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Not So Fast And Furious – Executive Indicted for Stealing Self-Driving Car Trade Secrets

Back in March, 2017, we posted about a civil lawsuit against Anthony Levandowski, who allegedly sped off with a trove of trade secrets after resigning from Waymo LLC, Google’s self-driving technology company. Waymo not only sued Levandowski, but also his new employer, Uber, and another co-conspirator, Lior Ron. Since our initial post, things have gotten progressively worse for the Not So Fast and Furious trio: (1) Levandowski was fired in May, 2017; (2) Uber settled, giving up 5% of its stock, which totaled $245 million dollar; and (3) the case against Levandowski and Ron was sent to arbitration, where the arbitration panel reportedly issued a $128 million interim award to Waymo.

Just when things couldn’t seem to get any worse, they did.

On August 15, 2019, a federal grand jury indicted Levandowski on 33 counts relating to trade secret theft. Levandowski has pled not guilty, has been released on $2 million dollars bail, and is currently wearing an ankle monitor.

This legal saga is a reminder that trade secret theft is serious… it not only has civil consequences, but also criminal ones. Unfortunately, trade secret theft happens every day. And regardless of whether your company has trade secrets regarding self-driving car technology, worth hundreds of millions of dollars, or customer information worth less than a hundred thousand dollars, it’s important to make sure your company’s information is protected.

Equally important is knowing how to investigate potential trade secret theft. Some helpful tips as you launch your investigation:

1. Secure and preserve all relevant computing devices and email/file-sharing accounts.

2. Consider enlisting the help of outside computer forensic experts.

3. Analyze the employee’s computing activities on company computers and accounts.

4. Determine whether there is any abnormal file access, including during non-business hours.

5. Examine the employee’s use of external storage devices and whether those devices have been returned.

6. Review text message and call history from the employee’s company issued cell phone (and never instruct anyone to factory reset cell phones).

7. Enlist the help of outside counsel to set the parameters of the investigation.

Article by Joseph F. Lavigne of Jones Walker LLP.

For more on trade secret law, see the National Law Review Intellectual Property law page.

Will Technology Return Shame to Our Society?

The sex police are out there on the streets
Make sure the pass laws are not broken

Undercover (of the Night), The Rolling Stones

So, now we know that browsing porn in “incognito” mode doesn’t prevent those sites from leaking your dirty data courtesy of the friendly folks at Google and Facebook. 93 per cent of porn sites leak user data to a third party. Of these, Google tracks about 74 per cent of the analyzed porn sites, while Oracle tracks nearly 24 per cent sites and Facebook tracks nearly 10 per cent porn sites. Yet, despite such stats, 30 per cent of all internet traffic still relates to porn sites.

The hacker who perpetrated the enormous Capital One data beach outed herself by oversharing on GitHub. Had she been able to keep her trap shut, we’d probably still not know that she was in our wallets. Did she want to get caught, or was she simply unashamed of having stolen a Queen’s ransom worth of financial data?

Many have lamented that shame (along with irony, truth and proper grammar) is dead. I disagree. I think that shame has been on the outward leg of a boomerang trajectory fueled by technology and is accelerating on the return trip to whack us noobs in the back of our unsuspecting heads.

Technology has allowed us to do all sorts of stuff privately that we used to have to muster the gumption to do in public. Buying Penthouse the old-fashioned way meant you had to brave the drugstore cashier, who could turn out to be a cheerleader at your high school or your Mom’s PTA friend. Buying the Biggie Bag at Wendy’s meant enduring the disapproving stares of vegans buying salads and diet iced tea. Let’s not even talk about ED medication or baldness cures.

All your petty vices and vanity purchases can now be indulged in the sanctity of your bedroom. Or so you thought. There is no free lunch, naked or otherwise, we are coming to find. How will society respond?

Country music advises us to dance like no one is watching and to love like we’ll never get hurt. When we are alone, we can act closer to our baser instincts. This is why privacy is protective of creativity and subversive behaviors, and why in societies without privacy, people’s behavior regresses toward the most socially acceptable responses. As my partner Ted Claypoole wrote in Privacy in the Age of Big Data,

“We all behave differently when we know we are being watched and listened to, and the resulting change in behavior is simply a loss of freedom – the freedom to behave in a private and comfortable fashion; the freedom to allow the less socially -careful branches of our personalities to flower. Loss of privacy reduces the spectrum of choices we can make about the most important aspects of our lives.

