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Wednesday, January 16, 2013, Alert No. 2,509.
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Guns, Video Games, Apps, and Video Programming

1/16. President Obama and Vice President Biden gave a joint speech at which they advocated greater regulation of guns and gun transactions. Afterwards, the President signed two memoranda. Most of the legislative proposals and regulatory actions contained in these speeches and memoranda do not relate to information and communications technology (ICT).

However, also at issue are actions that the federal government might take with respect to regulating video games, apps, movies, and the video programming of television broadcasters and other multichannel video programming distributors (MVPDs).

Obama's major proposals pertain to "universal background checks" and federal bans on certain categories of rifles and magazines.

Obama also stated that "As soon as I'm finished speaking here, I will sit at that desk and I will sign a directive giving law enforcement, schools, mental health professionals and the public health community some of the tools they need to help reduce gun violence." He added that there are "23 executive actions that I'm announcing today."

The President signed one memorandum titled "Tracing of Firearms in Connection with Criminal Investigations" and a second memorandum titled "Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System". However, neither deals with ICT related matters.

He did state in his speech that legislators "have threatened to defund scientific or medical research into the causes of gun violence". He also said that "I will direct the Centers for Disease Control to go ahead and study the best ways to reduce it -- and Congress should fund research into the effects that violent video games have on young minds."

The day before, on January 15, Jay Carney, the White House Press Secretary (and no relation to the publisher of Tech Law Journal), conducted a news conference at which he answered questions regarding gun regulation. He was asked about "first-person shooter video games", and whether "the President is going to have a message tomorrow for people in the entertainment industry about their role in the gun violence". Carney responded, "I would ask you to wait for the President's event tomorrow".

Carney also said this: "we don't know, in terms of what impact and influence apps and videogames and entertainment has."

Also on January 15, Rep. James Sensenbrenner (R-WI) sent a letter to President Obama regarding "a disturbing new online video game" titled "Bullet to the Head of the NRA" that "allows users to download a video game inviting them to take head shots" at National Rifle Association (NRA) President David Keene and EVP Wayne LaPierre. Rep. Sensenbrenner urged President Obama "to publicly denounce this video game".

Rep. Sensenbrenner did not advocate passage of legislation to regulate violent video games, apps or programming. Nor did he advocate studies.

Legislation to regulate the content of video games, or even to mandate labeling, would likely be overturned by the courts for violating the First Amendment, because of the Supreme Court's June 27, 2011 opinion in Brown v. EMA & ESA.

The Supreme Court held that video games are speech protected by the First Amendment. The government can only restrict video games content if the restriction satisfies the Supreme Court's stringent strict scrutiny test. It must be "justified by a compelling government interest and is narrowly drawn to serve that interest".

See also, story titled "Supreme Court Holds First Amendment Protects Video Games" in TLJ Daily E-Mail Alert No. 2,250, June 28, 2011.

In contrast, the 2008 opinion of the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, while detested by many gun control advocates, leaves the government with far wider latitude to regulate guns than Brown does for video games.

Also, on January 10, 2013, numerous communications and entertainment industry groups issued a joint statement regarding guns. They stated that "The entertainment community appreciates being included in the dialogue around the Administration's efforts to confront the complex challenge of gun violence in America. This industry has a longstanding commitment to provide parents the tools necessary to make the right viewing decisions for their families. We welcome the opportunity to share that history and look forward to doing our part to seek meaningful solutions."

The parties to this statement are the Directors Guild of America (DGA), Independent Film & Television Alliance (IFTA), Motion Picture Association of America (MPAA), National Association of Broadcasters (NAB), National Association of Theatre Owners (NATO), and National Cable & Telecommunications Association (NCTA).

The Congress is unlikely to pass any significant gun regulation bill because of the lack of votes. Many gun owners hold intense views about their gun rights. They are well enough organized by the NRA and other groups to know how their Representatives and Senators vote on gun bills. And, many are likely to vote, regardless of their party affiliation, solely on the basis of roll call votes on gun bills. This is a voting block that many legislators, from across the political spectrum, do not wish to cross.

