It Doesn't Matter Who Does the Lobbying: Trade Agreements Aren't the Place for Internet Regulations Print
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Friday, 19 December 2014 07:22

The Associated Whistleblowing Press released portions of draft text proposed by the United States for the Trade in Services Agreement (TISA) this week, revealing some alarming provisions that indicate how tech companies have been involved in influencing a secret international deal. The language of the leaked treaty shows provisions that could impact privacy online, and net neutrality—with no public consultation or opportunities for open debate. What is dispiriting is some of the language of these Internet regulations almost certainly comes from tech companies, who have joined the many other lobbyists fighting for their special interests behind closed doors.

TISA is yet another so-called trade deal which began negotiations in 2013 and is being hammered out in back room meetings between 23 countries around the world, including the United States, the European Union, Canada, Japan, South Korea, Colombia, Mexico, and Peru. According to the leaked documents, countries involved in the negotiations have agreed to keep the text of this agreement classified for five years after it enters into force. On top of the five-year-embargo, neither the negotiation rounds nor the topics discussed in this agreement have ever been made public.

Banning Limits on the "Free Flow of Information"

TISA contains a provision that bans countries from regulating how and when any given company can move, access, and process the data for its services:

Article X.4: Movement of Information No Party may prevent a service supplier of another Party from transferring, accessing, processing or storing information, including personal information, within or outside the Party's territory, where such activity is carried out in connection with the conduct of the service supplier's business.

This particular language seems to be aimed at subverting data localization laws. In some cases, this could be a good thing. Governments that might want to enact national censorship filters could, theoretically, be challenged under such provisions. The "free flow of information" is the term government officials and certain tech giants use to refer to these sorts of rules, and they often place emphasis on their potential to protect free expression and access to information on the Internet.

But that benefit could come at the cost of consumer protections for personal data. For instance, TISA could directly threaten EU's privacy regulations, which require companies to store EU citizens' personal data locally to ensure that those companies follow the EU's strict legal requirements for handling citizens' data. Similar laws exist in Colombia and Mexico, and in Paraguay, which is also a party to TISA, civil society groups are now campaigning for such laws.

The companies with the most to lose from stronger privacy regulation are those multi-nationals whose revenue revolves around the trading and sharing of personal data: in other words, tech companies like Facebook, Google, and Internet advertising networks. Language like this is intended to make their lives easier: but they also have a profound effect on how Internet users rights are protected.

So in short, this "free flow of information" debate is complicated, and is exactly why policies like these should not be written in secret. Negotiators should be working to reconcile this tension between powerful private and public actors who may have conflicting stances on major human rights issues such as privacy and free expression. That in turn, will require open public participation from a variety of stakeholders. By contrast, TISA's language reflects the concerns of the Internet industry, and not necessarily the interests of Internet users as a whole.

A Possible Threat to International Net Neutrality Standards

The provisions on "Open Networks, Network Access and Use" may look positive at first, but it contains ominously vague language that threatens net neutrality:

Article X.5: Open Networks, Network Access and Use Each Party recognizes that consumers in its territory, subject to applicable laws, and regulations, should be able to:
(a) access and use services and applications of their choice available on the Internet, subject to
reasonable network management;

What is "reasonable network management"? We can't know because it's not defined anywhere else in this leaked text. Leaving such language undefined invites opponents of net neutrality to expand it as a justification for practices that undermine the open Internet. It's crucial that the scope of such terms are appropriately defined so it cannot be used to authorize application discrimination. In a secret trade agreement, such details will be hammered out by opposing corporate lobbyists, with little consideration of the broader public interest.

Tech Policy Should Not Be Decided in Secret. Ever.

For over a decade, EFF and other digital rights organizations have denounced content industry players for seeking to impose draconian copyright policies via secret international deals, like ACTA and the TPP. But they are not the only industries lobbying for their interests in these deals. Increasingly, Internet companies are joining this secret horse-trading.

No matter which industries are involved and no matter how well-meaning or informed the parties might be about the issue at hand, Internet policy and other digital regulations can never be entrusted to a few entrenched interests. These policies have implications for human rights, and we can't let special interests decide them for us in secret.

