DOJ formally sought a Supreme Court hearing on its fight against Microsoft, which prevailed last year in refusing to comply with a government search warrant to hand over a customer's emails stored in a server in Ireland. In January, the 2nd U.S. Circuit of Appeals denied Justice an en banc hearing (see 1701240057) to review a three-judge panel's decision that sided with Microsoft. DOJ filed a writ of certiorari Friday, saying the 2nd Circuit panel "seriously misinterpreted the Stored Communications Act. ... The panel reached that unprecedented holding by reasoning that such a disclosure would be an extraterritorial application of the Act -- even though the warrant requires disclosure in the United States of information that the provider can access domestically with the click of a computer mouse." Microsoft Chief Legal Officer Brad Smith blogged Friday that "it seems backward to keep arguing in court when there is positive momentum in Congress toward better law for everyone." He said DOJ is putting companies "in impossible conflict-of-law situations," and harming Americans' security, jobs and personal rights. Recent congressional hearings focused on DOJ's push for bilateral agreements with the U.K. and potentially other countries to share criminal information in investigations about individuals, which U.S. providers largely have supported (see 1706150061 and 1705240040).

Viacom likely didn't intend to trade off the goodwill of the creators of the Guppie Kid clothing line, but the broadcaster's Bubble Guppies children's TV series and branded clothing items are a case of reverse confusion about the source of Guppie Kids, plaintiff appellants Debbie and Dean Rohn said in a brief (in Pacer) Wednesday in the 6th U.S. Circuit Court of Appeals. The Guppie Kid plaintiffs are challenging a January summary judgment in Viacom's favor dismissing their 2014 lawsuit claiming trademark infringement, false designation of origin and a violation of Michigan unfair competition law. They said the lower court erred when it applied the same legal test of a forward confusion -- an infringer's use of a trademark sowing confusion about the source of a defendant's goods -- to a claim of reverse confusion, when the 6th Circuit has been clear there are different standards for the two. The plaintiffs also said the lower court erred in agreeing with Viacom's argument that Bubble Guppies and Guppie Kid gear were related only in a broad industry, since they both sell hats, jackets, T-shirts and the like. And they said they provided evidence of actual confusion instead of just a likelihood of confusion. "The plaintiffs’ claims are without legal merit," Viacom told us Thursday. "We are confident that the Court of Appeals will affirm the decision of the District Court in Viacom’s favor.”

The International Trade Commission is considering issuing a limited exclusion order and cease and desist orders banning import and sale of digital video receivers from Comcast, Arris and Technicolor, the ITC said in a notice. An administrative law judge recommended the Tariff Act Section 337 import ban, which Rovi requested in April 2016 based on a complaint that Comcast uses set-top boxes and DVRs that infringe Rovi’s patents, but refuses to license them (see 1605240026). The ITC is accepting until July 11 comments on public interest issues raised by the recommended orders.

The Supreme Court is being urged to review a 2016 9th U.S. Circuit Court of Appeals decision that the Electronic Frontier Foundation said in a Monday news release could transform the Computer Fraud and Abuse Act into "a mechanism for criminalizing password sharing and policing Internet use." In an amicus brief filed Monday, EFF said CFAA originally was intended to criminalize hacking to access or alter data, but it doesn't define what "without authorization" means. The organization cited the appeals court ruling last year against David Nosal, an ex-employee of executive search firm Korn Ferry, which revoked his computer access credentials after he left to start his own firm (see 1609130012 and 1610110003). A firm employee gave to colleagues who were defecting with Nosal a password that enabled them to download information from Korn Ferry's database on his behalf. The 9th Circuit panel found Nosal violated the CFAA. EFF Staff Attorney Jamie Williams said in the release the "ruling threatens to turn millions of ordinary computer users into criminals,” whether it's logging into a friend's social media account or spouse's bank account "with their permission but in violation of a corporate prohibition on password sharing," possibly resulting in a prosecution. She said the 30-year-old anti-hacking statute needs to be updated and the Supreme Court can give "'authorization' an appropriately narrow definition, specifically clarifying that password sharing is not -- and was never intended to be -- a crime."

