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Washington, D.C.
June 2008
Computer Law Reporter
A MONTHLY JOURNAL OF COMPUTER LAW AND PRACTICE
Publisher:
Neil J. Cohen, Esq.
HIGHLIGHTS
Contents
Page
Subscription price $2650 for one year. Published monthly by Computer Law Reporter, Inc., Suite 602, 1601 Connecticut Avenue,
N.W., Washington, D.C. 20009 Tel: 202-462-5755 Fax: 202-328-2430 ISSN: 0739-7771 Copyright � 2008 Computer
Law Reporter, Inc. All Rights Reserved. Publications Director: John G. Herring. Production Manager: Laura Melton. The
views expressed herein do not necessarily represent those of the Editors or members of the Board of Editors.
Volume 47, Number 4
(continued on page 428)
"MAKING AVAILABLE"
MUSIC ONLINE AND
INFRINGEMENT OF THE
DISTRIBUTION RIGHT
................434
RECENT DECISIONS
.....................434
DOCUMENTS
Opinion, Mangosoft, Inc. v.
Oracle Corporation
...............................469
Opinion, DirecTV, Inc. v. Rawlins ...............476
Opinion, Symantec Corporation v.
Computer Associates
.............................486
Opinion, Doe v. MySpace Inc......................501
Opinion, Gerlinger v. Amazon.com, Inc. .....508
Opinion, Healix Infusion Therapy, Inc.
v. Helix Health
, LLC ..............................511
Opinion, Holtzman v. Caplice .....................528
Opinion, E & M Properties, Inc. v.
Razorgator, Inc.

......................................535
Opinion, In re Yahoo Litigation ..................542
The most noteworthy decisions this month are the
following:
In Mangosoft, Inc. v. Oracle Corporation, No.
2007-1250 (Federal Circuit, May 14, 2008), the
United States Court of Appeals for the Federal Cir-
cuit held that a federal district courts construction
of the term local as used in a software patent was
supported in the record by evidence that was consis-
tent with the challenged meaning from a technical
dictionary provided by the defendant software com-
pany. That definition led to the district courts find-
ing that local memory devices were not the same
as shared, networked, or remote memory devices.
The Court noted that the specifications figures and
descriptions consistently represented that local
persistent memory devices were directly attached to
individual computers and contrasted local memory
devices with network memory devices.
In DirecTV, Inc. v. Rawlins, No. 06-1430 (4
th

Circuit, April 21, 2008), the United States Court of
Appeals for the Fourth Circuit held that a district
courts discretion to award or not award damages
under the Wiretap Act is not restricted to those
cases involving de minimis violations. Plaintiff,
a satellite television service provider, had alleged
that the defendant customer used illegal devices to
access programming in violation of the Electronic
Communications Privacy Act of 1986 (Wiretap
Act). According to the Court, the district court
abused its discretion by giving weight to improper
considerations (i.e., defendant did not use the illegal
devices for commercial purposes and the lack of
evidence showing that defendant induced others to
violate the Wiretap Act) and by failing to consider
relevant factors (i.e., the severity of the violation,
the amounts the defendant paid for his pirate access Computer Law Reporter
1601 Connecticut Avenue, N.W., Suite 602, Washington, DC 20009 202-462-5755 Fax 202-328-2430
Fred M. Greguras, Esq.
Fenwick & West
Two Palo Alto Square
Suite 800
Palo Alto, CA 94306
Tobey B. Marzouk, Esq.
Marzouk & Parry
1120 19th Street, N.W.
Seventh Floor
Washington, DC 20036-3605
Michael F. Mason, Esq.
Hogan & Hartson
555 13th Street, N.W.
Washington, DC 20004-1109
Gary J. Rinkerman, Esq.
Baker & Hostetler
1050 Connecticut Avenue, NW
Washington, DC 20036
Professor Stephen Saxby
Faculty of Law
Southampton University
Highfield, Southampton
S017 1BJ U.K.
Board of Editors
Richard H. Stern, Esq.
Kellogg Huber Hansen
Todd & Evans
1615 M Street, NW
Suite 400
Washington, DC 20036
J.T. Westermeier, Esq.
