November 2010 – Attorney Evan Brown

November 29, 2010 Copyright

Negligence claim against RIAA fails because there was no physical injury

Andersen v. Atlantic Recording Corp., 2010 WL 4791728 (D.Or. November 18, 2010) [Download complaint]

Tanya Andersen has waged a years-long battle against the record companies after she was sued for copyright infringement for trading music files via a peer-to-peer network. She sued the RIAA and several record companies over a number of claims, including one for negligence, saying that the plaintiffs in the copyright case were negligent by “prosecuting sham litigation against” her and by failing to properly investigate the name of a pseudonymous file sharer.

The RIAA defendants moved for summary judgment on the negligence claim. The court granted the motion.

The court held that Oregon law (under which the negligence claim was brought) does not provide for the type of damages Andersen was seeking. She had claimed damages from emotional distress and physical ailments stemming from defendants’ alleged negligence.

Oregon’s “impact rule,” requires a “physical touching” for there to be emotional distress damages in cases like this. In this case, the actions of the plaintiffs that gave rise to Andersen’s alleged harm were the aggressive and otherwise objectionable tactics in pursuing the copyright litigation. Absent evidence of the required physical impact, her negligence claim failed.

November 25, 2010 Copyright

Class action lawsuit challenges Bittorent lawsuit factory’s business model

Well this is interesting. One of the bittorrent copyright defendants who has been ~~victimized~~ targeted by the law firm of Dunlap, Grubb & Weaver, a/k/a the US Copyright Group, has filed a class action lawsuit against the law firm. The complaint [download], filed yesterday (November 24), is 96 pages long, includes 456 paragraphs of allegations, and contains 25 claims for relief. The claims include extortion under the Hobbs Act, common law extortion, conspiracy, violation of the Computer Fraud and Abuse Act, and a slew of fraud claims. Mounting a defense to this gargantuan effort is certainly going to cut into the profit margin that the US Copyright Group should expect from its dubious business model.

November 25, 2010 Copyright

Smoked turkey company alleges that competitor infringed copyright in directions

Greenberg Smoked Turkeys, Inc. v. Goode-Cook, Inc., No. 10-621, (Complaint filed November 23, 2010, E.D. Texas) [Download the Complaint]

Happy Thanksgiving. I’m grateful for your continued support and interest in Internet Cases. It truly is a pleasure to write these posts and to get your feedback and engagement. And it’s also a pleasure to bring you news of this ultra-timely new copyright lawsuit.

Greenberg Smoked Turkeys, as you might expect, sells turkeys. Since 1987 it has distributed these turkeys with some simple instructions, comprised of three short paragraphs. You can read these instructions which are embedded in the complaint. It posted these instructions on its website in 2003.

Some time thereafter, Greenberg alleges, its turkey selling competitor copied the instructions and began using the instructions on its own website. Thus this lawsuit.

Infringement claims over instructions can be a tricky endeavor. In copyright law, there’s something called the “merger doctrine.” This relates to the idea-expression dichotomy: ideas are not copyrightable but their expression is. Simple instructions or directions may not pass this threshold: in their simplicity, they may be expressing something in the only possible way. That kind of expression does not rise to the level of copyrightability.

November 19, 2010 Copyright

If Thomas Aquinas considered the copyright implications of Firesheep and Blacksheep

Whether Blacksheep infringes copyright by “leveraging” Firesheep’s code?

Objection 1: Firesheep claims that its purpose is to demonstrate security vulnerabilities and is not intended for nefarious purposes. Would not what it does be illegal otherwise? If it complained about others using its code for similar purposes, would that not illustrate that its objective is other than educational and at that point it would then be breaking the law?

Objection 2: Firesheep has put its code out there and others should be able to use it as they see fit, especially to protect themselves from how the Firesheep code may be used. Further, all Blacksheep does is provide the tool. It is the individuals using it who are the infringers. Blacksheep should be left out of the equation.

On the contrary, if by “leveraging” Firesheep’s code, Blacksheep causes a copy of the Firesheep code to be made, this copying, if unauthorized by Firesheep, would seem to constitue an infringement.

I answer that, Blacksheep markets its product for the very purpose of combatting Firesheep, so one may find that Blacksheep has distributed such “device” with the object of promoting its use to infringe copyright, as shown by its clear expression to foster infringement. As such, Blacksheep could be contributorily liable for the conduct of its users.

Reply to Objection 1: One’s characterization of his own purpose does not ultimately determine whether that purpose is legal. Consider the law’s unwillingness to exhonerate a person accused of inflicting a black eye based on the defense that the assault was to study of the biological origins of bruising. But just below the surface here is the sentiment of the “unclean hands” doctrine. A court will not award relief to a party who comes to court with “unclean hands.” It may seem unfair for Firesheep to be so exploitative of others (privacy rights) and at the same time complain that others are being exploitative of its copyright rights.