The Electronic Frontier Foundation filed a Freedom of Information Act lawsuit against DOJ to get records about any FBI use of Best Buy employees and other U.S. computer repair facility informants to do warrantless searches of customers’ computers. The FBI denied EFF's FOIA request for such information, saying bureau policy is not to discuss existence or lack thereof of records about something of investigatory interest, the group said Wednesday in a complaint for injunctive relief to U.S. District Court for the District of Columbia (case 1:17-cv-01039). But the group said it didn't seek documents about Best Buy itself, as the FBI apparently believed. "The records request aims to shed light on how the FBI co-opts Best Buy repair technicians in criminal investigations, and whether the computer searches they conducted were in effect government searches," said an EFF news release. "Court records in a child pornography case against a California man who sent his computer to Best Buy for repair showed a long, close relationship between company technicians and the FBI, according to media reports." Best Buy, where Geek Squad staff apparently cooperated with the government, and DOJ didn't comment Thursday.

U.S. District Judge Josephine Staton's denial of motions to compel arbitration in litigation alleging fraudulent direct broadcast satellite subscription terms was appealed to the 9th U.S. Circuit Court of Appeals by defendants DirecTV and Lonstein Law Office (see here and here, in Pacer) this week. Doneyda Perez, a California beauty shop owner, alleged violations of the California Unfair Competition Law and Racketeer Influenced and Corrupt Organizations Act by DirecTV selling small businesses satellite pay-TV service under residential accounts and then threatening litigation, with Lonstein representing the company. Staton, of Santa Ana, California, said (in Pacer) May 1 DirecTV "short-circuited" the traditional procedure of providing a customer agreement.

SiriusXM can't recover damages caused by its own wrongdoing when it told a telephone marketer there was an existing business relationship with someone now suing SiriusXM for marketing calls, third-party defendant Sykes Enterprises said in an answer (in Pacer) Wednesday. It replied to the Sirius' third-party complaint filed earlier last month. Kevin Pine, of Carlsbad, California, is one of the named plaintiffs in a Telephone Consumer Protection Act complaint filed in February against SiriusXM. The company complaint May 1 said marketing vendors contractually promised to indemnify and hold it harmless from various claims including TCPA claims. Sykes said if it improperly called Pine, it was at SiriusXM's direction and it's not obligated to indemnify SiriusXM. Other third-party defendants include DialAmerica Marketing, ServiCom and Results Cos. SiriusXM outside counsel didn't comment Thursday.

Lawyers for songwriter Sammy Cahn and four music publishers have until June 26 to retrieve six sealed documents filed in the July 1990 complaint (case 1:90-cv-04537) they brought to stop Sony from importing and selling digital audio tape recorders in the U.S. Clerks at the U.S. District Court in Manhattan will destroy the documents, which remain sealed, if they’re not picked up by the deadline, said court notices (in Pacer) posted May 25. Cahn and his fellow plaintiffs -- JAC Music, Fort Knox Music, Trio Music and Peer International -- with support from the National Music Publishers’ Association and the Songwriters Guild of America, sued Sony for contributory infringement on grounds that the company's digital audio tape recorders produced perfect copies that would inhibit future sales of commercial sound recordings. The complaint was terminated a year later after the consumer electronics industry reached the compromise legislative deal with the recording industry, music publishers and songwriters that became the framework for the Audio Home Recording Act. President George H.W. Bush signed the AHRA into law in 1992. Cahn died in 1993.

Amazon started refunding more than $70 million to consumers who were illegally charged for in-app purchases made by children who didn't have parents’ informed consent, the FTC announced Tuesday. The commission and the company announced in early April they agreed to end litigation (see 1704040052) after a federal judge last year granted a summary judgment to the FTC (see 1604270013). The agency said eligible consumers who incurred such unauthorized charges between November 2011 and May 2016 should have received an email from Amazon, but other consumers can go to the company's website or log in to their account. Deadline for submitting refund requests is May 28, 2018.

Dish Network knew telemarketer Satellite Systems Network committed Telephone Consumer Protection Act violations for years but didn't care if SSN complied, said U.S. District Judge Catherine Eagles of Greensboro, North Carolina, in an order (in Pacer) Monday trebling previously awarded jury damages of $400 per call in the TCPA class-action complaint against Dish. Eagles said Dish arguments it told SSN to scrub its phone lists of Do Not Call Registry numbers "were empty words" since it did nothing when it knew SSN hadn't removed numbers. The court said treble damages -- $1,200 per call for more than 50,000 telemarketing calls to numbers on the National Do Not Call Registry -- were appropriate "because of the need to deter Dish from future violations." Dish in a statement said it "respectfully disagree[s]" with the opinion and is evaluating legal options. It said it has "long taken its compliance with telemarketing laws seriously, has and will continue to maintain rigorous telemarketing compliance policies and procedures, and has topped multiple independent customer service surveys along the way." Dish and the class-action plaintiffs have been at odds over disbursement of the award (see 1704270008), with a hearing scheduled for June 7 on post-trial procedures.