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As Hollywood Funds a SOPA Revival Through State Officials, Google (And The Internet) Respond Print
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Friday, 19 December 2014 04:10

Almost two years ago, millions of Internet users joined together to defeat the Stop Online Piracy Act, a disastrous bill that would have balkanized the Internet in the name of copyright and trademark enforcement. Over the past week, we've been tracking a host of revelations about an insidious campaign to accomplish the goals of SOPA by other means. The latest development: Google has filed a federal lawsuit seeking to block enforcement of an overbroad and punitive subpoena seeking an extraordinary quantity of information about the company and its users.  The subpoena, Google warns, is based on legal theories that could have disastrous consequences for the open Internet.

The subpoena is was issued after months of battles between Google and Mississippi Attorney General Jim Hood. According to the lawsuit, Hood has been using his office to pressure Google to restrict content accessible through the search engine.  Indeed, among other things, he sought "a “24-hour link through which attorneys general[]” can request that links to particular websites be removed from search results "within hours,” presumably without judicial review or an opportunity for operators of the target websites to be heard."  As Google states, "The Attorney General may prefer a pre-filtered Internet—but the Constitution and Congress have denied him the authority to mandate it."

The subpoena itself is bad enough, but here's what's really disturbing: the real force behind it appears to be the Motion Picture Association of America (MPAA), which has been quietly supporting state-level prosecutors in various efforts to target the company and the open Internet. The clear aim of that campaign—dubbed "Project Goliath" in MPAA emails made public through the recent high profile breach of Sony's corporate network—is to achieve the goals of the defeated Stop Online Piracy Act (SOPA) blacklist proposal without the public oversight of the legislative process. Previously, Google had responded with a sharply worded notice and a petition titled #ZombieSOPA.

According to Google, the MPAA intended to use the state prosecutors' offices to bring about the aims of SOPA after the bill's embarrassing public defeat nearly three years ago. In January 2012, legislators quickly distanced themselves from SOPA after a widespread online "blackout" campaign drew attention to the way the proposed law could be misused for censoring lawful speech. In addition, EFF helped coordinate a series of letters signed by prominent computer scientists explaining how the proposed blacklist technique—censoring at the DNS level—could undermine the fundamental architecture of the Internet, destabilizing core components in an ill considered effort to reduce copyright infringement.

The MPAA learned a lesson from that campaign, but it appears it was the wrong one. Instead of recognizing that an online blacklist was a fundamentally unworkable idea, they decided that it could only be pushed in secrecy. In one email, MPAA's Global General Counsel Steven Fabrizio includes a section titled "Technical Analyses," that suggests they did not seriously consider the technical concerns highlighted during the SOPA backlash:

Very little systematic work has been completed to understand the technical issues related to site blocking in the US and/or alternative measures IPSs might adopt. We will identify and retain a consulting technical expert to work with us to study these issues. In this context, we will explore which options might lead ISPs to cooperate with us.

Neither the MPAA nor the state attorneys general in question have challenged the authenticity of the leaked documents, which clearly outline a widespread campaign by the MPAA to direct at least $500,000, and potentially up to $1.175 million, to these political offices and towards these goals.

This coordinated campaign by the MPAA follows a trend of lobbyists funneling money and gifts to state attorneys general, who are subject to fewer restrictions and disclosure requirements than elected officials at the national level. The New York Times reported on this broader trend in a series of extensive articles beginning last October. In fact, one leaked Sony email consists of an MPAA official circulating the first in that series to 62 others, including numerous studio executivess and representatives of the Recording Industry Association of America (RIAA).

Some of the state attorneys on the receiving end of these benefits have undertaken legal efforts against Google, sending formal letters and subpoena-like documents called civil investigative demands (CIDs), both of which appear to be drafted in some cases by the MPAA or their attorneys at the firm Jenner & Block. Mississippi's Jim Hood of Mississippi in particular sent the current controversial 79-page subpoena to Google in October as a follow-up to a stern letter last year; a New York Times report demonstrates that the letter was drafted by the MPAA's law firm and delivered largely unedited to Google.

