8/4. The U.S. Court of Appeals (9thCir) issued its opinion [11 pages in PDF] in Perfect 10 v. Google, a copyright infringement case in which the Court of Appeals affirmed the District Court's denial of the copyright holder's motion for preliminary injunction.

Perfect 10 has been in litigation against Google for years. This case has been up to the 9th Circuit before. See, December 3, 2007, amended opinion. Also, the District Court made numerous holding which are the subject of this interlocutory appeal. However, the Court of Appeals opinion contains one very important component. The Court of Appeals held that a request for injunctive relief, whether preliminary or permanent, in a copyright infringement case must be evaluated on a case by case basis in accord with traditional equitable principles, and without any presumption of irreparable harm.

The Court of Appeals relied heavily on the Supreme Court's 2006 holding in eBay v. MercExchange.

Proceeding Below. Perfect 10 operates a pay for access web site that displays pictures a young women wearing little or no clothing that appeal to the prurient interest of men. It holds copyrights in these photographs. Nevertheless, people copy these pictures and publish them online, without authorization, in free access web sites, which are then indexed and cached by Google's search engine, which involves copying by Google.

Google removes infringing works pursuant to the DMCA's notice and take down procedure. However, it also forwards the takedown notices to the EFF's website, chillingeffects.org. This provides the URL of web pages with infringing photos.

Perfect 10 filed a complaint in the U.S. District Court (CDCal) against Google alleging copyright infringement. Perfect 10 also sought a preliminary injunction. The District Court denied the motion for a preliminary injunction. Perfect 10 brought the present interlocutory appeal.

Legal Background. 17 U.S.C. § 502(a) provides that "Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright."

Section 502(b) addresses service and enforceability of an injunction granted pursuant to Section 502(a). However, Section 502 does not address when the court should grant preliminary or permanent injunctive relief.

The U.S. Court of Appeals (3rdCir) held in its landmark 1983 opinion in Apple Computer v. Franklin Computer, reported at 714 F.2d 1240, that "the prevailing view" is "that a showing of a prima facie case of copyright infringement or reasonable likelihood of success on the merits raises a presumption of irreparable harm". The 3rd Circuit added that "A copyright plaintiff who makes out a prima facie case of infringement is entitled to a preliminary injunction without a detailed showing of irreparable harm".

It also wrote that "the public interest underlying the copyright law requires a presumption of irreparable harm, as long as there is, as here, adequate evidence of the expenditure of significant time, effort and money directed to the production of the copyrighted material. Otherwise, the rationale for protecting copyright, that of encouraging creativity, would be undermined."

Other circuits, including the 9th Circuit, have reached a similar conclusion. The Supreme Court has not ruled on this issue.

However, the Supreme ruled on the availability of injunctive relief in patent cases in 2006 in eBay v. MercExchange, 547 U.S. 388. See, opinion and 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 Supreme Court held that the traditional four factor framework that guides a court's decision whether to grant a permanent injunction applies in patent cases. An injunction should not follow from proof of infringement. The Court wrote "a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction."

The Supreme Court also wrote in dicta in eBay that "Like the Patent Act, the Copyright Act provides that courts ``may´´ grant injunctive relief ``on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.´´ 17 U. S. C. §502(a). And as in our decision today, this Court has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed."

In 2010, the U.S. Court of Appeals (2ndCir) issued its opinion in Salinger v. Colting, which is also reported at 607 F.3d 68. The Court wrote that eBay "dealt only with the presumption of irreparable harm in the patent law context, and thus is not controlling in the absence of Second Circuit precedent applying it in the copyright context".

It noted that the 2nd Circuit "has nearly always issued injunctions in copyright cases as a matter of course upon a finding of likelihood of success on the merits". But, "We hold today that eBay applies with equal force (a) to preliminary injunctions (b) that are issued for alleged copyright infringement. First, nothing in the text or the logic of eBay suggests that its rule is limited to patent cases. On the contrary, eBay strongly indicates that the traditional principles of equity it employed are the presumptive standard for injunctions in any context." (Footnote omitted.)

Court of Appeals Opinion. The Court of Appeals affirmed the judgment of the District Court.

It wrote that for three decades the 9th Circuit has repeated and relied on the rule stated in Apple Computer. "These cases, however, all predate" eBay v. MercExchange.

The Court of Appeals wrote that "the language of § 502(a) is permissive and evokes traditional equitable principles".

Moreover, quoting from eBay, it added that "Nothing in the statute indicates congressional intent to authorize a “major departure” from “the traditional four-factor framework that governs the award of injunctive relief,” ..."