By providing a broader range of choices, and by freeing our choices from immediate review and censure from society, privacy enables us to be creative and to make decisions about ourselves that are outside the mainstream. Privacy grants us the room to be as creative and thought-provoking as we want to be. British scholar and law dean Timothy Macklem succinctly argues that the “isolating shield of privacy enables people to develop and exchange ideas, or to foster and share activities, that the presence or even awareness of other people might stifle. For better and for worse, then, privacy is a sponsor and guardian to the creative and the subversive.”

For the past two decades we have let down our guard, exercising our most subversive and embarrassing expressions of id in what we thought was a private space. Now we see that such privacy was likely an illusion, and we feel as if we’ve been somehow gas lighted into showing our noteworthy bad behavior in the disapproving public square.

Exposure of the Ashley Madison affair-seeking population should have taught us this lesson, but it seems that each generation needs to learn in its own way.

The nerds will, inevitably, figure out how to continue to work and play largely unobserved. But what of the rest of us? Will the pincer attack of the advancing surveillance state and the denizens of the Dark Web bring shame back as a countervailing force to govern our behavior? Will the next decade be marked as the New Puritanism?

Dwight Lyman Moody, a predominant 19^th century evangelist, author, and publisher, famously said, “Character is what you are in the dark.” Through the night vision goggles of technology, more and more of your neighbors can see who you really are and there are very few of us who can bear that kind of scrutiny. Maybe Mick Jagger had it right all the way back in 1983, when he advised “Curl up baby/Keep it all out of sight.” Undercover of the night indeed.

Article by Philip P. Gura of Womble Bond Dickinson (US) LLP.

For more on online privacy, see the National Law Review Communications, Media & Internet law page.

Will the Supreme Court Weigh in on the Copyright Lawsuit of the Decade?

When two tech titans clash in court, the outcome can reverberate widely. In what has been dubbed the “copyright lawsuit of the decade,” Oracle sued Google in 2010 for infringing its copyrights in 37 Java Application Programming Interface (API) packages used in Google’s Android software platform for mobile devices (as explained further below, API packages consist of pre-written computer programs that perform specified functions).

At the first trial in 2012, a jury found that Google infringed Oracle’s copyrights. The judge, however, concluded that the Java API packages were not copyrightable as a matter of law. In 2014, the Federal Circuit reversed and remanded for a second jury trial on Google’s fair use defense. Oracle Am., Inc. v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014). The Supreme Court denied Google’s cert petition.

In 2016, a second jury found in favor of Google on its fair use defense, and the trial court denied Oracle’s motion for judgment as a matter of law. In 2018, the Federal Circuit overturned the jury’s verdict, concluding that Google’s use of the 37 Java API packages was not fair use as a matter of law. Oracle Am., Inc. v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018).

On January 24, 2019, Google petitioned the Supreme Court for a writ of certiorari. It identified the issues presented as:

(i) whether copyright protection extends to a software interface; and

(ii) whether Google’s use of a software interface in the context of creating a new computer program constitutes fair use.

The Federal Circuit’s rulings sent shockwaves through the software industry, and fifteen parties—ranging from corporations like Microsoft to software-related associations, and intellectual property scholars—filed amicus briefs in support of Google’s petition. Microsoft warned that the Federal Circuit’s approach “threatens disastrous consequences for innovation” in the software industry by depriving third parties of access to and reuse of functional code used to “facilitate interoperability across myriad software platforms and hardware devices.” An association representing over 70,000 software developers worldwide asserted that the Federal Circuit’s conclusions had spawned confusion concerning whether longstanding practices such as sharing libraries of common software functions constitute copyright infringement. Likewise, Professor Peter S. Menell and Professor David Nimmer (the editor of Nimmer on Copyright) maintained that the Federal Circuit had “upended nearly three decades of sound, well-settled, and critically important decisions of multiple regional circuits on the scope of copyright protection for computer software.”

On March 27, 2019, Oracle filed its opposition to the petition. The tech giant identified the issues as:

(i) Whether the Copyright Act protects Oracle’s computer source code that Google concedes was original and creative, and that Oracle could have written in any number of ways to perform the same function?

