On 13 June 2013, Advocate General (“AG”) Niilo Jääskinen of the EU’s Court of Justice (CJEU) issued his non-binding Opinion in the Pinckney case, dealing with the question of courts’ competence to hear online copyright infringement cases in the EU. In his Opinion, the AG extended to copyright principles developed in relation to other IP rights, such as trademarks (L’Oréal) and database rights (Football Dataco).
Mr Pinckney (a songwriter resident in France) alleged the infringement of his copyright through, inter alia (i) online sale of unauthorized CDs by two British companies, and (ii) online access to these songs offered by these companies. In his Opinion, the AG recalled the basic principles of EU private international law for tort liability and then looked more closely at the courts that are competent to hear online copyright infringement cases. One of the criteria to identify the competent courts is the territory in which the damage occurs. The AG took the view that the damage from an online copyright infringement occurs in the territory whose population was targeted by the infringing website (para. 64). The activity of the website should disclose an intention on the part of its performer to target persons in that territory (para. 61).
The ultimate judgment in Pinckney may have broader implications for the approach taken to online distribution in other areas of law. For example, when assessing compliance of distribution agreements with EU Competition law, the “active sales” concept is fundamental (i.e., sales targeted at customers in a specific territory). The Commission uses various objective indicia to identify active sales (see Commission Guidelines, para. 51). If the court takes jurisdiction in Pinckney, it may be that these indicia could also be complemented by other elements, perhaps including intention.
It remains to be seen whether the CJEU will take jurisdiction and, if it does, whether it will follow the AG’s approach.
The issue of cybersecurity has been on FDA’s radar in the last year, due in part to a Government Accountability Office report issued last August that urged FDA to consider the risk of intentional threats to device information security. Although the GAO report noted that FDA was not aware of any actual incident of device hacking, researchers have demonstrated the ability to remotely exploit devices such as implanted defibrillators and insulin pumps.
Addressing such threats, FDA has issued a draft guidance document entitled “Content of Premarket Submissions for Management of Cybersecurity in Medical Devices.” The draft guidance is intended to make “recommendations to consider and document in FDA medical device premarket submissions to provide effective cybersecurity management and to reduce the risk that device functionality is intentionally or unintentionally compromised.” Continue Reading
The Court of Appeals for the Fifth Circuit found that the retransmission consent agreement between Nexstar Broadcasting Inc. and Time Warner Cable, Inc. allows Time Warner to rebroadcast the signals of three television stations owned by Nexstar without any geographic restriction across its entire system. Rejecting Nexstar’s request for an injunction to stop Time Warner from retransmitting certain Nexstar broadcasts to distant markets, the Court of Appeals found that the agreement between the companies likely allows Time Warner to do so. The Court of Appeals thus upheld the District Court’s decision to deny an injunction sought by Nexstar.
By Ezra Steinhardt and Oliver Grazebrook
On 22 May 2013, the Supreme Court issued a ruling on the English law of confidential information. The case represents a helpful guide as to how confidential information may be protected by a business after the end of an employment contract.
The case, Vestergaard Frandsen A/S (now called MVF 3 ApS) and others v Bestnet Europe Limited and others  UKSC 31, deals with facts that may represent a fairly common business scenario. In the case, one employee left a business, together with a consultant, to set up a rival business. In the course of their work at the new business, the ex-consultant used what was, unbeknownst to the ex-employee, confidential information that the court deemed to be a trade secret from the prior business.
Considering these facts, the High Court found the ex-consultant liable for breach of confidence. Expanding on that finding, the Supreme Court found that the ex-employee — in contrast to the ex-consultant — should not be liable for breach of confidence, because unlike the ex-consultant the ex-employee had had no knowledge of the trade secret when working for their former employer, and because the ex-employee hadn’t subsequently realised that the information had ever originated from their former employer when it was being used in the new rival business.