Reply to Objection 2: The stated purpose of education or furtherance of the public interest, should not preclude Firesheep from claiming copyright in its code. Consider that no reasonable person will deny public television stations’ claim of copyright on their programming. One would infringe by posting NOVA to YouTube.

[Um, what is this?]

November 16, 2010 Privacy

Case against iPhone eavesdropper moves forward

Caro v. Weintraub, 2010 WL 4514273 (D. Conn. November 2, 2010)

Stepson who used iPhone to record conversation about dying mother’s will may be liable for invasion of privacy and infliction of emotional distress.

This past summer the case against a man accused of using his iPhone to surreptitiously record a family conversation about his dying mother’s will got some attention when the court dismissed the stepfather-widower’s claim for violation of the Electronic Communications Privacy Act.

But the dismissal of that case was not the end of the story. Plaintiff had filed a separate lawsuit, claiming, among other things, invasion of privacy (by intrusion upon seclusion) and intentional infliction of emotional distress. Defendants (the allegedly eavesdropping iPhone user and his brother) moved to dismiss the invasion of privacy and emotional distress claims. The court denied the motion.

Plaintiff alleged that four days before his wife (defendants’ mother) died, defendants and some other family members came over to the house to discuss the mother’s will. Unbeknown to plaintiff, one of the defendant brothers allegedly used his iPhone to secretly record the conversation. In the subsequent litigation over the mother’s estate, the stepsons attempted to use an allegedly altered version of the recording as evidence.

The court found that the act of secretly recording the conversation could constitute invasion of privacy. Whether it actually happened the way plaintiff claimed will be decided later by a jury. But the judge found that a jury was entitled to make that determination. Plaintiff’s claims that defendants surreptitiously recorded an intimate conversation about a family member’s will qualified as an offensive intentional intrusion in private affairs that could be highly offensive to a reasonable person.

As for the intentional infliction of emotional distress claim, the court found that defendants’ alleged conduct “exceed[ed] all bounds usually tolerated by decent society.” As with the invasion of privacy claim, the question of liability will go to a jury (unless the case settles, of course.)

November 13, 2010 Electronic Discovery, Litigation, Privacy

Facebook account protected from disclosure in discovery, for now

McCann v. Harleysville Insurance, — N.Y.S.2d —, 2010 WL 4540599 (November 12, 2010)

Unlike some recent cases such as Romano v. Steelcase, which seem to give the impression that the information in a person’s social networking account is always fair game for discovery in litigation, one New York court has come down on the side of protecting the privacy of a Facebook user’s content.

Plaintiff was injured in an automobile accident and filed a lawsuit over her injuries. In the course of discovery, defendant sought photographs from plaintiff’s Facebook account and “an authorization” to access the account. Defendant claimed the sought-after discovery related to whether plaintiff sustained a serious injury.

After plaintiff did not respond to the discovery requests, defendant moved to compel. The trial court denied the motion, finding the discovery to be overly broad, and finding that defendant had failed to show the relevancy of the information to be discovered. Defendant sought review with the appellate court. On appeal, the court affirmed.

The court held that the discovery sought was too broad and that defendant had failed to show the relevancy of the information. It affirmed the denial of the motion as to avoid a “fishing expedition.”

But the holding is anything but reassuring from the plaintiff’s perspective. It affirmed the denial without prejudice to serving additional discovery requests. So it sounds as if defendant tailors its discovery a bit more closely, and shows how accessing plaintiff’s Facebook account will provide relevant evidence, it may see some success.

November 9, 2010 Copyright, DMCA

Court orders company to stop sending bogus DMCA notices to eBay

Design Furnishings, Inc. v. Zen Path LLC, No. 10-2765, 2010 WL 4321568 (E.D. Cal. October 21, 2010)

Decision shows court’s willingness to crack down on overreaching rights holders and abusive DMCA takedown practices.

Plaintiff and defendant both sell wicker furniture on eBay. Defendant sent 63 notices to eBay complaining that plaintiffs auctions infringed on defendant’s purported copyright in the furniture.

So plaintiff filed a lawsuit over the barrage of DMCA takedown notices, claiming, among other things, that defendant violated 17 U.S.C. 512(f) by knowingly and materially misrepresenting that plaintiff’s eBay auctions contained infringing material. Plaintiff asked the court to grant a temporary restraining order (TRO), stopping defendant from sending the notices to eBay. The court granted the motion.

The court found that plaintiff would likely succeed on its Section 512(f) claim because of the strong inference that defendant knew it did not have a valid copyright claim. On this point, the court found that the defendant appeared to be claiming copyright protection in the industrial design of the wicker furniture. But the Copyright Act excludes “useful articles” from the scope of copyright protection.

