LegalMatch: Intellectual Property

Update on iPhone4G Case: Search Warrant Issues Steal the iPhone's Spotlight

I’m sure you’ve heard recent reports about a man who found and sold a lost “iPhone4G” prototype to Gizmodo for $5,000.  But you probably didn’t expect it to explode into a full-blown criminal investigation that questions the search and seizure protections of online journalists.  What began as a media sensation regarding the iPhone transaction with Gizmodo has now taken a wild turn into left field with the recent search of Gizmodo editor Jason Chen’s home on Friday night, April 23.        

On that night, agents with the Rapid Enforcement Allied Computer Team (REACT) entered Chen’s home and seized four computers and two internet servers, apparently on request by Apple regarding their lost iPhone prototype.  The police agents acted on authority of a warrant issued by San Mateo, California authorities. 

The warrant has essentially stolen the spotlight of the iPhone4G which initially sparked the investigation, as Gizmodo and other groups question the legitimacy of the warrant.  Gizmodo has posted a copy of the search warrant and issued a response from their attorney on their website.

Basically, Gizmodo argues that the warrant violates both federal and California search law, which protects journalists such as Jason Chen to a limited extent from searches of their journalist equipment and information.  First, they argue that the California Penal Code and Evidence Code contain provisions known as the “reporter’s shield provisions” and the “newsroom search acts”, which prohibit the seizure of any unpublished notes, photographs, data, etc., that was prepared for communication to the public.

Second, the Privacy Protection Act of 1980 (“PPA”) will also be instrumental in the legal analysis of the search warrant that the REACT Team relied upon.  The PPA is a federal provision similar to the California reporter shield provision.  It grants broad protection to reporters from searches and seizures by the government aimed at obtaining “documentary” and “work product” material which journalists have prepared for public consumption. 

If the items seized at Jason Chen’s home (i.e., his “newsroom”) are deemed to fall into these categories, then any information obtained from them may not be used as evidence in court.  Further, attorneys for Gizmodo argue that since Jason Chen is a reporter, the court followed the wrong procedures in obtaining the evidence.  Rather than issue a search warrant, the court should have served a subpoena, in which case Gizmodo would have the chance to respond to the subpoena either by denial or compliance.

The Electronic Frontier Foundation (EFF) has issued an article which argues that the search warrant failed to comply with both California law and the PPA at because it is so overbroad.   They argue that the warrant did not specify with sufficient detail the items to be searched. 

Warrant specificity is often a major issue in cases involving the seizure of contents stored on a computer.  When courts first began using electronic data as evidence in court, early cases often ended up with lawyers being reprimanded for seeking warrants which were too broad (i.e., they requested the entire database rather than specific files).  This might be the case here, since the police did not mention specific files and seized the computers only because they “are capable of containing” relevant information.   In response to the recent search, Gizmodo and its parent company Gawker Media may be filing a lawsuit challenging the search. 

But I think it’s possible that Gizmodo may hit a bump in the road when they challenge the warrant, namely because the PPA contains exceptions to the protections granted to reporters.  One of these exceptions is if the journalist being searched is implicated in the commission of a crime.  So, the reporter shield and other protections might not apply if Gizmodo employees are held to be targets of a criminal investigation (although they’ve withheld comments on Chen’s culpability).  And, in California, it is illegal to keep lost property and use or sell it without taking “reasonable measures” to return it to its owner.        

In other recent updates on the case, courts have recently denied media groups access to reports regarding the search warrant in question, claiming that further investigations are necessary.  Also, Jason Chen has not been charged with any crimes yet, and the items seized at his house are not being searched any further until conclusions are reached regarding the applicability of the reporter shield laws. 

I think this case will be monumental for online news media.  It will help definitively conclude whether online journalists and their hi-tech equipment will be granted the same legal protection as their standard printed counterparts.  All of this just goes to show how legal cases sometimes tend to be useful for issues other than what they were originally litigated for. 

By: Jay Rivera

 

Chef Develops a Taste for Litigation.

A recent story from the New York Times (“Chef Sues Over Intellectual Property”), illustrates just how far intellectual property law is beginning to extend.

While we might think of intellectual property as being largely tied to pirated software downloads and academic writing (and a widespread campaign against plagiarism), property laws actually move through spheres that appear to have nothing to do with them.

And apparently, the restaurant business is the latest hotbed for intellectual property litigation.

Rebecca Charles, founder of the New-York-based “Pearl Oyster Bar,” claims that Ed McFarland infringed on her intellectual property when he “copied” her “white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and” (and this was the coup de grâce) “the dressing on the Caesar salad.” McFarland was her former sous-chef, and had served under her guidance for six years.

Even with all of these facts in place, is it really feasible to defend these details under intellectual property law?

“In recent years, a handful of chefs and restaurateurs have invoked intellectual property concepts, including trademarks, patents and trade dress – the distinctive look and feel of a business – to defend their restaurants, their techniques and even their recipes,” reads the New York Times article, “but most have stopped short of a courtroom.”

 

Let’s take a step back and examine these claims.

How do trademarks, patents, and trade dress interface with the small restaurant business? Aren’t these normally reserved for more “serious” corporations?

Well, with small businesses, trade dress law is as good a place as any to start.

Trade dress, unlike trademarks, is a distinctive, nonfunctional feature that distinguishes a merchant’s or manufacturer’s goods or services from those of another. The bovine-inspired packaging that marks Gateway’s products and stores?  The maroon-and-gold color scheme that makes McDonald’s immediately recognizable as McDonald’s? Both of these are excellent examples of a defensible “trade dress.” But do a marble bar and gray paint really qualify as “trade dress” items?

It’s difficult to say, but it’s also unlikely. While the two rival restaurants provide similar service (right down to the Caesar salad, apparently), Charles would be pressed to build a case on some minor décor. Unless there is a likelihood of confusion between the two eateries, the trade dress declaration may not stand.

 

The Caesar dressing, on the other hand, may yet bear some legal fruit.

If Charles can prove that she had an implied confidential relationship with her sous-chef (and prove that he broke that established confidentiality), she could sue for damages even without a patent. And her words certainly seem to support that kind of relationship: “When I taught him, I said, ‘You will never make this anywhere else.’”

What’s more, if Charles can peg her Caesar recipe as a bona-fide trade secret (something that has independent economic value as a result of its secrecy), she may be able to enlist a trade secret lawyer and burn him for filching her (legally) secret recipes.

So much for a “simple” meal!

by Kate Beall