A New Litigation Tactic: Use of the Ipad

Image by Malabooboo

As one of the latest technological revolutions, the Ipad is making headway into the legal system. Initially, the Ipad demonstrated its use in the classroom, corporate presentations and even in the medical field. Recently, the Ipad has showcased its practical use during witness examination and closing argument.

Traditionally, evidence has been presented on blow-up foam boards illustrating charts, pictures, etc. As the technological boom in the mid to late nineties occurred, the practice to present evidence to jurors with the latest technology became customary. In 1996, inData introduced TrialDirector software, enabling trial teams to exhibit documents and video depositions on a projection screen. The capabilities of this technology have since expanded to aid in the trial preparation process.

Each aforementioned method has their downfalls. Foam boards can become overwhelming to jurors when a large quantity of evidence must be presented. TrialDirector may require an IT professional on-site in case complications arise. To avoid these issues, some attorneys are turning to the Ipad as their solution.

What makes the Ipad more practical than other trial presentation methods is the versatility that its applications and features offer. The Ipad offers three trial presentation applications: RLTC Evidence, Exhibit A and TrialPad. Through these applications, evidence is seamlessly presented onto a projection screen from the Ipad’s display screen. All of the Ipad’s features (such as the ability to zoom in and out with fingers scrolling on the screen) are available for use with these applications. For example, as the user zooms in on the Ipad, the same occurs on the projection screen. This enables the user to focus in on a particular point at any moment, providing an opportunity to effectively articulate argument coupled with support that is easily viewed on the projection screen by jurors. Similarly, words or phrases can be effortlessly highlighted, further drawing the jurors’ attention to necessary information as attorneys read documents aloud.

The Ipad is distinguished from its trial presentation competitors through the flexibility of the device itself. The Ipad has brought sophisticated computer technology to a portable, lightweight device. Attorneys can walk around the courtroom with the Ipad in hand, and with a 10-hour battery life the concern for the Ipad crashing is non-existent.

As Ipad technology and the presentation applications that it offers develop, its use in the courtroom will expand. Ipad has already released an updated version of the TrialPad presentation application, “TrialPad 2”, which among other features now allows for PDF’s, video files and split-screen displays. The Ipad offers an impressive, user-friendly and effective method to present evidence during witness examination and closing argument. The sky is the limit for the Ipad.

Sony’s Decree: Goliath to Fight One David at a Time

Image by FallingFifth Comics

The target of public disdain over its privacy failings just months ago, Sony is again finding itself in the crosshairs of consumer activists and its large user base. Recently, Sony amended its Terms of Service and User Agreement to exclude user participation in any class-action lawsuits against it or its entities unless users submitted opt-out declarations. Using the class-action waiver to push users into individualized arbitration, Sony should escape the majority of future consumer suits derived from its Playstation, Music Unlimited, and Video Unlimited (“Playstation Network”) product lines, significantly reducing its legal exposure in one fell swoop.

Sony finds itself on firm legal footing, and its decision to amend its Terms of Service cannot be said to have been unexpected. In April, 2010, The Supreme Court upheld a contractual clause precluding class action attack in AT&T Mobility v. Concepcion. The court went on to reject nonconsensual class arbitration, finding that it defeated the purposes of arbitration and federal law. Following its decision, large companies were expected to begin implementing similar class-action-defeating clauses into their own contracts.

Sony’s new user agreement requires individuals with disputes to utilize individualized arbitration. Arbitration clauses, of course, are matters of contract and are enforced according to their terms. Having agreed to the new terms, users of the affected product lines are very much bound by the agreement. Defeating the arbitration terms would require a showing of some traditional contract defense, including duress and unconscionability, and seem unlikely given the factual circumstances.

Also interesting is the amendment’s timing. What is clear is that Sony’s decision was decidedly future-oriented—it will not escape the class action suits that were filed in April, in response to its large-scale security breaches. Given Sony’s demonstrated exposure to network attack, however, one would be justified in questioning the urgency and nature of the change. Rather than fixing its extensive network flaws, Sony appears to have undertaken a rather artful shortcut—shielding itself from punishment should such problems occur again.

Facebook’s Open Graph API - Be Afraid or Be Very Afraid?