"We therefore conclude that the propriety of injunctive relief in cases arising under the Copyright Act must be evaluated on a case-by-case basis in accord with traditional equitable principles and without the aid of presumptions or a “thumb on the scale” in favor of issuing such relief."

The Court concluded that "Perfect 10 has not shown a sufficient causal connection between irreparable harm to Perfect 10's business and Google’s operation of its search engine. Because Perfect 10 has failed to satisfy this necessary requirement for obtaining preliminary injunctive relief, the district court’s ruling was not an abuse of discretion."

Hence, two circuits, the 2nd and 9th, have held that the traditional equitable principals apply in granting injunctive relief in copyright cases, and that there is no presumption of irreparable harm.

These opinions (eBay, Salinger and Perfect 10) are all a matter of statutory interpretation. The statute is silent on application of the four factor test for granting injunctive relief. The Congress could amendment Section 502 of the Copyright Act, or the Patent Act, to provide that injunctive relief is available as a remedy for copyright infringement without satisfying the four factor test. This would have the effect of undoing these holding.

Although, it is very hard to enact a bill, particularly when there is organized opposition. Google and other companies would lobby intensively against passage of such a bill.

This case is Perfect 10, Inc. v. Google, Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 10-56316, an appeal from the U.S. District Court for the Central District of California, D.C. No. 2:04-cv-09484-AHM-SH, Judge Howard Matz presiding. Judge Sandra Ikuta wrote the opinion of the Court of Appeals, in which Judges Alex Kozinski and Michael Hawkins joined

8/2. Sen. Harry Reid (D-NV), the Senate Majority Leader, announced in a release that on August 2, 2011, he filed cloture on the motion to proceed to HR 1249 [LOC | WW], the "American Invents Act", the House version of the patent reform bill.

This release states that "By unanimous consent, this cloture vote will occur on Tuesday, September 6th following the roll call vote on confirmation of Executive Calendar #109, Bernice Bouie Donald to be US Circuit Judge for the 6th Circuit, which will be at approximately 5:30pm."

The Senate passed its version of this bill, S 23 [LOC | WW], also titled the "America Invents Act", on March 8, 2011. The House passed its bill on June 23, 2011.

Sen. Patrick Leahy (D-VT), the sponsor of S 23, stated in a release that "Congress is closer than ever to enacting meaningful reforms to give American inventors and innovators the 21st century patent system they need to compete in an evolving global marketplace. The product of six years of debate, the America Invents Act will help the Patent and Trademark Office address a crippling backlog of patent applications by providing the tools and resources it needs to issue high quality patents more quickly and efficiently."

He added that "When the Senate passed the America Invents Act in March, I said the bill was not what every Senator may want, or what every stakeholder sought in the debate. But the bill the House has passed is an important and comprehensive step forward to help unleash American innovation, create jobs, and bolster our economy. The time has come to send the America Invents Act to the President’s desk to be signed into law. I hope all Senators will join me, again, in passing this important bill after the August recess."

8/3. The Center for Democracy and Technology (CDT) and other groups and individuals sent a letter to Sen. Patrick Leahy (D-VT) and Sen. Charles Grassley (R-IA), the Chairman and ranking Republican of the Senate Judiciary Committee (SJC) urging revision of the Computer Fraud and Abuse Act, which is codified at 18 U.S.C. § 1030.

They write that it is "both overbroad and vague" and "increasingly outdated". Most importantly, "The CFAA imposes civil and criminal liability for accessing a protected computer ``without´´ or ``in excess of´´ authorization, but fails to define ``authorization.´´"

"As a result of this lack of clarity, several courts have used companies' network terms of use, which lay out contractual constraints on users' use of those networks, to also define what constitutes criminal behavior on those networks. The consequence is that private corporations can in effect establish what conduct violates federal criminal law when they draft such policies."

They add that "At least one federal prosecutor has brought criminal charges against a user of a social network who signed up under a pseudonym in violation of terms of service."

See, stories titled "Lori Drew Pleads Not Guilty in Section 1030 Case" in TLJ Daily E-Mail Alert No. 1,794, June 23, 2008, "Law Professors Argue for Dismissal of MySpace Section 1030 Prosecution" in TLJ Daily E-Mail Alert No. 1,810, August 11, 2008, and "Jury Returns Guilty Verdict in Lori Drew Case" in TLJ Daily E-Mail Alert No. 1,865, December 2, 2008.