To be clear though: Google may be the target today, but the real target is the open Internet, which depends on free and uncensored platforms to survive.  Any campaign to censor the Internet is cause for concern—and a secret one is all the more so. The public has clearly and unambiguously denounced the SOPA effort; it's shameful to see its backers try to revive its goals by dodging the scrutiny of the democratic process.

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Crossword Puzzle 2014: The Year in Copyright News Print
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Friday, 19 December 2014 03:52

Over the last 12 months, IP spectators saw lot of action in the arena of copyright and related law. We would tell you all about it, but that would be cheating. Instead, we'll leave you to test your knowledge on Crossword Puzzle Day, December 21.

Download a printable PDF here, or play an unofficial interactive version hosted on GitHub by The Dod.


2. Zoe ______,  member of Congress who received one of EFF’s 2014 Pioneer Awards, in part for her commitment to reforming the Digital Millennium Copyright Act

7. First name of the fictional detective who—thanks to the Supreme Court's refusal to take up the case—is officially in the public domain

8. Former Panamanian dictator who used the “right of publicity” to attack the creators of Call of Duty for including him in their game

9. Code-sharing website from which PopcornTime torrent software, was removed after an elaborate takedown request from the MPAA

10. Company that lost a major case before the Supreme Court over letting users rent dime-sized antennas to record television programming

13. Cindy Lee ______, actor who filed a copyright suit against Google over her five-second performance in the notorious “Innocence of Muslims” video

14. Blog site, run by Automattic, that earned all the possible stars in EFF’s inaugural Who Has Your Back copyright and trademark report

17. According to a dangerous decision by the Federal Circuit Court in Oracle v. Google, these Java specifications may be considered copyrightable.

18. "Monkey _____" (see crossword background) was the center of a controversy when a photographer didn’t like that it was uploaded as a public domain image to Wikimedia Commons

19. You can now do this to your cellphone to bring it to a different carrier, thanks to a bill signed by President Obama in August

20. News and gossip site that Quentin Tarantino filed a copyright lawsuit against after it linked to a leaked script of his upcoming movie The Hateful Eight

21. Photography licensing company that made its images “free to embed” and announced it would dial back its copyright enforcement


1. Porn troll Malibu Media filed more than 1,600 copyright lawsuits in 2014, using this name in place of many of the yet-to-be-identified defendants

3. An appeals court ruled that you can’t copyright the shape of this tobacco paraphernalia

4. Outgoing “IP Czar” Victoria Espinel has taken the top job at the Business Software Association. In political circles, this move is known as the revolving ___

5. Image-hosting site owned by Yahoo that raised some hackles when it announced it would be selling prints of some users’ Creative Commons licensed prints

6. Company whose leaked emails revealed a secret anti-piracy meeting organized by the Department of Homeland Security

7. Comedy Central show Nathan For You tested the limits of fair use with its parody coffee shop, “Dumb ________”

11. Brian Knappenberger released his Aaron Swartz documentary, “The Internet’s ___ ___” under a Creative Commons License

12. In December, Swedish police raided this notoriously resilient torrent site, bringing it down worldwide

15. “Blurred Lines” singer Robin _____ went to court to ask for a declaratory judgment that his song does not infringe Marvin Gaye’s “Got To Give It Up.”

16. Maker of single-serving brewing pods that introduced something akin to DRM for coffee machines

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EFF Asks Federal Circuit to Strike Down Overbroad Software Patents Print
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Friday, 19 December 2014 02:47

There are many reasons software patents cause so much trouble. The Patent Office does not do a good job reviewing software patent applications to see if they are claiming something new. And these patents often describe the purported invention with highly vague and ambiguous language. Software patents also tend to claim every way to solve a problem, rather than the particular solution developed by the applicant. This is known as functional claiming. While it may seem like an arcane legal dispute, functional claiming is a key feature of overbroad software patents.