Illustration by Hank Grebe

Mark Zuckerberg unveiled the next generation of Facebook’s Open Graph API at the F8 conference in San Francisco on Thursday, September 22nd. The updated protocol allows third party applications to more easily utilize Facebook users’ data. The goal is to encourage users to share increasingly dynamic content more frequently. A simple example of the API in action is the inclusion of a Like button on a webpage – when a visitor clicks the Like button that information is recorded in that user’s Facebook feed.

The new version of Open Graph “allows apps to model user activities based on actions and objects.” Eventually, the old-fashioned (ha!) Like button will be supplemented with a number of other verb choices. Thus, you can receive news by emulating what your friends are reading on Yahoo! News, be exposed to new music by examining what your friends are listening to on Spotify, or challenge yourself by running the same route as your friend that uses a Nike Running application.

As happens pretty much any time Facebook changes their site in a way that implicates privacy concerns, a backlash is building. Critics’ primary concern: the availability of data to application developers for more than 24 hours, strikes me as fairly harmless considering that many applications previously circumvented this restriction anyway. Other concerns focus on the fact that Facebook has a variety of new partners that automatically fall under the ‘Instant Personalization’ category and automatically ‘personalize the experience’ for you. In other words, new users have to opt out of in order to avoid sharing information that they might not otherwise want to share by using these applications. However, all of the Open Graph features can be easily disabled.

So are there any laws in the United States that will govern Facebook’s conduct when they roll out new functionality with respect to these privacy concerns? Well, not really; not any comprehensive ones, at least. The United States has taken a very pointed approach to regulating privacy issues, addressing privacy only certain specific instances such as HIPAA (Health Information), Gramm-Leach-Bliley (Financial Information), or FERPA (Educational Records). This is to be contrasted with the European (most notably French) approach to privacy regulation where privacy is implicit in the constitution. Social networking sights such as Facebook and Google have found themselves more frequently arguing privacy issues in European states. So while we are largely at the mercy of the social networking industry giants, we can take some comfort stateside in the fact that many of these concerns are mitigated by the market forces imposed on the companies because they do not want to alienate the user base.

One last point that all these Facebook shenanigans got me thinking about – are the developers of these applications adequately protecting their copyrights? Facebook encourages independent third-party development of integrated applications. For that matter, what about users that are, in addition to just going around Liking things, generating a wide variety of copyrightable material in the form of photos, blog posts, and music? If they’re not – they will be, as new tools are popping up to facilitate this protection. The website Myows provides free tools to manage your copyrightable works and to build a case for infringement. In their own words, “Myows offers a professional one-stop copyright management solution from registration through to issuing take-down notices.” Very cool. The website DepotCode is an alternate site that provides similar tools for managing and proving copyrights in source code.

President Obama Signs First Major Change to Patent Law Since 1952

Photo from IPWatchdog - The Bill is Signed: President Obama Signs America Invents Act  

On September 16, 2011, President Obama signed the Leahy-Smith America Invents Act at Thomas Jefferson High School for Science and Technology in Virginia. One of the significant changes resulting from the America Invents Act is a move from a “first to invent” to a “first to file” patent priority system. Until the recent enactment, the United States was one of the only countries using the “first to invent” system.

To gain the right to a patent under the “first to invent” system, an inventor had to conceptualize the invention and reduce the invention to practice. An inventor could not file a patent application based only on the idea of an invention. Rather, the inventor who put the idea to practice first had the right to the patent. A criticism of the “first to invent” system is that it led to extensive litigation to understand who actually reduced the invention to practice first. On the other hand, the “first to file” system gives the right to a patent to the first person who files the application. An inventor does not need to reduce the invention to practice to be able to file the patent application.

It is not surprising that the Act has generated considerable discussion since it is one of the most significant changes to Patent Law since 1952. Proponents of the bill believe the change from a “first to invent” to “first to file” system will decrease the confusion over who has the right to the patent, and will promote innovation and job creation. The change in the system will allow a clear understanding of who has the right to the patent, which in turn should allow inventors to develop products at a faster pace and decrease the amount of litigation over who owns the right to a patent. Opponents of the bill believe bigger companies will benefit, while smaller businesses and independent inventors will suffer because of a larger company’s ability to file patent applications faster. Opponents also worry that the transition to a “first to file” system will create an increase in the number of back-logged patent applications.

