Topic-wise, here’s a new twist on an old favorite. We’ve talked before about law enforcement’s access to social media, and about when they can or cannot compel the production of private data. But the Technology & Marketing Law Blog just posted a sad story, which shows the other side of that equation: when a private party wants to compel production of social media content but faces a legal struggle to do so.

Here’s the background: In 2008, a 23-year old model fell from a 12th floor window to her death in the UK. The official police ruling into the death was that it was suicide, but her family suspected foul play, since she was at her ex-husband’s apartment, and from what it sounds like, things were pretty acrimonious between the two. Her family had been invited by the coroner to present any indication as to her mindset or mood leading up to her death, and they couldn’t do so quickly enough to prevent the official ruling that it was suicide.

The family then filed an ex parte application for leave to subpoena records from her Facebook account. She had been an active Facebook user, and they believed that by accessing her private account and looking at her status updates, they would be able to show that she was not exhibiting any suicidal thoughts or attitudes prior to her death.

Last week, though, a U.S. Magistrate Judge denied the family what it was looking for, and granted Facebook’s Motion to Quash the subpoena. He held that:

The case law confirms that civil subpoenas may not compel production of records from providers like Facebook. To rule otherwise would run afoul of the “specific [privacy] interests that the [Stored Communications Act] seeks to protect.”… Under the plain language of Section 2702,while consent may permit production by a provider, it may not  require such a production.

Poor Microsoft. The other day we mentioned the fact that the German government put out an official statement encouraging its people to stop using Internet Explorer due to security concerns. Then there’s the fact that, despite my own best efforts, the phrase “Bing It!” just isn’t taking off as they’d have hoped. And now comes the news that the European Union is getting set to fine Microsoft for its failure to comply with an order from three years ago requiring the company to offer more browser options than just Internet Explorer. Only IE came preloaded, and this was seen as an antitrust issue.

The company did, in fact, introduce a browser choice screen on all new computers in Europe in 2010, but a “technical error” meant that 28 million new machines did not come with that choice, and Commissioners aren’t too happy about it. According to Reuters, the penalty could be very severe: “If found guilty of breaching EU rules, it could be penalized up to $7.4 billion or 10 percent of its revenues for the fiscal year ending June 30, 2012.” Holy smokes.

They take their antitrust seriously in Europe, it would seem. As TechCrunch reports, the same Commission is also looking into Google’s dominance of the Search Engine racket, an investigation which I’m sure sure Jeeves is following very closely indeed.

In one of its lesser-known legal actions, Apple is currently suing Amazon, over the latter’s use of the phrase “App Store”. Apple argues that there may be customer confusion caused by Amazon’s name choice, while Amazon counters that it’s a generic phrase and therefore shouldn’t be granted any trademark protection.

In a Motion for Partial Summary Judgment [PDF] filed on Wednesday, Amazon categorically denies any wrongdoing related to Apple’s claim of false advertising. They claim that the dispute should be decided purely on a trademark basis.

Apple’s theory would turn every claim for trademark violation into an ipso facto false advertising claim. Courts have rejected such efforts, and this court should follow suit, particularly given Apple’s own generic use of the term “app store.” In short, there is no basis for Apple’s claim that this same generic usage by Amazon is false advertising…

As the Motion points out, “Apple’s former and current CEOs have both used “app store” in reference to Apple’s competitors’ stores for apps,” thereby suggesting that it is indeed a generic term. This seems like a relatively petty thing to fight over, but even so, a trial is already scheduled to begin in August 2013. Can’t wait.

No, not that  video.

News outlets are reporting that earlier today, Google’s top executive in Brazil- Fabio Coelho – was arrested after YouTube refused to take down a video that attacked a mayoral candidate. Apparently, there is a law in Brazil that bans any kind of “offensive” political commercials. A pair of videos came out, attacking one particular candidate, and electoral court found Coelho personally guilty of “disobedience” for not removing these ads. He will not remain in custody, due to his ”low potential to offend”, but he has to agree to cooperate with the investigation in the future. Weirdly enough, earlier this month, the same thing happened to another Google executive, Edmundo Balthazar, though in his case, reason soon prevailed:

Within days [of Balthazar's arrest order] another judge overturned the order to arrest Balthazar, writing that “Google is not the intellectual author of the video, it did not post the file, and for that reason it cannot be punished for its propagation.”

Isn’t this situation crazy? An individual – not even the company as a whole – is held personally liable for the “offensive” (a term with no fixed definition) online postings of a third party. That’s like arresting Rupert Murdoch if his Fox network were to air this campaign advert. (By the way, searching for offensive ads was a lot of fun, and that one is incredible).

There’s been a lot of talk about YouTube and censorship lately but this action in Brazil seems very heavy-handed. In fact, the Telegraph reports that there have been other instances in that country of courts cracking down on what we would call “protected speech.” In fact, just yesterday “a Brazilian court said it ordered Facebook to pay a female user $1,500 in moral damages for failing to promptly remove a fake profile containing her name and personal data.” Also:

In August, an electoral judge in the southern state of Santa Catarina ordered a 24-hour suspension of Facebook for failing to remove a page which attacked a town councillor running for reelection in next month’s vote.