Also, many legislators have already responded to President Obama. For example, recently elected Sen. Ted Cruz (R-TX), who was just named to the Senate Judiciary Committee (SJC), which has jurisdiction over many gun related matters, stated in a release that "It's sad to see the President of the United States trying to exploit the tragic murder of children as an excuse to push his own extreme anti-gun agenda. None of these proposals would have stopped the massacre at Newtown, but they would restrict the constitutional rights of every American."

Yet, many of these legislators are also under pressure from other constituents to do something about gun violence. Hence, because of the likely inability to pass a gun regulation bill, and despite the Brown decision, apps, video programming, and especially video games, that depict violence may make attractive targets for legislators intent on doing something in reaction to recent incidents of gun violence.

Mike Gallagher heads the Entertainment Software Association (ESA). He is also well know in ICT sectors for having been head of the National Telecommunications and Information Administration (NTIA) in the Bush administration. Effective as he may be as an advocate for the video games industry, he cannot also rely upon a large body of organized, motivated, single issue voters to back him with a grass roots lobbying campaign, as can the leaders of the NRA.

Hence, the video game industry may present itself as a softer target, at which politicians may ultimately take aim.

Fox v. Dish Update

1/16. TLJ last published an article on Fox v. Dish when the U.S. District Court (CDCal) announced its ruling on Fox's motion for a preliminary injunction on November 7, 2012. Subsequently, the District Court released a redacted copy of that opinion. Then, Fox filed an interlocutory appeal with the U.S. Court of Appeals (9thCir), which is pending.

See, story titled "District Court Denies Motion for PI in Dish Hopper Case" in TLJ Daily E-Mail Alert No. 2,470, November 6, 2012.

Also, this week, CNET and others disclosed that in the process of selecting CNET's "Best of CES Awards", it initially picked the Dish Network's digital video recorder know as the "Hopper" as the best. Its "Auto Hop" feature enables users to hop over commercials, much to the alarm of Fox, CBS and other broadcasters.

CNET's Lindsey Turrentine wrote a piece published in CNET on January 14 titled "The 2013 Best of CES Awards: CNET's story: The true story of what happened before last week's Best of CES Awards unveiling".

She wrote that "Last week, about 40 members of the CNET editorial staff met in the CNET trailer in the parking lot of the Las Vegas Convention Center to vote on our official Best of CES winner", and "we chose the Dish Hopper for our Best of CES award". But, she continued, before CNET publicly announced this, CBS, owner of CNET, instructed them not to give the Dish Hopper the award.

Technology journalists have authored a large number of news stories, blogs and tweets since condemning CBS for interfering with journalistic independence, and CNET for submitting to such interference.

Turrentine wrote that "The conflict of interest was real".

Another conflict of interest should also be noted. News publications compete for subscription and advertising revenue. The many news media that have been criticizing CBS and CNET also stand to benefit from tarnishing the reputations of those entities.

Fox, ABC, CBS, and NBC filed complaints in May of 2012 alleging direct copyright infringement by the Dish Network. See for example, Fox's complaint, filed on May 24, 2012. See also, CBS's complaint.

The Fox complaint alleges that broadcasters licensed Dish to retransmit primetime network programming, but that Dish "launched it own bootleg broadcast video-on-demand service called PrimeTime Anytime that is available to top-tier DISH subscribers who lease the Hopper set top box from DISH. Once enabled, PrimeTime Anywhere makes an unauthorized copy of the entire primetime broadcast schedule for all four" networks. And, Dish operates this service "so that the copies it makes are viewable commercial free".

The District Court's November 7, 2012 opinion, titled "Order Re Plaintiff's Motion for Preliminary Injunction", released on November 12, denied Fox request for a preliminary injunction.

However, the District Court also wrote that Dish directly infringed Fox's exclusive right of reproduction. Moreover, it rejected, after a lengthy analysis, Dish's fair use defense. That is, so far, Fox has won on the issue of liability, but has lost as to its choice of remedy. The District Court's denial of preliminary injunctive relief was based in part on the adequacy of monetary relief. Even without overturning the denial of injunctive relief, Fox stands to recover considerable financial damages.

For a more detailed summary of the District Court's November ruling, see related story in this issue titled "District Court's Legal Analysis in Fox v. Dish".

Fox filed an interlocutory appeal with the Court of Appeals, which is pending.