The court also found plaintiff might suffer irreparable harm if defendant were permitted to keep sending the bogus DMCA takedown notices. If eBay were to suspend plaintiff’s account, plaintiff might lose prospective customers and goodwill. This sort of harm was intangible and not capable of measurement. Because of the risk of harm, the court also found that the balance of equities tipped in plaintiff’s favor.

Finally, the court found that the TRO would serve the public interest. On this point the court made the intriguing observation that eBay’s policies of taking down content upon the mere allegations of infringement reverses the ordinary burden of proof in copyright infringement matters. The court granted the TRO to prevent defendant from “effectively shut[ting] down a competitor’s business on eBay simply by filing the notice that the seller’s product allegedly infringes on the complaining party’s copyright.”

November 2, 2010 Contracts, First Amendment, Fraud/Misrepresentation

Facebook victorious in lawsuit brought by kicked-off user

Young v. Facebook, 2010 WL 4269304 (N.D. Cal. October 25, 2010)

Plaintiff took offense to a certain Facebook page critical of Barack Obama and spoke out on Facebook in opposition. In response, many other Facebook users allegedly poked fun at plaintiff, sometimes using offensive Photoshopped versions of her profile picture. She felt harassed.

But maybe that harassment went both ways. Plaintiff eventually got kicked off of Facebook because she allegedly harassed other users, doing things like sending friend requests to people she did not know.

When Facebook refused to reactivate plaintiff’s account (even after she drove from her home in Maryland to Facebook’s California offices twice), she sued.

Facebook moved to dismiss the lawsuit. The court granted the motion.

Constitutional claims

Plaintiff claimed that Facebook violated her First and Fourteenth Amendment rights. The court dismissed this claim because plaintiff failed to demonstrate that the complained-of conduct on Facebook’s part (kicking her off) “was fairly attributable to the government.” Plaintiff attempted to get around the problem of Facebook-as-private-actor by pointing to the various federal agencies that have Facebook pages. But the court was unmoved, finding that the termination of her account had nothing to do with these government-created pages.

Breach of contract

Plaintiff’s breach of contract claim was based on other users harassing her when she voiced her disapproval of the Facebook page critical of the president. She claimed that in failing to take action against this harassment, Facebook violated its own Statement of Rights and Responsibilities.

The court rejected this argument, finding that although the Statement of Rights and Responsibilities may place restrictions on users’ behavior, it does not create affirmative obligations on the part of Facebook. Moreover, Facebook expressly disclaims any responsibility in the Statement of Rights and Responsibilities for policing the safety of the network.

Good faith and fair dealing

Every contract (under California law and under the laws of most other states) has an implied duty of good faith and fair dealing, which means that there is an implied “covenant by each party not to do anything which will deprive the other parties . . . of the benefits of the contract.” Plaintiff claimed Facebook violated this implied duty in two ways: by failing to provide the safety services it advertised and violating the spirit of the terms of service by terminating her account.

Neither of these arguments worked. As for failing to provide the safety services, the court looked again to how Facebook disclaimed responsibility for such actions.

The court gave more intriguing treatment to plaintiff’s claim that Facebook violated the spirit of its terms of service. It looked to the contractual nature of the terms of service, and Facebook’s assertions that users’ accounts should not be terminated other than for reasons described in the Statement of Rights and Responsibilities. The court found that “it is at least conceivable that arbitrary or bad faith termination of user accounts, or even termination . . . with no explanation at all, could implicate the implied covenant of good faith and fair dealing.”

But plaintiff’s claim failed anyway, because of the way she had articulated her claim. She asserted that Facebook violated the implied duty by treating her coldly in the termination process, namely, by depriving her of human interaction. The court said that termination process was okay, given that the Statement of Rights and Responsibilities said that it would simply notify users by email in the event their accounts are terminated. There was no implied obligation to provide a more touchy-feely way to terminate.

Negligence

Among other things, to be successful in a negligence claim, a plaintiff has to allege a duty on the part of the defendant. Plaintiff’s negligence claim failed in this case because she failed to establish that Facebook had any duty to “condemn all acts or statements that inspire, imply, incite, or directly threaten violence against anyone.” Finding that plaintiff provided no basis for such a broad duty, the court also looked to the policy behind Section 230 of the Communications Decency Act (47 U.S.C. 230) which immunizes website providers from content provided by third parties that may be lewd or harassing.

Fraud

The court dismissed plaintiff’s fraud claim, essentially finding that plaintiff’s allegations that Facebook’s “terms of agreement [were] deceptive in the sense of misrepresentation and false representation of company standards,” simply were not specific enough to give Facebook notice of the claim alleged.