Facebook eventually reached a deal with the court to escape punishment or a daily $25,000 fine in case of non-compliance.

Yikes. Even though most of what’s on YouTube and Facebook is garbage, we should appreciate our rights to enjoy (or ignore) it.

Everyone knew this would happen, and now it finally has happened. Earlier this week, Samsung appealed the August jury decision that it ripped off Apple patents to the tune of over $1 billion. An interesting wrinkle, though: Samsung is citing jury misconduct as one of the reasons to throw out that verdict. We mentioned how, in the aftermath of the decision, several of the jurors started doing the press rounds. These jurors spoke of those Samsung internal memos (which basically said “be more like the iPhone”) and how those were very persuasive.

Samsung is particularly concerned, however, by various statements made by the jury foreman, Velvin Hogan. As you may recall, Hogan is the guy who has patents of his own, and has been involved in patent litigation in the past. In his much-discussed Bloomberg TV interview, he said:

 I suddenly decided that I could defend this if it was my patent. And with that, I took that story back to the jury, laid it out for ‘em, they understood the points that I was talking about, and then we meticulously went patent by patent, claim by claim against the test that the judge had given us…

Additionally, Above The Law reports of other post-verdict instances where Hogan talked about his own personal background and his work to educate his fellow jurors. Because of all this, Samsung seeks a new trial, and while there is some case law relating to jurors making their minds up based on more than just the specific facts of a case, most analysts don’t believe that the entire trial will be annulled. Apple, for its part, has filed a response, calling Samsung’s allegations of juror misconduct “baseless” and “frivolous.”  This thing is not going away any time soon.

You may recall that in August we reported about a quiet change in Craigslist’s terms of usage, to the effect that any listing posting on the site became the intellectual property of Craigslist. Speculation at the time suggested that this new policy came in response to new sites that mined Craigslist data and displayed the information in an easier-to-follow, more useful manner. (An example would be Padmapper, which displayed apartment listings in a format that was easier to browse, easier to search, and ultimately easier to use, than Craigslist all-in-one-giant-list approach).

3taps is a similar site. Self-described as “a platform that collects and distributes exchange-related data”, it too has been in the midst of a legal battle with Craigslist for a while due to its re-purposing of classified ads posted on that site. Craigslist says that 3taps infringes on its copyrights. Earlier this week, 3taps countersued Craigslist [PDF], claiming unfair competition and antitrust violations.  In a statement on the site, 3taps CEO and founder Greg Kidd accuses Craigslist of “spending] heavily to bully and intimidate companies that challenge them.”

Kidd goes on to better articulate the countersuit’s legal basis:

“The basis of our antitrust counterclaim  and defense against craigslist’s baseless lawsuit is simple: public facts are public property – openly and equally available to all businesses and consumers.  Sham copyright claims and unenforceable terms of use cannot stand  when they deceive users, intimidate innovators, or thwart a competitive marketplace.”

It will be fascinating to see how this develops. Craigslist has dominated this particular corner of the Internet for a long, long time, without ever changing its look or adding any new bells or whistles. These new upstarts like 3taps and Padmapper aim to make the user experience more visually appealing and easy, so let’s see what happens.

When I hear the phrase “shred days”, I immediately think of high-intensity workout regimens like P90X and Crossfit. Well, apparently, “shredding” has another, more old-fashioned meaning, and it involves deliberately destroying paperwork. Law.com has a story today about Rambus, a company that develops and manufacturers computer chips. Apparently, Rambus won a big patents battle against rival SK Hynix, Inc. in 2009, and was awarded $397 million. During that litigation, it came to light that, in 1998, 1999 and 2000, Rambus held so-called “shred days”. Let Judge Whyte’s opinion [PDF] explain what these days involved:

On September 3 and 4, 1998, Rambus employees participated in Shred Day 1998. Rambus employed an outside company, Sure Shred, to provide on-site document shredding services… Employees were given burlap sacks from Sure Shred for material that needed shredding. The burlap sacks were then taken to a shredding truck in the parking lot of the company.

Rambus destroyed approximately 185 bags and 60 boxes of material on Shred Day 1998. HTX 125. The amount of documents destroyed would have totaled, on the high side, 430 banker boxes of material…

A year later, on August 26, 1999, Rambus held Shred Day 1999. The bulk of the documents destroyed on the shred days consisted of “mountains of printouts of circuit design that engineers had.” …

In December 2000, Rambus held Shred Day 2000. Rambus employees destroyed 410 bags (the equivalent of 300-400 boxes) of documents during Shred Day 2000.

Whew. Despite all this, Judge Whyte initially found that Rambus was in the clear for these shred days as litigation was not, at their time, “reasonably foreseeable”. But another company that lost a similar battle with Rambus appealed to the Federal Circuit, and that court found that litigation was reasonably foreseeable during the Shred Days, and so Rambus had engaged in purposeful spoliation. Based on this, Judge Whyte revisited the case, and on Friday set aside the $397 million award, and has ordered that the damages be recalculated, to make sure they are “reasonable and nondiscriminatory.”

