Free for a Fee

One of the primary arguments for enacting the Defend Trade Secrets Act (DTSA) in 2016 was the perceived need for the protection of the trade secrets of U.S. companies abroad.  These issues received significant media attention with the focus far and away on China; by way of example, 60 Minutes cited the Justice Department as saying “the scale of China’s corporate espionage is so vast it constitutes a national security emergency, with China targeting virtually every sector of the U.S. economy, and costing American companies hundreds of billions of dollars in losses — and more than two million jobs.”  A consensus emerged that existing civil trade secret remedies at the state court level were inadequate.  These concerns led to calls for a robust federal statute that would provide a civil remedy empowering federal courts to assert their jurisdiction over parties outside the United States.  An important decision issued by the U.S. District Court for the Northern District of Illinois last year, Motorola Solutions v. Hytera Communications Corp.,  2020 U.S. Dist. LEXIS 35942 (N.D. Ill. Jan. 31, 2020), paved the way for other federal courts over the past year to exercise jurisdiction over international actors and international conduct under the DTSA.  This blog post summarizes these recent decisions.

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Takeaway:  As these cases over the past 18 months illustrate, federal courts are willing to apply the DTSA to foreign parties who have taken actions that further acts of misappropriation.  These decisions are an important first step in furthering the DTSA’s goal of protecting U.S. companies’ trade secrets that are misappropriated abroad.

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The content in this post was found at https://www.lexblog.com/2021/09/27/trade-secrets-without-borders-the-defend-trade-secret-acts-promise-as-an-extra-territorial-statute-finally-comes-to-pass/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

LexBlog/99 Park Row
J. Alexander Lawrence & Lily Smith
July 21, 2020
Foreign websites that use geotargeted advertising may be subject to personal jurisdiction in the United States, even if they have no physical presence in the United States and do not specifically target their services to the United States, according to a new ruling from the Fourth Circuit Court of Appeals.

In UMG Recordings, Inc. v. Kurbanov, twelve record companies sued Tofig Kurbanov, who owns and operates the websites: flvto.biz and 2conv.com. These websites enable visitors to rip audio tracks from videos on various platforms, like YouTube, and convert the audio tracks into downloadable files.

The record companies sued Kurbanov for copyright infringement and argued that a federal district court in Virginia had specific personal jurisdiction over Kurbanov because of his contacts with Virginia and with the United States more generally. Kurbanov moved to dismiss for lack of personal jurisdiction, and the district court granted his motion.

The district court found that both flvto.biz and 2conv.com were semi-interactive, that the visitors’ interactions with them were non-commercial, and that Kurbanov did not purposefully target either Virginia or the United States. As a result, the court ruled that no federal court in the United States had personal jurisdiction over Kurbanov and to exert such jurisdiction would violate due process. On appeal, however, the Fourth Circuit reversed the district court’s ruling and remanded the case.

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The content in this post was found at https://www.lexblog.com/2020/07/21/stretching-the-bounds-of-personal-jurisdiction-4th-circuit-finds-geotargeted-advertising-may-subject-foreign-website-owner-to-personal-jurisdiction-in-the-u-s Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

LexBlog
Thomas Hubert & Jacob Pritt
March 18, 2020

In a high-profile trade secret case, a federal court in Chicago ruled that the federal Defend Trade Secrets Act (DTSA) extends beyond the U.S. and covers actions and damages that occur in other countries.

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The content in this post was found at https://www.lexblog.com/2020/03/18/federal-court-rules-trade-secret-damages-can-extend-beyond-the-u-s-border/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Mike Masnick
Tech Dirt
July 17, 2019

Every few years this kind of thing pops up. Some ignorant organization or policymaker thinks “oh, hey, the easy way to ‘solve’ piracy is just to create a giant blacklist.” This sounds like a simple solution… if you have no idea how any of this works. Remember, advertising giant GroupM tried just such an approach a decade ago, working with Universal Music to put together a list of “pirate sites” for which it would block all advertising. Of course, who ended up on that list? A bunch of hip hop news sites and blogs. And even the personal site of one of Universal Music’s own stars was suddenly deemed an “infringing site.”

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https://www.techdirt.com/articles/20190712/00090542575/wipo-now-gets-into-extrajudicial-zero-due-process-censorship-act-over-sites-it-declares-infringing.shtml

Zhen Feng, Suyu Yuan & Helen Xia
LexBlog
October 16, 2018

On 9 August and 28 September 2018, the new Cyberspace Courts in Beijing and Guangzhou were officially opened. These new specialised courts, along with their equivalent one that was formed in Hangzhou in August 2017, are meant to tackle the quickly swelling stream of internet-related court procedures in China. The establishment of these specialised courts is an encouraging step for the Chinese internet sector as well as for IP owners: it promises a more flexible procedure, less bureaucracy in obtaining evidence and higher quality judgments, handed down by specialist judges.

