2H 2016 Quick Links, Part 5 (Patents, Other IP, Employment, CFAA)


* Tim Holbrook on how slow FDA procedures contribute to de facto monopolies for off-patent drugs/devices

* Washington Post: Patent lawsuits swell and watchdog says the government is to blame

* Washington Post: Patent office workers bilked the government of millions by playing hooky, watchdog finds

Other IP

* World Chess US, Inc. v. Chessgames Services LLC, 2016 WL 7190075 (SDNY Nov. 22, 2016). Denying an injunction based on hot news against the republication of chess moves.

* Gravano v Take-Two Interactive Software, Inc., 2016 NY Slip Op 05942 (N.Y. App. Div. Sept. 1, 2016) (cites omitted):

Both Gravano’s and Lohan’s respective causes of action under Civil Rights Law § 51 “must fail because defendants did not use [plaintiffs’] name, portrait, or picture'”. Despite Gravano’s contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her. As to Lohan’s claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan.

Even if we accept plaintiffs’ contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs’ claims should be dismissed because this video game does not fall under the statutory definitions of “advertising” or “trade”. This video game’s unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game, render it a work of fiction and satire.

Further, Lohan’s claim that her image was used in advertising materials for the video game should also be dismissed. The images are not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her.


* White House: “State Call to Action on Non-Compete Agreement”

* NY Times: To Compete Better, States Are Trying to Curb Noncompete Pacts

* Quicken Loans, Inc. v. National Labor Relations Board, 2016 WL 4056091 (D.C. Cir. July 29, 2016). Employers may not impose non-disparagement clauses on employees.

* DOJ: “Antitrust Guidance for Human Resource Professionals”: “Agreements among employers not to recruit certain employees or not to compete on terms of compensation are illegal.”

* Pew Research: “How scholars, companies and workers are using Mechanical Turk, a ‘gig economy’ platform, for tasks computers can’t handle”

* Bloomberg: It’s Tough Being Over 40 in Silicon Valley

Computer Fraud & Abuse Act

* Jonathan Mayer, Cybercrime Litigation, 164 U. Pa. L. Rev. 1453 (May 2016). From the abstract:

This Article presents the first comprehensive empirical analysis of litigation under the federal cybercrime statute, the Computer Fraud and Abuse Act. Drawing on a new dataset compiled from hundreds of civil and criminal pleadings, the Article addresses fundamental and unanswered questions about the on-the-ground function of cybercrime law.

The data reflect that there has been a nationwide cybercrime litigation explosion, and most cases look nothing like the hacker archetype. The overwhelming majority of *1454 civil claims arise from mundane business and employment disputes, not sophisticated computer intrusions. And while federal prosecutors do sometimes charge serious offenders, the plurality fact pattern in criminal litigation involves a low-level government employee mishandling data. What’s more, cybercrime law appears to be redundant in civil cases, and there is little reason to believe that it deters the most concerning hackers.

The Article closes with normative recommendations. In the near term, I suggest that (1) Congress and state legislatures should repeal civil cybercrime liability, (2) prosecutors should establish enforcement policies that prioritize significant misconduct, and (3) courts should narrowly construe cybercrime statutes to better effectuate legislative intent. As a structural matter, I challenge the net benefit of cybercrime law. An expansive computer abuse construct is a poor fit for modern technology, which is increasingly pervasive and increasingly shared. Policy should emphasize alternative means of protecting computer security and privacy.

Basically the article I aspired to write but done better than I would have done….

Related: New Yorker: How An Old Hacking law Hampers the Fight Against Online Discrimination.

* USG Insurance Services, Inc. v. Bacon, 2016 WL 6901332 (W.D. Pa. Nov. 22, 2016):

federal courts in this Circuit have examined the meanings of “without authorization” and “exceed[ing] authorized access” in a plethora of cases similar to this one; in those cases, those courts have consistently held that liability under Section (a)(4) of the CFAA does not lie where, as here, an employee has permission to view certain information in his employer’s computer system—even if he uses that information for the benefit of a competing company….Consistent with the weight of authority in this Circuit and from federal courts across the country, the Court concludes that—because USG has not pled that Bacon accessed or altered any information on USG’s computer systems which he was not allowed to access or alter at the time—USG has failed to state a plausible claim for relief against Bacon under Section (a)(4) of the CFAA.