Karl Herchenroeder

Annotated state legal code isn’t copyright protected, the Supreme Court ruled 5-4 Monday in Georgia v. Public.Resource.org (18-1150). The state sued after Public.Resource.Org founder Carl Malamud posted official state code online and shared copies. The government edicts doctrine dictates officials can’t be the authors of “the works they create in the course of their official duties,” meaning they aren't copyright protected, Chief Justice John Roberts wrote, joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh. Clarence Thomas, Samuel Alito, Ruth Bader Ginsburg and Stephen Breyer dissented. The ruling will likely be “a shock” to the 22 states, two territories and Washington, D.C., that “rely on arrangements similar to Georgia’s to produce annotated codes,” Thomas wrote for dissenters. He claimed the decision extends the government edicts doctrine to a “new context,” when Congress should be deciding whether the Copyright Act “needs an upgrade.” Public Knowledge Policy Counsel Meredith Rose called the decision a “resounding victory for public access to the law,” saying copyright law shouldn’t block citizens’ fundamental rights. Center for Democracy & Technology interim co-CEO Lisa Hayes made similar remarks: “People must have the right to anonymously access the law, without needing to pay hundreds of dollars.” The Georgia Office of Legislative Counsel didn’t comment.

The threat of large fines in European and California privacy law focused the tech industry’s attention on compliance, FTC Chairman Joe Simons said Friday. His remarks to the American Bar Association came the day after U.S. District Court Judge Timothy Kelly approved the agency’s $5 billion privacy settlement with Facebook (see 1912050061).

COVID-19 demonstrates why flexibility is important for enforcers while also showing the benefits of contact tracing, FTC Commissioner Noah Phillips said Tuesday. An industry representative and privacy attorney in interviews debated recent contact tracing-related testimony to the Senate Commerce Committee.

With the Google antitrust probe ongoing, there are reasons to be concerned about a monopoly in advertising tech and its harm to competition, Texas Attorney General Ken Paxton (R) said Wednesday. Depriving rivals access to necessary data inputs is potentially anticompetitive, he said. “Competitors that hope to compete with Google in the online digital marketplace may not be able to do so if Google maintains a strategic bottleneck on access to critical user data,” he told the American Bar Association. He noted he wasn’t speaking directly about the ongoing Google probe (see 1909090060).

The Patent and Trademark Office’s decision to hear an inter partes review challenge isn’t reviewable on appeal, the Supreme Court ruled 7-2 Monday, siding with PTO. Justices Neil Gorsuch and Sonia Sotomayor dissented in Thryv v. Click-to-Call (18-916). Click-to-Call argued that courts should be able to review circumstances involving time limits for certain patent reviews. The case pertains to 35 U.S.C. §315(b). “Allowing §315(b) appeals would waste resources" spent on resolving patentability and would leave “bad patents enforceable,” Justice Ruth Bader Ginsburg wrote for the majority. Gorsuch said the decision “carries us another step down the road of ceding core judicial powers to agency officials and leaving the disposition of private rights and liberties to bureaucratic mercy.” The court let the agency override one of the America Invents Act’s “express limits on agency authority,” Click-to-Call attorney Daniel Geyser emailed. “It’s now a question for Congress to restore the judiciary’s traditional role in reviewing agency action and saying what the law is.”

The “past few weeks” have seen a “dramatic drop” in robocall reports FTC Consumer Protection Bureau Director Andrew Smith said Monday, citing COVID-19’s economic disruption as one potential reason. Many robocalls originate in India, and stay-at-home orders might be affecting the volume, he told the American Bar Association, noting the agency’s recent warning letters with the FCC against VoIP service providers (see 2004030052). When the FTC acts against VoIP providers, it sees measurable drops in robocall volume, which shows existing laws are helping, he said.

There’s wide consensus COVID-19 tracing apps should be voluntary, and developers should follow guidelines for collecting, retaining and deleting data. The American Civil Liberties Union (see 2004160047) and the European Commission released similar proposals Thursday for protecting data. Privacy attorneys we interviewed largely agreed.

Warning letters are the “most rapid and efficient means” for addressing bogus online claims about COVID-19-related products, FTC Chairman Joe Simons wrote, in documents we obtained through the Freedom of Information Act. Several members of Congress wrote in March asking how the agency is addressing the flood of deceptive and fraudulent activity related to the pandemic. Sen. Richard Blumenthal, D-Conn., asked about warning letters from the FTC and Food and Drug Administration.

The FTC created an agency-wide pandemic response team and a pandemic-specific plan to address evolving COVID-19 issues, according to documents we obtained through a Freedom of Information Act request. Chairman Joe Simons declined to share the plan's annex with Sen. Maria Cantwell, D-Wash., calling it “nonpublic” in a March 13 letter to the Senate Commerce Committee ranking member. Federal guidance on COVID-19 hasn’t "always kept up with the most pressing concerns expressed by FTC staff,” Simons wrote. He recommended a “timely and consolidated” source or site for federal agencies to plan for and “adapt to quickly changing circumstances.”

Some antitrust litigation is slowing down due to COVID-19, but antitrust enforcers are “very much” still investigating, FTC Commissioner Noah Phillips said Tuesday. He told a Politico webcast that merger and acquisitions filings have decreased. He said the agency is handling the pandemic “as best we can,” moving its Hart-Rodino-Scott M&A reviews to an online program (see 2003270059). The agency is “steady as she goes,” he said, noting a joint statement with DOJ warning of criminal liability for antitrust enforcement: “We’re very much still here.”