CNET's initial decision to name the Dish Hopper as the "Best of CES" implied a recommendation to consumers that they subscribe to a service, acquire the DVR, and invest time in learning how to use these. At any time the courts might reverse, issue an injunction, thereby rendering consumers' decisions to select the Dish service a waste of time and money.

Also, CNET's initial award demonstrated a disrespect for the Congress, the judiciary, and law. The US is a nation committed to the rule of law. The elected Congress has enacted copyright laws. While various litigation parties dispute whether the Dish Hopper violates this copyright law, Article III courts have exclusive jurisdiction over such cases and controversies. Moreover, one such court is presiding over several cases.

Many tech journalists have confidently opined that the Dish Hopper service is legal. Yet, under the US legal system, it is emphatically the province and duty of the judicial department to say what the law is. And, the one court that has spoken, has determined that the Dish infringes copyright.

Of course, the broadcasters and Dish might settle. Or, the courts might ultimately hold that the Dish Hopper does not violate copyright.

But, until then, the law of the case is that Dish has infringed Fox's copyrights. CNET was poised to give a grand award to a copyright infringing company.

District Court's Legal Analysis in Fox v. Dish

1/16. This article provides a more detailed summary of the U.S. District Court's (CDCal) November 7, 2012 opinion, titled "Order Re Plaintiff's Motion for Preliminary Injunction", in Fox v. Dish.

The District Court addressed several underlying claims, including direct infringement by reproduction, direct infringement by distribution, vicarious infringement by inducing or contributing to users' direct infringement, and breach of contract.

The District Court concluded that there was direct infringement by reproduction, and breach of one of the contracts at issue. It rejected Dish's fair use defense. It held that Fox is not entitled to injunctive relief on the contract claim, and that it was not entitled to injunctive relief on the infringement claim because it failed to show that it was likely to suffer irreparable harm; monetary damages would suffice.

The District Court wrote that "A plaintiff seeking injunctive relief must show that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in its favor; and (4) that an injunction is in the public interest".

As to the first element, likelihood of success on the merits, the District Court wrote that "To establish infringement by reproduction, the plaintiff must show (1) ownership of the copyright and (2) copying by the defendant." The Court then concluded that Fox had shown ownership of copyrights. The more complex question was who made copies, Dish or its customers.

The court discussed at length the U.S. Court of Appeals' (2ndCir) 2008 opinion [44 pages in PDF] in Cartoon Network v. CSC Holdings, 536 F.3d 121, also sometimes referred to as the Cablevision case, in which the Court of Appeals attributed the copying to users, not Cablevision. See also, story titled "2nd Circuit Reverses in Remote Storage DVR Copyright Case" in TLJ Daily E-Mail Alert No. 1,806, August 5, 2008.

The District Court in Fox v. Dish found, as to PrimeTime Anytime (PTAT), that while Dish exercised more control than did Cablevision, it did not amount to copying by Dish. However, Dish did conduct copying in connecti on with AutoHop.

The next question, regarding likelihood of success on the merits, was whether this AutoHop copying was protected fair use. 17 U.S.C. 107 provides the four prong statutory test for the fair use defense. It provides, in full, that,

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
   (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
   (2) the nature of the copyrighted work;
   (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   (4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

As to purpose and character of the use, the District Court found that Dish's commercial purpose weighed against a finding of fair use.

As to nature of the copyrighted work, the District Court found that the creative nature of the copied programs weighed against a finding of fair use.

As to the amount and substantiality of the use, the District Court found that copying of entire works weighed against a finding of fair use.

As to the effect of the use on the market, the District Court found that since other companies were paying Fox for licenses, while Dish was copying without license, Dish was adversely affecting the market, and therefore, this weighs against a finding of fair use.

Finally, the Court concluded that considering all four fair use factors together, on balance Dish's use does not constitute fair use. And hence, Fox has demonstrated a likelihood of success on the merits of its direct infringement by reproduction claim.

The District Court did not find a likelihood of success on the merits of Fox's direct infringement by distribution claim.

Also, the District Court did find a likelihood of success on the merits of its breach of contract claims (as to the RTC Agreement, but not as to a 2010 Letter Agreement or the VOD provisions.)

