Issues

The core of this Article describes some of the efforts, both within and outside the United States, to control the epidemic of intellectual property and information technology (IP and IT) theft. Those engaged in the battle include prosecutors and judges, individuals and trade associations, and politicians and policymakers from all points on the political spectrum. And yet, even with so many forces working to stem the tide, the losses are staggering. An innovator with the potential to change his or her future as well as the prosperity of the surrounding economy, whether in Kentucky or Kinshasa, will be dissuaded from innovating if that which they invent or produce is readily stolen. Individual and governmental enforcement efforts are making a difference, but success in dealing with this problem does not lie in any one or even several approaches. Instead, there is a need for coordinated and collective efforts, harnessing domestic and international resources. The enforcement and control mechanisms discussed in this Article show the power and limits of each approach. Taken in the aggregate, however, there is reason to think a global change is possible. In a word, the solution lies in partnership. Through constant and transparent dialogue and the sharing of ideas and resources, a partnership has the potential to reverse the rate and impact of IP and IT theft. It may be the only way to begin the process of achieving the most important goal: a cultural shift resulting in universal condemnation of entities and individuals engaged in piracy, counterfeiting, and other forms of IP and IT theft.

There has been an alarming rise in the number of litigious entities—commonly referred to as patent trolls or non-practicing entities—that make no products but file dubious patent infringement lawsuits merely to extract money from commercially productive companies. High litigation costs provide a fertile environment for an exploitive business model that uses shotgun tactics to threaten patent infringement claims against numerous companies, many of which will make a purely financial decision to pay patent trolls rather than expend even more money in litigation. Sometimes the payoff is a settlement strategically set below the likely cost of litigation defense. Other times, the payoff is a license fee too small to justify expending litigation costs to adjudicate, even if it is likely a frivolous claim. Patent infringement claims asserted by patent trolls are a type of nuisance lawsuit—a lawsuit in which the defendant pays to make the lawsuit go away simply to avoid expending the considerable costs associated with litigation, not because the lawsuit has any significant merit or chance of success. While nuisance lawsuits are not new, the direct, focused, and widespread negative effects of nuisance patent lawsuits on innovation and productive entities by those neither innovating nor producing anything make these lawsuits particularly damaging to society. In addition, the public’s negative perception of patent trolls filing baseless patent infringement claims endangers the legitimacy of the patent system as a whole. Most people agree something must be done, but there is little agreement on any specific solution, approach, or strategy. Yet one need only look to the Federal Rules of Civil Procedure for a suitable remedy to help curb this vexing problem. This Article proposes a specialized implementation of Rule 11 to combat some of the unique difficulties created by the patent-trolling business model. A Rule 11-based solution is not only preferable to new legislation, but also complementary because it is 1) immediately available without any legislative action, 2) flexible enough to handle evolving behavior that exploits patent litigation inefficiencies through bad-faith patent infringement claims, and 3) strong enough to deter variations of patent-trolling behavior—whether conducted by a traditional patent troll, NPE, PAE, or even a commercially active entity. Broadly stated, this approach identifies patent- trolling-predisposed claimants before the accretion of discovery costs and provides a swifter litigation exit ramp. The proposed inquiry treats all NPEs the same and analyzes objective indicia as proxies for ascertaining the intent behind the entity’s litigious conduct. In sum, an upfront application of Rule 11 provides a less expensive escape route to end the most readily detectable patent infringement nuisance lawsuits.

This article looks at the case law governing discovery of social media and finds several problems. First, many courts improperly require a threshold showing that relevant information exists in public portions of the user’s social media account before allowing such discovery. Second, courts allow overbroad discovery, often requiring a litigant to turn over his or her username and password to the other party. At the same time, parties seek such information directly from social media sites, attempting an end-run around the relevancy requirement and increasing motion practice. The article argues that, instead, social media discovery should be treated like other party-driven discovery where litigants are entitled to request relevant information that exists on social media accounts and are in turn responsible for providing that information just as they would other discovery in their possession, custody, or control. There is a promising new line of case law following that path. The article then looks more broadly at the emerging issue of privacy in e- discovery and sets forth the existing methods of restricting undue attempts to invade that privacy. Finally, the article argues that the scope of e-discovery dictates a new look at the way our discovery rules protect privacy and finds encouragement in the latest proposed amendments to Federal Rule of Civil Procedure 26(b)(1) to limit the scope of discovery based on proportionality and relevance to existing claims and defenses.