(ii) Whether the Federal Circuit correctly held that it is not fair use as a matter of law for Google to copy Oracle’s code into a competing commercial platform for the purpose of appealing to Oracle’s fanbase, where Google could have written its own software platform without copying, and Google’s copying substantially harmed the actual and potential markets for Oracle’s copyrighted works?

After Google filed its reply, the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States. This is where the case presently stands.

The Java Programming Language

Oracle’s predecessor, Sun Microsystems, Inc. (“Sun”) developed the Java programming language to allow programmers to write programs that run on different types of computing devices without having to rewrite the programs from scratch for each type of device. To that end, Java’s motto is “write once, run anywhere.”

To provide programmers with shortcuts for executing specific functions, Sun created the Java API, which consists of packages (akin to a bookshelf in a library), classes (akin to books on the shelves), and methods (akin to “how-to” chapters in each book). See Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974, 977 (N.D. Cal. 2012), rev’d and remanded, 750 F.3d 1339 (Fed. Cir. 2014).

Each method performs a specific programming function (for example, choosing between the greater of two integers). The key components of a method are: the “declaring code” that defines the package, class and method names, form of inputs and outputs, and the “implementing code” that provides instructions to the computer concerning how to carry out the declared function using the relevant inputs.

Google began negotiating with Sun in 2005 to license and adapt Java for its emerging Android software platform for mobile devices. After those negotiations failed, Google decided to use Java anyway, and copied verbatim the declaring code in 37 Java API packages (consisting of 11,500 lines of code), as well as the structure and organization of the packages (referred to as the SSO). However, Google wrote its own implementing code for the relevant methods.

In 2007, Google began licensing the Android platform free of charge to smartphone manufacturers. It earned revenue—$42 billion from 2007 through 2016—from advertising on the phones. In 2010, Oracle acquired Sun, and promptly sued Google for infringement.

The Copyright Question

In 2014, the Federal Circuit reversed the lower court’s ruling that the declaring code and SSO were not entitled to copyright protection. Importantly, while the Federal Circuit only has jurisdiction over patent-related matters, it handled the appeal because Oracle’s complaint had also included patent claims (which the jury rejected). The Federal Circuit, however, applied Ninth Circuit law to the copyright questions presented.

The Federal Circuit began by noting that “copyright protection extends only to the expression of an idea—not to the underlying idea itself.” Moreover, to the extent the particular form of expression is necessary to the use of the idea, then using the expression to that extent is not copyright infringement. This is known as the “merger doctrine” which states that if there are a limited number of ways to express an idea, the idea is said to “merge” with its expression—and the expression becomes unprotected. Further, the “scenes a faire doctrine,” bars certain standard, stock, or common expressions from copyright protection.

Thus, to use a simple example, while a book on arithmetic can be copyrighted, the idea of adding, subtracting, multiplying, and dividing cannot be. Moreover, if using symbols like “+” and “x” are necessary or commonly used to express the concepts of adding and multiplying, those expressions are not copyrightable.

Applying these principles, the Federal Circuit first observed that copyright protection extends to expressive elements of a computer program. It then rejected Google’s argument that Oracle’s expression merged with unprotectable ideas, noting that Oracle had unlimited options as to the selection and arrangement of the declaring code that Google copied. The Federal Circuit also rejected Google’s reliance on the scenes a faire doctrine. Because at the time the code was written, its composition was not dictated by external factors like “mechanical specifications of the computer” or “widely accepted programming practices within the computer industry.”

The Fair Use Question

After determining that Oracle’s declaring code and SSO were subject to copyright protection, the Federal Circuit remanded for a jury trial on Google’s fair use defense. As noted, the jury found that Google had established the defense, but the Federal Circuit overturned that verdict.

The fair use defense is a judge-made doctrine that has been incorporated into the federal copyright statute as Section 107, which provides that “the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” To determine whether particular copying constitutes fair use, the statute identifies the following factors as:

(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.”

(4) “The effect of the use upon the potential market for or value of the copyrighted work.”

The Federal Circuit ultimately concluded that because Google’s copying was for a highly commercial purpose, was not qualitatively insignificant, and substantially harmed Oracle’s own licensing efforts; the copying was not fair use as a matter of law, notwithstanding the jury’s verdict to the contrary.

