  The proposal to open set-top box markets for third-party manufacturers was passed in February and has since been the cause of many copyright and privacy concerns.

When online services have infringing movies, music, books, or other works placed there by their users, what should they be required to do?  In 1998, Congress passed a statute (the Digital Millennium Copyright Act) that created a notice-and-takedown system: online service providers (OSPs) would disable access to infringing works when they knew about them through a proper notice from a copyright holder, or when the service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent, and in return would face a limitation on remedies in the event that a copyright infringement suit was filed.  Of course, the internet looks very different now than it did in 1998.   The early offerings of CompuServe and AOL pale in comparison to modern cloud computing services.   Works can be placed back online within seconds of an OSP taking them down, and a single web site can receive thousands of notices for the same work in a ...