The District Court next proceeded to the irreparable harm element of the requirement for issuance of injunctive relief.

The District Court noted that the previous presumption of irreparable harm that flowed from a showing of likelihood of success on the merits of an infringement claim ended with the Supreme Court's 2006 opinion in eBay v. MercExchange, 547 U.S. 388.

The Supreme Court held that the traditional four factor framework that guides a court's decision whether to grant an injunction applies in patent cases. See, story titled "Supreme Court Rules on Availability of Injunctive Relief in Patent Cases" in TLJ Daily E-Mail Alert No. 1,371, May 16, 2006.

The District Court also wrote that money damages is the appropriate remedy for contractual violations. And, it found that there would not be irreparable harm from the copying.

The District Court made the point that while Fox may be harmed by the loss of ad revenues and loss of control of copyrighted works from ad-skipping use, the infringement is in the making of copies by Dish, not in the ad-skipping use to which the infringing copies are put.

The District Court rejected Fox's alternative arguments that Dish was vicariously liable for inducing or contributing to direct infringement by the customers who use Dish's Hopper. Unlike in MGM v. Grokster, Dish's users were not making infringing copies.

See, 2005 Supreme Court opinion [55 pages in PDF] in MGM v. Grokster, reversing the judgment of the U.S. Court of Appeals (9thCir) regarding vicarious copyright infringement by the distributors of peer to peer (P2P) systems. The Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." See also, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

This case is Fox Broadcasting Company, Inc.  v. DISH Network LLC, et al., U.S. District Court for the Central District of California, D.C. No. CV12-04529-DMG (SHx), Judge Dolly Gee presiding.

In This Issue
This issue contains the following items:
  Guns, Video Games, Apps, and Video Programming
  Fox v. Dish Update
  District Court's Legal Analysis in Fox v. Dish
  USTR Kirk Writes Congress Regarding Negotiation of Services Trade Agreement
  More Trade News
  More News
Washington Tech Calendar
New items are highlighted in red.
Thursday, January 17

The House will not meet. See, House calendar for 113th Congress, 1st Session.

The Senate will not meet.

Day three of a three day conference hosted by the National Institute of Standards and Technology (NIST) titled "NIST Cloud Computing and Big Data Forum and Workshop". Free. See, NIST notice and notice in the Federal Register Vol. 77, No. 243, December 18, 2012, at Pages 74829-74830. Location: NIST, Red Auditorium, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM - 1:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, Vol. 77, No. 224, November 20, 2012, at Pages 69597-69598. Location: DOC, Hoover Building, Room 4830, 1401 Constitution Ave., NW.

1:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will hold another in its series of meetings regarding mobile application transparency. See, notice. This event will also be teleconferenced. The dial in number is 888-957-9870 or 210-839-8914. The passcode is "privacy msh". Location: American Institute of Architects, 1735 New York Ave.,  NW.

1:00 PM. The US Telecom will host a webcast presentation titled "LTE Essentials". The speaker will be Annabel Dodd (Northeastern University). See, notice.

5:15 - 6:45 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Chased by the Dragon: Competition and Innovation in China and the United States". The speakers will be Robert Atkinson (ITIF), Nicholas Bloom (Stanford), Philip Levy (University of Virginia), Jimmy Goodrich (ITIC), and Alan Wolff (McKenna Long & Aldridge). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

6:00 - 7:30 PM. The Federal Communications Bar Association's (FCBA) International Committee will host a reception in honor of WCIT Ambassador Terry Kramer. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its request for comments regarding how to "block illegal robocalls on landlines and mobile phones". The FTC states that this is a "competition". See, notice in the Federal Register, Vol. 77, No. 205, October 23, 2012, at Pages 64802-64808.

Friday, January 18

The House will meet at 3:00 PM in pro forma session. See, House calendar for 113th Congress, 1st Session.

The Senate will not meet.

Supreme Court conference day. See, Supreme Court calendar.

12:00 NOON. There will be a closed event titled "Evolving Your Facebook Strategy". The speaker will be Mary Nahorniak (USA Today Social Media Editor). This event is open only to members of the National Press Club (NPC). Sold out. See, notice. For more information, contact Anthony Shop at anthony at socialdriver dot com. Location: NPC, McClendon Room, 13th Floor, 529 14th St., NW.