Top Tens of 2013: Patent, Trademark, Copyright, and Trade Secret Cases

In September of 2012, Apple announced that it had received two million pre-orders for the iPhone 5 within the first twenty-four hours it was available. And while this number is staggering, the previous year the iPhone 4S sold over one million devices during its first twenty-four hours of pre-order sales. While the iPhone is a single example, it represents a much larger truth—the use of embedded software and digital devices permeates our daily lives. Naturally, as technology becomes more ingrained, consumers will expect the ability to repair technology at a local repair shop. In addition, as the cost for technology drops and release dates accelerate, more individuals will frequently swap out older generation technology for the new model. While many individuals will trade in their older technology, a majority will hold on to it and later throw it away without a thought about the possible uses of the old device. And few will consider, even for a fleeting moment, the issues that will arise in relation to the new and old device because of the copyright laws. These issues include our ability to seek repair from local shops, to trade in devices, to recycle goods with embedded technology, and of course, to maintain the technology. All of these issues demand the right people to have the right information, often contained in a manual. Fortunately, the issue of manuals being free from copyright protection has been dealt with previously in the automobile industry. Unfortunately, the issue was overcome in the name of environmental law, thus avoiding the much larger debate in terms of the copyright protection afforded manuals that contain basic and important information. The time has come to renew the debate and consider the long-term consequences associated with protections afforded this critical information.

This Article aims to briefly consider the growth of embedded technology, the importance of manuals and other information, the growth of the throw-away culture, the environmental impacts of restrictions on the sharing of information, and the current legislative initiatives to address the overly strong protections afforded this important information. In light of this, this Article calls for more attention and discussion as it relates to the current copyright protections, and for a more balanced approach to these protections. This Article concludes by demonstrating the law must institute three changes to create a better balance: (1) limit the copyright protections afforded manufacturers in relation to manuals and similar publications to life of the device or new generation release, whichever is earliest, (2) remove restrictions related to unlocking and similar technology work-arounds, and (3) insist upon protections for the information contained within the trade-in device.

For years, legal wiretapping was straightforward: the officer doing the intercept connected a tape recorder or the like to a single pair of wires. By the 1990s, however, the changing structure of telecommunications—there was no longer just “Ma Bell” to talk to—and new technologies such as ISDN and cellular telephony made executing a wiretap more complicated for law enforcement. Simple technologies would no longer suffice. In response, Congress passed the Communications Assistance for Law Enforcement Act (CALEA) which mandated a standardized lawful intercept interface on all local phone switches. Since its passage, technology has continued to progress, and in the face of new forms of communication—Skype, voice chat during multiplayer online games, instant messaging, etc.—law enforcement is again experiencing problems. The FBI has called this “Going Dark”: their loss of access to suspects’ communication. According to news reports, law enforcement wants changes to the wiretap laws to require a CALEA-like interface in Internet software. CALEA, though, has its own issues: it is complex software specifically intended to create a security hole—eavesdropping capability—in the already-complex environment of a phone switch. It has unfortunately made wiretapping easier for everyone, not just law enforcement. Congress failed to heed experts’ warnings of the danger posed by this mandated vulnerability, and time has proven the experts right. The so-called “Athens Affair,” where someone used the built-in lawful intercept mechanism to listen to the cell phone calls of high Greek officials, including the Prime Minister, is but one example. In an earlier work, we showed why extending CALEA to the Internet would create very serious problems, including the security problems it has visited on the phone system. In this paper, we explore the viability and implications of an alternative method for addressing law enforcements need to access communications: legalized hacking of target devices through existing vulnerabilities in end-user software and platforms. The FBI already uses this approach on a small scale; we expect that its use will increase, especially as centralized wiretapping capabilities become less viable. Relying on vulnerabilities and hacking poses a large set of legal and policy questions, some practical and some normative. Among these are: (1) Will it create disincentives to patching? (2) Will there be a negative effect on innovation? (Lessons from the so-called “Crypto Wars” of the 1990s, and in particular the debate over export controls on cryptography, are instructive here.) (3) Will law enforcement’s participation in vulnerabilities purchasing skew the market? (4) Do local and even state law enforcement agencies have the technical sophistication to develop and use exploits? If not, how should this be handled? A larger FBI role? (5) Should law enforcement even be participating in a market where many of the sellers and other buyers are themselves criminals? (6) What happens if these tools are captured and repurposed by miscreants? (7) Should we sanction otherwise illegal network activity to aid law enforcement? (8) Is the probability of success from such an approach too low for it to be useful? As we will show, these issues are indeed challenging. We regard the issues raised by using vulnerabilities as, on balance, preferable to adding more complexity and insecurity to online systems.