Because APIs are key to broad acceptance of standardized software functions, IMS computer and software expert Dr. John Levy believes that were the Supreme Court to affirm the Federal Court’s ruling, it may severely limit the spread of useful API’s to important code bases. As an example, Dr. Levy notes that a small company will usually want to make its declaring code available to all users and developers, so that the underlying application code will get the broadest possible use and market share. The developer counts on having a competitive set of implementing code to make money.

According to Dr. Levy, the Federal Circuit may have been influenced by the fact that Google made so much money using the copied declaring code. But as evidenced by the large number of amicus briefs, the broader software industry cares more about defending a broad reading of “fair use” than assessing damages against companies who make money from copied declaring code.

Dr. Levy sees the issues in the Oracle case as similar to those in a case he worked on as an expert back in the 80386 chip days. In that case, Intel owned the instruction set of the 386 chip. But because Intel customers didn’t want to be limited to a single source for these Intel-compatible processors, Intel licensed the instruction set to other chip manufacturers.

“One licensee produced chips that performed the Intel-owned instruction set. Intel sued that licensee for copyright infringement of the underlying microcode (the implementation of the instruction set in the chip designed by the licensee company),” recalled Dr. Levy.

A federal court ruled that the microcode (firmware) was indeed copyrightable, but that there was no infringement under the “limited expression” doctrine explained above. There simply were not many ways to implement the licensed instructions in microcode, and therefore the licensee’s implementation did not infringe Intel’s own implementation. In the Oracle case, however, the Federal Circuit concluded that there were many ways for a programmer to select and arrange the declaring code that Google copied.

This article was written by Joshua Fruchter of IMS ExpertServices.

For more copyright cases, see the National Law Review Intellectual Property law page.

Fake Apps Find Their Way to Google Play!

Over the last two months a string of fake banking apps have hit the Google Play store, leaving many customers wondering whether they have been affected by the scam. A report by security firm ESET found users of three Indian banks were targeted by the apps which all claimed to increase credit card limits, only to convince customers to divulge their personal data, including credit card and internet banking details. The impact of this scam was heightened as the data stolen from unsuspecting customers was then leaked online by way of an exposed server.

The report claims these apps all utilise the same process:

Once the app is downloaded and launched a form appears which asks the user to fill in credit card details (including credit card number, expiry date, CVV and login credentials)
Once the form is completed and submitted a pop up customer service box is displayed
The pop up box thanks users for their interest in the bank and indicates a ‘Customer Service Executive’ will be in contact shortly
In the meantime, no representative makes contact with the customer and the data entered into the form is sent back to the attacker’s server – IN PLAIN TEXT.

The ESET report alarming revealed that the listing of stolen data on the attacker’s server is accessible to anyone with the link to the data, this means sensitive stolen personal data was available to absolutely anyone who happens to comes across it.

Whilst, the reality is any app on your personal smartphone may place your phone and personal data at risk, (as discussed here ‘Research Reports say risks to smartphone security aren’t phoney‘)

Customers can mitigate risk by:

only using their financial institutions official banking apps, these are downloadable from the relevant institution’s official website;

paying attention to the ratings, customer reviews when downloading from Google Play;

implementing security controls on your smartphone device from a reputable mobile security provider; and

contracting their financial institution directly to seek further guidance on the particular banking apps in use.

It cannot be overlooked, whilst Google Play moved quickly to remove the apps we query how it was so easy for cyber criminals to launch fake apps on Google Play in the first place.

This post was written by Cameron Abbott and Jessica McIntosh of K & L Gates.

Read more stories like this on the National Law Review’s Cybersecurity legal news page.

Widespread Use of GOOGLE Trademark as a Verb Does Not Render the Mark Generic

On May 16, 2017, the United States Court of Appeals for the Ninth Circuit held that widespread use of the word “google” as a verb for “searching the internet” – as opposed to use as an adjective for a brand of internet search engine – was insufficient to establish that GOOGLE ceased to function as a trademark. Elliott v. Google, Inc., No 15-15809, slip op. (9th Cir. May 16, 2017). As a result, the Ninth Circuit affirmed the district court’s granting of summary judgment in favor of defendant Google, Inc. on the plaintiffs’ Lanham Act claim seeking cancellation of the GOOGLE trademark on the ground that it had become generic.