Sunday, January 20

Inauguration Day.

Monday, January 21

The House will meet. See, House calendar for 113th Congress, 1st Session.

The Senate will meet at 11:30 AM.

Martin Luther King's birthday. This is a federal holiday. See, OPM list of 2013 federal holidays.

Tuesday, January 22

The House will meet. See, House calendar for 113th Congress, 1st Session.

10:00 AM. The House Commerce Committee (HCC) will hold its organizational meeting for the 113th Congress. See, notice. Location: Room 2123, Rayburn Building.

3:30 - 5:15 PM. The American Enterprise Institute (AEI) will host an event titled "China in 2013 and Beyond". The speakers will be Frank Lavin (Export Now), Carolyn Bartholomew (US-China Economic and Security Review Commission), Dan Blumenthal (AEI), Phillip Swagel (AEI), and Danielle Pletka (AEI). Webcast. Free. Open to the public. See, notice. For more information, contact Lara Crouch at lara dot crouch at aei dot org or 202-862-7160. Location: AEI, 12th floor, 1150 17th St., NW.

5:00 PM. Deadline to submit reply comments to the Copyright Office (CO) in response to its notice in the Federal Register regarding its proposed fee schedule for filing cable and satellite statements of account. See, FR, Vol. 77, No. 235, December 6, 2012, at Pages 72788-72791.

Day one of a two day conference titled "State of the Net Conference". Prices vary. See, notice and registration page. Location: Hyatt Regency, 400 New Jersey Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [18 pages in PDF] regarding the amateur radio service. The FCC adopted this NPRM on October 1, 2012, and released the text on October 2. It is FCC 12-121 in WT Docket Nos. 12-283 and 09-209. See, notice in the Federal Register, Vol. 77, No. 206, October 24, 2012, at Pages 64947-64949.

EXTENDED TO FEBRUARY 13. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its licensing and operating rules for satellite services. The FCC adopted and released this NPRM on September 28, 2012. It is FCC 12-117 in IB Docket No. 12-267. See, original notice in the Federal Register, Vol. 77, No. 217, November 8, 2012, at Pages 67171-67201. See also, extension notice in the Federal Register, Vol. 77, No. 250, December 31, 2012, at Pages 77001-77002.

Wednesday, January 23

The House will meet. See, House calendar for 113th Congress, 1st Session.

Day two of a two day conference titled "State of the Net Conference". Prices vary. See, notice and registration page. Location: Hyatt Regency, 400 New Jersey Ave., NW.

Thursday, January 24

The House will not meet. See, House calendar for 113th Congress, 1st Session.

9:00 - 10:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Data Innovation in Government". The speakers will be Robert Bectel (Department of Energy), Teresa Carlson (Amazon Web Services), Richard Culatta (Department of Education), David Forrest (Department of Health and Human Services), Jason O'Connor (Lockheed Martin), and Daniel Castro (ITIF). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

12:00 NOON - 3:00 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Data Innovation in the U.S. Economy". The speakers will be William Chernicoff (Toyota Motor North America), Scott Neuman (Opower), and Daniel Castro (ITIF). See, notice. Location: Reserve Officers Association, 5th Floor, One Constitution Ave., NE.

6:30 - 8:00 PM. The Federal Communications Bar Association (FCBA) Legislative Committee will host an event titled "Communications and Technology Policy in the 113th Congress". The participants will include House and Senate staff. No webcast. Closed to reporters. No CLE credits. Location: Georgetown University law school, Gewirz Student Center, 12th Floor, 120 F St., NW.

USTR Kirk Writes Congress Regarding Negotiation of Services Trade Agreement

1/15. Ron Kirk, the U.S. Trade Representative, sent letters to Congressional leaders announcing that "the Administration intends to enter negotiations for a new trade agreement aimed at promoting international trade in services".

The letters add that "We will be conducting negotiations with an initial group of 20 trading partners -- Australia, Canada, Chile, Chinese Tapei, Columbia, Costa Rica, European Union on behalf of its member states, Hong Kong China, Iceland, Israel, Japan, Korea, Mexico, New Zealand, Norway, Pakistan, Panama, Peru, Switzerland, and Turkey."