Judge Whyte did not, however, directly punish Rambus for the ritualized shredding program, noting that:

“If [Rambus' Joel] Karp in fact requested that employees destroy potentially damaging evidence, it is surprising that there was not a single whistle blower out of the approximately 145 and 165 employees participating in Shred Days 1998 and 1999, respectively. In fact, if Rambus did intend to destroy all damaging documents, it did a poor job. A number of documents damaging to Rambus were retained and were produced to Hynix in discovery…”

The ins-and-outs here are complicated, as the Law.com article notes, but it’s interesting to consider that, in this age of eDiscovery and metadata and TAR, old-school analogue document destruction, can still come back to haunt you. Even if it occurred in the last century.

Not sure if you’ve noticed this lately, but the manufacturers of tablet computers sure have been suing each other a lot lately. Any time you hear about a tablet in the news, it’s always injunction this, patent infringement that, and over-a-billion-dollars-in-damages the other. Here’s new chapter in that saga, and it involves a beloved cartoon giraffe. Sort of.

Ars Technica reports that Toys ‘R’ Us is facing a lawsuit over its recently-announced Tabeo tablet for kids. Firstly, you read that correctly, it does indeed say “Tablet for Kids”. From that article:

A lawsuit (PDF) was filed yesterday in US District Court in San Diego by Fuhu, maker of another kids tablet previously sold through the Toys”R”Us stores and website. In its complaint, Fuhu… describes its Nabi device as “the world’s first full-featured Android tablet made especially for kids.” …

…

[The suit alleges that] Toys”R”Us built the Tabeo by “shamelessly using Fuhu’s confidential information obtained after fraudulently becoming Fuhu’s exclusive distributor in an agreement signed in October, 2011.” Toys”R”Us ”has used and continues to use Fuhu’s confidential information, trade secrets, and other intellectual property to prepare, market, and sell Tabeo,” Fuhu alleges.

Fuhu claims trademarks and trade dress covering its tablet’s “iconic butterfly shape,” including a “removable bumper that fits snugly around the outer edge of the tablet… [featuring] exaggerated, flared corners, giving the Nabi tablet an original, unique, soft, and friendly look, reminiscent of the four wings of a butterfly.”

During that recent trial you may have heard of, Samsung often argued that there are only so many ways you can design a rectangular box, and it looks like that will be an issue again here. We’ll keep an eye on this one and let you know how things develop.

Here’s an interesting recent case out of Illinois, brought to our attention by the Social Media Employment Law Blog. The plaintiff worked for the U.S. Department of Agriculture, and sued them, claiming sexual harassment on the job. The basis for this action is somewhat convoluted: plaintiff found out about, and then viewed, a Power Point presentation which contained a photo of her direct supervisor “wearing bib overalls, a hardhat, toolbelt, and boots, with his arms crossed at his chest… [and] not wearing a shirt beneath the overalls.” There is more information in the Court’s full opinion [PDF], in which even the judge calls the sexual harassment claim “vague”.

Before ultimately dismissing plaintiff’s claim, the Court articulated the standard for this kind of action:

To establish a prima facie case, the plaintiff must show that: “she was (1) subjected to unwelcome sexual conduct, advances, or requests; (2) because of her sex; (3) that were severe or pervasive enough to create a hostile work environment; and (4) that there is a basis for employer liability.”

Again, the full opinion offers many reasons why plaintiff’s case was thrown out, but the one that is most relevant to our purposes involves the plaintiff’s own history of sent emails. Attorneys for the USDA knew to look through her work computer and properly investigate the allegation that the so-called sexual conduct was “unwanted”. And what they found is a doozy. From the opinion:

Defendants also provided evidence that the plaintiff received a number of unrelated emails at her work email address, including photographs of men who plaintiff admits are wearing less clothing than [supervisor in Power Point photo], but plaintiff did not file sexual harassment claims based on these photographs. One such email contained a picture of a man from the rear view with his buttocks showing, and who was only wearing boots, wings, and a halo, to which plaintiff responded “That’s too funny.” Plaintiff forwarded the email containing this photograph to her husband and daughter.

This case ultimately gives us two valuable lessons. Firstly, as we’ve emphasized before plenty of times, the right kind of eDiscovery can yield great results. Secondly, and perhaps more importantly, you can’t credibly claim to be harassed by (relatively mild) images when you’re forwarding and enjoying much racier images. A lesson for us all.

We are thrilled today to announce the launch of the first IT-Lex Writing Contest. It’s open to all law students currently enrolled at an ABA-accredited law school, and the topic can be anything technology law related. Did we mention that there are big cash prizes for winners? Well, there are. $5,000 for first place. $1,000 for second. $500 for third. All three top prize-winners will be published in the IT-Lex Journal, and will receive invitations to become write-on Members and a part of the IT-Lex Law Review. Additional worthy entries will also be considered for publication, and we welcome all entries from qualified applicants.

Full rules and a grading rubric can be found on our Writing Contest page. Please help us get the word out, by telling law students that you may know about the Contest. The flyer above can be viewed or downloaded as a PDF here.

Thanks, and good luck!