Generic terms are words that are the commonly accepted identification of a type of goods or services. By way of example, “automobile” and “chair” are generic terms when used in connection with their dictionary meanings. Under federal law, generic terms are not protectable as trademarks. Trademarks can become generic over time if they are used as the name for a category of goods or services instead of as a brand name or source identifier. This is commonly known in trademark law as “genericide.” Examples of terms that have lost federal trademark protection due to genericide include “aspirin,” “escalator,” and “thermos,” each of which was once a protectable trademark. A registered trademark may be cancelled if it loses its source-identifying significance by becoming the generic name of a particular type of good or service. 15 U.S.C. §1064(3); Elliott, slip op. at 6.

The question before the Ninth Circuit was “whether the primary significance of the word ‘google’ to the relevant public is as a generic name for internet search engines or as a mark identifying the GOOGLE search engine in particular.” Elliott, slip op. at 12. The plaintiffs argued that the word “google” is primarily understood as “a generic term universally used to describe the act of internet searching.” In support, the plaintiffs presented consumer survey evidence showing that a majority of consumers used the term “google” as a verb for the act of searching the internet.

The Ninth Circuit rejected plaintiffs’ claim as a matter of law for two reasons. First, the court clarified that “a claim of genericide or genericness must be made with regard to a particular type of good or service.” Elliott, slip op. at 8 (emphasis added). Thus, surviving summary judgment would have required plaintiffs to present evidence that the term “google” is generic specifically with regard to internet search engines. Second, the court concluded that “verb use does not automatically constitute generic use,” thus rejecting plaintiffs’ grammatical argument that a word can only be protectable as a trademark when used as an adjective. Elliott, slip op. at 10. The court noted that the part of speech is not dispositive of the genericide issue, as it is well-established that “a speaker might use a trademark as a noun and still use the term in a source-identifying trademark sense.” Elliott, slip op. at 10-11. For example, a restaurant customer might order “a coke,” using the mark as a noun, while still having a particular source of cola beverages – the Coca-Cola Company – in mind. Id. at 11. As a result, plaintiffs’ consumer survey evidence that the public uses the term “google” as a verb was insufficient as a matter of law, because such evidence did not reveal consumers’ thoughts regarding use of the term with respect to internet search engines. Without more evidence, it was not possible to ascertain whether the survey respondents were using the verb “google” in an indiscriminate sense, with no particular internet search engine in mind; or in a discriminate sense, with the Google search engine in mind.

In light of Elliott, a party claiming that a mark has become generic would be wise to present consumer surveys in which respondents indicate whether they believe a term is a brand name or a common name for a particular good or service, regardless of grammatical function. Any consumer survey submitted should be conducted by qualified experts according to accepted principles. As an example, in Elliott, Google offered a survey in support of its position that the GOOGLE mark is not generic, which began by providing a brief overview of the difference between brand names and common names, then asked respondents to classify various words – such as “Coke,” “Jello,” “Amazon,” “Refrigerator,” “Browser,” and “Website” – as either brand names or common names. Id. at 16. Approximately 93% of respondents described “Google” as a brand name. Unlike plaintiffs’ survey, the Ninth Circuit viewed the results of Google’s survey as evidencing consumers’ primary understanding of the word “google” as it related to search engines.

This case contravenes the conventional guidance to always use trademarks as adjectives that modify a descriptive or generic term. Although the Elliott court acknowledged that using a trademark as an adjective makes it easier to prove the source-identifying function of the mark, this holding makes clear that widespread use of trademarks as nouns and verbs does not make them generic, absent significant evidence of indiscriminate consumer use of the mark to refer to any brand of a particular good or service.

This post was written byThomas A. Agnello and Luke W. DeMarte of Michael Best & Friedrich LLP.

In re Google: Co-Pending Litigation Is Not Sufficient Basis to Deny Transfer Motion

Addressing jurisdictional transfer issues in a divided opinion, the US Court of Appeals for the Federal Circuit granted the extraordinary relief of issuing a mandamus order to transfer a patent infringement case, finding that the district court effectively failed to consider the merits of the defendant’s transfer motion even though the district court weighed all relevant transfer factors. In re: Google, Inc., Case No. 17-107 (Fed. Cir., Feb. 23, 2017) (Prost, CJ) (Linn, J, dissenting) (non-precedential).