"The agreement must seek to secure greater transparency and predictability from our trading partners regarding regulatory policies that present barriers to trade in services and hinder U.S. exports. To address this challenge, we will seek agreement on practices like providing the public with advance notice and an opportunity to comment on proposed regulations ..."

The letters also states that "the agreement must address new issues arising in the global marketplace and changes the way we trade", including increased internet usage. "The development of appropriate provisions to support services trade through electronic channels therefore must be an important component of any new agreement."

The OUSTR also noted in a release that "In 2011, the United States had a $178.5 billion surplus in services trade worldwide."

More Trade News

1/11. The U.S. China Economic and Security Review Commission (USCESRC) released a staff report [6 pages in PDF] titled "The U.S. Balance of Trade with China". This report states that "the cumulative trade deficit with China through November 2012 was nearly $291 billion, more than $18 billion higher than a year ago". It adds that "computer and electronic products accounted for nearly half of all imports". It also states that "The Chinese government has yet to release the official GDP growth statistic for the final quarter of 2012. Nonetheless, on January 11, a prominent official at the National Development and Reform Commission (NDRC) suggested a growth rate of 7.7 percent."

1/8. The Cato Institute published a paper [28 pages in PDF] titled "China, America, and the Pivot to Asia". The author is the Cato's Justin Logan.

More News

1/16. The U.S. Court of Appeals (FedCir) issued its opinion [25 pages in PDF] in Parallel Networks v. Abercrombie & Fitch, a patent infringement case. Parallel Networks is the owner of U.S. Patent No. 6,446,111 titled "Method and Apparatus for Client-Server Communication Using a Limited Capability Client Over a Low-Speed Communications Link". It filed four complaints in the U.S. District Court (EDTex) against 120 defendants, including Abercrombie & Fitch, that operate web sites that provide applets in response to user requests in a manner that Parallel Networks alleged infringe its patent in suit. The District Court construed claims, granted motions for summary judgment of non-infringement, and denied a FRCP Rule 59 motion for leave to amend its infringement contentions. This appeal followed. The Court of Appeals affirmed. This case is Parallel Networks LLC v. Abercrombie & Fitch, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2012-1227, an appeal from the U.S. District Court for the Eastern District of Texas, D.C. No. 12-CV-0018, Judge Leonard Davis presiding. Judge Bryson wrote the opinion of the Court of Appeals, in which Judges Prost and Wallace joined.

1/15. IBM joined the Business Software Alliance (BSA). See, BSA release.

1/15. The Public Knowledge (PK), which often complains about data caps and network management practices of broadband internet access service providers, complained on January 15 about AT&T. It wrote in a release that "AT&T is using the data caps that it imposes on its home broadband subscribers to disadvantage competitors to AT&T Wireless." The PK elaborated that "The AT&T 3G MicroCell acts as a miniature cell tower that can be used to supplement and improve cell phone service for voice calls or data applications. However,  AT&T is exempting data from AT&T Wireless MicroCells from the data caps it imposes on its wireless home broadband users. This is similar to Comcast's decision last year to exempt its own online video service from its data cap."

1/14. Facebook announced the launch of the beta version of a new functionality titled "Graph Search". Facebook stated in its release that this "is a new way for you to find people, photos, places and interests that are most relevant to you on Facebook". To what extent does this compete with Google search or Microsoft's Bing? Facebook wrote that "Graph Search and web search are very different. ... With Graph Search you ... get people, places, photos or other content that's been shared on Facebook. We believe they have very different uses." Facebook also made the assertion that "We've built Graph Search from the start with privacy in mind".

1/7. The U.S. Court of Appeals (7thCir) issued its opinion in US v. Keskes, affirming a criminal conviction and sentence for wire fraud and mail fraud. The defendant for years bought goods stolen from retail stores and resold them on the internet via eBay, Amazon and his own web site. This case is U.S. v. Ahmet Keskes, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 12-1127, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 1:09-cr-00797-1, Judge Samuel Der-Yeghiayan presiding. Judge Tinder wrote the opinion of the Court of Appeals, in which Judges Rovner and Williams joined.

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