Despite the criticism, a change in the patent law was an inevitable and necessary step. There are currently 1.3 million patent applications waiting for determination and numerous cases of costly litigation to confirm patent ownership. The “first to file” system should provide clarity to patent ownership rights, but it is unknown whether this change will impact the speed in which patents are granted. The “first to file” system will not go into effect for another 18 months, so we will have to take a wait and see approach before concluding that the enactment actually helped reduce the current problems with the patent process.

For the full bill text, see America Invents Act of 2011.

Grudge Match: Amazon versus the Bear Flag Republic

Photo Courtesy of Nils Liehberr on Flickr

In an attempt to collect sales taxes from Internet retailers, California introduced the “Amazon Tax” in June. California’s new law will require Internet retailers to collect sales tax if they use an affiliate program within the state to solicit business and their cumulative sales during the preceding twelve month period are greater than $500,000.

In a move consistent with its battle over sales taxes with New York, Amazon immediately cut ties with all of its California affiliates and began to promote a ballot referendum to block the law. In an open letter to their affiliates Amazon explained, “We oppose this bill because it is unconstitutional and counterproductive. It is supported by big-box retailers, most of which are based outside California, that seek to harm the affiliate advertising programs of their competitors. Similar legislation in other states has led to job and income losses, and little, if any, new tax revenue.”

Governor Jerry Brown rejected an offer from Amazon to delay sales tax collection until 2014 in exchange for new Amazon warehouses being located in California, perhaps in response to the wide speculation that without an avenue to avoid sales tax collection, Amazon is likely to build the warehouses simply to serve its California customers better. He did, however, accept an offer from Amazon to drop the ballot referendum initiative in exchange for a grace period. The new law takes effect immediately, but does not require retailers to collect taxes until Sept. 15, 2012.

Amazon has since banded together with independent storeowners and big-box retailers, including Target and Wal-Mart, to lobby Congress for a federal law regulating sales tax collection by Internet retailers. Per the Amazon-California agreement, any federal law will supersede the California law.

Seven States Join the U.S. Justice Department in Federal Court, Seeking to Block the Merger of AT & T and T-Mobile

AT & T proposed its $39 billion plan to buy T-Mobile USA. The deal will give AT & T a 40.6% market share in the cell phone industry, and will concentrate 80% of U.S. wireless customers in two companies – AT & T and Verizon wireless, thus creating a duopoly in the mobile service market. Not surprisingly, the acquisition is challenged by the Department of Justice, jointed by seven states, including New York, Massachusetts and California, under the Federal Antitrust Law.

Section 7 of the Clayton Act, an anti-merger statute, prohibits mergers that may substantially stifle competition “in any line of commerce, in any section of the country.” The Act especially disfavors horizontal mergers. A horizontal merger is a merger between two direct competitors who compete with each other in the same line of business and in the same geographic market. A horizontal merger will have adverse anti-competitive effects because it will eliminate competition between two merging parties, and will likely increase market shares and assets of the merged enterprise. The merger will be illegal per se, unless the merger will not create or tend to create a monopoly. Market concentration and market shares of two merging companies are the determinative factors in a horizontal mergers analysis. High market concentration and dominant market shares will establish a prima facie violation of the Act.

The merger between AT & T and T-Mobile is a horizontal acquisition because the two companies compete directly with each other in the cell phone market, and both provide a national-wide service, with market shares of 28.5% and 12.1%, respectively. The merger will allow AT & T to dominate the market, enable it to set prices and instill a fear in the smaller competitors. Consequently, it will lessen the competition and create a prima facie case that the merger is unlawful. In addition, the merger will create an industry where the top two companies handling 80% of the service. The high concentration may encourage AT & T and Verizon to seek a deal for their mutual advantage at the cost of consumers, and discourage new enterprises from entering into the wireless service business. Before the merger, the cell phone market has been already concentrated, with Verizon and AT & T claiming over 50% of U.S. wireless consumers. In an already highly concentrated market, the courts will condemn any merger that increases concentration, even if that increase is minimal. The merger will be enjoined unless AT & T can provide clear evidence that the merger will not adversely affect the competition in the cell phone industry.