This case was initiated when Eolas Technologies sued Google in the Eastern District of Texas for patent infringement. Eolas and Google had litigated against each other prior to this suit. Eolas had previously sued Google in the Eastern District of Texas for patent infringement involving related technology. In the prior case, Google’s motions to transfer and for mandamus were both denied. Google also filed a separate declaratory judgment action relating to other Eolas technology in the Northern District of California.

On the same day that it sued Google, Eolas also sued Amazon and Walmart entities for infringement of the same patent in the same court. Those defendants separately filed motions to transfer venue for convenience to the Northern District of California, each within the same week. The district court denied Walmart’s motion, then Google’s, then Amazon’s. The court issued each decision weeks apart from the preceding decision. In deciding Google’s transfer motion, pursuant to 28 USC § 1404(a), the district court weighed each of the four public-interest factors and four private-interest factors mandatorily considered for a motion to transfer for convenience in the Fifth Circuit. See TS Tech (IP Update, Vol. 12, No. 2).

The district court found that the co-pending litigation with Walmart and Amazon in the same district involving the same patent, as well as the Eastern District’s institutional knowledge relevant to the case obtained from prior litigation between the parties, weighted against transfer. Each of these elements was considered as part of the “other practical considerations” private-interest factor. With respect to the factor requiring balancing the location of witnesses and documentary evidence, the district court found that the location of witnesses and documents at Google’s Northern California headquarters only slightly favored transfer when compared to Eolas’s single employee in the Eastern District of Texas. On balance, the district court found that transfer was not warranted. Google sought mandamus from the Federal Circuit.

The Federal Circuit concluded that the district court improperly overemphasized the “other practical considerations” factor and underemphasized the disparity between Google’s geographic ties to sources of proof as compared to Eolas. According to the Court, the mere co-pendency of related suits in a particular district could not serve as the basis for denying a motion to transfer because such co-pendency would automatically tip the balance in the non-movant’s favor regardless of the existence of co-pending transfer motions and their underlying merits. The Court further found that the Eastern District’s prior experience with the litigants was untenable because the judge presiding over the previous case had retired. The Court also found that the district court did not afford the “relative ease of access to sources of proof” private-interest factor enough weight. The Federal Circuit parted ways with the district court on this factor, noting that it was perhaps the most important of the eight and that it significantly favored Google. In view of these considerations, the Federal Circuit issued a mandamus order transferring the case to the Northern District of California.

The dissent would have denied mandamus relief because it was undisputed that the district court considered all relevant factors, and the heightened mandamus standard of review did not permit the Court to reweigh those factors. Specifically, Judge Linn opined that the majority went beyond its limited role in the mandamus context of assessing whether the district court fully considered each of the eight transfer considerations. According to Linn, the Court rebalanced the considerations and substituted its own judgment, thereby usurping the district court’s role in weighing the factors and making the final determination. The dissent also argued that Google did not show a clear abuse of the district court’s considerable discretion or that the ruling produced the patently erroneous result necessary for the relief sought.

ARTICLE BY John C. Low, Ph.D. of McDermott Will & Emery

Google Tries “Pretty Woman” Tactic in Oracle Copyright Suit

I’m not sure Julia Roberts’ use of that blonde wig and eighties cut-out dress when she Google versus Oracle leaned against Richard Gere’s car in Pretty Woman should be considered “fair use,” but perhaps a court might say otherwise. How does Julia’s transformation from wayward to womanly in that iconic 1990 film come into play in a fight between tech giants Google and Oracle over the use of copyrighted java? Because they both hinge on “transformative use.”

Google’s going to trial again? Say it isn’t so. I have to wonder how many lawyers Google, alone, employs. But, if you’re going to stand as one of the front-runners in today’s fast-paced, internet-driven services market, you have to be prepared for lawsuits. Google has been fending off some serious claims by Oracle in a copyright suit filed in San Francisco since 2010, but when the focus of the debate turned to expert witness testimony, we wanted to highlight the matter for discussion and debate. Oracle initially sued Google claiming improper use of copyrighted Java, particularly Google’s use of its application programming interfaces (“APIs”) on its Android platform, to allow developers who are familiar with Java to quickly convert their web apps to Android. Oracle is now reportedly seeking royalty damages in excess of $8 billion.