DLA Piper Rudnick Gray Cary LLP
1775 Wiehle Avenue
Suite 400
Reston, VA 20190-5159
E. Robert Yoches, Esq.
Finnegan, Henderson, Farabow,
Garrett & Dunner
1300 I Street, N.W.
Washington, DC 20005-3315
Maxim H. Waldbaum, Esq.
Pryor Cashman Sherman
& Flynn LLP
410 Park Avenue
New York, NY 10022-4441
Volume 47, Number 4, June 2008. Copyright � 2008 Computer Law Reporter, Inc. All Rights Reserved
427 Computer Law Reporter
1601 Connecticut Avenue, N.W., Suite 602, Washington, D.C. 20009 202-462-5755 Fax 202-328-2430
Volume 47, Number 4, June 2008. Copyright � 2008 Computer Law Reporter, Inc. All Rights Reserved.
428
In Gerlinger v. Amazon.com, Inc., No. 05-17328
(9
th
Circuit, May 27, 2008), the United States Court
of Appeals for the Ninth Circuit held that an online
buyer of books lacked standing to bring an anti-
trust challenge to a marketing agreement between
Amazon.com and Borders Group, Inc. because he
did not show that he ever purchased an item for a
higher price than he would have paid had there been
no marketing agreement and thus has suffered no
injury-in-fact. According to the Court, academic
articles regarding the effects of market allocation
submitted by the plaintiff buyer did not establish
that he personally paid a higher price for a book as a
result of the agreement. Nor did he show or even al-
lege that he himself experienced any reduced selec-
tion of titles, poorer service or any other potentially
conceivable form of injury. The Court concluded
that he therefore lacked standing to maintain an an-
titrust claim.
In Healix Infusion Therapy, Inc. v. Helix Health,
LLC, NO. H-08-0337 (S.D. Texas, April 25, 2008),
the United States District Court for the Southern
District of Texas held that it did not have personal
jurisdiction over a defendant corporation whose
website was accessible to Texas residents, even
though the website offered a contact form that
could be filled out and submitted online as well as
member IDs and passwords that allowed users to
access their electronic medical record patient por-
tal. The court held that the website was not suf-
ficiently interactive nor targeted to Texas residents.
The court also held that an individual out-of-state
defendant did not subject himself to personal juris-
diction in Texas based on his interactive online blog
because there was no evidence that the blogging
was directed at Texas residents. However, that in-
dividual was subject to Texas personal jurisdiction
by his alleged cybersquatting activities in violation
of the Anticybersquatting Consumer Protection Act
(ACPA).
In Holtzman v. Caplice, No. 07 C 7279 (N.D.
Illinois, May 23, 2008), the United States District
Court for the Northern District of Illinois held that
a plaintiff recipient of an unsolicited fax had ad-
equately pled sufficient facts under the Telephone
Consumer Protection Act (TCPA) to overcome
a motion to dismiss by the defendant. The court
also rejected First and Fifth Amendment consti-
tutional challenges to the TCPA. In rejecting the
devices, and whether a useful purpose would
be served by awarding the statutory amount of $
10,000).
In Symantec Corporation v. Computer
Associates
, No. 2007-1201, -1239 (5
th
Circuit, April
11, 2008), the United States Court of Appeals for
the Federal Circuit held that a district court erred
in its construction of the claim terms a method of
screening data as it is being transferred. According
to the Court, the use of language in the preamble
different from that in the body of the claims did
not suggest that the preamble imposed a limitation.
Rather it was assumed that the preamble language
was duplicative of the language found in the body
of the claims or merely provided context for the
claims, absent any indication to the contrary in the
claims, the specification or the prosecution history.
There was nothing in the claims, the specification
or the prosecution history that suggested that the
preamble language as it is being transferred had
any different meaning than prior to storage. In ad-
dition, the Court held that the district court erred in
its construction of the claim terms destination stor-
age medium, computer, and computer system.
Because the specification did not reveal any special
definition for the terms computer or computer
system, the Court construed those terms according
to their ordinary meaning. It was clear to the Court
that the ordinary meaning of the terms computer
or computer system as understood by a person of
ordinary skill in the art at the time of the invention
was no