"The CFAA should focus on malicious hacking and identity theft and not on criminalizing any behavior that happens to take place online in violation of terms of service or an acceptable use policy", they conclude.

The signers of the letter include representatives of the CDT, American Civil Liberties Union (ACLU), Tech Freedom, Competitive Enterprise Institute (CEI), and others.

The SJC is scheduled to hold a hearing titled "Cybercrime: Updating the Computer Fraud and Abuse Act to Protect Cyberspace and Combat Emerging Threats" on September 7, 2011. This hearing had been scheduled for August 3. The witnesses will be James Baker (DOJ's Associate Deputy Attorney General) and Pablo Martinez (U.S. Secret Service). See, notice.

See also, story titled "7th Circuit Applies Computer Hacking Statute to Use of Trace Removers on Employee Laptops" in TLJ Daily E-Mail Alert No. 1,326, March 9, 2006, and story titled "9th Circuit Construes Meaning of Without Authorization in Section 1030" in TLJ Daily E-Mail Alert No. 1,983, March 15, 2009.

8/4. President Obama announced his intent to appoint Steve VanRoekel to be Federal Chief Information Officer and Administrator, Office of Electronic Government, in the Office of Management and Budget (OMB). He will replace Vivek Kundra. See, White House news office release. He has worked briefly as Executive Director of Citizen and Organizational Engagement at the U.S. Agency for International Development (USAID). Before that, he worked for the Federal Communications Commission (FCC). He worked for Microsoft from 1994 through 2009.

8/4. The Business Software Alliance (BSA) announced that it has named Thomas Boué Director, Government Affairs, for Europe, Middle East and Africa region. See, BSA release.

8/2. The Senate confirmed Sara Darrow to be a Judge of the U.S. District Court for the Central District of Illinois.

8/2. The Senate confirmed Richard Jackson to be a Judge of the U.S. District Court for the District of Colorado.

8/2. The Senate confirmed Kathleen Williams to be a Judge of the U.S. District Court for the Southern District of Florida.

8/2. The Senate confirmed Nelva Ramos to be a Judge of the U.S. District Court for the Southern District of Texas.

8/1. A group of former Paul Hastings attorneys announced the formation of the Telecommunications Law Professionals in Washington DC: Carl Northrup, Michael Lazarus, Andrew Morentz, John Griffith Johnson, Vance Schuemann, and Jessica DeSimone.

The House will not meet. It is in recess until 2:00 PM on September 7.

The Senate will not meet. It is in recess until 2:00 PM on September 6. However, it will hold pro forma sessions twice per week until then.

CANCELLED. 10:00 AM - 12:00 NOON. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Building.

POSTPONED TO SEPTEMBER 8. 10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of Steve Six (to be a Judge of the U.S. Court of Appeals for the 10th Circuit) and Morgan Christen (U.S. Court of Appeals for the 9th Circuit), and four District Court nominees: Yvonne Rogers (USDC/NDCal), Richard Andrews (USDC/DDel), Scott Skavdahl (USDC/DWyo), and Sharon Gleason (USDC/DAk). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

CANCELLED. 2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing. See, notice. Location: Room 219, Hart Building.

EXTENDED FROM JULY 5. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [46 pages in PDF] regarding how its rules and policies could be modified to provide greater economic, market entry, communication adoption opportunities, and incentives for Native Nations. This notice is FCC 11-30 in CG Docket No. 11-41. The FCC adopted it on March 3, 2011, and released the text on March 4, 2011. See, notice in the Federal Register, April 5, 2011, Vol. 76, No. 65, at Pages 18759-18761. See also, extension notice (DA 11-873).

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response its 3rd Further Notice of Proposed Rulemaking (NPRM) [110 pages in PDF] regarding extensive revisions to its Part 11 rules governing the Emergency Alert System (EAS). The FCC adopted this NPRM on May 25, 2011, and released the text on May 26, 2011. It is FCC 11-82 in EB Docket No. 04-296. See, notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35810-35831.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice regarding whether certain docketed FCC proceedings should be terminated as dormant. See, June 3, 2011, Public Notice (DA 11-992 in CG Docket No. 11-99), and notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35892-35893.

The Senate will meet in pro forma session at 10:00 AM.

POSTPONED. 10:00 AM. The Senate Finance Committee (SFC) will hold a hearing on the nominations of Michael Punke (to be Deputy U.S. Trade Representative), Paul Piquado (to be Assistant Secretary of Commerce), and David Johanson (to be a member of the U.S. International Trade Commission). See, notice. Location: Room 215, Dirksen Building.