Initially Google argued, and the trial court agreed, that APIs were not subject to copyright. That ruling, however, was overturned by the Federal Circuit on appeal, which means Google’s remaining defense is whether its use of the APIs was “transformative,” which would make it acceptable under the Fair Use Doctrine. What standard of “transformative use” are the parties looking to? 2 Live Crew and their ripping parody of “Pretty Woman” in their 1989 album, “As Clean As They Wanna Be.” Please tell me you’re envisioning that iconic cover right now. Apparently the Supreme Court in a 1994 ruling, Campbell v. Acuff-Rose Music, Inc., found 2 Live Crew’s version of “Pretty Woman” so creative and original that it qualified as “fair use,” not copyright infringement. Oracle is arguing the opposite by claiming Google’s use of the Java APIs did nothing to transform the code. Google simply plugged it into to a larger body of work, but in no way altered it, which does not qualify, according to Oracle, as transformative.

Oracle has sought to exclude the testimony of Google’s computer science expert from opining that Google’s use of the Java code altered it sufficiently to qualify as a transformative use, claiming his opinion “flies in the face” of the Federal Circuit’s finding that Google was wrong in claiming its use was transformative simply because it incorporated other elements in the Android system. Google has fought back, stating the Federal Circuit never decided whether the work was transformative and specifically remanded the case so that issue could be decided by a jury. Are you finding both of those arguments a bit rambling and repetitive? Apparently so did the trial court judge when he lamented his role as the gatekeeper who has to “excise every detail of expert testimony on a granular level.” With reams of lawyers on either side fighting over every detail and every dollar, however, that is probably precisely what he will have to do.

If you feel it may be hard, not being a computer science guru, to make a determination as to whether Google’s use of the Java at issue was “transformative,” imagine how the jury is going to feel. In May, 2012, a jury found Google had infringed Oracle’s copyrights but they could not decide whether use of the code in question was “fair.” This will be the second trial and second jury that attempts to answer this question. It will require an expert with exceptional communication skills, who is as persuasive as Julia, to effectively break this Java jumble down and win over the potentially tech-savvy, but stubborn “Richards” in the jury box. That’s the expert we would find for them, anyway, if Google gave us a call.

ARTICLE BY Annie Dike of IMS ExpertServices

Friend Request Denied: Judge Asks Attorneys to Refrain from Social Media Searches of Jurors

In late March 2016, a California federal judge asked both Google, Inc. and Oracle America, Inc. to voluntarily consent to a ban against Internet and social media research on empaneled or prospective jurors until the conclusion of the trial.

The case at issue is Oracle America, Inc. v. Google, Inc., a long-standing copyright infringement suit in which Oracle claims Google’s Android platform infringed various Oracle copyrights. This “high-profile lawsuit” has been making its way through the courts since 2010. Before the voir dire commenced in the current proceedings before the Northern District of California, Judge William Alsup realized that the parties intended to “scrub” Facebook, Twitter, LinkedIn, and other social media sites to gain personal information about the potential jurors.

In response to this realization, Judge Alsup issued an order asking the parties to voluntarily refrain from searching the Internet and social media accounts for personal information about the empaneled or prospective jurors prior to the verdict. While Judge Alsup stated that it was within the discretion of the court to order a complete ban, the court stopped short of issuing an outright ban.

Despite his objections to Internet research, Judge Alsup accepted the premise that social media and Internet searches of jurors are useful to attorneys. Information pulled from these searches can help attorneys during the voir dire process. For example, attorneys can use this personal information strategically while exercising their preemptory challenges or can rely on personal information about a potential juror to support a for-cause removal. Even during the trial, ongoing searches of social media sites can shed light on whether a juror gives or receives commentary about the case.

Despite the potential benefits, however, Judge Alsup issued three reasons in support of restricting these Internet searches.

First, if jurors knew that attorneys had conducted Internet searches of them, jury members would be more likely to stray from the Court’s admonition not to conduct Internet searches about the case. Because this high-profile case has been widely discussed in the media, the court warned of an “unusually strong need” to prevent jury members from conducting Internet searches.
Second, if attorneys learn of personal information about jury members from social media websites, they may be tempted to make personal appeals during arguments and witness interrogations in an attempt to pander to a jury member’s interests. The court warned that this behavior was out of bounds.
Third, the privacy of the jury members should be protected. Judge Alsup noted that empaneled or prospective jurors are not “celebrities,” “public figures,” or “a fantasy team composed by consultants.” Because jurors are citizens willing to serve their country and bear the burden of deciding disputes, Judge Alsup emphasized that their privacy matters.