Summarising the Supreme Court’s logic, Lord Neuberger stated that “an action for breach of confidence is based ultimately on conscience”. In other words, the ex-employee was not liable because she had no knowledge of the breach, so her conscience couldn’t have been affected – despite the fact that the ex-employee had arguably assisted in the use and misuse of the trade secret in the course of running a rival business.
As our colleagues discussed in a previous post on InsideMedicalDevices, FDA took its first publicly announced enforcement action against a mobile app developer on May 22, issuing an “It Has Come to Our Attention Letter” to India-based app developer, Biosense Technologies. The letter received extensive media coverage, and the mHealth sector was immediately abuzz with interest (and concern) about its implications.
Commentators observed that the letter appeared to be intended, in large part, as an educational tool for industry. As such, it’s appropriate to ask: what lessons should industry draw? Although single enforcement actions do not always serve as reliable predictors of future actions, the letter offers a handful of key takeaways: Continue Reading
by Morag Peberdy and Christina Helden
When the legislative package the EU Unitary Patent was agreed last December, many speculated that the 1 January 2014 date for the implementation of the EU’s Unitary Patent was overly ambitious. The publication of the UK’s new Intellectual Property Bill (the “Bill”) on 10 May 2013 now gives real substance to this viewpoint. The provisions of the Bill indicate that the UK will not ratify the Agreement on a Unified Patent Court (the “Agreement”), one of the key legislative instruments required for the Unitary Patent’s implementation, until April or May 2015. Since the UK must ratify the Agreement before it can be implemented anywhere in Europe, it appears that the timetable has been derailed. Given that a number of tech companies, including Nokia and BAE Systems, advocated vocally against the Unitary Patent in its current form, this may be welcome news to some. Continue Reading
On Tuesday, the FCC announced procedures for noncommercial educational (“NCE”) broadcast stations to informally request waivers allowing the stations to raise relief funds for victims of Monday’s Oklahoma tornado. Although under FCC rules NCE stations are generally prohibited from engaging in fundraising activities for entities other than the stations themselves, the Commission has historically granted waivers to stations engaging in fundraising appeals to support relief efforts following significant disasters. For example, waivers were issued in response to Hurricane Katrina, the September 11, 2001 terrorist attacks, and the 2005 tsunami that hit Southeast Asia. NCE stations wishing to participate in fundraising efforts for victims of the Oklahoma tornado should follow the procedures described in the Commission’s public notice, linked above.
A joint statement released today by AT&T, the National Association of Broadcasters, and Verizon criticized the FCC for seeking comments on new proposals for reorganizing the spectrum currently used by television broadcasters, which the statement said would go against the “growing consensus” of the broadcast and wireless industries. Continue Reading
We are pleased to share that The Lawyer has recently shortlisted our London technology and media group for its TMT Team of the Year Award (2013). The publication further recognized the firm’s data protection and sports law work over the past year and our involvement in the 2012 London Olympic and Paralympic Games. We congratulate our colleagues in London and Brussels for a great year and look forward to many more.
A seller who authorizes a third-party telemarketer to market the seller’s goods or services may be held vicariously liable if the telemarketer violates the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission held in a May 9 declaratory ruling.
The FCC’s ruling interprets two subsections of the TCPA. The first subsection — 47 U.S.C. § 227(b) — includes several restrictions, including a general prohibition on making calls to landline or mobile telephones using a prerecorded message without the recipient’s prior express consent. Section 227(b)(3) allows individuals or companies to bring private lawsuits “based on a violation of this subsection” or the FCC’s implementing regulations.
A separate portion of the TCPA — 47 U.S.C. § 227(c) — authorizes the FCC to set up a national Do Not Call registry, which the FCC did in coordination with the Federal Trade Commission several years ago. Section 227(c)(5) authorizes private lawsuits by individuals who receive “more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the Do Not Call rules.
Last week’s declaratory ruling came in response to questions referred to the FCC by two federal courts in two separate TCPA-based lawsuits. Continue Reading