Photo Credit greenasian of Flickr

By Daniel Shickich

In a victory for American college students and foreign entrepreneurs, the United States Supreme Court declared Tuesday that the “first sale” doctrine protects resellers of textbooks from copyright infringement, even when they move the goods across national boundaries. The suit arose when academic textbook maker John Wiley & Sons, Inc. sued Supap Kirtsaeng, a Thai student-entrepreneur, for infringing their copyright. As part of its international publishing business, John Wiley & Sons assigns rights to publish, print, and sell foreign editions of its English-language textbooks abroad to its wholly owned foreign subsidiary, Wiley Asia. Included in books published by Wiley Asia is a disclaimer stating that the books are not to be taken without permission into the United States. The books sold at a significantly cheaper price in Thailand than in the United States. Continue reading →

Photo Credit Paul Bailey

By Aaron Orheim

On Wednesday March 6 the Court of Appeals for the Federal Circuit issued an opinion in Radio Systems Corp. v. Lalor. This decision is a valuable reminder that the doctrine of equitable estoppel can be a powerful force in patent litigation. Continue reading →

By Colin Conerton

Last weekend, during NASCAR’s Nationwide Series DRIVE4COPD 300 at Daytona Speedway, a horrific accident occurred on the final lap as racecars collided sending tires and other debris flying over the protective barrier and into the stands at hundreds of miles per hour and seriously injuring more than 20 spectators. As one might imagine, much of this tragedy was captured on personal recording devices (e.g. cellphones) and immediately posted on YouTube for others to view. Almost immediately after being posted online, NASCAR contacted YouTube demanding the videos of the crash be removed on copyright grounds. To demonstrate to YouTube that a copyright violation had occurred, NASCAR likely pointed to the back of its tickets, which indicate NASCAR “owns the rights to all images, sounds and data.” NASCAR later issued a follow-up statement indicating that it requested the fan video be removed not because of a copyright violation (although YouTube claimed it did), but because, “[t]he fan video of the wreck on the final lap of today’s NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today’s accident. Information on the status of those fans was unclear and the decision was made to err on the side of caution with this very serious incident.” Continue reading →

By Lauren Guicheteau

There are no protections against warrantless and suspicionless searches of electronic devises at the United States’ borders because these searches are not civil rights violations according to the Office for Civil Rights and Civil Liberties (CRCL) for the Department of Homeland Security. The CRCL recently performed an Impact Assessment on the Department’s policy for border searches of electronic devices and released the executive summary of its findings. CRCL examined two Department of Homeland Security directives issued in 2009 that govern policies and procedures for searching, reviewing, retaining, and sharing information contained in electronic devices. This executive summary determined that U.S. Customs and Border Protection along with U.S. Immigration and Customs Enforcement have the constitutional and statutory authority to search travelers, baggage, and containers without a warrant or reasonable suspicion, and electronic devices such as phones or computers are no exception.

The CRCL concluded that these border policies do not violate the First Amendment or the Fourth Amendment. The policies comply with the Fourth Amendment, which protects against unreasonable searches and seizures, because “[t]he overall authority to conduct border searches without suspicion or warrant is clear and longstanding, and courts have not treated searches of electronic devices any differently than searches of other objects.” The CRCL also found that border searches of computers do not violate travelers’ First Amendment rights. They rejected the idea that a heightened level of suspicion should be required before searching computers in order to avoid chilling free speech.

While this assessment is controversial, federal case law supports the CRCL’s conclusions. In United States v. Ickes, the Fourth Circuit Court of Appeals held that there is no First Amendment exception to the border search doctrine for expressive materials. The court justified the border search doctrine because the sovereign has a right to protect itself. Contextualizing its decision in the modern world the court explained that “national security interests may require uncovering terrorist communications, which are inherently ‘expressive.’” Fourth Amendment concerns surrounding the search of electronic devises were address by the Ninth Circuit Court of Appeals, in United States v. Arnold, which explicitly held that reasonable suspicion is not required to conduct a warrantless search of a laptop at the border. The court held that searches of electronic devices are equivalent to searches of property, rejecting the defendant’s argument that searching files on a laptop computer intrudes upon a traveler’s privacy interests and dignity to the same degree as searching a traveler’s body. Therefore, searches of electronic materials at the border are only limited in that the search may not (1) cause exceptional damage to the property, and (2) be conducted in “a particularly offensive manner.” Analyzing these exceptions, the Ninth Circuit explained that searching through personal electronic information does not constitute an “offensive search.”

However, many people see electronic devises as unique in their vast storage capacity of personal information and the ability to track its user’s preferences and habits, which should distinguish them from other types of baggage. The CRCL’s current assessment only furthers the belief in a growing “Constitution Free Zone” around the U.S. border. The ACLU currently has two lawsuits pending before federal courts, which challenge the current border search policy by asserting that laptop searches are so invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion.  Additionally, the ACLU has filed a request under the Freedom of Information Act for the full Impact Assessment Report. The contentious nature of the CRCL executive summary highlights the important civil rights issues raised by technological advances and how these advances continue to shape how courts view and interpret the Constitution.