In his order, Judge Alsup referenced Formal Opinion No. 466 from the American Bar Association. This formal opinion held that it is ethical, under certain restrictions, for attorneys to conduct Internet searches on prospective jurors. The ABA determined that a “passive review” of a juror’s website or social media page (i.e., a review that does not make an “access request” and of which the juror is unaware) is not considered an ex parte communication with jurors. Judge Alsup noted, however, that just because these searches are not unethical does not mean that attorneys have an inalienable right to perform these searches.

According to Judge Alsup’s order, if the parties do not voluntarily agree to refrain from Internet and social media searches, they will have to abide by certain rules during the jury selection process. First, the attorneys will be required inform the jury pool upfront about the nature of their searches prior to jury selection. Also, once the attorneys have made this announcement, they will then have to allow the potential jurors a few minutes to adjust their social media privacy settings on their mobile devices.

In short, the judge’s order emphasized the court’s “reverential respect” for juries, asking the attorneys to refrain from performing Internet and social media searches for jurors’ personal information until the trial is over.

Article By Russell Kostelak of Proskauer Rose LLP

Regulating Recording Features of Personal Wearable Technology in Workplace

With each passing day, personal wearable technology, like the Apple Watch and Google Glass, becomes more mainstream and technologically advanced. Employers should be aware of the challenges posed by employees wearing their technology into the workplace. Businesses have already had to consider decreased productivity, exposure to computer viruses, and potential data breaches caused by personal wearable technology in the workplace. In addition, employers are now wondering if personal wearable devices are being used to discretely and instantaneously record events and copy information in the workplace. Several employment laws are implicated when employers seek to regulate the recording features of personal wearable technology in the workplace.

Restrictions on personal wearable technology in the workplace are subject to Section 7 of the National Labor Relations Act, which prohibits workplace rules and policies that chill discussions among non-management employees about wages, working conditions, work instructions, and the exercise of other concerted activities for mutual aid or protection. NLRB General Counsel Memorandum No. 15-04 contains examples of both over broad and lawful work rules restricting recording devices in the workplace. These examples are instructive when drafting employment policies restricting personal wearable devices.

Under Section 7, employers may prohibit employees from copying or disclosing confidential or proprietary information about the employer’s business, using wearable technology or otherwise. Employers may also prohibit employees from taking, distributing, or posting on social media pictures, video, and audio recordings of work areas while on working time, so long as the policy carves an exception for conduct protected by Section 7. The exception should expressly cite specific examples of permitted recordings, such as “taking pictures of health, safety and/or working condition concerns or of strike, protests and work-related issues and/or other protected concerted activities.” Existing employment policies restricting personal cell phone and camera use in the workplace should be updated to include restrictions on the use of recording features of wearable technology.

The recording features of personal wearable technology also provide new methods and means for employees to engage in unlawful workplace harassment and other workplace misconduct. Employers should consider revising their anti-harassment and conduct policies to prohibit the use of wearable technology, including its recording features, in an unlawful manner. As technology continues to evolve, so too should employment policies, to address the use of such personal devices in the workplace.

Article By Stan Hill of Polsinelli PC

How to Avoid Being Penalized by Google [Infographic]

Google algorithm updates are usually accompanied by much wailing and gnashing of teeth among marketers, and sometimes it’s for good reason. With one flick of a switch, all that hard work to improve search results can be undone if your site no longer complies with what Google considers to be best practices for your website and blog.

Of course, Google’s intention is not to penalize sites — it’s to improve the user experience. Recently, Internet marketing consulting company QuickSprout developed the infographic below with specifics on what to avoid and strategies for ensuring your sites don’t get penalized by Google.

These tips are easy to understand and not too difficult to implement. The reward of not incurring a Google penalty is well worth your time in becoming educated on current best practices in SEO for Google:

How to Avoid Being Penalized by Google [Infographic]

ARTICLE BY Stephen Fairley of The Rainmaker Institute

Tag: Google

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