AT & T can argue that the extremely competitive wireless market will prevent the merger from substantially stifling the competition. It can point out that, despite the wireless service industry in the United State being concentrated in Verizon and AT & T, the competition between Verizon and AT & T is vigorous and it is impossible for them to reach any mutual advantage agreement. At & T can further argue that the merger will only put AT & T at a more competitive position. As a result, the merger will encourage the competition.

This pro-competitive argument will not likely survive the scrutiny. A pro-competitive effect on a horizontal merger will justify the merger only when two merging firms were weak before the merger, and will not result in a dominant market. The evidence shows that: both AT & T and T-Mobile are strong and aggressive competitors, both have a significant amount of market shares in the wireless industry, neither of them are failing, and the merger will produce a dominant market as AT & T will be the No. 1 provider of mobile services. The merger will not only effectively eliminate a competitor, but will likely force a higher price on T-Mobile customers with an inferior service, the effects of which the Act was enacted to prevent.

Has the Sun Set on U.S. Green Tech?

Photograph courtesy of Living Off Grid on Flickr

Solar panel maker Solyndra, LLC is turning off its lights. After receiving a $535 million loan guarantee from the federal government and raising over $1 billion from private sector investors, Solyndra filed for Chapter 11 bankruptcy. The company is looking into a possible sale of its business or licensing out its technology. Solyndra developed a unique thin-film photovoltaic technology that the company claimed to have the lowest system installation costs on a per watt basis for the commercial roof top market. Earlier this year, President Obama visited a California Solyndra facility to publicize the U.S. government’s investment in green technologies and highlight its incentive programs aimed at promoting clean tech development in the country. The shut down creates a two-fold hit; it exposes an embarrassing vulnerability for Obama administration policy and raises questions about the rationale for U.S. government investment in green technologies.

On the political front, Republican lawmakers are capitalizing on the bankruptcy to highlight a flaw in the Obama administration’s stimulus plans. At a House Energy and Commerce Committee (HECC) panel hearing on September 14, Republicans released a report suggesting that administration officials rushed Solyndra’s loan award and failed to note obvious risks in supporting the company. In response, Democrats argued that Republicans are using the Solyndra bankruptcy to garner criticism for other clean energy projects because of a disbelief in climate change. Congressman Waxman, top Democrat on the HECC noted, “The majority of Republicans on this committee deny that climate change is real. If you are a science denier, there’s no reason for government to invest in clean energy.”

Abroad, foreign governments invest heavily in renewable energy technologies within their own countries and provide incentives for the consumption of the technologies. China leads the way and invests billions of dollars in green tech. Ironically, China’s investment is one of the reasons for Solyndra’s fail. The American company was not able to provide a cost competitive product with those developed in China.

From an economic perspective, renewable energy technology does not follow the traditional supply/demand model. Significant front-end investments are needed for renewable technologies to reduce sufficient costs to allow for competition with coal, natural gas, and nuclear energy. Asian and European governments led the way in these investments and as a result, those countries have a head start in tech development. Not only are Europe and Asian in control of the most cost competitive solar technologies, but they are bringing them to the U.S.

Early policy incentives for the installation of renewable technology in Europe, particularly in Germany and Italy, led to an increase in demand that European companies met with supply, eventually driving down the cost of the products. Technology companies rapidly grew to meet the demand. In response, policy makers relaxed incentives and took a back seat, thereby allowing the market to naturally play out. The lack of incentives resulted in a leveling off of demand, while supply continued to grow as companies worked toward creating better and more cost effective products. Currently, demand is just about tapped out in Europe. Economists predict that European companies will now bring their product to the U.S. market, making it even more difficult for emerging American solar technologies.

Where does that leave the U.S.? Demand for alternative energy, including solar, will rise as traditional energy supplies deplete. The U.S. is one of the world’s top energy consumers, and therefore must play a role in the development of green technologies for security and economic reasons. A mix of policy incentives and public financial backing is needed to ensure the U.S.’s place in the green tech arena. However, the Solyndra bankruptcy is illustrative of the risks of friendly green tech policy. It is probable that the bankruptcy will dissuade lawmakers on both sides of the aisle from supporting future green tech incentives. Lawmakers must search for a swift and creative solution for this bind before we are all left in the dark.