The Patent Act already contains a provision that is supposed to limit the scope of functional claims. If a claim describes an invention functionally, its scope is supposed to be limited to the structure the applicant actually discloses in the patent. Unfortunately, the Federal Circuit has interpreted this law narrowly and makes it far too easy for patent applicants to avoid it. Essentially, as long as a patent applicant avoids using some magic words, then the court will not apply the law.

Today EFF filed an amicus brief on this issue in a case called Williamson v. Citrix. The key claim language in this case is as follows:

a distributed learning control module for receiving communications transmitted between the presenter and the audience member computer systems and for relaying the communications to an intended receiving computer system and for coordinating the operation of the streaming data module.

As you can see, this claim describes the invention in terms of what it does rather than how it does it. But the Federal Circuit did not treat this as a functional claim. Instead, the court applied a “strong presumption” that where an applicant does not use the magic words “means for” then the claim will not be treated as a functional claim. This allows the patent applicant to skirt the law.

The defendants have asked the Federal Circuit to rehear this case en banc and reject the “strong presumption.” We agree. Our brief argues that courts must analyze the substance of the patent claim rather than looking to whether or not the applicant used certain magic words. If an applicant describes the invention in terms of what it does, then the Patent Act’s restrictions on functional claiming must be applied.

Restrictions on functional claiming will not solve all problems with software patents. But they will make it harder for applicants to come up with one way to solve a problem and then monopolize all ways to solve that problem. This has been a major reason why software patents are so useful to patent trolls. We urge the Federal Circuit to hear this case en banc and restore the Patent Act’s prohibition of overbroad functional claims.

Related Issues: 

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EFF 2014 Holiday Wish List Print
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Thursday, 18 December 2014 09:02

For the last three years, EFF has greeted the holiday season by publishing a list of things we'd like to see happen in the coming year. Sometimes these are actions we'd like to see taken by companies, and sometimes our wishes are aimed at governments, but we also include actions everyday people can take to advance our digital civil liberties. This year has seen great progress in areas such as transparency reports and encrypting digital communications. We want to build on that progress in 2015.

Here are some of the things we're wishing for this holiday:

  • News organizations and individual journalists should make it easy to securely accept documents from anonymous sources by setting up their own instances of SecureDrop.
  • President Obama should stand up for the privacy rights of people all over the world and amend Executive Order 12333 to prohibit mass surveillance. Most people have never heard of it, but Executive Order 12333 is "the primary authority under which the country’s intelligence agencies conduct the majority of their operations." So while the U.S. Congress is considering bills to curtail mass telephone surveillance, the NSA’s primary surveillance authority will be left unchallenged. Let's change that in 2015.
  • Congress should pass meaningful reform to the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act.
  • Companies that provide digital communications services should enable real end-to-end encryption for users, without backdoors for law enforcement--we're looking at you Verizon! There have been some great steps in this direction already, but we want to see a race to the top.
  • Websites should honor Do Not Track.
  • Facebook should follow the lead of Google+ and drop its harmful "real names" policy.
  • Congress should defend users and refuse to put secret trade agreements, like the Trans-Pacific Partnership (TPP) agreement, on the fast track to ratification. Deals like TPP include provisions that threaten digital rights for Internet users everywhere in the name of intellectual property protection.
  • US policymakers should strongly advocate for the benefits of a flexible fair use system. When they are involved in international policymaking, they should propose safeguards for users to counteract extreme copyright restrictions. They should start by supporting a legally binding treaty for copyright exceptions and limitations for libraries and archives.
  • All Internet sites should adopt cryptographic best practices for every connection, every time, including PFS, STARTTLS, HSTS, and encrypted traffic between data centers.
  • Companies should offer clear guidelines and a path for the disclosure of vulnerabilities that will not get security researchers sued.
  • The NSA and the Office of the Director of National Intelligence should disclose its Vulnerability Equities Process. All that they've told us so far is that this process is used to determine whether to disclose software security flaws known as "zero days" or to keep them secret for their own use, but we've had to file a FOIA lawsuit to get the details.