EXTENDED FROM JULY 8. Deadline to submit comments to the Federal Trade Commission (FTC) in connection with June 21 event titled "Patent Standards Workshop". See, notice in the Federal Register, Vol. 76, No. 93, Friday, May 13, 2011, at Pages 28036-28038, and FTC release of May 9, 2011. See also, story titled "FTC to Hold Workshop on Standard Setting and Patents" in TLJ Daily E-Mail Alert No. 2,242, May 16, 2011. See, FTC's June 29, 2011, extension notice.

The House will be in recess until Wednesday, September 7.

EXTENDED TO AUGUST 15. Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register regarding the proposed self-regulatory guidelines submitted to the FTC by Aristotle International, Inc. under the safe harbor provision of the Children's Online Privacy Protection Act (COPPA) Rule. See, Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37290-37291. See, notice of extension.

The Senate will meet in pro forma session at 11:00 AM.

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". See, tentative agenda, and story titled "FCC Releases Tentative Agenda for August 9 Meeting" in TLJ Daily e-Mail Alert No. 2,264, July 20, 2011. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [17 pages in PDF] regarding Terrestrial Trunked Radio, or TETRA, technology. The FCC adopted this item on April 18, 2011, and released the text on April 26, 2011. It is FCC 11-63 in WT Docket No. 11-69 and ET Docket No. 09-234. See, notice in the Federal Register, Vol. 76, No. 91, Wednesday, May 11, 2011, at Pages 27296-27300.

Deadline set by Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) for Groupon to respond the interrogatories propounded in their July 26 letter regarding the July 11 article in the Washington Post titled "Groupon changes privacy policy to collect, share more information". See also, Rep. Markey's release.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 76, No. 146, Friday, July 29, 2011, at Page 45508. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] regarding whether to make the grandfathered providers permanently eligible for universal service subsidies under the FCC's rural health care program. The FCC adopted this NPRM on June 20, 2011, and released the text on June 21, 2011. It is FCC 11-101 in WC Docket No. 02-60. See, notice in the Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37307-37309.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-56 C [17 pages in PDF] titled "Recommendation for Key Derivation through Extraction-then-Expansion".

8/4. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, and sets comment deadlines for, its Second Further Notice of Proposed Rule Making (2ndFNPRM) and NPRM regarding extending the FCC's location surveillance mandate to outbound only interconnected VOIP services, and revising the definition of interconnected VOIP. The FCC adopted this item on July 12, 2011, and released the text on July 13. This NPRM is FCC 11-107 in PS Docket No. 07-114, GN Docket No. 11-117, and WC Docket No. 05-196. See, Federal Register, Vol. 76, No. 150, Thursday, August 4, 2011, at Pages 47114-47123. the deadline to submit initial comments is October 3, 2011. The deadline to submit reply comments is November 2, 2011.

8/4. The U.S. Court of Appeals (3rdCir) issued its opinion [31 pages in PDF] in Pernod Ricard v. Bacardi USA, a false advertising claim, involved bottled rum, brought under Section 43(a)(1)(B) of the Lanham Act, which is codified at 15 U.S.C. § 1125(a)(1)(B). The Court of Appeals affirmed the judgment of the District Court, which held that Barcardi's advertising is not deceptive. This case is Pernod Ricard, LLC v. Bacardi USA, Inc., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 10-2354, an appeal from the U.S. District Court for the District of Delaware, D.C. No. 06-cv-505.

8/3. The American Civil Liberties Union (ACLU) announced in a release that its 34 affiliates "are sending 379 requests to local law enforcement agencies large and small demanding to know when, why and how they are using cell phone location data to track Americans." (Emphasis added.) Theaw requests rely upon state freedom of information acts (FOIA). The ACLU's release states these these FOIA requests ask for records that relate to "whether law enforcement agents demonstrate probable cause and obtain a warrant to access cell phone location data", "statistics on how frequently law enforcement agencies obtain cell phone location data", "how much money law enforcement agencies spend tracking cell phones", and "other policies and procedures used for acquiring location data".

8/1. The Metropolitan Police in London, United Kingdom, announced in a release the arrest of Anonymous hacker Jake Davis. This release states that he is charged with unauthorised access to a computer system in violation of Section 3 of the U.K. Computer Misuse Act 1990, conspiracy to carry out a distributed denial of service (DDOS) attack on the website of the Serious and Organised Crime Agency in violation of Section 1 Criminal Law Act 1977, and other offenses.

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