Washington Journal of Law, Technology & Arts

Volume 7  | Fall 2011  | Number 2

Ninth Circuit Unmasks Anonymous Internet Users and Lowers the Bar for Disclosure of Online Speakers

There is no judicial consensus about what test to apply when plaintiffs attempt to obtain the identity of an anonymous Internet user during discovery in an online defamation case. In July 2010, the Ninth Circuit became the first federal appeals court to devise an articulable test to determine when a plaintiff may compel disclosure of an online commentator. Previously, federal courts had applied inconsistent balancing tests to determine whether disclosure was appropriate. In In re Anonymous Online Speakers, the Ninth Circuit relied upon the Delaware state- court standard from Doe v. Cahill but applied this test in a way that made it easier for commercial defamation plaintiffs to obtain the identity of anonymous defendants. This Article surveys the prevalent online defamation cases, summarizing the three primary judicial tests applied by state courts and positing that other circuits likely will adopt the reasoning set forth in Anonymous Online Speakers for commercial online speech.

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Juror Investigation: Is In-Courtroom Internet Research Going Too Far?

Lawyers traditionally have conducted research on potential jurors outside the courtroom as part of voir dire. But as wireless Internet access becomes ubiquitous, attorneys are increasingly likely to conduct juror research inside the courtroom, including during voir dire itself. In the August 2010 decision Carino v. Muenzen, a New Jersey appeals court held that a trial court judge erred when he told a lawyer to close his laptop during voir dire, reasoning that there was no disruption, no resulting prejudice, and no rule against researching jurors online during the proceeding. This Article examines the Carino decision and the issue of researching potential jurors during voir dire. Because there is very little guiding law, lawyers should expect to encounter attorneys who research potential jurors in the courtroom and realize that this practice may be allowed at the discretion of individual judges.

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End User Liability for Software Developed with Trade Secrets

The National Conference of Commissioners on Uniform State Laws (NCCUSL) developed the Uniform Trade Secrets Act (UTSA) to unify the laws regulating the improper use of secret, economically advantageous information. However, consumers often procure software and other products without knowledge of any trade secrets used in the production of the products. Some companies have sought remedies against end users of products developed using trade secrets. But in Silvaco Data Systems v. Intel Corp., a California appeals court considering this issue in the software context held that execution of compiled object code, which is not easily interpreted by humans, is not an improper use of trade secrets embedded in the underlying, human-readable source code. This ruling implies that end users of software, and perhaps other products, are not liable for misappropriation of trade secrets merely through use of the end products. This Article surveys the application of the UTSA to software and explains why this holding is a proper reading of the Act’s scope. In addition, this Article discusses the public policies behind this limitation on liability for end users and possible implications of the Silvaco ruling beyond software.

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Discovery of Breathalyzer Source Code in DUI Prosecutions

In driving under the influence (DUI) cases, prosecutors habitually rely on the results from breathalyzer tests as proof of the defendant’s blood alcohol level at the time of arrest. In response, DUI defendants often attempt to compel discovery of the source code contained in the test device, which can reveal whether the breath test at issue was performed accurately. Despite the popularity of this strategy, nearly all states to consider the issue have denied the defendant’s motion for discovery of breathalyzer source code. The majority of courts construe state and federal rules of criminal procedure to limit discovery orders to information within the “possession, custody or control” of the prosecution and summarily hold that breathalyzer source code is not in the State’s possession or control. Absent a contractual agreement granting the State proprietary rights to the code, the courts have failed to articulate a clear definition of what it means to be in possession, custody, or control of breathalyzer source code. This Article explores the classification of breathalyzer source code, the discovery rules surrounding its disclosure, and the implications of its protected legal status.

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Cross-Border Contributory Patent Infringement in Germany

This Article examines recent German court decisions analyzing Section 10 of the German Patent Act (“PatG”), which governs cases of contributory patent infringement, focusing in particular on the implications of recent decisions on potential cross-border infringement. The Article offers recommendations on how judicial scrutiny of contributory infringement in Germany may be streamlined in light of potential evidentiary problems and concludes with a case study of how German courts might analyze a situation like that faced by the United States Court of Appeals for the Federal Circuit in AT&T v. Microsoft.

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Copyright Infringement Liability of Placeshifting Services in the United States and Japan

Placeshifting is a convenient service that enables customers to enjoy television programs from their home countries even if they are in foreign countries. Placeshifting works by receiving/recording a television program in one country and then transmitting the digital data to customers everywhere in the world via the Internet upon each customer’s request. Because placeshifting may be involved with recording and/or transmitting copyrighted content, service providers must face the question whether they may be liable for copyright infringement. In the United States, the Second Circuit in Cartoon Network v. CSC Holdings decided the legality of placeshifting by requiring a “volition element” for direct infringement. In Japan, however, court decisions have varied. Most of the courts have applied an overall consideration standard such as the “Karaoke rule.” As a result, there remains large uncertainty about the state of the law in Japan. This Article introduces the legal basis and judicial decisions for placeshifting both in the United States and Japan and suggests introducing the volition requirement as one possible solution for the uncertainty in Japan.

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