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Is Every Orc an Author? On Rehearing, Judges Challenge 5-Second Copyright in Garcia v. Google Print
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Tuesday, 16 December 2014 01:50

A panel of eleven Ninth Circuit federal judges heard oral arguments yesterday in Garcia v. Google, a copyright case arising from the notorious "Innocence of Muslims" video that was associated with violent protests around the world. The appellant, Cindy Lee Garcia, argues that she holds a copyright in her five-second performance in the video (a performance she says was tricked into giving), and is trying to use that claim to get the video pulled off the internet. To the shock of many, last February two Ninth Circuit judges agreed she might have a claim and ordered Google to remove the video from YouTube and prevent future uploads. Yesterday’s hearing revisited the facts and law that led to that decision. 

The judges grilled Garcia’s counsel on the question of copyrightability, challenging the notion that Garcia’s five-second performance could be a copyrightable work.  “Could any person who appeared in the battle scenes of the Lord of the Rings claim rights in the work?” asked Judge Margaret McKeown. And, she wondered, wasn’t this case really an issue of possible fraud, not copyright infringement?

Judge Alex Kozinski, however, suggested that the Beijing Treaty on Audiovisual Performances, which recognizes certain performance rights for actors, requires courts to recognize Ms. Garcia’s claimed copyright interest. However, the treaty is not yet in force, in the U.S. or anywhere else. In any event, as Google counsel explained, it is not clear that the treaty would create a copyright interest in a five-second performance that was part of a much longer work. Judge Kozinski also compared Ms. Garcia’s claim to a 1977 case involving a short performance by a “human cannonball.”

Google’s counsel stressed the burden on service providers and video-makers of recognizing a copyright interest in this case. If every person captured doing something creative on film could claim a copyright in it, service providers could find themselves flooded with takedown notices under the DMCA, resulting in the silencing of all kinds of lawful speech.  

Google’s counsel also attempted to keep the court focused on the preliminary injunction standard, which requires courts to deny the broad injunctive relief Garcia sought if the law does not “clearly favor” the legal claim. In this case, the overwhelming weight of case law (including a recent Ninth Circuit opinion) and even the Copyright Office clearly disfavors Garcia’s theory.  In our view, that, by itself, should have resolved the question.

Monday's hearing follows months of controversy. EFF and many other public interest groups have filed friend-of-the-court briefs in the case, noting (among other concerns) that actors generally do not have a copyright in their performances and that in any case neither Garcia nor the earlier opinion had justified a prior restraint of speech. We hope the Ninth Circuit quickly comes to the same conclusion and lifts the injunction.

Related Cases: 

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EFF in Court to Argue NSA Data Collection from Internet Backbone Is Unconstitutional Print
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Tuesday, 16 December 2014 00:54
First Public Court Challenge to “Upstream” Internet Spying

Oakland - The Electronic Frontier Foundation (EFF) will argue on Friday before a federal court that the National Security Agency (NSA) is violating the Fourth Amendment by copying and searching data that it collects by tapping into the Internet backbone. The hearing on a motion for partial summary judgment in Jewel v. NSA will be at 9 am on Dec. 19 before Judge Jeffrey White at the federal courthouse in Oakland.

Jewel was filed in 2008 on behalf of San Francisco Bay Area resident Carolyn Jewel and other AT&T customers. EFF has amassed a mountain of evidence to support the case, including documents provided by former AT&T technician Mark Klein, which show that the company has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Other whistleblowers—including Thomas Drake, Bill Binney and Edward Snowden—have revealed more detail about how this technique feeds data into the NSA's massive databases of communications. Since June 2013, the government has confirmed that it searches much of the content it collects as part of its "upstream" collection without a warrant. The government claims the content searches are justified under Section 702 of the FISA Amendments Act and do not violate the Fourth Amendment.

Under the government's legal theory, it can copy virtually all Internet communications and then search them from top to bottom for specific "identifiers"—all without a warrant or individualized suspicion—as long as it does so quickly using only automated processes.

EFF Special Counsel Richard Wiebe will argue before the court that the Fourth Amendment definitively bars this type of dragnet. As EFF presented in its motion, enough information now exists on the record for the court to rule that the government's technique represents an unconstitutional search and seizure.