In September of 2012, Apple announced that it had received two million pre-orders for the iPhone 5 within the first twenty-four hours it was available. And while this number is staggering, the previous year the iPhone 4S sold over one million devices during its first twenty-four hours of pre-order sales. While the iPhone is a single example, it represents a much larger truth—the use of embedded software and digital devices permeates our daily lives. Naturally, as technology becomes more ingrained, consumers will expect the ability to repair technology at a local repair shop. In addition, as the cost for technology drops and release dates accelerate, more individuals will frequently swap out older generation technology for the new model. While many individuals will trade in their older technology, a majority will hold on to it and later throw it away without a thought about the possible uses of the old device. And few will consider, even for a fleeting moment, the issues that will arise in relation to the new and old device because of the copyright laws. These issues include our ability to seek repair from local shops, to trade in devices, to recycle goods with embedded technology, and of course, to maintain the technology. All of these issues demand the right people to have the right information, often contained in a manual. Fortunately, the issue of manuals being free from copyright protection has been dealt with previously in the automobile industry. Unfortunately, the issue was overcome in the name of environmental law, thus avoiding the much larger debate in terms of the copyright protection afforded manuals that contain basic and important information. The time has come to renew the debate and consider the long-term consequences associated with protections afforded this critical information. This Article aims to briefly consider the growth of embedded technology, the importance of manuals and other information, the growth of the throw-away culture, the environmental impacts of restrictions on the sharing of information, and the current legislative initiatives to address the overly strong protections afforded this important information. In light of this, this Article calls for more attention and discussion as it relates to the current copyright protections, and for a more balanced approach to these protections. This Article concludes by demonstrating the law must institute three changes to create a better balance: (1) limit the copyright protections afforded manufacturers in relation to manuals and similar publications to life of the device or new generation release, whichever is earliest, (2) remove restrictions related to unlocking and similar technology work-arounds, and (3) insist upon protections for the information contained within the trade-in device.

With the widespread permeation of continually advancing technologies into our daily lives, it is inevitable that the product of those technologies, i.e. digital information, makes its way into the courtroom. This has largely occurred in the form of electronic discovery, or “e-discovery,” where each party involved in an action provides the relevant information they possess electronically. However, in cases where information is hidden, erased, or otherwise altered, digital forensic analysis is necessary to draw further conclusions about the available evidence. Digital forensic analysis is analogous to more traditional forensic analysis. For example, in criminal cases where a firearm was used in the commission of the crime, but the gun is not readily admissible, forensic science is necessary to trace the origin of the weapon, perform fingerprint analysis on it, and compare fired bullet casings to ensure the weapon used and the weapon analyzed are one and the same. In sum, digital forensics is the preservation and analysis of electronic data. These data include the primary substantive data (the gun) and the secondary data attached to the primary data, such as data trails and time/date stamps (the fingerprints). These data trails and other metadata markers are often the key to establishing a timeline and correlating important events.