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The content in this post was found at https://www.lexblog.com/2018/10/16/three-cyberspace-courts-now-online-and-open-for-business/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Lex Blog

AUGUST 15, 2018

In our continued post-TC Heartland coverage, Judge Gilstrap in the Eastern District of Texas recently held that venue was proper because Google exercises exclusive control over physical servers implicated by the litigation, as well as the physical space within which the server is located and maintained. The court emphasized that the place where the server is located occupies a physical space, which is more than merely a virtual space or electronic communications from one person…

Chicago IP Litigation

R. David Donoghue

May 25, 2018TopstepTrader, LLC v. OneUp Trader, LLC, No. 17 C 4412, Slip Op. (N.D. Ill. Apr. 18, 2018) (Leinenweber, J.).

Judge Leinenweber granted in part defendant OneUp Trader’s Fed. R. Civ. P. 12(b)(6) motion to dismiss and defendant Alsabah’s Fed. R. Civ. P. 12(b)(2) & (6) motion to dismiss for lack of personal jurisdiction and failure to state a claim in this copyright dispute involving electronic trading systems.

Personal Jurisdiction

Alsabah had to enter an agreement to use TopstepTrader’s software in which he allegedly consented to jurisdiction in Illinois. The Court held that the contract was on a spectrum between a clickwrap and a browsewrap agreement, in a type of agreement referred to as sign-in-wrap. Alsabah did not take an affirmative action to explicitly agree to the site terms, but there was affirmative action in that Asabah had to sign up for an account. During the sign up process, Alsabah would have been informed that by creating an account, he accepted the terms of service, along with a hyperlink to those terms. In fact, Alsabah clicked a “sign up” button next to a hyperlink for the terms. Without doing so, he could not have activated an account and gotten access to TopstepTrader’s website. But the “sign up” button did not clearly state that by clicking on it Alsabah was accepting the terms. So, while it was a close call, the terms and their forum selection clause were not enforceable against Alsabah.

Regarding specific jurisdiction, TopstepTrader’s location in Illinois and harm in Illinois was not sufficient to create personal jurisdiction. But Alsabah specifically sought out TopstepTrader’s website, created an account and then received multiple communications which identified TopstepTrader as an Illinois-based company. While walking into a brick and mortar store in Illinois would have been better evidence of specific jurisdiction, signing up with an Illinois business under the particular circumstances that Alsabah did was sufficient to create specific jurisdiction.

Failure to State a Claim

While OneUp Trader is correct that short, common phrases may not be copyright-protectable, OneUp Trader failed to address Topstep Trader’s argument that it is the combination of elements such as text, graphic size screen layouts, colors, charts, unique terms, etc. that is protectable. And even if the alleged copying identified in the complaint was only a small portion of the total content, that could be sufficient. Topstep Trader did not need to detail each copied element. It was enough to provide examples of the copying at the complaint stage. And a review of the exhibits showed sufficient alleged copying.

The Court dismissed Topstep Trader’s breach of contract claim, but gave Topstep Trader leave to replead with sufficient facts to show that a contract was formed that would support Topstep Trader’s breach claim.

Finally, Alsabah argued that the claims against him should be dismissed because the complaint only specifically mentioned him in limited instances. Topstep Trader, however, defined a term that combined OneUp Trader and Alsabah and referred to it collectively throughout the complaint.

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The content in this post was found at https://www.chicagoiplitigation.com/2018/05/sign-in-wrap-did-not-create-personal-jurisdiction/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Social Aware
John Delaney & Monica Cai on July 23, 2018

If a web server located outside the United States hosts video content that can be viewed by Internet users located in the United States, does a public performance result under U.S. copyright law?

This has been a topic of hot debate for a surprisingly long time, with little or no direct guidance from the courts—until now. A recent decision from the D.C. Circuit, Spanski Enterprises v. Telewizja Polska, addresses this issue head-on, with the court finding that the uploading of video content in which a party held exclusive U.S. public performance rights and the subsequent directing of the content to U.S. viewers upon their request to be an infringing “performance” under the U.S. Copyright Act.

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The content in this post was found at https://www.sociallyawareblog.com/2018/07/23/copyrights-long-arm-foreign-website-found-to-infringe-u-s-copyright-law-by-providing-u-s-viewers-access-to-site-content/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Hogan/Lovells

APRIL 1ST, 2018 BY DR. NILS RAUER, ALASTAIR SHAW AND PENNY THORNTON

This year’s Easter holiday brings with it a further milestone in the Commission’s endeavor to bring about a truly Digital Single Market: The Portability Regulation (EU) 2017/1128 comes into force on 1 April 2018. The Regulation facilitates cross-border portability of online content. It allows for subscribed content services to “travel” with the subscriber throughout the entire European Union. Be it movies, sport events, music, e-books, online games, they all need to remain accessible when temporarily abroad in another Member State. Service providers need to make sure this travel option is provided to their customers. Importantly, the Regulation applies to both new and existing subscriber contracts.

 

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The Regulation

According to Article 3 of the Regulation, providers of paid-for online content services are obliged to allow access and use of the content during a temporary presence in another Member State. The same content, the same types and the same number of devices (PC, smartphone, tablet etc.), the same number of authorised users and the same range of functions must be granted. Only the quality standards abroad are not guaranteed to be equal to those in the country of subscription. Providers who operate on the basis of a contract but free of charge can choose whether they want to make their online content available to their subscribers while travelling (Article 6). This also includes public broadcasters to which a mandatory broadcasting fee has to be paid.