What: Motion for Partial Summary Judgment

Who: Richard Wiebe, EFF Special Counsel

Date: Friday, Dec. 19, 2014

Time: 9:00 am

Where: Oakland Federal Courthouse

Courtroom 5, 2nd Floor

1301 Clay St.

Oakland, CA

Wiebe and EFF staff attorneys will be available for comment immediately following the hearing.

For more on Jewel v. NSA:


Dave Maass
   Media Relations Coordinator
   Electronic Frontier Foundation
   This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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The Faulty Logic at the Heart of Microsoft Ireland Email Dispute Print
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Monday, 15 December 2014 08:32

Microsoft has been battling with the federal government over the Department of Justice's high profile attempt to get access to emails stored abroad in Ireland for the better part of 2014. The US government has claimed a US warrant is sufficient to get emails even when stored in another country, while Microsoft has resisted, arguing the US warrant power does not reach that far. The case has made business rivals into temporary allies and forced Ireland's Minister for Foreign Affairs and Data Protection to ask the European Commission to formally support Microsoft.

Today we joined the Brennan Center for Justice, the ACLU, and The Constitution Project in a new amicus brief filed in the Second Circuit Court of Appeals supporting Microsoft.  We warn the appeals court that two pieces of faulty logic in the lower court's reasoning could have dangerous implications for digital privacy.

Here's the background. In December 2013, the federal government applied for a search warrant to obtain the contents of emails and other details from a user account hosted by Microsoft. While the non-content data were stored in the United States, Microsoft discovered that the contents of the emails were stored on a server located in Dublin, Ireland. It refused to turn the emails over to the government, arguing that a US judge had no authority to issue a search warrant for records stored abroad. A federal magistrate judge disagreed with Microsoft in April 2014, ordering it to turn over the emails. Microsoft appealed that decision to a federal district court judge, and we filed an amicus brief supporting Microsoft. But in July, the district court agreed with the government and upheld the warrant. Microsoft appealed that decision to the Second Circuit, and that's where our latest amicus brief was filed.

We focus on two major issues.  First, both lower court decisions hinged on a belief that the Fourth Amendment "moment" only occurred when a government agent sitting in the US reviewed the emails at issue. But the Fourth Amendment event actually occurs earlier than that: when Microsoft copies the emails to turn over to the government. That moment is a Fourth Amendment "seizure" since at that point, there is a meaningful interference with the email user's right to possess and ultimately control his messages. In other words, once these emails are copied, the user loses the ability to decide who gets the messages and for what purposes. A contrary decision has serious privacy implications as it allows the government to adopt a "seize first, search later" view of the Fourth Amendment, where the government can seize a computer, copy all of its data, and keep that information indefinitely—without a search warrant at all. 

Second, one of the arguments made by the government and accepted by the lower courts is that the government has the power to seize emails in Ireland using a US search warrant because this warrant is executed like a subpoena. The argument goes like this: while a physical world search warrant for a place like a house authorizes the government to kick down a door and take what it has been authorized to seize, a search warrant for email is more like a subpoena, where the government sends the request to the holder of the emails and asks them to turn over the information. When a person receives a lawfully issued subpoena, they generally must comply—regardless of where the records are stored, even if they are stored abroad. Thus, the government concludes that it can use a US search warrant to get the emails into the country. But as we explain in our amicus brief, any analogy to a subpoena must be rejected because the data at issue here are the contents of emails, which the government cannot obtain with merely a subpoena. Instead, the Fourth Amendment requires the government obtain emails with a search warrant. Although the government did obtain a warrant here, extending the warrant's reach to emails stored abroad should not rest on an inaccurate analogy to subpoenas. 

The case is being closely watched both here in the US and around the world, as it involves tricky questions about modern communications never before addressed in US courts. Regardless of the outcome, we hope the Second Circuit doesn't adopt the bad legal reasoning that brought the case to where it is today. We expect oral argument sometime in the spring or summer of 2015.

Related Issues: 

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